Author: SHRI RABIDEB MUKHOPADHYAY, MEMBER
FINAL ORDER/JUDGEMENT
This is an application u/s.12 of the C.P. Act, 1986.
The Complainant stated that she approached the OP for arranging the trip to London and Paris and the tour programme was arranged by OP. The OP demanded Rs. 3,30,000/- for their service and arrangement of air ticket, hotel accommodation traveling from airport to hotel and she paid the amount for her and for her son. The OP conducted the tour programme which includes arrangement for transferring the Complainant and her minor son from Paris hotel to Paris Station for availing train to London and the expanses of the train tickets for the complainant and her minor child from the Paris to London by train on second class.
The Complainant stated that the Pvt. Car was supposed to reach at the hotel at Paris by 7.00 A. M. local time on 29.05.2017 as they had to reach the Paris station by 8.00am by positively to avail the train from Paris Nord Station to London at 9.30 am as per schedule. The grievance of the Complainant is that the car did not reach the hotel on 29.05.2017 as per assurance of OP and the Complainant had to suffer a lot of problems and she was shocked and depressed. The Complainant under such situation and having no other alternative tried to contact the OP and their representatives without any result. The Complainant had to request the hotel person to arrange a Pvt. car with a lady driver and such arrangement for taxi with a lady driver was arranged for which she had to pay 80 Euro and with the help of hotel person she could reach Paris Nord Station. The Complainant stated that in spite of such alternative arrangement at her own effort, cost and expenses, she could not reach the Paris Nord Station in time and she reached at 9.30 A.M. local time when the schedule train had already left.
The Complainant stated that she tried to avail the next train schedule at 11.00 A.M. local time but there was no accommodation in the said train and she had to avail the subsequent train schedule at 12.13 P.M. and she reached London at 19.40 P.M.
The Complainant stated that at para 14 that the driver of taxi so arranged by the Complainant with the help of hotel person at Paris dropped the Complainant at a place distant from the station and she with her minor child sustained pain and strain to cross the street to avail the train. She also stated that due to such delay she reached London 3 hours later from the schedule time. The pickup car left the London Station and the Complainant had to arrange the car again paying cost. The Complainant alleged at para 17 that such facts and circumstance reflect that due to negligence of OP she had to suffer huge loss and problem abroad. She informed the OP of such incidents through email but the same was not consider by the OP. The Complainant stated that she issued legal notice through advocate on which the OP sent only casual and vague reply.
The Complainant prayed for direction upon the OP for payment Compensation of Rs. 3 lac for harassment and suffering and mental agony and a cost of Rs. 30,000/-
Written Version of OP
The OP denied Complaint para 2 and stated that they arranged the tour packaged for the Complainant with other 3rd party service provider and as per “Agreement between user and Make My Trip”, the OP is not liable or responsible for any actions or inaction of 3rdparty service provider. At W.V. para 4 the OP stated that OP acts as a booking agent on behalf of 3rd party service provider and they are not responsible any standard of services provided by such 3rdparty service provider. OP referred terms and conditions (Annexure B) as accepted by the Complainant.
The OP denied Vehemently Complaint para 5 to 7 and reiterated that the 3rd party service providers are responsible and liable for the services providing by them and it is also averred that the OP isin no way liable or responsible for no show the Pvt. car while denying Complaint para 8 the OP stated that they are customer service team provided able and guided assistance to the Complainant in redressal grievances. The OP denied at W.V. para 7 the Complaint paras 9 to 16 for want of knowledge, but the OP admitted at the said para 7 of W.V. that the Complainant was offered an amount of Rs. 10,000/- as well as future travel vouchers worth Rs. 10,000/- and the said offer is extended till date.
At para 8 of W.V. the OP denied contents of Complaint para 17 and 18 and stated that there was no negligence on the part of the OP. At W.V. para 10 also the OP strongly denied contents of Complaint para 20 and stated that OP was not negligent and deficient in rendering services to the Complaint. At the ending of W.V., para 12, the OP stated that the OP amount sought by the Complainant at Complaint para 20 is not only justified and substantiated but alarming.
The OP cited under Preliminary Objection of the W.V., a case reference of “Bharathi Knitting Co. vs. DHL Worldwide Express Courier [(1996) 4SCC 704]; wherein, the Hon’ble Ape Court has held that:
“the Forums and Commission are not entitled to modify the terms of the agreement which had been arrived at between the parties and when there is an acute dispute relating to facts, the Forum and Commission ought not have gone behind the terms of the Agreement and should have instead referred the parties to the Civil Court”.
That the OP prayed for dismissal of the Complaint.
Points for Discussion
1) Whether the Complainant is a Consumer under the OP;
2) Whether the OP is deficient in rendering service to the Complainant;
3) Whether the Complainant deserves relief.
Decision with Reasons
1)Before entering into the main discussion on the merit of the case, we like to discuss on the reference citation/Judgment filed by the OP. At W.V. para 10 (Preliminary Objection) there has been a reference of case in Bharathi knitting Co. –vs.- DHL Worldwide Express Courier, (1996) 4 SCC 704 which prescribes that Forums and Commissions are not entitled to modify terms of User Agreement.
But this observation has no ratio with the case under consideration. The OP failed to show that the Complainant knew the details of the terms and conditions of the user agreement nor could they file any document that the Complainant signed the said user agreement. One sided contract is not valid in the eye of law. Unless a party signs an agreement, it cannot be held that the party is responsible for lapse whatsoever. The Judgment under reference prescribes that compensation for deficiency of service of the OP courier company was upheld by the Hon’ble Supreme Court, only curtailing the amount beyond the limit of liability of the OP.
Another copy of Judgment ofLd. Haryana State Commission inMohit Madan (Appellant/Complainant) vs. Make My Trip, date of Judgment 29.08.2017 was filed by the OP during final hearing. The Judgment relates to dispute of non- sanction of Visa by the Swiss Embassy and so the same has no ratio with the case in hand.
2) The OP filed during the final argument a copy of Judgment of North Goa Dist. Forum, Consumer Complaint CC- 43/2018, between Smt. Anita A. Habbalkar vs. Make My Trip India Pvt. Ltd.
This reference of the Judgment also does not have full ratio with the instant case under consideration. In the case under reference, it was a bus ticket booked under internet but the bus reached the destination after more than 2 hours leading to the Complainant and her family members missing the flight to Srinagar. We do not intend to fully discuss the content of the said referred Judgment but we like to mention that said Compliant was decided in favour of the Complainant and the Complainant was given full return of paid amount of Rs. 1,05,251/- with an interest of 12 percent per annum from 5th April, 2018, Compensation Rs. 15,000/- and litigation cost of Rs. 10,000/-.
3) At W.V para 2, the OP advocated that Make My Trip is not liable for any 3rd party action or inaction. At WV para- 4 also, it is stated that the OP is a booking agent of the 3rd party service provider and the OP has no liability for any aspects of standards of services. So, the OP is not liable for services of 3rd party service provider,it is averred by the OP at W.V. para 5.The OP repeated that the 3rd party service provider is not liable and responsible for no show of the private car.
Such presentation of the OP at W.V para 2, 4, 5, and in other places of the W.V. does not hold good. It is clear that it is not the Complainant but it is the OP (Make My Trip India Pvt. Ltd.) that had made contract with the 3rd Party Service provider in France and England in connection of the tour under taken by the Complainant. So, the Complainant should have no dealings with the said foreign 3rdparty service provider. The details of the contract were settled by the OP and the said 3rd party service provider. So, for the failure of the said 3rdparty service provider, they may be responsible and liable to the OP (MMT) and the OP (MMT), in turn, isresponsible and liable to the Complainant. There must be some provision in the contract between the OP and the 3rd party service provider for compensation in case of lapse by either party. The OP may realise the sum of compensation (to be allowed in this case, if any) from the 3rd party service provider. It is the cardinal rule.Otherwise, it may lead to chaos if a party takes money from a person or persons to undertake some duties or render services and the said party contracts with a 3rd party and if the 3rd party fails to comply with the such duty, the said person or persons paying the money to the first party will be at great distress. We while administering justice under the Consumer Protection Act, 1986 cannot hold such lapse as our administration of justice runs completely on the basis ofPrinciples of Natural Justice.
So, the OP (MMT) is fully responsible, liable for deficiency of service by the 3rd party service provider in the tour.
4) If we consider section 222 of the Indian contract Act, 1872, we can easily hold that act (deficiency) of the agent (3rd party service provider) is the act of the Principal (OP, MMT)because the said 3rd party service provider acted on behalf of the(OP, MMT) Principal. So, the OP MMT is deficient, liable and responsible. We need not have any concern whether in the contract between the OP and the foreign 3rd Party, who is the Principal and who is the Agent.
5) The OP admitted at W.V para 7 that they offered Rs. 10,000/- and travel vouchers worth Rs. 10,000/- to the Complainant and the said offer of travel voucher is extended till date.
Then the question arises if the OP has no deficiency, responsibility and liability to the Complainant, why did they offer money and travel vouchers? It is, actually, their admission of liability. It is against and in contrast of the claim of the OP stated at W.V. para 8 and 10 that they have no negligence and deficiency in service to the Complainant.
6) The OP stated at W.V. para 12 that the Complainant’s claim at Complaint para- 23 is not justified, substantiated but alarmingly exaggerated.
This submission may have some base and the claim of compensation by the Complainant is not substantiated. But at the same time, when OP used the word’exaggerated’, it admitted, there must be the existence of some compensation which has been exaggerated by the Complainant. So, the Complainant admittedly deserves Compensation.
7) The OP questioned the point of “Governing law and Jurisdiction” at Evidence in Chief para-22 and stated that the exclusive jurisdiction shall be of the courts at Delhi for resolving disputes with MMT.
We like to refer to a Judgment by the Hon’ble Supreme Court in InterGlobe Aviation Ltd. vs. N. Sachida Nand, (2011) 7 SCC 463 wherein it is decided that the jurisdiction of the Court or Tribunalsoutside Delhi cannot be excluded. This point has also been discussed in a Judgment of Hon’ble Haryana State Commission (the date of Judgment 29.08.2017) in Mohit Madan vs. Make My Trip, filed by the OP itself in the instant case where the point of jurisdiction has been discussed in para 11 , 12 and 13.
8) It is stated at W.V para-8 that the Complainant suppressed many vital facts which go to the root of the case but files no evidence to support such aspersion.
From the communication through WhatsApp between the Complainant and MMT (Tandra) we see that the OP was keeping contact with their 3rd party supplier and giving feedback to the Complainant. From the said communication we may find that the OP is deficient as we observed in the forgoing paragraphs from other angles. Some of the whatsapp communications, mainly from Tandra to complainant, are given as below:
“Nobody is picking up the call”,”Mam bayere theke Taxi nie nin”, “ Mam your money will not get wasted I am just asking for some time”, “Supplier bollo transfer nie nite r receipt ta rakhte ora investigate kore dekhbe”, “Apni r delay na kore transfer nie cholejan”, “ I am checking with the supplier what went wrong with the transfer”, “ Mam I am waiting for suppliers revert let them come back with the explanation then will further update you”, “ Refund will be done in cheque or account transfer not in cash and it will take some time”.
Above quoted WhatsApp communications were from the end of Tandra (Make My Trip) to the Complainant. We do not reproduce the WhatsApp ventilations, mostly alleging, from the end of Complainant.
9)It appears from Complaint para-2 that the Complainant mentioned the total money demanded by the OP for the tour was Rs 330000/- though the OP denied it at WV para-2. But OP’s denial does not seem to be justified, else, had they arranged the tour free of cost? The OP nowhere demanded that they rendered free service to the complainant.The complainant did not pray for the entire refund of the paid money. Her only allegation is for refund of 80 Euroas taxi fare from the Paris Hotel to Paris Nord Station and163 Euro for car ticket from London station to hotel as the scheduledpickup carhad already left London Station for delay of 3 hours. As per conversation rate from Euro to Indian Rupees at the rate of 81.59, total Indian Money is calculated for 243 Euros (80 Euro + 163 Euro) to Rs. 19,826/-.
With this, acompensation for physical harassment, mental agony of a lady Complainant with a kid in the foreign countries, has been claimed to be Rs. 3 lac and a cost of 30,000/-.
We can realise the distressed and helpless condition of the lady Complainant by the mismanagement of the OP. Mere some money cannot be equivalent to such unexpected and distressful situation. But at the same time, we assess that claiming Rs 3 lac without logical computation appears too exorbitant.
10) As the Complainant paid money to the OP for the tour, the Complainant is a Consumer under the OP in terms of section 2 (1)(d)(ii) of the C.P. Act,1986.
As the OP failed to render promised service to the Complainant who faced severe mental agony and physical harassment in foreign countries, the OP is deficient in terms of section 2 (1)(g) read with section 2 (1)(o) of the said Act.
Therefore, and as discussed in the forgoing analytical paragraphs, the Complainant deserves some relief.
In the circumstances of above analytical discussions, we are inclined to pass
ORDER
That the Complaint be and the same is allowed on contest against the Opposite Party, Make My Trip India Pvt. Ltd. , in terms of section 13 (2)(b)(i) of the Consumer Protection, Act, 1986;
That the Opposite Party, Make My Trip India Pvt. Ltd. represented by its authorised signatory Ekank Mehra isdirected to reimburse 80 Euros plus 163 Euros amounting to Indian Currency of Rs. 19,826/- as on the date of this Judgment, to the Complainant within 30 days from the date of this Judgment;
That the Opposite Party, Make My Trip India Pvt. Ltd. represented by its authorized signatory Ekank Mehra is further directed to pay to the Complainant Rs. 30,000/- as Compensation for physical harassment, mental agony and anxiety of the lady Complainant, in terms of section 14 (1)(d) of the Act, and Rs. 5,000/- as litigation cost, within 30 days from the date of this Judgment;
That Non-compliance of any of above orders by theOpposite Party, Make My Trip India Pvt. Ltd. represented by its authorized signatory Ekank Mehra within the stipulated time, shall entitle the Complainant to put the Order into execution in terms of section 27 of the Act ibid.
Let copy of the Judgment be handed over to the Parties when applied for.
