Chandigarh

StateCommission

A/26/2019

Make My Trip India Pvt.Ltd. - Complainant(s)

Versus

Sanjeev Gaba - Opp.Party(s)

Satpal Dhamija, Adv.

03 Mar 2020

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

UNION TERRITORY, CHANDIGARH

 

Appeal No.	26 of 2019
Date of Institution	07.02.2019
Date of Decision	03.03.2020

1]  Make My Trip India Private Ltd., SCO No.43-44, Level-1, Sector 8-C, Chandigarh, through its authorised representative.

2]  Make My Trip India Pvt. Ltd., DLF Building No.5, Tower-B, DLF Cyber City, DLF Phase-2, Sector 24, Gurugram, Haryana 122002, India, through its Managing Director.

                                    …..Appellants/Opposite Parties.

                                Versus

Sanjeev Gaba s/o Sh.Sant Lal Gaba, R/o H.No.1204, First Floor, Sector 37-B, Chandigarh. 

                                          ....Respondent/Complainant

BEFORE:             JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                             MRS. PADMA PANDEY, MEMBER

                             MR.RAJESH K. ARYA, MEMBER

 

Argued by:

Sh. Satpal Dhamija, Advocate for the appellants.

Sh. Deepak Goyal, Advocate for the respondent.  

 

PER PADMA PANDEY, MEMBER

            This appeal is directed against the order dated 26.10.2018, rendered by District Consumer Disputes Redressal Forum-II, UT, Chandigarh (in short ‘the Forum’ only), vide which, it allowed Consumer Complaint bearing No.190 of 2018, which reads thus:-

“12]      In view of the foregoing discussion, we allow the present complaint with directions to the Opposite Parties to refund an amount of Rs.1,24,250/- to the complainant and also to pay compensation amount of Rs.20,000/- for causing him harassment & mental agony for their deficiency in service coupled with unfair trade practice along with litigation cost of Rs.7,000/-.

         This order be complied with by the OPs within a period of 30 days from the date of receipt of its certified copy, failing which the Opposite Parties shall also be liable to pay additional cost of Rs.20,000/- apart from the above relief.”

2.             The Forum noted down the following facts narrated by the complainant :-

 “The case of the complainant in brief is that he approached Opposite Parties for planning his tour, whereupon the Opposite Parties assured him to provide tour package including Hotel Vouchers, Flight, travel arrangements, visa arrangements and site visit arrangements etc.  Accordingly, the complainant paid an amount of Rs.1,24,250/- to the OPs for Tour package for 5 Nights & 6 days to visit Switzerland and France, which contained Hotel Vouchers, Flight, travel arrangements, site visit etc. and one time meal in a day (Ann.C-1). It is averred that the Opposite Parties also assured the complainant that in case the tour of the complainant is cancelled due to any reason, then amount of Rs.1,24,250/- would be refunded to him.  It is further averred that the complainant provided every documents to Opposite Parties, as asked for and also applied for tourist visa of Switzerland under the instructions & directions of the OPs, but the visa to Switzerland was not granted to the complainant. As such, the complainant approached Opposite Parties seeking refund of Rs.1,24,250/-, which they refused. It is submitted that the OPs did not provide any service, but still refused to refund his amount. Hence, this complaint has been filed alleging deficiency in service on the part of Opposite Parties.”

3.             The Forum noted down the following facts narrated by the Opposite Parties to the complaint filed by the complainant :-

“2]       The OPs filed reply and while admitting the factual matrix of the case, stated that as per the ‘User Agreement’ entered into between the complainant and Opposite Parties while making booking, it has clearly been mentioned under head “Visa Obligations of the User” that the travel booking done by OPs are subject to applicable requirements of Visa which are to be obtained by the individual traveller and Opposite Parties are not responsible for any issues, including inability to travel arising out of such Visa  requirements and is also not liable to refund for the untravelled booking due to any such reasons. It is stated that the Visa application of the complainant was rejected by Swiss Embassy and thereafter he sought refund from the OPs, but since the amount paid by the complainant has been paid to the respective vendors, hence no refund or adjustment is possible. It is also stated that the Opposite Parties had already provided confirmed Air Tickets and Hotel Bookings and this fact is not disputed and so far the denial of Visa is concerned, it is not under the domain of OPs, therefore, there is no deficiency in service on the part of Opposite Parties and they are not liable for any refund.  Pleading no deficiency in service and denying other allegations of the complainant, the OPs have prayed for dismissal of the complaint.”   

4.                The complainant, filed rejoinder to the written statement of the Opposite Parties, wherein he reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of the Opposite Parties. 

5.             The parties led evidence, in support of their case.

6.             After hearing the Counsel for the parties and, on going through the evidence, and record of the case, the Forum, allowed the complaint, as stated above.

7.                Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.

8.             We have heard Counsel for the parties and have gone through the evidence and record of the case, carefully.

9.             Counsel for the appellants/Opposite Parties has submitted that as per terms of the User Agreement under the head of “VISA OBLIGATIONS OF THE USER”, it has been clearly made to understand that the travel booking done by MMT are subject to the applicable requirements of visa, which are to be obtained by the individual traveller and MMT is not responsible for any issues, including inability to travel arising out of such visa requirements and also not liable to refund for the untravelled bookings due to any such reasons. He has further submitted that the appellant merely acts as a facilitator providing an online portal to its user to book flight tickets, hotels, packages etc. and in cases where travel involves arranging a visa, the same is to be procured from the concerned embassy and the decision to grant or refuse the visa rests solely on the concerned embassy and the appellant has no role whatsoever in it.    He has further submitted that in case of cancellation policy, the refund was not possible as the amount paid the respondent/complainant was invested by the appellants in arranging the said tour so as to book flight tickets, hotels etc. He has further submitted that the respondent/complainant himself chose to enter into the agreement on the website of the appellants and it is a matter of common knowledge that once entered into an agreement, the terms and conditions of the Agreement would prevail. He prayed for allowing the appeal and setting aside the impugned order.

10.             On the other hand, Counsel for the respondent/complainant has submitted that the Forum has rightly passed the impugned order and prayed for dismissal of the appeal filed by the Opposite Parties.

11.           After going through the evidence and record of the case, we are of the considered opinion, that the appeal is liable to be dismissed, for the reasons to be recorded, hereinafter.

12.           The core question that falls for consideration before us is as to whether the Forum has rightly passed the impugned order. It is the admitted fact that the complainant booked online tour package with the appellants/Opposite Parties by paying an amount of Rs.1,24,250/- but due to rejection of visa by the embassy, the complainant could not avail tour package facility and when the complainant asked for refund of the aforesaid amount, the appellants/Opposite Parties failed to pay the same. After going through the record, we are of the considered opinion that the Forum has rightly passed the impugned order. It has been observed by the appellants that as per the “User Agreement”  entered into between the appellants and the respondent, while making the booking, it has clearly been mentioned under heading “Visa obligation of the User” that the travel booking done by the appellants are subject to applicable requirements of visa for which the appellants are not responsible and only the respondent/complainant is responsible to procure the said visa but no such document is available to prove that the respondent/complainant was ever apprised of all the terms of the user agreement or at any point of time his signatures were obtained on the alleged agreement. Further, we find that there is nothing on record to show that the respondent/complainant was ever intimated about the non refund policy of the appellants or ever his consent was taken by the appellants qua non refund of the booking amount in case of rejection of visa. It is also observed that the appellants were well aware before the commencement date of the tour package about the visa rejection of the respondent/complainant by the Swiss Embassy. Since it was only the appellants who had processed the visa, inaction is writ large on the face of the appellants by failing to initiate the process of refund the booking amount to the respondent/complainant, which amounts to deficiency in service as well as indulgence into unfair trade practice. Further, collecting the booking amount for the tour programme where no visa has been granted tantamounts to illegal action. Therefore, going by the above conduct of the appellants, the Forum has rightly passed the impugned order.

13.              In view of the above discussion, it is held that the order passed by the Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality, warranting the interference of this Commission.

14.              For the reasons recorded above, this appeal being devoid of any merit, is dismissed with no order as to costs. The impugned order passed by the District Forum is upheld.

15.           Certified copies of the order be sent to the parties free of charge.

16.           File be consigned to the Record Room after completion.

Pronounced.

March  3^rd, 2020                                              Sd/-

                                                (RAJ SHEKHAR ATTRI)

                                                                   PRESIDENT
                       

                                                                        Sd/-

                                                          (PADMA PANDEY)

        MEMBER

                                                                        Sd/-

                                                        (RAJESH K. ARYA)

                                                                       MEMBER

 

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