Date of Filing:04.04.2017
Date of Order:08.07.2019
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM – I, HYDERABAD
P r e s e n t
HON’BLE Sri P.VIJENDER, B.Sc. L.L.B. PRESIDENT.
HON’BLE Smt. D.NIRMALA, B.Com., L.L.B., MEMBER
ON THIS THE MONDAY THE 8th DAY OF JULY, 2019
C.C.No.169 /2017
Between:
Sri Kaveti Raghu Ramaiah,
S/o.Sri K.Narasaiah, Aged about 66 years,
R/o. Plot No.43, Balamrai Housing Society,
Road No.2 , Mahindra Hills, Secunderabad,
Hyderabad – 500 026. ……Complainant
And
- M/s. Make My trip India Private Limited,
Rep.by its Managing Director,
Having its Head Office at Tower A S P Infocity,
243, Udyog Vihar, Phase-I, Gurgaon,
Haryana – 122 016.
- The Manager,
M/s. Make My Trip India Private Limited,
Branch office at 1st Floor, ABK lbee Plaza,
Road No.1, Opp: Care Hospital,
Banjara Hills, yderabad – 500 044, Hyderabad – 500 034
Hyderabad – 500 034,
Telangana. ….Opposite Parties
Counsel for the complainants : Mr.G.Allabakash
Counsel for the Opposite Parties : Mr.M V R Suresh
O R D E R
(By Sri. P. Vijender, B.Sc., LL.B., President on behalf of the bench)
1) This complaint has been filed u/s. 12 of the Consumer Protection Act. 1986 alleging that refusal to refund the amount paid of the cancellation of the tour amounts to deficiency of service . Hence a direction to refund the amount of Rs.2,00,829/- with interest at 24% from the date of cancellation of the trip to the date of payment and award a sum of Rs.1,00,000/- for damages for causing mental agony and hardship by not refunding the amount a compensation of Rs.1,50,000/- and costs of Rs.10,000/-.
2. Complainants case in brief is that:
Opposite party in the business of arranging travels abroad the complainant and his wife booked tour package of the opposite party to travel to
Uropian countries and paid a sum of Rs.1,00,380/- in the booking reference No.2UAQB. As per the package the complainant was to join the tour at Paris , he should make his own arrangements like travel charges till they reach Paris. Later the complainant’s son expressed his intention to join in the tour for which complainant paid an advance amount ofRs.20,000/- as his visa was not received by that time. Complainant paid further sum of Rs.1,96,000/- towards air fair from Hyderabad to Amsterdam and from Zurich to Hyderabad for 2 persons. Thereafter the complainant’s daughter also expressed her intention to join the tour . Hence he paid further sum of Rs.85,000/- towards air fair for his daughter from Hyderabad to Amsterdam one way. In all the complainant had paid a total sum of Rs.4,26,380/- for entire tour package and air tickets for his family. Opposite party acknowledged receipt of the same.
The complainant and his family members were ready for tour and were preparing to travel. But all of a sudden complainant suffered with Gastro and severe Abdomen pain and was got admitted in Yasoda Hospital at Secunderabad on 26.8.2016. In view of the pre booked journey on 28.8.2016 he was got discharged from hospital but abdominal pain got increased. Complainant again got admitted in Yasoda Hospital at Secunderabad on 31.8.2016 and was discharged 5 days later. On account of medical emergency the complainant could not travel and got cancelled tour schedule and his daughter alone travelled on one way and same was communicated to the opposite party on 27.8.2016 and documents related to complainant’s treatment were sent to opposite sporty with a request to refund the amount paid. Since tour got cancelled by him he made communications with opposite party through mails for refund of the same on 2.9.2016, 4.9.2016, 17.9.2016, 21.9.2016, 15.10.2016 and 27.11.2016. He also lodged a complaint on the complaint cell of opposite party on 25.9.2016, 5.10.2016, 15.10.2016 and 27.11.2016 and after much pursuance opposite party No.2 refunded an amount of Rs.1,40,551/- out of total amount of Rs.3,41,380/- after deducting the expenses for travel of his daughter. The amounts so refunded is air fare by the air line and not amount paid for the tour. Opposite party is liable to refund an amount of Rs.2,00,829/- when enquired opposite party No.2 informed that the amount of Rs.2,00,829/- was adjusted towards cancellation charges and same was communicated by Emails dt.21.9.2016. Thereafter opposite party No.2 failed to respond to requests and complaints made by the complainant. Hence he got issued a legal notice on 18.12.2016 asking the opposite parties to refund the amount of Rs.2,00,829/- with interest at 24% p.a. In response to it opposite parties, requested the complainant to arrange details of booking ID/Booking references of him and Email address provided at the time of booking and registered mobile number. The complainant furnished the same. Thereafter opposite party gave reply notice dt.2.2.2017 advising the complainant to withdraw the legal notice and refused to refund the amount, which amounts to unfair trade practice and deficiency of service. The cancellation of the tour by the complainant was on account of medical emergency and it was not intentional one . The opposite party did not incur any expenditure on the complainant and his family members towards transport , food, accommodation and taxes. Since air journey was cancelled 2 days before scheduled date and tour was cancelled 7 days before the commencement refusal to refund the amount of Rs.,2,00,829/- by the opposite parties is unreasonable, untenable and unsustainable. Hence the present complaint.
3) Opposite party 1 and 2 after having got filed vakalat failed to file written version. After closure of the complainants evidence he came with a petition IA 159/ 2018 to permit him to file the written version and same was allowed on 18.12.2018 subject to payment of costs of Rs.10,000/- on or before 7.1.2019. But the said order was not complied . As a result the petition stands dismissed on 7.1.2019.
4) Complainant filed his evidence affidavit reiterating the material facts of the complaint and to support the same got exhibited 4 documents. Opposite party filed evidence affidavit and filed two documents. Written arguments are filed for both sides.
5) On a consideration of material on the record the following points have emerged for determination:
- Whether the complainant is entitled for the refund of the entire amount paid , alleged damage’s and compensation as prayed for ?.
- To what relief?
6) Point No.1: As already said the written version was not filed for opposite parties but evidence affidavit of Mr.Varun Chopra stated to be authorized signatory of opposite party No.1 and 2 cannot be taken on record because there should be a foundation by way of pleading. The evidence is to prove the pleadings made in the written version. Even otherwise the evidence affidavit is taken into consideration it is not denied the complainant’s stand of booking of tickets for tour programme payment of amount by the complainant and cancellation of the entire tour programme on account of medical emergency and submitting a medical record to opposite party . The only defense taken in the evidence affidavit is as per the terms and conditions of the booking, departure date for tour was on 1.9.2016 complainant claimed to have been hospitalized on 26.8.2016 and as per the cancellation policy mentioned in the brochure if the booking is cancelled just 2 days prior to departure date 100% deduction applicable. But as a special consideration since the complainant was hospitalized refunded an amount of Rs.1,40,551/- . Because of the cancellation was 2 days time before departure, opposite party could not get any other customer in such short span of time. Hence complainant cannot have any grievance for not refunding entire amount. Opposite party has got marked 2 documents which are before resolution authorizing 4 of its employees to deal with the legal cases with the company and travel plan and terms and conditions. The so called brochure which stated to be contain terms and conditions relating to refund in the event of cancellation is not placed on record. In the evidence affidavit opposite party No.1 and 2 mentioned that complainant was furnished with the brochure copy when he booked tour programme. But complainant has not filed the said brochure. There is no material on the record from the opposite parties side that the complainant has agreed for the refund policy conditions of the opposite party. As rightly said for the complainant the opposite party did not incur expenditure for travel or for accommodation etc., for the complainant and his spouse 2 days before the schedule departure the complainant communicated the cancellation of the tour travel on account of medical emergency. The complainant was to joint the tour at Paris. Nowhere it is said by the opposite parties, that air tickets booked for complainant and his wife for their travel by reaching Paris could not be cancelled. The only plea taken by the opposite parties in the evidence affidavit is because of sort span of time available they could not accommodate other travelers . At the same time they have not said they have sustained any loss on account of the cancellation of tour programe by the complainant. In such an eventuality the opposite parties cannot be permitted to retain any part of the amount paid and enrich themselves. Since opposite parties have not spent anything for the complainant and his spouse and have not sustained any loss they are liable to refund the entire amount paid for the travel of himself and his wife. The opposite parties by not refunding the entire amount to the complainant caused him mental agony . Hence they are liable to pay compensation part from interest on the amount refundable. Accordingly the point is answered.
7) Point No.2:- In the result, the complaint is allowed in part directing the opposite parties as under :
1. To refund an amount of Rs.2,00,829/- to the complainant with interest thereon at 18% p.a. from 28.8.2016 to the date of payment.
2. To pay a sum of Rs.25,000/- as compensation for causing mental agony and hardship .
3.. To pay Rs.5,000/- towards costs of this complaint.
Time for compliance is one month from service of this order.
Dictated to steno , transcribed and typed by her and pronounced by us on the 8th day of July, 2019.
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
WITNESS EXAMINED
NIL
Exhibits filed on behalf of the Complainant:
Ex.A1 – Travel document
Ex.A2 – Doctors prescription
Ex.A3 – Copy of legal notice dt.18.12.2016
Ex.A4 – Reply legal notice dt.2.2.2016
Exhibits filed on behalf of the Opposite parties:
Ex.B1 – Certified true copy of resolution passed by the Board of Directors
Ex.B2 – Travel plan terms and conditions.
MEMBER PRESIDENT
