Haryana

Kurukshetra

CC/36/2021

Vivek Mittal S/o Nirmal Kumar Mittal - Complainant(s)

Versus

Jalesh Cruises - Opp.Party(s)

Ashok Bansal

08 Jul 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION  KURUKSHETRA.

 

Consumer Complaint No.36 of 2021

Date of Instt.:  27.01.2021

Date of Decision:  08.07.2021.

 

Vivek Mittal aged about 35 years, son of Sh.Nirmal Kumar Mittal, resident of 1^st Floor, House No.336, Sector -7, Urban Estate, Kurukshetra, Haryana.

                                                              …….Complainant.  

                                             Versus

1.Jalesh Cruises, Zen Cruises Pvt.Limited, GSA for Jalesh Cruises 18^th Floor, A Wing Marathon Futurex, N M Joshi Marg, Lower Parel, Mumbai – 400013.

 

2. Akbar Travels of India, Pvt.Limited, Head office: Akbar Bhavan, 69-71, Janjikar Street, Near Crawford Market, Mumbai – 400003.                                                                                                                                                                                      

                                                                ….…Opposite parties.

 

               Complaint under Section 35 of Consumer Protection Act.

 

Before       Smt. Neelam Kashyap, President.    

                   Ms. Neelam, Member.       

                   Shri Issam Singh Sagwal, Member.                     

 

Present:     Sh.  Ashok Bansal  counsel for the complainant.

                Opposite Parties ex-parte.

               

 ORDER

                   This is a complaint under Section 35 of the Consumer Protection Act, 2019    moved by the complainant Vivek Mittal    against Jalesh Cruises etc - the opposite parties.

 

2.             In brief, the case of the complainant is that the  OP No.2 is authorized agent of OP No.1  and  believing upon the publicity of the OPs, vide  Book Reference Numbers JAL401283309232 and No.JAL401283309236 the complainant had planned to visit Diu on the Cruise Ship Sailing Mumbai –Diu-Mumbai of the OPs with his  wife, kids and parents. The father of the complainant is practicing  in Supreme Court of India and he adjourned his work by not fixing the cases during the period 23 of May 2020 to  30^th of May 2020 which includes the sailing period. All of a sudden OP No.1 had cancelled the said sailing of the Cruise Mumbai-Diu-Mumbai without conveying any reason to the complainant. The complainant had paid a sum of Rs.99,900/- to the OP No.2 against this booking in  advance.  The  complainants were asked to reach Mumbai from their native place i.e. from Gurgaon by arranging their own means and accordingly the complainant had booked 5 air tickets  with Air Asia Airline to complete the journey from Gurgaon to   Mumbai  and for return from Mumbai to Gurgaon by paying the sum of Rs.37,095/- and the said tickets were purchased as per promise of the OPs for sailing programme.   It is further stated that on cancelling the said cruise sailing instead of refunding the amount paid  by the complainant and to compensate the complainant on account of sudden cancellation of the cruise sailing, the OPs had falsely claimed a new cruise  sailing for the new dates for  sailing Mumbai –Goa-Mumbai and in such circumstances the complainant was forced to agree with new plan of the OPs which was given by the OPs by getting more amount from the complainant. The OPs have  charged a  further sum of Rs.26,100/- from the complainant in addition to the earlier amount paid by the complainants. The OPs have put this drama only to enjoy the hard earned money of the complainant without any plan of cruise sailing on the respective dates. The complainant had demanded  the voucher from the new sailing plan from the OPs which they kept  delaying and instead the OP No.2 had sent a receipt pertaining to one Mr. Kunal Gaikwad.  When the complainant approached the OPs again and again for   vouchers for the new plan, only the OPs sent  the  vouchers on 11.3.2020. The complainant was thus compelled to change their plan according to new sailing dates.   The OPs did not stop their fraudulent activity here and again the complainant  received an intimation from the OP No.1 & 2 that the OPs have again cancelled the plan of their cruise sailing from 26.5.2020 to 29.5.2020 which resulted into cancellation of the complete plan of the complainant and his family  and this fact caused disturbance  to all of them.  To retain the hard  earned money of the complainants, the OPs  had  represented the complainant that they are planning the said  cruise sailing in the month of September 2020 and told the complainant that new dates shall be notified with up gradation of the room category but the OPs did not send any new voucher to the complainant. Ultimately, the complainant got fed up and decided not to have any journey with the OPs  in the  so called plan of cruise sailing of the OPs in September 2020. Believing the cruise  sailing of the OPs in May 2020, the complainant had purchased non refunding air tickets spending  Rs. 37,095/- . The said amount if non refundable  as such the loss suffered by the complainant on account of expenditure  made on the said tickets is also recoverable  from the OPs  as the same is totally connected and was  dependent on the cruise sailing of the OPs.  The complainant had requested the OPs to refund the sum of Rs.1,26,000/- alongwith Rs.37095/- the cost of air tickets and to pay compensation to the complainant  vide e-mail  dated 24.4.2020  but in reply to the said e-mail, OPs have claimed that they are not liable to pay the amount spent by the complainant on  Air Tickets on the ground that the OPs have asked the complainant to come  at his own means upto Mumbai. The said reply of the OPs is false and the OPs are bound to pay the entire amount paid and spent by the complainant.  However, the OP No.1  had asked the OP No.2 to refund the amount paid by the complainant directly.  The period of 15 days have expired but needful has not been done by either of the OPs  which amounts to unfair  trade practice and also amounts to deficiency in services on the part of the OPs. The complainant  also got issued a notice dated 11.5.2020  through registered post calling upon the OPs to do the needful and the OP No.2 had sought 10/15 days time to make the refund vide e-nail dated 12.5.2020.  Inspite of undertaking to refund the amount, the amount has not been  refunded and in reply to another legal notice dated 10.8.2020, the OP No.1 had denied their liability and had taken a new stand that OP No.2 did not pay the amount collected by him from the complainant to OP No.1 and as such the OP No.2 who is only liable to pay the amount vide reply dated 13.8.2020.  Inspite of repeated representation and written request dated 14.12.2020, none of the OPs had paid any amount to the complainant and as such  an act on the part of the OPs amounts to deficiency in services  and unfair trade practice on the part of OPs and the complainant is entitled to the refund of the entire amount paid by him and also for the compensation for the mental harassment caused to the complainant and for the litigation  expenses. Thus, the complainant has filed the present complaint against the OPs alleging deficiency in services and unfair trade practice on the part of the OPs and has claimed refund of the amount paid and spent by him and compensation for the mental harassment  caused to the complainant.

 

3.             Notice of the complaint was issued to the OPs, but the OPs failed to appear and contest the case despite due service. Therefore, OPs were proceeded against ex-parte vide order dated: 8.03.2021.

 

4.             The complainant in support of his case has filed his affidavit Ex.CW1/A and tendered documents Ex.C-1 to Ex.C-10.

 

5.             We have heard the learned counsel for the  complainant and  have gone through the material available on the case file.

 

6.             The learned counsel for the complainant has argued that 2 is authorized agent of OP No.1  and  believing upon the publicity of the OPs, vide  Book Reference Numbers JAL401283309232 and No.JAL401283309236 the complainant had planned to visit Diu on the Cruise Ship Sailing Mumbai –Diu-Mumbai of the OPs with his  wife, kids and parents.  It is further argued that  father of the complainant is practicing in Supreme Court of India and he adjourned his work by not fixing the cases during the period 23 of May 2020 to  30^th of May 2020 which includes the sailing period. All of a sudden OP No.1 had cancelled the said sailing of the Cruise Mumbai-Diu-Mumbai without conveying any reason to the complainant. It is also argued that the  complainant had paid a sum of Rs.99,900/- to the OP No.2 against this booking in  advance vide receipts Ex.C-1 to Ex.C-2.  The complainants were asked to reach Mumbai from their native place i.e. from Gurgaon by arranging their own means and accordingly the complainant had booked 5 air tickets  with Air Asia Airline to complete the journey from Gurgaon to   Mumbai  and for return from Mumbai to Gurgaon by paying the sum of Rs.37,095/- and the said tickets were purchased as per promise of the OPs for sailing programme.   It is further stated that on cancelling the said cruise sailing instead of refunding the amount paid  by the complainant and to compensate the complainant on account of sudden cancellation of the cruise sailing, the OPs had falsely claimed a new cruise  sailing for the new dates for  sailing Mumbai –Goa-Mumbai and in such circumstances the complainant was forced to agree with new plan of the OPs which was given by the OPs by getting more amount from the complainant. The OPs have  charged a  further sum of Rs.26,100/-vide Ex.C-3 from the complainant in addition to the earlier amount paid by the complainants. The OPs have put this drama only to enjoy the hard earned money of the complainant without any plan of cruise sailing on the respective dates. The complainant had demanded  the voucher from the new sailing plan from the OPs which they kept  delaying and instead the OP No.2 had sent a receipt pertaining to one Mr. Kunal Gaikwad.  When the complainant approached the OPs again and again for   vouchers for the new plan, only the OPs sent  the  vouchers on 11.3.2020. The complainant was thus compelled to change their plan according to new sailing dates.   The OPs did not stop their fraudulent activity here and again the complainant  received an intimation from the OP No.1 & 2 that the OPs have again cancelled the plan of their cruise sailing from 26.5.2020 to 29.5.2020 which resulted into cancellation of the complete plan of the complainant and his family  and this fact caused disturbance  to all of them.  The complainant got legal notice Ex.C-4 served upon the OPs.  He also sent  E-mail Ex.C-5 dated 12.5.2020  and in reply to the legal notice the OPs sent reply Ex.C-6 and acknowledged the right of  refund of the amount but nothing has been done by the OPs. Ex.C-7 is the cancellation letter issued by the complainant to the OPs and asking them to refund the amount of booking alongwith  air tickets booking amount. Ex.C-8 is the copy of  court notice requesting the OPs to refund the entire amount. Ex.C-9  and Ex. C-10 are the tracking record to consignment. 

 

7.             Thus, from  the arguments advanced on behalf of the complainant, it is clear that the complainant made booking for sailing  with the OP no.1 through the OP No.2 but the OPs failed to  provide services. Even as per changed plan offered by the OPs themselves, the OPs also failed to provide the services. The OPs vide reply of the notice Ex.C-6 acknowledged the right of refund but even the OPs failed to refund the amount  paid by the complainant. Vide receipts Ex.C-1, the complainant deposited the sum of Rs.25000/- with the OPs and vide Ex.C-2 deposited a sum of Rs.74,900/- as booking amount. The complainant also  got deposited the sum of Rs.26,100/- vide receipt Ex.C-3 with the OPs for the changed plan as offered by the OPs. Thus, the complainant in total deposited a sum of Rs.1,26,000/- for the sailing plan. The OPs failed to provide the services of sailing to the complainant despite their admission in Ex.C-5, email.  The complainant also paid a sum of Rs.37095/- for the booking of air tickets Air Asia Airlines for the said tour and the said amount was paid as non refundable. As the plan of sailing has been cancelled due to mistake of the OPs which amounts to deficiency in services and an Act of Unfair Trade Practice on  the part of OPs, therefore, OPs are also liable to  pay this amount of Rs.37095/- to the complainant. Besides, this the OPs are also liable to pay the compensation for the mental agony and pain suffered by the compensation and the litigation expenses for the deficiency in services on the part of OPs and unfair trade practice committed by the  OPs.

 

8.             There is nothing on record to rebut the version put forwarded by the complainant because the OP did not appear to contest the case. Court notice was sent to the OPs and as per track consignment record Ex.C-9 and Ex.C-9, the court notices were duly received by them but they failed  to appear and contest the case. Therefore, OPs were proceeded against ex-parte vide order dated: 8.03.2021.

 

9.             In view of our above mentioned findings and observations,  there is deficiency in services  and An act of Unfair Trade Practice on the part of OPs is made out, therefore,  we accept the present complaint and direct OPs to  refund the sum of Rs.1,26,000/-  paid for the sailing plan to the OPs alongwith  Rs.37095/- charges paid by the compliant for purchase of Air  tickets. The OPs are further directed to pay the sum of Rs.10,000/- to the compensation for the mental agony and pain cause to him  alongwith a sum of Rs.5000/- as litigation expenses. The OPs are  further directed to make the compliance of this order within a period of thirty days from the date of preparation of certified copy of this order, failing which, the complainant will be at liberty to initiate proceedings under Section 72/75 of the Act against the OPs. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the record-room, after due compliance.

 

Announced in open Commission:

Dt.: 8.07.2021                                                    (Neelam Kashyap)

                                                                                 President.

 

 

(Issam Singh Sagwal),         (Neelam)       

Member                               Member.