| M/S KESARI TOURS PVT LTD V/S DR PARSHWANATH BHARAMAPPA MAGDUM & OTHERS, decided on Thursday, March 15, 2012. [ In the Maharashtra State Consumer Disputes Redressal Commission, Mumbai, First Appeal No. A/10/1290 (Arisen out of Order Dated 20/07/2010 in Case No. 1247/08 of District Sangli). ] 15/03/2012 | ||
| Judge(s) : S.R. KHANZODE, PRESIDING MEMBER & NARENDRA KAWDE, MEMBER |
Feeling aggrieved thereby this appeal is preferred.(3) It may be mentioned here that Respondent/original Opponent No.2 – M/s.Niraj Enterprises is alleged to be an Agent of the Appellant through whom Respondent Nos.1 & 2/original Complainants booked their European tour conducted by the Appellant. He is exonerated while passing impugned order.(4) Undisputed facts are that Respondent Nos.1 & 2 (hereinafter referred to as ‘the Complainants’) had taken an European tour bearing Code No.E-2 which was to commence on 22nd June 2008. The tour was commenced accordingly and when on 27th June 2008 the tourists were visiting the location in Switzerland a purse containing the travel documents including visas and the passports of the Complainants were stolen. Under those circumstances the Complainants could not continue to undertake travel further. It is the contention of the Complainants that ultimately the Complainants had to abandon their remaining tour and had to return to India. It is also submitted by the Complainants that after the fact of stolen passports and missing travel documents were brought to the notice of one Mr.Bane who was the tour leader and representing the tour operator accompanying the tourists he did not render any expected service and left back the Complainants on their own and proceeded further with the remaining tourists on the tour. The Complainants had given report of the theft of passports to Interlaken Police Station in Switzerland. They had to leave their hotel where the tourists were camping in village Brunen and had to shift themselves to another hotel. Before leaving Mr.Bane advised them to continue to live at village Brunen since it was followed by Saturday-Sunday and since on those week end days the Indian embassy remain closed and further advised them to leave for Capital of Switzerland on Monday to complete necessary formalities to obtain valid travel documents. He also told Complainants that if the Indian embassy gives them necessary permission (by providing travel documents) they can rejoin the tour at Rome in Italy. He also gave them 200 Euro and one international card so that the Complainants could contact their son in India and also assured them that if any amount is credited with the Appellant they can ensure to remit the same to the Complainant within one hour therefrom.(5) It is further stated on behalf of the Complainants that after the tour left for further destination in Austria they had to shift themselves to another hotel viz. Eden since their booking for stay at the Bolly View Hotel where they were camping was over. Complainants gave the hotel Eden Hotel number to Mr.Bane as well as to the Respondent No.3/Opponent No.2 and thereafter the international card which was given by Mr.Bane got discharged. Mr.Bane thereafter did not contact the Complainants. The amount was deposited by son of the Complainants equivalent to 1000 Euro with the Appellant on 28.06.2007 at 12.00 noon but it was not reached to the Complainants within one hour thereafter as promised and out of the said amount only 500 Euros were delivered to the Complainants after about 31 hours through the Agent of the Appellant Mr. Sayeed after deducting charges for staying at hotel Eden (the arrangements for which were made by Mr.Bane). The Complainants who are senior citizens in those circumstances experienced helplessness. On Monday the Complainants on their own had to reach the Indian Embassy at the capital city of Switzerland where the officers of the Indian Embassy told them that the papers which the Complainants were carrying were incomplete and they also informed the Complainants that they had not received any fax from the Appellants and also expressed surprise as to how the Appellant’s representative was not accompanying them. Complainants disclosed everything to them. The Officials of the embassy also brought to the notice of the Complainants that they did not possess any Xerox copy of visa and copy of the police complaint about loss of travel documents did not mention any passport number of the lost passport. The Appellants did not handover to the Complainants any Xerox copy of the visa or passport. Therefore ultimately Complainants had to talk with their son in India who after doing search on internet could contact one Mr.Ashok Nandedkar of local Maharashtra Mandal at that place (in Switzerland) and thereafter said Mr.Nandedkar contacted the Complainants who by that time had taken shelter at the Railway station and brought them back to his home and render further help in collecting necessary travel documents from the Indian embassy and thereafter the Complainants could return to India. It was not possible to join the touring party since Complainants were for that purpose were required to obtain fresh British Visa and Schengen visa and which they could only obtain on visit to Geneva and for which no information was given by the Appellants or their Agent to the Complainants. Thus alleging deficiency in service on the part of the Appellant the consumer complaint was filed.(6) Opponent No.1 filed written version and denied deficiency in service on their part as alleged. It is tried to be submitted on their behalf that whatever possible in the given circumstances was done by their tour leader Mr.Bane. Before leaving with remaining tourists for further destination Mr.Bane also prepared a file containing passports Number list guest list VISA number list and the passport copies of the Complainants along with covering letter to the Indian embassy and handed it over said file to the Complainants. Further before leaving with the other tourists (since he could not abandon the tour and leave the remaining tourists on their own) he also helped the Complainants to lodge a police complaint. Besides that on humanitarian ground the co-tourists collected money and handed over Euro 500 to the Complainants. Mr.Bane himself also contributed 200 Euro from his allowances and gave it to the Complainants which later on were deducted along with hotel charges since the arrangements were made by Mr.Bane for the Complainants and remaining 500 Euro were handed over to the Complainants through the representative of the Appellant. To make possible Complainants to join the tour again if the travel documents could be obtained from the Indian embassy Mr.Bane also handed over copy of tour itinerary to the Complainants.(7) Heard both sides.(8) It is not disputed by the Complainants that they were given 200 Euro by Mr.Bane however the Complainant did not mention anything about the contribution made by the other tourists including contribution of Euro 500 which the Complainants had received from their friend/co-tourist Mr.Bhalachandra B. Shirgave. Complainant also did no mention anything about the file which Mr.Bane prepared which gave necessary information about their lost passport and visa copies thereof and a covering letter. In his affidavit Mr.Bane also corroborated the case of Appellants. All these aspects are narrated in detailed what remedial steps which were possible for him were taken including preparation of the file supra and handed it over along with 200 Euro and an international card. He also mentioned about making arrangement to leave another hotel during the weekend. He also submitted that local person Mr.Sayeed of the Appellant extended full help to the Complainants during their stay there. He also mentioned that while leaving he had given his mobile number as well as contact number of one Ms.Monika Mirkar Appellant’s staffer at Mumbai so that the Complainants could seek any assistance in case of need. Complainants did not say in rebuttal anything of these aspects and therefore no reason to disbelieve the evidence of Mr.Bane covering the above referred facts. Referring to the same and the terms and conditions of the Appellant regarding the tour in question a copy of which is on record and particularly the conditions under the sub-title “Loss of Property or life” which are reliefs to be considered as legal/contractual obligation of the policy towards the tourists including the Complainants it cannot be said that there is any deficiency in service on the part of the Appellant while discharging their legal/contractual obligations towards the Complainants.(9) As far as the service which was expected to be given by the Appellant or its representative after the loss of passport it cannot be disputed that Mr.Bane could not stay back along with the Complainants leaving other members of the tour. He also did everything possible in that eventuality as could be inferred from the record.(10) The Complainants alleged that Mr.Bane before leaving them and proceeding further with the other tourists had told them that if any amount is deposited with the Appellant in India it could be delivered to the Complainants within one hour therefrom through the Agent of the Appellant. Admittedly as per the version of the Complainant and his son Dr.Vikrant P. Magdum whose affidavit is on record said Vikram Magdum had deposited amount equivalent to Euro 1000 in the Bank account of the Appellant in HDFC Bank at Sangli on 28.06.2008 around 12.00 noon. However said amount was not remitted to or disbursed to the Complainants as promised within one hour therefrom or even after 30 hours therefrom. Ultimately through the agent of the Appellant after deducting 500 Euro as earlier stated 500 Euro were remitted to the Complainants. The written version or the evidence of the Appellant is silent on this aspect of delay. There is no reason to disbelieve case of the Complainants and even the affidavit of Dr.Vikrant Magdum that the Appellant’s representative Mr.Bane told to the Complainants that once the amount is deposited in India within an hour it would be remitted to the Complainants. Since the Appellant failed to reach said amount to the Complainants as expected and promised or within a reasonable time after deposit deficiency in service to that extent on part of the Appellant is established.(11) The allegation in respect of leaving the Complainants in these circumstances without any assistance as tried to be made projected by the Complainants in absence of any contractual or any legal obligation appears to be based upon the moral obligation backed by doctrine of legitimate expectation since the Appellant being a renowned tour operator. It is the case of the Complainants that believing on the projection (through advertisement) of best services as world class tour operator (by the Appellant) they had booked the tour of Europe with the Appellant.The phrase “Obligation” is described in Wikipedia the free encyclopedia (http://en.wikipedia.org/wiki/Obligation) as under:‘An Obligation is a requirement to take some course of action whether legal or moral. There are also obligations in other normative contexts such as obligations of etiquette social obligations and possibly in terms of politics where obligations are requirements which must be fulfilled. These are generally legal obligations which can incur a penalty for unfulfilment although certain people are obliged to carry out certain actions for other reasons as well whether as a tradition or for social reason.’Similarly the material available on internet in an article of Josephoso institute dated 14th February 2011 (http.//josephsoninstitute.org/business/blog/2011/02/3-sources-of-mor…) sources of Moral obligation under the sub-title “Agreement-based Moral Obligations”. It is commented by the learned Author as under:“While conducting a workshop on corporate values for senior executives of a Fortune 100 company I suggested that promise keeping was a central aspect of trustworthiness that it is an ethical as well as a legal responsibility to keep commitments. The Company’s legal counsel objected strenuously. “Hold on!” he said. He explained that whether the company decided to live up to an agreement was a business not an ethical decision. It was the company’s right and perhaps its obligation to the shareholders to evaluate whether it was in the company’s best interests to breach contracts that have become unwise or unprofitable. He acknowledged that decisions to disavow an agreement should be rare; no one would trust the company otherwise. But still he said the choice to keep a promise or not should be based on a simple cost/benefit analysis. Morality is not an issue.This legalistic expediency-oriented attitude is a perfect illustration of the dangers and in my view the fallacy of trying to separate business and personal ethics. The standards of trustworthiness and honor do not change the moment one enters corporate headquarters.”Similarly with advantage we can refer to an article authored by one John Catwright published in Report to the XVIIth International Congress of Comparative Law July 2006 Electronic Journal of Comparative Law vol. 10.3 (December 2006) http:/www.ejcl.org covering the subject ‘Protecting Legitimate Expectations and Estoppel in English Law under the Sub-title (c)“Forming the Contract: the force of the promise; consideration and promissory estoppel”; it is commented as under:“Morality of promise-keeping is different form the legal enforcement of promises. For the law to become involved in making a party keep his promises and to provide legal sanctions if he does not fulfil the expectations he created–that is for the expectations to be ‘legitimate’ in the technical sense of the word-more is required. And that is what is provided by the doctrine of consideration.”Similarly a moral obligation from the ‘Lectric Law Library’s Lexicon Moral Obligation’ (http://www.lectlaw.com/def2/ml42.htm) in respect of moral obligation it is stated that “a duty which one owes and which he ought to perform but which he is not legally bound to fulfil.”In the context of ‘deficiency’ as defined under section 2(1)(g) of the Consumer Protection Act 1986 which is described as under:“deficiency” means any fault imperfection shortcoming or inadequacy in the quality nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;”(12) Here the deficiency in service certainly refers to an obligation either contractual or statutory obligation and therefore must refer to the terms and conditions of the tour contract supra. Certainly in moral obligation through a reputed company like the Appellant is expected to maintain its promise of good service to make a tour experience memorable to the tourists in the absence of any contractual or legal obligation may fall within the area of ‘moral obligation’ (to preserve or maintain) which is not legally enforceable. However in the case before us alleged deficiencies except the one referred infra are not established. Thus for the reasons stated above for the deficiency in service in reaching the amount of 1000 Euro deposited in the account of the Appellant in India (for the Complainants) the appellant cannot be held responsible for any other kind of deficiency in service within the meaning of Consumer Protection Act 1986. Therefore further considering the totality of the circumstances particularly considering the help rendered by Mr.Bane in handing over the file containing necessary papers giving 200 Euro from his personal allowance the fact that passengers including the friend of the Complainants Mr.Bhalchandra Shirgave collected the amount in Euros and gave it to the Complainants before proceeding further on a tour; we find deficiency on account of late remitting the amount which certainly resulted for suffering and mental agony of the Complainants it would meet ends of justice if the Complainants are compensated with an award of compensation of Rs.25 000/-. Therefore by allowing the appeal partly we propose to modify the impugned order to that extent as per final order below:ORDER(i) Appeal is partly allowed.(ii) Impugned order dated 20.07.2010 is modified as under:In operative part paragraph No.1 in place of Rs.1 00 000/- (Rupees one lac only) substitute the figure of Rs.25 000/- (Rupees Twenty Five Thousand only)(iii) Rest of the order stands confirmed.(iv) In the given circumstances both parties to bear their own costs.
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