CONSUMER DISPUTES REDRESSAL FORUM-VI (DISTT. NEW DELHI), ‘M’ BLOCK, 1STFLOOR, VIKAS BHAWAN, I.P.ESTATE, NEW DELHI-110001.
Case No.CC/1216/10
In the matter of:
Sh. Ajit S Bhasme,
New Lawyers Chambers,
New Delhi-110001 ……..COMPLAINANT
VERSUS
1. M/s Thomas Cook India Ltd.,
Office at C-33, Connaught Place,
1st floor, Inner circle, New Delhi – 110001
2. M/s. Cosmos,
Office at 11, SNS Chamber,
239 Upper Palace Drhards Sankey Road, Sadashivnagar, Banglore-560080
………. OPPOSITE PARTY
ORDER
President : C.K Chaturvedi
The complainant booked a East Europe tour in the summer vacations of 2010 with OP 1, who through OP2 settled the terms and conditions of the tour which was also agreed to by the complainant. The tour was very satisfactory as admitted by complainant in his complaint. However, he was irritated on score of differential treatment by OP2 in respect of pre-paid gratuities for tour director and driver tips. Though he agrees with the concept of these gratuities and has actually paid the same with the tour cost in advance, in terms of the conditions of the tour, he during his conversation with some British and American tourist with him in the tour that the gratuities were not pre determined or pre charged from them. He was the only Indian in the tour group and allegedly felt discriminated and felt a loss of esteem, which is described him as racial discrimination on the part of OP2. It is submitted by him that giving of gratuities as per international norms is discretionary and voluntary and cannot be made mandatory in discriminatory manner singling out only Indian guests and permitting guest of other nationalities to quantify and pay gratuities at their discretion. It is stated in the complaint that this complaint is filed not only for redressal of this grievance but also to uphold the self esteem, self respect, dignity and projected image of Indian citizens at large which mars the image of Indians in the international community.
The Op 2, has replied to the complainant admitting the differential treatment in regarding these gratuities as stated by complainant, but have stated that levy of pre-quantified gratuities is in consonance with the prevalent industry practices relating to travel and tours. It is admitted that in certain tours such gratuities are not included for UK and US clients as there are different promotional products and different offers made to different markets at different times in different seasons. It is also stated that the tour cost from India and tour cost from other countries to a common destination can ever be the same. It is stated that such promotional products are driven by market and commercial considerations and as such the pre quantified gratuities are charged in Australia, New Zealand, United States, Sub continent and South East Asian countries. It is stated that in US clients were not tipping local guides with the result that it was difficult to attract and keep the services of the best guides and including these tips on a non-optional basis has solved the problem.
The reply clearly spells out market considerations in selling the product in different markets and tour operator’s considerations in getting best guides. But those considerations transcend and cut across every guest in the group tour and to link it to nationalities issue is not commercial consideration. It is no doubt true that there is freedom of business to lay down separate conditions and terms for different promotional products at different times, but so is the freedom of tourist to himself determines the level of gratuities, if any he wants or can afford. This freedom cannot be robbed off from by making him agree to pre-determined and non option gratuities, which also has an element of unconscionable bargain and void under Indian law; and if the same at operational level leads to a feeling of differential treatment for nationality reasons, causing a hurt to esteem and loss of self respect or dignity, as stated by the informed complainant who is a Supreme Court lawyer, the same is to be treated not at contractual level of having signed the contract with those terms and conditions, but as a ground level imperfection and deficiency in rendering services. In case the charges are on nationality considerations, it is imperative that the group consists of same nationality and other nationality groups do not feel discriminated. There are numerous regulations of European Community like EC unfair practices law which ensure non discrimination on grounds of race, nationalities to ensure human dignity and militate against social and economic discriminations at societal level interactions. In our view, the grievance is to be considered on these considerations and not on narrow cost cutting considerations of tour operator’s business profit considerations. At ground level when the tour operators promises best services, and he himself dictates the costs of the tour, he must respect that by engaging best tour directors and guides, by negotiations at their level, without bringing into picture the guests in the tour group or by way of transferring the higher cost of engaging best guides and tour directors to consumers of services by separately making them to agree pre- determined gratuities etc. It is in the interest of consumers to leave such gratuities to them rather than turn it into compulsory payments by some and optional for others. The commercial considerations should remain secular commercial considerations and not morph into nationality issue.
The definition of “deficiency” in Section 2(g) of the Consumer Protect Act, 1986, which has been enacted in pursuance of UN Resolution is wide enough to cover the 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.
Needless to say that the “law in force” in the above definition would include all international conventions in the field of travel and tour hospitality industry and rules and regulations of international bodies like IATA etc. against discrimination on grounds of race, religion or nationality by way of UN Resolutions etc and other documents containing customary international practices and material as source of international law.
The quality and nature of services by the international travel industry is to be in line with standard practices of such gratuities being optional and not made into contractual obligations and thus indirectly made compulsory.
The opposite party in its reply has pointed out that the Australian culture militates against tipping generally. So also the Indian culture promotes donations as a value on a personal basis by the concept of gift or “Daan” as spoken in Hindi language. The Indian culture militates against any kind of force in action or thought by condemning violence and has a concept of ‘AHIMSA’, which means non-violence. The practice of forcing the tips to tour operators, guides, and drivers, is thus a matter of violence and Indian culture militates against it.
With these observations, we uphold the grievance of complainant` as a subtle insult to human dignity and maltreatment to him for being an Indian. The scars of humiliations and discriminations are permanent and deep. These scars made to Mahatma Gandhi in South Africa on account of color discrimination led to overturn of the political dominations of India by British and independence of India is a testimony to this. We strongly condemn the reply of OP which is not adequate response to the grievance raised by the complainant.
We direct OP1 to submit on behalf of OP2 on record an l apology for adopting and supporting such terms in the travel contract with Indian tourists. We hold OP 1 deficient in the manner of performance of services and award punitive damages of Rs.25, 000/- which complainant wants OP 1 to deposit with the Delhi State Consumer Welfare Fund. The application of OP moved under Section 26 of the Act is dismissed.
The order shall be complied within 30 days of the receipt of the copy of the order; otherwise action can be taken under Section 25 / 27 of the Consumer Protection Act.
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