Haryana

StateCommission

A/1144/2016

MOHIT MADAN - Complainant(s)

Versus

MAKE MY TRIP - Opp.Party(s)

AMIT CHAUDHARY

29 Aug 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :    1144 of 2016

Date of Institution:    01.012.2016

Date of Decision :      29.08.2017

 

Mohit Madan s/o Sh. Kishori Lal, Resident of Fatehabad, Tehsil and District Fatehabad.

                                      Appellant-Complainant

Versus

Make My Trip Registered Office UG-07, Front Side, TDI Shopping Mall, Rajouri Garden, New Delhi-110027, India through its authorised Signatory/Proprietor.

Second Address:

Make My Trip (India) Private Limited Tower A, SP Infocity, 243, Udyog Vihar, Phase-I, Gurgaon-122076.

                                      Respondent-Opposite Party

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Mr. Balbir Singh, Judicial Member.

                                                                                                         

Argued by:          None for appellant.

                             Shri Naveen Sharma, Advocate for respondent.

 

                                                   O R D E R

 

BALBIR SINGH, JUDICIAL MEMBER

 

        This complainant’s appeal is directed against the order dated September 29^th, 2016 passed by District Consumer Disputes Redressal Forum, Fatehabad (for short ‘the District Forum’) whereby complaint was dismissed.

2.                Mohit Madan-complainant filed complaint under Section 12 of the Consumer Protection Act, 1986 averring that he came to know from the website of Make My Trip-Opposite Party that air tickets with hotel, insurance, visa and other services to visit Switzerland were available with the opposite party on payment of Rs.1,87,605/- regarding visit of complainant Mohit Madan and his wife. The complainant got booked two air tickets with the above mentioned facilities with the opposite party on February 18^th, 2015 vide booking ID No.IN1502B8S007706. The booking of air tickets of the complainant and his wife was confirmed on April 13^th, 2015 after payment of an amount of Rs.1,87,605/-. The above mentioned amount was deposited from account No.55582 HDFC Bank, Fatehabad in the account of the opposite party. On April 12^th, 2015 after making inquiry, the complainant found that the opposite party could not provide visa regarding visit of the complainant and his wife. The complainant could not receive a satisfactory reply in this regard from the opposite party. Apart from the above mentioned amount, the complainant also spent an amount of Rs.30,000/- extra for booking of tickets due to urgency and short time. The complainant requested the opposite party for refund of the above mentioned amount and a legal notice was also served upon the opposite party on June 05^th, 2015 by the complainant. The opposite party did not make payment of the above mentioned amount.

3.                The complainant prayed that the complaint be allowed directing the opposite party to make payment of an amount of Rs.1,87,605/- spent for purchase of air tickets with interest at the rate of 18% per annum; an amount of Rs.30,000/- extra amount spent by the complainant for arranging tickets due to short period; an amount of Rs.1,00,000/- on account of un-necessary harassment, mental agony and an amount of Rs.11,000/- on account of litigation expenses.

4.                The opposite party in its written version has taken plea that the complaint filed by the complainant is not maintainable and that it is not a case of deficiency in service. As per version of the opposite party it was not the responsibility of the opposite party to get the visa cleared. The complainant and the opposite party are bound by the terms and conditions agreed with consent of both the parties. As per terms and conditions of the agreement, the District Forum has no jurisdiction to decide this complaint. As per terms of the agreement only the courts of National Capital Region (NCR), Delhi have the territorial jurisdiction to entertain the dispute, if any, arisen out of the booking. Only courts or Consumer Forum at Delhi have jurisdiction to decide this complaint.  It is not a case of deficiency in service on the part of the opposite party. The complainant had taken decision to obtain “Swiss Paris Delight” package after he was given all other possible options. The details of the package which included cancellation policy, was also provided to the complainant. The visa was to be procured by the complainant from Swiss Embassy. The application of the complainant for providing Swiss Visa was rejected by Swiss Embassy due to the reasons best known to it. The complainant was given timely information regarding rejection of Visa explaining the reasons of rejection in detail. The opposite party got booked the air tickets. Since the opposite party had already got booked the air tickets for the complainant and his wife, which were not refundable, therefore, the opposite party is not liable to refund any part of the amount received from the complainant. The opposite party took steps as per booking terms and conditions. Moreover, cancellation policy was agreed by the complainant on email and as per the cancellation policy, the cancellation was 100% seven days prior to departure. Therefore, the complainant is not entitled for any amount as compensation because the complainant has no supporting proof that he has suffered any damage or loss on account of any fault on the part of the opposite party. In fact, the problem arose as embassy was not satisfied with the documents showing financial position of the complainant provided by the complainant. The complainant is not entitled to receive any amount of compensation. It is prayed that the complaint filed by the complainant be dismissed with cost.

5.                Both the parties adduced evidence in support of their respective claims before the District Forum.

6.                After hearing arguments, vide impugned order dated September 29^th, 2016 the complaint filed by the complainant was dismissed.

7.                Aggrieved with the order dated September 29^th, 2016 passed by the learned District Forum, the complainant has filed the present appeal No.1144 of 2016 with a prayer to set aside the impugned order passed by the learned District Forum and to grant relief to the complainant as prayed in the complaint.

8.                At the time of arguments, none appears on behalf of the appellant-complainant Mohit Madan. In this case, earlier also on January 16^th, 2017 and February 08^th, 2017 none appeared on behalf of the appellant-complainant. On March 28^th, 2017 Shri Amit Chaudhary, Advocate appeared on behalf of the appellant and on August 17^th, 2017 Shri Gulshan Aggarwal, proxy counsel appeared on behalf of the appellant. Thereafter, on next two hearings none appeared on behalf of the appellant-complainant. The appellant does not appear to be much interested in this litigation and in such circumstances the appellant could not be given opportunity to address arguments. We have heard learned counsel for the respondent-opposite party and perused the case file.

9.                It is the common case of both the parties that the complainant Mohit Madan and his wife purchased two air tickets on payment of Rs.1,87,605/- to visit Switzerland in which all services like air ticket, hotel, insurance, Visa and other services were included. Air tickets were booked on February 18^th, 2015. However, booking was confirmed on April 13^th, 2015. It is evident from the receipt Exhibit C/3 also. Everything was in routine. The problem arose as the Swiss Embassy declined Visa permit to visit Switzerland to the complainant and his wife vide letter Exhibit OPW/C mentioning that the complainant and his wife could not provide sufficient means of subsistence, for the duration of the intended stay or for the return to the country of origin or residence, or for the transit to a third country into which you are certain to be admitted, or you are not in a position to acquire such means lawfully. Final package details are mentioned in letter Exhibit OPW/E.

10.              The air travel tickets of the complainant and his wife were got booked through opposite party; office of the opposite party is situated at New Delhi as well as Udyog Vihar, Phase-1, Gurgaon. Regarding purchase of air tickets, payment amounting to Rs.1,87,605/- was made from bank account No.25582 of the complainant with HDFC Bank Limited, Fatehabad. Version of the complainant is that although office of the opposite party exists at Delhi and Gurgaon but cause of action partly arose in the area of Fatehabad, Haryana as amount regarding purchase of the air tickets was paid from the bank account of the complainant in HDFC Bank, Fatehabad.

11.              As per terms and  conditions mentioned in Annexure-A in case of any dispute in connection with booking or cancellation etc. of the air tickets, the jurisdiction shall be of the Courts and Tribunal in Delhi alone. The present complaint was filed by the complainant before the District Forum, Fatehabad where the cause of action partly arose. It is the case of the complainant that on the basis of terms and conditions, the jurisdiction of the Court or Tribunal cannot be excluded. This view of the complainant finds support from a decision of the Hon’ble Supreme Court in case law (2011)7 SCC 463 InterGlobe Aviation Ltd. v. N. Satchidanand.

12.              As per facts of case law referred above also contractual clause was seeking to exclude jurisdiction of all courts other than Delhi and in that case cause of action or even part of cause of action had not arisen in Delhi. In case law referred above, findings were given that the jurisdiction cannot be restricted by contractual clause in between both the parties excluding jurisdiction of all other courts.

13.              On this point of controversy, learned counsel for the opposite party placed reliance upon case law Sonic Surgical vs. National Insurance Company Limited, 2010(2) CPJ 40 (SC) and Dr. Noheria vs. M/s Make My Trip (India) Pvt. Limited and another Revision Petition No.2191-2192 of 2012, decided on May 22^nd, 2013. The above mentioned case laws were cited before the learned District Forum also but the District Forum gave findings against the opposite party on the point of territorial jurisdiction keeping in mind the provision of Section 11(2) of the Consumer Protection Act, 1986 as cause of action partly arose at Fatehabad where payment regarding transaction was made. As per facts of case law referred above in Sonic Surgical vs. National Insurance Company Limited (Supra), neither cause of action wholly or in part arose within the area of Union Territory, Chandigarh nor any of the opposite parties used to reside or was having branch office in the area of Union Territory, Chandigarh. Facts of case law referred above are somewhat different from the facts and circumstances of the case in hand. Similarly, facts and circumstances of above referred case law Dr. Noheria vs. M/s Make My Trip (India) Pvt. Limited and another (Supra), are also different from the facts and circumstances of the case in hand. Both the case laws referred above are not of much help to the opposite party in this case. Keeping in mind the above mentioned circumstances and case law referred above in InterGlobe Aviation Ltd. v. N. Satchidanand (Supra), findings can be safely given that the District Forum, Fatehabad has jurisdiction to decide this complaint. Resultantly, findings of the District Forum that the District Forum, Fatehabad has jurisdiction to decide this complaint stands affirmed.

14.              Admittedly, the air tickets booking regarding visit to Switzerland of complainant and his wife stood cancelled as the Switzerland embassy refused to provide Visa regarding this visit to the complainant and his wife. The reason to decline Visa to the complainant and his wife are mentioned in the letters Exhibits OPW/C and OPW/D regarding refusal/annulment/revocation of Visa, which have been mentioned in detail in earlier paragraph of this order. So, it is clear that visit of the complainant and his wife to Switzerland could not be possible as Switzerland Embassy declined Visa permit.

15.              Version of the complainant is that as per terms and conditions, it was the duty of the opposite party to obtain Visa permit regarding his visit and issuance of Visa is also covered under the package. Version of the opposite party in this case is that the opposite party only acted as felicitator for Visa process and is not responsible for scrutinizing the visa before submitting it to the Visa Authorities. It was the discretion of Switzerland embassy to reject or grant visa to the complainant and his wife. In support of his this contention, learned counsel for the opposite party placed reliance upon terms and conditions mentioned in Outbound Tours Exhibit OPW/A. Learned counsel for the opposite party argued that terms and conditions were dully supplied to the complainant through email. It is so mentioned in the written reply also. So, from the terms and conditions, it is clear that role of the opposite party was only as a facilitator  for applying the Visa and opposite party cannot be held responsible regarding declining request of the complainant and his wife for providing Visa.  In Outbound Tours, booking terms and conditions Exhibit OPW/A, it is mentioned in the forfeiture of deposits clause of the terms and conditions and it is clear that the opposite party was not responsible regarding issuance of Visa in favour of the complainant and his wife. It is also mentioned in clear words that in the event of denial/rejection of Visa, MMT shall be entitled to recover any cost incurred in making such booking by way of deducting cancellation charges as specified. The detail of the cancellation charges is also mentioned in the document Exhibit OPW/A. It was a case of 100% cancellation charges as the difference in between the date of departure and cancellation of the air tickets due to decline of issuance of Visa was less than seven days.

16.              As per discussions above in detail, the forfeiture of total amount of Rs.1,87,605/- spent by the complainant for purchase of air tickets was justified. We find no illegality and invalidity in the impugned order dated September 29^th, 2016 passed by the learned District Forum.  Accordingly, findings of the learned District Forum stand affirmed and the appeal stands dismissed.

 

Announced: 29.08.2017

(Balbir Singh) Judicial Member

(Nawab Singh) President

 

CL