Haryana

Panchkula

CC/574/2019

ROHIT KAUSHIK. - Complainant(s)

Versus

DARUV SHRINGI. - Opp.Party(s)

ROHIT KAUSHIK.

19 Apr 2021

ORDER

Before the District Consumer, Dispute Redressal, commission, Panchkula

Consumer Complaint No.	:	574 of 2019
Date of Institution	:	14.10.2019
Date of Decision	:	19.04.2021

 

Rohit Kaushik son of Sh. P.K. Kaushik resident of Apartment No.505, Yuva Apartments, Mansa Devi Complex, Sector-6, Panchkula.                                                                                                                                                                                                                          …….Complainant

Versus

1.      Daruv Shringi, CEO, Yatra.com, Plot No.272, Phase No.2, Udyog Vihar, Sector-20, Gurugram, Haryana-122008.

2.      Manager, Yatra.Com, Chandigarh Office, SCO-85/86, Ist Floor, Sector-34-A, Chandigarh-160022.

  ….. Opposite Parties

Complaint under Sec.35 of the Consumer Protection Act, 2019  

Before:                Sh.Satpal, President.

                           Dr.Pawan Kumar Saini, Member.

                           Dr.SushmaGarg, Member.

                          

For the Parties:    Complainant in person.

Shri Dixit Garg, Advocate, counsel for the OPs no.1 and 2.

Order

(SATPAL, president)

 1.              The complainant has filed this complaint with the averments that the complainant had booked a travel package for Europe for himself on 29.04.2019 with OP No.1 by paying a booking amount of Rs.30,315/- by way of transfer through his ICICI Bank. They agreed that the remaining balance of Rs.1,32,301/- for the package would be paid by the complainant when he receives the visa. The departure date for the booked Europe trip was on 07.06.2019 which was to get over on 14.06.2019. It is alleged that OP No.1 had undertaken the all the responsibility of the visa process in the package. The complainant booked this package through the official of OP No.1, namely, Sh. Yash. After booking the package, he waited for 2-3 days, the complainant tried to get in touch with the officials/executives of OP No.1 by making several calls but his calls were unanswered. On 02.05.2019, 06.05.2019 and 08.05.2019, the complainant sent e-mails to OP No.1 for initiate the visa process at the earliest. The OP No.1 replied on 09.05.2019 and apologized to him and assured that their visa team would get in touch with the complainant at the earliest. After a delay of 2 weeks, the OP No.1 provided the visa form and list of documents to the complainant and gave his visa interview on 15.05.2019 and submitted all requisite documents for visa process. Further, on 24.5.2019, 27.05.2019 and 04.06.2019 sent e-mail to the OP No.1 to get his visa status checked from the embassy. The complainant received a letter from the Austrian Embassy for asking an important document after that on 05.06.2019, the complainant again sent an e-mail to OP No.1 informing that the OP No.1 did not mention an important document in the list of documents. The complainant has sent a legal notice upon the Ops on 06.06.2019 and directing them to refund the booking amount since he had not received the visa till that day(06.06.2019) whereas, the travel date for the trip was 07.06.2019. Due to the above said act and conduct on the part of the OPs, the complainant has suffered mental and physical agony, financial loss and harassment on account of unfair trade practice. Hence, the present complaint.  

2.               Upon notice OPs No.1 & 2 appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable being false and frivolous; no cause of action; the complainant has suppressed the material facts; no jurisdiction; has not come with clean hands. On merits, OPs No.1 & 2 stated that on 29.04.2019 they booked the travel trip to Europe and received an amount of Rs.30,000/-. It is alleged that the visa team of the Ops tried to contact the complainant on 08^th May, 2019 but he didn’t respond. Vide e-mail dated 09.05.2019, they sent a list of documents and details required from the complainant for processing the visa application and also briefed the rules over call. Thereafter, the complainant received a call from the Embassy for telephonic interview with regard to approval of Visa for the trip to Europe. However, when the OP followed up with the Embassy for the update on the visa application, the opposite party was informed by the Embassy that the complainant had applied for visa earlier and was rejected. Vide letter dated 24.05.2019, the Embassy requested the OP to provide the complainant’s previous visa rejection letter. The same was informed to the complainant. The complainant had also not informed the OP that his previous visa was rejected. Therefore, the rejection of the visa was entirely due to the fault of the complainant. It is also alleged that the booking amount paid by the complainant/customers was utilized by the OP for making various bookings for them and payments are made to third party service providers. Therefore, in case of cancellation, the said amount is not refunded to the OP by the third party service providers.  So, there is no deficiency on the part of OPs and prayed for dismissal of the present complaint.

3.               The learned counsel for the complainant has tendered sthe affidavit of the complainant as Annexure C-A along with documents Annexure C-1 to C-7 in evidence and closed the evidence by making a separate statement. On the other hand, Ld. counsel for the Ops No.1 & 2 tendered affidavit of Shri Himanshu Mitra, Authorized Representative of Ops No.1 and 2 as Annexure R-A along with documents Annexure R-1 to R-5 and closed the evidence.

4.               We have heard the learned counsels for the complainant as well as OPs and have gone through the entire record available on record including written arguments filed by the learned counsels for both the parties, minutely and carefully.

5.               The grievances of the complainant against the OPs are on the following two counts:-

(i)     That the Ops initiated the VISA related process on 09.05.2019, in connection with his journey to Europe on 07.06.2019, after a delay of 10/11 days.

(2)    That the list of documents sent by the Ops to the complainant asking him to send the desired documents/information to concerned  Embassy was incomplete, thereby providing an opportunity to the Embassy to raise the objections.

                  The Ops apart from merits have resisted the complaint raising the preliminary objection that this Commission lacks the territorial jurisdiction to entertain and try the present complaint. This objection is not tenable and stands negated in view of the fact that admittedly the offer of tour package to Europe containing the terms and conditions was made at the residence of complainant i.e. Apartment No.505, Yuva Apartments, Mansa Devi Complex, Sector-6, Panchkula and the same was agreed by the complainant at Panchkula at the said address.

                  On merits, the Ops have denied any delay as well as any deficiency on their part. It is contended that the complainant did not sent the information to the embassy about his previously rejected visa. It is vehemently contended that the non furnishing of information by the complainant to the embassy about his previously rejected VISA alone is responsible for causing delay in the matter. It is further contended that the Ops have no role in granting of visa by the embassy and that the Ops can’t prevail over the decision of the concerned embassy and thus there has been no negligence and deficiency on the part of the Ops. The Ld. Counsel for the Ops have placed reliance on several case laws, which are as under:-

1. Amrik Singh Versus M/s United India Insurance Company Ltd., 1993 (2) CPR 203
2. Paramananda Tripathy Versus Bank of Baroda, 3 1992 CPJ 231
3. Dr. Uttamkumar Samanta Vs. Vodafone East Limited, First Appeal No.847 of 2017
4. M/s Swastik Gases P Ltd. Versus Indian Oil Corporation Ltd., 2013, 9 SCC 32
5. Nariman Films Versus Dilip R. Mehta and another, 2005 (31) PTC 571 (Del)
6. Taneja Developers & Infrastructure Ltd. and Ors. First Appeal Nos. 33 and 126 of 2014
7. Manoj Kumar Versus New Arise Marketing & Another CC No.154 of 2016
8. Mohit Madan Versus Make My Trip., Date of decision 29.08.2017

6.               Further the claim of the complainant for the refund of deposited amount has been contested on the ground that Ops had already made prior payments in connection with making of boarding and lodging arrangements of the complainant during his stay in Europe. However, in this regard we do not find any documentary evidence on record to substantiate the version of the Ops. It is well settled legal proposition that mere bald assertions which are not corroborated and substantiated by any adequate, cogent and credible evidence do not carry any evidentiary value.

Further the denial of Ops with regard to delay on its part in the initiation of VISA related process is not acceptable to us as admittedly, the VISA process was initiated by the Ops on 09.05.2019 i.e. after a delay of 10 days. The complainant after booking his journey on 29.04.2019, sent three reminders to the Ops i.e. on 02.05.2019, 06.05.2019 and 08.05.2019, (Annexure C-2 to C-4) but the same failed to woke up the Ops to initiate prompt and immediate action in connection with initiation of VISA application of the complainant with the concerned embassy. It is not the case of the Ops that it has not received the said reminders from the complainant. Even, the Ops have not justified its inaction between 29.04.2019 i.e. date of booking of journey and 09.05.2019 i.e. date when the VISA related process was initiated. It is worth mentioning that the Ops vide its E-mail dated 09.05.2019, sent to the complainant, have tendered the apology.

7.               Secondly, we agree with the contention of the complainant that the list of documents sent by the OPs to him was incomplete (Annexure C-7). The Ops vide said list did not ask any information with regard to the previously rejected VISA and hence, no lapse can be attributed on the part of the complainant in this regard. We are satisfied that the complainant sent all the documents/information to the embassy as desired by the Ops vide said list. No doubt, the Ops have no control over the functioning of embassy, but the service providers like Ops are expected to take immediate and prompt action by taking the matter with the concerned embassy. Further the service providers/Ops are duty bound, after the receipt of booking amount from the complainant, to seek all relevant information vide a consolidated list in one go instead of piecemeal.

The Hon’ble State Commission U.T. Chandigarh vide its order dated 20.07.2017, passed in Appeal No. 186 of 2017 titled as Make My Trip India Pvt. Ltd. Versus Teginder Singh Walia and others, held as under:-

Consumer Protection Act, 1986, Section 2(1) (r) Tour and Travel -Travel visa was to be arranged by OP-Visa denied-Refund of cost of tour package already deposited by complainants claimed- Plea of OP that amount paid stand forfeited due to cancellation of tour package. Held-That when after non-grant of Visa, the complainants requested for refund of the amount, OP No.1 was not justified in forfeiting the entire amount paid-By doing so, unfair trade practice was adopted.

8.               Keeping in view the aforesaid discussion as well as the legal position, we conclude that Ops have been negligent and deficient while rendering services to the complainant. Hence, the complainant is entitled to relief.

In the present complaint, a refund of booking amount of Rs.30,315/- has been sought along with interest @ 15% per annum. Apart from it a compensation of Rs.2,00,000/- and Rs.50,000/- on account to mental agony/physical harassment and litigation charges respectively has also been claimed. We deem it just fair and proper that a sum of Rs.27,315/- be given to the complainant, after making deductions of Rs.3,000/- as process fee.                   

 9.              As a sequel to above discussion, we partly allow the present complaint with the following directions:-

1. The Ops are directed to make the payment of Rs.27,315/- alongwith interest @ 9% w.e.f. date of filing of the present complainant i.e.14.10.2019 till its realization to the complainant.
2. The OPs are further directed to pay an amount of Rs.10,000/- to the complainant on account of mental agony and physical harassment along with Rs.5,000/-as cost of litigation charges.

 

10.             The Ops No.1 & 2 shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71 of CP Act, against the OPs No.1 and 2. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

 Announced on: 19.04.2021

 

           (Dr.Sushma Garg)       (Dr.Pawan Kumar Saini)              (Satpal)

                  Member                        Member                        President

 

Note: Each and every page of this order has been duly signed by me.

                                                                    Satpal                                                                                                 President