CONSUMER DISPUTES REDRESSAL FORUM-VI

(DISTT. NEW DELHI),

M BLOCK, 1 ST FLOOR, VIKAS BHAWAN, I.P.ESTATE,
NEW DELHI-110001
Case No.C.C./272/2015

Dated:

In the matter of:

JUSTICE ASHOK KUMAR SRIVASTAVA (RETD.),
16-B, Ashok Marg,
Lucknow (U.P.)

..COMPLAINANT

VERSUS
1.

THOMAS COOK (INDIA) LTD.

Through its Managing Director
C-35, Inner Circle, 1 st Floor, Connaught Place,
New Delhi-110001.

2.

MR. RAKSHIT,
Tour Manager of Thomas Cook (India) Ltd.,

3.

MS. SURABHI
Sr. Officer of Thomas Cook (India) Ltd.,
(Both at the address of Thomas Cook (India) Ltd.

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.... OPPOSITE PARTIES

PRESIDENT: S.K. SARVARIA

ORDER
The case of the complainant in this complaint filed by the complainant for himself and on behalf of
his family members is that upon being offered by OP for availing South Africa Leisure Tour with
the facilities of travel, state sightseeing and full boarding throughout the desired visits with the
attractive details given in the brochure/templates and other allied assurances he booked South
Africa Leisure Tour with OP for himself, his wife Smt. Veena Srivastava, his son-in-law, Shri
Prabodh Saxena, IAS, his daughter, Dr. Anurita Saxena and his grandchildren Jayesh Saxena and
Ananya Saxena for 11 days and 10 nights. It was a group booking, around Rs. 12 lakhs were paid
to the OP, including compulsory tips to the tour guide and driver of the agents of the OP Company
in South Africa. The tour money included everything, i.e. air tickets from Delhi to South Africa
and back, the air tickets within South Africa, transport throughout, boarding and lodging a good
hotels in South Africa, Visa, all the sightseeing tickets and meals on the way. The Visa fee of the
complainant and his wife was included in the package and it was the responsibility of the OP to
obtain visa which they did. Since the other four members of the complainant's group were holding
diplomatic passports, they did not need Visa.

The tour was to start on 14/12/2014 from Delhi and was to end at Delhi on 25/12/2014. In the
return journey from Johannesburg to Nairobi on 25/12/2014, the group of six was split to 2
different flights, i.e. KQ 768 and KQ 761, complainant and his wife in one flight and Mr Saxena
and his family in another flight. The reason for separating the group was not given. The flight KQ
768 was to reach in Nairobi at 18.30 hours, whereas the connecting flight booked from Nairobi to
Delhi KQ 202 was departing at in 15.10 hours. Such negligence on the part of the OP was highly
unprofessional and inefficient. Had son-in-law of the complainant not detected the ambiguity on
12/12/2014, he and his family would have got stuck up at Nairobi on 25/12/2014 for the reason
that the connecting flights time was earlier than the arrival time of KQ 768.

In Johannesburg, the complainant and his family members were left to the care of only driver of
the vehicle carrying them. There was no guide. The driver refused to give them the city tour
despite the same being part of the tour. With the intervention of Mr Yuv Raj Patel, one of the four
tourists accompanying the group, who telephoned someone and got directions to the driver, the
driver gave the city tour. After city tour the driver left the group at hotel and told them in the
morning the group had to take hotel's shuttle by themselves to reach the airport for their return, air

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journey. Later on 24/12/2014, the complainant came to know that Mr Yuvraj Patel was Manager,
luxury tours with the OP company.

The next morning on 25/12/2014, when group came for breakfast, they were surprised to see the
coach of Thomas Cook. It was told by Mr Yuvraj Patel that the said coach had come to fetch him
and his wife. He said he can wait for 10 more minutes for other members of the group as his flight
was at 10 AM. Since the flight for other members of the group was at 11 AM and Mr. Yuvraj Patel
and driver were in hurry, they advised Mr Patel to go ahead and take his early flight. The
complainant group's misery started when they reached the airport at 8.15 hours to catch KQ 761,
scheduled for 10.55 AM and were told that the flight stands cancelled. Getting highly perturbed on
two counts-one that the group was struck in Johannesburg as the connecting booked flight from
Nairobi to Delhi was to leave at 15:10 hours on that very day, and the second that the visas for
complainant and his wife were expiring on 25/12/2014, itself, the group rushed to Kenya Airways
office at the airport for relief, but the same was found closed. The complainant and the group
found itself hopeless and confused. At around 8.30 a.m. when the office of Kenyan Airways
opened the son-in-law of the complainant told the problem to them and the complainant's group
was shocked to learn from them that their flight had been cancelled long back, and the company
had been duly informed. The Kenyan Airways expressed its helplessness to tackle said problem.

A fellow passenger facing the same problem advised the group to book tickets in South Africa
Airways SA 184 as it would reach the group in time at Nairobi to catch KQ 202 from Nairobi to
Delhi. The wife of the complainant sent a message to Mr Patel, telling him the said logjam. But Mr
Patel informed that he and his wife had already tagged in from SA 184. Since time was limited and
it was important to at least get the connecting flight at Nairobi, the group rushed with their entire
luggage to terminal-B, which was at a distance of 750 m to book the tickets. The son-in-law of the
complainant found out that seats were available. Luckily he was carrying his credit card to
purchase all the six tickets for the group. He paid 34,782 Rands through his credit card and took
the tickets, but by the time the group reached at check-in counter the flight was reported closed
long back. Then son-in-law of the complainant had to fight for cancellation of tickets and for
refund on the ground that when tickets were issued, the flight had already closed. In the process he
made several international calls to get immediate cancellation of tickets and for refund of money.
The counter agreed to cancel the tickets, but told that the refund would reach in due course.

Since the Visa was expiring on 25/12/2014, the complainant became very nervous and went into
great panic and anxiety. The complainant having been adjudged was conscious of the legal
consequences of overstaying in a country after expiry of Visa. That aggravated his anxiety and BP
Seeing his nervousness, his son-in-law made another effort to find out if any other flight was
available so that the group may catch the connecting flight in Nairobi. One Mr Rakshit from OP in
India gave mobile number of local agent's man but the mobile number was not found valid. The
agent's man, Mr Patrick came at the airport around 12:30 hours. Matter was discussed with him
and some efforts were also made but the net result was it became evident that the local agent of the
company had no intention to solve the problems of the group, which were created by the staff of
the OP company.

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On enquiry from the Kenyan Airways counter, the son-in-law of the complainant was informed
that Kenyan flight from Nairobi to Delhi on 26/12/2014 was full. Therefore, considering things
fishy, the group did not buy the suggestion of Mr Patrick to purchase tickets for Nairobi for the
fear that the group would be stuck up in Nairobi without any logistics support, as well as no
confirmed tickets from Nairobi to Delhi. The complainant was also afraid of legal consequences of
being in Nairobi without Visa. In Johannesburg he and his wife had Visa for 25/12/2014, at least,
and their entry in South Africa was legal. Finding the group in a complete logjam in another
country. the son-in-law of the complainant made several international calls to the company people
and some authorities in India, for the groups timely back journey to India without any further
complication and to ensure that there was no Visa problem for complainant and his wife. During
conversation with Mr Vikram Singh, the son-in-law of the complainant could sense that company
people were under impression that the group had missed their flight from Johannesburg and that
was how it was in the logjam. When the son-in-law of the complainant explained to Mr Vikram
Singh that they had not missed the flight, but the flight itself had been cancelled, only then the
company people awoke to solve the problem. The son-in-law of the complaint enquired from Mr
Singh as to how come Mr Patel, the company's employee, was detached from the whole group
booking and made to fly separately on the flight from Johannesburg to Nairobi only.

In the meantime, Mr Patrick announced that Kenyan Airways flight for Nairobi had got delayed
and the group could purchase tickets for Nairobi to catch KQ 202 from Nairobi to Mumbai. One
Mr merchant of the OP Company posted in Mumbai spoke to son-in-law of the complainant that
they are getting the tickets reissued with no payment to be made and requested the group to board
the flight and it was his responsibility to ensure the arrangements in Nairobi. Then the group
rushed to Kenyan Airways counter but was informed that there were no instructions from the tour
manager to reissue the tickets. The staff categorically informed that the tickets would not be
amended since the tour manager was informed of cancellation of the flight long back and it was for
the tour manager to have taken the required rectification. In all that confusion, the flight again got
closed.

By then, the group had been completely exhausted physically as well as mentally. Extreme anxiety
was thrust on the members of the group by the company due to their extreme negligence. The
group remained all through without food at the airport from 8.30 as no arrangements were made by
the OP company or its local agent despite though being in-complete fault. The group was treated
like cattle. At the age of 78, the complainant remained very incompatible due to no suitable sitting
arrangements at the airport. The condition of the complainant's aged wife was also the same. They
never had faced such uncertainty, anxiety and physical discomfort and her in their life. The
complainant had booked leisure tour only for the comforts which he and his family members
needed and to which they had been used to and not to face the music, as pointed out.

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The son-in-law of the complainant rang up Mr merchant and Mr Singh and apprised them of the
entire aforesaid stated developments and their predicament. Then by 2.30 p.m. they were assured
by the OP company people that the company was making all arrangements for them. They were
lodged in a hotel of Johannesburg for the night and by 6 PM, confirmed tickets from Johannesburg
to Mumbai and from Mumbai to Delhi and Lucknow for 26/12/2014 were supplied to the group.
The complainant's and his son-in-laws one day was completely lost. They had engagements in
Delhi, which they had to cancel by international calls.

In their status report. The OP company on the aforesaid episode has categorically accepted that
Kenyan Airways had intimated them on 8/12/2014 itself that KQ 761, had been cancelled. If that
flight had been cancelled. How come tickets on that flight were supplied to son-in-law of the
complainant on 13/12/2014, and he was not told that the flight had been cancelled and revised
flights tickets would be provided to the group later on. This negligence clinches the issue and it is
responsible for all mental and physical discomforts of the group on 25/12/2014. Taking defence in
the status report that their Guide tried to give the group the revised tickets and the group did not
take the same under some confusion is totally an afterthought defence right to wriggle out of the
liability. This cooked up defence, the complaint totally rejects for the reason that neither the guide
told the group that tickets given to it from Johannesburg to Nairobi had been changed, nor
company's employees informed the group about the said change of tickets, even though they could
do so on the Internet connection of son-in-law of the complainant who was in touch with them on
phone connection about the inferior service of food in Cape Town. They did not take care to
inform that instead of KQ 761, the SA flight had been booked to which they were duty-bound. The
negligence is proved from their own status report. In the report OP company has offered to
compensate. But the offer is highly disproportionate to the mental and physical discomfiture
suffered by the members of the group to negligence in services of the OP Company.
The complainant has prayed for the following reliefs:

(a) Grant damages of Rs. 6,30,400/- towards the compensation for the loss of time,
business opportunity and in convenience cause to the complainant and his family members;
(b)

(c)

A sum of Rs. 80,000/- may be awarded as the legal and administrative expenses.

Pass any such order which may be in the interest of justice.

The notice of the complaint was issued to the OPs who contested the complaint and filed reply
with preliminary submissions including the submission that the complaint is baseless,
misconceived, frivolous and without any cause of action. The alternative preliminary submission is
compensation of Rs. 630,400/- claimed by the complainant for alleged harassment, mental pain,
agony, torture and litigation expenses of Rs. 80,000/- are per se untenable being imaginary and
preposterous and in any event, excessive. The compensation to be awarded has to be quantified on

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a rational basis on consideration of materials produced before the adjudicating Forum, not only
showing the extent of actual injury suffered, if any, but also the manner and extent to which the
monetary loss has been caused thereby, if any, to the complainant.

On merits OPs have admitted that the complainant had booked the South African Leisure Tour for
the period from 14/12/2014 to 25/12/2014 for himself and his family. OPs also admitted that the
complainant paid 12 lakhs to OP 1 Company towards cost of the tour for six passengers. It also
admitted that the air tickets, sightseeing, hotels were included in the tour cost. OPs also admitted
that OP 1 assisted the complainant and his wife, for obtaining Visas. It also admitted that since the
other four members booked on the tour were holding the diplomatic passports, Visa was not
required for them.

OPs submitted that the complainant had visited the offices of opposite parties and had informed
that the return tickets of the complainant's issued by the OP from Johannesburg to Delhi was in
two different flights. OP submitted that due to peak season of the opposite parties, the tickets only
could be arranged in different flights. However, OPs contacted the concerned airlines and
explained the situation. Accordingly, the OPs booked the tickets on one flight only. OPs have
submitted that in any event, booking of the tickets in different airlines does not amount to
deficiency in services. According to the OPs it has been mentioned clearly in the Terms and
Conditions mentioned in the Booking that in case the tour has less than 15 adults and is in operated
in seat-in-coach basis, then it would be possible that the driver would act as guide and accordingly,
the driver acted as a guide. OPs denied that driver got directions from someone that only driver
provided the city tour as alleged or for the reasons alleged or at all.. According to OPs the mere
idea that the fact that the driver was acting as a guide was apparently unacceptable to the
complainants, without realising the fact that driver sent on such duties are trained and qualified
guides. According to OP, the hotel shuttle service is a part of the arrangement and the complainant
cannot have any grievance on that account.

According to the OPs on 25/12/2014, the vehicle had reached the hotel at 7.15 a.m. well in time for
reaching the airport in time for taking the complainants and other tour members to the airport for
travelling back to India. However, the complainant informed the driver that they did not want to
leave early and accordingly, driver was made to wait for 45 minutes outside the Hotel for the
complainant before complainant left for airport.

The case of the OPs is that the allegations of harassment, of phone calls, et cetera made by the
complainant are merely to create prejudice. The complainants were very well aware of the fact that
the flight no. KQ 761 (Johannesburg to Nairobi) was cancelled by Kenyan Airways on 13/12/2014
(Saturday). As soon as this information was received by the opposite parties, they had sent the
revised air tickets to their supplier in South Africa on 15/12/2014. OPs further submitted that they
forwarded the revised air tickets to the complainant through their service providers in South Africa
on 16/12/2014 fourteenths. Details of the flights of South Africa Airways, which were booked

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flight No. S A 0184 from Johannesburg to Nairobi and Kenyan Airways flight number KQ 202
from Nairobi to Mumbai. However, the complainant unreasonably refused to take the revised air
ticket, stating that they had already received the correct air tickets before leaving India. OPs
submitted that as per company's policy, the communication with the passengers, after the tour has
begun, are generally done through the tour guide or local service provider as it is not possible to
contact each and every person during the tour. Since the complainants did not take the revised
tickets on 16/12/2014, the present situation arose. Thereafter, OP 1 company tried best to get
tickets for 25/12/2014 for next available flight of South Africa Airways from Johannesburg to
Nairobi with the launch booking at Nairobi airport. However, firstly, the complainant adamantly
did not agree for the same in time and agreed only much later. By the time the complainants
agreed, the boarding gates for the flight were closed. It is submitted that the complainant also try to
book the tickets on other airlines. However, as it was the peak season, flight booking were not
available. As such, OP 1 company arranged for accommodation for complainant at Johannesburg
for 25/12/2014, and the cost of the stay was born by OP 1 company, which further establishes bona
fides on the part of OP 1 company. OP 1 company got fresh tickets issued from Johannesburg to
Mumbai and from Mumbai to Lucknow for the complainants and Mumbai to Delhi (passengers
travelling to Delhi) and cost of the tickets of Rs. 275,000/- was also borne by OP 1 company. The
OP company had also followed up with the South's African airlines for refund of the amount for
the tickets purchased by them at the airport. The complainant have not mentioned anything about
the refund already received, which the complainant would have received long before the complaint
was filed. The OPs have specifically denied that there was any fault or negligence caused to the
complainant on behalf of the opposite party. The OPs
have denied the other facts stated in the complaint, and have prayed for dismissal of the
complainant with exemplary costs.

In the rejoinder the complainant has denied the averments made in the reply of the opposite parties
and has reaffirmed the facts stated in the complaint. In support of his case, the complainant has
filed his affidavit in evidence. On behalf of the OPs the affidavit in evidence of Mr Saaransh,
Senior Manager-Leisure Travel (outbound) of OP 1 company is filed. Both parties have filed
written arguments.

We have heard the learned counsel for the parties and have gone through the written arguments
filed on their behalf, record of the case and relevant provisions of law.

It is not disputed that the complainant, a former judge of Delhi High Court, along with his wife,
his son-in-law being IAS officer, his daughter, Dr Anurita and two grandchildren booked a South
African Leisure Tour from 14/12/2014 to 25/12/2014 with OP-1 Company and paid around Rs. 12
lakhs including compulsory tips to the tour guide and driver of the agent of the OP-1 in South
Africa. The amount paid also included the cost of air tickets, sightseeing, and hotels. OP 1 assisted
the complainant and his wife, for obtaining visas and other four of the six tour members were
holding the diplomatic passports, Visa was not required for them. Admittedly, the flight KQ 768
was to reach Nairobi at 18.30 hours, whereas the connected flight booked from Nairobi to Delhi.

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KQ 202 was departing at 15.10 hours and due to detection of this fact by son-in-law of the
complainant on 12/12/2014, the opposite parties took corrective measures. It is also not disputed
that the flight KQ761 on 25/12/2014, stood cancelled by Kenyan Airways. The complainant and
other family members had one-day over stay in Nairobi due to the fact that their arrangement for
air travel to India was made possible by opposite parties on 26/12/2014.

In the backdrop of above admitted position we would like to point out that it was a leisure tour
named South Africa Leisure Tour, which was booked by the complainant and his family members
with the facilities of travel, stay, sightseeing, etc. For said leisure tour the OPs have charged heavy
amount of Rs. 12 lakhs so they were required to provide appropriate comfort and excellent services
to the family of the complainant consisting of six persons, including the complainant. A family of
high status persons having paid said heavy amount to the opposite parties for a leisure foreign tour
can reasonably expect promised excellent facilities by tour operating company, its staff and agents
to make their tour, comfortable in consonance with the title of the leisure tour. Undisputedly, the
booked flight of Kenyan Airlines from Johannesburg to Nairobi was to reach Nairobi at 18.30
hours and the connecting flight, which was to take complainant and his family from Nairobi to
Mumbai, being flight number KQ 202 was to take off at 15.10 hours. We accept the argument on
behalf of the complainant that had son-in-law of the complainant not noticed the faulty tickets
pertaining to himself and his wife and two children, they would have stuck up in Nairobi as the
connecting flight would have already left for Mumbai and 15.10 hours. Although, corrective
measures were taken by the opposite parties after being informed about the said shortcoming, but
the fact that such a situation has arisen and son in law of the complainant had to point out the same
to the opposite parties to get things corrected shows the lapse on the part of the opposite parties in
this regard. The corrective measure taken by opposite parties after being informed about it may
dilute and not eradicate the effect of such a lapse/deficiency in service.

The second lapse on the part of OP1 for which the complaint and his family have to face
inconvenience is the overstay of the complainant and his family for one day. Admittedly,
scheduled departure from Johannesburg in South Africa through Nairobi in Kenya to India was to
take place on 25/12/2014. The scheduled flight of Kenyan Airlines being flight number KQ 761,
was cancelled on 13/12/2014. Therefore, opposite parties booked flight number SA0 184, which
was to start from Johannesburg at 10.05 hours and was to reach Nairobi at 15.10 hours, much
before the connecting flight number KQ
202 was to depart from Nairobi to Mumbai. The
grievance of the complainant and his family is that they were never informed by opposite parties
about cancellation of Flight No. KQ 761 and came to know about it for the first time only when
they reached the Johannesburg airport on 25/12/2015. The revised tickets were not brought to their
notice, nor they were given revised tickets before the date of journey on 25/12/2014. This, in our
view is a serious lapse on the part of OP 1 and its concerned officials/agents. Although the
opposite parties have taken the plea that on 16/12/2015 through their service providers, the revised
tickets were offered to the complainant, but this fact is disputed by the complainant. We see no
reason to disbelieve the complainant in this regard and accept the contention on behalf of the
complainant that such refusal of ticket or irresponsible or careless act cannot be expected from a
highly educated and eminent person like retired judge of High Court. Even otherwise, when both
parties are relying upon oral statement in this regard, assuming the worth of their statements on
equal footing, still, as per the settled legal position of interpretation applicable to the consumer
complaints filed under The Consumer Protection Act, 1986, when two views are equally or almost

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equally possible, or in other words, in case of doubts the consumer fora should accept the view
which is in favour of the consumer as against service provider to give benefit to the consumer.
Therefore, we rejected the contention of the opposite parties that the complainant was offered
revised air tickets on 16/12/2015 to complainant. We accept the contention on behalf of
complainant that it is on 25/12/2014, the complainant and his family came to know that flight No.
KQ 761, was cancelled by Kenyan Airways on 13/12/2014, and the revised tickets were supplied
to the complainant and his family on 25/12/2015 only, more so, when complainant in the written
arguments has taken specific plea that the program for Johannesburg given to the complainant on
24/12/2014, shows the return flight KQ 761, leaving Johannesburg at 10.50 hours and not Flight
No. SAO 184, leaving Johannesburg at 10.05 hours. Therefore, we hold OP 1 guilty of deficiency
in service on this count.

The third important lapse on the part of opposite parties causing inconvenience and trauma to
complainant, his wife, his son-in-law, his daughter and her two children and Johannesburg on
25/12/2014, the date of scheduled departure from Johannesburg/Nairobi to India. It was the
responsibility of the OP 1 company through its employees, officers and agents to ensure timely
arrival of the complainant and his family at the airport for boarding of the flight to India. The
complaint has explained the inconvenience suffered at the airport by him and his family on
25/12/2014, and also about the fact that the Visa of the complainant was to expire on 25/12/2014.
We accept the case of the complainant that since the Visa was expiring on 25/12/2014, the
complainant became very nervous and went into great panic and anxiety. He being a former Judge
was conscious of legal consequence of overstaying in a country after expiry of Visa. That
aggravated his anxiety and blood pressure. Seeing his nervousness, his son-in-law made efforts for
getting another flight. Telephone calls were made to the officers of the OP 1 company in India and
even local agent, sent by OP 1 could not render appropriate assistance, leading complainant and his
family to overstay for one-day and return on 26/12/2014, instead of 25/12/2014. Although, the
expenses for one-day stay in Nairobi were born by the OP 1 company, but it, in our view, does not
nullify or erase the anxiety and discomfort, referred before, faced by complainant and his family
on 25/12/2014.

In the light of above discussion, we hold OP 1 company guilty of deficiency in service, provided to
the complainant and his family in the pleasure foreign tour named South Africa Leisure Tour. As
regards OP 2 and OP 3 who are working with and for OP 1 in discharge of their duties for OP 1 we
do not feel that they can be held vicariously liable with the OP 1 so we allow this complaint
against OP 1 alone.

On the question of compensation to be awarded it is to be noted that along with the rejoinder the
complainant has annexed Annexure A-4 with copy of the email received by complainant from Mr
Vikram Singh of OP 1 company who regretted for late reply and apologised for the discomfort
caused to complainant on tour and promised to help the complainant by coordinating with South
African airlines team to get refund of a tickets. In addition OP 1 through this email as a purely
goodwill gesture offered complainant with an additional credit of about of Rs. 5000/ per person
and thanked complainant for his patience and assuring him that OP 1 was looking forward to

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service his travel needs in near future. This email is not disputed during the course of arguments
and its contents show that the OP 1 company has acknowledged the inconvenience faced by
complainant and his family and has offered the sum of Rs. 5000/ each of the six tourists being
members of the family of the complainant, including the complainant. The said offer was not
accepted by the complainant and rightly so because we feel that a status family going on foreign
tour by paying hefty amount of Rs. 12 lakhs with a reputed tour operator company like OP 1 was
required to be given appropriate, adequate comforts to make the tour in question really a leisure
tour as its name South African Leisure Tour, in itself indicates. Therefore, we do not find the claim
of compensation made by complainant in the sum of Rs. 630,400/ for six persons towards the
compensation for the loss of time, business opportunity and inconvenience caused to the
complainant and his family members to be exaggerated, or on higher side.
In view of the above discussion, the complaint is allowed against OP 1, Thomas Cook (India) Ltd
and we direct the OP 1 to make the payment in the sum of Rs. 630,400/ to the complainant along
with simple interest at the rate of 9% per annum from date of filing of the complaint till realisation
of the said amount. We also, in addition, direct OP 1 to pay the litigation cost in the sum of Rs.
60,000/ to the complainant. This order be also sent to the server ( www.confonet.nic.in ). A copy
of this order be sent to both the parties free of cost by post. The file be consigned to the record
room.
Pronounced in the open Forum on

(S K SARVARIA)
PRESIDENT

(H M VYAS)

(NIPUR CHANDNA)

MEMBER

MEMBER

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