DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.01 of 2016
Date of institution: 01.01.2016 Date of decision : 26.07.2018
Jatin Arora son of Shri Ashwani Arora and Vinik Kumar son of Shri Des Raj, both residents of House No.106, Phase 3-A, SAS Nagar (Mohali).
…….Complainants
Versus
1. Cleartrip Pvt. Limited, 312-316, 3rd Floor, Vipul Agora Building, next to Sahara Mall, M.G Road, Gurgaon- 122 002.
(Address as given in the complaint)
a) Cleartrip Pvt. Ltd., Unit No.001, Ground Floor, DTC Building, Delisle Road, N.M. Joshi Marg, Lower Parel (E), Mumbai 400-011;
b) Cleartrip Pvt. Ltd., 1st Floor, Sooraj Ganga Soft Park, Potential House, 3rd Phase, J.P. Nagar, Begaluru- 560078 (Karnataka).
c) Cleartrip Pvt. Ltd., 3rd Floor, Vipul Agora Building, Next to Sahara Mall, M.G. Road, Gurgaon 12202 Haryana.
(Addresses as given vide application dated 11.07.2016).
2. FabHotel Ellisbridge, Ahmedabad, Gujarat.
(Address as given in the complaint)
Fab Hotels, Level 6, Regus, JMD Regent Square, M.G. Road, Gurgaon -122002, Haryana
(Addresses as given vide application dated 11.07.2016 as well as in the publication).
3. Le-Grande Residency, Kalgi Cross Road, Near Parimal Garden Krupa Petrol Pump, Ellisbridge, Ahmedabad.
……..Opposite Parties
Complaint under Section 12 of
the Consumer Protection Act.
Quorum: Shri G.K. Dhir, President,
Shri Amrinder Singh Sidhu, Member
Mrs. Natasha Chopra, Member.
Present: Shri A.K. Maleri, counsel for the complainants.
Shri S.S. Gill, counsel for OP No.1.
OP No.2 and 3 ex-parte.
Order by :- Shri G.K. Dhir, President.
Order
Complainants through online booked hotel accommodation with OP No.1 on 20.11.2015 for Fab Hotel Ellisbridge, Ahmadabad (Gujarat) by making payment of Rs.15,061/- through debit card. That booking was for two rooms for 4 nights from 26.11.2015 to 30.11.2015. Thereafter, complainants booked E-air tickets for Air India flight of Chandigarh – Delhi-Ahmadabad for 26.11.2015. Return ticket of Air India flight for route of Ahmadabad- Delhi- Chandigarh even was booked. The complainants after reaching Ahmadabad, reached at the booked hotel i.e. OP No.2 for stay, but were informed by hotel staff about non availability of booked rooms. Thereafter complainants lodged protest with OP No.1 and 2 through iPhone at 8.05 pm. OP No.1 reverted back through e-mail for regretting inconvenience caused to complainants. OP maintained that the rooms had already been sold regarding which information to OP No.2 i.e. Fab Hotel had already been provided. OP No.2 thereafter offered alternate accommodation in some other hotel in late hours at around 11.00 pm, but the said hotel was not in the same location and with same comforts, so complainants refused that offer. Thereafter complainants arranged accommodation in hotel Lemon Tree by paying an amount of Rs.33,070/-. Complainants despite being highly paid income tax assesses stood cheated, defrauded and as such they felt ashamed due to cancellation of booked hotel accommodation. Refund of amount sought from OP No.1 vide e-mail, but that request was turned down. So by pleading deficiency in service on part of OPs, prayer made for directing OPs to refund booking amount of Rs.15,061/- alongwith amount of Rs.18,009/-, difference of the amount paid by complainants for similar accommodation and the price paid to OPs. Compensation for mental agony and harassment of Rs.1.00 lakh and litigation expenses of Rs.25,000/- more claimed. Interest @ 18% per annum also sought.
2. In reply filed by OP No.1, it is pleaded inter alia as if the complaint is not maintainable; this Forum has no jurisdiction because agreement provided for reference of disputes to Arbitrator and that there is no deficiency in service on part of OP No.1. OP No.1 is an online travel company providing intermediary facilities of booking of air tickets and hotel reservation in India and abroad through its website. Hotel inventory comprising of rooms, rates etc. are provided and managed directly by each hotel. Any customer/passenger wishing to avail services of OP No.1 has to make booking on the website/Mobile App by resorting to steps of search; contact details; payment and confirmation. These details are given below:
(i) Search – Wherein the customer searches for Hotel at a destination, particular dates, number of nights, no. of people for stay, tariff rates, availability ( for a specific travel period).
(ii) Selection – wherein the customer selects a particular hotel after having seen the fares and applicable rates rules of the Hotel for the particular booking.
(iii) Contact Details – wherein the customer provides his email id, phone number and his complete name.
(iv) Payment – wherein the customer proceeds to book and make payment for the flight/hotel chosen by him upon providing his/her necessary personal details.
(v) Confirmation – On receipt of payment of an e-ticket is mailed to the customer at the email address given by the customer.
In view of this, it is claimed that the booking process is based on the entire system driven by customer/passenger himself. At the time of booking, rates and rules of hotel for booking as well as of cancellation and amendment are clearly displayed by OP No.1. Any customer/passenger, who does booking of any hotel reservation, can clearly view the applicable fare, rules and then go ahead with the selection/booking of a particular hotel. Customers are aware that OP No.1 merely provides facility/platform for booking of rooms without providing actual services for hotels. OP No.1 is a registered user website since from the year 2014. Admittedly complainants on 20.11.2015 at 12.30 AM made online booking of two hotel rooms reservation of Fab Hotel Ellisbridge, Ahmadabad for scheduled tour programme of 26.11.2015 to 30.11.2015. Booking was successfully generated and even e-ticket was generated and same sent though e-mail provided by complainants. On receipt of booking through customer, OP No.1 on 20.11.2015 sent the hotel booking voucher through e-mail ID. Copy of booking voucher e-mailed to Fab Hotel (OP No.2) also alleged to be annexed with the reply. That booking virtually clearly displays post booking by complainants of additional rooms available in the inventory provided by OP No.2. Hotel inventory was uploaded and managed directly by OP No.2. OP No.1 transferred booking amount to bank account of OP No.2 on 25.11.2015 i.e. before date of check in by complainants. On 26.11.2015 complainants called upon OP No.1 as if they have been denied check in at hotel. However, OP No.1 had sent booking voucher to OP No.2 on 20.11.2015 and as such OP No.2 was aware of the booking done by complainants. Hotel accommodation has not been provided by OP No.2 for the reasons known to it. On receipt of call from complainants, customer support team of OP No.1 immediately contacted the hotel and assured complainants that alternative accommodation will be got provided to them. OP No.1 is not privy to communication between the hotel and complainants. On 29.11.2015 OP No.1 received an e-mail from OP No.2 containing information for equally good alternate accommodation offered to complainants, but complainants denied the offer of that alternate. Booking was done as per chosen parameters. So in view of this, it is claimed that OP No.1 cannot be held responsible because it has no control on the service delivery aspect of a particular hotel booking. It is claimed that OP No.1 successfully discharged its responsibility of immediate payment to OP No.2, but OP No.2 and OP No.3 chose not to honour booking. As alternate accommodation was offered to complainants and as such complainants not entitled for claim of the difference of amount paid of Rs.33,070/- and the original booking amount of Rs.15,061/-. Prayer made for dismissal of complaint in view of Section 26 of Consumer Protection Act.
3. OP No.2 and 3 are ex-parte in this case.
4. Complainants tendered in evidence affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.C-16 and thereafter closed evidence. On the other hand, counsel for OP No.1 tendered in evidence affidavit Ex.OP-1/1 of Ms. Namita Pradhan, Head-Legal alongwith documents Ex.OP-1 to Ex.OP-3 and thereafter closed evidence on behalf of OP No.1.
5. Written arguments submitted by complainant, but not by OP No.1. Oral arguments heard and records gone through.
6. Copy of PAN Card of complainant Jatin Arora produced as Ex.C-1 alongwith that of driving license, but of the income tax return produced as Ex.C-14. These documents at the most meant for establishing identity of complainant and nothing more than that.
7. Voucher for Fab Hotel OP No.2 is produced on record as Ex.C-2 for mentioning as if said hotel booked through OP No.1 on payment of Rs.15,061/-. Trip ID for two rooms and four nights for period from 26.11.2015 to 30.11.2015 was provided to complainants through Ex.C-2 issued by OP No.1. Ex.C-3 shows as if booking for the above referred scheduled time for period from 26.11.2015 to 30.11.2015 was done on 20.11.2015 through OP No.1. Air reservation tickets of time of departure and arrival at Delhi or at Ahmadabad are produced on record Ex.C-4 and as such it is obvious that complainants got booked two rooms in OP No.2 hotel for 4 nights by paying Rs.15,061/- to OP No.1. It was on account of this that voucher Ex.OP-2 by giving the details of booking schedule and timing with number of rooms as 2 given in Ex.OP-2, the document produced by OP No.1. In Ex.OP-2 itself it is mentioned that payment will be made by Clear Trip i.e. OP No.1. So this document Ex.OP-2 enough to establish that prepaid booking amount of Rs.15,061/- virtually was transmitted by complainants to OP No.1 and that is why OP No.1 through Ex.OP-2 document took responsibility of paying the amount. In document Ex.OP-2 it has been specifically mentioned that payment will be made by Clear Trip for accommodation of two rooms in OP No.2 hotel for complainants during period of stay of 26.11.2015 to 30.11.2015. In view of endorsement on document Ex.OP-2 that payment will be made by OP No.1, there is no escape from the conclusion that as the booking of accommodation was got done by complainants through OP No.1 and that is why OP No.1 took liability of paying the booking amount to OP No.2 i.e. Fab Hotel and if such responsibility of making payment taken by OP No.1 on behalf of complainant through document Ex.OP-2, then certainly submission advanced by counsel for OP No.1 has no force that OP No.1 just remained an intermediary in booking of hotel rooms by complainants. Had OP No.1 been intermediary, then the prepaid booking voucher Ex.OP-2 definitely would not have made mention regarding payment to be made to OP No.2 by OP No.1 of this case. So it is obvious that Clear Trip terms of service placed on record as Ex.OP-1 brought into existence just for working out a via media as to how to escape from liability.
8. As responsibility through document Ex.OP-2 was taken by Clear Trip to make payment of booking amount and as such it cannot be held just on the strength of terms contained in document Ex.OP-1 that responsibility of OP No.1 is not there of paying the amount because of its being an intermediary. So terms incorporated in Ex.OP-1 document were for hoodwinking customers, so that they may not be aware about their due remedy against Clear Trip. Mention of role of Clear Trip as an intermediary in document Ex.OP-1 is not sufficient to absolve OP No.1 from responsibility, particularly when voucher Ex.OP-2 makes mention that payment of booked accommodation for complainants for above referred period will be made by Clear Trip (OP No.1). In view of contents of Ex.OP-2 it has to be held that role of Clear Trip is not that of providing a platform for online booking, but actually that role is of ensuring booking of accommodation and of paying the spent amount to the hotel booked for complainants.
9. It is also contended by counsel for OP No.1 that alternate accommodation was provided to complainants and as such in view of refusal by complainants to accept the alternate accommodation, complainants not entitled for any amount of compensation. Even if denial by complainants of the offered accommodation was made, despite that complainants had to suffer after reaching at Ahmadabad because of non availability of booked accommodation for them and as such it is obvious that complainants had to remain without rooms atleast for 3 to 4 hours i.e. during period of reaching there at Ahmadabad at about 8.05 PM to the time of occupancy of accommodation during midnight.
10. Documents Ex.C-9 to Ex.C-13, Ex.C-5 to Ex.C-7 establishes that complainants contacted through e-mails OP No.1 for redressal of grievance of non providing of booked accommodation. Though grievance of complainants was redressed by attending the same, but alternate accommodation was not suiting the complainants and that is why request was turned down by them because of the alternate accommodation not in the same locality and with same comforts. As and when a person goes in another State after booking of accommodation there, then certainly he is bound to have concept in mind that he will enjoy there by getting the booked accommodation. However, in case on reaching on that place such booked accommodation does not become available to him, then certainly he is bound to suffer much mental tension, agony and harassment, while remaining on the road till alternative accommodation suiting him becomes available. Complainants in this case booked rooms in Lemon Tree Hotel is a fact borne from documents produced on record Ex.C-8 and the annexures thereto. If complainants had to avail that accommodation in hotel Lemon Tree by paying double of the amount than one for which they booked accommodation with OP No.2 through OP No.1, then difference of that amount cannot be ordered to be paid because complainants unable to show by any evidence that the facilities provided in Lemon Tree hotel were the same as were the facilities to be provided in the rooms of OP No.2, hotel. No evidence at all adduced and nor any material produced to show as to what were the ambiances or facilities not available in offered alternate accommodation to complainants by OP No.2 than that of the ambiance or facilities promised to be provided in the rooms booked with OP No.2. In the absence of such material being brought on record, it cannot be held that actually the alternate offered accommodation was of lower grade or was having less facilities than that of the facilities promised to be provided. So amount of difference of the price paid and of the booked amount cannot be granted in favour of complainants. However, keeping in view the magnitude of mental agony and harassment that complainants had to face for non availability of booked accommodation, it is fit and appropriate to allow somewhat reasonable amount of compensation for mental agony and harassment. There is nothing on record to suggest as to what role OP No.3 was to play in the matter of providing booked accommodation and as such complaint against OP No.3 certainly is misconceived. Liability in such circumstances remains of OP No.1 and 2 to refund the received amount of Rs.15,061/- with interest with effect from the date of deposit namely 20.11.2015. Banks now a days pays interest on FDRs @ 6 to 6.5% and as such it will be fit and appropriate to allow interest of 7% per annum. Liability of paying entire amounts will remain of OP No.1 and OP No.2 as joint and several.
11. No other point argued.
12. As a sequel of above discussion, the complaint allowed against OP No.1 and 2 only with direction to them to refund the received amount of Rs.15,061/- with interest @ 7% per annum w.e.f. 20.11.2015 till payment. Compensation for mental agony and harassment of Rs.20,000/- and litigation expenses of Rs.5,000/- more allowed in favour of complainants and against OP No.1 and 2 only, whose liability held as joint and several. Payment of amount of compensation and litigation expenses be made within 30 days from the date of receipt of certified copy of the order. Complaint against OP No.3 is dismissed. Certified copies of the order be supplied to the parties as per rules. File be indexed and consigned to record room.
Announced
July 26, 2018.
(G.K. Dhir)
President
(Amrinder Singh Sidhu)
Member
(Mrs. Natasha Chopra)
Member
