Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.-191/28.09.2018
1. Rishi Kant Mishra s/o Sh. Ramakant Mishra
R/o 2800, 3rd floor, Gali Arya Samaj,
Bazar Sita Ram, Delhi-110006
2. Swatanter Verma s/o Sh. Rajinder Verma
r/o-1131, Kucha Harjasmal Sita Ram Bazar
Delhi-110006 ...Complainant
Versus
IBIBO Group Private Limited
through its partners/Directors/Managers
Registered Office:- UG-07 (front side), TDI Mall,
Rajouri Garden, Delhi-110027
[Also at Corporate Office:- 18th & 19th floor,
Towar A, B& C Epitome Building no. 5,
DLF Cyber CityPhase III, Gurugram-12202,
Haryana, India ...Opposite Party
Order Reserved on: 06.03.2023
Date of Order: 10.04.2023
Coram: Shri Inder Jeet Singh, President
Shri Vyas Muni Rai, Member
Ms. Shahina, Member -Female
Inder Jeet Singh
ORDER
1.1. (Introduction to case of parties) : The complainants approached OP for booking a room in hotel in Bangkok and in Pattya, the OP was paid agreed hire amount, room was booked, confirmation was issued by OP of ‘Yes Boutique, Hotel’ as per scheduled. However, when complainants reached the destination on scheduled date and time, they were denied the access to hotel and room on the ground that advance payment of booking was not received by ‘Yes Boutique, Hotel’ from the OP. They had suffered inconvenience, harassment, agony at foreign land, they had also faced a lot difficulties in searching another hotel that too at peak hours and they had to pay bigger amount of bill of new hotel, despite confirmed hotel booking issued by OP. that is why, the complaint for refund of the earnest amount of Rs. 10,000/-, transportation fare of Rs. 2,000/- apart from damages of Rs. 1,00,000/- and cost of Rs. 10,000/-.
1.2: Whereas, on the other side, OP denies the allegations that OP was just a facilitator between the complainants and the Yes Boutique Hotel, Pattya Thailand. OP is just an agent of the said hotel/Principal, as per section 230 of the Contract Act, 1872, the OP has no liability towards the complainant as availability of rooms or its cancellation is within the local laws of the hotel and also within the policy of hotel.
1.3. Apart from the aforesaid dispute between the parties, it is material to mention that written statement dated 19.12.2018 was filed by OP under the signature of Sh. Varun Chopra, the supporting affidavit is filed by Sh. Varun Chopra as authorised signatory of OP, whereas the supporting Board Resolution dated 04.10.2018 filed is of MakeMyTrip India Pvt. Ltd., the seal and signature is also of MakeMyTrip India Pvt. Ltd. When the stage of evidence came Sh. Varun Chopra filed his affidavit of evidence as authorised officer of MakeMyTrip India Pvt. Ltd. Then, where is authorization or Board Resolution by OP/IBIBO in favour of Varun Chopra to issue vakalatnam in favour of counsel, or sign and verify the written statement or to lead evidence? Neither it is on record nor explained.
2.1 (Matrix of case of complainant) : Briefly, complainant no. 1 is an Advocate by profession and his relative/ complainant no. 2 Swatanter Verma is a businessman, out of their hectic schedule, planned to travel Thailand for 7 days from 27.11.2017 to 03.12.2017 (their e-ticket booking is, now, Exh. CW1/1). They were influenced by advertisement through print, audio and visual media of OP IBIBO Group Pvt. Ltd. i.e. GOIBIBO. COM, they decided to book hotel room from OP for three days in Bangkok, Thailand from 27.11.2017 to 29.11.2017 and for two days in Pattaya, Thailand from 01.12.2017 to 03.12.2017. They approached the OP and booked confirmed hotel room online well in advance on 16.11.2017 (e-ticket hotel booking and confirmation is now Ex-CW1/4) and paid full amount online (copy of passbook is now CW1/2) for hotel in Bangkok and for hotel in Pattaya, the amount paid was Rs. 3,156/- for Yes Boutque Hotel for period from 01.12.2017 to 03.12.2017.
2.2: Both the complainants reached Pattaya Yes Boutique Hotel on 01.12.2017 in the morning as per schedule but they shocked and surprised that their hotel booking of room was not confirmed due to want of receipt of booking amount from OP. Immediately, the complainant no.1 sent e-mail as well as called OP, apart from Whattsapp on customer care numbers, since he exhausted the international mobile balance amount also, but no result. Finally, he was able to talk to Mr. Devender and apprised him about the whole affairs but he refused to help to the complainant and also try to avoid the issue instead of resolving it. The visiting card and email/SMS exchanged are part of record [now Exh. CW1/5 and CW1/6]. Moreover, the hotel staff of ‘Yes Boutique Hotel’ were requested to make available a room as a accommodation but no help was extended, the complainants have to face the rude behavior of the Receptionist at the hotel. The request of the complainants to the hotel as well as to the OP did not result any-thing, none was helping the plight of complainants at a foreign land. They were compelled to travel and have to move with luggage in searching other hotel and after much search and walk, they could locate a room in ‘Land Royal Residence’, where they stayed by paying the charges as per bill, (now bill is Exh. CW1/7 and visiting card of this new hotel is Exh. CW1/8).
2.3: The complainants were harassed because of the situation created by the OP, they have to rebook new hotel that too after long efforts and harassment, apart from paying extra amount and their mood was also spoiled because of the trauma faced by them. There is deficiency of services on the part of OP. The complainant spent Rs. 10,500/- in respect of amount paid, transportation fare, extra amount and booking amount apart from damages towards the harassment and agony suffered. The complainant also served legal notice dated 13.12.2017 (now Exh.- CW1/9) which was replied by the OP (reply dated 27.12.2017, now Exh. CW1/10), that reply was also responded by the complainants on 22.02.2018 (Exh. CW1/11) being compliance of requisite information.
3.1 (Case of OP) : Whereas, OP opposed the complaint by way of preliminary objection/submissions as well as reply on merits. However, while making reply on merits, certain paragraphs were mentioned as a matter of record (especially paragraph 7-10).
3.2: The complaint is misconceived, misleading, misrepresented, vexatious and frivolous, it is liable to be dismissed under Consumer Protection Act, 1986, since OP is a highly acclaimed tour and travel company, it is dragged in the complaint unnecessarily. The parties are governed by terms and conditions agreed by them at the time of online booking at website (now Exh. OPW/B), the parties cannot go beyond it, reliance is placed on Bharathi Knitting Co. vs. DHL Worldwide Express Courier (1996) 4SCC 704. Further, the Forum and Commission ought not have to go behind the terms of agreement, but should have instead referred the parties to the Civil Court [ reliance is placed on Patel Roadways Ltd. vs Birla Yamaha Ltd. vide Appeal (Civil) 9071 of 1996 and Citicorp Maruti Finance Ltd. vs. S. Vijayalakshmi vide Civil Appeal No. 9711 of 2011] .
3.3: The OP had acted as a facilitator for booking hotel accommodation in ‘Yes Boutique, Hotel’ Pattaya for the complainant, the duty of OP was by generating the desired booking for complainant in ‘Yes Boutique, Hotel’. In case there was default on the part of ‘Yes Boutique, Hotel’ by not providing a room because of non-availability of room due to peak season time, when the hotel was failed to update its inventory on online portal of OP, the OP cannot be blamed thereof. Moreover, OP is an agent of the hotel, it is governed by section 230 of Indian Contract Act that an agent cannot be held liable personally on behalf of principal. Therefore, OP is not liable for any act of the concerned hotel [reliance is placed on Premnath Motors vs. Anurag Mitra, IV (2008) CPJ 37 SC]. It was owing to some unavoidable circumstances the bookings cannot be honored due to sudden non-availability of the rooms in the hotels and in the circumstance, when the Hotels fail to update the OP on the same by reflecting in its inventory online, the OP under bona-fide impression issues confirmed bookings. The inventory up-date is not in the scope of OP as such OP cannot be held liable in cases, where booking does not get confirmed due to apparent error at the concerned hotel. Otherwise, as soon as OP was apprised about the denial of booking the OP offered to accommodate the complainants in another hotel of same category, however, complainants choose to make his own arrangement. The complaint is liable to be dismissed as the complainants were refunded booked amount (now Exh. OPW/C), there is no deficiency of any service on the part of OP. The complaint is liable to be dismissed.
4. (Replication of complainant) : However, the complainant opposed the written statement of OP by filing replication, reaffirming the complaint as correct as well as denying the plea of OP either of applicability of section of 230 of Indian Contract Act or of the relationship of agent and principal between the OP and the hotel. It is also emphasised that ‘Yes Boutique Hotel’ booking was denied confirmed in the name of complainant due to non-receipt of booking amount from the OP, who OP had received advance amount from the complainants.
5.1 (Evidence) : Complainant no. 1 Rishi Kant Mishra, and complainant no. 2 Shri Swatantar Verma filed their separate affidavit of evidence on the line and documents of complaint.
5.2: OP is Sh. Varun Chopra authorised officer of MakeMyTrip India Pvt. Ltd., filed affidavit of evidence, it is also on the lines of written statement and document filed.
6. (Final hearing) : Sh. Rishi Kant Mishra, complainant no. 1 argued for both the complainants. Ms. Yukti Gupta, Adv. made the final submissions on behalf of OP.
7.1 (Findings) : The contentions of both the sides are considered, keeping in view the pleading, evidence (oral and documentary), provisions of law and case law relied upon. The rival contentions are not repeated here as the same will be discussed point-wise.
7.2: The OP took the objection that terms and condition of the agreement can be looked into by the Civil Court for proper appreciation of case of the parties but not by this Commission/Forum, however, the plea is misplaced and without substance as the present Commission/ Forum can determined the issue involved in the present case on the basis of documentary record as well as their oral evidence. There is no cogent issue is suggested that it involved tripical question, which can be determined only by Civil Court. To that extent objections stands decided against the OP.
7.3: There are rival stand of the parties on the point of relationship of an agent and a principal between the OP and Yes Boutique Hotel, OP invokes section 230 of the Indian Contract Act that an agent cannot be held liable for the acts of principal on the point enforcement of contract. Whereas on the other side, the complainant contends that it was OP, who received the booking amount, confirmation of room was by OP but accommodation was denied on reporting at Hotel, since OP had not remitted the advance received amount to the Yes Boutique, Hotel.
On plain reading of entire record, inclusive of terms and conditions being relied upon by the OP, there is not a single document proved by OP to whisper that actually there is relationship of an agent and of principal between the complainant and Yes Boutique Hotel. OP was bound to prove this plea by evidence that the OP is an agent and the Yes Boutique Hotel is its principal. Since it has not been proved, consequently section 230 of Indian Contract Act cannot be invoked in favour of OP.
7.4: As held, above, that the OP could not establish that it is an agent of Yes Boutique Hotel, then question arises in what capacity the OP had booked accommodation for complainants in Yes Boutique Hotel. The complainants have filed e-ticket for confirmed room booking in hotel (Exh. CW1/4), it is hotel confirmation tax voucher for the period specified against amount received, which also specifies GOIBIBO booking ID and GST was collected by the OP on behalf of hotel. There is also description of services- mentioned as ‘reservation services for accommodation’. Since the OP had not proved that it is an agent of Yes Boutique Hotel, however, this record (Exh. CW1/4) as well as the terms and conditions being on website of OP clearly infers and prove that there is a tie-up between the OP and the Yes Boutique Hotel. Pursuant to that business tie-up with Yes Boutique Hotel, the OP books the accommodation of the customers. It is never the case of OP that it is rendering such services to Yes Boutique Hotel graciously.
7.5. It is admitted case of both the parties that the complainant had booked in advance a room in Yes Boutique Hotel Pattya and when the complainant reached the hotel, there accommodation was not confirmed despite it was booked and confirmed in advance vide e-ticket (Exh. CW1/4). The OP took the stand that an alternate accommodation was offered but the complainants had made arrangement of their own. Moreover, the OP also pleads that the documents are matter of record, however, for want of update of inventory because of error of Yes Boutique Hotel, the complainant was issued e-ticket of confirmed booking. By assessing the evidence and rival stand of parties, the following conclusions are drawn:-
(i) the entire reply and evidence of OP is silent as to when inventory was not updated or when the inventory was resumed to update the same to justify this plea taken; the plea taken is defensive to shield own faults but it is proving fatal to OP,
(ii) the complainant no. 1 sent legal notice dated 13.12.2017 (Exh. CW1/9) narrating the episode happened and the OP also gave its reply dated 27.12.2017 (Exh. CW1/10), which are prior to filing of the complaint on 28.09.2018. Had there been issue of update of inventory, the same would have definitely been mentioned in the reply but it was not mentioned, it also proves that the plea of want of update of inventory is an after-thought plea to shield own fault,
(iii) there is no proof of record or proof of any communication between the Yes Boutique Hotel and the OP that there was break in up-date of inventory in the inventory of OP,
(iv) the complainants reached the destination in time schedule and then faced the trauma of want of making of availability of accommodation, it was 01.12.2017. The OP also pretends that amount was transferred in the account of complainant, whereas the amount was transferred at later point of time after the period of journey was over (page no. 29 email, part of Exh. CW1/6-colly. ) and complainants had lodged their protest,
(v) email (at page no. 29) shows cancellation date of 09.12.2017 at 01:57 am, it is a refund notification from OP to the complainant, whereas the complainant had not got the accommodation cancelled.
(vi) the OP also pleaded that there were unavoidable circumstances that booking cannot be honoured, however, no fact is disclosed by the OP to cull out what were those unavoidable circumstances but as per the case of parties that it was a peak season; it infers there were commercial reasons for the OP and its counter-part Yes Boutique Hotel. Even if so, then why the complainants were denied room despite advance booked accommodation and they were put to all hazards and trauma, it was because of OP,
(vii) the complainants narrate the episode that when they reached the Yes Boutique Hotel, they were denied accommodation that room was not booked for want of receipt of amount from OP, whereas complainant had paid the amount in advance. The OP made reply to paragraph 7-10 together that is matter of record, which amounts to admission that amount received in advance from the complainant was not remitted to ‘Yes Boutique Hotel’, and
(viii) the complainants were without accommodation/room in other country, they were pushing hard even to make success in contacting OP, till then OP had not informed the complainants about status of room, are circumstances not suggesting that OP is taking an after-thought plea of inventory. There is also no documentary record or name of other hotel for which OP tried on 1.12.2017 to make arrangement in other hotel, it has not been proved and it is like to show justification.
7.6: The detailed discussion in paragraph 7.2 to 7.4 as well as the conclusion drawn in paragraph 7.5, it is abundantly clear and complainants have also established clearly case of deficiency of services on the part of OP that they had booked the accommodation in advance against payment but they were not made available the confirmed booked room, rather they faced the trauma of all type in the foreign land. It also amounts to unfair trade practice.
7.7: The complainants had to arrange alternate accommodation for Rs. 5,000/- (receipt Exh. CW1/7) apart from spending transportation charges of Rs. 2,000/-, although later advance amount of Rs. 3,156/- (receipt Exh. CW1/4) was refunded to them; the difference amount was Rs. 1,844/- was paid extra and Rs. 2,000/- as transportation charges (total amount Rs. 3,844/-) is liable to be refunded by the OP.
Considering the trauma, harassment, inconvenience face by them at the foreign land, where they have actually gone for leisure out of stress life, compensation/damages of Rs. 25,000/- will meet both ends. The cost is also allowed and it determined as Rs. 10,000/- in favour of complainants and against OP. The complainants claim interest at the rate of 12% pa, however, considering the circumstances interest @ 7%pa on Rs.3,844/- from the date of filing of the complaint till realization of amount is allowed in favour of complainants and against the OP.
The OP is to pay the amount within 30 days from the receipt of order, failing to do so interest at the rate of 9% pa will be payable on amount of Rs. 3,844/- from the date of complaint till realisation of the amount.
8. Accordingly, the complaint is allowed in favour of complainants and against the OP to pay amount of Rs. 3,844/-with interest @ 7%pa on Rs.3,844/- from the date of filing of the complaint till realization of amount apart from damages of Rs.25,000/- & costs Rs.10,000/- payable within 30 days from the date of receipt of this order.
In case the OP does not pay the amount within 30 days from the receipt of this order, then OP will be liable to pay simple interest at the rate of 9% pa on amount of Rs.3,844/- from the date of filing of the complaint till realization of the amount.
9. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for necessary compliance.
10: Announced on this 10th April, 2023 [फागुन 22, साका 1944].
[Vyas Muni Rai] [ Shahina] [Inder Jeet Singh]
Member Member (Female) President
