Date of Filing 19.07.2023

                                                                                                             Date of Disposal: 29.12.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

BEFORE TMT. Dr.S.M. LATHA MAHESWARI, MA. ML, Ph.D (Law),                                         …….PRESIDENT

               THIRU.P.VINODH KUMAR, B.Sc., BL,                                                                                ……MEMBER-I

               THIRU.P.MURUGAN, M.Com.,ICWA(Inter), BL.,                                                          ……MEMBER-II

CC.No.69/2023

THIS FRIDAY, THE 29^th DAY OF DECEMBER 2023

Mr.Sabaressh K.A.,

Sky Dugar Homes, T1, 301, Kilayanambkkam,

Vanagaram, Chennai 600 095.                                                              ......Complainant.

                                                                              //Vs//

MakeMy Trip India Private Limited,

Through its Directors,

Registered Office at,

19^th Floor, Tower A/B/C Epitome Building No.5.

DLF Cyber City, DLF Phase III

Gurugram HR 122002 IN.                                                                      ….opposite party.

Counsel for the complainant                           :  M/s.Karthikeyan Sekar, Advocate.

Counsel for the opposite party                       :  Mr.A.Naveen Kumar, Advocate.

This complaint coming before us on various dates and finally on 11.12.2023 in the presence of M/s.Karthikeyan Sekar, Counsel for the complainant and Mr.A.Naveen Kumar, counsel for the opposite party and upon perusing the documents and evidences of both sides, this Commission delivered the following:

ORDER

PRONOUNCED BY TMT.Dr.S.M. LATHA MAHESWARI, PRESIDENT

1. This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service along with a prayer to direct the opposite party to refund the sum of Rs.2,32,083/- along with interest at the rate of 12% from 18.04.2023 and to pay a sum of Rs.3,00,000/- towards the monetary loss and mental agony caused to the complainant with cost of the complaint.

Summary of facts culminating into complaint:-

2.It was the case of the complainant that on 18.04.2023 he booked the Simply Singapore Holiday Package for the occasion of his Wedding Anniversary with the opposite party for his travel during 04.05.2023 to 09.05.2023 inclusive of visa by paying an amount of Rs.2,32,083/- for three persons.  At the time of booking, the complainant selected the said package with visa included.  It was submitted that at the time of making booking with the application of the opposite party, it provides an option to opt for visa included and the same was opted by the complainant. No demand of passport for visa was made by the opposite party.  The complainant through his own relentless efforts kept creating support requests and made calls to opposite party, but at no point of time, it was stated that the visa was not part of the package.  The complainant raised visa requests on 19.04.2023 and 26.04.2023 at make MyTrip Application.  Subsequently, an email dated 26.04.2023 was shared by the opposite party stating that visa Team will contact the complainant. On 01.05.2023 the opposite party through its customer Representative telephonically assured that visa will be sorted in two days.  It was submitted that on 03.05.2023 just one day prior to the travel date, the complainant received an email from the opposite party stating that visa is not included in the booking.  Thus the complainant was forced to cancel the booking made by him.  The opposite party in another email stated that the entire process of refund would take minimum 30 days of time.  That every time the complainant called, different representatives answered the call, wherein the complainant was repeatedly asked to reiterate the entire incident and was being harassed by keeping on long holds and no proper assistance. Thus a legal notice dated 10.05.2023 was issued to the opposite party. Complainant was shocked when on 15.05.2023 he received an email from the opposite party blatantly refusing to process the refund the package amount to the complainant. Thus aggrieved by the act of the opposite party the present complaint was filed to direct the opposite party to refund the sum of Rs.2,32,083/- along with interest at the rate of 12% from 18.04.2023 and to pay a sum of Rs.3,00,000/- towards the monetary loss and mental agony caused to the complainant along with cost of the complaint.

The crux of the defence put forth by the opposite party:-

3. The opposite parties filed version contending inter alia that Jurisdiction of this Commission was barred under the terms of the User Agreement.  It was submitted that as per jurisdiction clause of Terms and conditions of the User Agreement only the court of NCR, Delhi have the territorial jurisdiction to entertain the disputes. Complainant on his own accord approached the opposite party and expressed their willingness to book the Simply Singapore Holiday Package from 04.05.2023 to 09.05.2023 by paying a total sum of Rs.2,32,082/- towards the booking amount.  Thereafter upon a successful receipt of the booking amount the opposite party duly issued a booking ID NL2221153776764 to the complainant. Opposite party duly informed the complainant at the time of booking that visa was not included in the said package.  Complainant had the full knowledge that the visa is not included in the package.  Opposite party was forced to raise a cancellation request a day prior to the travel and after deducting the penalties, the complainant only entitled to get Rs.26,314.6/- as refund. Opposite party was an intermediary between the end users and the service providers.  The complainant was not entitled to a full refund as the amount paid by the complainant was instantly transferred to the various service providers. Opposite party served as an intermediary as per the object of the Information Technology Act, 2000. That under section 79 of the Information Technology Act, Intermediaries enjoy protection against liability for third party information, data or communication link hosted by them. The sole purpose of sharing the details of the package before the booking was made to help the consumers make an informed decision. The opposite party could not be held liable for the negligence of the complainant. Thus they sought for the dismissal of the complaint.

4. On the side of complainant proof affidavit was filed and documents marked as Ex.A1 to Ex A6 were submitted. On the side of opposite party proof affidavit and document marked as Ex.B1 was submitted.

Points for consideration:-

1. Whether the alleged deficiency in service on the part of the opposite party in the matter of booking the Holiday package has been successfully proved by the complainant by admissible evidence?
2. It so to what reliefs the complainant is entitled to?

Point No.1:-

The following documents were filed on the side of complainant in support of their contentions;

1. Booking confirmation dated 18.04.2023 was marked as Ex.A1;
2. Email sent by the opposite party to the complainant dated 26.04.2023 was marked as Ex.A2;
3. Emails were marked as Ex.A3;
4. Legal notice issued by the complainant to the opposite party dated 10.05.2023 was marked as Ex.A4;
5. Cancellation email dated 13.05.2023 was marked as Ex.A5;
6. Payment slip dated 18.04.2023 was marked as Ex.A6;

The following document was filed on the side of opposite party in support of their defence;

7. Copy of the Booking ID was marked as Ex.B1;

5. It is represented on behalf of the complainant that the written arguments filed by them may be treated as oral arguments and as per the endorsement made by them, we considered the written arguments of the complainant as oral arguments and perused the written arguments and oral arguments of the opposite party to decide the complaint on merits.

6. The complainant had alleged that by paying a sum of Rs.2,32,083/-he had booked trip to Singapore inclusive of Visa in the package called Simply Singapore Holiday Package on 18.04.2023 for travel between 04.05.2023 to 09.05.2023.  However, the opposite party though assured, did not take any efforts for Visa clearance and hence the complainant could not travel and hence he sought for the cancellation and refund of the booked amount.  It is submitted that the jurisdiction of Consumer Commission cannot be questioned as the complainant was residing within the jurisdiction of Thiruvallur Commission.  Further the defence of the opposite party that they are only intermediary between the end users and service providers and enjoy protection against liability was denied by the complainant.  Thus he sought for the complaint to be allowed.

7. On the other hand the opposite party argued that Visa was not included as per the terms and conditions of the package and that the jurisdiction of this Commission was barred as per the User Agreement.  It is argued by him that the package details were shared with the complainant prior to booking in order to inform him about the details of package.  Thus the complainant was made well aware about the inclusions, exclusions and cost involved. Further it was stated by him that they are only intermediaries between the end users and the service providers and hence when the amount has been utilized by the service providers in order to make bookings the amount spend by the complainant for booking could not be refunded in entirely and could be made only after making deduction.   Further as per Information Technology Act, 2000 they are not liable and he prayed for the dismissal of the complaint.

8. We perused the pleadings and material evidences submitted before this Commission.  This Commission arrived at the following reasonings;

a) It is specifically mentioned that in Ex.A2 the Email sent by opposite party dated 26.04.2023 that “VISA TEAM WILL CONNECT WITH YOU” by the opposite party.  When it is denied by the opposite party that the package does not consist of services related to Visa clearance, why there is no specific denial by the opposite party for the query raised by the complainant by way of email to the opposite party, that he had raised Visa problem for more than 4 times for which the team insisted the complainant to contact Sales Executive vide email dated 02.05.2023.  It is seen that several emails has been sent by the complainant with regard to questioning the Visa clearance.

b) Being a package called Simply Singapore Holiday Package, the version of complainant that the opposite party was promised before booking that the Visa included in package assumes more weightage. The opposite party denying that service of Visa clearance was not included in the package ought to have produced the package details.  However no document was produced by the opposite party in support of their defence.

c) With regard to the defence that being intermediary the opposite party could not be imposed with liability, this Commission relies upon the decision rendered by the State Consumer Disputes Redressal Commission, U.T.Chandigarh in Appeal No.54/2021 in MakeMy Trip (India) Private Limited Vs Pritpal Singh dated 13.05.2022 wherein it has been held as follows;

"The appellant - Company has tried to shift its burden of liability by merely pleading that it was the liability of the concerned service provider on account of deficient services i.e. transporter or the Hotel service provider but we do not agree with the contention raised as respondents No.1& 2/complainant had availed the services of the appellant - Company after going through the advertisement of the appellant - Company vide which they claimed to provide services as mentioned therein.  The District Commission rightly observed that the appellant-Company failed to produce any evidence showing that respondents No.1 & 2/complainants had any direct contact with the persons, hotel or other facilities being provided by the appellant - Company. "

Thus it was held that the opposite party cannot escape from their liability and also that when the opposite party failed to fulfil its promise it amounts to unfair trade practice. In the present case also, the opposite party failed to prove that there existed any nexus between complainant and the Service providers.

d) In the decision rendered by District Consumer Disputes Redressal Commission, South GOA at Margao in Complaint No.19/2022 in Dr.Belinda Viegas Mueller & Others Vs The Manager, MakeMy Trip India Private Limited dated 11.10.2023 it has been held that the opposite party was to be held liable under section 2(42) and 2(11) for inflating the rate of Holiday package contrary to the terms and condition of the package.  Further with regard to jurisdiction it has been held that

47. Another preliminary objection raised by the OP is that this Commission has no territorial jurisdiction to entertain this complaint as the jurisdiction clause of the terms and conditions of the User Agreement states that only court of NCR Delhi has the territorial jurisdiction to entertain the disputes if any arising out of the bookings. Here we would like to state that the new Consumer Protection Act, 2019, [section 11(2)] now gives flexibility to the consumers in filing consumer complaints where the Complainant resides or personally work for gains. The booking for the holiday package was made by the Complainant no.1 online and the Complainant no.1 resides at Varca, Salcete Goa. This District Commission therefore has jurisdiction to decide this consumer complaint. We further add that as per Section 100 of the Consumer Protection Act, 2019, the remedy under the Consumer Protection Act is in addition to any other remedy available under any law for the time being in force. Therefore, this objection raised by the OP is also rejected as without merit.

e)            In the recent decision of the Consumer Disputes Redressal Commission, Ernakulam in CC.No.47/2019 in Jijo John Vs MakeMy Trip India Private Limited dated 26.04.2023 similar issue has been decided wherein Visa has been rejected for the complainant due to the deficiency in service of the opposite party the Commission held that the opposite party is liable in its words as follows;

“The opposite party also states in their version that they merely acts as a facilitator for booking the confirmed air tickets/hotel bookings on behalf of its customers with the concerned service providers.  The opposite party’s contention is that they have acted only as a facilitator.  The tour of the complainants was cancelled due to the rejection of the visa of the complainants.  As per Exbt.A6, the visa of the complainants is rejected due to the reason that information regarding the justification for the purpose and conditions of the intended stay was not reliable. The opposite parties have not provided proper service to the complainants as agreed.”

Thus based on the above reasonings and precedents the opposite party cannot mislead the customer to book package stating that services with regard to the Visa clearance was available and later on denying the same. The act of the opposite party clearly amounts to unfair trade practice and deficiency in service.  Thus we answer the point accordingly holding that the complaint allegations has been successfully proved by the complainant.

Point No.2:-

9. It is contended by the complainant that he had booked the package for celebrating his wedding anniversary and also as we have held that the opposite party had committed unfair trade practice and deficiency in service on their part in misleading the complainant that the Visa services were included, we are of the opinion that the complainant should be adequately compensated for the mental agony, hardship and monetary loss caused to him.  Thus we direct the opposite party to refund the sum of Rs.2,32,083/- to the complainant along with compensation.  The contention of the opposite party that the said amount were utilized by the service providers could not be considered as a valid defence as the complainant had relied upon the opposite party for the entire transaction and had booked the tickets and also that the complainant did not have any privity of contract with the service providers.  Further the other service providers has nothing to do with Visa clearance which was promised by the opposite party.  Thus we answer the point accordingly.

In the result, the complaint is partly allowed against the opposite party directing them

a) To refund the sum of Rs.2,32,083/- (Rupees two lakhs thirty two thousand and eighty three only) with 6% interest from 18.04.2023 till realization to the complainant within six weeks from the date of receipt of copy of this order;

b) To pay a sum of Rs.1,00,000/- (Rupees one lakh only) towards compensation for the mental agony and hardship caused to the complainant;

 c) To pay a sum of Rs.10,000/- (Rupees ten thousand only) towards litigation expenses to the complainant;

 d) Amount in clause (a) if not paid within six weeks from the date of receipt of copy of this order, enhanced interest at the rate of 9% will be levied on the said amount from 18.04.2023 till realization.

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this 29^th day of December 2023.

      Sd/-                                                       Sd/-                                                               Sd/-                                                                            

MEMBER-II                                    MEMBER-I                                                   PRESIDENT

List of document filed by the complainant:-

List of document filed by the opposite party:-

        Sd/-                                            Sd/-                                                                    Sd/-

 MEMBER-II                               MEMBER-I                                                      PRESIDENT