Delhi District Court
Mr. Jasvinder Singh vs Makemytrip India Pvt. Ltd on 14 August, 2023
IN THE COURT OF ADDITIONAL SENIOR CIVIL JUDGE
(SHAHDARA) KARKARDOOMA COURTS,
DELHI.
Presided by: Mr. Himanshu Raman Singh
Civil Suit No.415 of 2018
Mr. Jasvinder Singh,
Son of S. Tirath Singh,
Resident of D-1/4, Krishna Nagar,
Delhi-110051. ..... Plaintiff
Versus
MakeMyTrip India Pvt. Ltd.,
Through its Managing Director,
DLF Building No.5, Tower B,
DLF Cyber City, DLF Phase 2,
Sector 25, Gurugram,
Haryana-122002. ...... Defendant
SUIT FOR RECOVERY OF RS.1,40,000/- (RUPEES FORTY
THOUSAND ONLY) ALONG WITH PENDENTELITE
AND FUTURE INTEREST AT THE RATE OF 24%
PER ANNUM.
Date of Filing : 02.05.2018.
Date of Judgment : 14.08.2023.
Decision : Suit Decreed.
JUDGMENT
1. The plaintiff has filed the present suit praying for issuance of decree for a sum of Rs. 1,40,000/- (Rupees One Lakh Forty Thousand Only) along with interest at the rate of 24% per annum in favour of the plaintiff.
Civil Suit No.415/18 Jasvinder Singh Vs. Makemy Trip India Pvt. Ltd Page 1 of 262. The brief facts of the case as narrated by the plaintiff are as under:-
2.1. It has been stated by the plaintiff that the plaintiff was interested to go for a holiday to UK, and other countries along with his family in October, 2017 for about 10 to 15 days. The plaintiff made a call to the Customer Care Centre of the defendant company in June, 2017. He was apprised of many outbound tours by the employees of the defendant company. The plaintiff showed his interest in one of the products i.e. Pearl of Europe 9N & 10D" at the rate of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand Only) excluding VISA charges of the defendant company. Mr. Pavneet Singh, an employee of the defendant company also sent an e-mail giving quotations for the said package for the trip starting from 01.10.2017 to 10.10.2017 for Rs.2,87,739/- (Rupees Two Lakhs Eighty Seven Thousand Seven Hundred Thirty Nine Only) for two travelers to the plaintiff. The said e-mail contained complete itinerary and terms and conditions governing the said package. The said quote was accepted by the plaintiff, then Mr. Pavneet Singh asked the plaintiff to deposit an initial payment of Rs.1,20,000/- (Rupees One Lakh Twenty Thousand Only). The plaintiff deposited the said amount on 10.06.2017 at the branch office of the defendant company at Rajouri Garden, New Delhi vide NL20821585228 and NL20824585236.Civil Suit No.415/18 Jasvinder Singh Vs. Makemy Trip India Pvt. Ltd Page 2 of 26
2.2. It has been stated by the plaintiff that in June 2017, Mr. Chander Prakash Bisht on behalf of the defendant company approached the plaintiff and apprised him of information regarding the formalities required to be fulfilled by the plaintiff and his family members for obtaining Visa. After a few days i.e. on August 2017, the plaintiff received a e-mail from Mr. Chander Prakash Bisht and started the process of completing the VISA formalities and documentations. The plaintiff accordingly provided all the documents and fulfilled all the requisites for issuance/grant of VISAs as instructed by the employees of the defendant company. Thereafter, Mr. Chander Prakash Bisht informed the plaintiff that appointment has been fixed for VISA for UK in the last week of August and told the plaintiff to bring the amount for VISA fees. The plaintiff along with his family reached for the said appointment and paid the requisite VISA fee.
After the interview, the Embassy informed the plaintiff to check the status of the VISA after about 15 days. The plaintiff enquired from the Embassy on 7-8th September, 2017 and found out that VISA has been granted. Thereafter, the plaintiff immediately informed the same to Mr. Chander Prakash Bisht, to which Mr. Bisht stated that he was already aware about the same.
2.3. It has been stated by the plaintiff that Mr. Bisht informed the plaintiff by e-mail that appointments have been fixed for VISA for Scengan on 15.09.2017 at 01:30 p.m. and told the plaintiff to bring a sum of Rs.6,500/- P.P as VISA fees for Civil Suit No.415/18 Jasvinder Singh Vs. Makemy Trip India Pvt. Ltd Page 3 of 26 deposit. The plaintiff along with his family reached complied with the same. Thereafter, the plaintiff was informed by the Embassy on 22.09.2017 that the VISA of the plaintiff and his family was rejected for the reason 'the information submitted regarding the justification for the purpose and condition of the intended stay was not reliable.' Meaning thereby that the hotel and other bookings submitted by the defendant company for Scengan were dubious or incorrect. The plaintiff immediately got in touch with Mr. Bisht and Mr. Pavneet Singh and informed the same to them and also enquired regarding the hotel /other stay arrangements made for the him and his family members and reason for rejection of the VISA, but no cogent answer was given to the plaintiff. The plaintiff requested them to apply for the VISA again with proper particulars about the stay etc. but they flatly refused to do the same and they also refused to provide any details to the plaintiff.
2.4. It has been stated that the plaintiff has suffered from mental trauma due to the negligence of the defendant company as his complete trip was spoiled because of the defendant company. It has been further stated by the plaintiff that after rejection of the VISA, the defendant company called upon the plaintiff to cancel the trip and get a refund and it was revealed that the refund shall be processed after deduction of Rs.35,000/- (Rupees Thirty Five Thousand Only) per person i.e. Rs.1,40,000/- (Rupees One Lakh Forty Thousand Only) to which the plaintiff vehemently objected Civil Suit No.415/18 Jasvinder Singh Vs. Makemy Trip India Pvt. Ltd Page 4 of 26 as the trip was not being cancelled by him voluntarily but the same was being cancelled due to non-grant of VISA.
2.5. It has been stated that the plaintiff wrote an e-mail to the defendant company stating the above-stated facts and requested the defendant company not to deduct such a huge amount on account of cancellation charges. But, no proper reply to the said mail was received. On the other hand, a threatening e-mail was received from Ms. Neha Kathet, wherein it was stated that if the plaintiff does not adhere to and cancel the booking, the cancellation charges would be further escalated to Rs.50,000/- (Rupees Fifty Thousand Only) per person. The plaintiff under duress and threat but under protest allowed the defendant company to deduct the cancellation charges of Rs.1,40,000/- and a refund of Rs.1,00,000/- was processed by the defendant company.
2.6. It has been stated by the plaintiff that as the VISA was rejected due to the fault of the defendant company, the plaintiff should not have been penalized. The defendant company should have returned the complete amount to the plaintiff and should also have tendered unconditional apology to the plaintiff, but in spite of doing the same, the defendant company illegally pressurized the plaintiff to take refund after deduction of cancellation charges. The defendant company could have deducted only the administrative charges and refunded complete Civil Suit No.415/18 Jasvinder Singh Vs. Makemy Trip India Pvt. Ltd Page 5 of 26 amount to the plaintiff. But, the defendant company illegally and arbitrarily deducted such a huge amount of Rs.1,40,000/-. The plaintiff is not liable to pay any cancellation charges. The defendant company is liable to refund the amount of Rs.1,40,000/- deducted illegally from the plaintiff. It has been further stated that the defendant company was fully aware of the rejection of the VISA of the plaintiff on 19.09.2017, but still insisted on the plaintiff to deposit a sum of Rs.1,20,000/- immediately under the threat of cancelling the package.
2.7. It has been stated that the plaintiff got issued a Legal Notice dated 24.10.2017. The same was duly served upon the defendant company, to which the defendant company gave a vague, false and frivolous and till date, the defendant company has not complied with the said notice.
3. Defendant filed written statement, wherein defendant has raised the following contentions:-
3.1. It has been contended by the defendant that the present suit filed by the plaintiff is not maintainable either on merits or as per law and is liable to be out rightly dismissed as the present suit has been filed by the plaintiff on mere conjectures and surmises.
The contents of the suit are wholly misconceived, vexatious, misleading, misrepresented, unsustainable, false, frivolous (as explained in the subsequent pleadings) and are nothing but a Civil Suit No.415/18 Jasvinder Singh Vs. Makemy Trip India Pvt. Ltd Page 6 of 26 flagrant abuse of the process of law. It has been further contended that there is no deficiency of service on the part of the defendant and therefore, no case is made out against the defendant, therefore, liable to be dismissed in limine.
3.2. It has been contended that the plaintiff and defendant to the present case are governed by terms and conditions agreed between them at the time of booking and as enumerated in the User Agreement and Travel Itinerary shared by the defendant at the time of booking and as such the false, frivolous claims of the plaintiff do not merit any consideration. The relevant portion of terms and conditions of the User Agreement are reiterated hereunder:-
"CANCELLATION DUE TO VISA REJECTION All the clients traveling on an outbound tour must be in possession of a valid visa of the country in which the clients would be visiting as a part of the outbound tour.
MMT acts as a facilitator for visa processing and is not responsible for scrutinizing the visa before submitting it to the visa authority. The discretion to grant/reject the visa rests solely with the concerned authority/embassy and MMT will in no way be held responsible in case the visa is refused by the concerned authorities for whatever reason(s).
MMT shall not be held responsible for non-issuance / rejection of visa due to receipt of incomplete/ delayed documents from the client. It is a possibility that the consulate may ask the passenger to appear for a personal interview. This is at the sole discretion of the Consulate / concerned authorities.
Passengers whose visas are not granted by the Singapore/Malaysia/Thailand/consulates Client must intimate MMT immediately, at which time MMT will deduct Civil Suit No.415/18 Jasvinder Singh Vs. Makemy Trip India Pvt. Ltd Page 7 of 26 applicable cancellation charges towards administrative charges in addition to any additional visa expenses incurred and refund and balance amount. However, if such intimation is not received as aforesaid, cancellation charges will be applicable as per the cancellation rules mentioned hereunder.
MMT will block the bookings or book the tickets in advance and share the booking details once the client's visa is confirmed, in its sole discretion, to ensure travel on the dates requested by the client. In such case where the visa of the client is not garneted, the associated cancellation charges for booking shall be applicable.
Passengers whose visas are not granted by US / UK / SCHENGEN consulates must intimate MMT immediately, at which time MMT will deduct the applicable cancellation charges towards administrative charges, along with any additional visa expenses incurred and refund and balance amount. However if such intimation is not received as aforesaid, cancellation charges will be applicable as per the cancellation rules mentioned hereunder.
CANCELLATION CHARGES When Cancellation is made | Charges Prior to 45 days or more | Booking fees Between 44 and 31 days of departure | 25% of Holiday Cost Between 30 and 15 days of departure | 50% of Holiday Cost Between 14 and 8 days of departure | 75% of Holiday Cost Prior to 7days from date of departure | 100% of Holiday Cost MMT shall in no way be held liable for any delay in response from the visa authority about visa acceptance or rejection by the authorities.
MMT shall make best efforts for timely delivery of the passport to the client before the date of departure of the tour. However, MMT shall not be liable for any delays or loss of passport for reasons beyond its control as MMT relies on third party vendors for such services. In the event of any cancellation of tour due to delay in delivery of the passport or rejection of visa, MMT shall be entitled to recover cancellation charges from the client as per the term herein."Civil Suit No.415/18 Jasvinder Singh Vs. Makemy Trip India Pvt. Ltd Page 8 of 26
3.3. It has been contended that the present suit is bad in law for non-joinder of proper and necessary party i.e. Embassy of France. The Visa of the plaintiff has been rejected by the Embassy of France and the defendant company cannot be held liable in any manner muchless as being alleged for rejection of VISA.
3.4. It has been contended that in the present case, the plaintiff must prove the loss suffered due to the acts and /of omission of the defendant company in order to allege and receive the monetary compensation. It is further contended that there has been no such quantified loss enunciated by the plaintiff in the suit. The damages need to be proven in liability cases, the nature and extent of the damages are not the primary focus of the case. It has been contended that the plaintiff is not entitled to any damages as there is no supporting proof that he has suffered any damage or loss by reason of any acts and /or omission of the defendant company.
3.5. The defendant is a Private Limited Company duly incorporated under the Companies Act, 1956. The defendant company is a Tour and Travel Company. It has its offices at New Delhi, Mumbai, Kolkata, Bangalore, Ahmedabad and Gurgaon and Branch Office in New York (USA). The defendant company operates and carries out its business operations through the aforementioned offices.
Civil Suit No.415/18 Jasvinder Singh Vs. Makemy Trip India Pvt. Ltd Page 9 of 263.6. It has been contended that on 28.06.2017, the plaintiff contacted defendant company initially for enquiring about packages for Europe tour trip. After discussion, the plaintiff booked package named 'Pearls of Europe 9N 10D' on 10.06.2017 for two persons. The details are as under:-
Booking ID : NL20821585228 and
NL20824585236.
Customer's Name: Mr. Jasvinder.
Mode of Booking: Offline.
Travel Date : 1st October, 2017.
Total Booking Cost: Rs.2,87,739/-
As per terms of the Booking Policy reiterated herein below:
"BOOKING POLICY Pay Rs.60,000 to reserve your seats.
Payments of Rs.83,870 on or before 01 Sept-17 Remaining amount of Rs.1,43,869 on or before 11-Sep- 17".
The plaintiff made a partial payment of Rs.60,000/- on 10.06.2017. As per the package, the plaintiff was required to apply for two VISAS, namely, UK VISA and Schengen VISA. On 13.06.2017, the defendant company shared the check-list shared by VISA Agent with the plaintiff. Further, telephonically information was gathered from the plaintiff required to process the UK VISA. On 27.06.2017 VISA check-list was once again shared with the plaintiff.
Civil Suit No.415/18 Jasvinder Singh Vs. Makemy Trip India Pvt. Ltd Page 10 of 263.7. It has been contended that on 08.08.2017, the defendant received UK Hotel Vouchers from the Team. Accordingly, on 12.08.2017, UK Hotel Voucher and letter were shared with the plaintiff for processing the UK VISA by the visa agent. On 19.08.2017 documents related to UK VISA were received for verification. On 21.08.2017, verified documents were handed over to the plaintiff. On 22.09.2017, documents were submitted with UK embassy and on 08.09.2017 UK VISA was approved. Meanwhile on 07.09.2017, payment reminder was sent by defendant to the plaintiff. However, the plaintiff denied payment stating that UK VISA is under process and complained about the VISA assistance, however, there was no delay from VISA team in processing the VISA and full assistance was extended to the plaintiff. On receipt of UK VISA, France VISA was applied. Further on 13.09.2017, the defendant took an appointment at the embassy of France for 15.09.2017 for Visa processing and the details were duly shared with the plaintiff. On 15.09.2017, itself the documents were handed over to the plaintiff by the defendants and document submission was successfully done at VFS center.
3.8. It has been contended that on 20.09.2017, the plaintiff after much deliberation of Sales Team of defendant and after several reminders made payment of Rs.60,000/-. As per the Booking Policy, the plaintiff had to make balance payment in two installments i.e. Rs.83,000/- on 08.09.2017 and rest Rs.1,43,869/-
Civil Suit No.415/18 Jasvinder Singh Vs. Makemy Trip India Pvt. Ltd Page 11 of 26on 11.09.2017. The plaintiff miserably failed to adhere to the Booking Policy as agreed upon by the plaintiff and defendant. On 22.09.2017, the plaintiff admittedly received passport along with VISA rejection letter from the French Embassy. The reason for rejection is not disclosed to the defendant by the Embassy at any point of time. Further, it has been stated that documents were submitted properly and within time-line to embassy but the same was rejected by embassy which is beyond control of defendant. There was no error or misguidance by executives of defendant from visa operation and duly assisted the plaintiff. Since, the travel date of the plaintiff was 01.10.2017, there was no time left to reapply Visa and as per cancellation policy shared with plaintiff at the time of confirming the booking reiterated herein below:-
"CANCELLATION POLICY Cancellation stage:36 days or more before departure. 20% of the package cost will be charged as penalty on cancellation 36 days before departure Cancellation stage: 21 to 35 days before departure. 50% of the package cost will be charged as penalty on cancellation 21 to 35 days before departure Cancellation stage: 20 days or less before departure. 100% of the package cost will be charged as penalty on cancellation 20 days or less before departure"
It has been contended that the plaintiff is not entitled to any refund. The defendant being a customer oriented company waived and processed a refund of Rs.50,000/- and charged a penalty of Rs.35,000/- per person only as the defendant had Civil Suit No.415/18 Jasvinder Singh Vs. Makemy Trip India Pvt. Ltd Page 12 of 26 already incurred expenses in booking Hotels, flights etc. as per itinerary.
3.9. It has been contended by the defendant that the grievance of the plaintiff are not well founded and requires no consideration and /or indulgence by this court. The defendant has duly discharged its duty by imparting services viz. VISA assistance to the plaintiff and any act/omission by the embassy cannot be deemed to be the act of the defendant. The plaintiff has miserably failed to implead the Embassy of France a necessary and proper party to the present suit.
3.10. It has been contended by the defendant that from the documents being placed on record and averment made by the plaintiff in the plaint, it is apparent that plaintiff in order to wriggle out of its own negligence and act of the Embassy of France is unnecessary alleging wrong and frivolous allegations against defendant, who has simply acted on the instructions of plaintiff and as per the booking terms and conditions. It has vehemently denied that there is any negligence on the part of the defendants; much less as being alleged in plaint. It has been further stated that no act of defendants can constitute an act of fraud being committed on plaintiff. It is stated that fraud, if any, has been played upon the plaintiff by some third party; for which defendants cannot be held responsible. It is surprising that plaintiff despite being aware of the aforesaid facts has filed the Civil Suit No.415/18 Jasvinder Singh Vs. Makemy Trip India Pvt. Ltd Page 13 of 26 present false and frivolous suit impleading only defendants as parties.
3.11. It has been contended by the defendant that the sequence of events and documentary evidence shows that defendants acted as per the written mandate /instruction of the plaintiff, for which defendants cannot be held liable in case of any negligence on the part of the plaintiff. The plaintiff has filed the present plaint on mere conjectures and surmises and he should have initiated criminal proceeding against the actual fraudster/ beneficiary. The present suit has been filed with malicious intention against the defendant with the sole objective of making some wind fall gain by extracting the same through the device of this plaint. No liability can be fastened on the defendants to pay the alleged amount along with the interest as alleged in the plaint. Hence, the present plaint is to be rejected out rightly as per the provision enumerated under Order 7 Rule 11(a) of the CPC.
3.12. It has been contended by the defendant that since, the travel date of the plaintiff was 01.10.2017, there was no time left to reapply VISA. The e-mail do not threaten the plaintiff in any manner as alleged. On the contrary, the emails exchanged duly explained the plaintiff the calculation arrived at for cancellation. It is further contended that it is the prerogative of the concerned Embassy to refuse/grant VISA, defendant in no matter can be held liable for the same.
Civil Suit No.415/18 Jasvinder Singh Vs. Makemy Trip India Pvt. Ltd Page 14 of 263.13. It has been contended by the defendant that the defendant at all material times has assisted the plaintiff and has been extremely customer centric and as against the cancellation policy waived and processed a refund of Rs 50,000/- and charged a penalty of Rs.35,000/- per person only. The cancellation policy was duly shared with the plaintiff at the time of bookings. The defendant and plaintiff are bound by the terms and conditions governing the booking made (outward travel).
3.14. It has been contended by the defendant that on 20.09.2017, the plaintiff after much deliberation of Sales Team of defendant and after several reminders, made the payment of Rs.60,000/-. It is further contended that the Legal Notice is false and frivolous and is issued with an ulterior motive to have windfall gain from the defendant as the Embassy has rejected the VISA of the plaintiff.
4. Right to file replication of the plaintiff was closed by this court vide order dated 19.08.2019.
5. From the pleadings of the parties, following issues were framed:-
(i) Whether the defendant company was negligent in processing the visa of plaintiff and his family members?
OPP Civil Suit No.415/18 Jasvinder Singh Vs. Makemy Trip India Pvt. Ltd Page 15 of 26
(ii) Whether the plaintiff is entitled to recovery of sum as prayed for? OPP
(iii) Whether plaintiff is entitled to interest as prayed for? If so, at what rate and for which period? OPP
(iv) Whether the suit is not maintainable in the present form?
OPD.
(v) Relief.
6. In order to prove the case of the plaintiff, Mr. Jasvinder Singh, son of Mr. Tirath Singh examined himself as PW-1 and led his evidence by way of affidavit Ex.PW1/1. He relied upon the following documents:
Ex.PW1/A Copy of e-mail dated 22.09.2017.
Ex.PW1/B Certificate U/s 65-B of the Evidence Act. Ex.PW1/C Copy of e-mail dated 13.09.2017.
Ex.PW1/D Copy of e-mail dated 22.09.2017.
Ex.PW1/E Copy of e-mail dated 07.09.2017.
Ex.PW1/F Copy of Legal Notice dated 24.10.2017 Ex.PW1/G Reply to the Legal Notice received by plaintiff.
7. PW1 was cross-examined by defendant at length. Thereafter, Plaintiff Evidence was closed on 21.02.2023.
8. In order to support the claim of the defendant, Mr. Bhupinder Singh Virdi, working as Senior Executive Legal and Authorized Officer, MakemyTrip India Pvt. Ltd., examined Civil Suit No.415/18 Jasvinder Singh Vs. Makemy Trip India Pvt. Ltd Page 16 of 26 himself as DW-1 and led his evidence by way of affidavit Ex. DW1/1. He relied upon the following documents:-
Ex.DW1/A Online generated, Board of Resolution dated 17.08.2021.
Ex. DW1/A1 Online generated, Board of Resolution dated 05.02.2019.
Ex. DW1/B Online generated, Travel Itinerary. (colly.14 pages) Ex. DW1/C Online generated, Vouchers of Hotel Booking. (colly.16 pages) Ex. DW1/D Online generated, terms and conditions of (colly.7 pages) outbound tours and user agreement.
Mark A1 Copy of reply of Legal Notice of the plaintiff dated 01.12.2017.
9. DW-1 was cross-examined by the plaintiff at length. Thereafter, the Defence Evidence was closed on 07.08.2023.
10. I have heard the final arguments at length and gone through the record carefully. The issue-wise findings are as follows. Issue no. 1 & 2 are taken up together as commons questions of law and facts arise in these issues.
Issue No. 1(i) Whether the defendant company was negligent in processing the visa of plaintiff and his family members? OPP Issue No.2 Civil Suit No.415/18 Jasvinder Singh Vs. Makemy Trip India Pvt. Ltd Page 17 of 26
(ii) Whether the plaintiff is entitled to recovery of sum as prayed for? OPP
11. The onus to prove these issues was upon the plaintiff.
12. It is contended by learned counsel for the plaintiff that the defendant has deducted amount of Rs.1,40,000/- against the cancellation policy. The relevant paragraph of the policy reads as under : -
"CANCELLATION DUE TO VISA REJECTION All the clients traveling on an outbound tour must be in possession of a valid visa of the country in which the clients would be visiting as a part of the outbound tour.
MMT acts as a facilitator for visa processing and is not responsible for scrutinizing the visa before submitting it to the visa authority. The discretion to grant/reject the visa rests solely with the concerned authority/embassy and MMT will in no way be held responsible in case the visa is refused by the concerned authorities for whatever reason(s).
MMT shall not be held responsible for non-issuance / rejection of visa due to receipt of incomplete/ delayed documents from the client. It is a possibility that the consulate may ask the passenger to appear for a personal interview. This is at the sole discretion of the Consulate / concerned authorities.
Passengers whose visas are not granted by the Singapore/Malaysia/Thailand/consulates Client must intimate MMT immediately, at which time MMT will deduct applicable cancellation charges towards administrative charges in addition to any additional visa expenses incurred and refund and balance amount. However, if such intimation is not received as aforesaid, cancellation charges will be applicable as per the cancellation rules mentioned hereunder.Civil Suit No.415/18 Jasvinder Singh Vs. Makemy Trip India Pvt. Ltd Page 18 of 26
MMT will block the bookings or book the tickets in advance and share the booking details once the client's visa is confirmed, in its sole discretion, to ensure travel on the dates requested by the client. In such case where the visa of the client is not garneted, the associated cancellation charges for booking shall be applicable.
Passengers whose visas are not granted by US / UK / SCHENGEN consulates must intimate MMT immediately, at which time MMT will deduct the applicable cancellation charges towards administrative charges, along with any additional visa expenses incurred and refund and balance amount. However if such intimation is not received as aforesaid, cancellation charges will be applicable as per the cancellation rules mentioned hereunder.(emphasis added)"
13. As per the cancellation policy, in case, Visa is not granted, the passengers must intimate MMT/defendant immediately and the MMT/defendant will deduct the applicable cancellation charges as administrative charges. In case the intimation is not sent by the passenger, the cancellation charges will be applicable as under: -
"CANCELLATION CHARGES When Cancellation is made | Charges Prior to 45 days or more | Booking fees Between 44 and 31 days of departure | 25% of Holiday Cost Between 30 and 15 days of departure | 50% of Holiday Cost Between 14 and 8 days of departure | 75% of Holiday Cost Prior to 7days from date of departure | 100% of Holiday Cost MMT shall in no way be held liable for any delay in response from the visa authority about visa acceptance or rejection by the authorities.
MMT shall make best efforts for timely delivery of the passport to the client before the date of departure of the tour. However, MMT shall not be liable for any delays or loss of passport for reasons beyond its control as MMT relies on third party vendors for such services. In the event of any cancellation of tour due to delay in delivery of the passport or rejection of visa, MMT shall Civil Suit No.415/18 Jasvinder Singh Vs. Makemy Trip India Pvt. Ltd Page 19 of 26 be entitled to recover cancellation charges from the client as per the term herein."
14. From the bare perusal of the terms & conditions of the policy as quoted above, it is clear that the cancellation charges would be applicable as per the schedule, only, in the case when the passenger has failed to intimate the MMT within time. In the present case, the admitted case of the plaintiff, is that the plaintiff had immediately intimated the MMT regarding the rejection of the Visa on the same day itself through the email.
15. It is contended by learned counsel for the plaintiff that the defendant did not communicate to the plaintiff regarding any terms & conditions for deduction of any amount on rejection of Visa. It is case of the plaintiff that the defendant was lax and not diligent in pursuing the Visa application of the plaintiff. It has been contended that the defendant cannot be allowed to take benefit of its own wrong.
16. It has been further contended by learned counsel for the plaintiff that he had received an email from the defendant giving the quotation of the tour package and the email was accompanied by all the terms & conditions. The email is Ex.PW- 1/A. A perusal of the email shows that no terms & conditions regarding the cancellation has been communicated by the defendant to the plaintiff.
Civil Suit No.415/18 Jasvinder Singh Vs. Makemy Trip India Pvt. Ltd Page 20 of 2617. In the present case, the plaintiff had shown interest in one of the product of the defendant and sent his offer to the defendant to accept the services provided by the defendant. The defendant, by return email sent the offer through quotation. The quotation was duly accepted by the plaintiff as per the terms & conditions sent with the quotation. Thereafter, both the parties acted upon the agreement and therefore a contract arises between the parties.
18. The plaintiff in his evidence has stated that he was informed by the embassy on 22.09.2017 that his and Visa of his family member's has been rejected for the reason "the information submitted regarding the justification for the purpose & condition of the intended stay was not reliable", meaning thereby that the hotel and other bookings submitted by the defendant company for SCENGAN visa were dubious or incorrect.
19. It is the case of the defendant that all the terms & conditions were duly brought to the notice of the plaintiff. Per contra, the plaintiff has submitted that no terms & conditions were brought to his notice.
20. In the cross-examination of plaintiff, suggestion was given that he received an email in which he was informed about the cancellation policy, which was denied by the plaintiff. In Civil Suit No.415/18 Jasvinder Singh Vs. Makemy Trip India Pvt. Ltd Page 21 of 26 view of the denial of the plaintiff, the burden was upon the defendant to prove that the plaintiff was duly intimated of the terms & conditions.
21. The defendant examined Mr. Bhupinder Singh Virdi as DW-1 to prove its case. The said witness however, did not prove on record any email or document which could show that the plaintiff was duly intimated of the cancellation policy of the defendant. In the cross-examination, DW-1 deposed that he was not aware of the transaction between the plaintiff and the defendant personally. He deposed that he is fully aware of the terms & conditions of the company and the company does not charge any administrative charges. He admitted that the plaintiff had immediately intimated the defendant company regarding the rejection of the Visa. He has also admitted as per the document Ex.DW-1/D, the defendant company was to deduct applicable cancellation charges toward cancellation charges. He also admitted that the cancellation charges would be applicable only if the plaintiff did not intimate the defendant regarding the rejection of Visa.
22. The issues in civil cases are to be decided on the scale of preponderance of probabilities. The doctrine of preponderance of probabilities was discussed in the judgment titled Postgraduate Institute of Medical Education and Research v. Jaspal Singh, (2009) 7 SCC 330 which reads as under:
Civil Suit No.415/18 Jasvinder Singh Vs. Makemy Trip India Pvt. Ltd Page 22 of 26"17. In Syad Akbar v. State of Karnataka (1980) 1 SCC 30 this curt dealt with in details the distinction between negligence in civil law n din criminal law. It has been held that there is marked difference as to the effect of evidence, namely, the proof, in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the court, as a reasonable man, beyond all reasonable doubt".
23. In Dr. N.G. Dastane Vs. Mrs. S. Dastane on 19 th March, 1975 AIR 1975 SC 1534, (1975), SCC 326, Hon'ble Supreme Court held as under:-
"24. The normal rule which governs civil proceedings is that a fact can be said to be established if it proved by a preponderance of probabilities. This is for the reason that under the Evidence Act, Section 3, a fact is said to be proved when the court either either believes it to exist or considers its existence so probably that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact-situation will act on the supposition that the fact exists, if on weighing the various probabilities he links that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies. Important issues like those which affect the status of parties demand a closer scrutiny than those like the loan on a promissory note : "the nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue " Per Dixon, J. In Wright v. Wright (1948) 77 C.L.R. 191 at p. 210; or as said by Lord Denning, "the degree of probability depends on the subject- matter. In proportion as the offence is grave, so ought the proof to be clear" Blyth v. Blyth (1966) 1 A.E.R. 534 at 536. But Civil Suit No.415/18 Jasvinder Singh Vs. Makemy Trip India Pvt. Ltd Page 23 of 26 whether the issue is one of cruelty or of a loan on a pronote, the test to apply is whether on a preponderance of probabilities the relevant fact is proved. In civil cases this, normally, is the standard of proof to apply for finding whether the burden of proof is discharged."
24. After hearing the submissions and going through the record, this court is of the considered view that the terms & conditions regarding the cancellation were not communicated to the plaintiff by the defendant. Once the proposal has been accepted a valid contract arises, and one of the parties cannot be unilaterally allowed to modify the terms and conditions of the agreement later on. If the special terms & conditions are not communicated the same shall not be binding on the offeree. Further the party prescribing such special terms must make reasonable efforts to bring such special terms to the knowledge of the other party at the time of formation of contract. The parties to a contract have the freedom to enter into a contract and alter its terms by mutual consent. When both the parties mutually agree to change the term of the contract which they have previously entered into, then the new agreement becomes binding on them. However, in case there is a clause in the contract stating that the terms of the contract can be altered by one party (unilaterally) such changes in the terms will be considered as valid. Hence, a party cannot by unilateral term impose conditions which were not a part of the original contract. As discussed already, a party cannot on its own change the terms of the contract unilaterally. The Supreme Court in the case of Citi Bank N A v. Standard Chartered Bank, Appeal (civil) 7941 of 1995 held that novation, rescission, and alteration under Section 62 requires that both the parties should agree to substitute, rescind or alter the existing contract with a new one. Such substitution, rescission or alteration has to be done bilaterally. In the case of Polymat India P. Ltd. & Anr vs National Insurance Co. Ltd. & Ors, Appeal Civil Suit No.415/18 Jasvinder Singh Vs. Makemy Trip India Pvt. Ltd Page 24 of 26 (civil) 4366 of 1999, it was held that the terms of a contract cannot be varied without the mutual agreement of the parties.
25. It has come on record that the defendant Company does not charge any administrative charges through the testimony of DW1. Even if, the terms & conditions placed on record by the defendant are to be taken to be correct, no cancellation charges are liable to be paid by the plaintiff as the plaintiff had intimated the defendant regarding the rejection of the VISA. In the facts and circumstances and the discussion above, it is held that the plaintiff has been successful in discharging the burden of proof cast upon him. Accordingly, issue no. 1 & 2 are decided in favour of the plaintiff and against the defendant.
Issue No.3
(iii) Whether plaintiff is entitled to interest as prayed for? If so, at what rate and for which period? OPP
26. The onus to prove this issue was upon the plaintiff. In view of the findings given in issue no. 1 & 2, the plaintiff is also held entitled to interest. The plaintiff has claimed interest at the rate of 24% per annum. Considering the rate of loans and interest on fixed deposit, this court deems it appropriate to grant interest at the rate of 9% per annum from date of filing of suit till recovery to be calculated as simple interest.
Issue No.4 Civil Suit No.415/18 Jasvinder Singh Vs. Makemy Trip India Pvt. Ltd Page 25 of 26
(iv) Whether the suit is not maintainable in the present form?
OPD.
27. The onus to prove this issue was upon the defendant. The defendant has failed to lead any evidence to prove as to how the present suit is not maintainable. As a result, this issue is decided against the defendant and in favour of plaintiff.
Issue No.5 (v) Relief.
28. In the light of the above discussions and findings, the present suit is decreed for a sum of Rs. 1,40,000/- (Rupees One Lakh Forty Thousand Only). The plaintiff is also held entitled to interest at the rate of 9% per annum from the date of filing of the suit till the date of decree. Plaintiff is also held entitled to the costs of the suit. Decree sheet be prepared accordingly.
29. File be consigned to the Record Room after due compliance.
Announced in open Court on 14.08.2023.
(Himanshu Raman Singh) Addl. Senior Civil Judge, Shahdara, Karkardooma Court, Delhi/14.08.2023.
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