For the Appellant                 Mr. Ujjwal A. Rana, Advocate and

                                                                                Mr. Himanshu Mehta, Advocate

For the Respondents            Mr. Prabhakar Tiwari, Advocate

                                        Mr. Karan Rajpurohit, Advocate

                                        Ms. Deepshikha Mishra, Advocate

ORDER

PER SUBHASH CHANDRA

        This Appeal challenges the order dated 13.04.2021 of the State Consumer Disputes Redressal Commission, New Delhi (for short “the State Commission”) in Complaint No.4 of 2017 filed by the Respondents/Complainants.  By the impugned order, the State Commission has directed the Appellant herein to pay an amount of                  ₹1 Lakh to each of the Complainants towards compensation for mental agony and harassment on or before 30.06.2021, failing which the amount would carry interest @ 9% p.a. from 30.06.2021 till actual realization and            ₹1 Lakh in total to the Complainants as litigation costs.  

2.      In brief, the facts of the case are that the Complainants numbering 16 persons booked an excursion package called “Magical Europe” with the Appellant for a period of 9 nights/10 days beginning from 24.06.2015 till 03.07.2015 covering multiple destinations in Europe i.e. United Kingdom, France and Switzerland.  The total cost of the package was ₹32,34,025/- of which ₹8 Lakh was paid by Complainants at the time of booking of the package calculated @ ₹50,000/- for each Complainant.  The Appellant apprised the Complainants that the package can neither be cancelled nor be rescheduled and in case of cancellation, no refund shall be provided.  In order to secure their trip, Complainants undertook a Trip Protection Policy by paying ₹48,000/- covering the cost in case the trip would be rescheduled, altered or cancelled for any reason.  The cost of the processing, documentation and other formalities of the Visa required for the trip was included in the cost of the package.  Complainants filled the Visa Application Form and deposited the same with the Appellant along with the relevant documents on 27.05.2015.  According to the Complainants, the same was submitted by the Appellant only on 05.06.2015 and 08.06.2015 with the United Kingdom High Commission.  The Visa for United Kingdom of the Complainants No. 1 to 4 and 9 to 12 was received on 23.06.2015, i.e., one day before start of the excursion trip and Visa for the Complainants No. 5 to 8 and 13 to 16 was received on 27.06.2015, i.e., after 3 days from the date from which the package was actually booked for.  

3.      Anticipating that the application for the Visa would not be processed before the date the package was to begin, Complainant No.1 discussed with the Appellant for alternative options/packages.  Since the Visa for the Complainants was received after some delay, the Appellant offered a customized package to the Complainants for United Kingdom only limited to London and Edinburgh.  The detailed itinerary was shared with the Complainants by the Appellant vide E-mail dated 19.06.2015.  The cost was finalized as ₹35, 98,178/-, i.e., ₹3,64,153/- more than what the Complainants had paid for the original package. Complainants made specific demands in the new package that the Hotel should be located in Central London and preferably should be JW Marriot or Hotel Churchill and that the air tickets should be Business Class and the flight should be a direct flight from London to Delhi.  However, the Appellant did not pay heed to the aforesaid demands. Feeling aggrieved by the lackadaisical attitude of the Appellant, the Complainants sent to the Appellant a Legal Notice dated 29.10.2015 seeking compensation of ₹32,00,000/-, which was replied by the Appellant vide two separate letters dated 14.11.2015 and 19.12.2015.  Aggrieved, the Complainants filed a complaint before the State Commission with the prayer to:

a) Hold the Opposite Parties liable for unfair trade practice and direct them to discontinue the unfair trade practice;

b) Direct the Opposite Parties to pay a sum of ₹32,00,000/- (Rupees Thirty Two Lakhs Only), jointly and severally, towards damages and Compensation for the extra expenditure incurred, metal agony, tension, physical fatigue and harassment @ ₹2,00,000/- (Rupees Two Lakhs Only) to each of the Complainant on account of acts of omissions and commission, deficiency of service and defaults committed by them;

c) Direct the Opposite Parties to refund the booking amount of ₹8,00,000/- (Rupees Eight Lakhs only) and trip protection policy charges of ₹48,000/- (Rupees Forty Eight CC 04/2017 Page 5 of 10 Thousand only) along with interest @ 18% per annum from the date of payment till actual realization thereof;

d) Direct the Opposite Parties to pay to the Complainants a sum of ₹3,30,000/- (Rupees Three Lacs Thirty Thousand Only) towards litigation cost;

e) Pass any such other order(s)/direction(s) as deem fit and proper in the facts and circumstances of the present case by this Hon’ble Commission.

4.       The Appellant filed a reply before the State Commission contending that the original package could not be brought into effect on account of fault of the Complainants themselves as they delayed in handing over the Visa Application as well as the relevant documents.  It was further contended that the executives of the Appellant did not make any statement relating the trip/package which was not there in the brochure.  It was stated that after due consultation with the Complainants, a new package was customized and detailed itinerary shared which was accepted by the Complainants.  It was argued that there was                              no deficiency in service on their part.  The Appellant requested for dismissal of the Complaint.

5.      After hearing the parties and perusing the record, the State Commission passed the impugned order.

“29. Consequently, we hold that the Opposite Party is liable for deficiency of service to the extent that they failed to provide the Hotel as per the demands of the Complainants and failed to even feel the need to respond to the mail, leaving the Complainants to be at their own in a foreign country. Hence, the Opposite Party is directed to pay an amount of ₹1,00,000/- each to all the Complainants being compensation for mental agony and harassment, on or before 30.06.2021 failing which, the Opposite Party shall be liable to pay an interest @ 9% p.a. calculated on the aforesaid amount from 30.06.2021, till the actual realization of the amount.

30. The Opposite Party is also directed to pay an amount of ₹1,00,000/- in total to the Complainants being the litigation cost.”

This order is impugned before us.

6.      We have heard learned counsel for the parties and perused the record including the short synopsis of arguments filed.

7.      Appellant has challenged the order of the State Commission stating that the same has been passed without any basis, agreement or understanding and without any material or documentary evidence of assurance as alleged.  There is no dispute regarding payments made by the Respondents.  It is argued that the Visa related documents were to be submitted by the Respondents within a stipulated period after making the booking on 05.05.2015 which the Respondents furnished on 27.05.2015 which resulted in delay in submission of Visa applications and for biometrics.  This necessitated a change in tour program.  The Respondents opted for the alternate tour of U.K. and Scotland and after getting confirmation for the same, the alternate tour was booked.  It is argued that the Appellant had intimated the clauses and conditions of the altered tour and revised tour itinerary to the Respondents showing that accommodation at London would be arranged at Hotel Copthorne Tara.   The Respondents accepted the same and signed a new booking form and itinerary.  It is argued that the Respondent No.13 had accepted the itinerary on 26.06.2015 on behalf of all Respondents.  It is contended that a different/upgraded hotel was never offered by the Appellant nor agreed to by them.  It is argued that the Respondents after undertaking the tour filed the complaint before the State Commission.  It is contended that the State Commission failed to consider that the Respondents had wrongly made a bald allegation in the Complaint that the Appellant had agreed that the accommodation will be provided at Hotel Churchill and/or JW Marriott at London which was not provided.  It is prayed that the Appeal be allowed and the order of the State Commission be set aside.

8.      On behalf of the Respondents, it was argued that the Appellant suppressed the condition for forfeiture of booking money in case of cancellation of trip till the receipt of the booking amount from them.  It is argued that there was negligence on the part of the Appellant and the huge delay on the part of the Appellant in collecting the required documents from them even after repeated requests and in applying for the Visa process, as a result of which the originally booked “Magical Europe” trip had to be cancelled and the Respondents had to accept an alternative trip.  It is also submitted that the Appellant failed to arrange stay at the specific hotel as promised in the revised tour and did not provide business class tickets as specifically requested by the Respondents.  It is also argued that the Appellant did not bother to arrange direct return tickets from London to Delhi even when the tickets were available.  Respondents have relied upon judgments of this Commission in Make My Tip India Pvt. Ltd. & Ors. Vs. Devraj Beharnani, Appeal No.236 of 2018, dated 22.01.2024 and M/s Hello Travel vs. Harish C. Jain & Anr. Revision Petition No.45 of 2020, dated 27.02.2020, M/s A. M. Travels vs. Jayant Ahuja & Anr. Revision Petition No.1638 of 2023, dated 06.09.2023, Rajendra Singh vs. Thomas Cook (India) Ltd. & Anr., Revision Petition No.4561 of 2012 and SOTC Travel Services Pvt. Ltd. & Anr. Vs. Om Prakash Gulia through LRs & Anr., Revision Petition No.241 of 2017, dated 09.05.2017 to contend that there was deficiency of service and unfair trade practice on the part of the Appellants.  Respondents pray that the Appeal be dismissed with heavy costs.          

9.      It is evident from the foregoing that the Appellant had undertaken to provide services to the Respondents with regard to arranging Visas, Tickets, hotel accommodation etc. under its tour package “Magical Europe”.  It is not in dispute that the required amount was paid by the Respondents towards consideration of the tour.  Admittedly, there was delay in the obtaining of Visas due to which an alternate tour programme had to be organized by the Appellant.  The requisite amounts for this itinerary was also received by the Appellant from the Respondents who have claimed compensation on the grounds of deficiency in service in the arrangements for the tour.

10.    The State Commission framed the following two issues for consideration:

16. From the perusal of the facts as enumerated above, two issues arise which calls for this Commission’s adjudication i.e.:

a) Whether the delay in getting the Visa can be attributed to the Opposite Party?

b) Whether the Opposite Party failed to honour the specific demands raised by the Complainants as per the New Package?

11.    Its findings with regard to issue (a) are as under:

17. The moot issue on which the case of the Complainants hinges is that due to the delay caused by the Opposite Party in processing the Visa Application, the original package had to be cancelled and left with no other option, the Complainants had to take the new package, for a single country i.e. London. The Opposite Party has contended that it is only responsible for the processing of the Visa Application Form and cannot control the time taken by the Embassy/High Commission/Consulate of the concerned country to grant the Visa. Moreover, it has also been contended that the Complainants had delayed the handing over of the Visa Application Form along with the necessary documents, which caused the delay in processing.

18. The perusal of the record reflects that the total amount being charged by the Opposite Party was inclusive of the cost of the Visa i.e. documentation, processing and consulate fees as is evident from Annexure C-1. The said fact has not been denied by the Opposite Party in its reply. The Complainants have contended that despite the fact that necessary documents required for Visa were handed over to the Opposite Party on 27.05.2015, the Opposite Party delayed in applying for the Visa.

19. In order to adjudicate the present issue, we deem it appropriate to refer to Annexure C-2 titled BOOKING ACKNOWLEDGEMENT FORM (D-60 BOOKING), wherein under the head Important/Mandatory requirements, it has been categorically stated that Please submit all visa related documentation as advised by the travel counsellor/Agent within 5 days of your booking date. (One set for each Visa).

20. The natural corollary of the above rule is that the Complainants were to submit the documents for the Visa with the Opposite Party within 5 days of booking, which in the present case was 05.05.2015. However, the Complainants have themselves submitted that the documents were submitted on 27.05.2015, i.e. after a delay of 17 days. In this regard, it has been further argued that the Opposite Party were to take the documents from the Complainants, however, we are not satisfied with this submission since there is no ambiguity in the aforesaid statement and it is clear that it was the duty of the Complainants to submit the same with the Opposite Party.

21. If the Complainants were more careful and vigilant in performing their part of the agreement, the present position could have been avoided since a delay of 17 days is a big deal, given the fact that the Complainants themselves have submitted that they were on a tight schedule and could only go on a trip for the period beginning from 24.06.2015 till 03.07.2015. However, if the laxity is to be attributed to either of the party, it is the Complainants who have shown the same.

22. Moreover, nowhere in the numerous documents filed along with the Complaint, do we find a statement by the Opposite Party binding itself to get the Visa Application processed within a time bound manner as the role of the Opposite Party concludes the moment the Visa Application along with the necessary documents is filed with the Embassy/High Commission/Consulate. Thereafter, it is for the Embassy/High Commission/Consulate to take a decision whether the Visa is to be allowed or not, which is a time taking process, given the fact that a number of factors are to be taken into consideration.

23. Hence, we are of the view that the delay in getting the Visa cannot be attributed to the Opposite Party since it was the Complainants themselves who failed to handover the documents required for the Visa, with the Opposite Party for further processing.”

12.    As regards issued (b) above, the findings of the State Commission are that:

25. The Annexure C-9 filed along with the Complaint, which is a trail-mail between the Complainants and the Opposite Party, which has not been denied by the Opposite Party is relevant in order to adjudicate the present issue. The perusal of the said annexure reflects that the Opposite Party, on 25.06.2015 at 09:45 PM, shared a detailed itinerary with the Complainants, inclusive of the flight timings and the Hotel details. However, on the same date i.e. 25.06.2015 at 10:06 PM, the Complainants made a request for the change in Hotel and specifically asked for a Hotel in Central London i.e. either Hotel Churchill or J W Marriott.

26. Having received the request as described above, the Opposite Party failed to either acknowledge the same or did not act upon it. The Opposite Party had put forth the argument that the Hotel which was booked for the Complainants was centrally located and was not of sub-standard quality. However, it has failed to bring forth any documentary evidence to prove that it either replied to the mail of the Complainants dated 25.06.2015 sent at 10:06 PM, denying the Complainants that their request cannot be honoured or that the Complainants did actually accept the original itinerary provided by the Opposite Party.

27. Hence, the argument put forth by the Opposite Party that the Complainants were well informed about the fact that neither Hotel Churchill nor J W Marriott, as specifically demanded, is being booked for them does not sustain since the Opposite Party has failed to bring forward any documentary evidence whereby the Complainants have acknowledged the said demand. Consequently, the balance of convenience lies in favour of the Complainants and the Opposite Party is held liable for Deficiency of Service due to its failure to honour the demands of the Complainants.

28. So far as the argument relating to the Air Ticket is concerned, we do not find any mention of any particular class in the mail dated 25.06.2015 sent at 10:06 PM, hence, the said contention of the Complainants is devoid of merit. Further, the argument that the services to be provided to the Complainants were outsourced without consent is also without merit as no such permission is required from the Complainants, being an internal arrangement of one service provider with the other.”

13.    Perusal of the impugned order, however, reveals that despite returning the above findings which do not establish deficiency on part of the Opposite Party (Appellant herein), the State Commission has concluded as under:

29.     Consequently, we hold that the Opposite Party is liable for deficiency of service to the extent that they failed to provide the Hotel as per the demands of the Complainants and failed to even feel the need respond to the mail, leaving the Complainants to be at their own in a foreign country. Hence, the Opposite Party is directed to pay an amount of ₹1,00,000/- each to all the Complainants being compensation for mental agony and harassment, on or before 30.06.2021 failing which, the Opposite Party shall be liable to pay an interest @ 9% p.a. calculated on the aforesaid amount from 30.06.2021, till the actual realization of the amount.

30. The Opposite Party is also directed to pay an amount of ₹1,00,000/- in total to the Complainants being the litigation cost.”

14.    It is evident that the impugned order of the State Commission is manifestly contrary to its findings that the Appellant was not liable for the deficiency alleged.  On both the issues framed by it, no finding based on evidence and arguments to establish deficiency in service on the part of the Appellant is established by the State Commission.  Rather, the State Commission has come to the findings that it was the Respondents who delayed providing documents to the Appellant to process the Visas as undertaken by them and that there was no written commitment with regard to accommodation in specific hotels or travel by Business class.  The direction of the State Commission in the impugned order to compensate the Respondents for deficiency in service, inexplicable as it is, therefore, cannot be sustained.

15.    In view of the foregoing discussion, the First Appeal is allowed.  The order of the State Commission is set aside with no order as to costs.

16.    Pending IAs, if any, also stand disposed of with this order.