Haryana

Panchkula

CC/582/2019

NARESH GARG. - Complainant(s)

Versus

TRAVEL TRIANGLE PVT.LTD. - Opp.Party(s)

GAGAN BAJAJ

19 Feb 2024

ORDER

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

 

                                                       

Consumer Complaint No	:	582 of 2019
Date of Institution	:	23.10.2019
Date of Decision	:	19.02.2024

 

 

Naresh Garg aged 54 years son of Om Parkash Garg R/o House No.601, Sector-10, Panchkula.

 

                                                                           ….Complainant

 

Versus

1.     Travel Triangle Private Limited through authorized Manager Address: Plot No.29, 3^rd and 4^th Floor dynamic house, Maruti Industrial Complex, Sector-18, Gurugram Haryana-122015.

2.     M.M.Travel Company; SCF 4, 2^nd Floor, Sector-2 Panchkula through its proprietor.

3.     Life Leisure Trip Company; SCF 4, 2^nd Floor, Sector-2, Panchkula through its proprietor.  

                                                                                                                                                                                                ….Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019

 

 

Before:              Sh. Satpal, President.

Dr. Sushma Garg, Member.

Dr. Barhm Parkash Yadav, Member

 

 

For the Parties:   Sh. Gagan Bajaj, Advocate for the complainant.   

                        Ms. Kanika Ganeriwal, Advocate for OP No.1.

                        OPs No.2 & 3 ex-parte vide order dated 17.12.2019.

 

ORDER

(Satpal, President)

1.The brief facts, as alleged, in the present complaint are, that the complainant had availed the services  of OPs by purchasing a hotel tour package to Kerala, commencing from 11.08.2019 to 17.08.2019, through online platform of OP No.1 vide booking ID No.5157741. The payment of a sum of Rs.26,700/- was made by the complainant qua the said tour package. It is stated that an email was sent by the complainant to OPs on 09.08.2019 requesting them to reschedule the tour because the Kochi airport was closed up to 11.08.2019 till 3:00PM on account of flood. The price qua the railway ticket as booked by the complainant from Chandigarh to Delhi and the air tickets from Delhi to Kochi and back has been refunded. It is averred that  the request made  by the complainant vide email was responded by the Ops informing him that only a sum of Rs.10,000/- was liable to be adjusted in his future packege and that too till 20^th September. A legal notice was sent by the complainant on 31.08.2019, in response to which, reply was received from OPs mentioning that only a sum of Rs.10,000/- was liable to be adjusted in future packege till 20^th September. It is alleged that the Ops are bound to refund the amount of Rs.26,700/- as paid by the complainant to them qua hotel tour package. Due to the act and conduct of the Ops, the complainant has suffered financial loss and mental agony, physical harassment; hence the present complaint.

2.Upon notice, the OP No.1 appeared through counsel and filed written statement raising preliminary objections qua the complaint is not maintainable; the complainant has not come with clean hands as he has consciously  concealed  the terms and conditions as agreed between the parties at the time of booking of the trip. It is stated that the complainant had never paid the full invoice amount of Rs.42,700/- and that he defaulted qua the last installment of Rs.16,000/-, which was due and liable to be paid by 05.08.2019, despite which, all the confirmed bookings were made and booking vouchers were shared with the complainant.

                On merits, it is submitted that the complainant purchased a family tour package to Kerala from 11.08.2019 to 17.08.2019. It is submitted that the complainant had utilized the online platform of OP No.1 to find a suitable travel agents and thereafter, he booked the said tour through OP No.2 i.e. M.M.Travels. The complainant has accepted the service towards booking of the trip subject to the terms and conditions as expressly contained in the invoice dated 03.07.2019. It is submitted that the complainant had sought the cancellation of the trip vide email dated 09.08.2019 whereas the trip was commencing from 11.08.2019. As per terms and conditions contained in the invoice dated 03.07.2019, the complainant is not entitled to any refund. It is submitted that the complainant had requested the cancellation of the confirmed booking utilization and that too just before two days before commencing of the tour. It is submitted that the bad weather in Kerala at that time was a “force majeure” act, which was beyond the control of any of the parties. It is submitted that, in case of force majeure cases, no liability can arises against the OPs. It is submitted that the complainant intentionally to reduce costs did not opt for travel insurance, which was available to him to mitigate the risks associated with it. It is submitted that the booking of railway tickets and air tickets was done by the complainant at his own end and not included in the tour package. These travel tickets were cancelled by the respective operators themselves. The respective tickets were guided by their own terms and conditions as set out by the issuer of these tickets. Therefore, the question of refund of these tickets has no bearing on the facts of the present dispute. It is further submitted that in case of the travel package, all the bookings for boarding and lodging including hotels, sightseeing, travel, etc. were paid for in advance and duly confirmed by the travel agents. Thus, the cancellation of the confirmed bookings has been unilaterally made by the complainant at his own end and that too just two days before the commencement of the tour. It is further submitted that no refund was permissible as per the terms and conditions, yet the Ops had allowed a concession of Rs.10,000/- to the complainant in any of the future trips booked by him from OP No.1. It is submitted that the OP No.1 has also suffered a financial loss for the remaining amount of Rs.16,000/- qua confirmed booking, which was non- refundable and thus, prayer for dismissal of the present complaint has been made.

                Notices were issued to the OPs No.2 & 3 through registered post, which were not received back either served or unserved despite the expiry of 30 days from the issuance of notices to OPs No.2 & 3; hence, they were deemed to be served and thus, due to non appearance of OPs No.2 & 3, they were proceeded ex-parte by this Commission vide its order dated 17.12.2019.

3.To prove the case, the learned counsel for the complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 to C-7 in evidence and closed the evidence by making a separate statement. On the other hand, the OP No.1 did not submit its evidence in shape of affidavit along with documents etc. despite availing several opportunities; accordingly, its evidence was closed by the Commission on 27.10.2021.

4.We have heard the learned counsels for the complainant and OP No.1 and gone through the record available on file including the written arguments filed by OP No.1 and minutely and carefully.

5.During arguments, the learned counsel for the complainant reiterated the averments as made in the complaint as also in the affidavit(Annexure C-A) and contended that the complainant had requested the OPs vide his email dated 09.08.2019 to reschedule his family tour which was commencing from 11.08.2019 to 17.08.2019, in the wake occurrence of flood in Kerala, which had led to the closure of the Kochi airport up to 11.08.2019 till 03:00 PM. It is contended that the railway tickets as well as the air tickets booked by the complainant were refunded by the railway and concerned airlines on account of flood in Kerala. The learned counsel argued that the OPs had rendered deficient service to the complainant as they had failed to refund the booking amount i.e. Rs.26,700/- to the complainant and thus, prayed for acceptance of the complaint by granting the relief as claimed for in the present complaint.

6.On the other hand,  the OP No.1 has contested the complaint mainly on the ground that no refund of booking amount was admissible to the complainant as per terms and conditions of the invoice  dated 03.07.2019. The main submissions as made by the learned counsel for OP No.1 are summarized as under:-

1. That the travel package was to commence from 11.08.2019 whereas the cancellation request was received from the complainant on 09.08.2019 i.e. two days prior to the booking. It is contended that no refund was payable as per the terms and conditions contained in the invoice dated 03.07.2019.
2. That the occurrence of flood in Kerala at that time was a “force majeure” event, which was beyond the control of any of the parties and thus, no liability can be fastened upon the Ops for any deficiency, whatsoever.
3. That the confirmed bookings had already been made and as per terms and conditions agreed between the parties, the complainant was required to pay Rs.16,000/- for the same till 05.08.2019, which was never paid by him.
4. That all the bookings for boarding and lodging including hotels, sightseeing, travel, etc. were paid for in advance and duly confirmed by the travel agents. Thus, the cancellation of the confirmed bookings has been unilaterally made by the complainant unilaterally at his own end and that too just 2 days before the commencement of the tour.

Concluding the arguments, the learned counsel has prayed for dismissal of the present complaint being frivolous, baseless and meritless.

7.After hearing the learned counsel for the parties, the question that arises for adjudication before the Commission, is, whether the OPs are entitled to withhold the booking amount i.e. Rs.26,700/- as paid by the complainant, qua which the complainant had availed no services from them.

8.Admittedly, the occurrence of flood in Kerala in the month of August 2019 i.e. during the time of tour package, had led to the closure of the Kochi Airport up to 11.08.2019 till 03:00 PM; thus, it was not feasible for the complainant and his family members to visit Kerala on 11.08.2019 in order to avail the facilities under the tour package. Thus, the complainant, under compelled circumstances arising out of the flood situation in Kerala, had requested the OP No.1 vide his email(Annexure C-2) on 09.08.2018 to reschedule his family trip to Kerala. For the sake of convenience and clarity, the request as made by the complainant vide mail dated 09.08.2019(Annexure C-2) is reproduced as under:-

“As per news, cochin airport is closed till Sunday evening. So my airlines cancelled my tickets from New Delhi to Cochin. Please reschedule my trip under intimation to me for some other date convenient to us. We already convey our message over telephone to their representative. Awaiting your reply”.

 

9.The above email as sent by the complainant was responded by the OP No.1 vide its email dated 12.08.2019(Annexure C-4) mentioning therein that only sum of Rs.10,000/- out of sum of Rs.26,700/-, which was paid by the complainant at the time of booking, was liable to be adjusted and thus, the complainant was asked to make extra payment. The above said email dated 12.08.2019(Annexure C-4) sent by OP No.1 to the complainant, for the sake of convenience and clarity is reproduced as under:-

          We will Adjust  the previous  amount of 10k in your future package  but  before 20 September only, because after that because of high season price will hike, and extra charge will be charged from you, so let me know the exact date you want  to travel, will update u accordingly, for same further package you have to pay 32k.

 

10.We find no merits in the version of OP No.1 as stated in the above email dated 12.08.2019(Annexure C-4) wherein it was mentioned that only a sum of Rs.10,000/- out of Rs.26,700/- was liable to be adjusted. Pertinently, the complainant had sought the rescheduling of the tour package under compelled circumstances and not out of his choice. Keeping in view the natural disaster occasioned by the occurrence of flood in Kerala, which ultimately had led to the closure of the Kochi Airport, no fault can be found with the complainant while seeking of the rescheduling of the tour package. The OP No.1 had totally overlooked and ignored the flood situation in Kerala, while retaining/ forfeiting the booking amount as deposited by the complainant. The terms and conditions of the invoice dated 03.07.2019, being one sided and unfair are of no help to the case of OP No.1.

11.Further, the OP no.1 has taken the plea in its defence that all the bookings for boarding and lodging including hotels, sightseeing, travel, etc. were paid for in advance and duly confirmed by the travel agents. The said plea is not tenable because no evidence, much less cogent, credible and adequate, has been placed on record by it to show that any advance payment was made by the OPs qua the said arrangements. Even the OP No.1 has preferred not to submit any documentary evidence in the shape of Affidavit along with relevant documents etc. on record despite availing several opportunities and accordingly, its opportunity to submit the evidence was closed on 27.10.2021. It is well settled legal proposition that mere bald assertions, which are not corroborated and substantiated by any adequate, cogent and credible evidence, do not carry any evidentiary value.

12.In addition to above, it is also relevant to mention here that it is impermissible for a service provider to withhold or forfeit the payment qua which no services has been provided by it to the consumer. Thus, the OP No.1 is not entitled to withhold the booking amount i.e. Rs.26,700/- as paid by the complainant since no services were provided by it.

13.The OP No.2 & 3 have preferred not to contest the present complaint by remaining absent despite services of notice and accordingly, they were proceeded ex-parte vide order dated 17.12.2019 respectively and thus, the assertions made by the complainant against them go unrebutted and uncontroverted.

14.In the light of above discussion, we hold that OPs No.1 to 3 were deficient, while rendering services to the complainant, for which, they are liable, jointly and severally, to compensate the complainant.

15.As a sequel to above discussion, we partly allow the present complaint with the following directions to the OPs No.1 to 3:-

1. To refund a sum of Rs.26,700/- to the complainant, which was paid by him as booking amount, along with interest @ 9% per annum (simple interest) w.e.f. the date of filing of the present complaint till its realization.
2. To pay an amount of Rs.10,000/- to the complainant on account of mental agony and harassment.
3. To pay an amount of Rs.5,500/- as litigation charges.

 

16.            The OPs No.1 to 3 shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OPs No.1 to 3. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on:19.02.2024

 

 

 

Dr.Barhm Parkash Yadav      Dr.Sushma Garg             Satpal               

                Member                          Member                        President

 

Note: Each and every page of this order has been duly signed by me.

 

                                          Satpal                              

                                        President
       

 

 

C.C. No.582 of 2019

 

Present:             Sh. Gagan Bajaj, Advocate for the complainant.   

                        Ms. Kanika Ganeriwal, Advocate for OP No.1.

                        OPs No.2 & 3 ex-parte vide order dated 17.12.2019.

 

 

                       Arguments heard. Now, to come upon 19.02.2024 for orders.

Dated: 06.02.2024

 

 

 

Dr.Barhm Parkash Yadav      Dr.Sushma Garg             Satpal

                Member                                Member                    President

 

 

 

Present:             Sh. Gagan Bajaj, Advocate for the complainant.   

                        Ms. Kanika Ganeriwal, Advocate for OP No.1.

                        OPs No.2 & 3 ex-parte vide order dated 17.12.2019.

 

 

                                Vide a separate order of even date, the present complaint is hereby partly allowed against OPs No.1 to 3 with costs.

         A copy of the order be sent to the parties free of costs and the file be consigned to the record room after due compliance.

Dt.19.02.2024

 

 

 

      Dr.Barhm Parkash Yadav                Dr.Sushma Garg           Satpal

              Member                        Member                    President