Before the District Consumer Dispute Redressal Commission [Central District] - VIII, 5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi
Complaint Case No. 42/09.02.2010
C1- Pawan Kaura s/o Sh. Krishan Kaura
C2- Sahil Kaura s/o Sh. Pawan Kaura
C3- Muskan Kaura d/o Sh. Pawan Kaura
C4- Surekha Kaura w/o Sh. Pawan Kaura
All r/o. 374-D, Model Town Extension,
Opp. Libra Bus Service, Ludhiana-3, Punjab …Complainants
Versus
OP1- M/s Nimble Travels Pvt. Ltd.
510, Deep Shikha Building, 8, Rajender Place,
New Delhi-110008
OP2-Mr. Anoop (Managing Director)
510, Deep Shikha Building, 8, Rajender Place,
New Delhi-110008 ...Opposite Party
Date of filing: 22.02.2010
Date of Order: 02.03.2024
Coram:
Shri Inder Jeet Singh, President
Ms. Shahina, Member -Female
ORDER
Inder Jeet Singh , President
1.1. (Introduction to case of parties) – The complainants have grievances against the OPs of deficiency of services and of unfair trade practices as OPs failed to materialized the tour and arrangement of visa for the complainants, apart there from the complainants were put to harassment, they suffered the losses; that is why the complaint for compensation of Rs.3 lakhs in lieu of mental pain, agony, harassment, etc. besides recovery of Rs.3 lakhs for losses suffered and legal expenses of Rs. 21,000/-.
1.2. The complaint has been opposed by the OPs that neither there is deficiency of services nor unfair trade practices by them. The OPs did its efforts, however, the grant of visa was within the domain and authority of the Embassy, for its refusal the OPs cannot be made accountable vis-à-vis the complainants are not consumer as the trip was booked for commercial purposes.
1.3. It is relevant to mention here that Ld. Predecessor had disposed off the complaint by order dated 28.11.2014, but it was demanded back by the Hon’ble State Commission by order dated 01.03.2023 [in FA No. 75/2015]. The parties were issued notices to proceed further in the matter and both sides were served.
2.1. (Case of complainants) –The complainants are citizen of India. The complaint u/s 12 of the Consumer Protection Act, 1986 is filed by complainant no. 1 Sh. Pawan Kaura for him and on behalf of other the complainants. The OP1 is in the business of tour and travel and OP2 is its Managing Director. The complainant no.1 had earlier travelled to China through the OPs.
2.2. On 27.01.2009 the OPs sent e-mail for tour INTERMAT 2009, being a leisure and business tour and the OPs sent email dated 28.01.2009 that price of tour is Rs. 1,15,000/- per person; Sh. Babbar Khan, Divisional Head-Business, assured that they will be responsible for applying the visa and other documentation to make the tour hassle free for complainants. OP1’s sales Executive Sh. Monit Gupta also assured the complainants in the same way. Thus, complainants booked their tour from 19.04.2009 to 25.04.2009 and they paid advance booking amount of Rs. 50,000/- on 26.02.2009, it was also acknowledged by the OPs by email dated 27.02.2009. The OPs sent unfilled applications addressed to Visa Officer, French Embassy for visa form and also passport, which shows that OPs were responsible for arranging the visas.
Thence, on 22.03.2009 the OPs called the complainants to make more payment for the tour, thus on 25.03.2009 the complainants further gave Rs. 1,50,000/- in cash, thus the OPs received total amount of Rs. 2 lakhs against receipts from the complainants. The OPs had assured while receiving the payment that everything is in order as per schedule.
2.3. On 29.03.2009 the complainants were shocked to know from the OPs that visa has been refused but OPs failed to give any satisfactory answer and they started ignoring the calls of complainants. Moreover, Mr. Monit Gupta and Mr. Babbar Khan also ignored the calls on one pretest or the other. On 08.04.2009 the complainant approached the office of OPs finally but their official refused to talk to the complainant no.1 but he was advised to collect passports from the reception. The complainant was also compelled to write cancellation of tour, otherwise the complainants will be liable to bear all cost of the tour vis-à-vis the OPs know how to recover the money.
2.4. It was revealed from the passports that visa was rejected on 17.03.2009, which is much prior to 25.03.2009 of further payment of Rs. 1,50,000/- took by the OPs but OPs suppressed information of rejection of the visa. The complainants asked for refund of the amount, OP’s Assistant Manager Ms. Priyanka Srivastava asked the complainant to make call after three days, as concerned person was not available.
However, the complainant no.1 was always ready and willing to continue the tour, thus he applied for the visa and it was granted on 14.04.2009 by the Embassy. Immediately, he called OP that visa has been obtained and the tour is to be continued as well as to re-apply visa for complainant no. 3 & 4. Thence, the Assistant Manager advised to call the complainant later-on and to inform about the program besides asking the complainant no.1 to book the tickets himself, if he wants to continue to the tour. Thus, complainant booked tickets for Zurich and Paris, the complainant started calling the OPs but officials of OPs ignored the calls. The complainant sent email to Mr. Monit Gupta, it was also not responded.
2.5. The complainant was further shocked on 16.04.2009, when he received a invoice bill dated 04.04.2009 from the OPs showing a sum of Rs.1,64,608/- was deducted on account of tour cancellation charges (viz. air ticket, visa fee, hotel booking) and a refund of Rs. 35,392/- was made to the complainant. Whereas, the complainant was forced and compelled to write cancellation of tour as well as he was threatened to be liable to bear all the cost of tour of four persons.
The complainant wrote to hotel Novatel, Paris and its associate hotel at Gurgaon for information about the cancellation charges. It was apprised that there is no policy of the hotel of deduction of 70% cancellation charges. The OPs was enquired but it failed to reply in respect of cancellation charges against hotel, air fare, bus trip, manager services charges, etc. It also came to the notice of complainants that there were 11 bookings of that tour, including the complainants but all booking were cancelled, therefore, there was justification for charges of tour manager, bus trip or other deductions against the booking. The visa was already the responsibility of the OPs. The complainant is a consumer and OPs are guilty of deficiency in services; that is why the complaint for the reliefs claimed.
2.6. The complaint is accompanied with record of email, tour program, other correspondence, authority letter along with request for visa, receipts, invoice/statement for service provided, copies of passport, email correspondence, etc.
3.1 (Case of OPs)- The complaint is opposed by the OPs that the complainants concealed material facts, it is a frivolous complaint to harass the OPs and the same is liable to be dismissed.
3.2. The complainants made advance of Rs. 50,000/- on 26.02.2009 and Rs. 1,50,000/- in cash on 05.03.2009 through his agent/representative. However, he did not wait for the receipt to be issued against payment nor they demanded it. However, on 25.03.2009, complainant came at the office of OPs and asked receipt of paid amount of Rs. 2 lakhs but one receipt in the name of J. P. Autho Industries and another in the name of Sahil Enterprises, Ludhiana, for rupees one lakh each, accordingly the receipt no. 236 and no. 238 dated 25.03.2009 were issued. The visa was refused on 17.03.2010 and complainant was informed immediately. There is no unfair trade practice and deficiency of service, since the visa was denied by the Embassy, which is in their prerogative; the OPs have no control thereon.
3.3. The OPs cancelled the tour on the request/email of complainants. The deduction of 50% was rightly as per terms and conditions agreed, however, the OPs deducted only cancellation and other applicable charges, under special consideration to the complainants. Therefore, there is no specific deficiency mentioned by the complainants.
3.4. The tour was booked by a commercial organization and INTERMAT 2009 is a trade fair and it was being attended by the entity having purely commercial purposes. The complainant was availing the services of OPs for commercial use. Therefore, the complainant is not a consumer and complaint is not maintainable.
3.5. The OPs also denied all other allegations either against Mr. Babbar Khan, Mr. Monit Gupta or Ms. Priyanka Srivastava vis-à-vis as per agreement/registration form, the OPs acted as a representative of passenger to apply visa on their behalf with all relevant documents to be as per rules of respective Consulates. It is the responsibility of passengers to comply with all requirements.
The complainant was never forced and compelled to write cancellation of the tour but complainant had sent email to the OPs by requesting for cancellation since the Embassy had refused the visa. The OPs never advised the complainants to arrange the ticket himself since the tour was already cancelled; therefore, there was no occasion for the OPs to advice so.
Since, there is stiff competition, that is why OPs were constrained to reveal the confidential information/details of bookings/deductions etc to the third party and OPs were not under obligation to disclose the same otherwise it would have been fatal to the interest of its business. The complaint deserves dismissal.
3.6. The written statement is supported by copies of - email, registration form, more email correspondence between the parties.
4. (Replication of complainant) –The complainant filed replication by denying the allegations of written statement, they reaffirm their complaint correct.
5.1. (Evidence)- The complainant no.1 Sh. Pawan Kaura led evidence for all the complainants by filing his exclusive detailed affidavit, which is on the pattern of complaint.
5.2. OP2 Sh. Anoop, Managing Director of OP1, led evidence for both OPs by filing detailed affidavit, which is on the pattern of written statement, while relying upon the documents filed with the written statement.
6.1 (Final hearing)-The complainant and the OPs had filed their written arguments, which are bland of the pleadings and evidence, both of them have already been referred under the headings of case of the parties and their evidence. They are not being repeated here.
6.2. During the course of oral submissions Shri Kapil Sisodia with the approval of Sh. Rohit Goyal, Advocate for the complainants and Shri Adil Alvi, Advocate for OPs made the oral submissions.
7.1 (Findings)- The contentions of both the sides are considered, keeping in view the material on record, either in the form of narration of events by the parties or the documentary record.
7.2 According to OPs, the complainants are not consumers since the tour was planned for INTERMAT 2009 a trade fair, the tour expenses were to be met from the account firm and in email, the theme and aim of INTERMAT was also mentioned but according to complainants they are consumers as the tour was not planned for commercial purposes and complainants were informed of leisure tour.
The complaint has been filed by four persons and the same is not disputed by the OPs. It has not been elucidated as to what was the INTERMAT 2009 tour or how it was related with the commercial activities of the OPs. Moreover, the inter-se relation between the complainants and the OPs are of tour and related services, the area of services of OPs is also confining to render the services asked for; OPs have no role of joining of complainant in INTERMAT 2009, if the visit was for that occasion. Therefore, on the face of record, the OPs could not prove that the complainants are not their consumers for services of OPs asked for vis-à-vis the complainants proved that they are consumers covered under the Consumer Law. This contention is disposed off.
7.3 For the following reasons, the complaint is dismissed:-
(i) Both the complainants as well as the OPs are projecting the facts as per their convenience but the documents are speaking many facts contrary to oral narrations.
(ii) There is no dispute that the complainants paid an amount of Rs. 2 lakh to the OPs, firstly booking amount of Rs. 50,000/- and then further amount of Rs. 1,50,000/-, however, the receipts for both payments were issued by OPs are of 25.03.2009 of Rs. 1 lakh each, [in favour M/s J. P. Auto Industries and Sahil Enterprises].
When the amount was paid on 26.02.2009 and 05.03.2009, the OPs’ plea that the concerned person left the office without waiting or that is why the receipts were prepared later-on on 25.03.2009 are not acceptable. The OP1 is a professional agency.
(iii) The OPs are making the deductions on account of cancellation of the tour, however, the amount were not disclosed on the ground of trade secrets, whereas, the parties are governed by contractual rights and obligations, if the deductions can be made, then their non-disclosure could not be construed protection under the public policy of contract.
(iv) It is undisputed fact that applications for visa of all the complainants were rejected and later complainant no.1 applied for visa of his own, which is stated to have been granted on 14.04.2009. The complainant has proved application forms of 27.02.2009, 03.03.2009 for visa, which are addressed to visa officer, French Embassy on the request of complainants. Their applications for visa were rejected, however, none of the parties had placed on record the reasons of rejection of applications but they are blaming each other.
The grant or refusal of visa is not within the authority or domain of OPs, it is within the prerogative of concerned Embassy of member State.
(v) Since there was no visa to all the applicants and tour was cancelled; the OPs have refunded part amount out of advanced amount received. One of emails proved also shows deducted amount and bills invoice dated 4.4.2009 also shows the deductions carried.
(vi) The complainants are not seeking the refund of deducted amount, in their complaint but compensation, losses, costs etc., which construes that there are no grievances in that context of deductions.
It is settled law that when specific substantial relief is not claimed, the complainants cannot be awarded that claim. The complainants have not pleaded and sought for refund of deducted/balance amount nor proved it. Thence consequential/ secondary relief cannot be made out.
(vii) There is no proof of allegations of deficiency of services or losses, therefore, complainants are not entitled for compensation or other relief of losses or expenses/costs.
7.4. Thus complaint fails. The complaint is dismissed. No order as to costs.
8. Announced on this 2nd day of March 2024 [फाल्गुन 12, साका 1945]. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances and upload on the website of this Commission.
[Inder Jeet Singh]
President
[Shahina]
[ijs-28] Member (Female)
