1. Challenge in this appeal by appellants is to order dated 21.11.2017 passed by District Consumer Disputes Redressal Forum, SAS Nagar, Mohali (in short the 'District Forum'), allowing the complaint of respondent of this appeal by directing the OPs to refund Rs. 1,30,000 along with interest @ 12% per annum w.e.f. 20.7.2016 till the actual date of refund along with compensation for mental harassment, agony to the tune of Rs. 25,000 and further to pay litigation expenses to the tune of Rs. 10,000 within 30 days from the date of receipt of copy of order, failing which the amount of compensation awarded shall carry interest @ 12% per annum from the date of this order till its realization. The appellants of this appeal are opposite parties (OPs) in the complaint before the District Forum and respondent of this appeal is complainant therein and they be referred as such hereinafter for the sake of convenience.
2. Brief facts as stated in the complaint are that the complainant filed the complaint under Section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that complainant had booked a package for 12 nights and 13 days of "European Bonanza" for two persons including his wife through online on 2.6.2016 with the OPs. The total cost of the Tour package was fixed at Rs. 3,90,000 and the complainant deposited
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Rs. 1,95,000 as demanded by the OPs through internet banking on 2.6.2016. Initially, the officials of the OPs told the complainant that the OPs themselves would complete all the Visa Formalities but after receiving the payment, the complainant was told to contact one Mr. Anup Rawat for Visa Assistance and as per his guidance the complainant had completed all the formalities and applied for Visa to the Italian Embassy and deposited a sum of Rs. 11,600 as Visa Fee. On 20.6.2016, the complainant received a letter from Italian Embassy regarding refusal of the Visa on the ground that justification for purpose and conditions of the intending stay was not provided. After refusal of the Visa, the complainant requested the OPs to refund the booking amount of Rs. 1,95,000 but the OPs refused to refund the full amount and they only refunded Rs. 65,000 out of the deposited amount of Rs. 1,95,000. The complainant requested many times to the OPs to refund the remaining amount of Rs. 1,30,000 but they refused to do so. The act and conduct of the OPs amounts to deficiency in service and unfair trade practice on their part. Hence, the complaint was filed and the complainant sought directions to the OPs to refund the amount of Rs. 1,30,000 along with interest @ 18% per annum; Rs. 50,000 as compensation on account of mental agony and harassment and Rs. 25,000 as cost of litigation.
3. Upon notice, OPs appeared and filed written reply raising certain preliminary objections inter alia on the ground that the present complaint was not maintainable; was based on conjectures and surmises and was without any cause of action against the OPs. It was admitted that the complainant paid an amount of Rs. 1,95,000 against the outstanding amount of Rs. 3,42,513 and he had made all the entries online and there remains no human interference from the side of OPs. Thereafter, in order to start the process of the Visa, the OPs sent a letter to the Italian Embassy on 13.6.2016 requesting to issue the Tourist Visa. The rest of the processes are Bio metric which are required to be completed by the complainant. The complainant had to produce all the necessary documents to be filled along with application for the Visa and the same was also explained to him on every call to the OPs as and when made by him. The complainant and the OPs were bound by the booking terms and conditions, wherein the Clauses specifically provided that OPs merely worked as a facilitator in applying for the Visa process. The ultimate authority to grant a Visa lies with the Embassy and OPs would under no circumstance be held liable for any acts of the Embassy. There was no deficiency on the part of the OPs in the present dispute. The OPs had refunded Rs. 65,000 to the complainant after deducting its applicable cancellation charges. After denying all other allegations made in the complaint, the OPs prayed for dismissal of the complaint.
Evidence of the Parties
4. Complainant tendered in evidence his affidavit as Ex. CW1/1 along with documents i.e. Ex. C-1 to Ex. C-7 and close the evidence.
5. OPs tendered in evidence affidavit of Ms. Ankita, Assistant Manager Legal as Ex. OP1/1 along with documents i.e. Ex. OP1 and Ex. OP-2 and close the evidence.
Contentions of the Parties
6. We have heard the learned Counsel for the respondent, as none appeared on behalf of the appellants at the time of arguments. We have carefully gone through the record on the file.
7. It was contended by the Counsel for the complainant that the complainant had applied for a tourist visa through the OPs company and had paid an amount of Rs. 1,95,000 out of the total tour cost of Rs. 3,42,513 as Ex. C-3. It has been further argued by the Counsel for the respondent that the Visa of the complainant was declined by the Italian Embassy due to the reason that the information submitted regarding the justification for the purpose and conditions of the intended stay was not reliable, as mentioned in Clause 8 of the refusal letter as Ex. C-5. The respondent was not called for any interview by the Embassy and everything was done by Make My Trip Company including the filling up of the Visa application form. There has been no contributory negligence by the complainant/respondent as everything was done by the appellants/OPs including the hotel booking and vouchers were also given by the appellants. The Counsel has also placed reliance on the judgment of this Commission titled as Davinder Singh v. Make My Trip India Pvt. Ltd., in First Appeal No. 897 of 2015, decided on 2.5.2017.
Consideration of Contentions:
8. We have given our thoughtful consideration to the contentions raised by the learned Counsel for the respondent and also examined the record of the case.
9. The appellants have come in appeal and challenged the impugned order primarily on the ground that the District Forum has failed to appreciate the fact that no specific and justified allegations with regard to negligence or deficiency in providing services have been made by the respondent/complainant against the appellants. It has also failed to appreciate that the respondent/complainant booked a tour package through on line portal of the appellants and before confirmation had entered into an agreement between the user and the appellants which is annexed as Annexure A-1. As per the agreement under the column of (responsibilities of user vis-à-vis the agreement) it specifically stated the responsibilities on the part of both the parties to the agreement as also stated in detail in the written reply. In accordance with the terms of the User Agreement of the appellants under the head of "VISA OBLIGATIONS OF THE USER" the respondent/complainant has been clearly made to understand that at the time of travel booking done by MMT are subject to the applicable requirements of VISA which are to be obtained by the individual traveller, MMT is not responsible for any issues, including inability to travel arising out of such VISA requirements and is also not liable to refund of the untravelled bookings due to any such reasons. The appellants just acted as a facilitator providing assistance to the respondent/complainant for submission of complainant Visa applications before the concerned Embassy/High Commission for processing and as far as issuance of VISA is concerned, the same is sole prerogative of the concerned Embassy after verification of the documents forwarded by the appellants. It has been submitted that the appellants had discharged its complete liabilities by providing assistance to the complainant in applying for the Visa processing and there is no deficiency on their part. The complainant had given his consent to the terms and conditions of the tour package and cancellation policy prior to confirming the tour package. The District Forum has also ignored the fact that the appellants in good faith had already blocked the Air tickets and hotel accommodation as desired by the complainant which were nonrefundable. However, in furtherance of their customers centric approach, the appellants have refunded the possible amount of Rs. 65,000 after deducting the applicable cancellation charges. Challenging the order of the District Forum the appellants have prayed for acceptance of the appeal.
10. Admittedly, the complainant had booked the European Bonanza for two persons with the OPs for 12 nights and 13 days through online portal on 2.6.2016. The total cost of the tour package was fixed at Rs. 3,90,000. The OPs vide e-mail dated 2.6.2016 Ex. C-2 had acknowledged receipt of part payment of Rs. 1,95,000. It has been alleged that the appellants undertook to get the formalities for obtaining Visa for which the complainant deposited a sum of Rs. 11,600 as Visa fee and completed all the formalities regarding the same to the concerned Italian Embassy. But on 20.6.2016 the Visa was declined on the ground that justification for purpose and conditions of the intending stay was not provided.
11. The main question for consideration before this Commission is regarding the fact whether the appellants were deficient in providing services to the complainant/respondent after having received consideration for arranging the entire tour package on behalf of the complainant. The case of the complainant is that all the formalities regarding the tour package were undertaken by the appellants company including the filing of applications for Visa. It has been categorically stated before us and the complainant has also deposed in his affidavit Ex. CW1/1 that after receiving payment, the officials told the complainant to contact one Mr. Anup Rawat for Visa Assistance. As per the guidance of Mr. Anup Rawat, the complainant applied for Visa to Italian Embassy and deposited Rs. 11,600 as Visa fee. The complainant in his duly sworn affidavit Ex. CW1/1 has stated that the officials of the OPs assured him that their company is world renowned company for arranging better tour and travelling packages and also assured to arrange all the proper formalities i.e. Visa, Air Fare, Boarding, Lodging, Breakfast, sightseeing coaches etc. Since, the complainant has availed the services of the OPs on such an allurement, he made a payment of Rs. 1,95,000 and it was the duty of the OPs to get the Visa arranged for complainant and his wife specially when the OPs were engaged for this purpose only. On being specifically asked as to who had filled up the Visa form, the learned Counsel for the complainant stated that the same was done by the OPs who had not filled up the column where justification for purpose and conditions of the intending stay was to be given. It is a known fact that the travel agents arrange for the tour package on behalf of their customers for a fee. In the instant case also, since the OPs were to ensure and check the complete details of all the documents before submission to the Embassy, they cannot be absolved of their responsibility and take a plea that the complainant is guilty of contributory negligence. It is the bounden duty of such companies to assist their customers and pre-book the Air tickets and hotel bookings as they charge the customers for the same. They cannot cover the deficiency merely on the ground that the complainant was made to understand that at the time of travel, booking done by MMT are subject to the applicable requirements of Visa which are to be obtained by the individual traveller. If that be the case, the appellants should have not undertaken the responsibility to assist its customers and charged the fee from the complainant, who could have otherwise travelled by himself and also would have furnished all the documents/formalities related to his travel. Hence, the plea of the appellants that they just acted as facilitator in providing assistance to the respondent/complainant does not find merit with us as the complainant/respondent was not called for the interview himself. The Visa was rejected by the Italian Embassy on the basis of the documents submitted by the officials of the appellants company and there is no cogent evidence submitted by the appellants in this regard that the complainant had himself filled up the Visa application form. Therefore, we are also of the view that failure of the OPs to arrange Visa for the complainant/respondent is deficiency in service and further non-refund of total amount received from him is an act of unfair trade practice on the part of the appellants.
12. In view of the above discussion, we do not find any illegality or perversity in the order of the District Forum. Accordingly, the appeal is dismissed and the order of the District Forum is upheld.
13. The appellants had deposited Rs. 25,000 at the time of filing of the appeal and further deposited Rs. 1,66,917 in compliance with order dated 5.6.2018. These amounts along with interest, if any, which accrued thereon be remitted by the Registry to the respondent/complainant after expiry of 45 days by way of cross cheque/demand draft, subject to stay order, if any.
14. Arguments in this appeal were heard on 26.9.2018 and the order was reserved. Certified copies of the order be communicated to the parties as per rules.
15. The appeal could not be decided within the statutory period due to heavy pendency of Court cases