DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi-110016

Case No.329/2013

Sh. Jyotirmoy Mukherjee

R/o Sh. Flat No.903,

Tower-8, Parsvnath Greenville,

Sohna Road, Gurgaon,

Haryana-1122018                                                                      ….Complainant

Versus

D. Paul Travel and Tour Limited

B-36, Shivalik, Malviya Nagar,

New Delhi-110017                                                         ….Opposite Party

                                                  Date of Institution        :     31.05.2013      Date of Order     :      15.09.2018

Coram:

Sh. R.S. Bagri, President

Ms. Naina Bakshi, Member

Ms. Kiran Kaushal, Member

ORDER

Member - Naina Bakshi

Briefly stated, the case of the complainant is that the  complainant  was willing to book a 7 nights trip for Kuala Lumpur and Singapore with departure date on 17.01.2013 for 2 adults and 1 minor child and met the OP on 07.01.13. The total cost of the trip was Rs.1,65,500/-. On 09.01.13, the complainant transferred Rs.50,000/- as advance payment to the OP to show his bonafide intention to continue with the booking and delivered all documents such as passport for visa and filled up visa form which were required by the OP for booking. Thereafter, the OP had not contacted the complainant even once for the confirmation of the booking.  The complainant’s mother was seriously ill on the night of 15.01.2013 and had to be admitted   in Max Hospital, Gurgaon.  Due to this exigency, the complainant was forced to cancel his travel plan and intimated the OP vide SMS on 16.01.2013 at 7.44 a.m. It is stated that till this time i.e. less than 24 hours before the complainant was to travel internationally there was no intimation or contact by the OP confirming to the complainant  that the tour package was booked and confirmed. Thereafter, various emails were exchanged between the parties regarding possibility of rescheduling of trip which was refused by the OP and the possibility of the return of the booking amount which was also refused by the OP.  It is submitted that during email correspondence at about 5.20 p.m. on 16.01.13 an email was sent by the OP to the complainant stating that they were compelled to return all travel tour components under hold for complainant for want of balance amount. It means that the OP unilaterally cancelled the tour package. Thereafter, the OP proceeded to issue veiled threats to the complainant with reference to paying the entire tour amount before releasing the passport of the complainant and his family to him.  It is submitted that the OP represented the complainant that they would take a partial refund to the complainant in case, he was able to send them proof hospitalization of his mother.  Even after receiving the documents the OP refused to give a partial refund. On 17.01.13 at 10.00 a.m. the complainant received a phone call from the OP enquiring as to whether the complainant had taken 8.55 a.m. flight out of the country. This enquiry took place after OP had unilaterally cancelled the tour after charging the full cancellation amount. Thereafter, the complainant had to pay the entire tour amount to the OP for release of their passport. Even though the original email mentioned Rs.1,65,500/- as the cost of entire package the OP had charged Rs.1,67,300/- as the entire tour package cost. Thereafter after much negotiating, the complainant was asked to pay Rs.1,34,300/-. The complainant  sent a detailed letter to the OP on 31.01.13 to which the OP replied to the grievance of the complainant on 02.02.13 with lies and concocted story to cover his incompetence in dealing with the booking of tour and travel of the complainant. Without prejudice to the falsity of the entire letter of the OP dated 02.02.13, the sequences of events regarding Mr. Subash (admittedly the OP field employee) is untrue and is made up. The entire sequence  of events highlighted by the OP stating that Mr. Subash was made to wait for an inordinate period of time is only a concoction by OP with malafide intent to undermine the legal rights of the complainant. OP’s field representative visited the complainant only with the purpose of ensuring that the balance payment was given before the passport of the family was handed over. It was cleared by the OP to the complainant  that his personal papers could not be returned to him unless he paid the OP the enlarged amount in full. The complainant sent a legal notice dated 15.0.13 but the OP had not replied. OP has shown gross deficiency in service by not intimating to the complainant  even 24 hours before the actual time of departure as to whether the booking was confirmed or not. It is submitted that in the travel industry it is required that the travelers be given more than a day notice to get their affairs in order before they leave the country.  The cancellation  policy of the OP states that a 100% cancelation fee shall be charged if the traveler cancels the trip 24 hours prior to departure. The travel operator i.e. the OP has full freedom to cancel the trip as they wish. It is submitted that both these clauses are an unfair trade practice. The OP does not even confirm booking 24 hours in advance and hence should not/cannot charge  the 100% cancellation fee. The OP has drafted its policy in a manner which results in an unfair trade practice since it absolves the OP from any obligation it may have towards the consumers. Hence pleadings deficiency in service and unfair trade practice on the part of the OP, the complainant has filed the present complaint for the reliefs:-

i.        Direct the OP to refund the entire amount of Rs.1,34,300/- to the complainant  alongwith costs.

ii.       Direct the OP to pay damages amounting to Rs.1 lac to the complainant for mental agony and harassed caused to the complainant.

OP in its written statement has inter stated that the complainant  is only demanding for refund. Without prejudice even by any stretch of imagination, if any case is made out for refund, the same can be only tried way of suit for recovery before civil court, where all opportunities will be available to both the parties to lead proper evidence and to prosecute or defend the case by examining/cross-examining witnesses.  It is stated that the complaint is liable to be dismissed as no tour services were provided by the OP and only facilitated booking, so that services of tour components service can be availed. Hence, complainant  is outside the purview of definition of consumer as per the Consumer Protection Act, if any grievance that can be there pertaining to cancellation charges  the same can only be with tour component service provider with whom ultimate bookings were made and not with the OP. OP has acted legally as per the governing terms and package was cancelled when it ultimately  it turned to be “no show” meaning that inspite of booking package and taking tour documents complainant  did not turn up to avail the tour components.  It is submitted that the tour booking is done at choice and preferences of the tourists. Tourist can reject any tour component and pick other tour component in its place or can forgo some non essential tour components by choice.  Visa service is not compulsory it is availed by those who needs services or one who cannot manage on their own.  It is denied that the OP did not contact the complainant for delivery of package. On the contrary the complainant did contact the complainant. When the documents of package were presented at complainant’s residence by Field Executive of the OP and balance amount of package cost were also demanded, complainant expressed some personal medical reasons in disharmony to booking terms to avoid the package as well as payment of balance package cost. However, after confirmation that balance amount was paid and the field executive was made to wait till 7.30 p.m. on 16.01.13 since afternoon, package tour booking documents were handed over to the complainant’s residence alongwith the passport in original. Next day when computer was showing no show against flight tickets, executive from OP’s office enquired about it. It is denied for want of knowledge that the complainant’s mother was taken seriously ill on the night of 15.01.13 or had to be admitted in Max Hospital, Gurgaon. It is denied that the complainant  was forced to cancel his travel plans or intimated the same to the OP vide an SMS on 16.01.13 at 7.44 a.m. Till date  the OP has not been able to locate the said SMS.  Tour package ready for delivery prior to departure and thus it was sent to residence of the complainant  on 16.01.13 but the complainant  kept field person to wait since afternoon till late in the evening. However, it was conveyed to the complainant  vide email dated 16.01.13 as well as over the phone that  it was late as all tour components were ready and booking was confirmed which if cancelled on 16.01.13 were attracting heavy cancellation charges. It is incorrect and distorted fact that till time i.e. less than 24 hours before the complainant  was travel internationally there was no intimation or contact by the OP confirming to the complainant  that the tour package was booked or confirmed. Once the booking was undertaken it means that the booking is confirmed as only process is to be executed to get the travel documents ready.  Thus, question of not confirming does not arise at all. It is submitted that the package was not cancelled as ultimately payment was made and package documents were delivered to the complainant  at his residence thus the same cannot be viewed as unilateral cancellation as package was delivered. Even records of OP office will prove this fact. It is denied that the OP has shown gross deficiency in service by not intimating to the complainant  even 24 hours before the actual time of departure as to whether the booking was confirmed or not.  The very package was handed over which is proof of the booking. The cancellation policy of the OP states that a 100% cancellation fee shall be charged if the traveler cancels the trip 24 hours prior to departure is correct as then it is not possible for the tour component service to sell the components to other customers as the same remains blocked for the persons booking tour components.  It is denied that that the entire tour amount was paid to the OP for release of passport. OP never holds anyone passport in such unethical and illegal manner as alleged. This is just false allegation to gain sympathy of the court.  OP has prayed for dismissal of the complaint.  

Complainant has filed rejoinder reiterating the averments made in the complaint.

Complainant has filed his affidavit in evidence. On the other hand, affidavit of Raghuvinder Pal Singh, Director has been filed in evidence on behalf of the OP.

 Written arguments have been filed on behalf of the parties.

We have heard the counsel for the parties and have gone through the file very carefully.

Email exchanged between the parties has been filed as Annexure-A. Details of the tour programme has been filed  wherein at page 15 it is mentioned that

“the package is a promotional package which is available only for limited seats which cannot be hold and subject to availability of the seats on mentioned departure.”

In the terms and conditions it is mentioned that

“if cancellation is made 05  to 01 day prior to departure, 75% of tour cost shall be deducted. In case the passenger is no show at the time of departure, 100% of tour cost shall be deducted.”

The complainant submitted a medical paper of Smt. Aroti Mori dated 16.01.13 which we mark as Mark A for the purpose of identification. The complainant sent the legal notice dated 15.03.13 to the OP.  The OP filed the documents relating to the tour programme including the tickets as Annexure-A.

           Admittedly, the complainant had booked the tour programme for Kuala Lumpur and Singapore with the OP from 17.01.13 for 7 nights trips for 2 adults and one minor child and paid an amount of Rs.50,000/- as advance and the balance amount was paid on 16.01.13. As per the medical report submitted by the complainant his mother was sick on 16.01.13. The complainant himself cancelled the trip due to his mother sickness. As per the terms and conditions of the OP the if cancellation is made 05 to 01 day prior to departure, 75% of tour cost shall be deducted. In case the passenger is no show at the time of departure, 100% of tour cost shall be deducted.

           The complainant requested the OP to refund the balance amount after deduction.  The OP vide email dated 17.01.13 informed the complainant that

           “We regret to inform you that as per the cancellation policy, your package if now cancelled is attracting cancellation charges equal to 100% of the package cost. You are therefore required to make payment of balance amount of Rs.117300/- as you have paid Rs.50,000/- at the time of booking with assurance to pay balance amount after booking documents are ready. At the same time we are sympathetic to your situation and we try to see how cancellation charges are reduced. But as on date you will have to make the payment of balance amount so that we are not burdened with the consequences that have now arisen due to your not availing the package and cancelling the same. To remove any further doubts we must mention that re-rescheduling is not possible and all packages can only be cancelled.”

           It is clear from the documents submitted by the parties that the complainant informed the OP one day before the tour and complainant  was ready to receive the balance amount as per terms and conditions of the itinerary issued by the OP.  

           Despite there being enforceable terms and conditions between the parties, the OP was also supposed to comply with the terms and conditions thereof in letter and spirit, e-mail messages exchanged between the parties have been filed on the record. The itinerary did not give any opportunity to the complainant to get rid under any circumstances and it was one sided agreement.

           There must have been included atleast one clause in the itinerary agreement whereby the consumer must have been given a right to cancel the tour within a particular time though subject to some conditions and deductions but, however, no such liberty has been afforded to the customer in this case. Agreement is thus not conscious and justifies to that extent. The complainant had not availed services of the OP. Therefore, the OP must have considered the request of the complainant to refund the amount paid by him after making some deductions.  

           However, as stated hereinabove, no such freedom had been given to the complainant in one sided agreement which contained total beneficial stipulations in favour of OP.

           Thus, in our considered opinion, it amounts to unfair trade practice on the part of OP. Therefore, we hold the OP guilty of deficiency in service and unfair trade practice so far as providing no option to cancel the tour programme to the complainant. We allow the complaint and direct the OP to refund 25% of the tour cost amount to the complainant alongwith 6% interest from the date of filing of the complaint till realization amount and Rs25,000/- as compensation for harassment and mental agony undergone by the complainant within a period of one month  from the date of receipt of the copy of this order failing which the OP shall become liable to pay 25% amount of the tour cost alongwith interest @ 9% p.a. from the date of filing of the complaint till the date of realization.

                Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations.  Thereafter file be consigned to record room.

Announced on 15.09.18