1.             This is an appeal against order of District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (for short hereinafter to be referred as District Forum) dated 5.9.2009 passed in complaint case No.472 of 2009 : Sh. Rawal Kishore Saigal Vs. M/s Tele Fore (India) Solutions (Exotic Time Club).

2.             Briefly stated the facts as enumerated in the complaint are that the complainant fascinated by the projection of various facilities of Exotic Time Club by the executive of the OP agreed to be a Member of the club and paid a sum of Rs.4,490/- as membership fee. As per the requirement, he was to fill the Booking Request Form when he wanted to avail the facilities. As he intended to visit Dubai in the month of January 2009, he contacted the OP in the month of December 2009 on telephone seeking accommodation but he was not given any satisfactory response but at the same time, he was asked to send the filled Booking Request Form, which he did on 24.12.2008. He also wrote an e-mail on 25.12.2008 informing the OP office urgency to visit Dubai and therefore, to confirm the booking at the earliest as he had already got confirmed air tickets. Since, nothing was heard from the OP, he again sent another email on 6.1.2009 for confirmation but received no response. An email sent on 7.1.2009 also did not elicit any response. On contacting the OP on telephone, he was told to get the visit extended by some days and consequently, he changed his whole schedule of visit and even got his tickets extended by paying additional amount of Rs.4,000/- but even thereafter, he could not get any favourable response from the OP and ultimately on 27.1.2009, he got a hotel booked at Dubai at his own level and stayed in Dubai for four nights incurring an expenditure of Rs.69,940/-. Alleging deficiency in service on the part of OP, the complainant had filed the present complaint.

3.             The version of OP is that there was pre-requisite of sending Rs.1,700/- as fee for availing facility along with the Booking Request Form, which the complainant had not sent and further, is the case of OP that it never promised a specific destination and the customer was required to send a set of three separate destinations with three separate dates and accommodation was to be provided only on the basis of availability. It is the case of OP that since the complainant failed to send the complete and proper Booking Request Form, the same was liable to be rejected as the accommodation was not available at the only destination of his choice and he was accordingly informed. It has further been stated by the OP that the complainant was asked to give alternative destination of Thialand but he did not accept the offer.

4.             The learned District Forum after referring to Annexure R-4 found that in that particular case, three destinations had been given in the same city and the OP did not have any objection to the same and had booked the accommodation for the said application. The learned District Forum has further gone on to observe that in the present case, if Dubai was mentioned against all three destinations, the OP could not have refused booking on the ground that three destinations had not been mentioned. Further as regards the three different dates, it has been observed by the learned District Forum that the complainant had given two dates i.e. 14^th and 15^th January 2009 and had not mentioned the third date whereas in the case of another Form (Annexure R-2), the preferred date had been given as 17^th/18^th & 19^th February 2009 and in Annexure R-4, the same had been given as 30.12.2008, 31.12.2008 and 1.1.2009 and those forms had been accepted by the OP. The learned District Forum has also further gone on to observe that in case the booking was not available in Dubai on the dates mentioned in the Form of the complainant, the OP could have offered him accommodation in Dubai on some other dates as had been done in the case of Annexure R-4 but the OP did not do so in the case of the complainant. Furthermore, the learned District Forum has observed that the OP had not produced any term or condition of the agreement under which it was obligatory for the complainant to give three different destinations or three different dates and thus, held the view that this contention of the OP was without any merit. Coming to the conclusion that the OP after receiving the fee of Rs.4,990/- did not render the requisite service and despite the complainant rescheduling his programme, caused him harassment and therefore, vide the impugned order, it directed the OP to refund the amount of Rs.4,990/- received by it from the complainant and also pay the complainant an additional amount of Rs.4,000/- spent by the complainant vide Annexure C-7 in addition to payment of Rs.5,000/- as compensation for mental and physical harassment and another Rs.1,100/- as costs of litigation. The OP was directed to comply with the order within a period of 30 days failing which it was liable to pay penal interest on the amounts @12% per annum from the date of filing the complaint i.e. 6.4.2009 till actual payment.

5.             Aggrieved by the said order of learned District Forum, the OP has filed the present appeal. The appeal having been taken on board, notice was sent to the Respondent (complainant) and record of complaint case was summoned from the District Forum concerned. Sh. Baljeet Singh, Advocate appeared on behalf of the Appellant (OP) Initially Sh. Rawal Kishore Seigal, respondent himself appeared in person but on the date of final hearing i.e. on 5.3.2010, none appeared on behalf of the respondent.

6.             Sh. Baljeet Singh, Advocate learned counsel for the Appellant/OP submitted that the complainant had been offered an alternative destination and the dates but he refused to accept the same. He, thereafter, referred to Annexure A-1 and brought to the notice of the Bench that the complainant had not given three different destinations as required of him and had also not given three different dates. Thereafter, referring to Annexure A-2, learned counsel pointed out that even though Annexure A-1 i.e. Booking Request Form was dated only 24.12.2008, vide Annexure A-2 dated 25.12.2008, the complainant had malafidely mentioned that he had been constantly trying the helpline number for one week between 14.1.2009 to 20.1.2009 but to no avail. He pointedly brought out that this email was sent on the very next day after dispatching the Booking Request Form. He, thereafter, referred to Annexure A-3, which is the air ticket and brought to the notice of the Bench that the complainant had purchased this ticket on 26.12.2008 barely two days after the filling in of the Booking Request Form and had done so without any receipt of confirmation about the booking from the OP. The learned counsel thereafter referred to Annexure R-1 wherein under the terms and conditions, it has been clearly mentioned that the confirmation of booking was subject to the choosing destination and date being available and it is also stated under Clause 3 that there is a mandatory booking fee of Rs.1,700/- for all bookings, which was required to be sent along with the Booking Request Form. The learned counsel emphatically submitted that this fee of Rs.1,700/- had not been paid by the complainant and on this count itself, he was not entitled to any confirmation of accommodation. The learned counsel also reiterated that the complainant without receiving any confirmation of his booking at Dubai had further on his own purchased the air tickets and done other hotel booking etc. for which the OP could not be held liable to compensate him. The learned counsel reiterated that the complainant had been offered destination of Thailand but he did not accepted the same. To prove his point that there was a requirement of filling three destinations and three dates, he referred to Annexures R-2, R-3 and R-4 and submitted that all these customers had been provided the facility by the OP. He also submitted that the customers have to cooperate with the OP and have to make adjustments in their programme and he pointed out that in case of Annexure R-4, even through the customer had demanded accommodation on dates from 30.12.2008 to 1.1.2009 eventually he accepted the check-in on 23.3.2009 and check-out on 30.3.2009. The learned counsel in the end emphatically submitted that there being no deficiency in service on the part of OP, the appeal be accepted and the impugned order be set aside.

7.             We have gone through the record on file as well as the impugned order and have heard the learned counsel for the appellant.

8.             Admittedly, the complainant had become a member of Exotic Time Club after filling in his application form dated 3.4.2008 and paying the OP a sum of Rs.4,990/-. The complainant was also aware of the terms and conditions of the membership as he has annexed the same himself at Page 10 of the complaint. It is the case of the complainant that he was wanting to go to Dubai in January 2009 and in this context, had been contacting the OP on telephone and had eventually filled in the Booking Request Form dated 24.12.2008 mentioning therein the destination being Dubai and the dates of choice being 14^th & 15^th January 2009. It is further the case of the complainant that the OP did not respond to his request or his emails sent on 25.12.2008 as well as emails dated 6/7.1.2009 and consequently, he had to make his own travel arrangements to visit Dubai and had also to reschedule his air travel by paying an additional sum of Rs.4,000/- and because of non provision of accommodation in Dubai by the OP, he had to further incur an amount of Rs.69,940/- for hotel booking etc. From the perusal of record, it is seen that even though the complainant has mentioned that he tried to contact the OP on telephone prior to his visit to Dubai, no details of such telephonic efforts made by the complainant have been recorded in the complaint. Further, the complainant has not indicated in the Booking Request Form or any other accompanied document with the same that the required sum of Rs.1,700/- as booking fee had been paid. A critical perusal of the terms and conditions clearly indicates that the provision of accommodation was subject to availability at the destination and suitability of dates. It also indicates that there is a mandatory booking fee of Rs.1,700/- to be paid for every booking. There is no mention in the entire complaint by the complainant as to whether he had made payment of this fee or why he did not make this payment. Since, the acceptance of this term and condition of the agreement has not been rebutted by the complainant and since, he has also failed to prove by any cogent evidence that he had paid this amount along with the Booking Request Form, we are of the considered view that the complainant is not entitled to claim any facility from the OP under the scheme. It is also evident from the evidence on record that the complainant filled in the Booking Request Form only on 24.12.2008 and sent the same to the OP by post and had thereafter without awaiting any confirmation had purchased the air tickets on 26.12.2008. There is also no evidence on record placed by the complainant to prove that he had been asked by any official of the OP to get his visit extended by some dates. There is also no mention in the complaint as to who was the official to whom the complainant had spoken to or interacted with and who had asked the complainant to get his visit extended by some dates, which resulted in the changing of his schedule of visit. In this view of the matter, we have no hesitation in our minds to concluded that the complainant was not entitled to any facility to be provided to him under the agreement at Dubai because he had himself failed to send the mandatory booking fee of Rs.1,700/- as agreed vide the agreement. We are also clear in our minds that the complainant has failed to prove his case by any cogent evidence regarding any deficiency in service on the part of OP or any unfair trade practice on its part.

9.             In view of the foregoing discussion, the appeal is allowed and the impugned order is set aside. Consequently, the complaint is dismissed. Keeping in view the peculiar circumstances of the case, the parties are left to bear their own costs of litigation.

10.           Copies of this order be sent to the parties free of charge.

Pronounced.

9^th March 2010.