1

TABLE OF CONTENTS

TABLE OF CONTENTS 2

LIST OF ABBREVIATIONS 3

INDEX OF AUTHORITIES 4

STATEMENT OF JURISDICTION 5

STATEMENT OF FACTS 7

ISSUES FOR CONSIDERATION 9

SUMMARY OF ARGUMENTS 10

ARGUMENTS ADVANCED 12

ISSUE 2 - Whether the denial on part of the company to refund the advance amount 14
paid by the complainant falls under deficiency of services and cheating?

ISSUE 3 - Whether the failure on the part of the company to procure a visa amounts to 20
negligence of services?

ISSUE 4-Whether the damage to a passport amounts to damage to government 23

property?

ISSUE 5 -Whether the increase in tour cost by the respondent company amounts to 24
restrictive trade practices?

PRAYER 26

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 LIST OF ABBREVIATIONS

Anr. Another

CPA The Consumer Protection Act

Ed. Edition

Hon’ble Honourable

i.e. Id est(meaning that is)

ITR Income Tax Return

MANU Manupatra

NCDRC National Consumer Disputes Redressal Forum

Ors. Others

SC Supreme Court

SCDRC State Consumer Disputes Redressal Forum

u/s Under section

v. Versus

sec. Section

exp. Explanation

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 INDEX OF AUTHORITIES

Cosmopolitan Hospitals and Ors. v. Vasantha P. Nair and Ors. (21.04.1992 - NCDRC) :
MANU/CF/0030/

Cox & Kings Ltd. v. Kalyan Kumar Biswas & Anr. on 31 October, 2017.

Gaurav Khurana v. Thomas Cook (India) Limited on 22 September, 2011.

Ghaziabad Development Authority v. Balbir Singh (03.12.2004 - SC) :

MANU/SC/1027/2004.

Laxmi Engineering Works v. P.S.G. Industrial Institute (04.04.1995 - SC) :

MANU/SC/0271/1995.

Make My Trip v. Soumitra Chaudhuri on 24 January, 2017.

Make My Trip (India) Pvt. Ltd. v. Vijendra Mathur (27.08.2020 - NCDRC) :

MANU/CF/0672/.

National Seeds Corpn. Ltd. v. PV Krishna Reddy (18.11.2008 - NCDRC) :

MANU/CF/0428/2008.

Ravneet Singh Bagga v. K.L.M. Royal Dutch Airlines & others (2000) I SCC 66.

Shrikant G. Mantri v. Punjab National Bank (22.02.2022 - SC): MANU/SC/0225/2022.

Books referred
1.Avtar singh, Consumer Protection Law and Practice, 5th edition 2015
2.Ratanlal & Dhirajlal, Law of Torts, 24th edition 2002
3.Batuk Lal, the law of evidence, 23rd edition 2020

Statues Referred:
1. The Consumer Protection Act, 2019 (Act 35 of 2019)
2. The Indian Evidence Act, 1872 (Act 18 of 1872)
3. The Passports Act, 1967 (Act 15 of 1967)

Web Sources Referred:

1. http://www.manupatra.co.in/AdvancedLegalSearch.aspx
2. http://www.scconline.com
3. http://www.findlaw.com
4. http://www.judis.nic.in
5.https://www.schengenvisainfo.com/schengen-visa-application-requirements/means-subsiste
nce/ .

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 STATEMENT OF JURISDICTION

The Hon’ble commission has jurisdiction to try the instant matter under Section 34 and 35 of
The Consumer Protection Act, 2019

Section 34: Jurisdiction of District Commission:

(1) Subject to the other provisions of this Act, the District Commission shall have jurisdiction
to entertain complaints where the value of the goods or services paid as consideration does
not exceed one crore rupees:
Provided that where the Central Government deems it necessary so to do, it may prescribe
such other value, as it deems fit.

(2) A complaint shall be instituted in a District Commission within the local limits of whose
jurisdiction, —
(a) the opposite party or each of the opposite parties, where there are more than one, at the
time of the institution of the complaint, ordinarily resides or carries on business or has a
branch office or personally works for gain; or
(b) any of the opposite parties, where there are more than one, at the time of the institution of
the complaint, actually and voluntarily resides, or carries on business or has a branch office,
or personally works for gain, provided that in such case the permission of the District
Commission is given; or
(c) the cause of action, wholly or in part, arises; or
(d) the complainant resides or personally works for gain.

(3) The District Commission shall ordinarily function in the district headquarters and may
perform its functions at such other place in the district, as the State Government may, in
consultation with the State Commission, notify in the Official Gazette from time to time.”

“35. Manner in which complaint shall be made:

(1) A complaint, in relation to any goods sold or delivered or agreed to be sold or delivered
or any service provided or agreed to be provided, may be filed with a District Commission by
—

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(a) the consumer,—
(i) to whom such goods are sold or delivered or agreed to be sold or delivered or such
service is provided or agreed to be provided; or
(ii) who alleges unfair trade practice in respect of such goods or service;
(b) any recognised consumer association, whether the consumer to whom such goods are
sold or delivered or agreed to be sold or delivered or such service is provided or agreed to
be provided, or who alleges unfair trade practice in respect of such goods or service, is a
member of such association or not;
(c) one or more consumers, where there are numerous consumers having the same interest,
with the permission of the District Commission, on behalf of, or for the benefit of, all
consumers so interested; or
(d) the Central Government, the Central Authority or the State Government, as the case may
be: Provided that the complaint under this sub-section may be filed electronically in such
manner as may be prescribed.

Explanation.—For the purposes of this sub-section, "recognised consumer association"

means any voluntary consumer association registered under any law for the time being in
force.
(2) Every complaint filed under sub-section (1) shall be accompanied with such fee and
payable in such manner, including electronic form, as may be prescribed.”

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 STATEMENT OF FACTS

1. Mr. X wanted to travel to Europe with his family (6 adults, 1 child) and approached
the respondent company believing it was the industry leader. Complainant placed an
inquiry on the respondent's website, and its executives, Hanumant Singh, showed him
numerous packages. Complainant chose the 6-night, 7-day 'Europe for all' plan.

2. The complainant was given an itinerary and brochure with cost, procurement of visa,
visa fee, lodging, etc.. The initial price for the tour was billed Rs. 47500/- + 725 Euro
for adults and Rs. 56500/- + 400 Euro for children under 12 years old. In an aim to
harass the complainant, the respondents on 4th February, 2022, with the amended trip
fee per person: Rs. 51,000 + 725 Euro.

3. The complainant paid Rs. 2,80,000 to the respondent after receiving the final trip
quote. In the receipts, the complainant’s name was incorrectly stated as 'Surendra
Singh,' which was gross negligence. After paying the booking amount, the
complainant was asked to produce several documents including passport, bank
statements, salary slip, three years ITR, etc. for visa and other purposes, which were
duly delivered on 7th March, 2022 except an ITR for the year previous to the tour.
According to the company's sales executive, the documents given were initially fine.

4. On 11th May, 2022, the complainant was informed that his son's passport was
damaged. The complainant immediately protested via mail, stating that all passports
were submitted in perfect condition two months prior, but that the issue of a damaged
passport was addressed at such a late stage, and that the passport was damaged due to
the negligent act of the respondent company, and that if the complainant was unable
to obtain a visa, the respondent company would be liable. As a result of his son's
damaged passport, the complainant had to apply for a new one. Upon receipt, the new
passport was immediately given to the respondent company, which notified the
complainant via mail on 27th May, 2022 that the passport has been collected and will
be submitted to the Embassy for visa purposes.

5. The tour was scheduled to begin on 18th June, 2022, but no clear information was
provided until 16th June, 2022, despite repeated requests. The complainant's brother-
in-law, Mr. Abhiraj Singh, emailed the respondent company on 16th June, 2022,

7
 highlighting all the company's deficiencies, including the fact that the visa application
was filed on 5th June, 2022, late and with incoherent information.

6. In addition, it was said that the tour members were en route from Jodhpur to Jaipur.
On 17 June, 2022, the complaint inquired about the status of the visa and indicated his
willingness to submit the remaining money on visa receipt. In response, it was
suggested that the complainant make the remaining cash and collect the passports and
other paperwork, including visa, in Delhi. Later that evening, the respondent notified
the complainant via email that the complainant's visa application had been denied.

7. The news of visa refusal shocked the complainant and his family, who had already
travelled to Jaipur from Jodhpur and Udaipur for their tour. The complaint issued a
notification claiming damages through email on 19th June, 2022, but the respondent
denied it on 22nd June, 2022, stating that acquiring a visa was not in its control.
However, the respondent acknowledged that the visa application was submitted late.

8. The complainant claimed Rs. 2,80,000/- from the respondent company as the booking
payment with 12% annual interest. Along with this, the complainant claimed Rs.
10,00,000/- for the mental agony and physical harassment of senior citizens
accompanying the complainant, Rs. 3,00,000/- for the loss of excitement and
emotions of two children ages 7 and 14, who were excited about the grand tour of
Europe, and Rs. 5,00,000/- for business loss (the author had planned to meet the
publisher for sale of his book in Germany).

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 ISSUES FOR CONSIDERATION

1. Whether the tour of the complainant falls under ‘services availed for commercial
purpose’?

2. Whether the denial on part of the company to refund the advance amount paid by the
complainant falls under deficiency of services and cheating?

3. Whether the failure on the part of the company to procure a visa amounts to negligence
of services?

4. Whether the damage to a passport amounts to damage to government property?

5. Whether the increase in tour cost by the respondent company amounts to restrictive trade
practices?

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 SUMMARY OF ARGUMENTS

1. Whether the tour of the complainant falls under ‘services availed for commercial
purpose’?

It is respectfully submitted before the hon'ble commission that the explanation 1 of section
2(7) explains what does not qualify as a commercial purpose, and the same was explained in
the Laxmi Engineering case. The said explanation of section 2(7) can be broken down into
three parts: this, which must be met to fall outside the definition of a commercial purpose;
and accordingly, the complainant satisfies all the conditions, as the services were availed and
had to be used by the complainant and his family, and the tour was also for the purpose of
earning a living, as the complainant, a self-employed author, had arranged a meeting with a
publisher in Germany

2. Whether the denial on part of the company to refund the advance amount paid by
the complainant falls under deficiency of services and cheating?

It is respectfully submitted before the hon'ble commission that the refusal to pay the refund
amounts to deficiency of service as the services were not availed by the complainant . Since
the complaint could not avail the service due to negligence of the respondent, so the amount
paid in return of the services that were to be availed must be refunded because it is
unconscionable to keep the service fees received in advance where the consumer has not
availed the service.

3. Whether the failure on the part of the company to procure a visa amounts to
negligence of services?

It is humbly submitted before the hon’ble commission that it was negligence on part of the
respondent that led to failure in procurement of visa as they were negligent about filling the
visa application on time.

4. Whether the damage to a passport amounts to damage to government property?

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It is humbly submitted to the Hon’ble Commission that the damage of the passport amounts
to damage to government property according to the sec. 17 of The Passports Act, 1967. Also
it is to be noted that initially all the documents on submission were found satisfactory and the
issue of damage was intimated to the complainant around 2 months later. This clearly shows
that the damage was done at the hands of the respondent.

5. Whether the increase in tour cost by the respondent company amounts to restrictive
trade practices?

It is humbly submitted before Hon’ble commission that the rise in revised cost was a
restrictive trade practice because the respondent, later showing his malafide intention to
harass the complainant had raised the price without giving any clear reason to the
complainant.

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 ARGUMENTS ADVANCED

1. Whether the tour of the complainant falls under ‘services availed for commercial
purpose’?

It is humbly presented before the hon’ble commission that the tour of the complainant does
not fall under the ‘service availed for commercial purpose’ as per the explanation (a) of
section 2(7) of The Consumer protection Act, 2019 that clearly states what do not qualify as a
commercial purpose. The said provision states that “commercial purpose” does not include
use by a person of goods and services bought and used by him exclusively for the purpose of
earning his livelihood, by means of self-employment.

The term ‘consumer’ has been defined under section 2(7) of The Consumer Protection Act,
2019, as "consumer" means any person who—
(i) buys any goods for a consideration which has been paid or promised or partly paid and
partly promised, or under any system of deferred payment and includes any user of such
goods other than the person who buys such goods for consideration paid or promised or
partly paid or partly promised, or under any system of deferred payment, when such use is
made with the approval of such person, but does not include a person who obtains such
goods for resale or for any commercial purpose; or
(ii) hires or avails of any service for a consideration which has been paid or promised or
partly paid and partly promised, or under any system of deferred payment and includes any
beneficiary of such service other than the person who hires or avails of the services for
consideration paid or promised, or partly paid and partly promised, or under any system of
deferred payment, when such services are availed of with the approval of the first mentioned
person, but does not include a person who avails of such service for any commercial
purpose.
Explanation.—for the purposes of this clause,—
(a) the expression "commercial purpose” does not include use by a person of goods bought
and used by him exclusively for the purpose of earning his livelihood, by means of self-
employment;
(b) the expressions ”buys any goods” and ”hires or avails any services" includes offline or
online transactions through electronic means or by teleshopping or direct selling or multi-
level marketing.

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The Hon’ble Supreme Court while interpreting the explanation to Section 2(7) (in section
2(1)(d) as per repealed Act of 1986) stated that:
- “…explanation excludes certain purposes from the purview of the expression "commercial
purpose"- a case of exception to an exception.
- The question before the Hon’ble Supreme Court was the interpretation of the term
“commercial purpose” under Section 2(1)(d) of the Act.
- As the Hon’ble Supreme Court has laid down in the judgment, if the purpose of the
purchase/hire of the goods or services is for the sole purpose of earning a livelihood by
way of self-employment, then the person would fall within the meaning of a “consumer”
even though the said activity would be a commercial activity.
- The several words employed in the explanation, viz., "uses them by himself', "exclusively
for the purpose of earning his livelihood" and "by means of self-employment" make the
intention of the consumer abundantly clear, that the goods bought must be used by the
buyer himself, by employing himself for earning his livelihood…..”1

So, the aforementioned clause is dependent on the fulfillment of three requirements about
what does not fall within commercial purpose, which are as follows:

(a) Goods or services are to be used by the person.

As required by the first requirement, the complaint must utilize the respondent's services.
When the complainant originally approached the respondent company stating a desire to
travel to Europe with his family, only then did he divulge his intention, as is plainly stated in
the moot statement. The fact that the advance was also paid in this respect makes it even
more apparent that the plaintiff intended to utilize the services in question.

(b) Exclusively for the purpose of earning livelihood.

The complainant's travel was to make a livelihood since the complainant, an author, had
scheduled a meeting with a publisher in Germany to discuss the sale of his book.

So,this was also the matter of earning livelihood for the complainant, an author.
As observed by the Hon’ble Supreme Court that:
“...When a person avails a service for a commercial purpose, to come within the meaning of
'consumer' as defined in the said Act, he will have to establish that the services were availed

1 Laxmi Engineering Works v. P.S.G. Industrial Institute (04.04.1995 - SC) : MANU/SC/0271/1995.

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exclusively for the purposes of earning his livelihood by means of self-employment. There
cannot be any straitjacket formula and such a question will have to be decided in the facts of
each case, depending upon the evidence placed on record…”2

(c) By way of self-employment.

The complainant, as aforementioned, was an author, which makes him self-employed. The
hon’ble NCDRC held that,“....The word 'self-employment' is not defined. Therefore, it is a
matter of evidence….also held that 'He' includes the members of his family. The burden is on
the respondent to prove this….” 3

The complaint satisfies all the above mentioned elements, excluding him from the meaning of
commercial purpose and classifying him as a ‘consumer’ under section 2(7) of the Consumer
Protection Act of 2019.

In the light of the decision cited above and arguments advanced, it can clearly be seen that the
present case of the complainant does not fall within the definition of commercial purpose.
Therefore, the complainant is entitled to invoke jurisdiction of the hon’ble district
commission under section 34 and 35 of The Consumer Protection Act, 2019. Since, the
complainant is aggrieved by the action of the respondent company, which has failed to
provide sufficient and satisfactory services. The respondent company has given deficiency in
service to the present complainant and thereby the present complainant has suffered a huge
loss and mental agony.

2. Whether the denial on part of the company to refund the advance amount paid by
the complainant falls under deficiency of services and cheating?

It is humbly presented before the hon’ble commission that the denial on the part of the
company to refund the advance amount paid by the complainant falls under the deficiency of
service and cheating and therefore the respondent company is entitled to reimburse the
damages incurred by the complainant and penalty must be imposed upon it for such actions.

2 Shrikant G. Mantri v. Punjab National Bank (22.02.2022 - SC): MANU/SC/0225/2022.

3 National Seeds Corpn. Ltd. v. PV Krishna Reddy (18.11.2008 - NCDRC) : MANU/CF/0428/2008.

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The term ‘deficiency’ has been defined under section 2(11) and ‘service’ under section 2(42)
of the Consumer Protection Act, 2019. It is as follows:
“Section 2(11) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the
quality, nature and manner of performance which is required to be maintained by or under
any law for the time being in force or has been undertaken to be performed by a person in
pursuance of a contract or otherwise in relation to any service and includes—
(i) any act of negligence or omission or commission by such person which causes loss
or injury to the consumer; and
(ii) deliberate withholding of relevant information by such person to the consumer”

“section 2(42) "service" means service of any description which is made available to
potential users and includes, but not limited to, the provision of facilities in connection with
banking, financing, insurance, transport, processing, supply of electrical or other energy,
telecom, boarding or lodging or both, housing construction, entertainment, amusement or the
purveying of news or other information, but does not include the rendering of any service
free of charge or under a contract of personal service”

In view of the definition of "deficiency" in Section 2(11) of the Consumer Protection Act,
1986, the hon’ble Supreme court observed that “...deficiency in service cannot be alleged
without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and
manner of performance which is required to be performed by a person in relation to any
service clearly shows that the appellant had committed deficiency in service and even
provided inadequate and substandard services as were promised, due to which the
respondents/complainants had to suffer grave harassment, trauma alongwith financial
losses.…..”4

In the present case, the deficiency of the respondent company are as follows -

i) Deficiency regarding increase in price

As per the facts of the present case, the respondent's malicious intent was shown for the first
time on February 4, 2022, when they emailed the complainant about the increased and
revised price. The hon’ble Supreme Court in the abovementioned case also held that

4 Cox & Kings Ltd. v. Kalyan Kumar Biswas & Anr. on 31 October, 2017.

15
“Inefficiency, lack of due care, or omission and the like may be the factors to ascertain the
deficiency in rendering the service." 5

ii) Negligence in stating the name of the complainant

In the present case, after making the advance payment of Rs. 2,80,000/- to the respondent
company, the receipts received in lieu of the payment was wrongly stated as ‘Surendra Singh’
showing gross negligence on the part of respondent company.

iii) Deficient and inadequate effort and faulty manner in visa application

The respondent company after receiving the advance amount from the complainant asked the
complainant to provide certain documents for visa and other purposes. The complainant duly
provided the same on 7th March, 2022. Respondent company’s sales executive declared the
documents submitted to be satisfactory.

On 11 May, 2022, the respondent company notified the complainant over the phone that
Master Ranvijay Singh, son of complainant, passport was damaged. The complainant
immediately protested via mail dated 11 May, 2022, stating that it had submitted all passports
in perfect condition two months earlier, but the issue of a damaged passport was addressed so
late, and that the passport was damaged due to the respondent company's negligence, and if
the complainant failed to receive a visa, the respondent company would be liable.

After receiving the passport on 27th May, 2022, the respondent company through mail
informed that passport has been collected and the same is in process of being submitted in
Embassy for Visa purpose. Due to respondent’s negligence and inadequate effort the visa
application was filed at a belated stage on 5th June, 2022 with incomplete documents as
stated by Mr. Abhiraj Singh brother-in-law of the complainant in the mail.

the same was observed by the Chattisgarh SCDRC as:

“....It was held in the mentioned case that as the whole tour package was bought for,
responsibility for submission of visa application along with all the documents was with the
respondent and the tour package was obviously subject to respondent arranging the visa for
the complainants. Had the Embassy been approached independently by the complainants, the

5 Ghaziabad Development Authority v. Balbir Singh (03.12.2004 - SC) : MANU/SC/1027/2004.

16
complainants could have been responsible for obtaining the visa. However, the respondent
collected all the papers and the application form from the complainants and deposited them
with the Embassy.
The respondent did not pursue the visa application properly and did not inform the
complainants sufficiently in time so that the complainants could have made their own efforts
to get the visa. The basic point emphasized by the complainants was that when the
complainants have not taken the tour, the respondent company is liable to refund the
payments made by the complainants.
The fora have allowed refund of the paid amount alongwith interest….” 6

Likewise, in the present case, the respondent was responsible for securing the visa as they
approached the embassy on the complainant’s behalf.

It is also pertinent to mention to the hon’ble commission that the reasons for refusal of visa as
stated in Swiss Embassy: Reasons for Visa refusal 7, that there was no proof of ‘sufficient
means of subsistence’.

Where in case the hon’ble state commission held that “...since a marriage certificate was a
necessary document, if the same was not being provided, the respondent should not have
forwarded the Visa application to the Embassy and should not have put the complainants in
a financial disadvantageous position to spend money on the application, which was not likely
to succeed. The respondent could write to the complainant No.1 or his brother in this respect
that they would not be forwarding the Visa application till marriage certificate was given to
them. The respondent could in the alternative ask the complainants to obtain the Visa
themselves and get out of this controversy, but they did not do so. They rather forwarded
incomplete applications to the Embassy. All these grounds have now been coined by the
respondent to digest the amount obtained from the complainants. It was, therefore, sheer
negligence on the part of the respondent which amounts to deficiency in service that they sent
an incomplete application and did not obtain complete documents from the complainants
before forwarding his application for Visa to the Embassy….”8

6 Make My Trip v. Soumitra Chaudhuri on 24 January, 2017.

7 Thomas Cook (India) Limited and Ors. v. Rajesh Datta and Ors. (25.03.2019 - SCDRC Chandigarh) :
MANU/SF/0003/2019.

8 Gaurav Khurana v. Thomas Cook (India ) Limited on 22 September, 2011.

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The word ‘sufficient means of subsistence’ means “an accepted document to evidence that
you as an applicant seeking to enter a Schengen Country have the needed financial ability to
travel and reside abroad in the specific country of the Schengen Area, complying with the
living standard of that Schengen hosting country” proving as the respondent’s filed the visa
application with incomplete documents.

Regarding the existing situation, it can be said that the ITR is a necessary document for visa
applications. As a leader in the travel business, the respondent was completely aware that in
order to procure a Swiss visa, it was required to obtain the ITR from the complainants and
attach it to the Visa application. Since the respondent had ample opportunity to get these
papers from the complainant but failed to do so and submitted an incomplete document, this
demonstrates their negligence in serving and constitutes a service defect.

It is humble submitted to the hon’ble commission that in the annexure 9Another reason for
refusal of visa application was that it was not clear whether the complainant intended to leave
the territory before the visa expiration. It was the respondent’s responsibility to submit all the
required documents to the embassy and make the embassy clear about the duration of the
tour, as the itinerary was decided at the initial stage of the planning only.

iv) Deliberately withheld relevant information

Keeping in the view point (ii) of section 2(11) that defines deficiency, states that “any
deliberate withholding of relevant information by such person to the consumer”

Respondent clearly shows malafide intentions when he suggested the complainant to make
the balance payment when the complainant showed his willingness to make the rest of the
payment and instructed him to collect all the documents and visa from Delhi, when the visa
application was not accepted. This was done with an intention to forfeit the whole amount to
be paid by the complainants.

v) Refusal to pay refund the advance amount

The complainant had paid the advance amount of Rs 2,80,000/- after the respondent had
revised the cost of the tour. Later, on 19th June 2022 the complainant through mail claimed
for damages incurred, but they were refused by the respondent in an unfriendly manner,
which shows that the respondent clearly wanted to avoid addressing the issue because it was

9 Make My Trip (India) Pvt. Ltd. v. Vijendra Mathur (27.08.2020 - NCDRC) : MANU/CF/0672/.

18
evident from the above-mentioned deficiencies and negligent acts of the respondent that it
was respondent’s fault. The respondent even refused to pay the refund again when the
complainant had given an interview on a consumer grievance program, which shows that he
was severely aggrieved by the respondent’s unacceptable behavior as he was ready to take his
issue in public domain fearlessly.

These aforementioned instances make it evident that the acts of the respondent shows that his
actions were deficient in nature and as per section 85 of the Consumer Protection Act, 2019
the service provider is liable under product liability action, because their services were
imperfect and inadequate, also respondent was negligent in applying the visa and checking
the document.

The hon’ble supreme court in a case held that “...It was for such conduct and acts of service
provider that the Supreme Court has called upon the District Forums and Commissions
established under the Consumer Protection Act to award adequate compensation to the
consumers for the sufferings suffered at the hands of the service provider to vindicate the
strength of law. The word compensation has a very wide connotation. It may constitute
actual loss or expected loss and may extend to compensation for physical, mental or even
emotional suffering, insult or injury or loss. The provisions of the Consumer Protection Act
enable a consumer to claim and empower the Commission to redress any injustice done. The
Commission or the Forum is entitled to award not only value of goods or services but also to
compensate a consumer for injustice suffered by him. The Commission/ Forum must
determine that such sufferance is due to malafide or capricious or oppressive acts. Such
compensation is for vindicating the strength of law…”10

The West Bengal SCDRC in a case held that “....in all fairness, the Appellants should have
agreed to the proposal of the Respondents for refunding the advanced money as a good
gesture. The District Forum has rightly observed - "non-refund of advance money, we think,
is a gesture of unfair trade practice on the part of the OPs. The Complainants could not
enjoy the tour. In that view of the matter, District Forum directed the OPs/Appellants to
refund the advance money of Rs.1,60,000/- after deduction of 10% thereof as non-standard
basis. It is to be further seen, whether, interest, on the amount refunded, can be granted, in

10 Ravneet Singh Bagga v. K.L.M. Royal Dutch Airlines & others (2000) I SCC 66.

19
favor of the complainants. It is not in dispute that the amount aforesaid, was paid by the
complainants, without getting anything, in lieu thereof….”11

Also in a case, the hon’ble NCDRC held that “....the basic point is that if the services of the
opposite party have not been availed, then the complainant is definitely entitled for the
refund because he is not responsible for cancellation of his tour….”12

In the view of the decision cited and arguments advanced it can clearly be seen in the present
that respondent denial to refund the advance amount falls under the deficiency of service.

It was held by hon’ble NCDRC as ‘service’ means “service of any description which is made
available to potential users”.13

Since the complaint could not avail the service due to negligent act and faulty behavior of the
respondent, so the amount paid in return of the services that were to be availed must be
refunded because it is unconscionable to keep the service fees received in advance where the
consumer has not availed the service. Also, The respondent company failed to perform their
duty which led to a huge loss to excitement and emotions of the children and physical
harassment and mental agony to senior citizens.

3. Whether the failure on the part of the company to procure the visa amounts to
negligence of services?

It is humbly presented before the hon’ble commission that the respondent’s failure to procure
the visa amounts to negligence of service as initially the respondent’s company's executive
Hanumant Singht provided the itinerary cum brochure related to the cost and the procurement
of visa. Due to the negligent act of the respondent, the passport of complainant’ son was
damaged which led to delay in filing of the visa application with incomplete documents
which ultimately led to refusal of visa.

11 ibid 4.
12 Gaurav Khurana v. Thomas Cook (India) Limited on 22 September, 2011.

13 Moot Proposition annexure.

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The term negligence has been defined as "Negligence is the breach of a duty caused by the
failure to do something that a reasonable man, led by the factors that typically govern the
conduct of human affairs, would do, or by doing something that a sensible and reasonable
person would not do. Actionable negligence is the failure to exercise ordinary care or skill
towards a person to whom the defendant has the duty to exercise ordinary care and skill, by
which the plaintiff has incurred harm to his person or property. The concept of negligence
consists of three elements: (1) a legal duty on the part of the party complained about to
exercise reasonable care towards the party complaining about the former's conduct within
the scope of the duty; (2) a breach of this duty; and (3) resultant damage.”14

The word ’service’ defined under The Consumer Protection Act, 2019, as follows:
Section 2(42) "service" means service of any description which is made available to potential
users and includes, but not limited to, the provision of facilities in connection with banking,
financing, insurance, transport, processing, supply of electrical or other energy, telecom,
boarding or lodging or both, housing construction, entertainment, amusement or the
purveying of news or other information, but does not include the rendering of any service
free of charge or under a contract of personal service.

In accordance with the facts of the present case, when the complainant provided the required
documents on 7th March, 2022, the sales executive of the respondent's company clearly said
that all the documents were satisfactory. However, the respondent informed the complainant
via telephone on 11th May, 2022, about two months after submitting the documents, that the
passport of complainant’s son Master Ranvijay Singh was damaged; this plainly
demonstrates the respondent's negligence and irresponsibility. Furthermore, it might be
concluded that the respondent's negligent act resulted in the damage to the passport.

The tour was scheduled to begin on 18th June, 2022, but no clear information was provided
to the complainant until 16th June, 2022, despite repeated requests. As a result, the
complainant's brother-in-law, Mr. Abhiraj Singh, emailed the respondent company on 16th
June, 2022, highlighting all the deficiencies on the company's part, including the fact that the
visa application was filed on 5th June, 2022, a day late. As the complainant hired the
respondent's services, it was their responsibility to give all pertinent information on those

14 Make My Trip (India) Pvt. Ltd. v. Vijendra Mathur (27.08.2020 - NCDRC) : MANU/CF/0672/.

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services; unfortunately, they failed to do so. Resulting in refusal of visa application,which
was discreetly informed to the complainant via email that the application was rejected.

The complainant along with his family who had travelled from Jodhpur and Udaipur to Jaipur
for the tour were devastated as their grand tour to Europe was refused due to negligent act of
the respondent.

Where in a case the court held as follows: “....The complainants could not enjoy their trip to
Europe only due to failure on the part of the Opposite Parties to arrange a Visa for them.
The Opposite Parties were obviously negligent in not preferring an Appeal against the
refusal order of Visa and as such suffers from deficiency of service on its part. Therefore, the
Opposite Parties could not forfeit the balance amount of Rs.2,85,000/- which the
complainants had paid to them towards the tour on the principle of 'No Service, No Payment'
on the analogy of 'No Work, No Pay'....." 15

Keeping the stated case in view, the negligent behavior of the respondent in the present case
is clearly shown, as they could also appeal regarding the visa rejection, but they did not do so.

Where in a case, the court stated that: “...since a marriage certificate was a necessary
document, if the same was not being provided, the respondent should not have forwarded the
Visa application to the Embassy and should not have put the complainants in a financial
disadvantageous position to spend money on the application, which was not likely to
succeed. The respondent could write to the complainant No.1 or his brother in this respect
that they would not be forwarding the Visa application till the marriage certificate was given
to them. The respondent could in the alternative ask the complainants to obtain the Visa
themselves and get out of this controversy, but they did not do so. They rather forwarded
incomplete applications to the Embassy. All these grounds have now been coined by the
respondent to digest the amount obtained from the complainants. It was, therefore, sheer
negligence on the part of the respondent which amounts to deficiency in service that they sent
an incomplete application and did not obtain complete documents from the complainants
before forwarding his application for Visa to the Embassy.16

Regarding the existing situation, it can be said that the ITR is a necessary document for visa
applications. As a leader in the travel business, the respondent was completely aware that in

15 idib 7
16 Cosmopolitan Hospitals and Ors. v. Vasantha P. Nair and Ors. (21.04.1992 - NCDRC) : MANU/CF/0030/.

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order to procure a Swiss visa, it was required to obtain the ITR from the complainants and
attach it to the Visa application. Since the respondent had ample opportunity to get these
papers from the complainant but failed to do so and submitted an incomplete document, this
demonstrates their negligence in serving and constitutes a service defect.

Where in a case the court held that: “....It was only a tourist visa and generally it forms are
correctly filled, tourist visa is generally granted until there is some adverse information
available with the Embassy about the applicant. When the opposite party is charging a huge
amount for the tour, they also take some portion as fees. Once a fee is charged for the
service, then it is expected that the application for visa will be correctly filled and the
chances of rejection would be minimal. The complainant submitted his application and
documents as per the advice of the opposite party and therefore the complainant cannot be
said to be at fault if the visa has been rejected….”17

In the light of the decision cited and arguments advanced , it can be clearly stated in the
present case that the failure to procure a visa by the respondent company amounts to
negligence of service. Since, the complainant is aggrieved by the action of the respondent
company, which has failed to provide sufficient and satisfactory services. The respondent
company has given negligence in service to the present complainant as they failed to perform
their duty which led to a huge loss to excitement and emotions of the children and physical
harassment of the senior citizen and mental agony.

4. Whether the damage of passport amounts to damage of government property?

It is respectfully submitted to the hon’ble commission that damage to passport is a damage to

the government property.

According to section 17 of the Passports Act, 1967- “Passports and travel documents to be
property of the Central Government—A passport or travel document issued under this Act
shall at all times remain the property of the Central Government.”

According to the aforesaid provision, passports come under the property of the central
government. Therefore damage to the passport amounts to damage of government property.

A damaged passport is classified further based on the extent of damage, i.e.:

1. Damaged Passport - Passport number is readable, name is legible and photo is intact
2. Damaged beyond recognition

17 Ratanlal & Dhirajlal, Law of Torts(24 ed. 2002).

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It is contended that the damage to the passport was due to the respondents negligence and
lack of care. As per the present case, initially when the documents like passport, bank
statements, salary slip, three years ITR etc. for the visa and other purposes, it was duly
provided to the respondents by the complainant on 7th March, 2022. Upon submission the
documents were declared to be satisfactory by the sales executive of the respondent company.
That after the submission of all the documents initially found to be satisfactory as per the
sales executive of the respondent company. It was informed to the complainant over
telephone on 11th May, 2022 that one of the passport submitted by the complainant was
damaged i.e., of Master Ranvijay Singh, son of complainant. The complainant immediately
protested via a letter dated 11th May, 2022, in which it was stated that the complainant had
submitted all passports in perfect condition two months prior, but the issue of the damaged
passport was addressed at such a late stage, and that the passport was damaged due to the
negligent act of the respondent company, and in the event that the complainant was unable to
obtain a visa, the respondent company would be held liable. As a result of his son's damaged
passport, the complainant had to apply for a new one.

It is humbly submitted to the hon’ble commission that since a passport is a public property
therefore any damage to the passport is a damage of government property. Therefore, due to
negligent service of the respondent it led to damage of the passport. Since, the complainant is
aggrieved by the action of the respondent company as the complainant had to apply for a
fresh passport which led to mental agony and physical harassment to the complainant.

5. Whether the increase in tour cost by the respondent company amounts to restrictive
trade practices?

It is respectfully submitted to the hon’ble commission that the increase in the tour cost by the
respondent company amounts to restrictive trade practice as respondent being the leading
player in the travel industry manipulated the price of the tour when the complainant showed
his intention and desire to travel abroad.

‘Restrictive trade practice’ is defined under section 2(41) of the Consumer Protection Act,
1986, as "restrictive trade practice" means a trade practice which tends to bring about
manipulation of price or its conditions of delivery or to affect flow of supplies in the market
relating to goods or services in such a manner as to impose on the consumers unjustified
costs or restrictions and shall include—

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(i) delay beyond the period agreed to by a trader in supply of such goods or in providing the
services which has led or is likely to lead to rise in the price;

(ii) any trade practice which requires a consumer to buy, hire or avail of any goods or, as the
case may be, services as condition precedent for buying, hiring or availing of other goods or
services.”

The first indication of restrictive trade practices was when the respondent initially quoted the
price for the tour 'Europe for all’ of Rs 47,500 + 725 euro for adults and Rs 56,500 + 400
euro for a kid under 12 years. On 4th February 2022, the respondent emailed the complainant
with the increase in price as Rs. 51,100 + 725 euros. Being the leading player in the industry,
the respondent manipulated the prices when the complainant showed his intention to avail the
services.
It was also stated that the travelling members were on their way to Jaipur from Jodhpur for
the tour. On 17th June,2022 the complainant asked the respondent company about the status
of the visa and showed his willingness to make the rest of the payment upon the receipt of
visa. In response, the complainant was suggested to make the balance payment and collect the
visa and other documents from Delhi. The complainant was quietly notified through email
that his visa application had been denied before the end of the business day. This shows that
the respondent was manipulating the complainant and was ready to provide the visa only after
payment of the remaining amount, which makes the respondent fall under the ambit of
section 2(41) .

It is humbly submitted to the hon’ble commission that since the price of the tour was
increased by respondent being an industry player makes it a restrictive trade practice. Since,
the complainant is aggrieved by the action of the respondent company as the complainant had
to incur additional expenses.

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 PRAYER

In the light of law, issues raised, arguments advanced and authorities cited and the counsel on
the behalf of the respondent humbly prays that Hon’ble Commission to be pleased.

To adjudicate by appropriate order or discretion, hold and declare that :

1. The denial on the part of the respondent company to refund the advance amount paid
by the complainant does not fall under the deficiency of services and cheating.
2. The damage of the passport does not amount to damage of government property.
3. The failure on the part of the respondent company to procure a visa does not amount
to negligence of service.
4. The increase in tour cost by the respondent does not amount to restrictive trade
practice.
5. The tour of the complainant does not fall under the services availed for commercial
purpose.

AND OR

Pass any other order, discretion or relief that this Hon’ble District Commission may deem fit
in the light of justice, equity and good conscience.

And for this, the respondent, duly as bound as ever, shall humbly pray.

Aggrieved by the reply of notice and seeing all the doors of remedy closed, the complainant
filed a case before Commission claiming a sum of Rs.2,80,000/- from the respondent
company which was paid as the booking amount with the interest @ 12% per annum. Along
with this, the complainant also claimed a sum of Rs. 10,00,000/- towards the mental agony
and physical harassment sustained by the senior citizens who were accompanying the
complainant , a sum of Rs. 3,00,000/- towards the loss to excitement and emotions of two
children of age 7 & 14 respectively, who were excited for the grand tour of Europe , a
sum of Rs. 5,00,000/- towards the business loss (the complainant being the author had
planned to meet the publisher for sale of his book in Germany), sum of Rs. 30,000/- for the
expenses incurred by the complainant.

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