Capital Control India Private Limited vs Thomas Cook (India) Limited

THE complainants have filed this complaint against Thomas Cook India Limited which is a company having office at Thomas Cook Building, Dadabhai Nouroji Building. THE O.P. Company organizes travel and holiday tours abroad. THE complainants joined "European Grandeur II Code TCEU-0205" tour arranged by the O.P. Company. THE O.P. Company had given full information of the tour and also gave brochure of their tour to the complainants. THEy therefore booked the said tour and paid monies as per company''s requisition and O.P. issued receipts to that effect. Exh.A is the said receipt. According to the complainants, the said tour was to commence from 2.5.1999 from New Delhi. Pre departure meeting was held on 30.4.1999 and complainants and other passengers were told that the tour would commence from 2.5.1999 and every body had to catch the flight from New Delhi. It is the grievance of the complainant that O.P. did not arrange air ticket from Mumbai and at the eleventh hour they were asked to come to New Delhi for onwards journey. At the eleventh hour, they were given air ticket and tour programme. No sufficient time was given to the complainants to pack the baggage and to board the flight for tour. Flight timing was at 2.20 a.m. So, they could not sleep at that night thereby they were inconvenienced from the beginning of the tour. According to the complainants, on 5.5.1999 while on tour, the coach in which they were traveling failed near Italian border. Tour conductor assured within ten minutes another coach would arrive. But it arrived after seven hours and during these seven hours waiting period no tea or lunch was offered and thereby complainants were greatly inconvenienced along with other co-passengers.

IT is further grievance of the complainants that in Hotel Classic, Leysin in Switzerland they were not given rooms facing valley though they were so assured as a part of tour programme. Ms. Sunita of Mumbai office was contacted by the complainants on phone but their request was turned down and they had to stay in the back side room because back side rooms were having lower tariff. The complainants further pleaded that there was negligence and lack of service on the part of O.P. Once again coach broke down while travelling from Leysin to Geneva on highway and therefore for one hour both the complainants were required to smell diesel while sitting in the coach. The passengers were required to transfer their baggage in the new coach since no servants or coolies were available. Thus, there was further inconvenience caused to them and they could not do any sight seeing in Geneva till old coach arrived after repairs. They further pleaded that on the day of departure from Paris, they were ready to go to Euro Railway station from hotel at 7.30 a.m. but coach arrived at 8.15 a.m. No porters were there to load their baggage and because of negligence in discharge of their duty they could reach railway station hardly fifteen minutes before the scheduled departure time of the train. The complainants could not pass through customs to avail of benefit of VAT refund on duty free items purchased in Paris. So, they were deprived of VAT refund due to late arrival of coach. According to the complainants, on reaching Mumbai he sent a fax by registered A.D. listing all the hardships faced by them and claimed refund of monies paid for the tour. The O.P. Company sent reply denying allegations made by them but requested them to forward bills for VAT refund and they assured to procure VAT refund. However, nothing was done at their end. Therefore they sent legal notice through their advocate on 1.12.1999 and thereafter filed the present complaint alleging deficiency in service. They are also having grievance that tour was not comfortable at all and it was tiresome experience and O.P. was guilty of many lapses and acts of omission and commission and they suffered loss of monies as well as physical torture and mental agony because of deficiency in service. Hence, the complainants filed complaint claiming damages of Rs. 5 lakh. Affidavits and certain documents have been filed in support of the complaint. O.P. filed written statement and contested the complaint. O.P. pleaded that complainants had suppressed some facts and made misleading and false statements to file this consumer complaint with malafide intentions. According to the O.P., since claim is involving Rs. 5 Lakh, this Commission has no jurisdiction to try and dispose of the present complaint. O.P. further pleaded that complainants was provided with full information of the tour along with the brochure of "European Grandeur II Code TCEU-0205" and only after satisfying themselves with the terms and conditions of the tour they paid the amount and booked the said tour. As per Clause 5 of the terms, O.P. pleaded that ''the Opposite Party shall in no circumstances whatsoever be liable to the client or any person travelling for any death, personal injury, sickness, accident, loss, delay, discomfort, increased expenses, consequential loss and/or damage or any misadventure howsoever caused due to various reasons listed in Sub-clauses (a) and (b) of the said clause''. They further pleaded that the term independent contractor means hotel owner, owner of airline, shipping company, railway, fairy boat, coach operators and any other person or organisation selected by O.P. to render services to his clients. O.P. pleaded that they were simply organizing holiday tours and they have no control over facilities and services mentioned in the brochure and taken from various service providers in foreign countries. O.P. pleaded that for deficiency in service for such independent contractors or their agents, O.P. is not liable to compensate the complainants in any manner. O.P. however claimed that the tour managers who had gone with the complainants and other passengers efficiently handled the tour and rearranged the schedule of the tour so as to enable passengers to complete their sight seeing.

O.P. pleaded that on 30.4.1999 in the meeting, they told all the tourists of this European tour that though they were booking tickets six months in advance, seats may not be available to all the passengers and all arrangements for air travel would be made from New Delhi and those joining from Mumbai shall have to come from Mumbai and Mumbai-Delhi fare would be borne by the O.P. The complainants insisted that they should get seats to fly from Mumbai only. Since they had agreed to the request of the complainants, complainants should have prepared themselves well in advance with their baggage and luggage. O.P. further pleaded that as per their routine, they booked 25 to 30 rooms well in advance at various places in European countries but at the eleventh hour they are required to make certain changes for proper management of the hotel. They had never assured complainants they would be giving them room in hotel Classic facing valley. Some got such rooms and others were not lucky to get such rooms. The complainants had asked for triple room or family room which was allotted to the complainants by hotel management looking to the availability of the room. Hence, for this inconvenience they were not liable to pay any compensation to the complainants.

THEY further pleaded that they were ready to procure refund of VAT on behalf of the complainants by sending papers to Paris. However, complainants chose not to comply with the repeated request made by this O.P. for the reasons best known to them. Hence, they can not be blamed if complainants have not got VAT refund. THEY pleaded that complainants independently might have got VAT refund directly. THEY pleaded that there was no delay on their part to hand over air tickets to the complainants. Well in advance they had delivered the tickets to the complainants at 8.30 p.m. on 1.5.1999 whereas the flight from Mumbai to New Delhi was at 2.20 a.m. on 2.5.1999. O.P. admitted that on 5.5.1999, the coach in which complainants were travelling had failed near Italian border. The coach was only four months old and tour operator was told by coach driver that coach had minor problem and it would be repaired within one hour. Tour manager had requested for replacement of coach but since they were near the border immediate help could not be procured. Hence, there was some delay in removing mechanical fault of the coach which had failed but tour manager took pains to keep all passengers quite comfortable during that period. It denied that it had assured complainants that in hotel Classic they would be lodged in room facing valley. THEY denied that the said rooms were not made available to the complainants to save some room tariff as alleged by the complainants. THEY denied that again while travelling from Leysin to Geneva on the highway again coach had failed and they were required to stay one hour in the coach itself smelling of diesel. THEY pleaded that as per European laws passengers traveling by such coaches cannot alight on the highway till the help came and so for twenty minutes only they were required to stay in the failed coach and new coach was immediately called and all the tourists were taken to Geneva in new coach. THEY further pleaded that at Paris Railway Station, to carry baggage trollies were available. It appears that complainants did not put their baggage on trolley and chose to carry their baggage themselves for which O.P. pleaded that they cannot be held responsible. Lastly, O.P. pleaded that the whole tour was properly conducted, assured services were given, assured comforts were given, tourists were properly attended but for some failure of coaches on two occasions. On the whole, O.P. pleaded that there was no deficiency in service on their part and the complaint filed by the complainants be dismissed with cost. O.P. filed affidavits and certain documents in support of its written statement. On perused the affidavits and documents placed on record and upon hearing Mrs. Indira Rathod, Advocate for the Complainants and Mr. M.K. Jariwala, Advocate for Opponent, following issues arise for our determination. The issues and our findings thereon are as under: Issues (1) Whether this Commission is having jurisdiction to entertain the present complaint ? -Yes (2) Whether complainants prove that there was deficiency in service on the part of O.P.? -No (3) What order if any? - Complaint stands dismissed. Reasons Issue No. 1 :

QUESTION of pecuniary jurisdiction was raised by the O.P. in its written statement. The complaint was filed in the year 2001 in this Commission and at that time jurisdiction of this Commission was ''exceeding Rs. 5 lakh but not exceeding Rs. 20 lakh'' as per Secection 13(a) before amendment Act No. 62 of 2002 came into force with effect from 15.3.2003. Technically one may say that this complaint should have contained monitary relief of Rs. 5 lakh and 1 Rupee to get the jurisdiction to this Commission to try such a complaint but then this complaint has been pending since 2001 till today and at this stage we can''t take hyper-technical view to hold that this Commission has no jurisdiction to entertain this complaint and that it should be tried by the District Forum. Complaint was filed on 26.4.2001 and written statement was filed on 20.7.2001. At that time objection to jurisdiction was not pressed by the O.P. and therefore merely because there is objection taken in the written statement about pecuniary jurisdiction itself cannot be a ground to hold that the complaint is not entertainable by this Commission simply because one rupee was not added by the Counsel drafting the complaint. Moreover, when we have got jurisdiction to entertain consumer complaints involving any claim upto Rs. 20 lakh we hold that we have still jurisdiction to entertain and try this complaint. No prejudice is being caused to the O.P. since we are deciding this complaint on merit. When Commission is invested with the power to decide consumer complaints involving claim exceeding Rs. 5 lakh it does has a jurisdiction to decide a claim involving Rs. 5 lakh only. Therefore, the objection taken by the O.P. is turned down and we hold that this Commission has pecuniary jurisdiction to entertain and try the present complaint. We, therefore, record our finding on issue No. 1 in the affirmative. Issue No. 2 : So many grievances have been listed by the complainants in their complaint. However, in a tour like this that too covering whole of Europe which was to commence from New Delhi from 2.5.1999 and to end on 16th day, some sort of inconvenience is bound to be there and the persons undertaking such a long tour have to presume that they would be suffering some sort of inconvenience some where here or there because after all O.P. is the tour operator. It manages European tour to the best of its ability. There are certain unforeseen circumstances which every body has to face while on such a tour. As has been stated by the complainants while travelling from Leysin to Geneva they were struck up because of break down of the coach and for one hour they required to sit in the coach smelling diesel. If one is sitting in the coach which has failed and is waiting for another coach (replacement coach) one is bound to stay put in the same coach till the arrival another coach. This was the break down of the coach not because of deficiency in service but it was mechanical fault of the auto machine itself (coach itself) for which complainant cannot be permitted to allege deficiency in service. These things do happen in a tour like this for not fault of tour operators. Even this can happen in our own country while travelling from Mumbai to Pune on express way in our own car. So, the complainants cannot be permitted to blame O.P. company for deficiency in service on this count. The coach failed because of defect in the machine and not because of tour operator had paid lesser monies to the coach operator. So, such type of grievance cannot be allowed to be magnified to hold that there was deficiency in service on the part of O.P. Company. Secondly, it was tried to be contended that the tickets were given to the complainants at the eleventh hour but here again we are not convinced that complainants were inconvenienced to a far greater extent so as to entitle them to get compensation. The very fact that they could board the flight from Mumbai to Delhi and could catch further flight for European tour as arranged by the O.P. company, would go to show that there was no unreasonable delay on the part of O.P. Company in handing over air tickets to the complainants on 1.5.1999.

AGAIN, the grievance of the complainants that they were not lodged in Hotel Classic in Leysin Switzerland having valley facing view is also lame excuse to put forth to claim for compensation. The explanation offered by O.P. company in para 15 of written statement is appearing to be reasonable and justifiable and simply because a room facing valley was not given to the complainants that would not mean that there was per se deficiency in service on the part of O.P.

SERIOUS grievance has been made out by the complainant about not getting refund of VAT at Paris when they were entering Railway Station, Paris for Euro Rail Trip. However, according to the O.P., they had offered to give every help to the complainants to get refund of VAT from the authorities at Paris but the complainants did not provide necessary documents to them and therefore they could not give further help to the complainants in this behalf. The complainants'' contention that the coaches arrived at their hotel at Paris very late and therefore they could not get VAT exemption is also appearing to be a figment of imagination. The complainants also made grievance that no coolies were provided throughout their tour by the O.P. and they were required to carry their own baggages from hotel to trains and coaches and vice versa. However, the complainants should have made inquiry before hand before opting for European tour as to whether coolies are available in European countries. We are told at bar that no coolies are available in European countries. So, it is always advisable for tourists to carry light baggages so that they are not inconvenienced while putting the same into coaches, into railway compartments or in the planes. If the complainants carried bulky baggages and they suffered inconvenience then they have to blame themselves and they cannot be permitted to throw blame on the tour operator i.e. O.P. herein.

For all the discussions made in hereinabove paras, we are of the considered view that complainants were highly sensitive and hence smaller inconvenience expected in any such group tours was not digested by them and therefore they preferred to file this consumer complaint but on the whole we are finding that these were the small problems anyone has to encounter with when he books group tour like the instant one undertaken by the complainants. Moreover, the tour operator in the brochure given to the complainants clearly mentioned that they would not be liable for failure of service providers while on foreign tour because they themselves are availing services of various hotels, coach operators, European trains etc. So, for fault or default of any such operators the complainants cannot be permitted to hold O.P. company squarely liable when on the face of it O.P. company completed the booked tour quite satisfactorily. In this view of the matter, we are unable to agree with the submissions of Counsel for the complainants that there was deficiency in service on the part of O.P. company. As such, we record our finding on issue No. 2 in the negative and proceed to pass following order. ORDER (1) The complaint stands dismissed. (2) Parties are left to bear their own costs. (3) Copies of this order be sent to both the parties free of cost.

Complaint dismissed.