DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.133/18
Shri Rajeev Thakur
S/o Late Col. R.C.Thakur
Mrs. Geeta Thakur
W/o Rajeev Thakur
Both are residents of
D-137, Defence Colony
New Delhi-110024. …Complainants
VERSUS
Airborne Holidays Pvt. Ltd.
Represented by its Managing Director
Sanjay Datta, A-179, Saini Bhawan
Bhisham Pitamah Marg
Near Defency Colony Market
New Delhi-110003.
Airborne Travels Pvt. Ltd.
Represented by its Managing Director
Sanjay Datta
Regd. Office : E-99, Greater Kailash
Enclave-1, New Delhi-110048. …Opposite Parties
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
Date of Institution : 04.05.2018
Date of Order : 27.09.2022
Member: Shri U.K.Tyagi
Complainant has requested to pass an award directing M/s Airborne Holiday Pvt. Ltd. and Airborne (hereinafter referred to as OP):-
(a) to pay Rs.4,39,262/- alongwith interest 12% per annum from the actual payment till date of actual payment;
(b) compensation of Rs.75,000/- towards gross deficiency of services due to which he suffered mental agony and harassment and;
(c) Rs. 50,000/- as litigation charges; etc.
Brief facts of the complaint are as under:-
The complainants were working as directors of Grasik Search Pvt. Ltd. and had considered travelling to Solvenica and Croatia. They approached the Ops who claimed to have expertise and knowledge in travel related services. As a result of discussion, OP-2 sent the suggestive itinerary. The same is enclosed as Annexure-2. Annexure-3 shows details of flight fare and expenditure. The complainant also sent e-mail dated 13.04.2017 suggesting certain preferences in the itinerary and same is exhibited as Annexure-4. OPs sent final itinerary on 09.05.2017 vide e-mail. The complainant vide its e-mail confirmed the itinerary and also requested to provide flight schedule and costing as well as requisition of necessary documents for VISA.
The OP vide e-mail sent the enlisted documents required for VISA “to apply Germany VISA (which is valid for Slovenia and Croatia). The representative of the OP contacted the complainant for completion of formalities for issuance of Schengen VISA from German Embassy. Also got the “letter for VISA” on the official letter head of the company of the complainants . Copy of email dated 11.5.2017 alongwith documents template etc. is exhibited at Annexure-8 (colly). From the documents, it is clear that Schengen VISA from German Embassy will be a valid VISA for Solvenica and Croatia. Complainant further contended that they had acted as per advice of the OP –Company. The complainant further stated that OP was aware that Germany was not a destination of visit for complainant in the approved itinerary due to which they were not allowed to board the flight to Youbljana, Croatia as Germany was neither the destination of stay nor port of first entry. This action of the OP is deliberate fraud/negligence and absence of care and skill which is reasonably expected in the ordinary course of business the same not only amounts to gross deficiency of service but also an unfair trade practice. Later on, some change in hotel booking was suggested. Invoices were raised and flight tickets, travel itinerary were sent to complainant No.1. Copy of Schengen VISA was also sent as on 26.05.2017 by the OP on repeated reminders from complainant and can be seen as Annexure-15 (colly).
It was also contested by the complainant that on seeing the hotel vouchers, all the lower rating hotels had been booked and some discrepancy was also noted which was conveyed to the OPs. These hotels were different from the same shown in itinerary. The names of contacts/driver, intercity transfer were not provided to them whereas the travel was to start from 29.05.2017. On reaching the airport, the complainant were not allowed to board the Lufthansa Airlines on Schengen VISA procured from Germany Embassy as Germany was neither a country of their stay nor a country of their visit which is compulsory requirement for the country issuing a Schengen VISA. This is stipulated in European Community Regulation No.812/2009. The negligent conduct of the OPs, had a detrimental impact on the mental and physical health of the complainant.
OPs on the other hand, submitted its reply interalia raising preliminary objections. It was stated therein that the complaint so filed under the CP Act is devoid of merit. It was further contended that the complainants were travelling Germany, Slovenia and Croatia and with this view, the Germany Embassy issued Schengen VISA. It is further submitted that the OPs being an agent for making booking arrangements, does not take any decision qua airline, VISA or loading arrangement and its role is limited to execute the instructions of the clients/complainants. VISA was applied to German Embassy only after having due discussion. It was an informed decision. The OPs have time and again enquired as to why they did not travel and complainant has failed to give justification. It was also contended that how the OPs can be blamed whereas the complainant went to German Embassy for bio-metric and applied to Schengen VISA. On detailed discussion, the OPs provided the suggestive itinerary. After submission of application for VISA to Germany Embassy, it was evident that the complainant was proceeding to Germany, Slovenia and Croatia. The OPs provided best packages. The complainants never disclosed that they were not allowed boarding on account of Schengen VISA. The complainant made some call and did not disclose the reason. He was abusive as well to the representative of OPs. As a good gesture, he was suggested another itinerary in near future. The OPs denied the allegation of grossly deficient services, unfair trade practices. When complainants approached OPs, they wanted to travel Slovenia and Croatia but later they wished to travel Germany along with Slovenia and Croatia.
It is obligatory on the part of complainant to obtain VISA; the OPs being agent can facilitate the arrangements. It is the complainant who filed application for issuance of Schengen VISA. Germany was neither the destination of stay nor port of first entry. OP also alleged that the complaint has a tendency to charge plans frequently, and OPs on his request gave another suggestive itinerary. The complainants have not placed a single documents on record to show that they had reached airports, let alone was refused to board the said flight. Since the complainants were travelling Germany, therefore, their port of entry was Germany. It is denied that OPs refused to reimburse rest of outstanding amount on false, vague, legally untenable and vexatious pleas.
Both the parties filed written submission and evidence in-affidavits. Written statement is on record so is rejoinder. Oral arguments were heard and concluded.
This Commission has gone into entire gamut of issues and due consideration was given to the oral arguments. The contention of the complainant started with issuance of Schengen VISA from Germany Embassy as Germany was neither a country of their stay nor a country of their visit let alone being the maximum stay or port of first Entry which is compulsory requirement for the country issuing a Schengen VISA. It is stipulated in the European Community Regulation No.810/2009 of the European Parliament. With the issuance of Schengen VISA from German Embassy, the complainant were denied boarding in the flight on 29.5.2017. The attention of this Commission was drawn on the query raised by the complainant to the Embassy of Slovenia at Annexure-18 to the complaint. The reply dated 28.02.2018 from the Republic of Slovenia on email states as under :-
“When applying for Germany VISA, your intended trip or first point of entry and also intention to travel was Germany as Germany is your first destination of arrival and main destination of stay. To the Republic of Slovenia, there was no direct flight connections.
By the Schengen Code, it is still allowed to travel first to Slovenia and after visiting Slovenia to continue the trip to Germany but only in case if Germany would be your main destination(Longest stay)”.
It is evident from the above, that the complainant wanted to visit Slovenia and Croatia only as can be ascertained from the exchange of e-mail between the complainant and OPs company. The above assertion is confirmed from booking of flights and hotels at different cities of these countries. The intention of the complainants was never to visit Germany. It is true that the application for seeking Schengen VISA was provided by the OP Company. So accordingly the complainants moved/acted on their advice. The OP Company insisted in their reply that no documentary proof of denial of boarding in flight was provided. As general practice, no such denial document is provided by the staff of the Airlines. The complainant made call to the representative of the OP Company.
At this stage, the OP Company vide its e-mail dated 29.05.2017 to the complainant assured that “We had already advised the Associates to process the refund and also initiated the Airlines refund for tickets etc.”
The above goes to establish that the OP Company realised its gross negligence in suggesting the complainants for seeking Schengen VISA from German Embassy and hence, advised its Associates to process the refund due to them.
Considering the facts and circumstances mentioned above, this Commission is of considered view that OP Company is short of obligation and found gross negligent and deficient in services. Hence, OP Company is directed to refund the entire amount deposited by the complainants i.e. Rs.5,72,116/- along with interest @6% per annum from the date of deposition within 3 months from the receipts of this order failing which rate of interest shall be levied @ 9% per annum till its realisation. The other requests in the prayer are rejected.
File be consigned to the record room after giving copy of the order to the parties as per rules.
