Haryana

Ambala

CC/266/2020

Aseem Sharma - Complainant(s)

Versus

Chief Executive Officer/Managing Director - Opp.Party(s)

Suksham Aggarwal

15 Dec 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	266 of 2020
Date of Institution	:	06.11.2020
Date of decision	:	15.12.2023

 

1. Aseem Sharma Son of Someshwar Nath Sharma, Resident of House No. 111, Ram Nagar, Ambala City, Haryana -134003.
2. Vivek Sharma S/o Sh. Pushpender Kumar Sharma R/o House No.177, Palika Vihar, Ambala City.

……. Complainants

Versus

Chief Executive Officer/ Managing Director/ Authorized Officer, The Go Ibibo, Registered Office: B-36, 1^st Floor, Pusa Road, New Delhi-110005, Phone:-+911147612020, Now known as Make My Trip (India) Pvt. Ltd.

2nd Address:

Tower B, 19th Floor, Building No.5, DLF Cyber City, Phase III, Gurugram-1220002 Phone:-+911244395000

….….  Opposite Party

Before:        Smt. Neena Sandhu, President.

                      Smt. Ruby Sharma, Member.

          Shri Vinod Kumar Sharma, Member.           

 

Present:-     Shri Shubham Aggarwal, Advocate, counsel for the complainants.                                                                                                                  Shri Gaurav Rajput, Advocate, counsel for OP.

Order:        Smt. Neena Sandhu, President.

1.                Complainants have filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Party (hereinafter referred to as ‘OP’) praying for issuance of following directions to it:-

1. To refund the amount of Rs.59,938/- and Rs.39,099/-.
2. To pay compensation to the tune of Rs.50,000/- on account of mental harassment and agony.
3. To pay cost of litigation to the tune of Rs.15,000/-.
4. Grant any other relief which this Hon’ble Commission may deems fit.

 

2.             Brief facts of the case are that the complainants along with their cousins from Canada had planned a family trip to Nainital. They had booked five rooms on 9th March, 2020 in the category of Premium room with Breakfast and Dinner from the website of the OP (goibibo.com) and received a Hotel Confirmation Voucher which mentioned the Goibibo booking Id's as HTLL26EWBS and HTLPRE4MN5. As per the bookings, the complainants along with other family friends from Canada were scheduled to Check-in into Hotel The Manu Maharani, Grassmere Estate, Mallital, Nainital on 21.03.2020 and were supposed to Check out from the Hotel on 23.03.2020. Complainant No.1 had made a payment of Rs.59,938/- against the booking ID HTLL26EWBS for three rooms with triple occupancy from his HDFC credit card and the complainant No.2 made another payment of Rs. 39,099/- against the booking ID HTLPRE4MN5 for two rooms with triple occupancy from his HDFC credit card.  But the complainants were forced to change their plan when they heard of a sudden alert of rapidly spreading of Covid 19 (Corona virus) across the country. They took advice from their family doctor and also discussed this issue with their relatives in Canada who were also supposed to join them and their families to their trip and made up their minds to cancel their trip under prevailing circumstances. After thorough discussions and as per the advisory generated by Government of India, the complainants decided to cancel their trip and gave timely information to your office. Through the e-mail, the Complainants had requested to cancel their bookings and refund of their full amount as per the norms for travel and directions issued by MOHW, Government of India. Thus, it would have been calling a self invited risk by the complainants if they still had planned their travelling and trip despite the directions and advisory issued by Government of India. Moreover, it was also well within the knowledge of the whole world that after 12th March, 2020 the spread of Covid-19 had been declared as a pandemic and the most deadly virus resultantly the most powerful countries of the world had given up against this virus. Under those circumstances, the complainants who were supposed to depart from Canada on 14.03.2020 cancelled their flight. As such, they requested the OP for refund of their amount against cancellation of their bookings but the officials at the end of OP had asked the complainants to reschedule their travel plan.  The complainants also sent a Legal Notice through their Counsel to the OP on 15.06.2020. The OP had received the said Legal Notice, however, in order to protect their skin, they just sent an acknowledgment of the receipt of Legal Notice through letter dated 18.08.2020 but the amount paid was never refunded by the OP. Hence, the present complaint.
3.           Upon notice, OP appeared and filed written version and raised preliminary objections with regard to not come with clean hands and suppressed the material facts etc. On merits, it has been stated that the OP being the facilitator between the concerned service provider and the intended guest such as the complainants in the present case is under the obligation to provide the confirmed booking/tickets to its customers. Once the bookings are confirmed by the concerned service providers, the same is shared with the intended guest such as the complainants herein. The OP shall not be held responsible or liable for any deficiency caused on the part of the concerned Hotel i.e., The Manu Maharani, Nainital which has not been impleaded as a necessary party to the present case. The OP in order to assist the complainants, duly mentioned the complete details of the Hotel along with the contact details on its web portal and same was clearly visible to the complainants at the time of booking. Further, the User Agreement also explicitly mentioned that the OP shall not be responsible for any deviance in the standard of the service provided or for the cancellation of the confirmed booking by the concerned end service provider or the concerned Hotel. Accordingly, the OP has forwarded the details of the complainants to the concerned Hotel/Hospitality Service Provider. It was the duty of the complainants to check if the itinerary provided is as per its satisfaction and requirement and could have raised the issue, if any, before the availing the Hotel vouchers. In case of any technical fault, lapse, change in prices, sell-outs or error in confirming bookings, the concerned Hotel/Hospitality is liable to compensate the customer for the same. Even otherwise, as per cancellation policy, the booking was non-refundable. "Cancellation Policy reads that “Booking is Non-Refundable Travel Cash used in the booking will be Non-Refundable Any Add On charges are non-refundable You cannot change the check-in or check-out date" Despite the said confirmed booking being NON-REFUNDABLE, the complainants were provided with an option of rescheduling of the bookings and the same was duly accepted by the complainants and they rescheduled the said booking from the original dates to 10.07.2020 12.07.2020. The OP  has duly performed its obligations qua the said booking and have duly assisted the complainants in the unprecedented times. The complainants are being aggrieved by the non-refund for the cancellation of the confirmed hotel bookings initiated by the complainants themselves. The complainants have malafidely failed to implead the concerned Hotel i.e. Manu Maharani as necessary party to the present case and hence, the present case warrants dismissal for non-joinder of necessary parties under the provision of Order 1 Rule 10 of CPC, 1908. The complainants have claimed that they had initiated the cancellation for the said confirmed booking due to the outspread of the COVID-19 pandemic. However, the complainants had made the said confirmed booking on 09.03.2020 and have claimed to have decided to initiate the said confirmed booking on 12.03.2020, i.e. just 3 (Three) days after the booking was made. Hence, it is clear from this that the said request for the cancellation was merely an afterthought since it is impossible to fathom that the outbreak of the COVID-19 increased drastically in just 3 days. The Ministry of Home Affairs (MHA) had imposed the Nationwide Lockdown on 24.03.2020 due to outspread of the COVID - 19 pandemic, and the same was announced the night before the said dates. Hence, it is clear that the complainants did not possess any knowledge for the imposition of any Lockdown at the time of the initiation of the request for the said cancellation. Rest of the averments of the complainant were denied by OP and prayed for dismissal of the present complaint with exemplary costs.
4.           Learned counsel for the complainants tendered affidavit of complainant No.1 and affidavit of complainant No.2 as Annexure C-A & C-B respectively, alongwith documents as Annexure C-1 to C-10 and closed the evidence on behalf of complainants. On the other hand, learned counsel for OP tendered affidavit of S.Sreesh, Assistant Manager (Legal) & Authorized Representative of OP Company-Ibibo Group Pvt. Ltd. as Annexure OP-A alongwith document Annexure OP-1 and closed the evidence on behalf of OP.
5.           We have heard the learned counsel for complainants and learned counsel for OP and have carefully gone through the case file and also gone through the written arguments filed by the learned counsel for the OP.
6.           Learned counsel for the complainants submitted that by not refunding the amount paid by the complainants towards booking of the said hotel, after cancelling the said booking because of lockdown due to COVID-19 in the country, the OP has indulged into unfair trade practice and is also deficient in providing service.
7.           On the other hand, learned counsel for OP while reiterating the objections raised in the written version submitted that the complaint is bad for non-joinder of the said hotel as necessary party. He further submitted that the OP being facilitator and service provider has provided confirmed bookings of the hotel in question, which was non-refundable. He further submitted that even otherwise, the complainants were required to contact the said hotel directly for getting refund of the amount paid, as the said amount received from the complainants has actually been paid to the hotel by the OP.  He further submitted that the OP gave all assistance to the complainants as and when required in the matter.
8.           It may be stated here that it is the own case of the complainants that the OP is the accommodation and tickets booking website, providing service through their online portal and they have availed the services of the OP for booking  the hotel in  question for their stay. It has also been admitted by the complainants that as per their schedule they got booked rooms in the Hotel-The Manu Maharani, Grassmere Estate, Mallital, Nainital on 21.03.2020 and were supposed to check out on 23.03.2020, for which they made payment of Rs.59938/- and Rs.39099/- to the OP. Confirmation vouchers to this effect issued by the OP are at Annexure C-1 and C-2 meaning thereby that the OP has provided its service, for which it was hired by the complainants i.e. the booking of the said hotel for 21.03.2020 and 23.03.2020 was confirmed.
9.           It is coming out from the record that when the complainants requested the OP for cancellation of the said booking, the OP vide email dated 17.03.2020, Annexure C-9 has clearly intimated the complainants that it has coordinated with the said hotel, and the said hotel is ready to allow a one-time change of dates, on the same rates before 09.04.2020 or between 05.07.2020 to 31.07.2020. However, there is nothing on record that the complainants availed that opportunity. Under these circumstances, in our considered opinion, thereafter, if the complainants were still not interested to perform the journey and wanted to cancel the booking in question in view of outbreak of COVID-19 in the country, and the amount so paid by them was not refunded despite making requests, then it was required of them to implead the said hotel i.e.  Hotel-The Manu Maharani, Grassmere Estate, Mallital, Nainital as necessary party to this complaint alongwith the OP because the OP was only the service provider/facilitator for booking the said hotel, which stood provided by him by providing them confirmed bookings aforesaid and refund was to be received from the said hotel though through the OP. A specific objection to this effect was also taken by the OP in its written version, yet, the complainants have still failed to implead the said hotel as necessary party, during pendency of this complaint, by moving an application.
10.           Under above circumstances, this Commission is left with no alternative than to dismiss this complaint for non joinder of necessary party. Resultantly, this complaint stands dismissed with no order as to cost, for non joinder of The Manu Maharani, Grassmere Estate, Mallital, Nainital  as necessary party. Certified copies of the order be sent to the parties concerned as per rules.  File be annexed and consigned to the record room.

Announced:- 15.12.2023

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President