ORDER

SRI.H.R. SRINIVAS.  PRESIDENT

1.     This is the Complaint filed by the Complainants against the Opposite Party (herein referred to as OP) under section 12 of the Consumer Protection Act 1986 for the deficiency in service and negligence by OP in not providing transit VISA in London in order to go to European countries and thereby refund of Rs.4,45,000/- being the expenses in order to purchase new tickets and interest on the above at 18% per annum and for Rs.5,00,000/- for suffering mental agony and Rs.10,000/- towards notice charges and  for such other reliefs as the Hon’ble District Commission deems fit.

2.     The brief facts of the complaint are that; complainant wanted to go for a family vacation Europe Trip commencing from 18.04.2019 to 30.04.2019. They approached OP for booking flights, train tickets, hotel booking, local sightseeing airport transport etc., and also OP to arrange for their Schengen VISA through its VISA partner M/s. Udaan India by paying a sum of Rs.Rs.6,95,928/-. Their tour was to Europe through London.  They were to commence their journey from KIAL, Benglauru on 18.04.2019. When they went to airport on the schedule date and  time, they were denied boarding to the flight on the ground that they did not have UK Transit VISA i.e. to land in London.  They were shocked to know the same and the fact that they require transit visa at London was not at all informed and advised by the OP. When they tried to contact OP after they were refused to board the flight, they could not reach OP.  Despite their frantic efforts to make the authorities known that they were not aware regarding, to have the transit visa, at London they were board not allowed to Complainant and his family members who were fully exited to the Europe trip were disappointed and wereweeping for not allowing to fly to London and they had to return home on that day and they wanted to cancel the trip. 

3.     Afterwards OP called the complainant and profusely apologized for the situation in which complainants are placed due to the negligence and ignorance of VISA rules Of the OP, and he assured to book the tickets for the next day and would pay the entire trip cost.  In fact he was aware of the fact and booked the flight from Bengaluru Mumbai Frankfurt Amsterdam and return from Amsterdam-Copenhagen-Delhi and Bengaluru. He requested the complainants to book the tickets through Expedia.com.  As he was not having enough money to book tickets, assured that he would return the said amount on the return to Bangalore. The cost of new booking of the tickets was Rs.4,35,000/- with additional charges of conversion of the currency of Rs.10,000/-  The said flight was available with Air India in Business class on the next date and they booked the ticket in economy class for their return journey.  OP assured that he would return the amount of Rs.4,35,000/- and also agreed to pay Rs.1,00,000/- towards the same on that day itself and the remaining on their return and also requested to provide the bank details so that he can credit the amount to their account which was provided by them to OP. 

4.     All the family members of the complainant travelled to Europe on 19.04.2019 and return on 01.05.2019. Though OP agreed to transfer Rs.1,00,000/- on 18.04.2019 itself the same was not done even after of their return to India and he requested for meeting to discuss the amount to be.  OP visited the house on 12.05.2019 and pleaded that he is not having sufficient funds and cash flow and wanted to negotiate on the amount to be paid.  They were not willing to negotiate on the amount to be paid as the change in iterinery was done on the behest of the OP who agreed to repay the flight charges or else they would have cancelled the entire trip itself. They gave 3 to 4 months’ time to the OP to repay the amount in equal monthly installment considering the financial difficulty of the OP.  In one of the meetings OP informed that it is not his fault in not arranging the transit visa at UK and it is due to the oversight of M/s Udaan India which inspite of seeing the reservation and itinerary did not arrange for the transit visa. OP requested the complainants to send a detail happening so that he could negotiate with M/s Udaan India the refund of the original booking ticket.  On 20.05.2019 all of a sudden OP changed his stance and version and refused to pay the amount which he assured on 18.04.2019. There were several email correspondences between them.  In the emails and the whatsapp conversations OP had clearly admitted and agreed that he will pay the flight tickets charges. 

5.     In fact, they wanted to cancel the entire trip due to the refusal of the authorities to board the flight for want of transit visa. The said mistake was only due to the negligence and deficiency of service on the part of OP who also made a false assurance that he will pay the entire amount on purchasing the ticket for the 2^nd time. Believing his words, they agreed to continue the trip on the next day. As OP refused to pay the amount, they had to issue a legal notice demanding the amount to be paid by the OP. Inspite of receiving the said legal notice, OP neither complied the demand nor replied the same.  Since the denial of the boarding of flight to London on 18.04.2019 due to the non-availability of transit visa at London which was entirely due to the negligence and unprofessional act of OP, they had to suffer, financially, physically and mentally and hence prayed the commission to allow the complaint and order for the refund of the amount along with compensation and litigation expenses.

6.     Upon service of notice OP appeared and filed version contending that it is in the business of providing only customized international vacations solutions (flight, hotels, transfers, tours and activities) to its customers using their proprietary mobile app  platform dubbed “Voyazer”. The complainant approached ZMT in early 2019 for their proposed vacation to Europe via app “Voyazer” provided multiple quotes as requested by the complainant. As part of using the app the complainant accepted “Terms & Conditions” underlying the offering of ZMT, without which it is impossible to use the mobile app. The complainant agreed to buy the customized vacation for their Europe Trip from ZMT departing 18^th April and paid the amount in two installments through online transfer including for hotel, flights, tours and activities, airport transfers and Euro Rail Passes for the entire trip more than 30 days in advance of the departure date.

7.     Further complainant requested assistance for procuring VISA assistance for their family for the vacation to Europe. On the request ZMT agreed to facilitate the VISA procurement for them through a third party agency “Udaan India” headquartered in New Delhi. Further Udaan India assisted the complainant in the VISA procurement by booking a premium express slot for them to be able to get the VISA in  time for departure for their Europe vacation. On 18.04.2019 the complainant was holding valid flights tickets, vouchers for hotel reservations, airport transfers, tours and activities and Euro rail passes for their vacation at the time of proposed depart from Bangalore.  

8.     It is contended that on the morning of the departure, the complainant was have disallowed to board the flight to Amsterdam by the airport authority due to the papers not being in order. Complainant did not inform OP that the tickets were invalid or there was deficiency in booking or vouchers provided by the OP.  Also no documentary proof produced denying the boarding for lack of travel papers.

9.     It is further contended that after return from the airport on 18.04.2019 after denying the boarding, the complaint was advised by OP to book the fresh ticket to travel to Amsterdam or else all the bookings at the hotel, tours, transfer and train tickets would lapse on the ground of no show.  Upon the said advise, the complainant booked ticket for next day and proceed for the tour.  Even at the time of fresh booking, there were some discrepancies in spelling the names, for which OP came to the rescue and connected the complainant with the senior Air India officer who helped to solve the problem and was able to travel with new tickets.  All the bookings at Amsterdam and other places in hotels, airport, transfers, were adjusted as per the request of the complainant as there was a change in the itinerary and the schedule had to be modified with the return flight from Amsterdam instead of Zurich on request of the complaint OP booked additional flight tickets required from Zurich to Amsterdam and hotel stop over at New Delhi transit both worth Rs.45,860/- which is pending payment from the complainant. (Rs.41,023/- being the additional cabin baggage charge from Zurich to Amsterdam flight and Rs.4,837/- as hotel accommodation charge at Novatel in Delhi.)  Inspite of request many times, complainant is still due payment of the said flight charge and the hotel booking at Delhi and hence there is no deficiency on its part and prayed the commission to dismiss the complaint.

10.   In order to prove the case, complainant filed his affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainants have proved deficiency in service on the part of the Opposite Party?

2) Whether the complainants are entitled to the relief prayed for in the complaint?

11.   Our answers to the above points are:-

POINT NO.1 :   IN THE AFFIRMATIVE.

POINT NO.2 :   PARTLY IN THE AFFIRMATIVE.

                        For the following.

REASONS

POINT No.1:-

12.   On perusing the complaint, version, documents, evidence filed by  both the parties, it becomes clear that, the complainants for themselves and for two children booked ticket to Amsterdam from Bengaluru via London for the European trip through OP by paying Rs.6,95,928/- as contended in para 3 of the complaint which fact has not been denied by OP. 

13.   It is the specific case of the complainants that their flight was to takes place from KIAL at Bangalore on 18.04.2019 and when they were in the airport with all the tickets and baggages, they were denied the boarding the flight to London on the ground that the have no transit VISA for London to go to Amsterdam.  It is also the case that they tried to contact the OP immediately but they could not do it and they had to return to home at Bangalore highly disappointed. Afterwards, they contacted OP and after much discussion and according to his, advise they booked tickets to Amsterdam from Bangalore which was to fly from Bangalore to Mumbai and then to Amsterdam by paying Rs.4,45,000/-, for which they have produced the airline ticket marked as Ex P1 by paying the said amount in US dollar 6,274.60.  It was in a business class booked in Air India Lufthansa and SAS airlines.  It is also the specific case of the complainants that while booking on 19.04.2019 after they were denied boarding on 18.04.2019, they paid US 6274.60 and at that, time OP assured that he would transfer immediately Rs.1,00,000/- to the account of the complainant on that day itself and the remaining amount after their return from the trip.  It is also the case that even after returning from the trip with many discussions with OP, OP initially pleaded for some time and after took, a U turn and denied to pay the said amount. Complainants claims that the whole and sole responsibility for the negligence and the deficiency in service is on the part of OP and hence they are liable to pay the amount. 

14.   On the other hand, on perusing the contents of the version filed by OP from Para 7, it becomes clear that the complainant requested OP to procure VISA assistance and OP agreed to facilitate the visa procurement for them through 3^rd party agency UDAAN India.  From this it is clear that he had undertaken the responsibility to provide the VISA facilities to the complainants.  It is also his say that he had entrusted the formalities and the job of obtaining VISA the complainant to M/s UDAAN India. But OP has failed to prove with material documents that there is contractual obligations of the complainants with the said Udaan India to get the VISA. It is to be noted here that except obtaining the transit visa at London all the other formalities of obtaining visa was attended to  by op either by himself or through Udaan India agency and got the visa for other Schengen countries.     

15.   In view of this undertaking that the responsibility of providing the VISA to the complainants we are of the opinion that there is negligence on the part of OP in this regard which made the complainants to suffer mentally, physically and financially by the flight authorities in not allowing them to board the flight on 18.04.2019 due to which they have to suffer mentally and also financially by purchasing fresh tickets to Amsterdam on 19.04.2019. This is also borne out as admitted by the OP in various email correspondences and whatsapp conversation the hardcopy of which has been filed. In view of this, we hold POINT NO.1 IN THE AFFIRMATIVE.

POINT NO.2:

16.   As stated above, there no nexus or contractual obligations between the complainant and Udaan India agency in getting the VISA’s and this Commission holding OP responsible for the consequences hence, OP is alone to be made liable for the deficiency in service and also for the negligence in not informing the complainants regarding the requirement of the transit visa at London and not providing the same.  Due to which, complainant were made to purchase fresh tickets by paying US 6274.60 dollars. Hence as we have held Point No.1 in the affirmative making liable OP, OP is bound to pay the additional charges which the complainants had to pay in order to book the tickets by paying US6274.60 dollars.  OP has not denied the fact and allegation of the complainant that he assured to pay the said amount for his lapses.  In the written arguments OP has mentioned that due to COVID 19 situation his company has become bankrupt and not in position to do the business and to pay the same.  Though it may be true that business has come down in respect of all the business establishment in the country due to COVID-19, no Document worth believing is produced by OP to show that his company declared as a bankrupt and facing insolvency proceedings.

17.   Further it is not made clear as to whether complainant has received the refund in respect of they not being allowed to board the flight on 18.04.2019 for want of Transit VISA. In case they have received such refund, they can be refunded lesser amount to that extent they have received the refund. To this effect complainant can directed to file an affidavit stating whether they have received any refund if so, what is the amount.   Under the circumstances, we direct OP to pay US 6274.60 Dollars the equallant in Indian rupees as on 19.04.2019 along with interest at 12% per annum on the said amount till payment of the entire amount and further to pay Rs.50,000/- as damages for causing mental agony, physical hardship and Rs.10,000/- towards litigation expenses and answer POINT NO.2 PARTLY IN THE AFFIRMATIVE and pass the following:

ORDER

1. The complaint is partly allowed with cost.
2. OP i.e. “M/s. Zapmytrip Travel Solutions LLP” represented by its Managing Director/Authorized Signatory is hereby directed to pay US 6274.60 Dollars the equallant in Indian rupees to the complainants on 19.04.2019 along with interest at 12% per annum on the said amount till payment of the entire amount.
3. Further OP is directed to pay Rs.50,000/- towards damages for causing mental agony, physical hardship and financial loss to the complainants and Rs.10,000/- towards the litigation expenses to the complainant.
4. OP is hereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this Commission within 15 days thereafter.
5. Send a copy of this order to both parties free of cost.

Note: You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Commission on this day the 06^th day of May 2022)

MEMBER                PRESIDENT

ANNEXURES

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

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the ticket booked from Bangalore to Amsterdam.

Ex P2: Copy of the Bank statement for having paid the amount.

Ex. P3: Copy of the whatsapp conversation.

Ex P4: Copy of the fresh ticket purchased by complainant to Amsterdam from Bangalore.

Ex P5: Copy of the boarding passes.

Ex P6: Copy of the legal notice

Ex P7: Posta track record.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: - Nil -

Copies of Documents produced on behalf of Opposite Party/s

• Nil -

MEMBER                        PRESIDENT

RAK*