Delhi

East Delhi

CC/131/2017

BRIG PRABODH CHANDER - Complainant(s)

Versus

ILTC TRAVELS - Opp.Party(s)

12 Feb 2020

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. NO. 131/17

 

1. Brig. Prabodh Chander Agnihotri (Retd.)

S/o Late Hon’ble Justice Mr. Om Prakash

House No. 8, Sector-28, Noida – 201301, UP

 

2. Smt. Shashi Agnihotri                                                         

W/o Brig. Prabodh Chander Agnihotri (Retd.)

House No. 8, Sector-28, Noida – 201301, UP           ….Complainants

 

Vs.    

 

ILTC Travels Pvt. Ltd.

Through its Managing Director

202-203, Kanishka Commercial Complex

Saini Enclave, Community Centre

Vikas Marg, New Delhi – 110 092                                  …Opponent

 

 

Date of Institution: 30.03.2017

Judgement Reserved on: 12.02.2020

Judgement Passed on: 18.02.2020

 

CORUM:

Sh. Sukhdev Singh (President)

Dr. P.N. Tiwari (Member)

Ms. Harpreet Kaur Charya (Member)

 

Order By: Sh. Sukhdev Singh (President)

 

 

JUDGEMENT

          This complaint has been filed by Brig. Prabodh Chander Agnihotri (Retd.) and Smt. Shashi Agnihotri against M/s. ILTC Travels Pvt. Ltd. (OP) under Section 12 of the Consumer Protection Act, 1986 with allegations of unfair trade practice and deficiency in service. 

2.       The facts in brief are that the complainants Brig. Prabodh Chander Agnihotri (Retd.) and Smt. Shashi Agnihotri, on the assurance of M/s. ILTC Travels Pvt. Ltd. (OP), agreed to avail the China tour package i.e. 7 nights and 8 days, alongwith some of their friends as a group and the tour was finalized from 22.09.2016 to 29.09.2016.  They paid for the hotel booking charges amounting to Rs. 49,916/- against invoice no. H1600077.  They also paid air fare amounting to Rs. 81,484/- vide invoice no. I1600071 dated 15.09.2016 alongwith Visa fees, misc. bookings and travel insurance of Rs. 59,600/- vide invoice no, M1500092 dated 15.09.2016.  Thus, the complainant had paid a total sum of Rs. 1,91,000/- to M/s. ILTC Travels Pvt. Ltd. (OP).

          It has been stated that the complainants had done all necessary arrangements for the China tour, but unfortunately on 15.09.2016, both the complainants fell ill and went down with severe fever and pain and after diagnosis, it was revealed that the complainants were suffering from Chickenguniya which was prevailing widely in Delhi NCR region at that point of time.  Due to high fever and severe pains, they were compelled to stay at home.  They informed to M/s. ILTC Travels Pvt. Ltd. (OP) on 18.09.2016 with the request to cancel the tour package which they had booked which was acknowledged by M/s. ILTC Travels Pvt. Ltd. (OP).

          On 20.09.2016, the complainants again wrote to M/s. ILTC Travels Pvt. Ltd. (OP) regarding cancellation of visit as they were not in a position to avail the tour package due to the aforesaid disease.  M/s. ILTC Travels Pvt. Ltd. (OP) in response to their request stated that they will refund  certain amounts after deduction of cancellation charges.  They cancelled the booking of the complainants on the same day itself.

          It has further been stated that the complainants repeatedly requested OP to refund the amount paid by the complainants in respect of booking of tour package, but they did not refund the same without assigning any cogent reason.  They have not given any account which would manifest that they have suffered a loss from cancellation of booking of tour package.  They could not have deducted such huge amount from the complainants without good faith and making any efforts towards mitigating any loss, imaginary or otherwise. 

It has also been stated that they were told by their friends who have availed the tour package that the flights to and fro were fully booked and the hotels did not have any vacant room during their visit.  Therefore, there was no justification on the part of M/s. ILTC Travels Pvt. Ltd. (OP) in not refunding the entire amount paid by the complainants. 

It has been stated that on the principle of law that force majeure/act of God was exception for the cancellation of contract.  They were guilty of indulging in mal practice in refusing to refund the entire amount.  This act amounts to deficiency of service on their part.  Thus, the complainants have prayed for refund of the amount of Rs. 1,91,000/-; compensation of          Rs. 1,00,000/- on account of mental and physical harassment and towards deficiency in service and Rs. 25,000/- towards cost of litigation.         

3. In the written statement, filed on behalf of M/s. ILTC Travels Pvt. Ltd. (OP), they have stated that there was no deficiency on their part as the group bookings which had been carried out by them for the travel of the complainant and other members of the group had been carried out / executed fully and all other members of the groups had travelled to the destination i.e. China.  There was no complaint with regard to the travel arrangements or other services rendered by them.  They had cancelled the tour at the last minute which attracted 100% cancellation clause.  Hence, no refund was payable or could be paid as such.  They have made reference to cancellation clause which was brought to the notice of the complainants.  The said clause says:

“If circumstances force you to cancel the tour, the cancellation must be intimated to us in writing.As per the booking condition of the tour, we are constrained to levy the following cancellation charges per person.

Cancellation or Postponement charges per person will be applicable as follows:

• 31 days and more prior to departure date INR 5000 + Normal Ticket Cancellation charges.
• 30-16 days prior to departure date: 50% of the total cost
• 15-8 days prior to departure date : 75% of the total cost
• 7-0 days prior to departure date : 100% cancellation will apply
• Visa Fee and Service charges are non-refundable
• No refund either in part or in full will be made for any unused part of the services provided in the package.
• Overseas Insurance Policy after issuance is non-refundable.
• The above policy will change in case of Hong Kong, GENTING Highlands, Maldives and some other destinations where 100% cancellation shall be applicable after confirmation
• Cancellation charge for Air Tickets or Cruise shall apply as per Airlines Cancellation Policy or Cruise Cancellation Policy as the case is which will be over and above the above cancellation charges.
• Once booking is confirmed during Super Peak period (Christmas and New Year Period between 22^nd December and 3^rd January) cancellation fee of 75% of the Tour Cost will be charged for all bookings cancelled within 45 days of Travel.
• We cannot be held responsible for any ‘Refusal of Visa / Refusal of On-Arrival Visa / Delay in issuance of Visa and applicable cancellation charges shall apply accordingly.”

 

Their role as a tour operator was of making travel arrangements.They have given the details to the passengers in respect of flights/hotel bookings.They have not denied the payment which they have received.

They have stated that the complainants have been refunded an amount of Rs. 16,020/- which could be refunded.They have denied other facts also.

4.       Complainants have filed rejoinder to the WS of OP, wherein they have controverted the pleas taken in the WS and reasserted their pleas.

5.       In support of its case, the complainant Brig. Prabodh Chander Agnihotri have examined himself.  He has deposed on affidavit.  He has narrated the facts which have been stated in the complaint.  He has also got exhibited copy of invoice no. H1600077 dated 15.09.2016 of              Rs. 49,916/- (Ex.CW1/1), copy of invoice No. I1600071 dated 15.09.2016 of Rs. 81,484/- (Ex.CW1/2), copy of invoice No. M1500092 dated 15.09.2016 of Rs. 59,600/- (Ex.CW1/3), medical record of the complainants  (Ex.CW1/4), copy of emails exchanged between the complainant and OP (Ex.CW1/5 colly), copy of legal notice dated 20.01.2017 and postal receipts (Ex.CW1/6 colly), copy of proof of delivery (Ex.CW1/7) and copy of reply dated 08.02.2017 (Ex.CW1/8).

          Complainant Smt. Shashi Agnihotri have also been examined.  She has also deposed on affidavit and exhibited the same documents as exhibited by Brig. Prabodh Chander Agnihotri. 

          In defence, OP have examined Ms. Yovita Jha, Director of OP, who have also deposed on oath.  She has narrated the facts which have been stated in the written statement.  She has also exhibited copy of detailed China itinerary with terms and conditions relating to the tour package (Ex.RW-1/1),  copy of email dated 11.07.2016 (Ex.RW-1/2), copy of China Visa (Ex.RW-1/3) and its communication through email dated 13.09.2016 (Ex.RW-1/4), copy of emails dated 18.09.2016 and 22.10.2016 (Ex.RW-1/5 & 1/6), copy of emails and communication between the parties (Ex.RW-1/7 colly.) and air tickets (Ex.RW-1/8).

6.       We have heard Ld. Counsel for the complainant, Ld. Counsel for OP and have perused the material placed on record.  At the outset, counsel for OP have stated that they have refunded an amount of Rs. 16,020/- which was permissible under the terms and conditions of the tour package.  The counsel for complainant have stated that though OP have refunded an amount of Rs. 16,020/-, but the complainants were entitled for refund of the total amount which was paid by them for their tour package. 

          The arguments which has been advanced on behalf of OP has been that under their terms of booking of the tour package, no cancellation would be entertained and no refund would be made if the tour was cancelled within 7 days of the departure date which was brought to the notice of the complainant at the time of booking.  They intimated on 18.09.2016, 4 days prior to the tour which was from 22.09.2016 to 29.09.2016.

          To appreciate the arguments of Ld. Counsel for the parties, a look has to be made to the testimony of the complainants viz. Brig. Prabodh Chander Agnihotri (Retd.), Smt. Shashi Agnihotri and Ms. Yovita Jha of M/s. ILTC Travels Pvt. Ltd. (OP).  In the testimony of Brig. Prabodh Chander Agnihotri (Retd.), he has stated that they have paid a total sum of Rs. 1,91,000/- for the China tour package which was booked with OP, but could not avail the tour due to chickengunia disease as they had fallen sick on 15.09.2016.  They have placed on record the medical record       (Ex.CW-1/4).  They informed to OP on 18.09.2016 through email.             Ms. Yovita Jha have admitted in her testimony that the information was given by the complainant on 18.09.2016.  She has placed on record the terms and conditions of tour package (Ex.RW-1/1) which contains the cancellation policy.

          It is admitted fact of both the parties that the cancellation of tour by the complainants was due to their suffering from chickengunia disease. However, the bone of contention between the parties has been that as per the terms and conditions of the tour package, the case of the complainants fall within 100% cancellation charges per person as the intimation was given 4 days prior to the departure.  If the terms and conditions of the tour package (Ex.RW-1/1) are gone into, it is noticed that there has been 100% cancellation charges per person for the time period with regard to the departure date i.e. 7-0 days prior to the departure date.  Thus, as per this clause, the complainants were not entitled for any refund.  However, this complaint raises certain issues such as OP having cancelled the airlines tickets as well as hotel bookings, no evidence has been placed on record by OP as to whether they have received any amount on cancelling the air tickets as well as the hotel bookings.  OP have been silent in their written statement as well as in their evidence.  These issues are such which require a trial. 

          In view of the above, we are of the opinion that the complaint requires a trial.  That being so, the same was not maintainable and is dismissed.  There is no order as to cost.

Copy of the order be supplied to the parties as per rules.

          File be consigned to Record Room.

 

 

 

(DR. P.N. TIWARI)                                               (HARPREET KAUR CHARYA)

       Member                                                                             Member 

 

(SUKHDEV SINGH)

                   President