| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA CC.No.42 of 17-02-2017 Decided on 23-04-2018 Dr.Parneet Singh Dhillon S/o Dr. H.S. Dhillon, #713 Model Town, Urban Estate, Phase 1, Bathinda. ........Complainant Versus 1.Make My Trip (Tour & Travel Company), 243 SP Infocity, Udhyog Vihaar Phase 1, Gurgaon, through its Chairman/MD. 2.Deepti Jain, Manager (Holiday Tour Expert) Make My Trip (Tour & Travel Company), 243 SP Infocity, Udhyog Vihaar Phase 1, Gurgaon. (Deleted) 3.Anup Raviat, Incharge Visa Team (Visa Expert) Make My Trip (Tour & Travel Company), 243 SP Infocity, Udhyog Vihaar Phase 1, Gurgaon. (Deleted) .......Opposite parties Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Sh.M.P Singh Pahwa, President. Sh.Jarnail Singh, Member. Smt.Sukhwinder Kaur Member Present:- For the complainant: Sh.N.P Singh, Advocate. For opposite party No.1: Sh.Mohit Bansal, Advocate. Opposite party Nos.2 & 3: Deleted. ORDER M.P Singh Pahwa, President The complainant Dr.Parneet Singh Dhillon (here-in-after referred to as complainant) has filed complaint U/s 12 of Consumer Protection Act, 1986 against opposite parties Make My Trip and Others (here-in-after referred to as opposite parties). Briefly stated, the case of the complainant is that he is a permanent resident of Bathinda and working as Rural Medical Officer in the department of Rural Development and Panchayat, Punjab State Government at Subsidary Health Center Ghumiara, Block Lambi District Sri Muktsar Sahib. His wife Dr.Jaswaran Kaur is also working as a Rural Medical Officer in the department of Rural Development and Panchayat, Punjab State Government at Subsidary Health Center Pathrala, District Bathinda. It is alleged that opposite party No.1 is doing the business of tour and travelling. Opposite party No.2 (since deleted) is incharge and controlling the tour programs and opposite party No.3 (since deleted) is incharge of Visa team of opposite party No.1. As per complainant, in the last week of April 2016, he planned to visit Paris (Europe) alongwith his wife and son. He contacted opposite parties for visit to Paris (Europe) for their procedure and details. Opposite party No.1 sent SMS to the complainant on his mobile and suggested him to contact opposite party No.2 for the details of tour. Opposite party No.2 allured the complainant and finalized the trip of his family for a total sum of Rs.2,63,017/- for 5 nights and 6 days at Paris from 7.6.2016 to 13.6.2016. It promised the complainant for his family Visa and Visa assistance, travel insurance, service of a MMT Tour Manager including drivers and guides, accommodation in double/twin bedroom in hotels and meals etc. It also promised the complainant that opposite party No.3, the incharge of Visa team and expert in Visa, would check and verify all the required documents to be submitted at Visa facilitation services for applying of his family Visa and provide the travel papers, hotel vouchers, and air travel details and other documents related to Visa and would help in all aspects for obtaining his family Visa. It is further alleged that opposite party Nos.2 and 3 promised that if in any case, family Visa is rejected or not approved, they would deduct Rs.60,000/- (Rs.20,000/- per person) and return the remaining amount to the complainant. It is further alleged that on allurement of opposite parties, the complainant completed all the formalities for his family Visa. On asking by opposite party Nos.2 and 3, the complainant submitted all the papers i.e. photocopies of his passports, his wife namely Jaswaran Kaur and his son namely Trimaan Parneet Dhillon and his and his wife salary statements of 1 year, his and his wife's 3 years income tax returns, photographs, NOC issued by their department for visiting Europe tour. He also paid total amount of Rs.1,97,500/- to opposite parties from time to time in their bank account. He transferred the booking amount of Rs.60,000/-on 29.4.2016; Rs.60,000/- on 4.5.2016; Rs.66,000/- on 11.5.2016 and Rs.65,500/- on 24.5.2016. Opposite parties provided the booking ID No.IN1604B1S461822. It is further alleged that opposite parties used to send e-mails from Bathinda about the tour package and for documentation for family Visa. The complainant completed all the formalities and also sent e-mails to opposite parties for his family tour programme from Bathinda. Opposite parties sent an e-mail on 4.5.2016 to the complainant and informed him for his appointment at 12:00 P.M. On 9.5.2016 at V.F.C. Centre, New Delhi for Visa purpose. It was informed that their representatives Anup Rawat and Mr.Sheera will meet the complainant alongwith his files/papers. On 9.5.2016, the complainant alongwith his wife and son reached V.F.C. Centre, New Delhi in time, but their representatives Anup Rawat or Mr.Sheera did not meet them despite various mobile calls and SMS. At the end of time, Mr.Sheera met the complainant, but the Visa files/papers were not checked and ready. Mr.Sheera handed over incomplete papers to the complainant and disappeared from the venue. The embassy of Switzerland, New Delhi refused to grant family Visa to the complainant. It is further alleged that opposite parties failed to assist and provide family Visa of the complainant. As such, he asked opposite parties to refund his money from time to time, but they did not pay any heed to his requests. Ultimately, they refused to refund his money despite various e-mails, requests and demands. On this backdrop of facts, the complainant has claimed refund of Rs.1,97,500/- alongwith interest @ 18% per annum; compensation/damages to the tune of Rs.1,00,000/- in addition to Rs.11,000/- as litigation expenses. Hence, this complaint. In view of statement suffered by counsel for complainant, name of opposite party Nos.2 and 3 was deleted from the array of opposite parties. Upon notice, opposite party No.1 appeared through its counsel and contested the complaint by filing its written version. In the written version, opposite party No.1 has raised the preliminary objections/submissions that the complaint is not maintainable either on merits or as per law. It is liable to be outrightly dismissed. It has been filed by the complainant on mere conjectures and surmises. The contents of the complaint are wholly misconceived, vexatious, misleading, misrepresented, unsustainable, false, frivolous and are nothing but a flagrant abuse of the process of law. There is no deficiency in service on the part of opposite party No.1. As such, no case is made out against opposite party No.1 under the provisions of 'Act'. The complaint is liable to be dismissed with exemplary costs U/s 26 of 'Act'. The complainant and opposite party No.1 are governed by terms and conditions available online in the user agreement. The alleged grievances raised by the complainant are flimsy, vexatious, frivolous and submitted before this Forum with the ulterior motive. As per jurisdiction clause of the user agreement, only the Court of NCR Delhi has the territorial jurisdiction to entertain the disputes, if any, arising out of the bookings. Opposite party No.1 is a private limited company duly incorporated under Companies Act, 1956. It is a well reputed and highly acclaimed tour and travel company having its offices in New Delhi, Mumbai, Kolkata, Bangalore, Ahmadabad and Gurgaon and branch office in New York (USA). It operates and carries its business operations through the afore mentioned Offices. All the transactions with opposite party No.1 are governed by the website's user agreement, applicable to the person (s) intending to purchase or inquiring for any products and/or services of opposite party No.1 by using its websites or using any other its customer interface channels, which includes its sales persons, offices, call centres, advertisements, information campaigns etc. In view of the terms and conditions as enumerated in the agreement, opposite party No.1 is not liable for any claim as alleged in the complaint. The parties are bound to adhere to the terms of the user agreement. Further preliminary objections/submissions are that the complainant contacted opposite party No.1 in the month of April 2016 and out of all the various packages available , desired to book the trip inscribed in the name and style of 'Swiss Paris Delight'. Accordingly, opposite party No.1 shared and explained the brochure for the trip with the complainant. After taking a go-ahead from him, on 20.4.2016, opposite party No.1 duly booked the trip in question scheduled from 7.6.2016 and issued the booking ID to that effect, on having received the advance amount of Rs.60,000/-. Thereafter the booking confirmation was shared with the complainant mentioning the itinerary and Visa requirements and he was also explained all the documents required for Visa processing on every call as and when made by him. Opposite party No.1 has also reproduced the relevant extract of the terms and conditions and cancellation policy as below: - "Please note that the approval or rejection of Visa is done at the sole discretion of the embassy. MakeMyTrip can under no circumstances assure grant or approval of Visa. Therefore, MakeMyTrip will not be held responsible for approval or rejection of your Visa, as we are only acting as an intermediary in the application process. ....... Cancellation Policy Destination | 31 Days prior to the departure | 30-16 Days prior to the departure | 20 Days or below prior to the departure | Switzerland & Paris | 20% of holiday cost | 50% of holiday cost | 100% of holiday cost” |
It is further revealed that as soon as all the documents were made available to opposite party No.1 i.e. on 3.5.2016, it immediately took an appointment with the embassy for the complainant's Visa processing. The information regarding the appointment was shared/communicated to the complainant on 4.5.2016. Subsequently, he made another part payment for an amount of Rs.60,000/- out of the total payment made to the tune of Rs.1,97,500/-. Opposite party No.1 again shared the booking confirmation with the complainant vide e-mail dated 9.5.2016 enumerating all the trip details alongwith terms governing the booking and cancellation. The terms and conditions enumerated in the e-mail are also briefed as under:- "Booking and Cancellation Policy Till 36 days or more =25% of Holiday Cost Between 35-21 days of departure = 50% of Holiday Cost D-20 days or below=100% of Holiday Cost Visa Fee & Service charges are non-refundable No Refund will be made for any underutilized services provided in the package Passport Validity Should be minimum 6 months from the date of travel Initial amount can vary as per package" It is further revealed that after examining the documents sent by the complainant to opposite party No.1, on 9.5.2016, it duly submitted the application for Visa processing. Thereafter the complainant made another part payment of Rs.60,000/- on 11.5.2016 and another payment of Rs.65,500/- on 24.5.2016. He made the total payment of Rs.1,97,500/- out of the total booking amount to the tune of Rs.2,63,017/-. On 24.5.2016, the Visa team of opposite party No.1 received the information regarding the rejection of the Visa of the complainant. Hence, the same was informed to the complainant as well. It is further pleaded that the complainant is alleging that the Visa was rejected due to non-submission of documents to the concerned embassy by opposite party No.1. The Visa was rejected by the concerned embassy stating the reasons of rejection as follows:- "The information submitted regarding the justification for the purpose and conditions of the intended stay was not reliable. Your intention to leave the territory of the Member States before the expiry of the Visa could not be ascertained" Opposite party No.1 has no authority/role in granting or refusing the Visa. It applied for the Visa as soon as all the documents were received. It is reiterated that the complainant and opposite party No.1 are bound by the booking terms and conditions. Post rejection of Visa, the complainant contacted opposite party No.1 to refund the amount paid for the tour. At the time when the Visa was rejected, it was already under non-refundable clause. Hence, the complainant was not eligible for any refund. In good faith, opposite party No.1 had already blocked the air tickets and hotel accommodation as desired by the complainant and these bookings are non- refundable as opposite party No.1 commits to the concerned service provider i.e. airlines and hotels for the customers to travel and in the event of any last moment cancellation, the amount is forfeited by the airlines and concerned hotels. There was no deficiency at the end of opposite party No.1 in Visa process. Opposite party No.1 had at all times endeavored to get the requisite documents to process Visa application within time. The rejection of the Visa was by the concerned embassy for the reason explained therein and not on the ground of any act and/or omission on the part of opposite party No.1. However, as per the booking terms and conditions as agreed by both the parties, Visa fee is non- refundable. The complainant was also made categorically aware that the flight tickets and hotel accommodation arranged, as desired by him, were non-refundable. As such, he is not entitled for any refund in this respect as opposite party No.1 has already invested the booking amount received from him in arranging all above. It is further pleaded that the grievances of the complainant is not well founded and requires no consideration indulgence by this Forum. It is also mentioned that the complainant must prove the loss suffered due to the acts and omission of opposite party No.1 in order to allege and receive monetary compensation. There has been no such quantified loss enunciated by the complainant in the complaint. The damages need to be proven in liability cases. The nature and extent of the damages are not the primary focus of the case. The complainant is not entitled to any refund or damages. It is relevant to mention that in order to support its preliminary objections/submissions, opposite party No.1 has also quoted some case law, reference of which is not necessary at this stage. On merits, opposite party No.1 has reiterated its stand as taken in the preliminary objections/submissions and detailed above and controverted all the averments of the complainant. In the end, opposite party No.1 has prayed for dismissal of complaint. Parties were asked to produce the evidence. In support of his claim, the complainant has tendered into evidence his affidavit dated 11.2.2017, (Ex.C1); photocopy of brochure, (Ex.C2); photocopies of no objection certificate, (Ex.C3 and Ex.C27); photocopies of account statement, (Ex.C4, Ex.C16, Ex.C17 and Ex.C28); photocopies of passbook of bank, (Ex.C5 and Ex.C29); photocopies of forms ITR, (Ex.C6 to Ex.C8, Ex.C30 and Ex.C31 and Ex.C34); photocopies of e-mails, (Ex.C9 and Ex.C10); photocopies of standard forms, (Ex.C11 to Ex.C13); photocopies of counter foils of bank, (Ex.C14 and Ex.C15); photocopies of payment receipts, (Ex.C18 to Ex.C23); photocopy of helpline details, (Ex.C24); photocopies of letters, (Ex.C25 and Ex.C26); photocopies of form 26 AS, (Ex.C32 and Ex.C35); photocopy of form 16, (Ex.C33) and closed the evidence. To rebut the claim of the complainant, opposite party No.1 has tendered into evidence affidavit of Ekank Mehra dated 3.6.2017, (Ex.OP1/1); photocopy of resolution, (Ex.OP1/2); photocopy of agreement, (Ex.OP1/3); photocopy of brochure, (Ex.OP1/4); photocopy of booking confirmation, (Ex.OP1/5); photocopies of e-mails, (Ex.OP1/6 and Ex.OP1/7) and submitted written arguments. We have heard learned counsel for parties and gone through the file as well as written arguments submitted by learned counsel for opposite party No.1. Learned counsel for complainant has reiterated his stand as taken in the complaint and detailed above. It is further submitted by learned counsel for complainant that some facts are not in dispute. It is not disputed that the complainant alongwith his family members were to avail tour from opposite parties for the period from 7.6.2016 to 13.6.2016 for total sum of Rs.2,63,017/-. It is also not disputed that the complainant has paid total amount of Rs.1,97,500/-. It is also not disputed that he and his family was not granted Visa. As such, he could not avail the tour. Version of the complainant is that opposite parties failed to get Visa for him and his family. Of-course, opposite party No.1 has denied this fact, but the documents will prove that Visa was declined due to deficiency in service on the part of opposite party No.1. Opposite party No.1 has admittedly issued e-mail, (Ex.C11) conveying refusal of Visa. Visa has been denied on the ground that the information submitted regarding justification purpose and conditions of the intended stay was not reliable. Opposite party No.1 was certainly expected to arrange for stay. The purpose was for the tour. Opposite party No.1 was also to guide the complainant properly for these matters, but it failed to discharge its onus. Therefore, the complainant and his family were refused Visa. The Visa was rejected vide letter dated 23.5.2016. Opposite party No.1 was aware of this fact on that very day. It has received Rs.65,500/- on 24.5.2016 i.e. day after rejection of Visa knowing well that Visa has been refused to the complainant and his family. This fact itself proves that opposite party No.1 has adopted unfair trade practice to grab money from the complainant. It is further submitted by learned counsel for complainant that as the complainant could not avail the tour due to lapse of opposite party No.1, therefore, he was entitled to refund of entire amount of Rs.1,97,500/-. Opposite party No.1 has tried to take shelter of terms and conditions to deny refund. It has pleaded about 20% discount, 50% discount in case of cancellation, 31 days before departure or 30 to 60 days prior to departure. The proposed tour of the complainant was from 7.6.2016. Opposite party No.1 has received Rs.60,000/- from the complainant on 29.4.2016, but this amount was not refundable and opposite party No.1 was to claim Rs.20,000/- per person just to assist for completing the formalities/documentation for the purpose of Visa. Therefore, opposite party No.1 has received Rs.60,000/- on 4.5.2016 and Rs.66,000/- on 11.5.2016. The complainant was called for Visa itself at VFC on 9.5.2016. Therefore, opposite party No.1 was having no reason to make confirmed booking before grant of Visa to the complainant. As such, cancellation policy is not applicable in the case of the complainant. Opposite party No.1 has tried to grab the amount of the complainant on the basis of document, (Ex.OP1/5) to prove that his booking was confirmed. It has also relied upon agreement, (Ex.OP1/4). The documents for Visa processing are mentioned in this document. It is also mentioned that the actual reservation with the hotel, flight and itinerary will be provided once Visa is granted. Therefore, this document (agreement) relied upon by opposite party No.1 also proves that it was to get actual reservation with the hotel and flight only after grant of Visa. Opposite party No.1 was well aware of the fact that the complainant has been declined Visa. Therefore, in these circumstances, opposite party No.1 cannot forfeit the amount received from the complainant. The deficiency in service and unfair trade practice on the part of opposite party No.1 stands proved. The complainant has lost visit only due to negligence on the part of opposite party No.1 for not proper assistance for grant of Visa. Therefore, he is held entitled to compensation of Rs.1 lakh as claimed for. On the other hand, learned counsel for opposite party No.1 has submitted that the parties are bound by the terms and conditions settled in the user agreement. This Forum cannot mold the terms and conditions. The copy of agreement is brought on record as Ex.OP1/4. The cancellation policy is part of the agreement. It proves that in case of cancellation, 31 days prior to the departure, 20% of the holidays cost is forfeited and in case of cancellation, 20 days or below prior to departure, 100% of the holidays cost is forfeited. The complainant was denied Visa vide letter dated 23.5.2016 whereas schedule tour was from 7.6.2016 i.e. after less than 20 days from the denial of Visa. In these circumstances, 100% of the holidays cost is to be forfeited. Opposite party No.1 has already got booking confirmed in anticipation of the visits. The letter dated 9.5.2016, (Ex.OP1/5) proves that the bookings for the complainant's family were confirmed. It is also submitted by learned counsel for opposite party No.1 that letter dated 9.5.2016, (Ex.OP1/5) also proves that Rs.60,000/- was charged for Visa assistance. The complainant has also admitted this fact in this complaint. Learned counsel for opposite party No.1 has reiterated that as per Ex.OP1/3, jurisdiction was only of the courts of NCR Delhi of India. Opposite party No.1 is having its registered office. Learned counsel for opposite party No.1 has further submitted that the complainant has claimed compensation/damages to the tune of Rs.1 lakh, but there was no role of opposite party No.1 for grant of Visa. The complainant has also not produced any evidence to prove any monetary loss to justify compensation/damages. The complaint is without merits and be dismissed. To support these submissions, learned counsel for opposite party No.1 has cited 2015(1) CPJ 639 Ms.Maria Margarida De Naronha Tavora and Others Vs. Travaco Holidays Pvt. Ltd. and Another. We have given careful consideration to these rival submissions. Admitted facts are that the complainant finalized visit to Paris (Europe) alongwith family. The total cost of the trip was settled as Rs.2,63,017/-. The complainant could not avail the trip mainly for the reason that his and his family Visa was refused. By that time, he has paid total sum of Rs.197,500/- out of Rs.2,63,017/-. He has claimed refund of amount paid to opposite party No.1 and opposite party No.1 has refused to refund the amount. Opposite party No.1 has tried to justify refusal on the basis of agreement as well as documents stated to be booking confirmation. The stand of opposite party No.1 can be conveniently examined with reference to amount settled and paid by the complainant. The first payment of Rs.60,000/- was paid by the complainant on 29.4.2016 and schedule trip was to commence from 7.6.2016. It is also admitted case of the parties that opposite party No.1 was to charge Rs.60,000/- i.e. Rs.20,000/- per person for the purpose of Visa assistance. It cannot be disputed that firstly, opposite party No.1 was to adjust the amount, which was for the purpose of Visa assistance and non refundable. Therefore, it can be assumed that Rs.60,000/- received by opposite party No.1 on 29.4.2016 was for the purpose of Visa assistance. Other process was certainly to commence after getting Visa. The next payment of Rs.60,000/- has been paid by the complainant on 4.5.2016. Opposite party No.1 has placed on record letter, (Ex.OP1/5) stated to be booking confirmation. This letter is dated 9.5.2016. Its copy was not forwarded to the complainant at anytime. Therefore, the genuineness of this document becomes doubtful. Even otherwise, by that time, opposite party No.1 has paid Rs.60,000/- only out of Rs.2,63,017/-. Therefore, opposite party No.1 was also having no reason to spend huge amount for booking confirmation in the name of the complainant without receiving major part of dues. Ex.OP1/5, also is letter by the complainant and not from any other company. Therefore, on the basis of this letter, (Ex.OP1/5) also, it cannot be concluded that opposite party No.1 has confirmed the booking. Of-course, next amount of Rs.66,000/- has been paid by the complainant on 11.5.2016. Opposite party No.1 has admitted that 9.5.2016 date was fixed for visit of the complainant and his family to Visa Application Centre. Therefore, opposite party No.1 was also to wait for approval of Visa before making other bookings. It has received amount of Rs.65,500/- on 24.5.2016. The complainant has produced on record letter, (Ex.C13) forwarded by opposite party No.1. It is dated 23.5.2016. Therefore, by that time, opposite party No.1 has become aware that Visa to the complainant and his family has been refused. As such, after refusal of Visa, opposite party No.1 was also not having any reason to make confirmation on behalf of the complainant. Opposite party No.1 has tried to justify its version on the basis of terms and conditions contained in the agreement, but this document also does not entitle opposite party No.1 to forfeit the amount received from the complainant. In this document, there is reference of Visa requirement, Visa processing and Visa service that are to be provided by opposite party No.1. The condition of Visa processing regarding documents are mentioned as under:- “In order to facilitate your visa application process, we will be providing you with two copies of travel documents, such as hotel vouchers, air travel details and itinerary. Please submit one copy alongwith your other documents at the consulate to apply for your Visa. Moreover if you have to appear for a personal interview, please mention the details as stated on this travel document to the interviewer. Please note that the information communicated in this document is only for Visa processing purposes. The actual reservation with the hotel, flight and itinerary will be provided to you once Visa is granted and as per the payments terms set by MakeMyTrip. Rest assured, details of your actual booking, which includes details on the hotel that you've booked, flight bookings and actual itinerary will be communicated separately to you by operations team.” A perusal of this condition mentioned in the agreement also proves that actual reservation with the hotel, flight and itinerary was to be provided by the company once Visa is granted and as per the payments terms set by the company i.e. Make My Trip. Visa was not granted. The payments as per settled terms were not made. Therefore, opposite party No.1 was having no reason for making actual reservation. This fact also belies the version of opposite party No.1 that it has right to forfeit the amount as per terms and conditions. Therefore, denial of refund by it amounts to deficiency in service and unfair trade practice. Now, point is for reliefs to which the complainant is held entitled to. Admittedly, complainant has paid total sum of Rs.1,97,500/-. He has claimed this amount with interest. He himself has pleaded in the complaint that opposite parties promised that if in any case, Visa is rejected, they would take Rs.60,000/- i.e. Rs.20,000/- per person. Therefore, out of sum of Rs.1,97,500/-, Rs.60,000/- is not refundable. The complainant is entitled to refund of remaining amount of Rs.1,37,500/-. Opposite party No.1 has denied the claim illegally, which necessitated institution of the complaint. Therefore, The complainant is also held entitled to cost of litigation amounting to Rs.10,000/-. Of-course, he has claimed compensation to the tune of Rs.1 lakh, but there is no justification for claim of this compensation. For the reasons recorded above, this complaint is partly accepted with Rs.10,000/- as cost of litigation against opposite party No.1. Opposite party No.1 is directed to refund an amount of Rs.1,37,500/- to the complainant within 45 days from the date of receipt of copy of this order, failing which, thereafter the interest @ 12% per annum will yield on the amount payable to the complainant. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record. Announced:- 23-04-2018 (M.P Singh Pahwa) President (Jarnail Singh) Member (Sukhwinder Kaur) Member
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