Haryana

Karnal

CC/115/2019

Ashish Aggarwal - Complainant(s)

Versus

Holiday Triangle Travel Private Limited - Opp.Party(s)

S.L. Nirwania

29 Jun 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No. 115 of 2019

                                                        Date of instt.26.02.2019

                                                        Date of Decision:29.06.2022

 

Ashish Aggarwal aged 28 years son of Shri Manoj Aggarwal, resident of house no.35, Sector-13, Urban Estate, Karnal.

 

               …….Complainant.

                                              Versus

 

1.     Holiday Triangle Travel Pvt. Ltd. Pioneer house A-45 and 50, Sector-16, Noida, Gautam Budh Nagar, (UP) through its authorized representative/Director.

        Second Address:

        26, Dynamic House (third and fourth floor), Maruti Industrial Complex Sector 18, Gurugram, (Haryana).

 

2.     Fly Cheapest Pvt.Ltd. plot no.25 Block-E, Pocket 2, Sector 7, Landmark (near Naharpur, Car Market), Rohini, New Delhi through its authorized representative/Director.

 

3.     Udaan India Pvt. Ltd. 309-312, Somdutt Chamber-II, 9 Bhikaji Cama Place. New Delhi through its authorized representative/Director.

        Second Address:

        4306 (second floor) DLF Phase 4, next to Galleria Market (opposite DLF Club), Gurugram.

 

4.     M.K. International Pvt. Ltd. 305, Manchanda Building, 2600/5, Beadom Pura, Karol Bagh, New Delhi through its authorized representative/Director.

 

                                                                    …..Opposite Parties.

 

Complaint Under Section 12 of the Consumer Protection Act, 1986 and after amendment Under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.

              Shri Vineet Kaushik……Member

      Dr. Rekha Chaudhary…….Member

                   

Argued by: Shri Amit Gupta counsel for the complainant.

                   Opposite parties exparte.

 

 

                    (Jaswant Singh President)

ORDER:   

                

                  The complainant has filed the present complaint Under Section 12 of the Consumer Protection Act, 1986 as after amendment under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that the marriage of complainant (Ashish Aggarwal)  was to be solemnized on 29.4.2018 with Nidhi, that after marriage, the complainant along with his wife Nidhi, wanted to take up Honeymoon Tour to Europe, that upon  browsing on the internet, the complainant came across the internet site of OP No.1, wherein OP No.1 offered various international tours, that the complainant contacted OP No.1 for making arrangements for him and his wife – Smt. Nidhi for a tour to Europe, that the complainant booked a ‘seven night eight days’ tour to Europe for himself and his wife, that as per the itinerary, the complainant and his wife were to go from Delhi to Paris, where the complainant and his wife were to stay for three nights, thereafter the complainant and his wife were to take a train to Zurich where they were to stay for three nights, from Zurich the complainant and his wife were to go to Venice, stay there for two nights and then from Venice, the complainant and his wife were to return back to India (New Delhi). The air tickets, train tickets, hotel bookings and various city tours/ excursion tours were also to be provided by OP No.1. Besides,  flight bookings, hotel bookings, tours etc., OP No.1 was also to provide visa assistance to the complainant and his wife, so that the complainant and his wife could take the tour. The total price for the entire tour including air tickets etc. for two persons i.e. the complainant and his wife was Rs.2,27,288/-. The complainant has further maintained that after receiving the initial deposit, the representatives of OP No.1 told the complainant that OP No.1 is merely a internet portal, who do not by itself carry out any operation i.e. it does not make any booking on behalf of its customers itself, that OP No.1 has tie up with various recognized travel agencies and visa consultancy etc. for its customers, that  the representatives of OP No.1 told the complainant that OP No.1 has deputed OP No.2 for booking the flights, hotels, tours etc. for the complainant and his wife, that OP No.2 shall do the said bookings under the control and supervision of OP No.1, that the complainant was to pay the amount to OP No.1, who shall share the said amount with OP No.2 and the other OPs for the tour to be taken by the complainant and his wife, that OP No.1 booked flight tickets for the complainant and his wife with “Aeroflot Airlines”, that the complainant and his wife were to depart from New Delhi on 17.5.2018 to Paris (via Moscow) and were to return to India (New Delhi) from Venice (via Moscow) on 24.5.2018. The complainant further maintained that OP No.1 was to provide visa assistance facility to the complainant, cost of which was included in the total package costs of Rs.2,27,288/-, that since grant of visa is at the discretion of the Embassy concerned, the complainant had made it clear to the OPs  that they should  only hold the air tickets, hotel bookings etc. of the complainant and his wife with the concerned Airline, Hotel etc. and should confirm the same only when the visa is actually granted to the complainant and his wife, that OPs assured the complainant that since the travel plans of any tourist are dependent upon grant of a valid  visa in  their favour, the bookings being made by them are subject to issuance of a valid visa in favour of the complainant and his wife and in case, the visa applications of the complainant and his wife are rejected and the complainant and his wife are unable to travel for want of visa, the amount deposited by the complainant shall be refunded, that OP No.1 forwarded the visa case of the complainant and his wife to OP No. 4 and asked the complainant to submit the requisite documents for grant of visa to OP No.4, with the assurance that OP No.4 shall prepare the case of the complainant and his wife for grant of visa, present the same with the embassy concerned and ensure the complainant and his wife are granted a valid visa by the embassy, that as instructed by OP No.1, the complainant submitted all requisite documents for grant of visa to OP No.4  but OP No.4 delayed the matter on which the representatives of OP No.1 told the complainant that OP No.1 also has a tie up for visa services with OP No.3 and that the complainant should now submit the requisite documents for visa to OP No.3, that as instructed by the representative of OP No.1, the complainant submitted the requisite documents for grant of visa in his favour and in favour of his wife with OP No.3, that in the meantime, the OPs also sent some hotel vouchers and made the complainant pay the entire costs of the tour i.e. Rs.2,27,288/-, that OP No.3 prepared the case for grant of visa   for the complainant  and his wife and submitted the application for grant of visa in favour of the complainant and his wife with the embassy of  Switzerland at New Delhi, that the OPs assured the complainant that the requisite visa shall be granted  by the embassy in favour of the complainant and his wife, that on 15.5.2018, a representative of the OPs informed the complainant through a message that the visa of the complainant and his wife has been processed and that they may collect the same as per their convenience and to proceed with the tour, that on 15.5.2018, the OPs again sent hotel vouchers representing that the hotel bookings for the complainant and his wife have also been done, that the complainant and his wife were asked to collect their passports along with visa as per their convenience and to proceed with their tour, that since the flight tickets of the complainant and his wife were booked for 17.5.2018 at 1.30 hours i.e the night intervening 16.5.2018 and 17.5.2018, the complainant and his wife along with their parents reached Delhi to board their flight and to collect their passport along  with visa on their way to the airport, that after reaching  Delhi, when  the complainant  contacted the representative of OP No.3 for collecting  the passports and visa, the complainant was shocked when the said representative  of OP No.3 told the complainant that infact,  the visa applications of the complainant and his wife have been rejected by the embassy of Switzerland and as such they cannot travel as per plan, that enquiries made by the complainant from the Embassy of Switzerland revealed that infact the visas of the complainant and his wife had been rejected on 14.5.2018 itself, that the OPs were aware  of the fact that the visa applications of the  complainant and his wife have already been rejected but despite that the representatives of the Ops told the complainant that their applications for visa have been processed, that the complainant may collect the same as per  his convenience, that not only this, the OPs sent hotel booking vouchers to the complainant on 15.5.2018 via e mail, when the visa applications of the complainant and his wife were already rejected on 14.5.2018, that  the complainant asked OP No.1 to refund the amount received by it but the OPs have refused to refund the amount paid by the complainant and that as such there is deficiency in service and unfair trade practice on part of the OPs. The complainant has prayed that the OPs be directed to refund the amount of Rs.2,27,288/- to the complainant along with interest at the rate 18% per annum and to pay another amount of Rs.2,00,000/- for mental pain and agony suffered by him. Then complainant sent a legal notice dated 07.06.2018 to the OPs, but it also did not yield any result. In this way there is deficiency in service and unfair trade practice on the part of the OPs. Hence this complaint.

2.             On notice, OP no.1 appeared and filed its written version raising preliminary objections with regard to maintainability; cause of action; jurisdiction and concealment of true and material facts. On merits, it is pleaded OP No.1 is a travel aggregator which facilities holiday bookings by bringing both the customers/users and the service provider i.e. the travel agents (OP No.2 in the present case) on a common platform through its website www.traveltriangle.com, that  OP No.1 is merely an intermediary, as defined under Section 2(1) (w) of the Information Technology Act, 2000, that OP No.1 merely introduced the complainant with the travel agent and visa agencies, that any dispute relating to the trip undertaken by the traveler is required to  be resolved by the traveler and the travel agent/s amongst themselves, that OP No.1 or any of its employee  are not liable for any misconduct, cheating, fraud, breach of agreement or mis- representation on part of the travel agent, that the complainant approached OP No.1 for booking of honeymoon package for himself and his wife for eight days and seven nights from Delhi to Europe (France, Italy, Switzerland) for the period starting from17.5.2018 to 24.5.2018 and had accordingly booked the same on 2.3.2018, that OP No.1 created a trip ID/booking ID No. 2429485 for the complainant, that OP No.1 provided options with respect to suitable travel agents to the complainant, that the complainant selected OP No.2 for the purpose of booking his trip, that the complainant opted for visa application assistance, which was provided by OP No.2 to the complainant through OP No.4, that since the  complainant was not satisfied with OP No.4, OP No.2 thereafter suggested OP No.3  to the complainant, that the complainant submitted his visa application and the visa application of his wife, with the embassy of Switzerland but the same was rejected on 14.5.2018, that the said OP had informed the complainant on 16.5.2018 regarding refusal of visa by the concerned embassy to the complainant and his wife, that as per terms and conditions of refund mentioned on the website as well as on the invoice shared by OP No.1 with the complainant, OP No.1 is not liable to make any refund of the amount paid by the complainant and that as such, OP No.1 is not liable to accede to the request of the complainant and refund the amount paid by him towards his booking/trip. There is no deficiency in service on the part of the OP no.1. The other allegations made in the complaint have been denied by the OP no.1 and prayed for dismissal of the complaint.

3.             It is pertinent to mention here after 07.02.2022 neither on behalf of OP no.1 appeared nor concluded its evidence after availing several opportunities including four last opportunities. Hence, on 09.05.2022 OP no.1 was proceeded against exparte.

4.             OP no.2 and 3 did not appear and proceeded against exparte on 16.01.2020 and 22.05.2019 respectively of the order of this Commission.

5.             Shri Mohit Sharma representative of OP no.4 appeared and filed its written version stating there in that OP No.4 had no dealings whatsoever with the complainant and OP no.4 neither received any documents from the complainant nor OP No.4 ever dealt with the visa applications of the complainant and his wife and prayed for dismissal of the complaint.

6.             Learned counsel for complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of visa refusal letter of Ashish Ex.C1, copy of visa refusal letter of Nidhi Ex.C2, copy of air ticket Ex.C3, copy of invoice Ex.C4, copy of Hotel voucher Ex.C5 to Ex.C8, copy of mail of voucher dated 15.05.2018 Ex.C9, copy of mail Ex.C10, copy of Hotel voucher Ex.C11, copy of E vouchers Ex.C12 and Ex.C13, cop of bank account statement Ex.C14, copy of whatsapp message dated 15.05.2018 Ex.C15, copy of notice dated 07.06.2018 Ex.C16, copy of passport of Ashish and Nidhi Ex.C17 and Ex.C18 and closed the evidence on 15.02.2021 by suffering separate statement.

7.             We have heard the learned counsel for the complainant and have gone through the record available on the file carefully.

8.             From perusal of the pleadings of the parties and the documents placed on record,  it is an admitted case of the parties that the complainant  booked a  Europe tour for himself and his wife (Nidhi) through OP No.1 for a total consideration of Rs.2,27,288/-. The entire amount of Rs.2,27,288/- was actually paid by the complainant to OP No.1, which was deposited by the complainant in the account of OP No.1. It is evident from the bank statement Ex.C14 and the invoice Ex.C4 issued by OP No.1 that OP No.1 has received an amount of Rs.20,000/- + Rs.500/- on 20.3.2018, Rs.80,000/- on 21.3.2018, Rs.65,00/- on 5.4.2018 and Rs.61,788/- on 25.4.2018 i.e. a total amount of Rs.2,27,288/- from the complainant for eight days and seven nights Europe tour, booked by the complainant for himself and his wife   (Nidhi) with OP No.1.  A perusal of the invoice issued by OP No.1 reveals that the amount received by OP No.1 from the complainant includes air fare, hotel booking, airport transfer, train tickets, site seeing, travel insurance and visa assistance. OP No.1 has also undertaken to provide hotel vouchers, processed visa, flight/train tickets, site seeing/activity tickets to the complainant.  OP No.1 has also submitted that being merely an intermediary, which facilitates holiday booking by bringing both the customers/users and the service providers (i.e. the travel agent) on a common platform through its website www.traveltriangle.com In the present case, OP No.1 merely has introduced OP No.2  to the complainant. Therefore, any agreement between the complainant and OP No.2 is a bipartite agreement and  for any such breach of agreement or misrepresentation  on the part of OP No.2, provides no cause to the complainant  to file the present complaint against OP No.1.The said defence of OP No.2 is not legally sustainable. As discussed above, the entire amount for the tour was received by OP No.1 itself in its bank account on various dates from the complainant. Merely because, OP No.1 is a travel portal, it cannot escape from its liability in respect of any dealing/s that took place on its online portal. The Hon’ble National Commission in case titled as M/s Hello Travel Versus Harish C. Jain and another 2020(1) CPR 736 held that “In the instant case also, admittedly the appellant/opposite party No.2 is an online discovery platform, which works like a search engine namely www.hellotravel.com. As such, it also cannot escape its liability and take benefit by merely saying that it is not privy to the negotiation, offer, acceptance, payment which took place between opposite party No.1 and the complainant. It is the kind of selling or service provider platform. It has to ensure the quality of the product coming to its platform for sale or the service, which is being provided through it by third party. By ensuring the quality of product and the services hired through their website/portal to the complete satisfaction of the consumers, they can fetch more confidence. It is generally seen that lot of complaints qua the products purchased online or services hired are increasing day by day, which is creating a shabby picture of online selling portals/ search engines”

9.             In the present case, not only the entire money has been received by OP No.1 from the complainant, a perusal of the invoice issued by OP No.1 Ex.C4 reveals that the entire responsibility of the tour was upon OP No.1. OP No.1 in its reply, pleaded that after due deductions of its commission, it had made payment to OP No.2 for the trip booked by the complainant, but no evidence whatsoever has been put forth by OP No.1 in this regard.

10.           It has been proved on record that the complainant and his wife could not travel to Europe since they were not granted visa by the Embassy of Switzerland and without a valid visa, the complainant and his wife could not visit to the country concerned. Furthermore, the OPs have failed to produce any evidence before this Commission so as to show that how much money was paid by the OPs to the airlines or to the hotels for booking the air tickets and hotel room/s for the complainant and his wife even more the OPs have not led any evidence to prove that the air tickets, the hotel rooms and the city tour booked by the OPs for the complainant were non refundable upon abandonment of tour for want of a valid visa to the complainant and his wife, the airlines or the hotel/s concerned or the city tour operator/s booked by the OPs for the complainant and his wife, refused to refund the amount deposited by the OPs, if any, to the OPs.  Infact, even in the reply filed by OP No.1 to the complaint, OP is completely silent in this regard. The fact, that the visa applications of the complainant and his wife have been rejected only on 14.5.2018 i.e. only two days prior to their planned departure, shows the negligence on the part of OPs by not assisting the complainant and his wife to obtain a valid visa from the embassy concerned.  The complainant has placed on record e-mails and hotel vouchers, sent by the OPs to him. A perusal of the hotel vouchers sent to the complainant  by the OPs vide the said emails reveals that the hotel vouchers initially sent to the complainant by the OPs and the hotel vouchers sent vide e mail dated 15.5.2018 are different. No explanation whatsoever has come forth from the OPs as to how different vouchers regarding hotel booking were sent to the complainant. Moreover, when the visa of the complainant and his wife were already rejected by the concerned embassy on 14.5.2018, there was no reason for the OPs to send hotel vouchers to the complainant vide email dated 15.5.2018.  It appears that by coming to know about the rejection of the visa applications of the complainant and his wife, the OPs have manipulated hotel vouchers and has sent the same to the complainant on 15.5.2018, with the malafide intention for creating evidence that the money deposited by the complainant cannot be refunded as the OPs have made the hotel bookings.

11.           To rebut the evidence produced by the complainant, OPs have not placed on record any evidence and opted to be proceeded against exparte. Hence, the evidence produced by the complainant are unchallenged and unrebutted and there is no reason to disbelieve the same. It has also been proved on record that all payment was given to the OP no.1 by the complainant.  Thus, the act of the OP no.1 amounts to deficiency in service and unfair trade practice and the complainant is entitled for the refund of Rs.2,27,288/- alongwith compensation on account of mental harassment suffered by him and litigation expenses.

12.           Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OP no.1 to refund the amount of Rs.2,27,288/- to the complainant alongwith interest @ 9% per annum from the date of deposit till its realization.  We further direct the OP no.1 to pay Rs.25,000/- as compensation on account of harassment and mental agony suffered by him and Rs.11,000/- for litigation expenses. This order shall be complied with within 45 days from the receipt of copy of this order till its realization. Complaint qua the OP no.2 to 4 stands dismissed. The parties concerned be communicated of the order accordingly and the file be consigned to record room after due compliance.

Dated:29.06.2022                                                                     

                                                                 President,

                                                      District Consumer Disputes

                                                      Redressal Commission, Karnal.

 

 

(Vineet Kaushik)        (Dr. Rekha Chaudhary)    

                     Member                    Member