District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No.060/2019.
Date of Institution: 06.02.2019.
Date of Order: 18.11.2022.
1. Lalit Mohan Srivastav son of Shri Omkar Nath Srivastav, Aadhar card No. 4351 6259 3179.
2. Mrs. Rani Srivastav wife of Shri Lalit Mohan Srivastav, Both residents of House No. 602, Divya Lok, Plot No. GH-01, Sector-21D, Faridabad – 121002, mobile No. 9968271931.
…….Complainants……..
Versus
1. Rency Thomas, CEO/Principal Officer, Adventure Nation, 11th floor, Tower B Unitech Cyber Park, Sector-39, Gurugram – 122002.
2. Rajender Prabhakar, Manager/Principal Officer, Adventure Nation, 11th floor, Tower B Unitech Cyber Park, Sector-39, Gurugram – 122002.
3. Sajjan Gulati, Adventure Nation, 11th floor, Tower B Unitech Cyber Park, Sector-39, Gurugram – 122002.
4. Adventure Nation, 111 floor, Tower-B, Unitech Cyber Park, Sector-39, Gurugram – 122002 through its proprietor/Director.
…Opposite parties……
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
BEFORE: Amit Arora……………..President
Mukesh Sharma………Member.
Indira Bhadana ………Member.
PRESENT: Sh. Ajay Kumar, counsel for the complainant.
Opposite parties Nos.1 to 3 (defence struck off vide order dated 16.1.2020).
Shri Yashpal Yadav, counsel for opposite partyNo.4.
ORDER:
The facts in brief of the complaint are that the complainants were senior citizens of India. They were interested to go to Kailash Mansarovar, as they had a dream to visit/spiritual trip to Kailash Mansarovar. Hence the complainants approached the opposite parties on 29th May 2018 in this respect. The opposite parties sent one email to the complainants on 30.5.2018, vide which they had stated that Adventure Nation was a community deducted to outdoor enthusiants wanting to travel for adventure and nature. The packages of the opposite parties were had-picked and curated from the best in the industry and designed keeping in mind quality, safety and eco-sustainability guidelines, in which they had given the details of package for Kailash Mansarovar Yatra worth Rs.1,25,000/- per head. Further as per details given in their letter the arrival was from Kathmandu to Kailash Mansarovar and duration of the said travel was 14 days. Accordingly, the complainants deposited a total amount of Rs.2,62,500/- (i.e. Rs.5250 + 70,000 by transferring in bank account of opposite party No.1 through NEFT) as per the schedule of the opposite parties. Besides this, the complainants spent Rs.22,920/- approximately on account of Airfare-Delhi to Kathmandu to & fro 2 persons for which they were solely responsible. Besides this, the complainants spent Rs.1600/- as insurance premium. The grand total amount comes to Rs.2,87,020/-. The complainants proposed to visit Mansarovar Ist time in their life, it was completely in dark about the mandatory health check-up/fitness test requirements, but neither the opposite parties had communicated/discussed any such requirements during several interactions of the complainants before taking the payments. It was only communicated to the complainants just after collecting the whole amount with evil intention. The medical should be done just taking committed money of Rs.5250/. Thereafter, the complainants were assured to start their journey w.e..f. 20th August 2018. After that the complainants suddenly received one e-mail from the opposite parties on 1.8.2018, vide which they had asked the complainants to get their medically check-up and for which they sent two different forms. On the basis of which the complainants got medically examined/checked-up on 03.08.2018 in QRG Hospital, Sector-16, Faridabad, at that time the complainant No.1 was having blockage on his heart. After coming to know about the same, the dreams of the complainants were shattered that his arteries got blocked and the complainant No.1 was advised by the doctor to cancel the proposed trip and there was need of immediate Angioplasty and accordingly the complainants informed the opposite parties immediately, on the same day i.e. 03.08.2018, and requested them to cancel their travel and thereafter, on 06.8.2018 the angioplasty was done on the person of complainant No.1 on 0.8.2018 in the above said hospital. As per cancellation policy the opposite parties were to refund back 100% amount to the complainants, if the trip was cancelled before the date of trip. But the opposite parties did not refund back the said amount to the complainants. Even the complainants approached several times verbal as well as through letters dated 30.08.2018, 05.09.2018 and 15.10.2018 vide which the opposite parties were requested to refund back the above said amounts to the complainants. The complainant sent legal notice dated 08.01.2019 to the opposite parties but all in vain. The aforesaid act of opposite parties amounts to deficiency of service and hence the complaint. The complainant has prayed for directions to the opposite parties to:
a) pay to the complainants Rs.2,87,020/- alongwith interest @ 18% p.a. from the date of its due till its realization.
b) pay Rs. 50,000/- as compensation for causing mental agony and harassment .
c) pay Rs. 22,000 /-as litigation expenses.
2. Notices were issued to opposite parties. Written statement on behalf of opposite parties Nos.1 to 3 not filed inspite availing sufficient opportunities including the last one. No further opportunity had been granted for this purpose. So, defence of opposite parties Nos.1 to 3 struck off vide order dated 16.1.2020.
3. Opposite party No.4 put in appearance through counsel and filed written statement wherein Opposite party No.4 refuted claim of the complainant and submitted that the users of the opposite party were bound by the terms and conditions of thee User Agreement which they accept at the time of using the website of the opposite party. Upon perusal of the terms of the User Agreement, it was clear that this Hon’ble Forum had no jurisdiction to try the present case. The User Agreement consists of a jurisdictional clause. As per clause 25 of the User Agreement any disputes which arise between a user and the opposite party shall be subject to exclusive jurisdiction of the courts of Gurgaon, Haryana. It was further submitted that the opposite party had made the same very clear in its User Agreement that the opposite party was merely a service facilitator and not a service provider and hence acts as an intermediary between a customer and a service provider. The relevant portion of the User Agreement in this regard is being reproduced for the sake of convenience:
10. Disclaimer of Warranties/Limitation of Liability.
The opposite party was the facilitator of the travel related services which were being offered and rendered by the third party vendors. The complainants had purchased a trip service for 2 persons to Kailash Mansarovar from Kathmandu from the website of the opposite party on 30th May, 2018. The opposite party vide email dated 30.05.2018 also shared the itinerary and the package of the trip. The payments were made as per the below schedule:
1. 31st May, 2018 – A booking deposit of Rs.5250/- was made for Kailash Mansarovar for two, the cost of the package being Rs.2,62,500/-.
2. 13th July, 2018 – Another payment of Rs.70,000/- was to complete the initial deposit required as per our payment policy for holding the booking.
3. 23rd July, 2018 – A payment of Rs.1,87,250/- was made to complete the payment of the trip.
Vide email dated Ist August 2018, the opposite party sent a mandatory medical check up form and informed the complainants the requirement that they should not suffer any medical condition. It was pertinent to mention that it was widely published on various government portal including website of ministry of external affairs that the medical test was required as a precondition for the Mansarover Tour as it requires high attitude trekking. Upon further inquiry by the complainants over cali, the representative of the opposite party asked the complainant of his health issues and medicines they take and informed them the requirement to not suffer any serious health issues. The complainant informed the opposite party on 3rd August, 2018 that one of them was unfit to travel to Mansarover scheduled on 20th August, 2018. The opposite party had stated in the itinerary provided to the complainant on 30th May 2018 the cancellation policy of the package dated to Kailash Mansarover. as per the cancellation policy mentioned in the terms and conditions of booking, the complainant were not entitled for any refund if the cancellation was made less than 20 days before the departure. The terms of the cancellation policy was being reproduced herein for the sake of convenience:
Cancellation charges per person
30 days or more before departure: 25% of total cost.
29-20 days before departure: 50% of total cost.
Less than 20 days before departure: 100% of total cost.
As per Kailash Mansarover Trip Protocol, the opposite party needs to apply for permits with the Chinese Government a month in advance and the permit fees need to be paid upfront. Since the start date of the trip was 20th August 2018, the permit requested by the complainants alongwith the fee, had already been submitted in China and the permits had been issued. These permits were non-refundable as per the rules stipulated by the Chinese Government body responsible for issuance of permits. It was pertinent to mention that the opposite party considering the case of the complainants as an exception and a special case stated the complainants in email dated 10th September, 2018 that they would process refund of an amount of Rs.84,108/- despite cancellation being made 17 days before the scheduled departure date i.e. 20th August, 2018. The opposite party also informed the complainants that the rest of the amount had been already paid towards for issuance of permits for the complainant’s Kailash Mansarover trip and asked the complainant to prove the account details. However, after requesting the complainants to provide the consent to the opposite party to proceed the refund of an amount of Rs.84,108/-, the complainants didn’t provide their consent for the same and alleged baseless allegations on the complainant. Vide email dated 9th July, 2019 the opposite party again asked the complainant to provide account details. Via email dated 13.06.2019 the opposite party again informed the complainants that as per the Kailash Mansarover trip protocol, permit amount need to be paid in advance and the same was non refundable as per the rules stipulated by Chinnese Government. Opposite y No.4 denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
4. The parties led evidence in support of their respective versions.
5. We have heard learned counsel for the parties and have gone through the record on the file.
6. In this case the complaint was filed by the complainant against opposite parties – Rency Thomas & Others with the prayer to: a) pay to the complainants Rs.2,87,020/- alongwith interest @ 18% p.a. from the date of its due till its realization. b) pay Rs. 50,000/- as compensation for causing mental agony and harassment . c) pay Rs. 22,000 /-as litigation expenses.
To establish his case, the complainant has led in his evidence Ex.C1 to C4 – emails, Ex.C-5 – Exercise Stress Test, Ex.C-6 & C7- email, Ex.C-8, Ex.C-9 – letter dated 15.10.2018 to the Rency Thomas, Ex.C10 – postal receipt, Ex.C-11 – letter dated 28.08.2018,, Ex.C-13 – postal receipt, Ex.C-14 to C-16 – postal receipts.
On the other hand counsel for the opposite party No.4 strongly agitated and opposed. As per the evidence of the opposite party No.4 , Ex.RW1/A – Affidavit of Mr. Gurjyot Sethi, Authorized Signatory, adventure and Nature Network Private Limited, Ex.R-1 – Authority Letter,, Ex.R-2 – user Agreement,Ex.R-3 – Travel package, Ex.R-4 –email dated Ist August ,2018, Ex.R -5 CD, Ex.R-6 – permit, Ex.R-7 (colly 1 to 3) – cancellation policy,, Ex.R-8 to Ex.R-9 – emails.
7. In this case, opposite party No.4 asked for an initial payment towards the trip and accordingly complainants made a defrayment of Rs.5250/- on 31.5.2018. After an interregnum period of 44 days again opposite party No.4 asked for a payment and accordingly complainants made a payment of Rs.70,000/- on 13.7.2018. On 23.7.2018 again a defrayment of Rs.1,87,250/- was made by the complainants towards the trip payment. Plane ticket’s expenditure of Rs.22,920/- plus other expenses of Rs.1600/- as insurance premium wee also borne by the complainants. The whole amount aggregate upto Rs.2,87,020/-. Having taken the plenary payment towards the trip, complainant’s were apprised about the “indispensable medical examination condition” by the opposite parties on 1.8.2018 through an email whereby one special medical form was given to the complainants, which was just 19 days before the actual departure i.e. 20.08.2018. When complainants in pursuance of the indispensable medical examination condition approached a doctor at QRG hospital, Sector-16 and having undergone medical examination, complainant NO.1 came to know that he was suffering from heart blockages. Doctor categorically recommended the complainant to undergo angioplasty and to avoid the trip in order to avert any baleful mishappening. The same fact was apprised to the opposite parties on 3.08.2019 to which they showed a pachydermatous attitude. Due to the above medical problem, complainants were unable to go on the trip as per the guidelines. Subsequently, complainant asked for the plenary remittance of the already deposited money from the opposite parties.
On the other hand, counsel for the opposite parties stated that as per Ex.R-8 in which it has been mentioned that” as per the email sent by you we had conducted a detailed investigation into the entire booking and cancellation process and communication of your scheduled travel to Kailash Mansrover on 20.08.2018. Please find below our findings:
1. 31st May, 2018 – A booking deposit of Rs.5250/- was made for Kailash Mansarovar for two, the cost of the package being Rs.2,62,500/-.
2. 13th July, 2018 – Another payment of Rs.70,000/- was to complete the initial deposit required as per our payment policy for holding the booking.
3. 23rd July, 2018 – A payment of Rs.1,87,250/- was made to complete the payment of the trip.
4. On 16.07.2018 – email was sent to you by Sanjan Gulati (Sales Agent handling your booking) with:
- Detailed itinerary
- Price
- Inclusions & exclusions in the package
- Booking procedure
- Payment policy
- Cancellation policy.
5. 3rd August 2018 – The booking was cancelled 17 days before scheduled departure, on your request.”
However, after requesting the complainants to provide the consent to the opposite party to proceed the refund of an amount of Rs.84,108/-, the complainant did not provide their consent for the same . It is evident from email dated Ex.R-9 (colly 1 to 4) the opposite party again asked the complainant to provide account details. Email dated 13.06.2019 the opposite party again informed the complainants that as per the Kailash Mansarover trip protocol, permit amount need to be paid in advance and the same is non refundable as per the rules stipulated by Chinese Government.
8. After going through the evidence led by parties, the Commission is of the opinion that the complaint is allowed. Opposite parties are directed to process the claim of the complainant within 30 days of receipt of the copy of order and pay the due amount to the complainant along with interest @ 6% p.a. from the date of filing of complaint till its realization. The opposite parties are also directed to pay Rs.2200/- as compensation on account of mental tension, agony and harassment alongwith Rs.2200/- as litigation expenses to the complainant. Copy of this order be given to the parties concerned free of costs and file be consigned to record room.
Announced on: 18.11.2022 (Amit Arora)
President
District Consumer Disputes
Redressal Commission, Faridabad.
(Mukesh Sharma)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
(Indira Bhadana)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
