BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.204 of 2016
Date of Instt. 06.05.2016
Date of Decision: 26.09.2017
1. Karan Baghi aged about 26 years son of Sh. Sawtantar Baghi,
2. Kanika Wife of Sh. Karan Baghi aged about 26 years son of Sh. Sawtantar Baghi, both resident of H. No.323, B-15, Leela Vatika Mall Road, Hoshiarpur-146001.
..........Complainants
Versus
1. MakeMyTrip India Pvt. Ltd., Tower A, SP Infocity, 243, Udyog Vihar, Phase 1, Gurgaon, Haryana-122016, India, through its Managing Director.
2. MakeMyTrip India Pvt. Ltd., Office No.15, 3rd Floor, City Square Building (EH-197), Adjoining Kesar Petrol Pump, Civil Lines. Jalandhar-144001 (PB), through its Manager.
….… Opposite parties
Complaint Under the Consumer Protection Act.
Before: Sh. Karnail Singh (President)
Sh. Parminder Sharma (Member)
Present: Sh. VK Singla, Adv Counsel for the complainant.
Sh. Kunal Guglani, Adv Counsel for the OP No.1.
OP No.2 exparte.
Order
Karnail Singh (President)
1. This complaint filed by the complainants, wherein alleged that the OP No.1 is engaged in the business of conducting tours to different places in the world including India and the OP No.2 is the branch office of the OP No.1 and makes booking on behalf of the OP No.1 with regard to conduct tour programs of the OP No.1. The OP No.1 also makes advertisement in the various News Papers, T.V. Channels, Internet etc for attracting its customer and the OP No.2 being branch of the OP No.1 is also working as per the instructions of the OP No.1, as such both the OPs equally, jointly and severally liable for all their acts and conduct.
2. That the families of the complainants arranged Roka Ceremony of the complainants inter-se on 13.10.2014 and decided to solemnize their marriage on 27.11.2015 with pomp and show and accordingly the complainants planned honeymoon tour from 01.12.2015 to 05.12.2015 to Srinagar (JK) and for the said purpose, the complainant No.2 approached the OP No.2 for seeking arrangements for the honeymoon tour of the complainants for the above said period and the OP No.2 allured the complainants for availing the complete package tour for their honeymoon by air from Chandigarh to Srinagar and back and stated that the complete package tour including all the expenses involved in journey including air fare, taxi, Three Star Hotel boarding and lodging and sightseeing, meals etc will cost Rs.46,000/- for complete five days and assured that the OPs are expert in conducting tours and in making all the arrangements and to keep their customers update about all the arrangements concerning their tour program and destinations etc. The OPs also stated clearly that the complainants have simply to make the payment of Rs.46,000/- and the OPs will make all the arrangement for their complete tour and assured that the complainant will definitely enjoy their tour under the said package and it will be memorable honeymoon tour for them and instead of avail the said package by assuring that it was the best deal and the complainants can pay the price of the same in three installments and accordingly complainant No.2 booked Honeymoon tour of the complainants with the OPs online on 22.07.2015 and made online payment of Rs.10,000/- on 24.07.2015, Rs.17,600/- on 11.11.2015 and Rs.18,400/- on 23.11.2015, in total Rs.46,000/- in advance to the OPs at total price of the complete package tour from 01.12.2015 to 05.12.2015 and also gave all the required particulars and suitable timings etc to the OPs and OPs promised to make all the bookings and arrangements for the honeymoon tour of the complainants as already stated above and also told the complainants will be kept update about all their program and further told that the complainants need not bother about anything whatsoever and the OPs will take care of everything concerning the above said package tour of the complainants for the price already paid by them. Thus, the complainants booked the said package tour with the OPs against payment of full consideration and performed their part, as such the complainants are consumer of the OPs as per the provisions of the
Consumer Protection Act.
3. That the marriage of the complainants was solemnized on 27.11.2015 and the complainants were having dreams to enjoy their above said package tour to the maximum live life big-size during those days and had so many emotions and sentiments attached to the said respective tour and almost all the friends and relatives of the complainants were also in knowledge of the same. Thus, the complainants made all the preparations including the means for photographs etc to keep record for their memories during the said memorable tour with high spirits believing the assurances given by the OPs. The OPs informed the complainant No.2 that the Air Tickets for the complainants from Chandigarh to Srinagar and back as part of the above said package tour has been booked with Spicejet airlines in flight No.SG-223 scheduled to depart at 15.40 hrs from Chandigarh airport and scheduled to arrive at Srinagar airport at 16.36 hrs on 01.12.2015 for their onward journey and flight No.SG-224 scheduled to depart at 17.05 hrs from Srinagar airport and scheduled to arrive at Chandigarh airport for their return journey, but the complainant No.2 received a message from the Spicejet airlines on 26.10.2015 that the departure time of the flight from Chandigarh has been preponed to 12.20 hours. Thus, the complainant No.2 contacted Mr. Rushab Mahajan, the contact person of the OPs to confirm about the same since the complainant had no direct dealing with the said airlines and all the booking and information etc were to be provided by the OPs. In response, the OPs informed that there may be some mis-communication from the airlines and confirmed that the flights schedule is as informed by the OPs and in confirmation to the same, the OP also sent the e-tickets to the complainant No.2 on her email on 05.11.2015 containing the same timings as informed by the OPs. However, the complainants, who were excited to have their said honeymoon tour memorable without any flaw, again made a phone call to the customer care of the OP to reconfirm the details of their tour and in response to the same, Mr. Rushab Mahajan of the OP No.2, who had been dealing the matter on behalf of the OPs, vide his email dated 31.10.2015 to the complainant No.2 with CC to Mr. Hardik Bhavasar of the OP No.1 communicated that the bookings of the complainants are confirmed and they are not required to contact the hotel or MakeMy Trip. Com to reconfirm the same and he also again sent the e-tickets therein and further confirmed that the pick up time from Srinagar on 01.12.2015 airport will be 16.35 hrs. Thus, with the said email, the OPs cleared all the doubts of the complainant with regard to booking confirmations and timings of the flights etc. On 01.12.2015, the complainants were ready and very excited to execute their tour program and accordingly they reached at Chandigarh Airport by Car well in time to take their journey by the flight schedule to depart at 15.40 hrs as duly confirmed by the OPs but on reaching at the airport, the complainants were shocked to know that the said flight had already departed at about 12.30 hrs and the said information came to complainants like a blow from the blue thereby crushing all the feelings, sentiments, emotions and plans of the complainants attached with the said Honeymoon tour. After coming to know about the departure of the said flight, the complainants contacted the customer care of the OP from the air port and even then the person on the other end told the complainants that the flight time is 15.40 and they should stay there, despite the fact that the complainant told that the display system was not showing any such timings. However, the person on the other end asserted so much that the flight is still there, thus, the complainant went to the counter of the Spicejet airlines also and they also confirmed that the flight had already departed and thereafter, the complainant again made a phone call to the OP but the same remains in vain. That after the OP accepted that the flight has actually departed much earlier to the time confirmed by the OP, the complainants requested the OPs for immediately refund of the amount received from the complainants, but the OPs flatly refused to the same also, whereas, the OP should have not only refund the amount but should have also compensat the complainants. Complainants again requested an other alternative to the OP to make arrangement for the complainants in the flight on the next day since there was no other flight for Srinagar on the same day and that the tour of the complainants be treated from 2nd December to 6th December instead of 1st to 5th December, but the OP flatly refused to the same also and the only thing the OP offered was that the complainants should make arrangement of their own for reaching Srinagar and the OP can consider the reimbursement of the air fare, but the OP will not extend any day in the tour and it will have to be terminated on 5th December as per the earlier schedule. It is pertinent to mention here that as per the package, the first day stay arrangement was in houseboat, which was the most important part of the said tour for the complainants, as such the complainants asked the OP whether the OP would make arrangement of one night stay in houseboat if the tour is still taken out, but the OP refused to make any such arrangements. Thus, the OPs instead of making any offer to compensate the complainants for their suffering at the hands of the OPs, refused to refund the amount of the complainants and to make any alternative arrangement also. Thereafter, the complainants have been making various requests to the OPs that they should at least refund of the amount received from the complainants, but the OPs did not pay any heed to the request of the complainants. Due to the above said acts, conduct, deficiency of service and unfair trade practice on the part of the OPs and as such, the complainants are entitle for return of the deposited amount and compensation and litigation expenses and accordingly the instant complaint filed with the prayer that the complaint of the complainant may be accepted and OPs may kindly be directed to refund the amount of Rs.46,000/- received by them as a cost of the tour and to pay the amount of Rs.4,00,000/- as damages for the mental agony, harassment etc and OPs be also directed to pay interest @ 18% per annum from 23.11.2015, till the full payment and also be directed to pay Rs.44,000/- as cost of litigation expenses.
4. Notice of the complaint was given to the OPs but despite service, OP No.2 failed to appear and ultimately OP No.2 was proceeded against exparte, whereas OP No.1 appeared and filed written reply, whereby contested the complaint by taking preliminary objections that the present complaint filed by the complainant is not maintainable either on merits or as per law and liable to be dismissed and further submitted that the contents of the complaint are wholly misconceived, vexatious, misleading, misrepresented, unsustainable, false, frivolous, with respect to the OP and the same are nothing but a flagrant abuse of the process of law. There is no deficiency of service on the part of the OP as OP simply acted as a booking agent and therefore no case is made out against the OP under the provisions of the Consumer Protection Act as the default was made at the end of the complainant himself by not being diligent enough and careful with regard to the preponement of the flight for travel from Chandigarh to Srinagar and further alleged that the instant complaint is bad in the eyes of law on the ground of non-joinder of Airlines i.e. Spicejet Airlines as a necessary party and further submitted that the District Forum does not have the jurisdiction to entertain the present dispute. As per the Jurisdiction Clause of the terms and conditions for making the booking, only the Court of NCR Delhi have the territorial jurisdiction to entertain the disputes, if any arising out of the booking and further submitted that the complainants and OPs to the present case are governed by terms and condition agreed between them at the time of the booking and as enumerated in the User Agreement, being filed alongwith the reply. On merits, the booking of the tour is not denied by the OPs but the other averments as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merit and the same may be dismissed.
5. In order to prove the case of the complainants, the counsel for the complainants tendered into evidence affidavit of the complainant Ex.CA and supplementary affidavit Ex.CB alongwith some documents Ex.C1 to Ex.C11 and closed the evidence.
6. Similarly counsel for the OP No.1 also tendered into evidence affidavit Ex.OP1/A alongwith some documents Ex.OPW/A i.e. Resolution and Ex.OPW/B i.e. Agreement User and Make My Trip and closed the evidence on behalf of the OP No.1.
7. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.
8. From the submission of both the counsel for the parties, itself established that the complainants have got a booking of complete package including all the expenses involved in the journey and for that the complainants have admittedly paid Rs.46,000/- and its receipts are available on the file Ex.C1 to Ex.C3 and further through his affidavit Ex.CA, one of the complainant categorically reasserted the entire facts as detailed in the complaint. Apart from that the complainant also produced on the file supplementary affidavit Ex.CB, whereby controverted the facts as elaborated by the OP in its reply.
9. The OP has taken a plea in regard to jurisdiction and maintainability of the complainant and accordingly both the points are considered and find that the OP No.1 has its branch office at Jalandhar i.e. OP No.2 and moreover the payment has been made by the complainant at Jalandhar through online and as such, this Forum has jurisdiction. So, for the question of agreement Clauses, whereby the matter is to be decided by the arbitrator as alleged by the OP is not acceptable because filing of the complaint before the Consumer Forum is an additional remedy given to the Consumer by the Consumer Act and as such, the plea taken by the OP is not sustainable in the eyes of law.
10. Coming to the main controversy as involved in this complaint which is only to the extent that the complainant got a complete package tour from OP No.1 through OP No.2 and paid the settle amount of Rs.46,000/- and this factum is not in dispute rather the complainant has also produced on the file receipts Ex.C1 to Ex.C3 and it is also admitted that the OPs have provided Airline Tickets Ex.C4 to Ex.C6 and the complainants have to depart from Chandigarh on 01.12.2015 at 15.40 hours and then return from Srinagar on 05.12.2015, but when as per schedule time of 15.40, the complainants reached at the Chandigarh Airport, then they came to know the flight has preponed and the same had been gone and these factum have been clarified by the complainant from the counter of the Spicejet Airline and then approached the OPs but they did not agree to make arrangement any alternative and as such, the complainant alleged that there is a deficiency in service and unfair trade practice on the part of the OPs.
11. Now question remains only whether the time of flight, which was preponed is to be informed by the OP No.1 and 2 to the complainant or its information is required to reach to the complainant directly from Airline, for that purpose, if we go through the para No.5 of the complaint, the complainant himself stated that the complainant No.2 received a message from the Spicejet Airline on 26.10.2015 that the departure time of the flight from Chandigarh has been preponed to 12.20 hours. So, it means that the Spicejet Airline is required to send directly message to the Customer and accordingly as per admission of the complainant, in the complaint in para No.5, the message was directly received from Spicejet Airline on 26.10.2015, much prior to the date of the flight i.e. 01.12.2015. So, if the complainant himself came to know the preponed of the flight time i.e. 12.20 hours, then why he reached at the Airport for departure at 15.40. So, it means that there is directly fault on the part of the complainants themselves, if they received a message from the Airline, then they are not required to make its confirmation from OP No.1 and 2, who are mere agents of the all airlines for booking purpose and moreover, it is nowhere mentioned in the agreement Ex.OPW/B that the timing of the flight, if changed will be informed by OP No.1 and 2 to the complainants. So, with these observation, we are of the considered opinion that the flight of the complainant on 01.12.2015 from Chandigarh was missed not due to the fault or negligence of the OP No.1 and 2 rather it was happened due to negligence of the complainants themselves, if situation is so, then the other documents i.e. emails produced on the file by the complainants having no value in the eyes of law.
12. In the light of above detailed discussion, the complaint of the complainant fails and the same is dismissed with no order of cost. Parties will bear their own cost. Complaint could not be decided within stipulated time frame due to rush of work.
13. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Parminder Sharma Karnail Singh
26.09.2017 Member President
