BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT

C.C.No: 414/2012     Filed on 22.11.2012

ORDER DATED: 29.06.2018

Complainant:

(Party in person)

Opposite party:

(by Adv. Asokkumar J.S.)

This C.C having been heard on 18.05.2018, the Forum on 29.06.2018 delivered the following:

ORDER

SMT. LIJU B. NAIR, MEMBER:

Case of the complainant is that complainant was attracted by the tour package offered by the Make My Trip – Grand tour of Europe Summer, 2012 (14N 15 D) by its representation and advertisements and complainant paid advance amounting to Rs.32,000/- for making the booking.  The package was offered at Rs.1,59,990/- per person and the offer was inclusive of visa charges.  After realising Rs.32,000/- attempt was made to realise more money by bringing in untenable terms.  On 06.02.2012 the complainant made an advance payment of Rs.32,000/- and got a confirmation voucher with booking No.NL 208122730 which confirmed the following terms and conditions

• Package cost is Rs.3,19,980/- and amount paid is Rs.32,000/-
• Balance payment to be made is Rs.2,87,980/-
• Remaining amount of Rs.2,87,980/- should be paid latest by 8^th May, 2012.
• Pricing of package is based on the age of passengers.  There is no mention of any Euro component.

After the advance payment was made, Ms. Shweta Grover of opposite party contacted the complainant and advised to apply for UK visa and on 21.02.12 the complainant sent an e-mail that “I was initially given to understand that the package includes visa charges”.  Since there was no response the consumer reminded her on 23.02.12 that “Have not received any response to my e-mail of 21.02.12.  Looking forward to get confirmation from you that the package cost includes visa charges and you shall be making the application for visas.  Even today your website says that the package cost includes visa charges”.  Subsequently, the complainant was informed over phone that the visa charges would be borne by the opposite party and the complainant obtained the UK visa spending Rs.13,200/- but the opposite party showed willingness to accept a lesser claim of Rs.12,200/- only.  On 12.03.12 Ms. Shweta Grover, an official of the opposite party, advised the complainant to make immediate payment of 69780 INR + 3178 Euros, in violation of original understanding that the balance amount due of Rs.2,87,980/- is to be paid in Indian rupees and that the payment should be made latest by 8^th May 2012.  The complainant had promptly sent a reply mail.  There upon the opposite party had promised to give the complainant the exact amount to be tendered.  On 2^nd May the complainant received a reply stating falsehood and untenable unilateral terms and conditions and a dead line was communicated for payment of enhanced amount not agreed upon or represented by the opposite party.  The opposite party’s ultimatum to respond by 5.00 p.m. on 02.05.2012 was totally unjustified when the opposite party originally agreed that the complainant can make the payment by 8^th May 2012.  On 12.03.2012 the complainant pointed out that as per the confirmation voucher of the opposite party, the payment demanded was only Rs.2.87 lakhs and it was only after 2 months that complainant got an ultimatum to pay within few hours.  The complainant had responded to the mail dated 02.05.12 pointing out that the website of the opposite party stating slashing of cost from Rs.1,99,990/- to Rs.1,67,990/- per person on twin sharing basis still exists.  The complainant owed a clarification from the opposite party for the above response but there has been no further communication admitting the representation.   The complainant had made the initial booking on 06.02.12 and made preparations for the vacation months earlier.  The cancellation tantamount to shattering the long dreamt vacation in Europe leading to notable amount as cancellation charges for the separate bookings made for Trivandrum – Mumbai and back and the hotel booking expenses at Rs.13,200/- and money spent for booking UK visa.  The mail dated 09.05.12 the complainant expressed willingness to take the trip at the published cost of Rs.1,67,990/- to which the reply was that the booking is cancelled.   Immediately the petitioner responded through e-mail on 09.05.2012 requesting the opposite party to accommodate him since the package is still open for sale as seen from the website of the opposite party also stating that the opposite party is not empowered or competent to cancel the trip whereas time to make the balance payment agreed was 8^th May 2012.  The request to return the payment was also denied without any rhyme or reason or justification to do so as to make unfair enrichment.  The acts and omissions to trap customers offering lowest fare and later force them to pay more cannot be justified at all.  Terms given was to make final payment by 8^th May 2012 whereas booking had already been cancelled on 2^nd May itself perpetuating unfair trade practice and unscrupulous exploitation.  The opposite party deliberately lays trap and innocent customers are falling a prey to the fraudulent deals.  The opposite party made unfair enrichment at Rs.32,000/- and caused loss to the tune of Rs.15,200/- and the complainant is entitled to a compensation for injury and the mental agony caused as the whole incident caused irreparable injury, loss, mental agony, sufferings and financial loss and the opposite party is liable to pay punitive damages and compensation claimed at Rs.3,20,000/-.

The booking was made online.  The website of the opposite party very clearly specifies the rates and dates section that the charges include EURO component also.  The invoice issued at that time to the complainant was based on the ROE applicable at the time of booking, which was subject to change and the same is very clearly mentioned in the terms and conditions highlighted at the payment page.   The screenshots are attached with the reply.  The said fact also finds mentioned in the tour itinerary shared with the complainant vide separate e-mail after the online booking.  The complainant never raised any objection with regard to the terms and payment of the booking at that time and as such stopped from alleging to the contrary.  The contents of the para 2 of the complaint is denied as wrong and incorrect.  It is submitted that as per the policy of UK embassy the passenger travelling must himself apply for the visa.  The opposite party only acts as a facilitator in any case and had helped the complainant to assemble all the documents and guided him in applying the UK visa; as evident from the e-mails on record.  Further, Schengen visa was processed by the opposite party.  The opposite party agreed that a sum of Rs.12,200/- is to be taken into account for obtaining UK visa, but later the complainant is claiming Rs.13,300/- against the agreed understanding.  The opposite party asked the complainant to pay as per the terms of the booking, which was well within the knowledge of the complainant.  The demand was made by the opposite party; as the prior bookings and planning are required for the tour.  The complainant was in agreement with the terms initially, however subsequently in order to wriggle out of the liability raised false and frivolous issues viz; the booking amount.  The amount quoted to the complainant was same, which was informed to the complainant at the time of online booking.  it is submitted that the complainant had problem in paying the Euro component and was not agreeing to pay the amount as quoted by us at all.  The complainant is raising false and frivolous issues of payment to be made by 08.05.2012 and / or by an earlier date.  In any case, the opposite party had asked the complainant to agree for the payment and asked him to confirm the same.  Instead of confirming the payment, the complainant demanded refund of the advance paid.  As there was no confirmation and response from the complainant, the opposite party was left with no other alternative but to release/cancel the bookings.  That the complainant for the first time raised the dispute with regard to the amount to be paid vide his e-mail dated May 2, 2012.  The complainant stated he shall not pay further amount and requested to refund the advance amount.  In reply to the e-mail of the complainant, the opposite party vide e-mail dated informed as follows:  “As discussed, please note that our website as well the PDF sent to you on my first mail clearly states that Euro if taken as INR then current ROE will be taken at the time of payment.  Also, the booking form signed by you states that the initial amount paid is non-refundable.  Please advise your final decision before 5.00 p.m. today; else we are bound to release your booking.  Your initial amount is non-refundable, non-exchangeable, non-adjustable”.  Despite, the above clarifications, the complainant continued with his illogical demand and did not confirm as requested vide e-mail dated May 2, 2012 of the opposite party.  In view thereof, the opposite party had release the booking.  The same was communicated to the complainant vide e-mail dated May 3, 2012.  It is specifically denied that the cancellation of the trip tantamount to shattering the long dreams vacation.  The complainant is solely responsible for the cancellation of the tour.  Further, on account of the cancellation, the opposite party had to suffer huge loss in terms of business.  It is submitted that after a gap of 6 days, the complainant vide e-mail dated May 9, 2012 stated that he is ready to take the trip if opposite party agree to the presently displayed rate of Rs.1,67,990/- with no frills attached.  The opposite party vide e-mail of the even date informed the complainant that the booking had already been released; as mentioned in previous communication.  It is denied that opposite party has laid any trap and anyone is falling a prey to the same.  It is reiterated that the opposite party did not receive any confirmation from the complainant with regard to payment; hence it was assumed that the complainant is not agreeing to the price and will not pay.  Due to lack of assurance from complainant, the opposite party was not left with any option but to cancel his booking otherwise opposite party would have undergone major loss for this booking.  The complainant should have at least given some assurance that he will pay till 08.05.2012; so that the bookings could have put on hold till such time.  The complainant is raising false and baseless issues, without any merit.  The opposite party acted as per the terms of the booking and it is the complainant, who had failed to adhere to the terms thereof.

Issues

1. Whether there is any deficiency in service from the part of the opposite party is proved?
2. Reliefs and costs if any?

Issues (i) and (ii)

          Complainant filed affidavit along with 6 documents which were marked as Ext. P1 to P6.  Opposite parties also filed affidavit and exhibits D1 to D13 were marked from their sides.  Perused the documents, gone through rival sides.  The complaint is with regard to the breach of the offer made by the opposite party through the website of the opposite party offering the tour package at Indian rupees, their website showing package cost of Rs.1,59,990/- per person and the website display appeared exactly as follows:

Starting from

Rs.1,99,990 Rs.1,59,990

(per person on twin sharing)

The main dispute is with regard to the payment in Euro.   There was no mention of Euro component on the main menu that appeared as above.  Moreover the tour package was offered at a discount calling the same as “early bird” offer.  The complainant had effected the online booking on 06.02.2012 and remitted the advance payment of Rs.30,000/-.  It was only on 12.03.12, for the first time, Ms. Shweta Grover, representative of the opposite party advised the complainant to make immediate payment of 69,780 INR + 3178 Euros.  This was a violation of the original undertaking by the opposite party that Rs.1,59,990/- is to be paid in Indian rupees and that the payment time be latest by 8^th May 2012.  The complainant had promptly sent the opposite party a reply that “I am copying below your e-mail of 6^th February 2012.  The rate indicated now amount to around Rs.1.66 lakhs against Rs.1,59,990/-.  The website of the MMT offered the tour package at discount highlighting a reduction to the extent of Rs.40,000/-.  Euro component was not part of the main menu.  The opposite party had a deliberate intention to mislead the complainant by showing a lower rate initially to attract the consumer and demand higher rate on his confirmation on the pretext that the package const includes a Euro component.  i.e.Rs.56,990/- + Rs.1589/- Euros.  The opposite party ought to have made a mention of the Euro component on the advertised main menu.  It is amply clear that the opposite party made deliberate attempt to reap higher package cost from the complainant by increasing the cost after trapping and payment of advance so that he is not in a position to get out of the trap.  The opposite party was making an erroneous, unjust and wrongful stand that the complainant opted for the total tour cost of Rs.56,990/- + Rs.1589/- Euros.  There was absolutely no suggestion on their website main menu that there is a Euro component.  Immediately after booking the seats by making an advance payment complainant received a confirmation voucher on 06.02.12 with booking No. NL 208122730 which confirmed the following terms and conditions.  Package cost is Rs.3,19,980 for two persons and advance paid is Rs.32,000/-.  Remaining amount of Rs.2,87,980/- ought to have been paid latest by 8^th May, 2012.  In the voucher there has been no mention of Euro component and it is made explicitly clear that package cost is Rs.3,19,980/- and balance payment to be made is Rs.2,87,980/- payable latest by 8^th May, 2012.  Opposite party has not disputed this document but no clarification is offered on this.  In spite of this the opposite party refused to give the opportunity to pay and everything done in a perfunctory manner.  The booking was made on 06.02.12 and sent the booking form containing terms and conditions only on 08.02.12 that is after the booking was confirmed.  The said cancellation policy and the question of Euro component was written in small prints in a corner of the said document to avoid catching the attention of the complainant and this is a negligence and deficiency in service.  What is actually relevant is the display advertisement on the website main menu and the confirmation voucher which did not mention any Euro component.  It may also be highlighted that the said terms included a point that “Rates are subject to change in case of any changes in airport taxes, hotel rates, transport rates, government taxes or entrance fees” but did not include change in Euro rates.  Acting against this tantamount to deficiency in service and unfair trade practice.  An argument raised by the opposite party was that “the complainant never objected and/or raised any objection to the demand made.  The opposite party’s demand for increased package cost was not acceptable to complainant.  The complainant had made the booking on 06.02.12 and the confirmation voucher clearly mentioned the terms and conditions of the booking which did not mention any Euro component and it was only after 3 months an e-mail was received on 01.05.2012 demanding increased package cost.  This e-mail was immediately responded by an e-mail on 02.05.12 pointing out the illegality in demanding increased packaged cost.  The complainant had also forwarded copy of the e-mail dated 06.02.12 where it was clearly mentioned that balance payment to be made is only Rs.2,87,980/- and that remaining amount of Rs.2,87,980/- should be paid latest by 8^th May 2012, without offering any clarification for the e-mail sent by the complainant on 02.05.12, the opposite party on the same day (2^nd march, 2012)informed the complainant that unless increased package cost is paid by 5.00 p.m. ‘today’, the opposite party is bound to release the booking.  The complainant contacted opposite party over phone and pointed out that the confirmation voucher issued on 06.02.12 had confirmed that the balance payment to be made is Rs.2,87,980/- only and that there is time up to 8^th May, 2012 to make the balance payment.  The opposite party has not given any satisfactory explanation in their version or affidavit on the following points made by the complainant.  Why MMT gave ultimatum of 3-4 hours to the complainant to effect payment by 5.00 p.m. on 02.05.12 when the complainant was given time initially to pay the balance amount latest by 8^th May 2012.  On 06.02.12 the complainant received a confirmation voucher which confirmed that the balance payment to be made at Rs.2,87,980/- only in this context the opposite party is not justified in demanding escalated amount after 3 months of the confirmed booking.  On 02.05.12 the complainant raised a point that their website continued to display Rs.2,67,990/- as package cost without mention of any Euro component or increased package cost and how the opposite party was justified in demanding increased package cost.  The opposite party is not justified in cancelling the booking without replying to the queries made by the complainant.   The opposite party was not at all justified in giving an ultimatum of 3-4 hours on 02.05.12 and subsequently cancelling the booking when originally the opposite party had given a written confirmation that balance payment is to be made by 08.05.12 only.  In fact it is not at all justified to make any demand for payment before 8^th May 2012 agreed in the confirmation voucher.  The demand made on 2^nd May to make the payment by 5.00 p.m. on the same day was questioned by the complainant and the opposite party cancelled the booking without giving an answer to the query made which is patently illegal and wrong.  The opposite party admitted that the complainant after 6 days on 06.05.12 sent an e-mail to undertake the tour at increased cost.  The opposite party has not given any justification for denying the seats to the complainant when the tour package continued to be an offer on their website.  The booking made was for tour to start on 18.05.12.  The fact that the complainant agreed to take the trip at the increase rate strengthens the claim of the complainant that he was extremely keen to undertake the trip.  Surprisingly the opposite party merely informed the complainant that the tickets stand cancelled.  The trip was to commence on 18.05.12 and bookings were still open and the opposite party’s decision to deny passage to the complainant only goes to establish that the opposite party was only interested to pocket the amount paid as advance.  The opposite party made a false statement that “booking was to be cancelled as per the request of the complainant vide e-mail dated 2^nd May 2012.  The complainant had not made any demand for cancellation but refused to pay increased cost and demanded refund of advance payment if MMT is not agreeing to the package cost originally agreed upon.  The opposite party without giving any clarification abruptly cancelled the booking and denied seats when the complainant ultimately agreed to pay at increased rate by e-mail on 06.05.12 even when the originally agreed payment due date was 08.05.12 clearly proves that opposite party’s arguments are not factually correct.  If the opposite party had made all arrangements they should have gladly offered seats to the complainant on the basis of e-mail dated 06.05.12 which was well before the tour start date of 18.05.12.

          So from all these points it is clear that opposite party unilaterally cancelled the tour programme for which complainant is eligible to claim refund with compensation for mental agony aroused on cancellation, which we fix as Rs.25,000/-.

In the result, complaint is allowed.  Opposite party is ordered to refund the complainant Rs.32,000/-, along with Rs.25,000/- as compensation within 2 months of receipt of this order failing which the entire amount will attract interest at the rate of 9% till the date of realisation.  No order on cost.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 29^th day of June, 2018.

SL

C.C.No.414/2012

APPENDIX

1. COMPLAINANT’S WITNESS

2. COMPLAINANT’S DOCUMENTS

3. OPPOSITE PARTY’S WITNESS

4. OPPOSITE PARTY’S DOCUMENTS

                                                                           Sd/-

PRESIDENT