DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

C.C. No. 273/2018

Date of Institution: 23.08.2018

Judgment Reserved on: 18.01.2024

Judgment Passed on: 23.01.2024

QUORUM:

Sh. S.S. Malhotra (President)

Sh. Ravi Kumar (Member)

Ms. Rashmi Bansal (Member) On Leave

Order By: Shri S.S. Malhotra (President)

JUDGMENT

1. By this judgment Commission shall dispose off the complaint of the complainant alleging deficiency in not refunding the paid amount to the OPs despite cancelling the trip by the complainant, for overseas, visiting to Bali.
2. Brief facts as stated by the complainant in the complaint are that complainant has booked his ticket and approached OP for arranging a tour to Bali and the OP gave the package for an amount of Rs.1,47,733/- and the complainant had paid Rs.1,33,000/- for the same out of Rs.1,47,733/- & the tour was scheduled w.e.f. 11.08.2018 to 18.08.2018, however the complainant saw the news on 05.08.2018 to the effect that an earthquake of magnitude of 6.9 has hit Bali and as per the news, situation in Bali was chaotic and safety was a big concern there, as the earthquake there had damaged buildings in Kuta on the island of Bali & has caused severe damage to the airport and, after this news, complainant sent an email to the OP on 08.08.2018 informing it, that his trip to Bali scheduled w.e.f. 11.08.2018 to 18.08.2018 be cancelled due to earthquake has occurred on 05.08.2018 at Bali as it was highly unsafe to travel at that time, but the complainant did not get any satisfactory reply & then he sent another email dated 10.08.2018 thereby mentioning that there was another earthquake of magnitude of 6.2 on 09.08.2018 also due to which 347 persons had died and again urged the OP to cancel the trip to Bali. The complainant then received the reply of OP on 10.08.2018 itself thereby mentioning that (OP) they have checked with their team regarding the situation  of Bali and all the news which are coming shows that it is quite safe to travel there and even despite telling all such facts to the complainant, the complainant requested to OP to cancel his trip and then cancellation was done as per policy terms & conditions, complainant again sent mail  to OP but the OP did not reply satisfactory and as such he has filed the present complaint claiming deficiency on the part of OP for not returning the amount, with the prayer that OP be directed to refund Rs.1,33,000/- alongwith compensation of Rs.1 Lakh with litigation charges of Rs.50,000/-.
3. OP has filed its reply taking preliminary objection that the complaint case is not maintainable either on merits or on law as the complaint has been filed on mere conjectures and surmises and in fact there was no deficiency of service on the part of OP as OP simply acted as a booking agent and it is only the complainant who requested to cancel the confirmed trip just 3 days prior to the scheduled departure, when the trip come under non-refundable category upon cancellation & therefore present complaint is liable to be dismissed. Further it is stated that complainant and OP are governed by terms & conditions between parties and in this regard it is settled position of law that the District Forum should not entertain or interfere in the matter where terms & conditions of the User Agreement are quite specific & binding upon the parties in terms of the judgment in Bharti Knitting Co. Vs. DHL Worldwide Express Courier in 1996 4SCC 704. It is further submitted that the grievance raised by  the complainant is flimsy, vexatious, frivolous with ulterior motive so that OP should come to the pressure of the complainant in returning the amount and it is again submitted that complainant is not entitled for damage as there is no supporting proof that they have suffered any damage or loss by reason of any omission on the part of the OP. Even the complainant otherwise in terms of the Force Majure Circumstances which specifically mention that

“The user agrees that there can be exceptional circumstances where the service operators like the airlines, hotels, the respective transportation providers or concerns may be unable to honor the confirmed bookings due to various reasons like climatic conditions, labor unrest, insolvency, business exigencies, government decisions, operational and technical issues, route and flight cancellations etc. If MMT is informed in advance of such situations where dishonor of bookings may happen, it will make its best efforts to provide similar alternative to its customers or refund the booking amount after reasonable service charges, if supported and refunded by that respective service operators. The user agrees that MMT being an agent for facilitating the booking services shall not be responsible for any such circumstances and the customers have to contact that service provider directly for any further resolutions and refunds.

The User agrees that in situations due to any technical or other failure in MMT, services committed earlier may not be provided or may involve substantial modification. In such cases, MMT shall refund the entire amount received from the customer for availing such services minus the applicable cancellation, refund or other charges, which shall completely discharge any and all liabilities of MMT against such non-be borne by the User.

MMT shall not be liable for delays or inabilities in performance or nonperformance in whole or in part of its obligations due to any causes that are not due to its acts or omissions and are beyond its reasonable control, such as acts of God, fire, strikes, embargo, acts of government, acts of terrorism or other similar causes, problems at airlines, rails, buses, hotels or transporters end. In such event, the user affected will be promptly given notice as the situation permits”.    

4. In view of the above terms & conditions the OP shall in such circumstances is not liable for direct or indirect or punitive, accidental or special damages as are being claimed, it is further submitted that after receiving Rs.1,33,000/- the OP duly exercised his duty by making desired booking for the complainant, scheduled from 11.08.2018 to 18.08.2018 and just 3 days prior to the date of trip to Bali  i.e. on 08.08.2018, the complainant requested for cancellation of his tour on account of the earthquake in Indonesia, for the reason that area near Bali been apprehended with the chances of volcano eruption and it is an earthquake near Lambok Island which is altogether different island and faraway from Bali and on the enquiry from local vendors by the OP, they were assured that Bali is fit to travel and other customers who booked Bali through OP did not face any problem. The complainant was assured by the OP but the complainant was still adamant for cancellation of booking, that too just three days prior to the departure and as per applicable cancellation policy which was shared at the time of booking also, complainant would fall under non-refundable category attracting 100% forfeiture and this information was conveyed by the OP to the complainant on 10.08.2018 itself and in these situation the complaint of the complainant be dismissed.
5. Complainant has filed rejoinder and evidence of his own whereas OP has filed evidence by way of affidavit of Ms. Ankita Mishra, AR/Officer of the OP. The Commission has heard the arguments and perused the record. The complainant has also filed a report from New York Times, in support of his contention that there was earthquake in nearby island of Lambok.
6. The fact that complainant booked a flight/trip with the OP, paid the amount of Rs.1,33,000/- for the dates 11.08.2018-18.08.2018 and there was an earthquake on 05.08.2018 in that area, are not disputed facts but the contention of complainant is that he made the cancellation on account of the fact that an earthquake has happened in Bali whereas the contention of OP is two-fold i.e. the earthquake had not affected the area where the complainant had to visit, secondly the cancellation was made just 3 days prior to trip and when all the ticketing have been done with the appropriate authorities and above all there was no deficiency on the part of OP as it was an Act of God, even if it is presumed that there was an earthquake in Bali.
7. Although, complainant has filed news clip from New York Times but it does not say anything w.r.t. specific place hit & effected by the earthquake. Complainant had to prove that the place which complainant had to visit was adversely effected by the earthquake or not  but he has not been able to prove that nor the fact that the flights were not going to destination whereas the OP in his written statement stated that other flights were properly taking off & people did visit that place. Whether other people have visited or not or whether such person had cancelled, is not much relevant as that is not the issue involved nor any document has been placed on record to prove as to how many person has visited that particular area during that relevant time or whether any booking has been cancelled during that time by any Indian visitors or not, but basic concern to arrive at just conclusion is as to whether the area, where the complainant had to visit was effected by earthquake or not. The Commission is of the opinion that it was the complainant who had to prove first that the reason for cancellation of the trip was the earthquake in the area where he had to visit & then the area which was chosen by him & where he had to visit were badly affected by the earthquake. The onus of this fact was on the complainant which has not been discharged & above all the contention of OP is well found that it was not deficiency on the part of OP rather if it at-all, it was an Act of God and therefore contract stands discharged on account of ‘Act of God’. Seeking refund from OP by the complainant, without being any deficiency on the part of OP, would not help the complainant to succeed in his case under Consumer Protection Act.
8. Accordingly, the Commission is of the opinion that complainant has failed to prove any deficiency on the part of OP in not cancelling the tour. Therefore this Commission is of the opinion that complainant has not been able to prove any deficiency on the part of OP. Therefore complaint case of the complainant is dismissed.     
3. opy of the Order be supplied/sent to both the Parties free of cost as per rules.

Announced on 23.01.2024.

File be consigned to Record Room.