Before the District Consumer Dispute Redressal Commission [Central District] - VIII, 5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi
Complaint Case No.235/28.09.2017
Mandeep Kaur d/o Sh. Mahinder Pal Singh
R/o H. No. A-48, Balaji Mandir Wali Gali,
Panchsheel Garden, Naveen Shahdara, Delhi-32 …Complainant
Versus
M/s Paras Holidays Pvt. Ltd.
At 321-322, Gold Plaza Building, Gurudwara Road,
Karol Bagh, New Delhi-110005 ...Opposite Party
Date of filing: 28.09.2017
Date of Order: 15.12.2023
Coram:
Shri Inder Jeet Singh, President
Ms. Shahina, Member -Female
ORDER
Inder Jeet Singh , President
1.1. (Introduction to the dispute of parties) –The complainant had given partly advance amount of of Rs.1,00,000/- [Rs.50,000/0+Rs.50,000/- by way of two cheques] to the OP for European Hangama Tour for 10 nights and 7 days as group package, however, in the first tour, the name of complainant along with his father was not included and on the second occasion the visa was not arranged by the OP, the tour was not cancelled. The amount was not refunded by the OP. There is deficiency of services and complainant seeks refund of the advanced amount.
1.2. The complaint is opposed that there is no cause of action for want of deficiency of services as admissible amount was refunded of Rs. 10,080/- with notice (after deducting appropriate fees for applying visa twice, advance booking air tickets and its cancellation besides hotel booking cancellation).
2.1. (Case of complainant) –The complainant read an advertisement in the Nav Bharat Times and then appropriate enquiry was made from the office of OP, then Ms. Preeti called the complainant and asked for deposit of tour package amount for European Hangama tour for 10 nights and 7 days as group package, each member was to deposit Rs. 1,54,000/-. It was also advised that complainant need not to come to their office as amount will be collected by way of cheque from her residence.
2.2. On 14.03.2017 OP’s representative Ms. Mamta Jain came and collected amount of Rs. 50,000/- by cheque no. 131112 dated 14.03.2017, against which receipt no. 2904 dated 14.03.2017 was issued. The cheque was cleared. In fact, the complainant was excited of the prospective tour abroad and she also started making preparation. However, there was no response either by telephone call or message or email to the complainant about the prospective programme, however, the said Mamta Jain apprised that there is preparation for second group and complainant will be apprised, besides informing that there will be a representative for visa.
On 24.04.2017, one namely Deepak was deputed by Ms. Mamta Jain and Ms. Preeti to collect further amount and a sum of Rs. 50,000/- by way of cheque no. 131114 dated 24.04.2017 was given, for which receipt dated 24.04.2017 was also issued. The cheque was encashed by OP, however, there was no call received from the OP. Later, the complainant had communication with her friend Ms. Meena Bansal and the complainant reached at VFS office at 8:30 pm on 10.05.2017, there the officials of VFS had asked NOC from her office besides photograph of her father since the photograph was missing from them. Immediately, the complainant arranged the photograph and NOC from her office, thence, interview took place. Her visa was rejected for deficiency of services of OP but it was concealed by the OP from the complainant to grab advance amount of the complainant.
2.3. On next day, complainant along with her friend Ms. Meena Bansal reached the office of OP, where Ms. Mamta Jain and Ms. Preeti of OP refused to meet the complainant but when the complainant insisted to meet them, she was threatened by officials of OP namely Kiran and Ishu Jain. The police was also called, however, instead of taking action against the opposite party or its officials, the OP asked the complainant to take back the complaint by admitting their mistakes and they also advised to apply again for visa, for which there shall be no charges by them. The said Mamta Jain also told that they are having approach in French Embassy and she will apply herself for visa for the complainant and also requested to take back the complaint. After requests and assurances of Ms. Mamta Jain and Sh. Naveen Jain, the complainant requested the police to take back her complaint. The complainant had also provided to the opposite party.
2.4. On 26.05.2017, the complainant and her friend went to the office of VFS to ascertain status of visa but OP advised to come on 30.05.2017 or to confirm on telephone. In between, the complainant has been seeking information on whatsapp or on telephone but there was no response by the OP either to the complainant or to her friend.
On 30.05.2017, the complainant visited office of OP to enquire status of visa, however, the staff of OP informed that complainant’s passport is lying at the house of Ms. Pawan but application for visa was rejected. The complainant called the police and one ASI Karan Singh came at the spot but it was revealed that said ASI has good relations with the OPs, thence Sh. Naveen Jain and Ms. Preeti misbehaved with the complainant besides badly talked to the complainant; they asked the complainant to come on 05.06.2017 for returning all the amount. However, on the evening of 05.06.2017, the complainant received calls from unknown number by Naveen Jain and Mamta, they threatened to the complainant to kill her in case complaint is lodged. Since, the complainant had identified their voice, she was also threatened not to say or disclose their agency as well as not to come for demand of amount. The complainant has been cheated of Rs.1,00,000/- and her amount is grabbed by Mamta Jain, Naveen Jain, Preeti, Pawan, Kiran and Ishu. The complainant also written police complaint to the Joint Commissioner of Delhi on various dates but there was no action. That is why, the present complaint seeking directions for return of her amount of Rs. 1,00,000/- along with interest besides compensation of Rs. 50,000/- for causing mental and physical harassment and agony & costs of Rs.15,000/-.
2.5 The complaint is accompanied with copy of receipts dated 14.03.2017 & 24.04.2017 and complaint (01 page) written to Joint Commissioner of Police, Crime Branch.
3.1 (Case of OP)- The complaint is opposed by the OP that neither there is any cause of action nor deficiency of services vis-à-vis complainant filed the complaint by concealing material information to extort money from the OP.
3.2. The complainant denies all averments of the complaint except that on 24.04.2017 Sh. Deepak had collected the cheque of Rs. 50,000/- from the complainant. On 14.03.2017 the complainant came to the office of OP and she booked the European Hangama Tour after reading and understanding the rules and regulations of the company, she was required to make advance as well as to sign the required booking form. She herself furnished a cheque of Rs. 50,000/- against receipt and she also signed booking form of the said tour package. The OP had sent checklist to the complainant and she was asked for documents for applying for Schengen visa on 15.03.2017 and after various visits the complainant provided the complete documents on 18.04.2017, then complainant applied for her visa to the concerned Embassy with complete detail of itinerary, hotel confirmation, air tickets and travel insurance of the complainant. But it is matter of policy of the Embassy for grant of visa for tourist purposes, for which the passenger has to show airline ticket of concerned tour with date, booking of different hotel at the destinations, where the tourist has to stay during the tour period. The OP had already booked air tickets vide PNR No. QNXJWG for tour package and it had spent Rs.36,000 x 2=Rs.72,000/- for two persons before applying the visa application. The air tickets were non-refundable since Airline issues tickets on concessional rates, that is why in the event of cancellation of air tickets, the entire ticket amount remains non-refundable by the airlines except airport taxes and other miscellaneous taxes. Thus, after cancellation of tour package by the complainant, the OP was constrained to get cancelled the airline tickets, the amount was forfeited by the Airlines, except airport taxes and other miscellaneous taxes of Rs.7,000/- each person, which is Rs. 14,000/- for two persons was refunded by the airlines. Thus, OP had spent amount of Rs. 58,000/- (i.e. Rs. 72,000/- minus refund of Rs. 14,000/-).
Since the OP had also booked hotel for different destinations for tour members and it has deposited Rs. 2,000/- per room for three days (being one room for two persons) and Rs. 6,000/- was deposited by the OP in advance as three days room rent for two persons, it was forfeited by the hotel because of cancellation of tour package of the complainant.
The OP also spent Rs.12,960/- (i.e. Rs.6,480/- x 2 persons)of insurance charges and visa fee charges in the concerned Embassy but unfortunately on 13.05.2017 the Embassy rejected the visa application of the complainant.
3.3. As per OP, the complete record was provided subsequently by the complainant and it was not provided when visa was applied first time to the concerned Embassy. After refusal of visa on first application, the complainant herself written letter and cancelled her tour and demanded amount of Rs.33,800/- per person from OP. However, later-on, the documents were provided completely and she has requested for visa application again. The OP again applied for Shengen visa and on request of complainant, the OP again deposited an amount of Rs. 12,960/- (i.e. 6,480/- x 2 persons) for insurance charges and visa fee charges, but the concerned Embassy rejected the application on 26.05.2017. The OP had total spent of Rs. 25,920/- as visa fee charges (i.e. Rs. 12,960/- +12,960/-). It was within the discretion of concerned Embassy and within their power and control whether or not to provide the visa, there was nothing in the control of OP. The visa was declined on the ground no. 8 & 9 mentioned in the letter of Embassy. The complainant was informed about the rejection of visa application on 26.05.2017. On 03.06.2017 the OP sent legal notice along with cheque of Rs. 10,080/- of balance amount to the complainant.
3.4. The OP also denies all other allegations of complaint to the police or of misbehavior or threats with request that the complaint is without merit and it is liable to be dismissed as complainant is not entitled for any claim whatsoever.
3.5 The written statement is supported with booking form along with special note, undertaking, terms and conditions, correspondence addressed to Mr. Ashish (to update the names) email correspondence, rooming list, refund receipt, refusal of visa dated 12.05.2017 and 26.05.2017, notice dated 03.06.2017 with postal receipt.
4. (Replication of complainant) –The complainant files detailed replication and all allegations of written statement are denied inclusive of cancellation of air tickets or hotel booking etc that the same are without any substance. The complainant reaffirms the contents of complaint as correct vis-à-vis she had not visited the office of OP to handover the first cheque of Rs. 50,000/- nor any booking form was signed by her. The complaint is correct.
5.1. (Evidence)-The complainant led evidence by filing her detailed affidavit, which is on the lines of complaint coupled with documents.
5.2. The OP led evidence by filing affidavit of Sh. Naveen Jain, Director, who had also authored the written statement and it is also replica of written statement with documents.
6.1 (Final hearing)-The complainant and the OP have filed their respective written arguments, followed by oral submissions by Sh. A. K. Gupta, Advocate for complainant and Sh. S. K. Jain, Advocate for OP.
6.2. It does not require to mention here rival contentions, since the same will be dealt appropriately.
7.1 (Findings)- The contentions of both the sides are considered, keeping in view the material on record either in the form of oral narration of facts or documentary record.
It is undisputed that the complainant had paid a sum of Rs. 1,00,000/- to the OP for European Hangama tour scheduled for 10 nights and 7 days as group package in the month of June 2017. It is also undisputed facts that OP had applied for visa for complainant to the concerned Embassy and applications for visa were rejected twice. It is also undisputed that grant of visa is within the discretion of Embassy of the concerned country, being policy matter and it is not within the authority of the OP.
However, there are other disputed questions and disputes between the parties, the same are being taken in the forthcoming paragraphs.
7.2. According to complainant the initial amount of Rs. 50,000/- was collected by Ms. Mamta Jain and receipt was issued to this effect. But on the other side, the OP denies it that it was complainant herself came in the office of OP and tendered the cheque against receipt. Moreover, she had also signed booking form, undertaking, etc. Further, OP contends that the booking form, terms and conditions and undertaking has been proved by the OP as the same were signed by the complainant. The complainant is also bound by those terms and conditions of the booking as well as undertaking given. But the complainant has reservation and those contentions have been opposed vehemently that on the face of the booking form, its special note, undertaking, they do not bear signatures of the complainant. Moreover, on the face of this record, it is manipulated record as the name mentioned is “Mr. Mandeep Arora” , it was signed as Mandeep as being shown on behalf of OP. The name of complainant is Mandeep Kaur, she also signs as signatures are available on her passport and other signatures are also available on the file of this complaint, the signature on record as well as on the passport are entirely different from the name and signature being shown on behalf of OP. Moreover, the complainant is a woman, but in the record of OP “Mr.” is suffixed before the name of Mandeep Arora. This clearly shows that the record is manipulated by the OP.
7.2A. The documentary record of OP by way of booking form is matter of record and signature of complainant is available on her complaint, vakalatnama, affidavit of evidence and the complainant had appeared in the court, her signature was also obtained on the proceedings of 20.07.2023. In addition, she had also filed copy of her passport showing her photograph along with signature. Firstly, the signature on complaint, vakalatnama, affidavit of evidence, proceedings of 20.07.2023 and also signature on the copy of passport are same but they are not as appearing in the OP’s booking form, undertaking etc. Moreover, throughout in the record, complainant’s name is Ms. Mandeep Kaur but in the booking form, her name mentioned is Mr. Mandeep Arora. Lastly, the complainant is a woman and in the record of booking form, the name is suffixed “Mr.” and had the complainant being present before the OP, it would not have been so as mentioned in the booking form. Therefore, it is clearly established that on the face of record the booking form, undertaking, terms and conditions, etc. were not signed by the complainant Ms. Mandeep Kaur. Further, her name is Ms. Mandeep Kaur has mentioned in the complaint, evidence or in the passport but in the booking form record the name mentioned is Mr. Mandeep Arora vis-à-vis the OP itself mentions Ms. Mandeep Kaur in the receipts dated 14.3.2017 & 24.4.2017 issued as well as legal notice dated 03.06.2017. Accordingly, this contention is disposed off by holding that the booking form, etc. were not signed by the complainant.
7.3. By taking into stock totality of circumstances, on the remaining point of controversy, the following conclusions are drawn:-
(i) The complainant has proved that an advance of Rs. 1,00,000/- (i.e. Rs. 50,000/- +Rs. 50,000/-) was given to the OP and the OP also acknowledges its receipts.
(ii) The complainant also asserts that her applications for visa were rejected vis-à-vis the OP has proved refusal of visa by letter dated 12.05.2017 and 26.05.2017 along with the covering letters (in the name of complainant).
The OP asserts that visa was applied twice and there was visa application fee and including insurance charges and OP had spent an amount of Rs. 25,920/-, however, the complainant simply denies this aspect without counter submissions in respect of visa fee and insurance charges. Since, the OP had applied for visa for the complainant twice and it had deposited with the authorities. The complainant had also attended the interview for consideration of visa applications. Therefore, the OP has succeeded to establish that it had spent amount of Rs. 25,920/- out of advance received by it vis-à-vis it is never the case of complainant that visa fees were deposited by her of her own with the Embassy.
(iii) Since, for want of visa, the complainant could not avail the tour. However, the OP has contentions that the complainant got the tour cancelled for want of sanction of visa in her favour, consequently, the air tickets and hotel booking was cancelled and appropriate deductions were made.
The OP has filed true copy of letter written to Ms. Ashish by RL Aviations Services Pvt. Ltd. in respect of 10 persons to update the list, this letter is without any date, however, it mentions the name of complainant Ms. Mandeep Kaur and her father Mahender Pal Singh besides the name of complainant’s friend Ms. Meena Bansal. This list is just to update the name. Neither there is any bill nor invoice or other details of amount of tickets or date of departure or its destination etc to cull out that the correspondence is proof was pertaining to actual booking and payment of air ticket. Therefore, it is held that the OP could not prove the actual booking of air tickets or the amount paid for the air tickets. The OP also could not prove that there was total Rs.72,000/- for airlines tickets. When booking of air ticket or booking amount has not been proved nor the actual amount deducted by the airline tickets, therefore, it is held that OP failed to prove its plea of booking of the tickets or its cancellation.
(iv) There is also email from period 02.05.2017 to 02.06.2017 and also room booking list to show that there was some correspondence between the OP and some other agency regarding Millennium Hotel Paris, CDG 2017 Group. On plain reading of email correspondence, it is in respect of rooming list, which is varying from 10 persons to 16 persons and so on. This email does not depict name of any individual for room, for whom the rooms were booked. There is also no room number allotted to the complainant as well as there is also no reference or receipt that a particular amount was received for booking the rooms for three days. It appears that there was some arrangement between the OP and the hotel to accommodate each other for booking the rooms but there was no final booking for the complainant.
To say, no specific room booking for the complainant for three days is proved nor invoice that the OP made advance payment or consequent to cancellation there was deduction of the amount. The OP failed to establish this plea of cancellation of the hotel rooms against the forfeiting the amount of Rs. 6,000/-; thus OP cannot deduct this amount from the advance amount received from the complainant.
(v) There is no proof of specific cancellation charges by the hotel, or by the airlines, the OP cannot derived benefit to make recover cancellation charges from the advance amount of the complainant.
(vi) The OP relies upon booking form, terms and conditions that OP was entitled to make deductions (especially clause no. 19 of the special note), however, this contention is not acceptable, since the undertaking was not signed by the complainant and special note also does not bear her signature. In order to constitute a valid contract, there should be offer and acceptance and signatures on the agreement amounts to putting the consent together by the parties thereto, however, this element is missing in the present case. Therefore, the special note clause 19 or else would not be applicable or to be read against the complainant.
(vii) The OP has put stress on letter dated 17.05.2017 that the complainant had cancelled her tour and she was taking back amount of Rs. 33,800/- per person, but the complainant denies it that this letter is manipulated as neither her name is Mandeep Arora nor she signed it. The OP also relies upon notice dated 03.06.2017 that an amount of Rs. 10,080/- was offered as admissible amount of refund, which complainant failed to collect from OP. Whereas, on the other side, the complainant denies such claims of OP.
The answer to this controversy lies in the record that the letter dated 17.05.2017 is in the name of Mandeep Arora, whereas the complainant is Ms. Mandeep Kaur and similar features would be applicable with respect to signature as already analysed, discussed and concluded in the aforementioned paragraphs. In fact, the signature on this letter dated 17.05.2017 is also different from the signatures on the booking form, which also goes and infers against the OP.
8.1 In view of the conclusion drawn in aforementioned paragraph 7 above, it is held that that complainant has succeeded to establish the circumstances in her favour and against the OP that she made an advance of Rs. 1,00,000/- to the OP, however, the tour was not materialized for want of grant of visa. However, the OP has spent an amount of Rs. 25,920/- on applications fees for visa, insurance, etc. out of the advance receipt but the OP could not prove its other plea of deductions/cancellation of hotel booking or air tickets. Thus, the complainant deserves refund of amount of Rs.74,080/- out of advance of Rs. 1,00,000/- after adjustment of Rs. 25,920/- on account of visa fee, insurance, etc.
8.2. The complainant claims compensation of Rs.1,00,000/- on account of harassment- physical & mental and agony, however, considering the inconvenience, delay and difficulties/trauma faced & nature of dispute, compensation of Rs. 10,000/- is determined in favour of complainant. The complainant also claims litigation charges of Rs.15,000/-, however, considering the complainant was constraint to file the complaint, cost of Rs. 7,000/- is allowed.
8.3. Accordingly, the complaint is allowed in favour of the complainant and against the OP to refund amount of Rs.74,080/- to the complainant, apart from compensation of Rs. 10,000/- and cost of Rs. 7,000/-.
The OP will pay the amount within 30 days from the receipt of this order, failing which the OP will be liable to pay interest at the rate of 6% on the amount of Rs. 74,080/- from the date of complaint till realization of the amount.
9. Announced on this 15th December 2023 [अग्रहायण 24, साका 1945].
10. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances.
