Punjab

Ludhiana

CC/22/402

Jitesh Kumar Sharma - Complainant(s)

Versus

Make My Trip - Opp.Party(s)

complaint in person

10 Jan 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:402 dated 19.10.2022.                   

                                     Date of decision: 10.01.2024.

 

Jitesh Kumar Sharma, Ludhiana, Punjab-141003 c/o Ajaib Singh, House No.1446D, Model Town Extension, D-Block, Ludhiana, Punjab-141001. Contact No.70187-00573. Email ID:Sjitesh@gmail.com.                                                                                                                                                                                                                                         ..…Complainant

                                                Versus

Makemytrip Travel Services Private Limited Chamber No.11, Saraswati Bhawan Basement ¼ Lalita Park, Laxmi Nagar, Delhi 110092.

…..Opposite party

Complaint Under section 35 of the Consumer Protection Act, 2019

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant            :         None.

For OP                           :         Sh.Maninder Heer, Advocate

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                In brief, the facts of the case of the complaint are that the complainant booked a Banglore tour package from OP for an amount of Rs.77,200/- from 13.08.2022 to 17.08.2022 vide booking ID NL2103343289326 on 09.08.2022 and the complainant received the confirmation mail on the same day but the complainant’s tour package got cancelled on 10.08.022 by the complainant concern. The complainant contacted the concerned customer support for resolving the issue but he was told that they have got a mail for cancelling the tour from the complainant. The complainant did not send any such mail and it was assured by the customer support of the complainant concerned that they will reschedule the tour. Despite repeated contacts with the OP, no response was received as the complainant neither received the rescheduled tour plan nor the refund has been made to him. Such act and conduct of OP regarding non-providing the proper services qua booking of tour package despite receipt of booking amount is claimed to be unfair trade practice. So, by filing the present complaint, the complainant has prayed for issuing directions to OP to refund the amount of Rs.77,200/- along with compensation of Rs.2 lac as well as litigation expenses.

2.                Upon notice of the complaint, opposite party appeared and filed written statement and assailed the complaint on the ground that the complainant has not approached this Hon’ble Commission with bonafide intents and evident attempt has been made to gain undue advantage by misrepresenting and distorting the material facts. It has been submitted that the answering OP merely acts as a facilitator for booking the confirmed air tickets/hotel bookings on behalf of its customer with the concerned service providers. Answering OP upon the request received from its customers, forwards the same of the concerned service providers through software’s embedded on its web-portal. The facts regarding booking, payment of booking amount and cancellation of the same are not denied. It is submitted that the parties are bound by the agreement executed between the parties. As per the terms and conditions of the agreement, in the event that the user cancels the booking or fails to adhere to the tour payment schedule as informed in the documentation check list or in the event that the visa of the destination country is not granted or the user is unable to travel on the tour booked due to any person reason, including medical ground or sickness, cancellation charges will apply as communicated to the user by MMT(Make My Trip).  MMT is only a facilitator and any refund for any service(s) which are not delivered by the service provider/independent contractors or for any reason for which the user is entitled for a refund is subject to MMT receiving the amount from the said service provider. User acknowledges that MMT shall not be held liable for any delay in refund or non-refund of the amount from the respective service provider or independent Contractors of MMT. In such events the user shall directly approach the service provider for any claims. As per the terms and conditions of the agreement between the User and MMT, the complainant duly agreed to the role of the answering OP, being a facilitator between the concerned service providers and the complainant. The OP was under obligation to provide the confirmed outbound tour to the complainant. Once the outbound tour is confirmed by the concerned service provider, the same was shared with the complainant. Moreover, once the confirmed outbound tour is issued to the complainant, the answering OP is discharged from its obligation and duties qua the said booking. It has been submitted that as per the terms and conditions of agreement, it is clear that package was non-refundable and even no change of date was allowed. As the complainant himself had cancelled the holiday package and as the package is non-refundable, therefore, no refund is applicable. There is no deficiency in service or breach of contract on the part of the answering OP. On merits, rest of the allegations levelled in the complaint have been specifically denied and prayed for dismissal of the complaint with costs.

3.                In the present case, no evidence of the complainant produced since 16.05.2023 despite grant of sufficient opportunities including last chance. Even nobody turned up on behalf of the complainant since 16.05.2023 as well. In these circumstances, this Commission is of the considered view that the complainant has failed to produce any evidence in order to establish his pleadings as alleged in the complaint. Therefore, the complainant has failed to discharge the initial burden of proving deficiency in service on the part of the OP by way of any credible evidence as he did not turn up since long.

4.                In this regard, reference can be made to SGS India Ltd. Vs Dolphin International Ltd. in Civil Appeal No.5759 of 2009 decided on 06.10.2021 (LL 2021 SC 544) by the Hon'ble Supreme Court of India whereby it has been held as under:-

19. The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.

In the above cited case, the Hon'ble Supreme Court of India has placed reliance on its own judgment reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. whereby it has been held that the burden of proving the deficiency in service is upon the person who alleges it. "6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent." 20. This Court in a Judgment reported as Indigo Airlines v. Kalpana Rani Debbarma & Ors. (LL 2021 SC 544) held the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under:-

"28. In our opinion, the approach of the Consumer Fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service."

                   The Hon'ble Supreme Court of India has further upheld this view in recent judgment II(2023) CPJ 83 (SC) in Chairman & Managing Director, City Union Bank Ltd. & Anr. Vs R. Chandramohan. In the given facts and circumstances, the complainant has failed to prove the deficiency in service on the part of the opposite party by any cogent and convincing evidence. 

5.                Sequel of the above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

 

                    (Jaswinder Singh)                     (Sanjeev Batra)

                    Member                                       President         

 

Announced in Open Commission.

Dated:10.01.2024.

Gurpreet Sharma