Haryana

Panchkula

CC/342/2022

RAKESH SOOD - Complainant(s)

Versus

MR SAHITYA - Opp.Party(s)

IN PERSON

18 Apr 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

 

                                                       

Consumer Complaint No	:	342 of 2022
Date of Institution	:	10.11.2022
Date of Decision	:	18.04.2024

 

Rakesh Sood, H.No.217, Sector-4, Mansa Devi Complex, Panchkula – 134112.

 

                                                                ….Complainant

Versus

1.     Sh. Sahitya Manager KESARI Tours Pvt Ltd.  SCO 28-29-30, First        Floor, Sector-9, Chandigarh.

2.     Sh. Divanshu Verma Senior Executive, KESARI Tours Pvt Ltd.    SCO-28-29-30, First Floor, Sector-9, Chandigarh.

3.     M/s Kesari Tours Pvt. Ltd. SCO-28-29-30, First Floor, Sector-9,   Chandigarh.

4.     M D Kesari Tours Pvt. Ltd. Kesari House L J Road Mahim, Mumbai-     400016.                                                                                                                                                                                                                                                                                                     ….Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019

 

Before:              Sh. Satpal, President.

Dr. Sushma Garg, Member.

Dr. Barhm Parkash Yadav, Member

 

 

For the Parties:   Complainant in person.   

                        Sh. Rajnikant Upadhyay, Advocate for OPs.

                       

ORDER

(Satpal, President)

1.             The brief facts, as alleged, in the present complaint are, that the complainant along with his family members and his wife had to go to USA(Boston) on 10.10.2022 to attend a family wedding on 15.10.2022 and thus, it was decided by them to spend 10 days together in Switzerland before the departure of complainant and his wife to USA on 10.10.2022; the sons of the complainant and their spouses had got their leaves sanctioned accordingly. It is stated that all the adults members i.e. six member had visited Europe in the past on different occasions and thus, had strong credentials entitling them for the granting of VISA. It is stated that Sh. Sahitya(OP No.1) and Sh.Divanshu(OP No.2) employees of OPs No.3 & 4 i.e. KESARI Tours Pvt. Ltd. had approached the complainant on 10.08.2022 for providing travelling assistance/booking of hotels and other activities during their 10 days holidays in Switzerland from 01.10.2022 to 10.10.2022 for 6 adults and 3 small children and that after preliminary discussions two cheques were handed over to said Sh.Sahitya(OP No.1) & Sh. Divanshu(OP No.2), one amounting to Rs.2,00,000/- dated 10.08.2022 and another for Rs.8,00,000/- dated 12.09.2022 on the assurance that the same would not be presented for encashment till valid Schengen VISA was stamped on passports and itinerary was finalized. They(OP No.1 & OP No.2) agreed to hand over all confirmed booking vouchers of hotels and proposed activities including Swiss pass before encashing the said cheques. However, the cheque amounting to Rs.2,00,000/- was got encashed on 11.08.2022 without informing him without any reason against the promise made i.e. without handing over any confirmed booking vouchers. The complainant tried to contact Sh.Sahtiya(OP No.1) and Sh. Divanshu(OP No.2), telephonically but both were trying to avoid conversation on one or the other pretext. It is stated that on 19.08.2022, Sh. Divanshu(OP No.2) came to complainant’s house and admitted mistake,  apologized and explained that his office had banked the cheque without his knowledge but confirmed that it would be his responsibility to get the money returned from the company(OP No.3), in case, the complainant opt not to avail the services of OP No.3 but suddenly he handed over to him a paper of itinerary, which he had no address on it and contained different dates of hotel bookings in different swiss cities loaded with one sided illegal conditions and requested him to sign but when he objected(the complainant) he told him that it was a mere formality required by a different team in the OP No.3-company, which handle the booking of hotels and activities etc and further told very firmly that he(the complainant) need not worry should trust his words but in case of denial to sign, the OP No.3-company would forfeit the amount already withdrawn; thus, after some reluctance he(the complainant) signed the paper in good faith, admittedly there was fear in mind of loosing  Rs.2,00,000/-. The paper which was a mere photo copy, not a legal paper in any sense seemed to have no legal sancity. As per said agreement, no cancellation charges were leviable on or before 25.08.2022. It is stated that the Ops were quite aware that VISAs were yet to be applied by the complainant and other family members, which were applied on 22.08.2022 and it used to take minimum 7 to 10 days for processing by the VFS Global; so it was quite evident that Ops intentions were not honest and they wanted to trap and cheat the complainant and his family, knowing fully well that passports would not be returned within time frame laid down in the agreement. It is averred that five members of the family of the complainant presented themselves in VSF Global New Delhi and other four had presented themselves in Bangalore on 22.08.2022 and paid the VISA Global processing fee etc. The stamped passport with required Visa was received on or around 29.08.2022. It is stated that after receiving passports from VFS Global, he(the complainant) requested Sh.Sahitya (OP No.1)/ Sh. Divanshu(OP No.2) to correct the dates on the paper itinerary handed over to him on 19.08.2022 for stay in hotel in Zurich. As on the Ist day of arrival in Switzerland i.e. on 01.10.2022, after 7-8 hours of long flight, it was not possible to travel to another city as per paper immediately on arrival, when three small children were also accompanying the family. However, the OPs No.1 & 2 started demanding more money for this correction. On inquiring from Hotels shown as booked on paper/agreement for them, it was found that no money was paid to any of the hotel on their behalf and neither any activity booked. He(the complainant) got suspicious and requested Sh.Divanshu(OP No.1) to share all documents via official mail of the company (KESARI)(OP No.3) but in spite of several humble requests, not a single document was shared though it was promised on Whatsapp. It is averred that the complainant had purchased the air tickets and made the stay arrangements in Switzerland at their own level as no response was received from the OP. It is averred that instead of sorting out minor issues raised by him(the complainant), Sh.Divanshu(OP No.1) sent him a notice and threatened on phone and slapped a notice via Whatsapp later by email and by postal/courier etc.  It is alleged that  Ops were  requested not to present the other cheque amounting to Rs.8,00,000/- for its encashment but the OPs  had presented the same for its encashment contrary to their promise. It is averred that the Ops had been unfair and deficient, while rendering the services to the complainant and his family member and thus, had no right to forfeit his booking amount i.e. Rs.2,00,000/-. A legal notice was also sent on 15.09.2022 to the OPs but to no avail. Due to the act and conduct of the OPs, the complainant has suffered financial loss and mental agony, physical harassment; hence the present complaint.

2.             Upon notice, the OPs No.1 to 4 appeared through counsel and filed written statement by raising preliminary objections qua the present complaint is not maintainable on account of mis-joinder of parties. It is stated that the OPs No. 1 & 2 are just employees of OP No.3, who had made the booking in question; the present complaint has been filed seeking refund of monetary claim, for which, the best remedies is to approach the Civil Court. It is submitted that the complainant had approached the OP’s employees and on his request, itinerary was prepared qua his stay arrangement in Switzerland and the same was approved by his son on Whatsapp. It is submitted that the complainant has availed OP’s Fit(Free Individual Traveler) Tour Services, against which, the OPs have issued payment receipt. The OPs have got en-cashed the said cheque against the booking of services of complainant. It is stated the OPs had got made the hotel booking and issued hotel voucher to the complainant, which was also attached by complainant to his visa documents. It is stated that it is the requirement of Schengen Embassy to produce Proof of accommodation in Switzerland/Schengen states, which means Confirmation of hotel reservation, package tour and advance payments. It is stated that the OPs had assisted the complainant for filling Visa Application forms on behalf of all the complainant’s and the Visa Application Forms are already placed on record. It is submitted that on the requirement of the complainant by their whatsapp chat dated 19.08.2022, the OPs provided visa letter on the letterhead of Kesari(the OP No.3) which states that”….. we are facilitators to assist  them in processing their visa and tour package only”. It is submitted that to provide these services to complainant, payment was necessary therefore OPs had got encashed the cheque. It is stated that the OPs had never avoided having conversation with the complainant. It is submitted that the complainant had availed OP’s FIT (Free Individual Traveler) Tour Services for his tour to interlekan, Luceme and Zurich and for the said tour, the OPs have got prepared itinerary for complainant, which was read, signed and also confirmed by the complainant on what’s app of OPs. It is stated that for the arrangement of the said tour, the OPs had got done hotel bookings and issued Hotel voucher for complainant, which was also requirement of Schengen Visa Consulates. It is submitted that in the circumstances to book services well in advance with the suppliers of OPs, the OPs had to make advance payment to their suppliers; therefore, the OPs have got the tour booking amount of Rs.2,00,000/- from the complainant by way of cheque and the same was got encashed. It is submitted that OPs have also informed the complainant that as per the terms and conditions of booking tour and also mentioned on the itinerary signed by the complainant that the complainant has to make 25% of tour amount before 06.09.2022. The complainant was also aware that till 25^th August 2022, there were no cancellation charges. It is submitted that the complainant was aware about the payment policy of OPs as the same were available on their official website. It is submitted that the site of the OPs got encashed the said cheque of Rs.2,00,000/-. It is denied that Sh. Divanshu(OPNo.2) had admitted  his mistake  and apologized  to complainant. It is submitted that the OP No.1 had informed the complainant about the terms and conditions of booking tour and the OPs had also prepared itinerary as per the requirement of complainant and also has taken follow ups for the confirmation of the same(itinerary). Finally on 10.08.2022, the OPs had given timeline for finalizing the itinerary to the complainant and after that, the complainant’s son, Sh.Vibhor Sood, on 14.08.2022, had confirmed the itinerary on what’s app to the OPs. It is submitted that after confirmation of itinerary, the OPs have got the signature of complainants on the itinerary and terms and conditions. It is also stated that “No charges were leviable if tour was cancelled on or before 25.08.2022”; so according to the terms, there was no cancellation charges till 25.08.2022 and the complainant had signed terms and condition along with itinerary on 19.08.2022. It is denied that the complainant had signed the terms and conditions under threat to forfeit of Rs.2,00,000/-. It is submitted that as per the rules of Schengen Embassy, visa fees cannot be paid by any travel agent. It has to be paid directly by the traveler and the same was communicated to complainant, therefore, the complainant had paid the said Visa fees to the embassy. The complainant has booked FIT tour with OPs and OPs were/are a travel agent/Tour Operator and not a visa agent. The OPs further stated that it is the requirement of Schengen embassy to produce proof of accommodation in Switzerland/Schengen, which means confirmation of hotel reservation, package tour, advances payments etc. This arrangement was done by the OPs and based on that booking only the complainant’s visa was granted. It is submitted that the OPs have issued hotel voucher and on that hotel booking only, the complainants’ visa has been granted. It is requirement of Schengen Embassy to show the hotel bookings for valid Visa. It is submitted that at the time of signing itinerary as well as terms and the conditions of booking tour, EURO rate was mentioned on the itinerary and the complainant had agreed to the same at the time of signing the itinerary and it was the same and not changed at later stage inspite there was volatile in daily exchange rate. It is stated that as per OP’s letter and email sent to the complainant, the OPs informed the complainant well in advance that they would deposit cheque in bank on 13.09.2022 against the services booked by the complainant. Therefore, the complainant was well aware about deposit of cheque and thus, there is no deficiency in service on the part of the OPs No.1 to 4 and as such, the complaint is liable to be dismissed.         

3.             To prove the case, the complainant has tendered affidavit (Annexure C-A) along with documents Annexure C-1 to C-9 in evidence and closed the evidence by making a separate statement. On the other hand, the Authorized representative on behalf of OPs No.1 to 4 has tendered affidavit as Annexure R-A along with documents as Annexure R-1 to R-9 and closed the evidence.

4.             We have heard the complainant and the learned counsel for OPs No.1 to 4 and gone through the record available on file including the written arguments filed by the complainant as well as OPs No.1 to 4 and minutely and carefully.

5.             The complainant, during arguments, reiterated the averments as made in the complaint as also in his affidavit (Annexure C-A) and contended that the OPs have no valid and legal right to forfeit the booking amount as paid by him vide cheque no.188899 dated 10.08.2022 because the OPs No.1 & 2, while providing the tour services to him and his family members for the Switzerland w.e.f. 01.10.2022 to 10.10.2022 were not fair and transparent. The main submissions as made by the complainant in support of his contentions are summarized as under:-

i.      That the cheque no.188899 dated 10.08.2022 was got encashed        by Ops on 11.08.2022 in utter violence of the promise made by        Ops  No.1 & 2 that the said cheque would not be got encashed till     the completion of process of stamping, by the Embassy of        Switzerland, of Visa application of the complainant and his family.

ii.      That the Itinerary(Annexure C-2/R-9) shared  by the Ops No.1 & 2     with complainant on 19.08.2022 along with the terms and        conditions did not contain the fact qua the encashment of the     said cheque No. 188899 by OPs on 11.08.2022.

iii.     That the booking         amount as paid by the complainant vide cheque         no.188899 dated 10.08.2022 to the OPs was got encashed by OPs      on 11.08.2022, whereas its receipt was issued by them on      12.09.2022 vide receipt (Annexure R-3) i.e. after a period of more than 30 days from the complainant.

iv.     That the terms and conditions of the agreement as annexed with       Itinerary (Annexure C-2/R-9) were got signed by OPs no.1 & 2 by   exercising undue influence and thus, the terms and conditions       were not fair and proper because the time given vide said terms and conditions qua cancellation of the booking was just four      days. It was contended that the terms and conditions were         got signed from complainants on 19.08.2022, 20.08.2022 &    21.08.2022 were holidays on account of Saturday and Sunday and        thus, he was given the time qua cancellation of the booking w.e.f.         22.08.2022 to 25.08.2022 i.e. 4 days in total.

v.     That the OPs had not shared the confirmed stay vouchers of     hotels pertaining to their stay in Switzerland w.e.f. 01.10.2022 to   10.10.2022, through their official email despite repeated requests,    which fact led the complainant to suspect the stay arrangements     made by the OPs in Switzerland.

                Concluding the arguments, the complainant has prayed for acceptance of the complaint by granting the relief as claimed for in the complaint.

6.             On the other hand, the learned counsel on behalf of OPs reiterated the averments as made in the written statement as also in the affidavit(Annexure R-A) and controverted the allegations as leveled by the complainant qua the illegality and invalidity of the terms and conditions of the agreement entered on 19.08.2022 between the parties. The learned counsel argued that the cheque no.188899 dated 10.08.2022 was got encashed in order to make the advance payment to the service providers. It is argued that the booking amount i.e. Rs.2,00,000/- was utilized by the OP’s company for pre-paid hotel vouchers. In this regard, the learned counsel invited our attention towards prepaid accommodation voucher (Annexure R-4). It is argued that the complainant had signed the terms and conditions qua tour package on 19.08.2022, out of his free will and choice whereby he was entitled to seek the cancellation of tour package on or before 25.08.2022. It is further argued that the OPs had given proper service to the complainant and his family members and facilitated them in the Visa stamping related process from the Embassy of Switzerland. It is vehemently argued that the proofs of accommodation were required,  which were to be submitted by the complainant in the Embassy of Switzerland and the OPs had issued a letter to the Embassy of Switzerland showing the stay arrangement made by the Ops in Switzerland during their stay w.e.f. 01.10.2022 to 10.10.2022. It is further argued that Itinerary was finalized with the approval of complainant’s son on 14.08.2022, on the basis of which, the Ops had made the Stay arrangements for the complainant and his family members during their journey w.e.f. 01.10.2022 to 10.10.2022. Concluding the arguments, the learned counsel has prayed for dismissal of the complainant being frivolous, baseless and meritless. Reliance has been placed on the case law titled as Satishchandra Vasantrao  Ghatwal Vs. M/s Kesari  Tours Pvt. Ltd & Anr. in Revision Petition no.1355 of 2018,  decided on 04.7.2018(NC).

7.             After hearing the learned counsel for the parties, the question that arises for consideration before the Commission, is, whether the booking amount i.e. Rs.2,00,000/- as paid by the complainant to Ops vide cheque no.188899/- dated 10.08.2022 was/is liable to be forfeited by virtue of the terms and conditions as contained in the agreement dated 19.08.2022 appended with Annexure C-2/R-9.

8.             It is correct that the cheque no.188899 dated 10.08.2022 was got encashed by OPs on 11.08.2022 whereas its receipt no.HCB-245581/HO was issued by Ops on 12.09.2022 i.e. after more than 30 days  and that too only when the complainant had sought the refund of the same vide his whatsapp(Annexure C-7) on 10.09.2022. No explanation, much less credible, adequate and cogent, has been furnished by OPs qua the delayed issuance of the receipt, acknowledging the receipt of amount of Rs.2,00,000/-vide cheque no. 188899 dated 10.08.2022. Further, the itinerary(Annexure C-2/R-9)  along with the terms and conditions of the tour package were shared by the Ops and were got signed from the complainant on 19.08.2022 but the factum qua the encashment of the cheque no.188899 dated 10.08.2022 i.e. booking amount by the OPs was not got incorporated in the same. As per the terms and conditions appended with itinerary (Annexure C-2/R-9), the complainant could seek the cancellation of the tour package on or before 25.08.2022 and thus, he had only four(4) effective days with him to take the decision qua cancellation of the tour package because the terms and conditions were got signed on 19.08.2022 and 20.08.2022 and 21.08.2022 were holidays on account of Saturday and Sunday. By no stretch of imagination, a period of 4 days to take the decision by a consumer qua the cancellation of tour package can be said to be proper and justified. Moreover, the OPs have not placed on record its cancellation policy on record, which would have cleared the ambiguity about the period given to a consumer for cancellation of the tour package.

9.             Further, it has been found that the complainant had questioned the working style of Ops by pointing out vide his whatsapp conversation made on 19.08.2022(Annexure C-5/R-7) that the letter issued by them was unsigned and that there was no covering letter. As per the averments made in para no.11 of the complaint, the complainant had made enquiry from hotels, which were allegedly booked by the Ops but he found that no such booking was made by the Ops and no amount was transferred in favour of the hotels. The complainant being placed in such uncertain situation regarding their stay arrangement in Switzerland w.e.f. 01.10.2022 to 10.10.2022 had asked the Ops to send the confirmed accommodation vouchers  showing their stay in Switzerland w.e.f. 01.10.2022 to 10.10.2022 through official email (Annexure C-3(colly)) but the Ops did not share the confirmed stay  voucher/accommodation  voucher  through their official email as prayed for by the complainant so as to remove any kind of doubt in the mind of the complainant.

10.            The aforesaid facts had, genuinely, led the complainant and his family members to suspect the stay arrangement as made by the Ops and thus, the complainant was justified in seeking the details of stay arrangement through official email of the OPs. Despite several requests of the complainants, the confirmed stay vouchers qua the stay arrangement made by the OPs in Switzerland were not shared with the complainant for the reasons best known to them, which had led the complainant to ask the OPs to refund his booking amount through his whatsapp dated 10.09.2022(Annexure C-7). Moreover, no proof qua making of payment by the OPs in respect of reservation of rooms/hiring of taxies etc. for the stay of the complainant and his family members in Switzerland, has been placed on record. It is well settled legal proposition that mere bald assertions which are not corroborated and substantiated by any adequate, cogent and credible evidence do not carry any evidentiary value.

11.            Resultantly, we are of the considered view that the booking amount of Rs.2,00,000/- as paid by the complainant to OPs vide cheque no.188899 dated 10.08.2022  was/is not liable to be forfeited by OPs in toto. Admittedly, the complainant had got made the stay arrangement including the hiring of taxies etc. in Switzerland during their journey w.e.f. 01.10.2022 to 10.10.2022 by incurring additional expenses at his own level. Therefore, the OPs had been deficient while rendering services to the complainant, for which, they are liable, jointly and severally, to compensate him.

12.            In relief, the complainant has claimed the refund of Rs.2,00,000/- as paid by him as booking amount vide cheque no.188899 dated 10.08.2022 along with interest. In addition, a compensation of Rs.10,0000/-  has been claimed by the complainant on account of mental agony and harassment.

13.            The prayer of the complainant qua refund of the full amount as paid by him vide cheque no.188899 dated 10.08.2022 is declined because the Ops had facilitated the complainant and his family members in the completion of VISA related process and in this regard, application for Schengen Visa of the complainant and his family member have been placed on record as Annexure R-6 collectively.  Further, the OP No.3 has been found to have sent a letter(Annexure R-8) on its letterhead to the embassy of Switzerland qua the tour journey of family member of the complainant. As such, the Ops have been found to have assisted and facilitated the complainant and his family members qua the completion of VISA related process. Keeping in view the afore-stated factual position, in our considered opinion, refund of Rs.1,85,000/- out of the total paid amount of Rs. 2,00,000/-, after making deduction of Rs.15,000/- in lieu of the services provided by OPs to the complainant and his family members, would be proper, reasonable and justified.  

14.            As a sequel to above discussion, we partly allow the present complaint with the following directions to the OPs No. 1 to 4:-

1. To refund a sum of Rs.1,85,000/- out of the total paid amount of Rs. 2,00,000/-, after making deduction of Rs.15,000/-, to the complainant along with interest @ 9% per annum (simple interest) w.e.f. the filing of the present complaint till its actual realization.
2. To pay an amount of Rs.15,000/- to the complainant on account of mental agony and harassment suffered by him.
3. To pay an amount of Rs.5,500/- as litigation charges.

 

15.            The OPs No. 1 to 4 shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainants shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OPs No. 1 to 4. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on:18.04.2024

 

 

 

Dr.Barhm Parkash Yadav      Dr.Sushma Garg             Satpal               

                Member                       Member                   President

 

Note: Each and every page of this order has been duly signed by me.

 

                                         Satpal                               

                                        President