STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
First Appeal No. |
: |
322 of 2013 |
Date of Institution |
: |
26.07.2013 |
Date of Decision |
: |
30.09.2013 |
Bhupender Singh Ghangas son of Shri Mohinder Singh, Resident of 92 Stoneylake Avenue Brampton, Ontario, Canada at present, resident of House No. 1445, Sector 22-B, Chandigarh.
……Appellant/Complainant.
Versus
1. Make My Trip Pvt. Limited, Tower ‘A’, SP Infocity 243, Udyog Vihar, Phase-I, Gurgaon, Haryana – 122016.
2. Make My Trip Pvt. Limited, SCO No. 43-44, First Floor, Sector 8, Madhya Marg, Chandigarh – 160018.
....Respondents/Opposite Parties.
Appeal under Section 15 of the Consumer Protection Act, 1986.
BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.
SH. DEV RAJ, MEMBER.
Argued by:Sh, Hitesh Pandit, Advocate for the appellant.
Sh. Sanjay Judge, Advocate for the respondents.
PER DEV RAJ, MEMBER
This appeal is directed against the order dated 20.06.2013, passed by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, the District Forum allowed the complaint filed by the complainant (now appellant) and directed the Opposite Parties, as under:-
“10. This complaint is allowed accordingly. The Opposite Parties are directed to refund 50% of the amount paid by the Complainant i.e. Rs.40,000/-. Opposite Parties will also pay Rs.5,000/- towards costs of litigation.
11. This order be complied with by the opposite parties within 45 days from the date of receipt of its certified copy, failing which the decreed amount will carry interest @9% p.a. from the date of this order, till actual payment, besides the costs of litigation.”
2. The facts, in brief, are that the complainant, though a permanent resident of Canada, is presently residing in India for business purposes. It was stated that the complainant was proprietor of a Company titled as 2172104 Ontario Inc, which was registered with Canada Revenue Agency. It was further stated that as the complainant intended to visit Mauritius in the month of November 2012 i.e. on 4.11.2012, for the said purpose, he visited the office of Opposite Party No.2 at Chandigarh on 24.09.2012. It was further stated that cost of the package for Mauritius including stay at Four Star Hotel Jalsa was quoted as Rs.71,999/-. It was further stated that the complainant made payment of Rs.30,000/- through his Canadian Master Credit Card vide Receipt No. 3055, dated 24.09.2012 (Annexure C-1). It was further told to the complainant that the representative of the Opposite Parties would contact him within one day to confirm the booking. It was further stated that on being getting no call, the complainant approached Opposite Party No.2 on 27.09.2012, when he was informed that there was no vacancy in Jalsa Hotel and the booking at other Hotels would be at higher rate. It was further stated that the complainant opted for a package at Hotel Causarian, which was Rs.8,000/- more than the previous package and, as such, the payable package for 06 Nights and 07 Days reached Rs.80,000/-. It was further stated that the complainant was never told about the terms and conditions of the package. He was never asked to sign any contract or agreement with the Opposite Parties. It was also told to the complainant that all the papers would be signed on getting confirmation. It was further stated that on receiving no information from the Opposite Parties, the complainant again approached them on 04.10.2012, and made payment of the remaining amount of Rs.50,000/- through his Canadian Master Card vide Receipt No.3028 (Annexure C-2). It was further stated that as the Complainant was out of station for 10 days, he did not receive any call from the Opposite Parties, regarding the package during this period. It was further stated that on return to Chandigarh on 14.10.2012, the complainant, contacted the office of Opposite Party No.2 to know about his tour but on 21.10.2012 it was informed to him that the tour had been postponed. It was further stated that the complainant was also told that since the package was based on twin sharing basis and the complainant was going alone, therefore, the Opposite Parties, could not find anybody to share the room. It was further stated that the complainant told the representative of Opposite Party No.2, that he could not postpone the tour as he had to go to Canada in the month of January and could not travel on any other date other than 4.11.2012. It was further stated that the complainant asked Opposite Party No.2, to cancel the tour and refund the amount, since they were not in a position to give booking for 4.11.2012 but the representative of Opposite Party No.2, refused to cancel the booking and refund the money. It was further stated that the complainant thereafter visited the website of the Opposite Parties to lodge his complaint, where he found that the price of the tour package offered to him was listed at Rs.68,999/-, whereas, he had been charged Rs.80,000/- for the same package. It was further stated that the complainant served a legal notice (Annexure C-3) upon the Opposite Parties, but to no avail. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), seeking directions to the Opposite Parties, to refund an amount of Rs.80,000/- alongwith interest @18% per annum from the date of deposit; and Rs.50,000/- on account of deficiency in service; Rs.70,000/- as compensation for mental agony and physical harassment; besides cost of litigation, was filed.
3. The Opposite Parties, in their written version, took up certain preliminary objections, to the effect, that the District Forum had no jurisdiction to entertain and adjudicate upon the dispute involved in the complaint, as the same did not fall within the ambit of the provisions of the Act; the District Forum had no territorial and pecuniary jurisdiction inasmuch as the amount involved in the subject matter had not been quantified or specifically stated; the complaint, being frivolous and vexatious, was liable to be dismissed u/s 26 of the Act; the complainant had got no locus-standi to file the complaint; the complaint was bad for mis-joinder of and non-joinder of parties, as no official of the Opposite Parties, had been impleaded; the complaint was filed solely to cause inconvenience and harassment to the Opposite Parties and there was no privity of contract between the parties.
On merits, the Opposite Parties, denied the residence details of the complainant as he never gave his Canadian address to them. However, the factum of booking of the package for the complainant was admitted. It was stated that the complainant had booked the tour, in his name, and one Sonia Hooda, citizen of Canada and holder of Canadian passport issued on 3rd May, 2012, at New Delhi, copy whereof was also provided to the Opposite Parties. It was further stated that subsequent correspondence was also effected with regard to the booking of both the persons, whereas the complainant stated that he had himself booked as a single passenger. It was further stated that as per the passport of the complainant, he was married to one Deepti, whereas he wanted to travel with one Ms. Sonia Hooda. It was further stated that tour confirmation for 04.11.2012 at Casuarina Hotel in ‘Superior Sea View Room’ was confirmed vide mail dated 29.09.2012, wherein it was specifically mentioned that the complainant was eligible for honeymoon trip, therefore, his contention of having booked the tour as a single passenger was contrary to the facts and circumstances. It was further stated that the Opposite Parties had informed the complainant about all the services that they would be rendering. It was admitted that the accommodation was earlier offered at Hotel Jalsa but it was also mentioned in a clause that the same might not be possible at the time of final booking (which was very common in Mauritius). Therefore, similar level hotel i.e. Hotel Casuarina was offered as an alternate, to which the complainant agreed. It was further stated that the postponement of tour was on the request of the complainant, as the Opposite Parties had tried to contact him a number of times but his phone was always switched off. It was further stated that finally, a mail, was sent to the complainant, with regard to the same on 25.10.2012 and 26.10.2012 (Annexure R-8 & R-9). As regards the averment of the complainant being out of station, it was stated that the complainant tried to mislead the Forum and it was he who was being evasive and non-available. It was further stated that the complainant was not traveling alone as he had sought a package on twin sharing basis with one Ms. Sonia Hooda and therefore, offering a companion was not possible at all. It was further stated that on 16.10.2012, the complainant requested the Opposite Parties for postponement of his tour from 04.11.2012 to 17.01.2013 as he had to attend a marriage. It was further stated that the postponement of trip attracted further expenses of Rs.15,000/- per person. It was further stated that the complainant had booked the package for two persons but had paid for one passenger only and was yet to pay for the booking of his co-passenger. It was further stated that the legal notice was duly replied to by the Opposite Parties vide letter dated 29.11.2012 (Annexure R-10). It was further stated that the complainant was not entitled to any compensation or refund as the package was cancelled by the Opposite Parties being ‘No Show’ and the amount was forfeited as per clause of cancellation charges (Annexure R-7). Rebutting the allegation with regard to variation, in the price of package, the Opposite Parties stated that the website charges were for a superior room, whereas the complainant had booked a sea view room. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor did they indulge into unfair trade practice. The remaining averments, were denied, being wrong.
4. The complainant filed replication wherein, he reiterated all the averments, contained in the complaint, and repudiated the same, contained in the written version.
5. The parties led evidence, in support of their case.
6. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, allowed the complaint, as stated above, in the opening para of the instant order.
7. Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.
8. We have heard the Counsel for the parties, and, have gone through the evidence, and record of the case, carefully.
9. The Counsel for the appellant/complainant, submitted that the appellant/complainant booked a trip on 24.09.2012 for visit to Mauritius, departure date of which was 04.11.2012. It was further submitted that the Opposite Parties did not inform the status of the trip, and, when he visited them on 21.10.2012, they informed that the trip had been postponed. A legal notice was sent to the Opposite Parties on 29.10.2012. It was further submitted that E-ticket dated 25.09.2012 (Annexure R-1) was never sent to the appellant/complainant. It was submitted that Annexure R-2 was internal correspondence of the Opposite Parties. It was further submitted that Annexure R-8 and Annexure R-9 which were dated 25.10.2012 and 26.10.2012 seeking confirmation regarding finalization of trip for 17.01.2013 were after the complainant visited the Opposite Parties on 21.10.2012.
10. The Counsel for the respondents/Opposite Parties, submitted that the entire booking had been done and all arrangements for sight seeing were also made. It was further submitted that the appellant/complainant was informed vide Annexure R-9 to confirm the postponement of Mauritus trip for January17, 2013. The complainant was also informed that the additional cost per person shall be Rs.15,000/-. It was further submitted that it was a honeymoon package and two persons were to travel and the cost per ticket was Rs.80,000/-. It was further submitted that only part payment viz. Rs.30,000/- vide Annexure C-1 and Rs.50,000-00 vide Annexure C-2 was made. Confirmed ticket (R-1) for two persons was sent through email.
11. The case of the appellant/complainant is based on Annexures C-1 and C-2 which are receipts for Rs.30,000/- and Rs.50,000/- respectively and legal notice dated 30.10.2012 (Annexure C-3). The Counsel for the appellant submitted that none of the emails/communications, sent by the respondents/Opposite Parties were received by the complainant. Even receipt of reply to the legal notice sent by the Opposite Parties (Annexure R-10) was denied whereas the Opposite Parties, produced evidence that it was sent through courier (Annexure R-11).
12. Annexure R-1 (with booking date as 25.09.2012) is E-ticket in respect of two persons for Flight No.MK-MK-745 dated 4.11.2012 from DEL to MRU, in the names of Sonia Hooda and Bhupender Singh Ghangas. It was also mentioned at page 2 of the e-ticket “……..For any query or clarification write to us at service@makemytrip.com or call at the following numbers:……….” The Opposite parties made entire arrangements for two persons, as is evident from contents of Annexure R-2 wherein it was clearly mentioned ‘Lead pax:Mr.Bhupender Singh Ghangas x 2’ ‘Lead Guest: MR.BHUPENDER SINGH GHANGAS’ and this document contained the names of Mr. Bhupender Singh Ghangas and Ms.Sonia Hooda with complete details including date of birth. The respondents/Opposite Parties categorically submitted that both Annexure R-1 and R-2, were sent to the appellant/complainant through email and assertion of the appellant/complainant that these were not received by him, is apparently devoid of truth. The appellant/complainant denied receipt of all documents from the Opposite Parties, and has based his case on his own documents and oral conversations which allegedly took place between him and the Opposite Parties. It is not believable that without the receipt of e-tickets, the appellant/complainant made payment of Rs.50,000/-. The documents (R-1 and R-2) clearly reveal that the booking was for two persons and thus the payment of Rs.80,000/- was part payment and assertion that the appellant/complainant had sought booking for himself seems to be devoid of truth. The District Forum , in para 9 of its order observed as under:-
“The complainant has not travelled and the details of the amount spent by the Opposite Parties on the hotel bookings as well as air fare has not been placed on record. But the Complainant has availed of the package. Hence, taking a lenient view and considering that the complainant has not travelled, we direct the Opposite Parties to refund 50% of the amount received from the complainant for the package..”
In fact, the contents of Exhibits (R-1, R-2, R-3 and R-4) undoubtedly establish that the amount of Rs.80,000/- was for two persons. The district forum, as is evident from the above extracted observation, allowed 50% refund, keeping in view the fact that the appellant/complainant did not travel. The respondents/Opposite Parties have categorically asserted that Annexures R-8 & R-9 proved that the appellant/complainant had received their earlier emails. E-mail dated 25.10.2012 (Annexure R-8) was to the following effect:
“We are not able to reach you as both your mobile numbers are switched off. We are at the verge of finalizing your Mauritius Trip date for Jan 17, 2013 with an additional cost of INR 15000 per person. Please confirm that the same is acceptable.”
13. As per terms and conditions of the package, the entire amount of Rs.80,000/- was liable to be forfeited. In the instant case, as pleaded by the respondents/Opposite Parties, the tour was postponed/rescheduled at the request of complainant, and the respondents could not contact the appellant/complainant as his phone numbers were always found to be switched off and finally an email with regard to same was sent on 25.10.2012 and 26.10.2012. The District Forum was right in granting 50% refund of the amount paid by the complainant. No ground is made out for enhancement of the amount of refund.
14. No other point, was urged, by the Counsel for the appellant/complainant.
15. In view of the above discussion, it is held that the order passed by the District Forum does not suffer from any illegality or perversity, warranting the interference of this Commission.
16. For the reasons recorded above, the appeal filed by the appellant/complainant, is dismissed, with no orders as to costs. The impugned order, passed by the District Forum, is upheld.
17. Certified Copies of this order be sent to the parties, free of charge.
18. The file be consigned to Record Room, after completion.
Pronounced.
30th September, 2013.
Sd/-
[JUSTICE SHAM SUNDER (RETD.)]
PRESIDENT
Sd/-
[DEV RAJ]
MEMBER
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STATE COMMISSION
(First Appeal No.322 of 2013)
Argued by:Sh, Hitesh Pandit, Advocate for the appellant.
Sh. Sanjay Judge, Advocate for the respondents.
Dated the 30th day of September 2013
ORDER
Vide our detailed order of the even date, recorded separately, this appeal filed by the appellant/complainant has been dismissed, with no order as to costs. The order of the District Forum has been upheld.
(DEV RAJ)
MEMBER |
(JUSTICE SHAM SUNDER (RETD.))
PRESIDENT |
|
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