Delhi

New Delhi

CC/628/2015

Rajesh Kapoor - Complainant(s)

Versus

Yatra.com - Opp.Party(s)

25 Mar 2022

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, VI,

DISTT.NEW DELHI, M-BLOCK, VIKAS BHAWAN, NEW DELHI-110002.

 

CC/628/2015

 

IN THE MATTER OF:

 

RAJESH KAPOOR

S/O SH. J.N. KAPOOR,

R/o A-61, DEFENCE COLONY

NEW DELHI 110024                                                                             COMPLAINANT

VERSUS

 

YATRA.COM (YATRA ONLINE PRIVATE LIMITED)

TSI YATRA PVT. LTD.

 P-15, TOP FLOOR, OUTER CIRCLE,

CONNAUGHT PLACE,

 NEW DELHI -110001                                                                 OPPOSITY PARTY                                                   

Quorum:

Ms. Poonam Chaudhry, President

          Shri Bariq Ahmad , Member

          Ms. Adarsh Nain, Member

                                                                             Dated of Institution :23.09.2015

                                                                             Date of Order         :25.03.2022

O R D E R

BARIQ AHMAD, MEMBER

Hearing through Video Conferencing.

1. The present complaint has been filed under section 12 of the Consumer Protection Act, 1986, (As amended upto date). The facts of the consumer complaint, in brief, are that the Complainant with intention to enjoy summer vacation with his family members and rejuvenate himself for further working after vacation planned his trip to Kerala.
2. It is alleged that the Complainant visited the website of the Opposite Party, where the Complainant saw a misleading advertisement by the Opposite Party, which was projecting a very lucrative tour package offer. The tour package was for the destination Kerala and in the same advertisement; price of the tour package for an individual was also detailed. In the said package, it was mentioned that the tourist will be provided certain benefit out of this tour package i.e. flights, accommodation, transfer, meals, sightseeing. The tour package was included of 7 night stay in Kerala and which was segregated as Munnar two nights, Thekkady one night, Kovalam two nights, Kumarakom one night and Kochi one night. The Opposite Party also assured the Complainant about the proper service to the Complainant and assurance was also provided in regard of the benefit to be provided by the Opposite Party in that tour package.
3. It is further been alleged that on May 15, 2015 the complainant discussed the details for kerala packages. The office bearer of the Opposite Party has sent confirmation mail to the Complainant in regard of receipt of the payment of Rs. 15,000/- towards the Kerala Package and also provided a Day Wise Itinerary to the Complainant and requested to send the acknowledgment and also requested to provide go ahead via email showing interest to process the booking after reading the day wise itinerary. It is alleged the Complainant to his utter shock found that in the tour package, Air fare was not included through it was projected in their website due to which the Complainant was of impression that in the package bought by him air fare is included. Such misleading advertisement of the Opposite Party, had successfully mislead the Complainant. The Complainant immediately sent a mail to the executive of the Opposite Party  for cancellation of booking, due to the misleading advertisement plotted by the Opposite Party which presented in the manner which suggest air fare was included in the package and refund of the initial payment but all in vain.
4. It is further been alleged that the Opposite Party has miserably failed to Redress the grievances of the Complainant and hence, the same is "deficiency" in the services, but is also restrictive and unfair trade practice as defined under the  the Consumer Protection Act 1986 and has caused  inconvenience and loss of available time to the complainant. The complainant filed this complaint against the OP praying for refund the amount received from the complainant towards the booking of the package tour along with interest @ 18 % per annum with compensation of Rs 750000/- towards mental and physical harassment caused by the Opposite Party as well as loss of opportunity of vacation during the summer and loss of enjoyment of life; along with cost of Rs 2,50,000/-  towards unfair trade practice adopted by the Opposite Party; and further prayed For Penalize the Opposite Party to tune of Rs 1,00,000/- for floating misleading advertisement on the website with wrongful/malafide intention of grabbing money from different consumers and cost to the tune of Rs.15,000/-  as litigation expenses.
5. Notice was issued, OP contested the complaint Written Statement was filed, taking preliminary objections that OP had given the option to the Complainant to use the booking amount in any future travel by him. It is also stated that this forum does not have territorial jurisdiction as the office of OP is situated in Gurgaon, Haryana. It is also stated that the OP is merely a ticketing service provider and travel agent, providing travel booking facility through the medium of internet, phone and retail outlets. On merit it was stated that all the claims of the Complainant are false and frivolous. It was further stated that on 15.05.2015 Complainant discussed the details of Kerala packages being offered by the opposite party. The Complainant was explained the itinerary, the sales agent of the opposite party never gave any impression that package covers the airfare also. It was also stated that the screenshot filed by the Complainant is not of the package booked by him but a different one. It is stated that package avail by the Complainant has a total Package cost for 04 person (inclusive of all Taxes): INR 59,000/- . It was also stated that that booking amount receipt by OP was non refundable in case of cancellation. The booking amount are paid by OP for making various booking to the principle service providers, the payments are made to 3^rd parties, who is service providers. It was also stated that that agreed terms and conditions that package has to be deducted as cancellation charges on cancellation, in case cancellation is less that 19 days before departure. It is denied that OP committed any deficiency in service. It is prayed that the complaint be dismissed.
6. The Complainant  filed rejoinder. In order to prove his case the complainant filed his evidence by affidavit and also filed written submission. The complainant  placed on record copy of screenshot of the advertisement as Mark-Ex.CW1/1, copy of e-mail communication dated  15.05.2015, as Mark- Ex.CW1/2, copy of e-mail communication dated 18.05.2018 as Mark-Ex.CW1/3. The OP had not preferred to lead any evidence in his favor, the defence of OP stand struck off vide order dated 12.04.2019.
7. We have heard the learned counsel for parties and perused the record. The Ld. Counsel for complainant contended that it was mentioned in the package that the client/tourist will be provided with certain facilities out of this tour package i.e. flights, accommodation, transfer, meals, sightseeing and the tour package was of the destination Kerala and in the same advertisement; price of the tour package for an individual was also detailed. The tour package included stay of 7 night  in Kerala  which was segregated as Munnar two nights, Thekkady one night, Kovalam two nights, Kumarakom one night and Kochi one night. In returned the Opposite Party has also assured the Complainant about the proper service to the Complainant and assurance was also provided in regard of the benefit to be provided by the Opposite Party in that tour package. On May 15, 2015 the complainant discussed the details for kerala packages. The office bearer of the Opposite Party has sent booking confirmation mail to the Complainant in regard of receipt of the payment of Rs. 15,000/- towards the Kerala Package and also provided a Day Wise Itinerary to the Complainant and requested to send the acknowledgment and requested to provide go ahead via email showing interest to process the booking after reading the day wise itinerary. The Complainant with utter shock find that in the tour package, Air fare is not included but it was projected in their website due to which the Complainant was of impression that in the present package air fare is included. Such misleading advertisement plotted by the Opposite Party.
8. The Ld. Counsel for OP contended that on 15.05.2015 Complainant discussed the details of Kerala packages being offered by the opposite party. The Complainant was explained the itinerary, the sales agent of the opposite party never gave any impression that package covers the airfare also. It was also stated that the screenshot filed by the Complainant is not of the package booked by him but a different one. It is stated that package avail by the Complainant has a total package cost for 04 persons: INR 59,000/-. The complainant/member may cancel their travel arraignments at any time subject to the cancellation charges.
9. We carefully considered the rival contentions. This Commission has considered correspondence between parties produced on record and has perused record "On referring Mark-Ex.CW-1/1, which is screenshot  of URL`s or Link (uniform Resource Locator-Web address) that may be found on the online interface provided by OP/Yatra. In computer age “document” usually denotes a primarily textual computer file, including its structure and formate, e.g. fonts, colors, and images. “document” is not defined by its transmission medium, e.g., paper, given the existence of electronic documents. For admissibility of evidence by way of an electronic record, a certificate under Section 65B(4) of The Indian Evedence Act, is required, as was held in by the 3-judge bench of the Hon`ble Supreme Court in the case of Anvar P.V. vs P.K. Basheer. The court also clarified that the requirement of a certificate is necessary under Section 65B(4) if the original document is not produced. Hence in view of the same Mark-CW1/1 is not a document, only a URL`s or link of website of OP.
10. The OP provides services like airline, hotel, taxi bus etc bookings as may be selected for by the client/complainant via the online interface provided by Yatra/OP in accordance with the terms and conditions of `Yatra`  Online Travel Assistance Agreement, which is an electronic contract deemed executed under the provision of the Information Technology Act of 2000 and rules made thereunder by and between Yatra Online Private Limited/OP (herein after referred to as ’Yatra”) AND the “client” (that is,  complainant/user/entity/person/business opting for corporate services of Yatra electronically). Client shall be provided necessary login credentials and password to the online interface for accessing corporate services under this agreement. It shall be the sole responsibility of the client to maintain the confidentiality of the online login credentials.. The OP is merely acting as an intermediary and an aggregator and is not the actual supplier/service provider of services like hotels and airline. Client agrees to receive services on an `as-is-basis.Thus, this commission did not find  that the OP is indulging unfair trade practice, or  mis-leading advertisement .
11. Keeping in mind Mark-Ex.CW-1/2, which is e-mail receipt dated May 15, 2015 issued by the OP, in which it is mentioned that total amount INR 59,000/- as tour package, amount paid INR 15,000/- as booking amount and balance amount INR 44,000/- towards the  tour package Kerala. In the present case, the complainant has not claimed amount air ticket and remained silent about it Hence, amount of air ticket is not taken into consideration. But we have taken into consideration the aspect of booking amount of arrangement of hotel of Kerela and amount of food and traveling charges which the complainant had to incur while the said amount is recovered by the OP but tour package was canceled, and OP had not refunded the booking amount. The OP has has not corroborate the defence taken, but to preferred to close the defence evidence. In the these set of circumstances, the averments of the complaint have gone unrebutted in the absence of the OP, who was duly given opportunities to led evidence. The OP did not bother to redress the grievance of the complainant when contacted by him, resulting into immense, mental and physical harassment to the complainant. Thus, finding a definite deficiency in service on the part of OP, We have no other alternative, but to allow the present complaint against it. In view of the forgoings, we are of the opinion that the present complaint must succeed. Keeping in mind said fact, we have come to the conclusion that the Complainant suffered mental agony, harassment as he had to made payment of Rs.15,000/- lying with the OP, which causes loss or injury to the complainant.  Accordingly, we held OP is guilty in deficiency of service and direct the OP as under:-

I) .  OP is directed to refund  Rs.15,000/- (Rupees Fifteen Thousand        Only) to the  Complainant with interest @6% per anum from the filling         of this complaint till realization.

II)  OP is directed to pay an amount of Rs.10,000/- (Rupees Ten  Thousand Only) to the Complainant as compensation towards mental      agony and harassment caused to the Complainant .

III)  OP is directed to pay an amount of Rs.5,000/- (Rupees Five  Thousand Only) to the  Complainant as cost of litigation.

The order be complied within 30 days from the date of receipt of the copy of the order, failing which it will be liable to pay an interest @9% p.m. for the delayed period.

Order accordingly. Office is directed to send one true copy of this order to the parties/speed post in accordance with the rules. This final order be sent to server (www.confonet.nic.in). Thereafter, file be consigned to record room.

Announced on this   25^th  day of March, 2022.

 

(POONAM CHADHARY)

President

 

 

        (BARIQ AHMAD)                                                                             (ADARSH NAIN) 

               Member                                                                                              Member