COX AND KINGS (INDIA) LTD. vs SHEILA P.B. D'SOUZA

THE appellant herein the org. O.P. and respondent is org. complainant. (For brevity''s sake parties will be hereinafter referred to with reference to their said status in the complaint).

O.P. has filed this appeal challenging order dated 26th April, 2001 passed by South Mumbai District Forum holding it deficient in matter of conducting tour for Europe and U.K. in which complainant participated and has awarded payment of Rs. 10,000/- to the complainant as compensation and cost of Rs. 350/-. Few Relevant Facts: The complainant who is an employee in the Bank had joined the package tour to see Europe and U.K. and in response to the advertisement issued by the O.P. in the newspaper in the caption "Duniya Dekho" she approached the O.P. who supplied her with brochure containing its various tour programmes such as Europe, U.K., U.S.A., etc.

It is the case of the complainant that she was attracted to a tour which was titled as "European Splendour" with duration of 19 days and 20 nights covering various countries such as Germany, Australia, Italy, Switzerland, France, Netherlands, Belgium and London arranged by the O.P. The tour programme was from 1st May, 2000 to 20th May, 2000.

THE complainant also paid to the O.P. a sum of Rs. 43,265/- in Indian rupees plus US $ 1, 598/- equivalent to Rs. 70,312/- aggregating to Rs. 1,13,577/- as tour cost. Besides the package tour covered under the cost paid above, O.P. had also provided option to the tourists/participants to visit certain places outside package on payment of additional amount and it is the case of the complainant that she opted for option to visit the places like Isle of Capri, Mt. Titlis, Jungfraujoch, Keukenhof Garders, Gala Evening in Paris with Lido Show, Madame Tussauds Wax Museum" and paid additional amount of US $ 519/- equivalent to Rs. 22,836/- thereby making the total amount paid by her to Rs. 1,36,413/-. THE complainant states how the O.P. in their briefing prior to commencement of the tour represented (respondent as it appears in para 4 of the complaint)- "THE complainant states that, prior to leaving India, the opponent informed the complainant that in all the countries to be visited, the opponent will provide the following viz.,: (a) hotels as specified in the brochure which the opponent verbally assured that it is of the level of 4-Star Hotels. (b) Meals included i.e., Breakfast, Lunch, Masala Tea and Dinner- All Pure Vegetarian Jain Meals. (c) Assurance given that, a representative of the opponent will meet the complainant and the Group at Frankfurt (Germany) airport on arrival holding a "Cox and Kings" Placard and make all arrangements for the Group."

The complainant has set out the instances of deficiencies on the part of the O.P. in the conduct of package tour and various problems that she encountered during entire "European Splendour"-(i) No representative of the opponent to receive the complainant at Frankfurt Airport on arrival at Frankfurt. (ii) Certain sight-seeing not covered at all though covered in the opponent''s Brochure viz." (a) Belgium (Brussels), (b) Brugges, (c) Amsterdam (d) Paris, (e) Florence and other places mentioned in paragraph 6 of the complaint. (iii) Not providing accommodation in the Hotels at various places of visits, as were already represented by the O.P. and instead accommodating in different Hotels. In Exhibit-C to the complaint she has given the particulars such as names of the hotels assured and names of the Hotels as agreed as also of the names of the Hotels where she along with other tourists were accommodated. (iv) It is further stated by her that the O.P. at the last lap of the tour while accommodating them at Brussels (Belgium) and London maintained standard of the Hotels because of protests and agitation by the tourists including her. (v) Deficiencies also alleged in not providing food and tea as were assured.

ON her return after the tour she wrote a letter recounting her experiences and deviation on the part of the O.P. in terms as aforesaid to which O.P. responded and correspondence exchanged forms part of the pleadings herein. The complainant has filed the complaint claiming a sum of Rs. 1 lakh as compensation plus refund of Rs. 1,36,000/- paid towards cost of the tour with interest, etc. The complainant in the complaint stated that all these acts and omissions on the part of the O.P. caused her distress, discomfort, inconvenience and spoiling her tour and hence the complaint. The O.P. in response to the process of the District Forum appeared and filed written statement resisting the claim of the complainant. They have denied being deficient as alleged or otherwise. It is asserted that all efforts were made to make the tour in question comfortable in all respects and that being so, there is no question of awarding compensation, etc.

MEETING the case of non-availability of the representative as asserted, O.P. denied stating that Tour Conductor was very much available. As far as skipping certain sight-seeing, it was asserted that tour schedule depends upon the then prevalent local situation, which necessitates certain changes at the last hours on account of circumstances beyond its control. In particular as far as skipping the visit to Brussels, it is stated that because there were heavy traffic jams it was not possible to make up the tour and cover visit there and that being so, it was required to be cancelled.

AS far as hotel accommodation is concerned, O.P. referring to the relevant condition appearing in the brochure stated that it was made clear and due implication was given to the participants of the tour that no definite promise about stay was given in any 4-star hotels named but assured accommodation at the hotels of equivalent conditions and/or status. Reference is made that in fact the complainant along with other tourists also stayed in the hotels as provided. As far as food is concerned, complainant has made grievances that lunch used to be served at Gas Station (in Indian term ''Petrol Pump'') which were not suitable hygienically to which O.P. replied that such lunches are normally served at Gas Stations, Parking Lots as the same have facilities of Toilets, etc.

With regard to the grievances of complainant of not serving Masala Tea, O.P. conceded that it could not serve the same and have made reference to the offer made by it of payment of Rs. 264/- to the complainant as and by way of relief.

THE complainant filed the rejoinder repeating and reiterating to whatever she averred in the complaint and in the correspondence. District Forum, which probed the matter, held against the complainant on the point of arrangement of presence of Tour Conductor/Manager, skipping of visit to the places of sight-seeings, etc.

HOWEVER, for accommodation in the Hotels and serving of food, District Forum found merits in the grievances of the complainant. As far as Hotel accommodation is concerned in paragraph 7 of the impugned judgment, District Forum has observed: "It is true that accommodation in hotel is subject to change as there may arise inevitable over-booking situations which would be out of control of the tour operator. HOWEVER, we can understand if there had been one or two instances, but we find that at Germany, Austria, Italy, Nice, Paris, Switzerland, Amsterdam, Brussels and London the tourists were not accommodated in the promised hotels but elsewhere. We hold that this again shows deficiency in service on the part of the opposite party." [Emphasis Supplied] As far as service of lunch is concerned, District Forum in paragraph 8 of the impugned judgment has held in favour of the complainant that the arrangement for serving lunch was not satisfactory. We have heard the learned Counsel for the O.P. appellant as also the complainant who is appearing in person at considerable length. We have also perused the material placed before us in the form of brochure, correspondent exchanged, etc., besides pleadings.

THE findings of the District Forum, which is against the complainant with regard to the deficiencies as alleged by the complainant on the first two points i.e., non-availability of Tour Conductor/Manager and skipping of certain sight-seeings, we are of the view that the same have to be accepted. Apart from the fact that the complainant has not challenged the same, explanation offered by and on behalf of the O.P. in this respect which was found acceptable to the District Forum appears to be convincing and we are in concurrence with the same.

HOWEVER, in findings of the District Forum with regard to the Hotel accom-modation, it would be noticed that there is deviation/changes with regard to providing accommodations to the tourists including complainant, in deviation to promised Hotels was as a matter of rule than the exception. District Forum has rightly noted in paragraph 7 reproduced hereinabove, that changes were almost at all the places and for which explanation offered by the O.P. was not found acceptable to the District Forum and we are also in concurrence with the view taken by the District Forum. As far as serving lunch is concerned, the submission made across by and on behalf of the O.P.-appellant that in the foreign land and while on tour, facilities for serving lunch do not exist in the foreign countries as is the case in our country and, therefore, places like Gas Stations being suitable and being on the way of the tour as also with facility of toilets and shops were selected. However, no prior briefing to that effect was done to the tourists including the complainant by the O.P., which was necessary and complainant has made grievance in that respect and which District Forum has accepted and so we as well.

It is thought necessary to state few aspects in the context of roles of the tour operators, like the O.P.-appellant herein, in arranging tours for sight-seeings, etc. both on national and international level. As is known and of which fact judicial note may be taken that tourism in these days has become and is becoming most popular, both at national and global level and there are large number of tour operators operating in the field. The Governments of the countries including ours have also been encouraging tourism in a great way and large number of people are most enthusiastically joining and participating the tours being organised by the tour operators, like the appellant herein.

IT further needs to be stated that the participants of the tours approach the tour operators with high expectations. This is particularly so in the case of foreign tours. Participants of the tour chalk out their programme for holiday tour and naturally as also legitimately would expect that the whole of the programme as promised by the tour operator will come trough and in the manner as assured and promised. One can understand disappointment and sense of frustration that participants of tour would suffer if position is otherwise. IT would be legitimate on the part of the participants of the tour to expect that tour operator, with whom they have made a contract for a tour and paid for the same, would discharge his contractual obligation to their full satisfaction. We would conclude as to how the National Commission in dispute against a tour operation, has perceived the scenario, in the case of Arnab Kr. Sarkar v. M/s. Sema Travels, Revision Petition No. 2130 of 2000 decided on 21st December, 2001, and reported in Volume of "Landmark Judgments on Consumer Protection" at page-591, compiled by National Consumer Disputes Redressal Commission Bar Association, 2003 Edition and published by Universal Law Publishing Co. Pvt. Ltd., New Delhi. The National Commission has referred to two judgments of the English Court viz., Jackson v. Horizon Holidays Ltd., reported in (1975) 3 All ER, page-92 and Jarvis v. Swan''s Tours Ltd., reported in (1975) 1 QB, page -223. We quote the relevant part- "It is with high expectation that a person makes programme for holidays and expects that whole of the programme will come through depending upon the promises of the tour operator and when agreed payment is made to the tour operator. Holiday package of the petitioner has been spoiled by the respondent who did not take reasonable skill and care to provide comfort to the petitioner and to stick to the promised itinerary. A tour operator is obliged to ensure that hotel facilities are available as promised. It must have been frustrating experience for the petitioner and others. If holiday is ruined by virtue of breach of contract on the part of the tour operator, damages can be recovered in respect of the distress, disappointment and inconvenience suffered by the holiday maker. In Jarvis v. Swan''s Tours Ltd., reported in (1975) 1 QB, page-223, it was observed that it was natural to expect a person to look forward to the enjoyment provided by a holiday when it has booked far ahead. An award of damages for breach of contract is intended to protect a person against expectation loss. In that case holiday proved to be disastrous for a number of reasons."

THEREFORE, we are of the view that the findings of the District Forum would require to be upheld. In these circumstances, we proceed to dismiss the appeal. ORDER 1. Appeal stands dismissed and impugned order of the District Forum stands confirmed 2. Appellant shall pay cost in the appeal herein to the respondent-complainant quantified at Rs. 1,500/-. 3. Office shall furnish copies of the order to the parties.

Appeal dismissed.