Order-14.
Dare-01/09/2016.
This is an application u/s.12 of the C.P. Act, 1986.
Complainants’ case in short, is that the OPs contacted the complainants through email with a view to conduct “European Splendour 2015”. OP3 on behalf of Make My Trip influenced the complainants by representing themselves a responsible tour organizer. The complainants, as such, with great expectation and hope intended to join in the said “European Splendour 2015” from 09-11-2015 to 17-11-2015. It is also stated that all the conversations and transactions were executed through email and net banking through OP2 and 3 from their office. As per requirement of the OPs the complainants paid in total Rs.1,60,000/- as advance/booking money for the said tour and the payment was made through HDFC Bank credit. The OPs asked the complainants vide e-mail to discuss the complainants’ details along with original passport to OP2 for VISA. Thereafter, the complainants came to know that there VISA has been rejected by the Office of the “French Consulate General” in Mumbai with reason that “purpose of stay was not reliable” mentioned for Mr. Soumitra Chowdhury and with a reason that “intention to leave territory could not be ascertained” for Mr. Sidhartha Das. The complainants, thereafter, as per verbal request over phone and e-mail communication of OPs applied to “The Consulate General De France at Calcutta” who also refused to pass VISA with a reason to as “Information submitted regarding the justification for the purpose and conditions of the intended stay was not reliable”, they are not in a position to pass/allow VISA. Thereafter the complainants through e-mail dated 21-10-2015 were duly informed by the OPs that the said tour has been cancelled. It is stated by the complainants that they have suffered serious mental harassment and agony for being unable to make the trip to Europe. The complainants have alleged gross negligence on the part of the OPs as the OPs were conducting the total tour being conductor as well as organizer. It is also alleged that the OPs showed lackadaisical attitude to perform their part of obligations and the OPs have failed to establish the reason for obtaining the VISA before the concerned embassy/high commission either at Mumbai or at Calcutta. The complainants, thereafter, requested the OPs to refund the entire money but to no good. Hence this case.
OPs have contested the case in filing written version contending, inter alia, that the Forum and Commissions have no jurisdiction to entertain the case. It is alleged that the present complaint is not maintainable in fact and in law. It is stated that the complainants approached the OP for booking the “European Splendour 2015” tour package and accordingly the complainant made payment of Rs.1,60,000/- for bookings etc. It is also stated that under the said package the OPs also provided the facility of acquiring the VISA in the name of the complainants. The OPs obtained the original passports of the complainants and applied before The French Consulate General in Mumbai and the same was rejected for a reason that “purpose of stay was not reliable” for complainant no.1 and “intention to leave the country cannot be ascertained” for complainant no.2. It is also stated that as per the terms agreed upon by the complainants of the User Agreement while booking for “European Splendour 2015” tour package, the OPs cannot be held liable or responsible for any issue including inability to travel, arising out of such VISA requirements. It has also been settled vide such condition that the OPs are not liable to refund for the untravelled booking due to any such aforementioned conditions. It is also alleged that the complainants have failed to prove the loss due to the act or negligence of the OPs. It is also stated that the OPs specifically informed the complainants at the time of providing the services that the OPs will not be liable for rejection of VISA in any form or any loss arising out of the same. It is also stated in the written version that the OPs are not liable for deficiency in service and that the instant complaint is filed to harass the OPs and the claim of the complainants deserves to be set aside. The OPs have prayed for dismissal of the case with punitive cost.
Point for Decision
- Whether the OPs are guilty of deficiency of service?
- Whether the OPs have put up a gesture of unfair trade practice?
- Whether the complainants are entitled to get the relief as prayed for?
Decision with Reasons
Ld. Lawyer appearing for the OPs has argued primarily on the point of territorial jurisdiction of this Forum. It is argued by the Ld. Lawyer for the OPs that the complaint is not maintainable in this Forum because the OPs have their office outside the jurisdiction of this city, i.e. Kolkata. On plain perusal of the plaint i.e. petition of complaint it appears that Make My Trip India Pvt. Ltd. has its branch office at Sarat Bose Road, Bhawanipur, Kolkata within the jurisdiction of this Forum. The case has been admitted by this Forum and accordingly, it is taken for grant that this Forum sanctioned the leave or permission for filing this case in this Forum in terms of Section 11(1)(b) of C.P. Act. Moreover, we find that the complainants paid total Rs.1,60,000/- as advance/booking amount for the proposed tour under booking IDIN1510B55007561 and the payment was made through HDFC Bank Credit Card, by debiting the complainant’s account in Kolkata and by transferring the amount in the OP’s bank account. Accordingly, we think the part of the cause of action arises in Kolkata within the jurisdiction of this Forum. The other facts pleaded by the complainants in their petition of complaint ipso facto inspires us to hold that those facts give rise to a cause of action within the Forum’s territorial jurisdiction.
We have travelled over the documents on record namely e-mail correspondences on different dates between the parties, brochure of the OP Company, proforma invoice dated 06-10-2015 as regards the payment of Rs.1,60,000/-, copy of refusal letter of VISA dated 15-10-2015, passport copies, IT return copies of the complainant, copy of legal notice dated 06-02-2016 etc. etc.
The real problem, as we find, starts from the rejection of the VISA. We find that the VISA applications of both the complainants were turned down by the concerned French Embassy. We find that VISA has been rejected by the office of the French Consulate General in Mumbai for a reason that “purpose of stay was not reliable” as mentioned for complainant no.1 and with a reason that “intention to leave territory could not be ascertained” as mentioned for Siddhartha Das. It has been argued from the side of the OPs that the OPs cannot be held liable for any issue including inability to travel arising out of such VISA rejection. Ld. Lawyer for the OP has also argued that as per the terms agreed upon by the complainants of the “User Agreement” while booking for “European Splendour 2015” tour package the OPs cannot be held responsible for rejection of VISA card and OPs are not also liable to refund the untravelled bookings due to any such aforementioned condition. But we find that under the said package the OPs also provided the facility of acquiring the VISA in favour of the complainants and for that the OPs acquired the original passports of the complainants and filed appropriate application with French Consulate General in Mumbai. However, the said was rejected by the Consulate General for the ground as stated earlier. Ld. Lawyer of the OPs have stressed on the “User Agreement” agreed between the complainant and the OPs at the time of booking in question but we are afraid no hard copy of such “User Agreement” has been forthcoming before this Forum. We find that OPs were mentioning tour package as “inclusive Schengan VISA Charges”. It means VISA is a part of tour who organized the tour. It is not also clear before us whether the OPs provided the “User Agreement” to the complainants. There is also no documentary proof of “User Agreement” forthcoming before us. The OPs have failed to show any documentary proof either by manual or by speed post or by Courier from where it can be evidence that the OPs provided the User Agreement to the complainants. Before receiving the advance money of Rs.1,60,000/- we find that the OPs never asked the complainants that whether complainants have gone through the User Agreement or not. It is not intelligible to us whether the contents of “User Agreement” were read over or explained to the complainants. We find that the complainant paid advance money relying and acting on good faith upon the OPs. We find no tenable reason why the OPs refused to return the advance money unto the complainants when the complainants could not join the proposed “European Splendour 2015” tour package. The OPs are Tour Operators and they know that on which grounds the VISA can be rejected and the OPs should have explained each and every minute details or the conditions to be complied with for acceptability of the application for the VISA. The OPs as we find have failed to do so. We find that there is deficiency on the part of the OPs. The plea of rejection of VISA simplicitor cannot absolve the OPs from their liabilities and responsibilities. We find that “User Agreement” was never provided to the complainants and the terms and conditions of such “User Agreement” were not also read or explained to the complainants. We think that OPs are liable to refund the money to the complainant when the tour is cancelled. Non-refund of the advance money we think is a gesture of unfair trade practice on the part of the OPs. The complainants could not enjoy the tour. On the contrary, they were penalized for non-refund of advance/booking money. We think that it is not a healthy trade practice. The complainant, as such, is entitled to get the relief as prayed for.
In result, the case succeeds.
Hence,
Ordered
That the instant complaint be and the same is allowed on contest against the OPs with cost of Rs.5,000/- each.
The OPs are jointly and severally directed to refund the advance/booking money of Rs.1,60,000/- with deduction of 10 percent thereof as non-standard basis within one month from the date of this order.
The OPs are further directed to pay an amount of Rs.25,000/- to the complainant for causing mental pain, agony and harassment within the stipulated period.
Failure to comply with the order will entitle the complainant to put the order into execution u/s.25 read with Section 27 of the C.P. Act.
