State Consumer Disputes Redressal Commission
Make My Trip Pvt. Ltd. vs Harsha Kumar Goverdhan & Ors. on 18 January, 2016
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/15/143
Instituted on : 15.04.2015
Make My Trip Pvt. Ltd.
103, Udyog Vihar, Phase - I,
Gurgaon - 122016 Haryana,
Through Chief Executive Officer. ... Appellant.
Vs.
1. Harsha Kumar Goverdhan, Aged 55 years,
S/o Late Y.D. Goverdhan,
R/o : 111, new Civic Center,
Bhilai, District Durg (C.G.)
2. Smt. Sunita Goverdhan, W/o Shri Harsha
Kumar Goverdhan, Aged 49 years,
R/o : 111, New Civil Center,
Bhilai, District Durg (C.G.)
3. Blue Ocean Cruises,
Ground Floor, Old Kamal Chambers,
R. Kumani Marg, Ballard Estate,
Mumbai - 400001
Through CEO - Omeil Khosa.
4. Blue Ocean Cruises,
Ground Floor, Old Kamal Chambers,
R. Kamani Marg, Bellard Estate,
Mumbai - 400001
Though : Head of Business Department - Raju Moza. ...Respondents
PRESENT: -
HON'BLE JUSTICE SHRI R.S.SHARMA, PRESIDENT
HON'BLE MS. HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
COUNSEL FOR THE PARTIES: -
Shri M.K. Vyas, for the appellant.
Shri Shahid Siddiqui, for respondent Nos.1 & 2.
None for respondent Nos.3 & 4.
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ORDER
Dated : 18/01/2016 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against the order dated 14.01.2015, passed by District Consumer Disputes Redressal Forum, Durg (C.G.) (henceforth called "District Forum") in Complaint Case No.C.C./2011/257. By the impugned order, the District Forum, has allowed the complaint of the respondent No.1 & respondent No.2 (complainants) and directed the appellant (O.P. No.1), respondent No.3 (O.P.No.2) and respondent No.4 (O.P.No.3) to jointly and severally pay to the respondent No.1 & respondent No.2 (complainants) within a period of one month from the date of order, the following amounts :-
(a) The appellant (O.P.No.1), respondent No.3 (O.P.No.2) and respondent No.4 (O.P.No.3) will jointly and severally pay a sum of Rs.2,50,000/- (Rupees Two Lakhs Fifty Thousand Only) to the respondent No.1 & respondent No.2 (complainants).
(b) If the appellant (O.P.No.1), respondent No.3 (O.P.No.2) and respondent No.4 (O.P.No.3) will not pay the above amount to the respondent No.1 & respondent No.2 (complainants) within prescribed period, then they will jointly and severally liable to pay interest on the above amount @ 07% p.a. from the date of order till realisation.
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(c) The appellant (O.P.No.1), respondent No.3 (O.P.No.2) and respondent No.4 (O.P.No.3) will jointly and severally pay a sum of Rs.10,000/- towards cost of litigation to the respondent No.1 & respondent No.2 (complainants).
2. Briefly stated, the facts of the case are that the respondent No.1 (complainant No.1) is a senior medical personnel (Physician) in J.L.N. Hospital & Research Centre at Bhilai. The said hospital is of Bhilai Steel Plant, a Government o India undertaking. The respondent No.1 (complainant No.1) draws a salary of Rs.1.6 lac p.m. The respondent No.2 (complainant No.2) is a Gynaecologist; she runs her own 06 bedded nursing home at Bhilai. Her earnings is to the tune of Rs.1.5 lac p.m. The appellant (O.P.No.1) is India's leading online travel company. It deals in online booking of all flights, i.e. domestic and international. The appellant (O.P.No.1) got the flight tickets booked for the respondent No.1 & respondent No.2 (complainants) from Nagpur to Mumbai (to & fro) and cruise ticket. The respondent No.3 (O.P.No.2) and respondent No.4 (O.P.No.3) is also a travel company delivering a world-class holiday. The tickets for the cruise of the respondent No.3 (O.P.No.2) and respondent No.4 (O.P.No.3) were booked by the respondent No.1 and respondent No.2 (complainants) through appellant (O.P.No.1). The respondent No.1 & respondent No.2 (complainants) along with their two relatives, had booked Cruise // 4 // ticket through MakeMyTrip.com (appellant/O.P.No.1) dated 19.11.2010 to sail from Mumbai Port to Goa and return, for three days trip commencing from 12.12.2010 from Mumbai Port and reaching back on 14.12.2010 at Mumbai Port. The Cruise was supposed to depart from Mumbai Port at 5 pm on 12 of December, 2010. That for reaching Mumbai on 12th of December, 2010, the respondent No.1 (complainant No.1) had booked railway tickets from Durg to Nagpur and then flight tickets from Nagpur to Mumbai. The aforementioned cruise tickets and flight tickets of the respondent No.1 & respondent No.2 (complainants) were booked through appellant's (O.P.No.1's) on line site MakeMyTrip.com and the payment for the same were made partly by credit card and partly by depositing Rs.42,500/- in appellant (O.P.No.1's) bank account bearing No.00032210006973 on 19.11.2010. Counterfoil of such deposit slip whereby Rs.42,500/- was deposited, is being filed account in HDFC Bank at Bhilai. Amount to the tune of Rs.17,000/- was paid by credit card. On reaching Mumbai Port on 12th of December, to respondent No.1's (complainant No.1's) utter surprise and dismay, the respondent No.1 (complainant No.1) found that the said cruse is not sailing. Port officials at Mumbai Port conveyed this information to the respondent No.1 & respondent No.2 (complainants). The respondent No.1 (complainant No.1), respondent No.2 (complainant No.2) and two other relatives i.e. Mr. Shreepad Padhye and Mrs. Sandhya Padhye, immediately rushed to office of // 5 // the respondent No.3 (O.P.No.2) and respondent No.4 (O.P.No.3), but the said respondent No.3 (O.P.No.2) and respondent No.4 (O.P.No.3) could give no satisfactory reply. Finally, after lot of persuasion, the respondent No.3 (O.P.No.2) and respondent No.4 (O.P.No.3) agreed upon refunding the cruise ticket amount, but refused to pay for the Airfare and train tickets. Further the OPs in order to desist the respondent No.1 & respondent No.2 (complainant) from taking any legal recourse, on their own accord provided complementary cruise tickets for 20th February, 2011 to the respondent No.1 & respondent No.2 (complainants). The respondent No.1 & respondent No.2 (complainant) had booked Air Tickets for their return on 14.12.2010 after the completion of cruise journey, which was supposed to terminate in Mumbai at 2 P.M. on 14.12.2010. Now after the cancellation of cruise journey on 12.10.2010, the respondent No.1 & respondent No.2 (complainants) were left in a precarious conditions as flight tickets for the same day i.e. for 12.10.2010 were available at a very high rates, which was unaffordable for the respondent No.1 & respondent No.2 (complainants).. On much request and persuasion the OPs made arrangements for two days stay in a hotel for the respondent No.1 & respondent No.2 (complainants) but only to the extent of lodging. The respondent No.1 & respondent No.2 (complainants) had to pay from their own pockets for fooding, etc. The respondent No.1 and respondent No.2 (complainants) // 6 // commenced their journey as per Schedule on 14.12.2010 from Mumbai to Nagpur by Air and from Nagpur to Durg by train. The refund of cruise tickets was credited to the accounts of the respondent No.1 & respondent No.2 (complainants) after 15 days. The respondent No.1 and respondent No.2 (complainants) had their 25th marriage anniversary on 16.12.2010 and to make this silver jubilee marriage anniversary a special one, they along with relatives, Mr. Shreepad Padhye and Mrs. Sandhya Padhye had planned the aforesaid cruise journey. The respondent No.3 (O.P.No.2) and respondent No.4 (O.P.No.3) had provided complementary cruise tickets from Mumbai to Lakshwadeep and return, from 20th February to 24th February, 2011. For the said cruise journey the respondent No.1 & respondent No.2 (complainants) got air and flight tickets booked, got leave sanctioned and made all other preparations. On 5th of February, 2011, the respondent No.1 & respondent No.2 (complainants) for the sake of confirmation, called respondent No.4 (O.P.No.3), but t their utter shock, it was informed by the respondent No.4 (O.P.No.3) that the said cruise slated for sailing on 20th February, 2011 will not be sailing and further the respondent No.4 (O.P.No.3) misbehaved and talked in very abusive language with the respondent No.1 & respondent No.2 (complainants). The Opposite Parties' above stated acts amounts to unfair trade practice and deficiency in service and the same has caused, apart from financial losses, immense mental and physical // 7 // harassment to the respondent No.1 & respondent No.2 (complainants). The respondent No.1 & respondent No.2 (complainants) and the aforesaid two relatives, issued a registered legal notice dated 20.02.2011 to the OPs through their counsel where in the whole incident of the OPs wilful and deliberate mischief was elaborately dealt and thereafter the respondent No.1 and respondent No.2 (complainants) and the aforesaid two relatives had sought a compensation of Rs.4,00,000/- on account of pecuniary losses, mental and physical harassment etc. The fact of spoiling of celebration of complainant's silver jubilee marriage anniversary was also mentioned in the aforesaid notice. The OPs did not prefer to give reply of the aforestated notice but appellant (O.P.No.1) raised some not so relevant queries from the complainants lawyer through emails and even on those queries getting properly adhered to from complainant's end, the OPs neither gave any reply to the notice nor made compliance of the notice. Hence, the complainants filed consumer complaint before the District Forum and prayed for granting reliefs as mentioned in the relief clause of the complaint.
3. The appellant (O.P.No.1) filed its written statement and averred that the present complaint filed by the respondent No.1 & respondent No.2 (complainants) is not maintainable either on merits or as per law and is liable to be out rightly dismissed. The present // 8 // complaint has been filed by the respondent No.1 & respondent No.2 (complainants) on mere conjectures and surmises. The contents of the complaint are wholly misconceived, vexatious, misleading, misrepresented, unsustainable, false and frivolous qua the appellant (O.P.No.1) and are nothing but a flagrant abuse of process of law. There is no deficiency of service on the part of the appellant (O.P.No.1) and therefore, no case is made out against the appellant (O.P.No.1) under the provisions of the Consumer Protection Act, 1986. The present complaint is therefore liable to be dismissed in limine with exemplary costs thereto under Section 26 of the Consumer Protection Act, 1986 for dragging a reputed and highly acclaimed Tour and Travel Company in an unnecessary and speculative litigation. As per jurisdiction clause of terms and condition s of the User Agreement agreed between the respondent No.1 & respondent No.2 (complainants) and appellant (O.P.No.1) at the time of booking of the Air & Cruise Tickets, the District Forum does not have jurisdiction to entertain the present dispute. As per the jurisdiction clause of Agreement only the Court of NCR Delhi have the territorial jurisdiction to entertain the disputes, if any, arising out of bookings. No cause of action either wholly or in part can be said to have arisen at Durg inasmuch as even as per the respondent No.1 & respondent No.2 (complainants) themselves, they had done the tour booking through the internet on the website/portal of the appellant (O.P.No.1) // 9 // for cruise tickets from Mumbai to Goa and return. That by itself does not amount to territorial jurisdiction of a Court or a Tribunal cannot be created by availing services of any person through internet. The appellant (O.P.No.1) is a Private Limited Company duly incorporated under the Companies Act, 1956. The appellant (O.P.No.1) is a well reputed and highly acclaimed Tour and Travel Company having its offices in New Delhi, Mumbai, Kolkata, Bangalore, Ahmadabad and Gurgaon and branch office in New York (USA). The appellant (O.P.No.1) operated and carries its business operations through the aforementioned offices. All transactions by the users (including the respondent No.1 & respondent No.2 (complainants) of the website www.makemytrip.com are governed by the website's User Agreement, as accepted by each user at the time of making a booking. The appellant (O.P.No.1) is an organisation engaged in on-line booking of travel tickets and accommodation through its website in relation to various airlines tickets, cruises tickets accommodation in hotels, resorts, etc. for which it has been authorized by the said service providers to make booking on their website and to which the appellant (O.P.No.1) has been given the requisite permission and access codes by the said service providers. Any person interested in making any booking through any airlines/cruise opens the website of the appellant (O.P.No.1), and after enquiring about the available bookings, requests the appellant (O.P.No.1) to make the booking for // 10 // which the respondent No.1 & respondent No.2 (complainants) makes payment through their credit/debit card. The parties are bound to adhere to the terms of the User Agreement and as such the false, frivolous claims of the respondent No.1 & respondent No.2 qua the appellant (O.P.No.1) do not merit any consideration by learned District Forum. In view of terms and conditions, it is evident that in case of non-performance of the service offered due to the cancellation of the cruise by the respondent No.3 (O.P.No.2) and respondent No.4 (O.P.No.3) i.e. Blue Ocean Cruises (beyond the control of the appellant (O.P.No.1), the appellant (O.P.No.1) shall refund the entire ticket and shall in no circumstances liable for directed, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the use or performance of the MMT website(s) or any other channel. Further, the parties had agreed that in no circumstances, the liability of the appellant (O.P.No.1) shall exceed the booking amount i.e. refund of total amount received from the customer for availing the services. In no case the liability shall include any loss, damage or additional expense whatsoever beyond the amount charged by appellant (O.P.No.1) / MMT for its services. In the complaint the respondent No.1 and respondent No.2 (complainants) have nowhere mentioned about any defective and / or deficient services provided by the appellant // 11 // (O.P.No.1). Moreover, the complaint only deals with the defective and / or deficient services and negligence on part of the respondent No.3 (O.P.No.2) and respondent No.4 (O.P.No.3), as evidently averred and submitted / admitted by the respondent No.1 & respondent No.2 (complainants) in the complaint. There is nothing on record to even remotely establish that the respondent No.1 & respondent No.2 (complainants) suffered any loss or damages at all for the reasons attributable to the appellant (O.P.No.1). The grievance of the respondent No.1 and respondent No.2 (complainants) (i.e. cruise cancellation) was admittedly beyond the control of the appellant (O.P.No.1) and as such cannot be termed as deficiency in service. It is the admitted case of the respondent No.1 and respondent No.2 (complainants) themselves that the appellant (O.P.No.1) has no relation with the cancellation of the cruise. Further the appellant (O.P.No.1) had only booked the cruise ticket in question and has no control over the functioning of the respondent No.3 (O.P.No.2) and respondent No.4 (O.P.No.3) i.e. the Blue Ocean Cruises. The Cruise from Mumbai to Goa port was cancelled by the respondent No.3 (O.P.No.2) and respondent No.4 (O.P.No.3), hence the appellant (O.P.No.1) cannot in any parlance be made responsible for such cancellation and / or made liable for any deficiency of service as alleged or at all. The appellant (O.P.No.1) had performed all its duties by booking and confirming the air tickets from Nagpur to Mumbai and // 12 // Cruise from Mumbai to Goa as requested by the respondent No.1 & respondent No.2 (complainants) and issuing the same to the respondent No.1 & respondent No.2 (complainants), and therefore, had discharged all its obligations for which the respondent No.1 & respondent No.2 (complainants) had requested. The appellant (O.P.No.1) as per the instructions of the respondent No.1 and respondent No.2 (complainants) had booked air ticket of the respondent No.1 & respondent No.2 (complainants) vide booking ID NF251411694193 on November 15, 2010, scheduled to depart on December 12, 2010 at 11:40 AM from Nagpur to Mumbai and the same was confirmed, as admitted in the complaint itself. Further the appellant (O.P.No.1) (as per the online instruction) booked the Cruise Ticket of the respondent No.1 & respondent No.2 (complainants) from Mumbai to Goa by respondent No.3 (O.P.No.2) and respondent No.4 (O.P.No.3) to depart on December 12, 2010. The appellant (O.P.No.1) performed its duty well by issuing valid air /cruise tickets to the respondent No.1 & respondent No.2 (complainants) and duly received by the respondent No.1 & respondent No.2 (complainants) as evident and admitted by the respondent No.1 & respondent No.2 (complainants) in the complaint itself, which inter alia contained the terms and conditions to be followed by the respondent No.1 & respondent No.2 (complainants). As per the contents of the complaint, after the cancellation of the cruise the respondent No.3 (O.P.No.2) and // 13 // respondent No.4 (O.P.No.3) made arrangement for the two days stay of respondent No.1 & respondent No.2 (complainants) at Mumbai as well refunded the cruise ticket amount and credited to the accounts of the respondent No.1 & respondent No.2 (complainants), as admitted in para 5 & 6 of the complaint. The role, responsibility and scope of the service of the appellant (O.P.No.1) was limited to the extent of booking of the valid and confirmed air/cruise ticket which was duly performed and discharged The allegation qua the cruise cancellation resulting in claim of damages and compensation, the appellant (O.P.No.1) can in no way be held liability for the same and it is only the respondent No.3 (O.P.No.2) and respondent N.4 (O.P.No.3) i.e. Blue Cruise Company, if any, is responsible for the same. The respondent No.3 (O.P.N.2) and respondent No.4 (O.P.No.3), after the cancellation of cruise (apart from above) also offered and provided complementary cruise tickets from Mumbai to Lakshadweep on 20.02.2011. However, later even the said cruise was cancelled by the respondent No.3 (O.P.No.2) and respondent No.4 (O.P.No.3). From the said act of the respondent No.3 (O.P.No.2) and respondent No.4 (O.P.No.3), it is not only evident but also apparent that it is the respondent No.3 (O.P.No.2) and respondent No.4 (O.P.No.3), who are responsible for the cancellation of the cruise and not appellant (O.P.No.1) The respondent No.1 & respondent No.2 (complainants) are not entitled to any damages as there is no supporting proof that they have suffered any damage or loss by reason // 14 // of any acts and / or omission of the appellant (O.P.No.1). The respondent No.1 & respondent No.2 (complainants) despite in knowledge of the fact that the appellant (O.P.No.1) has no concern whatsoever with the cruise cancellation and that the refund amount has been received by him from the respondent No.3 (O.P.No.2) and respondent No.4 (O.P.No.3) has approached the District Forum (by impleading appellant (O.P.No.1) as one of the necessary party) by way of present, false, baseless and vexatious complaint and the contents of the same are clearly an afterthought. The appellant (O.P.No.1) acted in its ordinary course of business and as per the terms of the scheme of the agreement and the online booking of the cruise ticket, the contents of which were very much within the knowledge of the respondent No.1 and respondent No.2 (complainants). The deficiency alleged by the respondent No.1 & respondent No.2 (complainants) in their present complaint is not in any manner attributable to the appellant (O.P.No.1), as its scope of services to the respondent No.1 & respondent No.2 (complainants) was only restricted to making "confirmed" bookings in the flight and cruise, which were admitted done by the appellant (O.P.No.1) and duly confirmed by the respondent No.1 & respondent No.2 (complainants). The alleged deficient services were within the obligations of the respondent No.3 (O.P.No.2) and respondent No.4 (O.P.No.3), over which the appellant (O.P.No.1) had absolutely no control. Legal notice dated 21.02.2011 // 15 // was received by the appellant (O.P.No.1) on 23.02.2011. The appellant (O.P.No.1) had telecon discussion with regard to the legal notice with the counsel of the respondent No.1 & respondent No.2 (complainants) on 28.02.2011 and 01.03.2011. The appellant (O.P.No.1) vide email dated 01.03.2011 asked the counsel of the respondent No.3 (O.P.No.2) and respondent No.4 (O.P.No.3) to provide the vouchers and also informed that appellant (O.P.No.1) is investigating the matter and will revert to the legal notice as soon as investigation is over. The counsel for the respondent No.1 & respondent No.2 (complainants) vide email of even date stated that the cruise ticket was done by the appellant (O.P.No.1). The appellant (O.P.No.1) in reply vide email dated 14.03.2011 informed the counsel of the respondent No.1 & respondent No.2 (complainants) that the appellant (O.P.No.1) could not find the transaction by the details provided in his email. Hence the appellant (O.P.No.1) requested him to provide the scanned copy of the cruise ticket for better clarification and investigation in the matter. However, neither the respondent No.1 & respondent No.2 (complainants) not their counsel provided the voucher copies and went ahead with the present complaint. The respondent No.1 & respondent No.2 (complainants) are not entitled to claim any damages and / or compensation, much less to the tune of Rs.2,50,000/- and / or cost of litigation to the tune of Rs.10,000/-. The complaint is liable to be dismissed.
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4. None appeared for respondent No.3 (O.P.No.2) and respondent No.4 (O.P.No.3) before the District Forum, inspite of publication of the notice in the newspapers, therefore, they were proceeded ex-parte.
5. Learned District Forum after having considered the material placed before it by the parties, has allowed the complaint and directed the appellant (O.P.No.1), respondent No.3 (O.P.No.2) and respondent No.4 (O.P.No.4) to jointly and severally pay compensation to the respondent No.1 & respondent No.2 (complainants), as mentioned in para 1 of this order.
6. The respondent No.1 & respondent No.2 (complainants) have filed documents. Annexure 1 is E Ticket for flight from Nagpur to Mumbai of Make My Trip, Annexure 2 is Cruise Ticket of Blue Ocean Cruises of complainants (Booking Confirmation Receipt), Annexure 3 is Cruise Ticket of Blue Ocean Cruises of complainants (Booking confirmation receipt), Annexure 4 is legal notice dated 20.02.2011, Annexure 5 is HDFC Deposit slip counter foil, Annexure 6 is reply to legal notice dated 21.02.2011, Annexure 7 is email of hotel voucher sent by the O.P.No.1, A-8 is email of O.P.No.1 regarding cruise voucher, A- 9 is Pay/Salary Slip of complainant No.1 (Dr. Harsha Goverdhan) of July, 2012, A-10 and A-11 is I.T. return of complainant No.2 Dr. Sunita Gowerdhan with computation of income, A-11 is Service Certificate of complainant No.1 (Dr. Harsha Gowardhan).
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7. The appellant (O.P.No.1) has also filed document. Annexure A is the copy of Board of Resolution dated August 25,2010, issued in favour of Shri Kamal K. Avutapalli by the appellant (O.P.No.1), Annexure B (Colly) is the Process and / or steps for the booking at the portal of the appellant (O.P.No.1) and copy of User Agreement enumerating the terms and conditions as applicable and agreed between the complainants and appellant (O.P.No.1), Annexure C is the copy of emails exchanged between the appellant (O.P.No.1) and counsel of the complainants.
8. Shri M.K. Vyas, learned counsel appearing for the appellants (O.P.No.1) has argued that the impugned order passed by the District Forum, is erroneous and the District Forum has not properly appreciated the facts of the case and without going into the defence of the appellant (O.P.No.1), has passed the impugned order. The respondent No.1 & respondent No.2 (complainants) have specifically pleaded that cruise journey from Bombay to Goa and return was to be arranged by the respondent No.3 (O.P.No.2) and respondent No.4 (O.P.No.3) i.e. Blue Ocean Cruise and appellant (O.P.No.1) was only a booking agent, who had booked tickets. The flight tickets from Nagpur to Mumbai and return to Nagpur were also booked by the appellant (O.P. No.1), which were utilized by the respondent No.1 & respondent No.2 (complainants). The cancellation of cruise journey // 18 // was beyond the control of the appellant (O.P.No.1) The cruise from Mumbai to Goa port was cancelled by the respondent No.3 (O.P.No.2) and respondent No.4 (O.P.No.3) and the appellant (O.P.No.1) could not have been held responsible for such cancellation. On cancellation of the cruise journey the respondent No.1 & respondent No.2 (complainants) were provided stay in hotel for two days and whole amount was refunded by the respondent No.3 (O.P.No.2) and respondent No.4 (O.P.No.3) to the respondent No.1 & respondent No.2 (complainants). The appellant (O.P.No.1) had no role to play except for booking of tickets for the respondent No.1 & respondent No.2 (complainants), therefore, the impugned order passed by the District Forum is erroneous and is liable to be set aside.
9. Shri Shahid Siddiqui, learned counsel appearing for the respondent No.1 & respondent No.2 has supported the impugned order passed by the District Forum and has argued that the respondent No.1 and respondent No.2 (complainants) had their 25th marriage anniversary on 16.12.2010 and to make this silver jubilee marriage anniversary a special one, , therefore, they planned the cruise journey. The respondent No.1 & respondent No.2 (complainants) booked flight ticket from Nagpur to Mumbai and also booked cruise ticket through respondent No.3 (O.P.No.2) and respondent No.4 (O.P.No.3) on 19.11.2010 to sail from Mumbai port to Goa and return, // 19 // for three days trip commencing from 12.12.2010. The respondent No.1 & respondent No.2 (complainants) Mumbai on 12.12.2010 and they were informed that cruise was cancelled, therefore, they immediately rushed to office of the respondent No.3 (O.P.No.2) and respondent No.4 (O.P.No.3), but they could not give satisfactory reply. The respondent No.3 (O.P.No.2) and respondent No.4 (O.P.No.3) agreed upon refunding the cruise ticket amount but refused to pay for the air fare and train tickets. The respondent No.1 & respondent No.2 were desisted by the OPs from taking any legal recourse, on their own accord and provided complementary cruise tickets for 23.02.2011. The respondent No.1 & respondent No.2 (complainants) again enquired about the said tour then they came to know that cruse was again cancelled but the appellant (O.P.No.1), respondent No.3 (O.P.No.2) and respondent No.4 (O.P.No.3) did not informed the respondent No.1 & respondent No.2 (complainants) regarding cancellation of cruise, hence the respondent No.1 & 2 (complainants) suffered pecuniary loss as well as mental and physical harassment. The appellant (O.P.No.1), respondent No.3 (O.P.No.2) and respondent No.4 (O.P.No.3) committed deficiency in service and unfair trade practice, therefore, the impugned order is just and proper and does not suffer from any infirmity and illegality. The appeal of the appellant (O.P.No.1) is liable to be dismissed.
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10. We have heard learned counsel for the parties and have also perused the record of the District Forum.
11. It is not disputed that the respondent No.1 & respondent No.2 (complainants) along with their two relatives had booked cruise ticket on 19.11.2010 to sail from Mumbai Port to Goa and return, for three days trip commencing from 12.12.2010 from Mumbai Port and reaching back on 14.12.2010 at Mumbai Port. It is also not disputed that the cruise was supposed to depart from Mumbai Port at 5 P.M. on 12.12.2010. It is also not disputed that when the respondent No.1 & respondent No.2 (complainants) reached Mumbai Port on 12.12.2010, it was found that the said cruise is not sailing.
12. The respondent No.1 & respondent No.2 (complainants) pleaded that Port officials at Mumbai Port conveyed this information to the respondent No.1 & respondent No.2 (complainants), then respondent No.1 & respondent No.2 (complainants) went to the office of the respondent No.3 (O.P.No.2) and respondent No.4 (O.P.No.3) and inquired, but they did not given satisfactory reply. The respondent No.3 (O.P.No.2) and respondent No.4 (O.P.No.3) only agreed upon to refund the cruise ticket amount, but refused to pay for the Airfare and train tickets. The appellant (O.P.No.1) pleaded that the appellant (O.P.No.1) had only booked cruise ticket in question and has no control over the functioning of the cruise.
// 21 //
13. It appears that the allegations made by the respondent No.1 (complainants) are not rebutted by the respondent No.3 (O.P.No.2) and respondent No.4 (O.P.No.3). The appellant (O.P.No.1) booked tickets on behalf of the respondent No.3 (O.P.No.2) and respondent No.4 (O.P.No.3), and acted as agent of the respondent No.3 (O.P.No.2) and respondent No.4 (O.P.No.3). It appears that there is a tie-up between the appellant (O.P.No.1) and respondent No.3 (O.P.No.3) & respondent No.4 (O.P.No.4).
14. From the perusal of the documents filed by the appellant (O.P.No.1), it is clearly proved that the appellant (O.P.No.1) not only booked the ticket but also booked the hotel in various places. It appears that the appellant (O.P.No.1) is also responsible for booking the cruise and it cannot take defence that it is only authorized for booking the tickets and it is also established that all tickets including cruise tickets have been taken by the appellant (O.P.No.1). It is clearly established that appellant (O.P.No.1) has received the amount from the complainants for booking tickets including cruise ticket. When complainants demanded amount due to cancellation of the journey, then the appellant (O.P.No.1) has refunded the amount and by making correspondence avoided its liability, therefore, the conclusion reached by the District Forum in para 17 of the impugned order, is just, proper and reasonable and does not suffer from any infirmity or // 22 // illegality. Therefore, it is established that the appellant (O.P.No.1) avoiding and is escaping from its liability and the appellant (O.P.No.1) and respondent No.3 (O.P.No.2) and respondent No.4 (O.P.No.3) committed deficiency in service.
15. From Annexure N.A.7 it is proved that the appellant (O.P.No.1) demanded second copy of the cruise journey ticket from the respondent No.1 & respondent No.2 (complainants) where the above ticket has been issued by the appellant (O.P.No.1) by obtaining huge amount. Thus from the Annexure NA.7 it is established that the appellant (O.P.No.1) has crossed the limit of unfair trade practice and again demanded the copy of the ticket from the respondent No.1 and respondent No.2 (complainants) and endorsed that they tried to contact the respondent No.1 & respondent No.2 (complainant) many times. From which it is established that the OPs want to take a long time and did not want to redress the grievance of the respondent No.1 & respondent No.2 (complainants).
16. The contention of the respondent No.1 & respondent No.2 (complainant) is that when for second cruise they want confirmation from the OPs, then they came to know that above cruise will not go. The mental agony and discouragement of the respondent No.1 & respondent No.2 (complainants) can be guessed. The contention of the respondent No.1 and respondent No.2 (complainants) that the OPs // 23 // abused them, then in these circumstances we do not find any reason to disagree with the contention of the respondent No.1 and respondent No.2 (complainants).
17. In these circumstances, it is proved that when the first cruise journey was cancelled, then the OPs lured the respondent No.1 & respondent No.2 (complainant) of second journey to mislead them, and due to their attacking commercial policy they did not conduct second journey and thus gave mental harassment to a person who is doctor by profession and his time was also wasted and the respondent No.1 and respondent No.2 (complainants) were deprived from the huge amount, whereas it was duty of the OPs to compensate the respondent No.1 and respondent No.2 (complainant) when the cruise journey was cancelled by paying the expenditure incurred by them. It is provided that the OPs did not refund the expenditure incurred by the respondent No.1 and respondent No.2 (complainant) in respect of travel to Durg to Mumbai and return and expenses incurred for stay in hotel. Thus, in respect of complementary cruise journey the OPs did not refund the amount in respect of travel from Durg to Mumbai and return and train fare etc.
18. In the impugned order, learned District Forum has awarded a sum of Rs.2,50,000/- to the respondent No.1 & respondent No.2 (complainants) towards compensation. The respondent No.1 & // 24 // respondent No.2 (complainants) are doctors by profession and they brooked cruise tickets for enjoying their 25th Marriage Anniversary. The OPs did not inform the respondent No.1 & respondent No.2 (complainants) regarding cancellation of cruise and when the respondent No.1 & respondent No.2 (complainants) reached Mumbai then they came to know regarding cancellation of cruise. Even the appellant (O.P.No.1), respondent No.3 (O.P.No.2) and respondent No.4 (O.P.No.3) did not inform the respondent No.1 & respondent No.2 (complainants) regarding subsequent cancellation of cruise i.e. complementary travel from Mumbai to Lakshwadeep. When the respondent No.1 & respondent No.2 (complainants) asked the OPs regarding the above journey, then they were informed by the OPs that trip was cancelled. It appears that the OPs committed grave deficiency in service in providing services, therefore, the learned District Forum, has rightly awarded compensation to the respondent No.1 & respondent No.2 (complainants) to the tune of Rs.2,50,000/-.
19. Learned District Forum, has awarded interest @ 07% p.a. on Rs.2,50,000/- from the date of order till realisation. Looking to the facts and circumstances of the case, it is just and proper and does not suffer from any infirmity or illegality.
20. Learned District Forum, has awarded a sum of Rs.10,000/- to the respondent No.1 and respondent No.2 (complainants) towards // 25 // compensation for mental agony. Looking to the facts and circumstances of the case, it is just and proper and does not suffer from any infirmity or illegality.
21. In view of the above discussions, we hold that the impugned order dated 14.01.2015, passed by the District Forum, is reasonable, just and proper and does not suffer from any infirmity or illegality, hence does not call for any interference by this Commission.
22. Hence, the appeal filed by the appellant (O.P.No.1) being devoid of any merits, deserves to be and is hereby dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (Ms. Heena Thakkar) (D.K. Poddar)
President Member Member
/01/2016 /01/2016 /01/2016