Complaint filed on: 02.05.2018

Disposed on: 03.04.2019

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027

CC.No.763/2018

DATED THIS THE 03^RD APRIL OF 2019

PRESENT

SMT.PRATHIBHA. R.K. BAL, LLM, PRESIDENT

SMT.N.R.ROOPA, B.A., LLB, MEMBER

Complainant/s: -                           

Sri.Harisha

S/o Late Sri.Devendra,

Aged about 43 Years,

R/at no.4, Amrutha Nivasa,

1^st Floor, 14^th A Cross, Anepalya, Bengaluru-30.

By Inperson

V/s

Opposite party/s:-    

M/s.Make My Trip India Pvt. ltd., DLF Building, No.5,

Tower BDLF Cyber City,

DLF Phase 2 Sector 25, Gurugram,

Haryana-122002

Branch Office: 2^nd Floor,

The Centrum, Infantry

Road, Opposite Prestige

Cooper Arch,

Bengaluru-25.

By Advocates M/s.Thakur & Sinha Law Offices LLP

ORDER

SMT.PRATHIBHA. R.K., PRESIDENT

            This complaint is filed by the Complainant against the Opposite party (herein after called as OP), under section 12 of the Consumer Protection Act, 1986. The Complainant prays to direct the OP to refund the entire amount paid as advance of Rs.76,000/-, to pay cost of litigation of Rs.9,000/-, to pay compensation of Rs.50,000/- towards mental agony, to pay salary lost due to attending the court proceedings of Rs.20,000/- .

2. The brief facts of the complaint is as under:

The Complainant submits that, he had booked 6 night 7 days package tour to Singapore with OP. The package inter-alia included 2 nights stay in cruise and 4 days/night accommodation, night safari, visa charge to and fro flight fare from Bengaluru to Singapore, taxes and duties etc., The above said package was Rs.2,90,808/- for 4 members of the Complainant’s family. The Complainant booked the package on 08.07.17 in the OP branch office at Bengaluru by paying advance of Rs.76,000/-. The dates of tour package was from 27^th Sept to 3^rd Oct 2017.

2a. The Complainant further submits that, the Complainant and his son had met with an accident on 01.08.17. The Complainant escaped with minor injuries, but his son, Master Shreyas.H.S aged 10 years encountered broken right tibia (fracture in main bone of leg). He was admitted to Sparsh hospital, Bengaluru and was operated on 02.08.17 with insertion of two titanium nails in to his broken leg. He was discharged on 03.08.17 and advised to take bed rest till 03.10.17. Based on the above, the Complainant requested the OP to postpone his journey for about 3 months, since air tickets and cruise tickets were not issued to him by OP.

2b. The Complainant further submits that, upon requesting for postponement, the OP offered the same package for lesser amount Rs.2,53,008/- including GST for performing the journey from 23.12.17 covering both Singapore and Malaysia. Initially, OP sent two return mails in response to his plea assuring maximum waiver. However, later OP stopped to respond to his emails. The Complainant further submits that, when he called to postpone the journey, it was told by OP that 20% was to be deducted as it was cancellation of journey, which was not mentioned while booking the package. In various emails, he argued that, it was not cancellation but postponement on medical grounds, since OP had not procured the air and cruise tickets of the package. The term ‘cancellation’ applies only when OP issued confirmed berth in cruise and air tickets. OP had not procured any confirmed ticket and failed to produce any documents in support of cancellation of air tickets. The OP had ample time to postpone the journey and would have considered the pray of the Complainant on genuine medical ground.

2c. Complainant further submits that, not accepting his plea seems to be intentional as package rates available on the dates requested by him was cheaper than what was committed to pay and forfeiting the 20% of package money without any hurdle of arrangement of tour was beneficial to the OP. Hence, no communication was sent to him who repeatedly insisted for production of cancelled air tickets. OP arranged for visa despite postponement request of package by the Complainant. As validity was one year from the date of issue, he remained silent hoping for postponement of his tour. In this context, Complainant sent notice dtd.11.04.18 and email dtd.26.04.18, but there is no reply from OP. Hence, filed this complaint.  

3. The OP appeared before this forum and filed objections. In the objection, the OP submits that, the complaint is an abuse of process of law and is not maintainable as the Complainant approached this forum by suppressing the material facts. This complaint is filed on vague, baseless and malafide intention. He has made misconceived and baseless allegations of deficiency in service without any documentary evidence. The Complainant does not fall within the definition of ‘consumer dispute’ under CP Act as there is neither any unfair trade practice adopted by OP nor any deficiency in service. Hence, the allegations made therein are frivolous, baseless and misconceived and the complaint is liable to be rejected.

3a. OP further submits that, after being fully understood about the terms & conditions of booking and cancellation policy, the Complainant booked a holiday package called ‘stunning Singapore with 2 nights cruise’ by paying Rs.76,000/- as advance. There was no provision of the ‘postponement’ in the said holiday package. The only option was to cancel the present booking of the Complainant and make a fresh booking for the month of December. In the terms & conditions, it clearly specifies the cancellation policy, which states that “75% of the package cost will be refunded on cancellation 21 days before departure’. Thus the OP has clearly communicated the cancellation policy at the time of booking. But the Complainant has wrongly derived his own definition of cancellation which is baseless and unfounded.

3b. OP further submits that, there is no duty cast upon the OP to furnish cancelled air tickets and cruise tickets to the Complainant in the event of cancellation made by him. The cancellation policy as mentioned in the brochure provided to the Complainant at the time of booking nowhere states that OP is liable to furnish tickets to the Complainant. The Complainant after being completely aware that there is no option of postponement, has booked the holiday package. Thus there is neither any prima facie case being made out against the OP nor there is any cause of action arose in favour of the Complainant. Hence, prays this forum to dismiss the complaint.

4. In the course of enquiry into the complaint, the Complainant and the OP have filed their affidavits reproducing what they have stated in their respective complaints and objection. Both have filed written arguments. The Complainant has produced documents which were marked. We have heard the arguments of both sides and we have gone through the oral and documentary evidence of both parties scrupulously and posted the case for order.  

5. Based on the above materials, the following points arise for our consideration;  

1. Whether the Complainant has proved that there is deficiency in service on the part of the OP, if so, whether he entitled for the relief sought for ?

2.  What order?

6. Our findings on the above points are as under:

Point No.1:  In the affirmative

Point No.2:  As per the order below

REASONS

7. Point No.1: On perusal of the pleadings, objection, evidence and documents of both the parties, it is an admitted fact that, the Complainant had booked 6 nights 7 days package tour to Singapore with OP. The package inter-alia included 2 nights stay in cruise and 4 days/night accommodation, night safari, visa charge to and pro flight fare from Bengaluru to Singapore, taxes and duties etc., The said package was Rs.2,90,808/- for 4 members of the Complainant’s family. The Complainant booked the package on 08.07.17 by paying advance of Rs.76,000/-. The dates of tour package was 27^th Sept to 3^rd Oct 2017.

8. The contention of the Complainant is that, the Complainant and his son met with an accident on 01.08.17. He escaped with minor injuries, but his son, Master Shreyas.H.S aged 10 years encountered broken right tibia (fracture in main bone of leg). He was admitted to Sparsh hospital, Bengaluru and was operated on 02.08.17 with insertion of two titanium nails in to his broken leg. He was discharged on 03.08.17 and advised to take bed rest till 03.10.17. Hence, the Complainant requested the OP to postpone his journey.  

9. Per contra, OP submits that, as per the terms & conditions, there was no provision of the ‘postponement’ in the said holiday package. The only option left for the Complainant was to cancel the present booking and make a fresh booking. Further, in the terms & conditions, it clearly specify the cancellation policy, which states that “75% of the package cost will be refunded on cancellation 21 days before departure’. As per the terms & conditions, OP has forfeited the advance amount of the Complainant.

10. Based on the above, in our opinion, there is deficiency in service on the part of OP in not refunding the amount. Firstly, OP failed to show that, the terms & conditions were duly agreed between the parties with regard to the trip booked by the Complainant. Further, the OP has also failed to show, how these terms & conditions will be applicable to the Complainant.              Hence, the terms & conditions are not applicable between the parties.  Therefore the contention of the OP cannot be accepted.

11. Secondly, OP failed to show that, he had utilized the Complainant’s advance booking amount of Rs.76,000/- for booking air and cruise tickets of the package. Hence, in the absence of any documentary evidence, we cannot come to the conclusion that, OP has utilized the said amount for booking of the tour package of the Complainant. Further, in the booking policy, it has been clearly stated that, remaining amount ought to be paid on or before 17.09.17. However, in the instant case, the Complainant has emailed to the OP on 07.08.17 stating to postpone the trip. On all these count, OP failed to establish their case. Hence, the Complainant is entitled for the refund of the paid amount along with compensation and costs. Hence, it is just and proper to direct the OP to refund the said amount of Rs.76,000/- along with interest to the Complainant. Accordingly, point no.1 is answered in the affirmative.

12. Point no.2: In the result, for the foregoing reasons, we proceed to pass the following order.

ORDER

The complaint filed by the Complainant is hereby allowed.

2. OP is directed to refund advance booking amount of Rs.76,000/- along with interest at the rate of 9% p.a. from the date of this complaint till the date of realization.

3. OP is further directed to pay compensation of Rs.5,000/- and cost of litigation of Rs.5,000/- to the Complainant.

          Supply free copy of this order to both parties. 

(Dictated to the Stenographer, transcribed and typed by her, corrected and then pronounced by us in the Open Forum on this, the 3^rd April of 2019)

1. Witness examined on behalf of the complainant/s by way of affidavit:

Sri.Harisha, who being the Complainant was examined. 

Copies of Documents produced on behalf of Complainant/s:

1. Witness examined on behalf of the OP/s by way of affidavit:

Smt.Ankita Mishra, who being the Deputy Manager Legal of OP was examined. 

Copies of Documents produced on behalf of OP: