BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

                                  Consumer Complaint No.396 of 2015

                                 Date of institution:          07.08.2015

                                          Date of Decision:            22.06.2016

Tapbir Singh son of Manpreet Singh resident of House No.469, Sector 61, Chandigarh.

                                     ……..Complainant

                                        Versus

MakeMy Trip India Pvt. Ltd. Tower A, SP Infocity 243, Udyog Vihar, Phase-1, Gurgaon, Haryana.  

                                                        ………. Opposite Party

Complaint under Section 12 of the

Consumer Protection Act, 1986.

CORAM

Mrs. Madhu. P. Singh, President.

Shri Amrinder Singh Sidhu, Member

Mrs. R.K. Aulakh, Member.

Present:    Shri Gagandeep Singh, counsel for the complainant.

Shri Naveen Sharma, counsel for the OP.

(Mrs. Madhu P. Singh, President)

ORDER

                The complainant has filed the present complaint seeking following direction to the Opposite Party (for short ‘the OP’) to:

(a)    refund him Rs.40,000/- illegally forfeited by the OP.

(b)    pay him Rs.1.00 lac as compensation for harassment, mental agony and tension.

(c)    pay him Rs.20,000/- as miscellaneous expenses.  

                The case of the complainant is that his marriage was fixed on 21.03.2015. The OP offered him a package namely European Dream Trip. Before booking, the OP assured the complainant that its online site is best in India and visas are granted to its clients instantly without any hassles. It was also assured that visas applied through the OP do not get cancelled. Upon this, the complainant booked the aforesaid trip for his honeymoon for travel on 18.04.2015 from New Delhi to Paris etc. on twin sharing basis. The total amount for the package was Rs.2,59,767/- including visa fees and tax. The complainant on the demand of the OP paid Rs.40,000/-. OP sent e-mail dated 30.01.2015 confirming the receipt of booking amount. After two days of paying the booking amount, the complainant came to know that the rates of package decreased by Rs.7,000/- per person. The complainant sent e-mail in this regard to the OP on 03.02.2015.  On 03.02.2015 itself the OP telephonically informed that the visa for the complainant and his wife was rejected by French Embassy and it was also told that an amount of Rs.12,000/- out of the total shall be deducted. The complainant was given option to either take refund or to get the balance amount adjusted in some other trip.  The complainant subsequently received another call from the OP that instead of deducting Rs.12,000/- the whole amount deposited by the complainant would be forfeited. . The complainant vide e-mail dated 03.03.2015 requested the OP to deduct only visa fee as stated earlier to him.  The OP vide e-mail dated 03.03.2015 stated that the complainant shall be refunded only a sum of Rs.10,000/- out of Rs.40,000/-. The complainant through telephonic conversation and e-mails requested the OP to refund the amount but in vain.  The OP has not refunded the deposited amount of Rs.40,000/- to the complainant. Thus, with these allegations, the complainant has filed the present complaint. 

 2.            Upon notice, the OP appeared and filed reply in which it took preliminary objections that the parties are governed by terms and conditions agreed between them at the time of booking. As per the jurisdiction clause of the agreement, only the courts of Delhi have the territorial jurisdiction to entertain the disputes, if any, arising out of the booking. As per the request of the complainant for availing Dream Toru, the OP assisted him with all possible options with various available packages. The OP informed the details of the tour package to the complainant and thereafter the complainant vide his email dated 28.01.2015 gave go ahead to the OP for booking of package. The cancellation penalties were explicitly agreed by the complainant and accordingly the OP created a booking for the complainant. The visa was applied for after requisite forms were filled by the complainant. Due to the reasons best known to French Embassy the visa application of the complainant and his wife were rejected. The complainant was informed that total refund of the deposited amount of Rs.40,000/- was not possible. The OP in good faith had already blocked the air tickets for the complainant and these booking are non refundable. The issuance/rejection of the visa is the sole prerogative of the embassy.    Thus, the OP has sought dismissal of the complaint.

3.             To succeed in the complaint, the complainant proved on record his affidavit Ex.CW-1/1; copies of pass book Ex.C-A and e-mails Ex.C-1 to C-9.

 4.            Evidence of the OP consists of affidavit of Ms. Ankita Mishra, Asstt. Manager Legal Ex.OP-1/1 and copies of documents Ex.OP-1 to Ex.OP-2.

5.             We have heard learned counsel for the parties and have also gone through written arguments filed by them.

6.             The booking for European Dream Trip for undertaking journey from 18.04.2015 from New Delhi to various places by the complainant through the OP is not disputed. Advance payment of Rs.40,000/- against the agreed tour package of Rs.2,59,767/- is not disputed.  The issue involved is that upon cancellation of the trip, what is the total amount deductable from the booking/deposited amount and to what amount the complainant is entitled to have against the deposited amount.

7.             The booking was done on 31.01.2015 and on 03.03.2015 the complainant learnt from the OP that the visa for the complainant and his wife by the French Embassy has been rejected and the OP gave an option to the complainant to either seek the refund or opt for travel to another country on international flight. Before exercising the option, the complainant enquired vide email dated 03.03.2015 Ex.C-3 about the total damages on account of rejection of visa by the French Embassy. The OP vide e-mail dated 03.03.2015 Ex.C-4 informed the complainant that as a special case it would transfer Rs.10,000/- to the complainant’s account for new international package in case the complainant so opts, meaning thereby the OP has clarified that out of the deposited amount of Rs.40,000/-, Rs.30,000/- would be deducted after visa refusal by the Embassy. The said offer was not acceptable to the complainant and, therefore, the complainant opted to transfer the amount to new package in case the deduction is to the tune of Rs.12,000/-. Thus, the complainant has given a counter offer vide email dated 04.03.2015 Ex.C-5. The said counter offer was rejected by the OP vide e-mail dated 09.03.2015 Ex.C-8. Since the complainant did not accepted the offer of deduction of Rs.30,000/- and adjustment of balance Rs.10,000/- for new international package and the OP did not accept the counter offer of deduction of Rs.12,000/- and adjustment of remaining amount for new international package, therefore, the complainant asked for return of his documents alongwith passports vide email dated 09.03.2015 Ex.C-9.  However, as per affidavit of the complainant Ex.CW-1/1 he has received the documents and passport but the amount has been illegally retained by the OP.

8.             In order to answer the question raised above, it will be appropriate to go through the outbound tour/booking terms and conditions Ex.OP-2 relied upon by the OP to justify its stand of deduction of Rs.30,000/- and offer of adjustment of Rs.10,000/- for another international tour. The relevant Clause governing the cancellation due to visa rejection and refund thereof is reproduced here below:

                “Cancellation due to visa rejection:

                Xx            xx            xx            xx

                Cancellation charges:

                When cancellation is made           :Charges

                Prior to 45 days or more              Booking fee

Xx            xx            xx            xx

9.             Admittedly the complainant has booked the package on 31.01.2015. Admittedly his visa has been rejected and cancellation has been conveyed by the OP to the complainant on 03.03.2015. Thus, the cancellation is prior to 45 days and under the policy the whole booking fee is to be refunded.  Thus, the stand of the OP is not supported by its own document Ex.OP-2. Thus, the act of the OP in making an offer of deduction of Rs.30,000/- and adjustment of Rs.10,000/- for new international trip per se is an act unfair trade practice  and then further retention of deposited amount contrary to its own policy is an act of both unfair trade practice and deficiency in service on the part of the OP. Thus, the complaint deserves to be allowed and the complainant deserves to be compensated.

10.           In view of above discussion, the complaint is allowed with the following direction to the OP to:

(a)    to refund to the complainant booking amount  of Rs.40,000/- (Rs. Forty thousand only) with interest thereon @ 9% per annum w.e.f. 03.03.2015 till actual refund.

(b)    to  pay to the complainant  lump sum compensation of Rs.20,000/- (Rs. Twenty thousand only) for mental agony, harassment and costs of litigation.

                Compliance of this order be made within a period of thirty days from the date of receipt of a certified copy of this order. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.

Pronounced.                           

June 22, 2016.    

                     (Mrs. Madhu P. Singh)

                                                                        President

(Amrinder Singh Sidhu)

Member

(Mrs. R.K. Aulakh)

           Member