Utpal Kumar Bhattacharya, Hon’ble Member.
This is an appeal under Section 15 of the Consumer Protection Act, 1986 challenging the judgment and order dated 15.01.2015 passed by the Ld. District Forum, Unit – I, Kolkata in Complaint Case No. CC/12/575 allowing the complaint on contest with cost against the instant Appellants who were directed to pay Rs.12,800/- each to the Respondent Nos. 1 and 2 herein.
The Appellants were further directed to pay Rs.8,000/- as compensation to each of the two Respondents for subjecting them to physical harassment and mental agony and also litigation cost Rs.3,000/- to each of the said Respondents by the Appellants.
The Appellants were directed to pay all the amounts, mentioned above, within 30 days from the date of the impugned judgment and order, failing which, as ordered, they would be liable to pay interest @10% per annum over the entire sum due to the credit of the Complainant till full realization.
Briefly stated, the facts relevant to the instant appeal were that the Respondent Nos. 1 and 2 booked a package tour in Europe covering the countries like UK, France, Italy, Finland and Germany under the management and supervision by the Appellants – Tour Operators. The Respondent Nos. 1 and 2 advanced an amount of Rs.42,000/- @ Rs.21,000/- each as the booking charges and also handed over to the Appellant No. 2 relevant papers as per requirement for arranging VISA in respect of the said countries in connection with the said package tour.
The Respondent Nos. 1 and 2 were duly communicated by the Appellant No. 2 about the programme of the VISA interview which they attended. Their tour programme, however, could not be materialized as the respondents received information from the Appellants that their proposals for UK VISA were rejected. The Appellants refused to refund the advanced amount in spite of the facts that the subject tour package could not be availed of by the Respondents due to above reason as, what was told by the Appellants, the entire advanced amount was absorbed as cancellation charges of the hotel accommodation and flight reservation. The Appellant, however, agreed on persuasion to refund a part of the advanced amount to the tune of Rs.8,720/- to each of the two Respondents.
The Respondents did not agree to the aforesaid meagre amount of refund and proposed for accommodating them in a domestic tour at the expense of the entire amount advanced for their overseas tour package. The proposed solution too could not be arrived at as the Appellant claimed Rs.10,000/- as extra charge than that they charged from other tourists.
The aggrieved Respondents then resorted to the Ld. District Forum filing the instant complaint which led to the issuing of the impugned judgment and order.
Heard Ld. Advocates appearing on behalf of both sides.
As per version of the Ld. Advocate appearing on behalf of the Appellant, the Respondents could not avail themselves of the tour package due to rejection of their VISA proposal by UK embassy. The Appellant, as submitted, had all liabilities for processing the VISA proposals which it did in right earnest but acceptance of the proposal being the sole discretion of the country concerned where the tours were to be undertaken, the Appellant, in fact, had no liability for having the VISA proposals approved in favour of the Respondents.
The Ld. Advocate continued to submit that a glance at the impugned judgment and order would make it clear that the order was signed by the President of the Ld. District Forum who was not present when the case was heard. He also submitted that the case was not maintainable as the Ld. District Forum lacked the territorial jurisdiction.
Drawing notice of the Bench to page No. 60 of the case record, the Ld. Advocate submitted that the Agreement was signed by the Respondents knowing very well the terms and conditions as narrated in the undertakings recorded therein towards forfeiture of the deposits. On the instant occasion, as continued, forfeiture was done for the right cause.
The Ld. Advocate maintained that the Appellant could have forfeited the entire amount but, as a mark of good gesture, the Appellant agreed to the part refund of the amount but the Respondents appeared to be too stubborn to accept the proposal of part refund.
The Ld. District Forum, as contended, passing the impugned order without appreciating the facts and circumstances narrated above.
The Ld. Advocate concluded with the prayer for allowing the appeal setting aside the impugned judgment and order.
Ld. Advocate appearing on behalf of the Respondents submitted, per contra, that the Respondents, admittedly, submitted all the required papers and made advance payment as claimed by the Appellant but, the Appellant failed to provide the Respondents with due service by arranging for the package tour opted by them.
As submitted, the Appellant organization had a branch office at Camac Street, P.S. – Park Street, Kolkata – 700016 which was actually the office of the Appellant No. 2. There was, therefore, no debate about the territorial jurisdiction of the Ld. District Forum, Unit – I, Kolkata.
Referring to running page No. 59, the Ld. Advocate pointed out that the guidelines were clear enough as to the fact that the Appellants travelling agents were enjoying exclusive jurisdiction in respect of the tours conducted by them. As submitted, the Appellants Travel Agency refunded an amount of Rs.8,200/- to each of the two Respondents crediting directly the amounts to the accounts through NEFT. There was, therefore, no way for the respondents to refuse the acceptance of the said amount.
The Ld. Advocate concluded his submission praying for dismissing the appeal in affirmation of the impugned judgment and order.
Perused the papers on record.
Location of the Branch office of the Appellant at Camac Street, Kolkata, eliminated the question of maintainability on the point of territorial jurisdiction.
The moot point to be taken into consideration on the instant issue was whether there was at all any deficiency in rendering services by the Appellant travel agency. The fact remained that the Appellant travel agency was liable to initiate and finalize the process of the VISA proposals of the Respondents. It also appeared prima facie that the Appellants made no mistake in discharging its said liability adhering strictly to the guidelines fixed for the purpose.
The VISA is normally sanctioned by the embassy of the touring country and none else. Naturally, the Appellant travel agency, on the instant occasion, had no role to play in the VISA sanctioning process. Therefore, no lapse on the part of the Appellants came apparent for the Respondents’ missing the travel package due to the VISA not being sanctioned in favour of them by the touring country.
Now, it is to be decided whether the Appellant made a logical deduction from the amount paid in advance by the Respondents.
The guidelines at page 59 indicates the travel agency’s absolute jurisdiction on the tour packages. The undertaking part of the tourist at page 60 also left the tourists at the mercy of the tour operators where refunding formula had been worked out with absolute disregard to the consumers’ interest and against the public policy and equity. Undertaking drafted to protect unilaterally the interest of the Appellant travel agency, has all reasons to be considered void ab initio. There cannot be any reason for deduction of a lion’s share of the advanced amount particularly when the Respondent had no scope to avail themselves of the tour package. In any way, unjust enrichment of the Appellant cannot be encouraged.
Keeping in view the facts and circu
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mstances and also in consideration of the facts that an expenditure, whatever little it may be that the Appellant had to incur a reasonable deduction should have been made from the advance amount. The Bench observes that reasonable amount should not exceed 10% of the amount advanced. Rs.21,000/- was the actual amount advanced. After deducting 10%, the amount comes to Rs.18,900/-. Deducting Rs.8,200/- which had already been refunded, the refundable amount comes to Rs.10,700/-. Hence, ordered, that the appeal be and the same is allowed in part. The Appellant is hereby directed to refund an amount of Rs.10,700/- to each of the Respondent within 45 days from the date of the instant order, failing which, interest @ 9% shall accrue to Rs.10,700/- each from the date of default till the amount is fully realized. There is no order towards payment of cost and compensation.