State Consumer Disputes Redressal Commission
M/S Adventure Nation Network Pvt. Ltd. vs Prakash Kapadia & Others on 28 February, 2023
BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
PANAJI-GOA
In the matter of First Appeals FA 58,59,60,61,62 & 63 of 2019
in Consumer Complaints CC 69,70,71,66,68 & 67 of 2018
Before: Shri Dhananjay A. Jog, President
Adv.Ms. Rachna A.M. Gonsalves, Member
FA 58 of 2019 in CC 69 of 2018
Adventure Nation Network Pvt. Ltd.
5th Floor, Tower A, Unitech Cyber Park,
Sec.39, Gurgaon,
Haryana. 122001. .......Appellant
V.
Smt. Pallavi Lawande,
Savitri Niwas, 370/1,
Next to Kamat Hospital,
D. B. Marg, Miramar,
Panaji, Goa. 403001. .......Respondent-1
Smt Radhika Niresh Naik,
Krishnasheel, House no. 2833,
Near Sapna Heritage,
Monte Hill, Margao, Goa. 403601. .......Respondent-2
Smt. Payal Yogesh Naik,
'Sumati',
Opp. Sitara Hsg. Co-op. Society,
Near Telephone Exchange,
Margao, Salcete, Goa. 403601. ........Respondent-3
1
FA 59 of 2019 in CC 70 of 2018
Adventure Nation Network Pvt. Ltd.
5th Floor, Tower A, Unitech Cyber Park,
Sec.39, Gurgaon,
Haryana. 122001. .......Appellant
V.
Shri Sanat Raiturcar,
'Mahalasa', behind Police Station,
Near Vasant Arcade, Diogo Counto Road,
Comba, Margao, Goa. 403601. .......Respondent-1
Smt. Shruti Raiturcar,
'Mahalasa', behind Police Station,
Near Vasant Arcade, Diogo Counto Road,
Comba, Margao, Goa. 403601. .......Respondent-2
Shri Ravi Sonar,
E-104, Devashri Garden,
Near Corporation Bank,
Porvorim, Bardez, Goa. 403507. ........Respondent-3
FA 60 of 2019 in CC 71 of 2018
Adventure Nation Network Pvt. Ltd.
5th Floor, Tower A, Unitech Cyber Park,
Sec.39, Gurgaon,
Haryana. 122001. .......Appellant
V.
Shri Nilesh Amonkar,
21-T1/T2, Kamat Kinara,
Tonca Caranzalem, Goa. 403002. .......Respondent-1
Smt Sonali Amonkar,
21-T1/T2, Kamat Kinara,
Tonca Caranzalem, Goa. 403002. .......Respondent-2
Smt. Mariola Mathais,
Villa Mathais,
8/102/A, Altinho,
Panaji, Goa. 403001. ........Respondent-3
2
FA 61 of 2019 in CC 66 of 2018
Adventure Nation Network Pvt. Ltd.
5th Floor, Tower A, Unitech Cyber Park,
Sec.39, Gurgaon,
Haryana. 122001. .......Appellant
V.
Smt. Lisa Lilia Menezes E D'Silva,
Vivenda Aleluia,
Rua St. Tome, Panaji, Goa. 403001. .......Respondent-1
Smt. Karishma Gautam Verlekar
'Krishna', Bernardo Costa Road,
Near Damodar Temple,
Margao, Goa. 403601. .......Respondent-2
Smt. Tanisha Tejan Karekar,
House no. 6/2778,
Row House No. 2, Vasant Nagar,
Gogol, Margao, Goa. 403601. ........Respondent-3
FA 62 of 2019 in CC 68 of 2018
Adventure Nation Network Pvt. Ltd.
5th Floor, Tower A, Unitech Cyber Park,
Sec.39, Gurgaon,
Haryana. 122001. .......Appellant
V.
Smt. Neelam Rohan Khaunte,
Highland Villas,
Villa No. 12, B. B. Borcar Road,
Porvorim, Goa. 403521. .......Respondent-1
Smt. Sheetal Pai Kane,
1, Bhobe Residency,
Green Valley, Off Chogm Road,
Near Navtara Restaurant,
Porvorim, Goa. 403521. .......Respondent-2
Smt. Supriya Pai Kane,
BSI, Campo Verde,
Caranzalem, Tiswadi, Goa. 403002. ........Respondent-3
3
FA 63 of 2019 in CC 67 of 2018
Adventure Nation Network Pvt. Ltd.
5th Floor, Tower A, Unitech Cyber Park,
Sec.39, Gurgaon,
Haryana. 122001. .......Appellant
V.
Shri Prakash Kapadia,
F-I, 3 and 4, Bldg. 4B,
Models Status, Taleigaon,
Dona Paula, Panaji, Goa. 403002. .......Respondent-1
Dr. Blanche Themudo,
H. No. 461, Dongrim,
Navelim, Salcete, Goa. 403707. .......Respondent-2
Smt. Vidhya Vernekar,
H. No. 424, W. No. 12,
Borda, Margao, Goa. 403601. ........Respondent-3
Adv. Shri. J. Lopes present for Appellants.
Adv. Shri. C. Padgaonkar present for Respondents.
DATE: 28/02/2023
JUDGMENT
[per Adv. Ms. Rachana Anna Maria Gonsalves, Member]
1. This Judgment shall decide on six connected matters in appeal FA/58/2018, FA/59/2018, FA/60/2018, FA/61/2018, FA/62/2018 to FA/63/2019 filed on 18/09/2019 against Order dated 25/07/2019 of CDRF (North)-Porvorim, Goa in Complaint No. 69/2018 that shall be conveniently disposed of by this Common Judgment as the facts are common and also the law applicable therein.
42. The Appellant herein before us was Opposite Party No.3 in the Original Complaint and the Respondent herein are the Complainant in the original complaint.
3. The brief facts of the matter are herein as under:
i. It is the case of the Respondent who wanted a good travel agency to trek Mount Kailash in the Kailash-Mansarovar region of Tibet/China which would commence from Darchem, circumambulate Mount Kailash and complete the "Parikrama" and would deliver them an exclusive prompt, professional and quality service for their group exclusively along with the required assistance provided to them during the trek/tour.
ii. That the Respondent Mr. Sanat Raiturkar and Mr. Nilesh Amonkar, who were complainant No. 1 & 2 in Complaints No. 70 & 71 respectively were given the task to coordinate and organize the trek and to negotiate all matters concurring the trek and found one online website "Adventure Nation" i.e. Appellant a joint venture of Opposite Party No. 1 & 2 i.e. Yatra Online Private Limited and Snow Leopard Adventures Pvt. Ltd. who could meet their requirements for the tour/Trek.
iii. Mr. Raiturkar was the main point of contact in the group and got impressed after going through the website reading the representation made on the website of the Appellant and decided to book the Trip/Trek.
iv. The itinerary along with inclusion and exclusion and website details for further Terms & Conditions of Tour/Trek package were sent by Appellant and that the Respondent negotiated and finally booked the Tour/Trek package and agreed for Terms and Condition which was mentioned in the website.5
v. The Appellant alleged that the Respondent complained about the deficiency in services as the Appellant has not been provided with the Hotel mentioned in the itinerary nor provided with porters, halt denied, merged with the larger group, delayed journey, no toilet in dormitories etc. vi. It is the case of Appellant, that it is an online ticketing service provider, providing facility through the medium of internet and phone as well as through retail outlets as per users convenience and around the month of May, the Appellant's representative had a word with the guest named Mr. Sanat Poy, who wanted to go Kailash Mansarovar Yatra with his friends and family and that the packages were discussed and explained properly also email with all the details of the package along with inclusions and exclusions was sent which consisted of all the terms and conditions.
vii. Also the aforesaid guest used to send emails for queries and used to call also for the same and all things were made clear to the guest and that the Appellants representative arranged a conference call for the guest with Mr. Girish from Max, as at the same time Max Holidays was the only vendor available for Kailash Mansarovar Yatra and that Pulkit was Appellant's team leader, who took personal interest in the booking and made all efforts to provide good services and that the guest took his time and then made advance payment for the booking.
viii. It is further submitted by Appellant that there were 15 persons in the group, which increased to 22 and that once the new vendor was decided for the given group, emails were sent again to the guest with all the details 6 and terms and conditions showing inclusion and exclusion and that email was sent to Appellant by the new vendor Nidhi Tour and Travel as all formalities were completed and the Appellant sent duffle bags to the guest as an exception, as the same was requested for it before the departure date.
ix. Also all the latest passports were given to the vendor and old ones were kept in the Office of Appellant only and when the trip started, guest called Appellant for passports and the Appellants representative informed the guest that the latest passports would be given in Nepalgunj and remaining passports would be sent to respective address once they return and thereafter, all passports were returned to the respective persons.
x. Also the Appellants representatives responded proactively and whenever during the trip any member of group called Appellant regarding the arrangement, and resolved it after consulting the vendor.
xi. There were few complaints, as mentioned below:-
That Parikrama did not happen due to heavy snow fall and unsafe conditions. Due to unavailability of flights which is why some people reached early to next locations and some reached after a while. Shangri-La was committed to the guest, but due to unavailability in the hotel at that time, a different property was given to them. That all the aforesaid complaints were directly/indirectly related to bad weather conditions and all the things were explained to the guest at the given point of time and the guest was convinced that these were beyond control of the Appellant.7
xii. The English speaking Tibetan guide in Tibet side Nepali tour leader which was included as inclusions of Complainant in the package which was Ex-Kathmandu and was limited to the inclusions made in the Tour package and they clearly mentioned Airport to hotel return transfers in Kathmandu, Kathmandu city sightseeing including visit to Pashupatinath temple by private non AC bus and only transport in Tibet side by luxury air conditioned bus and therefore there was no discrepancy in providing the bus travel to the Respondents.
xiii. Further to the aforesaid, the inclusions of tour package clearly stated the responsibility of the Appellant which was necessary group permit for visiting Mount Kailash, Normal Tibet simple entry group visa to visit Kailash Manasarovar Nepal China border tax and all Nepalese and Tibetan Government taxes.
xiv. Also that, as per the terms and condition of the agent, the parties had agreed that Courts at Gurgaon will have the exclusive jurisdiction to try any dispute between them and that it shall not be out of place to mention that it is a settled principle of law that when two courts have concurrent jurisdiction, parties may by agreement oust the jurisdiction of one of the Courts and aforesaid terms & conditions were annexed in the Written Version of Opposite Party 1, and that every person transacting through the online platform www.adventurenation.com, is contractually bound by the terms of use of the website viz the Master User Agreement to be found on https://www.adventurenation.com/info/terms.8
xv. In furtherance to the aforesaid, in the instant case, the Respondents have used the online platform www.adventurenation.com , has become "User" and by virtue of having "accepted" the terms of the Master User Agreement, have in doing so agreed to this contract and that the said Master User agreement, is governing the contract by virtue of acceptance by Respondent and as well as by the provision of the Information Technology Act of 2000 and it shall not be out of place to mention that principle of law applies when two Courts have concurrent jurisdiction, parties may, by agreement, oust the jurisdiction of one of the Courts.
xvi. The Appellant further submit that the Respondents examined themselves and the Appellant examined their witness.
xvii. The Order dated 25/07/2019 passed by District Commission, North in Complaint No. 66/2018 wherein the complaint filed by the Respondent herein, was partly allowed and that the Appellant was directed to refund an amount of Rs. 91,875/- to each of the Respondent within 1 month from the date of Order failing which the same shall be then payable with interest at the ratio of 12% per annum from the date of the Order till its final payment and a further amount of Rs.1,00,000 was directed to be paid to Respondent within 1 month from the date of the Order failing which the same shall be payable with interest at the rate of 12% per annum from the date of the Order till its final payment and a further amount of Rs. 25,000/- to be paid as cost of litigation to each of the Respondent within 1 month from the date of the Order failing which the same shall be then payable with interest at rate of 12% per annum from the date of this Order till its final payment.9
xviii. Thus being aggrieved by the Order dated 25/07/2019, the Appellant have preferred the present appeal.
4. a. PER CONTRA The Respondents herein chose not to file their Written Arguments but instead to argue orally. During oral arguments preferred on 16/11/2022, the Counsel for the Respondents touched upon the facts are enlisted herein below that Mr. Sanat Raiturkar Complainant No 1 and Mr. Nilesh Amonkar complainant No. 2, in complaint Nos. 70 & 71 of 2018 respectively, who were given the task to coordinate and organize the trek and negotiate all matters concerning the trek and that Mr. Raiturkar was the main point of contact in the group and it appeared to the aforesaid that Respondent would be an appropriate agency for their trek after going through the website and reading the representations of Respondent. Also Mr. Raiturkar explained the requirements and expectations of the group to Mr. Sanjan Gulati in terms of quality of accommodation, travel arrangement, during the adventurous trip and the communication between the aforesaid had been placed on record. Also the Respondents had re- scheduled the tour 11/12 days and had sought their itinerary for " Kailash Manasaravor Helicopter Tour" and apart from the change of travel route, the balance expectations of the group in terms of travel and accommodation would remain the same as had been discussed , and this was conveyed by Mr Raiturkar to Mr. Gulati and by way of email dated 13th June 2018 , Mr. Gulati an employee of Respondent , sent a revised itinerary alongwith the details of the Tour and Trek package as stated in the said email and the costing per person was Rs.1,75,000/-
10b. In furtherance to the above, it had been specifically informed to Mr. Gulati that the group would be an exclusive and independent group to the exclusion of any other person(s) and ought to be handled as a separate and independent group, which Appellants by way of email dated 13th June 2018 indicated that they were in fact a "community dedicated to outdoor enthusiasts wanting to travel for adventure and nature". Additionally, the 18 Respondents paid an advance amount of Rs17,500/- per person on various dates from 21st June 2018 to 14th September 2018 and though the passports were sent to the Appellants in advance , they did not process the visas till date of departure i.e. 19th September 2018.
c. It is alleged by the Respondents that the dubious nature of the Appellants came to the surface after the Respondent had sent the part payment. And that the Respondents had received first payment voucher from one Ravi Ranjan on behalf of Appellant on 15th September 2018by way of email, just (4)days before the scheduled travel on 19th September2018and after going through the voucher , it was learnt by Respondents that contrary to the representations made to them , Mr Gulati had introduced one Mr. Shailesh Dessai, who according to Mr. Gulati was an expert, having led several treks around Mt. Kailash and would be a coordinator and would remain with the group until the end of the week and on researching the net, it was unearthed by the Respondents that Mr Shailesh Dessai was an independent tour operator having his own travel tour company in the name of M/S Nidhi Tours and Travels with its URL as www.kailashParikrama.com and was specializing in 11 pilgrimages. Thus the Respondents alleged that they were clearly misrepresented by Mr. Gulati, that Mr. Shailesh Dessai was part of the Agency.
d. The dejection that the Respondents were subject to didn't end there, they were further exposed to stress, anxiety, irradiation, trauma, hardship, mental agony, physical discomfort, sub standard, negligent and deficient services of the Appellant.
e. In furtherance, to the above elucidation of what the Respondents were subjected to, the facts were made abundantly clear that as far as organizing the trek to Mt. Kailash was concerned , the Agency knew from the very beginning that it did not have the ability or expertise to organize the trek around Mt. Kailash.
f. It was never intended by the Agency to organsie the trek on its own. There was neither the logistical support nor necessary resources and infrastructure by the agency to organize such a trek nor did it have any control over the travel arrangements. Also, the Agency did not make any arrangements in any five-star accommodation on double occupancy basis as was promised and agreed to. The Agency never intended to treat the group as an exclusive, separate and independent group to the exclusion of other group(s) and or/person(s). The Agency failed to provide the services of the expert, Mr. Dessai, to lead the trek and ensure its completion as was promised and agreed to. The Agency treated this trek as a pilgrimage rather than a trek for fitness enthusiasts, thereby defeating the very purpose of the Respondents which was to undertake and complete the trek around Mt Kailash.
12g. Further the Agency had intentionally misrepresented the fact that it had the necessary ability, expertise and resources to organize the trek as per the requirement of the group, in spite of being aware of the facts from the very beginning and therefore the conduct exhibited nothing short of fraud and unsuspecting persons who paid a substantial premium to Agency for the promised services which was otherwise available at a fraction of the cost paid through other tour operators.
5. In view of arguments advanced by Counsels of both parties alongwith the evidence placed on record and after perusing the detailed Order passed by the District Commission, North dated 25/07/2019, which has highlighted without a doubt the harassment, mental tension, agony, inconvenience and disappointment caused to the Respondents on the adventure tour has exhibited the malafide conduct of the Respondents.
6. Further the Order passed by the District Commission, North, was appropriate in demonstrating and highlighting the deficiency on part of the Appellant.
7. For the sake of brevity we confirm the paragraphs from 28 to 79 & 83 of the Impugned Order passed by the District Commission North, in 58/2018, 59/2018, 60/2018, 61/2018, 62/2018, 63/2018, dated 25/07/2019.
8. We endorse the detailed Order passed by the District Commission, North dated 25/07/2023 and in our considered opinion we pass the following Judgment:
13JUDGMENT
1. The Appeal is dismissed and the Order of the District Commission, North is modified as under:
a. The Appellant is directed to refund an amount of Rs.91,875/- to each of the Respondents/Complainants in all above Complaints- 58/2018, 59/2018, 60/2018, 61/2018, 62/2018, 63/2018 within 30 days from receipt of this Judgment failing which the same shall be then payable with interest at the rate of 8% per annum from the date of this Judgment till its final payment.
b. The Appellant is further directed to pay Rs.1,00,000/- to each of the Respondents/Complainants in all the above complaints-58/2018, 59/2018, 60/2018, 61/2018, 62/2018, 63/2018 within one month from the receipt of this Judgment failing which the same shall be then payable with interest at the rate of 8% per annum from the date of Judgment till its final payment.
c. The Appellant is additionally directed to pay Rs.25,000/- as costs of litigation to each of the Respondents in all the above complaints-58/2018, 59/2018, 60/2018, 61/2018, 62/2018, 63/2018 within one month from the date of receipt of this Judgment, failing which the same shall be then payable with interest at the rate of 8% per annum from the date of this Judgment till its final payment.14
d. Judgment pronounced on 28/02/2023, ready on 21/04/2023.
Pronounced in open court.
Proceedings in the matter stands closed.
[Shri Dhananjay A. Jog] President [Adv. Ms. Rachna A.M. Gonsalves] Member VS 15