Delhi

East Delhi

CC/216/2019

faizan ali khan - Complainant(s)

Versus

ITH DESTINATION - Opp.Party(s)

20 Mar 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. No.216/2019

 

	FAIZAN ALI KHAN S/O LATE ANZAR ALI KHAN, R/ 23G, SECTOR-7, JASOLA VIHAR, NEW DELHI	….Complainant
Versus
	ITH DESTINATION PVT. LTD.      HEAD OFFICE C-18, ACHARAYA NIKETAN, MAYUR VIHAR, PHASE-1, DELHI – 110091   REGISTERED OFFICE D-16, RANI GARDEN, EXTENSION, GANDHI NAGAR, S.O., EAST DELHI - 110031	……OP

 

Date of Institution	:	10.07.2019
Judgment Reserved on	:	13.03.2023
Judgment Passed on	:	20.03.2023

               

QUORUM:

 

Sh. S.S. Malhotra	(President)
Ms. Rashmi Bansal	(Member)
Sh. Ravi Kumar	(Member)

Order By:

Ms. Rashmi Bansal

(Member)

 

 

 

JUDGMENT

By this Judgment, the Commission would dispose off the complaint of the Complainant against OP in not booking the Air Ticket of the Complainant despite having paid Rs.270000/- and then by not returning the said amount. 

Before coming to the facts it is necessary to mention that Initially the complaint was filed against OP1, the travelling company through its director OP2 and OP3 but later, complainant has deleted OP2 and OP3 and restricted his grievances against OP1 only.

1. It is the case of the complainant that he has been given an offer by OP for a tour package for Turkey of 10 nights/11 days for two adults and two kids from 13.06.2019 to 23.06.2019 for Rs.5,12,000/-. The payment terms of the said package was as under:
   1. Advance to be paid now: 100% of the flight fares and 20% of the land package,
   2. First installment: 60% of the land package at the time of receiving the confirmation vouchers,
   3. Final payment: 20% of the land package, one week prior before departing from India.
2. Complainant submits that he has opted for Turkish airlines non-stop journey which was included in the tour package of OP and the same was accepted by OP. The complainant then paid Rs.2,70,000/- as an advance against 100% of the flight fares and 20% of the land package through RTGS on 16.04.2019 against invoice vide email dated 16.04.2019 and also sent required documents to the OP. Complainant submits that even after receipt of the payment made by the complainant the OP did not book the air tickets for four days and on 20.04.2019, at 6:54 PM, the OP through its email has demanded Rs. 2,21,598/- more from the agreed amount from the complainant stating that the fare of the flight has been increased, however, this amount was subsequently reduced to Rs.1,39,598/- as per another email of the OP after some time. The complainant found the demand excessively high, therefore, through email dated 20.04.2019, at 8:50 PM and 10:03 PM, he informed the OP to cancel the booking and refund full amount back.  Complainant alleged that during the period of four days, the OP kept money in its hand and did not book the tickets as promised or used the said amount of the complainant, despite complainant’s several reminders. Complainant submits that it was deficiency of service on the part of OP for which the complainant is not responsible to pay extra money for the booking of the flight ticket. The OP failed to pay back the amount received from the complainant till date despite his several demands to the OP. 
3. Complainant further submits that non-booking of the flight tickets and cancellation of his program has emotionally affected not only the complainant but also his family members and also caused financial, physical and mental harassment. The complainant had made several communications through email and telephonic communication to the OP and requested to return back the amount of Rs. 2,70,000/- paid by the complainant but OP denied the payment. A legal notice dated 31.05.2019 was sent to OP but the same was also not replied by OP. Therefore, the complainant prays for return of the amount of Rs. 2,70,000/- with interest at the rate 18% per annum from the date of receipt of the payment, for payment of Rs.1,50,000/-  to the complainant against the financial, physical and mental agony suffered by him due to negligent act of the OP and an amount of Rs.1,00,000/- towards litigation expenses and to pay a sum of Rs.1,00,00/-  to the complainant against deficiency in service is committed by OP.
4. OP has filed its reply denying the allegations of the complainant stating that the offer of OP has been accepted and acted upon by the complainant and therefore the complainant is bound by the terms and conditions of the agreement/contract. OP submits that it was ready and willing to provide best services as per its ability, but it was the complainant, who was not ready to pay the increased rate of flight fare and has himself cancelled the tour package as was offered by OP, which resulted into forfeiture of the amount of the flight fair, as per terms and conditions of the agreement/contract signed by the complainant and now in order to extort money from the OP and for unlawful gain to himself, has filed the present complaint, which is liable to be dismissed.
5. OP denied that after signing the contract agreement, the concerned airline has increased the flight fare and when the OP has demanded the increased amount of the flight fares from the complainant, the complainant had refused to pay the increased amount of the flight fare and cancelled the tour and thus has himself breached the terms and conditions of the agreement/contract entered between the parties, and is not liable to pay even a single penny to the complainant.
6. OP admitted demand of sum of Rs. 1,39,598/-  for the same flight and  had also given an option to the complainant for alternative flight for which complainant had to pay Rs.38,738/- only but the complainant had refused to pay any increased flight fare and now demanding the forfeited amount of flight fare from the OP on false, frivolous, baseless and concocted facts. The OP further submitted that since the complainant himself has breached the terms and conditions of the contract and cancelled the trip himself, therefore, the complainant is not entitled to any amount of any kind from OP. It is further submitted that it has not kept money in its hand or took it to its own use but since the complainant has failed to pay the increased flight fare, therefore, OP could not book the tickets of the complainant.  The OP denied any deficiency of service on its part and also denied the receiving of any legal notice from the complainant. OP submits that the complaint is devoid of any cause of action and the same is liable to be dismissed with heavy cost.
7. The complainant has filed the rejoinder reiterating his version taken in complaint and refuted the allegations of the OP. Both the parties have filed their respective evidence and written arguments.
8.  The complainant has filed following documents in support of his case:
   1. The printout of brochure of tour package supplied by the OP, Ex. CW1/2, (colly);
   2. The copy of the invoice dated 16.04.2019, Ex. CW1/3;
   3. The copy of email dated 16.04.2019, Ex. CW1/4;
   4. The bank statement showing the payment made by the complainant through RTGS, Ex. CW1/5;
   5. The email dated 20.04.2019, Ex. CW1/6;
   6. The copy of the legal notice dated 31.05.2019, Ex. CW1/7, along with tracking report, Ex. CW1/8;
   7. The certificate U/s 65B of Indian Evidence Act, Ex. CW1/9
9. This commission has perused the documents filed on record by both the parties.
10. This is beyond comprehension that why none of the parties has filed the agreement/contract to show the terms and conditions. In the absence of which this commission has no opportunity to analyze the terms and conditions and appreciate the arguments of the parties.  The amount has been forfeited by the OP as per agreement, as alleged, and if the complainant has not filed it, OP at least should have filed it to prove its base/contention i.e. to say that under particular clause the OP has right to forfeit the amount and forfeited it but it has not been filed.  The onus to prove a fact lies upon the person who avers that fact.  Here the OP is contending that he has forfeited the amount as per agreement but he has not filed that agreement as such OP has failed to prove its contention. 
11. The OP in its written submission has reproduced a clause stating that it was mutually agreed between the complainant and the OP that:

• flight rates and availability will be depending at the time of booking and
• according to cancellation policy, there shall be no refund for flight.

The above stated clause does not show that how it is a part of agreement entered in between both the parties and also not showing any details with respect to the dates, signature and execution place, therefore, the same cannot be relied as a part of the contract in between the parties. Even otherwise, the clause A states that flight rate and availability will be depending at the time of booking and the facts of the case shows that for four days money was lying with OP which was paid on 16.04.2019 and till 20.04.2019, the tickets were not booked.  It is also not stated as to on which date the rate of Tickets were increased and by whom.   Therefore, this clause is not supporting the OP. 

12. Secondly, the Commission is conscious of the fact that the terms and conditions of the agreement, if any, entered between the parties would be in force as per the circumstances on 16.04.2019 (although notified). The said circumstances were changed as soon as there is increase in flight fare and that resulted into lapse of the agreement / contract. Now any new change in the agreement / contract would amount to novation of the contract, which implies a offer from the OP, and till this fresh offer is accepted by the complainant, there would be no valid contract between the two. Since there is no acceptance by the complainant to the increased flight fare, the same is not binding upon the complainant as there is no contract between the two. The terms and conditions of the alleged agreement dated 16.04.2019 have become infructous as in compliance of that the complainant has paid the required amount of Rs. 2,70,000/- to the OP and it was OP’s turn to fulfill its side of obligation, in which OP failed.  It is not the contention of the OP1 that he booked the air ticket or the hotels etc. and has paid certain amount to those entities.    Therefore, OP is liable for breach of the contract and liable to return the money to the complainant and also compensate him for the mental harassment agony, torture to the complainant and his family, as the failure on the part of the OP has caused emotional loss to the complainant and his family, and ruined their vacation plan.
13. Therefore, this Commission is of the considered view that the OP is directed to return the amount of Rs.2,70,000/- to the complainant with interest, @ 9% p.a. from the date of payment till realization along with compensation of Rs.30,000/-  for suffering due to negligent and deficient services of OP along with litigation cost of Rs.15,000/-. The complaint is disposed of accordingly.
14. The file may be consigned to record room after providing the copy of the order to the parties as per rules of CPA2019 and uploading the orders at website.
15. The order contains – 09 pages, each beers our signature.

Announced on 20.03.2023

Delhi