R.GOVARDHAN vs COX And KING (INDIA) LTD.

THIS complaint is filed by one R. Govardhan of 9th Block, Jayanagar, Bangalore, against M/s. Cox & King (India) Ltd., K.H. Road, Bangalore, for deficiency of service in respect of a package tour organized by the opposite party.

THE facts of the case as set out in the complaint are as follows : THE complainant came across an advertisement issued by the opposite party called "European Experience" in the first week of April 2000 and tempted by the glittering prospects envisaged in the advertisement he approached the opposite party and paid a sum of Rs. 1,11,576+US $ 1296 for the tour for himself and his minor son. THE package envisaged not only consisted of visits to stipulated places in European countries but also included a special package of 3 days free USA tour. It is stated that as per the advice of the opposite party he obtained a visa for himself and his son to United Kingdom. However, he was not able to secure visa to U.S.A. since the opposite party misguided him with regard to the actual payment to be made to the U.S.A. Consulate at Chennai for obtaining the visa on account of which no visa was issued to him. In view of such misguidance the complainant had to spend a sum of Rs. 20,000/- at Chennai in connection with securing the visa to U.S.A. It is stated that after finalization of the tour plan with the opposite party, the complainant along with his minor son left Bangalore on 15.5.2000 for Berlin to join his co-brother to spend a few days with him before joining the tour group at 2.00 p.m. on 30.5.2000 at Paris International Airport as per the tour itinerary. Before leaving Bangalore, all the information about the tour programme was confirmed by the opposite party and on that occasion the complainant''s residence and office telephone numbers were also taken by the opposite party for the purpose of future contact. On 29.5.2000 when he was at Berlin he contacted the Paris office of the opposite party and talked to one Anil, the representative of the opposite party, who confirmed the tour itinerary and asked the complainant to join the ''European Experience'' tour group on 30.5.2000 at Paris International Airport at 2.00 p.m. along with his son. The complainant also contacted his residence at Bangalore on the same day to inform that the tour will take off the next day from Paris as scheduled.

It is stated that when the complainant and his son reached Paris International Airport around 9.00 a.m. on 30.5.2000 and were waiting for the arrival of Air India Flight at 2.00 p.m. he met Anil at the airport arrival lounge who suddenly informed the complainant that the European Experience tour has been cancelled. He also stated that he was not aware of the reason why the tour stood cancelled. He also lied that the Bangalore office of opposite party had informed the residence of the complainant regarding cancellation of the tour. It is stated that he was also rude with the complainant when the complainant wanted more details. It is stated that such a news when it was least expected made the dream of the complainant collapse like a pack of cards and alone in a unknown place he felt totally depressed and traumatized. Highly dejected by such a turn of events the complainant handed over the return air tickets to Anil with an intention to go back to India. At that time when Anil contacted the opposite party''s London office and the Bangalore office, one Mr. Anand from Bangalore office confirmed that he could not telephone the residence or office of the complainant to inform about the cancellation of the tour in advance. Thereafter, considering the bad situation in which he was placed the complainant requested Anil to send him back to Bangalore but the latter pointed out that the return journey of the complainant and his son as per the confirmed air ticket was only on 6.6.2000 that too from London. Hence, the complainant was taken to a hotel room by the local representative against his wishes and on reaching the hotel the representative just vanished leaving the complainant and his minor son to fend for themselves.

AFTER sometime, one Prashanth, another representative of the opposite party contacted the complainant and persuaded him to accompany another group which was going to Switzerland with a promise that the complainant will be sent back to London with necessary arrangements for his return journey. In Switzerland, the complainant and his son were however confined to a hotel room day and night against their wishes and when the representative, Prashanth and the complainant contacted London office of the opposite party, one Cyrus Sarkari who was in-charge of that office promised over phone that they will take care of the complainant''s problem. AFTER 3 days the local representative Prashanth contacted the complainant and handed over to him US $ 550 with instructions to reach Zurich International Airport to catch a flight to London at 5.40 p.m. on the next day. The complainant and his son thereupon managed to reach London on 4.6.2000 with untold difficulties on the way in an unknown land. In the London hotel where he was lodged, he met one Ramesh Nanda, an official of the opposite party who took down the complainant''s complaint about the whole episode. The complainant also sent a protest letter to Cyrus Sarkari on 5.6.2000 about the bad service rendered to him. It is the specific case of the complainant that the opposite party cancelled the tour unilaterally without assigning any valid reason and also failed to inform the same to the complainant in time. It is stated that he called Anil at Paris from Berlin one day prior to the proposed journey and at that time also no information regarding cancellation of the tour was communicated to him. He was kept completely in the dark about this fact till he reached Paris International Airport at 2.00 p.m. on 30.5.2000 to board the flight towards first leg of the proposed tour. It is stated that the cancellation of the tour not only had a depressing effect on him but it also affected his minor son who was looking forward to an enjoyable holiday. The mental depression also had an effect on his physical condition, not to speak of his reputation being tarnished by it. Hence, he issued a legal notice to the opposite party on 30.6.2000 demanding a suitable compensation for mental trauma and suffering undergone by him and his son. The local newspaper also highlighted the suffering in a news item published on 4.7.2000 in response to which the opposite party came up with a statement accepting the blame for the poor service rendered. The opposite party also sent a reply notice on 1.8.2000, which only showed their lack of purpose and sincerity in organizing this tour. Hence, aggrieved by the attitude of the opposite party the complainant has filed this complaint claiming compensation in a sum of Rs. 5,25,000/- with interest thereon at 18 per cent per annum from the date of the complaint.

WE have heard Mrs. Sindhu Ravichander, learned Counsel for the complainant, who, while taking us through the facts of the case stated that the opposite party had been negligent in not informing about the cancellation of the tour to the complainant in time which resulted in untold misery to him and his minor son at various places, particularly in Paris, London and Switzerland. It was brought to our notice that even though the complainant wanted to return to Bangalore, opposite party coxed him into accepting another offer of different package tour by which he had to travel to Switzerland, where he was confined to a hotel room for 3 days while the other tourists enjoyed sight-seeing and other programmes arranged for them. The learned Counsel also brought to our notice that having collected substantial sums of money from the prospective tourists the opposite party had no justifiable cause to cancel the tour at the last moment unilaterally and without assigning any reason whatsoever. The learned Counsel contended that for the untold misery suffered by the complainant and his child, they are entitled to the relief as sought for in the complaint. Considering the nature of the allegations made by the complainant, the issues to be framed for consideration are : (i) Whether the opposite parties are guilty of deficiency of service within the meaning of that expression under the Consumer Protection Act ? (ii) If so, what order ?

Point No. 1 : While on this point it is necessary to observe at the outset that the opposite party, though served, has chosen not to appear before this Commission nor any objection has been filed on their behalf. The complainant has filed his affidavit-evidence in support of the facts set out in the complaint. A perusal of the complaint reveals that the complainant has paid a sum of Rs. 1,11,576/- to the opposite party together with 1296 US Dollars in connection with the package tour called "European Experience" organized by them. The reply notice dated 1.8.2000 sent by the opposite party which has been placed on record reveals that the complainant has paid the tour cost and hence it is logical to presume that the disruption in the tour itinerary which took place later is not directly or indirectly attributable to the lapses on the part of the complainant in not paying or partly paying the tour cost. It is however the case of the complainant himself that unlike other prospective travellers, he had chosen to join the group at Paris since he and his minor son had to visit his co-brother at Berlin. It is stated that the complainant had a specific understanding with the opposite party to this effect and the opposite party had taken down his residence and office telephone numbers before he proceeded to Berlin.

ON a perusal of the complaint it is seen that the flight of the complainant as set out in the complaint had a communication-gap background. The case of the complainant is that till he met Anil, the local representative of the opposite party at Paris International Airport on 30th May, 2000 he had not been made aware that the proposed tour had been called off. In Para 5 of the reply notice it has been admitted by the opposite party that on 29th May the complainant had called their Paris representative, but since the complainant did not tell him the name of the tour in which he was booked, the representative could not inform him at that time about the cancellation of the tour. We are constrained to take such a contention with a pinch of salt since it is not as if the opposite party has different package tours going through Paris International Airport every day and hence unless a clear identification is made, the representative has no way of indentifying the tour in which the complainant was booked. Even otherwise, when the complainant called him about a tour, he ought to have enquired in which tour he was booked which is the basic information a representative of the opposite party at foreign destination should seek when a prospective traveller makes an inquiry about his tour itinerary. If he fails to do it, the blame cannot be sought to be shifted to the complainant who has paid substantial amount for a hassle-free tour itinerary.

ANOTHER point made out by the opposite party in the reply notice is that it was on account of the option of the complainant to joint the group at Paris that all the problems arose for him, since in the absence of complainant''s Berlin address, he could not be contacted in time to inform him about the cancellation of the tour. It is stated that there was no response at his Bangalore address also when the opposite party tried to contact the number. It may be that the opposite party had not obtained his Berlin number which they ought to have obtained having acquiesced in the option of the complainant that he would be visiting his co-brother at Berlin before joining the touring group at Paris. A conscientious travel plan would take all such precautions even if a traveller fails to remember that such details are to be furnished so that he could be contacted when required. We have reason to believe that there is no truth in the averment that the complainant''s residence as well as the office also could not be contacted to convey the information. Evidently the opposite party had not bothered to remember the complainant to inform him about the cancellation of the tour. It is stated by the complainant that his office is just opposite to the office of the opposite party and if that be so, we believe that there cannot be any communication barrier within such proximity. The opposite party is obviously seeking to find an excuse for its lapses when it has evidently failed to communicate cancellation of its programme to the complainant. It is interesting to see from the reply notice that the opposite party has not elaborated as to under what circumstance the proposed tour was called off. The learned Counsel for the complainant stated that the opposite party had perpetrated unfair trade practice by luring the complainant and the likes of him into a world of travel fantasy, but after collecting sizeable sums of money, they had shatterd his dreams by calling off the tour without valid reasons. We find that there is considerable merit in such a contention considering the cost involved in the package, not to speak of the disappointment to the prospective travellers. In this context it is relevant to state that when the opposite party chose not to appear before the Commission and present their case, they are liable to face some legal consequences. Firstly, the averments of the complainant remains uncontroverted which means that even if cancellation of the tour was legitimate, no legitimacy in law could be attributed to it. Secondly, and more importantly, a Court of Law will have to accept the averment of the complainant as true when his affidavit evidence remains unchallenged by a counter affidavit. In this view of the matter we have to accept as true the various facts stated by the complainant in his affidavit evidence.

It is the case of the complainant that apart from his disappointment at Paris International Airport when he came to know about the cancellation of the tour, he also had to undergo further torment on account of the opposite party cajoling him into accepting another package tour to Switzerland with a promise that arrangements will be made to send him back to London soon after reaching Switzerland. However, in Switzerland, it is stated, the complainant and his son were confined to a hotel room for 3 days and it was only after spending 3 days in the hotel, one Prashanth, who was in-charge of another group of tourists came to the complainant and handed over 550 US dollars with instructions to reach Zurich International Airport to catch a flight to London on the next day. According to the complainant, this has entailed in untold misery to him and his son finding themselves in an unknown place with linguistic barriers and lack of a sense of direction. The entire episode was a horrifying experience particularly when he had minor son alongwith him and hence it is version that he was not only mentally depressed and traumatized but also he became a victim of physical debility on account of the mental distress. The complainant has in fact dwelt at length about the problems he and his son had undergone on account of such bitter experience which we find rather too exaggerated to be believed. We are not in a position to believe that the cancellation of the tour will have a fall-out on his mental and physical condition to the extent he has chosen to explain. We believe that he was only sought to ornament the complaint by painting a picture of utter desolation which falls more in the realm of a fantasy rather than reality.

IT is however true that he had a disappointing tour itinerary despite paying substantial sums of money to the opposite party. The opposite party has failed to fulfil their obligation after accepting the tour charges from the complainant. They have not appeared before this Commission nor filed their verson justifying their action in cancelling the tour programme. They have also not chosen to explain the circumstances in which they have failed to intimate the complainant about the cancellation of the tour till he arrived at the Paris International Airport on 30.5.2000 to board the flight. We find that there is definite short coming in the manner of performance of the opposite party and hence we have no hesitation to answer Point No. 1 in the affirmative. Point No. 2 : In the view that we have taken above what remains to be seen is whether the relief sought for by the complainant could be awarded to him. In this context it has to be remembered that it is not the case of the complainant that for the journeys he performed from Paris back to Bangalore he has paid any fare other than what he has already paid to the opposite party towards tour charges. The complainant himself has stated that at Switzerland he was paid 550 US Dollars to enable him and his son to reach Zurich International Aiport to catch a flight to London. In these circumstances, we find that the relief sought for by the complainant is on the higher side. He has to be compensated on two counts, namely, that he was deprived of the much sought after tour but instead he had to undergo avoidable miseries at various places which were not familiar places for him. He also had a child with him during the course of such painful experience. Considering all these aspects and taking into account the totality of circumstances that went against the complainant during the course of this episode, we are of the considered view that the ends of justice will be met if we award a compensation in a sum of Rs. one lakh to the complainant. In the premises, we make the following. ORDER The complaint is allowed. The opposite party is directed to pay a sum of Rs. one lakh to the complainant towards compensation within six weeks from the date of receipt of this order, failing which, the amount will carry interest at 15 per cent per annum till realization. We also award costs of Rs. 1,000/- to the complainant in this proceeding. Complaint allowed with costs.