Date of filing: 24.10.2019
Date of disposal: 16.05.2023
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
THIRUVALLUR
BEFORE TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law) .…. PRESIDENT
THIRU.P.VINODH KUMAR, B.Sc., B.L., ......MEMBER-I
THIRU.P.MURUGAN,M.Com.ICWA(Inter),B.L., ....MEMBER-II
RBT/CC. No.146/2022
THIS TUESDAY, THE 16th DAY OF MAY 2023
(CC.No.148/2019 sent from DCDRC, Chennai North)
Mr.V.Jaiharisudhan,
S/o.Mr.V.J.Venkataraju,
L-130, New No.10,
L-Block, 17st Street,
Anna Nagar East, Chennai 102. ……Complainant.
//Vs//
1.IBIBO Group Private Limited,
GOIBIBO. Com,
Rep. by its Authorized Officer,
No.2, 1st Floor, Ratnapuri Layout,
Near to HDFC Bank,
Above State Bank of India,
Koyambedu, Chennai 107.
2.The Naagaa Residency,
Rep. by its Authorized Officer,
No.1, Balaji Nagar Enatur,
Kanchipuram,
Opposite Meenakshi Medical College,
Kanchipuram 631 552. .......Opposite parties.
Counsel for the complainant : M/s.G.Keerthana, Advocate.
Counsel for the 1st opposite party : M/s.Harsh Vardhan, Advocate.
Counsel for the 2nd opposite party : M/s.E.L.Kannan, Advocate.
This complaint has been filed before DCDRC, Chennai (North) as CC.No.148/2019 and transferred to this commission by the order of the Hon’ble State Consumer Disputes Redressal Commission, Chennai and taken on file as CC.No.146/2022 and this complaint coming before us on various dates and finally on 02.05.2023 in the presence of M/s.G.Keerthana counsel for the complainant and M/s.Harsh Vardhan counsel for the 1st opposite party and upon perusing the documents and evidences of both sides, this Commission delivered the following:
ORDER
PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI, PRESIDENT.
This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986 alleging deficiency in service aginst the opposite parties with respect to booking of hotel along with a prayer to direct the opposite parties to refund a sum of Rs.7,552/- paid by the complainant to the 1st opposite party with 12% interest per annum, to pay a sum of Rs.5,00,000/- towards compensation for deficiency in service by the 1st opposite party, to pay a sum of Rs.5,00,000/- towards compensation for unfair trade practice, to pay a sum of Rs.5,00,000/- towards compensation for the mental agony and hardship suffered by the complainant, to pay a sum of Rs.25,000/- towards the cost of the legal notice and to pay a sum of Rs.50,000/- towards the cost of the complaint.
Summary of facts culminating into complaint:-
Being dissatisfied and aggrieved by the act of the opposite parties with respect to booking of hotel the present complaint was filed.
The complainant had booked a room on 17.07.2019 through the 1st opposite party with the 2nd opposite party for a stay on 18.07.2019 with his old aged parents to visit ATHI VARATHAR TEMPLE, KANCHEEPURAM on 19.07.2019. He had chosen the 2nd opposite party’s hotel for that they have showcased a neat and tidy rooms and facilities available and that the room rent for the same was Rs.7,552/-. Considering all these aspects the complainant had booked a room for their stay on 18.07.2019 to 19.07.2019 for three members. Thereafter, pursuant to the booking made by him, he received a confirmation through Watsapp and a mail from the 1st opposite party stating that the booking was confirmed. They also sent the booking ID HTLT 8SG2BS and a Watapp message stating that “your booking is confirmed and you need not contact regarding your confirmation”. After seeing the message in Watsapp the complainant restrained himself from reconfirming with the hotel. On 18.07.2019 the complainant along with his parents after a long tiring day reached the 2nd opposite party’s hotel i.e. NAAGAA RESIDENCY. When he approached the 2nd opposite party to check in, he was shocked to hear that he had not booked with them and they are now in collaboration with OYO and not with GOIBIBO.com. The 2nd opposite party with least courtesy asked the complainant and his age old parents to leave the place with their luggage immediately. The complainant had called the Goibibo.com customer care and informed them about the issue and also informed his situation where he and his parents were standing at the streets solely because of their false confirmation. The customer care executive after a long conversation told the complainant that they shall give an alternate hotel and further informed that The hotel they are providing was 24 km away from the NAAGAA RESIDENCY. the complainant refused to go to the alternative hotel suggested by the 1st opposite party. Thereafter having no other go the complainant started searching for hotels and room availabilities in the nearby locality and after a long hunt the complainant understood that there was no rooms available and having no other option considering his aged parents he had no other go but to return back home. After a great struggle the complainant and his parents returned back home and the complainant called 1st opposite party customer care centre on 19.07.2019, 20.07.2019 and also on several other dates seeking justice for their act, but till date the problem was not resolved. When the 1st opposite party has no way collaborated with the 2nd opposite party, they ought not to have showed it in their website to the customer for booking, but due to such a huge negligence on their part, the complainant and his parents had suffered a lot and also the complainant underwent trauma on the night. Thus aggrieved by the act of the opposite parties the present complaint was filed to direct the opposite parties to refund a sum of Rs.7,552/- paid by the complainant to the 1st opposite party with 12% interest per annum, to pay a sum of Rs.5,00,000/- towards compensation for deficiency in service by the 1st opposite party, to pay a sum of Rs.5,00,000/- towards compensation for unfair trade practice, to pay a sum of Rs.5,00,000/- towards compensation for the mental agony and hardship suffered by the complainant, to pay a sum of Rs.25,000/- towards the cost of the legal notice and to pay a sum of Rs.50,000/- towards the cost of the complaint.
Crux of the defence put forth by the 1st opposite party:-
The 1st opposite party was a company duly incorporated under the Companies Act 1956 and enjoys immense goodwill and reputation for providing superlative services to thousands of consumers. Besides other accolades bestowed upon ad recognitions awarded to the 1st opposite party, it has also been awarded as Best Travel Portal India by World Travel Awards, indicating the highest customer satisfaction and a fundamentally strong position in the industry. The 1st opposite party provides all the travel related unblemished services and information to its customer but not limited to air ticketing, railways ticketing, bus booking and hotel bookings at very competitive price. The 1st opposite party merely acts as a facilitator for booking the confirmed hotel bookings on behalf of its customers with the concerned service providers. The 1st opposite party upon the request received from its customer, forwards the same to the concerned hotel/hospitality service providers through software embedded on its web portal and upon receiving the confirmation from concerned service providers the booking ID was generated and confirmed bookings/tickets was shared with the customer. Any person intending to purchase any product or avail the services of the 1st opposite party is governed by the terms and conditions of the User Agreement. For availing the services of the 1st opposite party, the intended guest has to enter into an e-contract with the 1st opposite party by consenting to the terms and conditions of the 1st opposite party by clicking on “I Agree” pop up or button. Hence the customers are bound by the terms and conditions of the User Agreement of the 1st opposite party. The 1st opposite party shall not be held responsible or liable for any deficiency caused on the part of the concerned hotel. User Agreement also explicitly mention that the 1st opposite party shall not be responsible for any deviance in the standard of service provided by the concerned service provider or the concerned hotel. User Agreement of the 1st opposite party also explicitly states that no liability for the denial of check-in on the end of the concerned hotel could be attributed to the 1st opposite party. It was duty of the complainant to check if the itinerary provided is as per its satisfaction and requirement and could have raised the issue, if any before availing the hotel vouchers. Thus they sought for the dismissal of the complaint.
Crux of the defence put forth by the 2nd opposite party:-
The 2nd opposite party has no contract or connection with the 1st opposite party and the complainant. The 2nd opposite party did not promise to provide any service to the complainant or through the 1st opposite party. Therefore the complainant is not a consumer of the 2nd opposite party. There was no contract between the 1st opposite party and the 2nd opposite party. Hence the 2nd opposite party is not liable for any promise made by the 1st opposite party to the complainant. The 2nd opposite party has not given any commitment to the complainant and the complainant had also not booked with the 2nd opposite party. Therefore it was false to state that the 2nd opposite party had caused monetary loss, damages, mental agony, deficiency in service and unfair trade practice to the complainant. The complainant was not entitled to the relief sought as against the 2nd opposite party. The complainant had not booked any room with the 2nd opposite party through the 1st opposite party on 17.07.2019 for a stay on 18.07.2019 to 19.07.2019. On account of ATHIVARADAR festival already rooms were booked in advance and no rooms were vacant on 18.07.2019 and 19.07.2019 with the 2nd opposite party. Therefore the complainant could not claim that he had booked a room with 2nd opposite party. Thus they sought for the dismissal of the complaint.
On the side of complainant proof affidavit was filed and submitted documents marked as Ex.A1 to A4. On the side of the 1st opposite party proof affidavit was filed and submitted documents marked as Ex.B1 to Ex.B5 on their side. On the side of 2nd opposite party proof affidavit was filed but no document was filed on their side.
Points for consideration:
Whether the allegations made by the complainant with respect to booking of hotel room amounts to deficiency in service on the part of opposite parties and whether the same has been successfully proved by the complainant by admissible evidence?
If so to what reliefs the complainant is entitled?
Point No.1:-
The following documents were filed on the side of complainant in support of his contentions;
Email confirmation by the 1st opposite party dated 17.07.2019 was marked as Ex.A1;
Watapp message confirmation and communication by the 1st opposite party dated 17.07.2019 was marked as Ex.A2;
Tax Invoice for receipt of payment by the 1st opposite party dated 17.07.2019 was marked as Ex.A3;
Legal notice sent by the complainant to the opposite parties along with returned covers and postal tracking dated 16.08.2019 was marked as Ex.A4;
On the side of 1stopposite party the following documents were submitted in support of their defence;
Copy of the confirmed hotel vouchers shared with the complainant was marked as Ex.B1;
Copy of the User Agreement with terms of services was marked as Ex.AB2;
Copy of the page No.6 of the complaint copy was marked as Ex.B3;
Copy of the reply to legal notice was marked as Ex.B4;
Certificate Under Section 65 65B of the Indian Evidence Act along with copy of the Board Resolution was marked as Ex.B5;
The crux of the oral arguments adduced by the learned counsel appearing for the complainant is that though by spending an amount of Rs.7,552/- he had booked room in the 2nd opposite party hotel through the 1st opposite party’s website, he was not provided with the room for the reason that the 1st opposite party had made the booking without having any contract with the 2nd opposite party. As a result he was denied a room and was allotted an alternate room which was 24km away from the destination by the 2nd opposite party which was not accepted for the reason that he travelled with his aged parents. Thus he contended that by the act of the opposite parties he was made to suffer without any room booking and was left in streets. Thus he sought for the complaint to be allowed as prayed for.
On the other hand, the 1st opposite party appeared and argued that they are only facilitators between the complainant and the 2nd opposite party and they have no control or say on the acts of the service provider such as Air Lines and hotels etc. It is also submitted that the parties are governed by terms and conditions agreed between them at the time of booking and found in the user agreement. They also disputed the jurisdiction of this commission in deciding the dispute. Further the cancellation or reschedule by the hotel/service provider would not make the 1st opposite party liable. They also referred to the User Agreement wherein under the information from the hotel and the terms of the hotel it is stated that the liability of IBIBO in case of denial of check-in by a hotel for any reason will not be limited to either providing a similar alternate accommodation at the discretion of IBIBO. Thus also stating that there is no territorial jurisdiction to try the complaint, the 1st opposite party sought for the dismissal of the complaint.
The 2nd opposite party though filed written version they did not file any proof affidavit and also did not come forward to adduce either oral or written arguments. Hence they were called absent and the evidence and arguments on their side was closed. However, in their written version it is stated by them that they have no contract with the 1st opposite party and hence the booking made by the 1st opposite party would not bind them.
On appreciation of entire pleadings and materials this commission arrived at a conclusion that the present complaint has to be allowed for the following reasons;
The 1st opposite party and the complainant both have their office and residence respectfully within the territorial jurisdiction of this commission and hence the defence that complaint filed without jurisdiction has to be brushed aside;
Vide Ex.A2 the WhatsApp messages submitted by the complainant, the 1st opposite party by message dated 17.07.2019 provided as follows “we wish you a pleasant stay at the Naagaa Residency. Your reservation, with booking ID HTLT8SG2BS, is confirmed for Sriperumbudur. Date of check – in is 18 Jul, Check –out is 19 July. Check-in time is 12:00PM”. Further it is also found that they have stated “kindly note that your booking is already confirmed and you don’t have to call us to check this” which clearly shows that the 1st opposite party had booked the room for the complainant with the 2nd opposite party but without any consonance or affirmation from them;
The 2nd opposite party in the written version has clearly admitted that they have no contract or connection with the 1st opposite party and hence they are not liable for any bookings made by the 1st opposite party to the complainant. For the said version the 1st opposite party did not provide any evidence like service agreement entered between them and the 2nd opposite party authorizing them to book room on behalf of 2nd opposite party;
The terms of service as argued by the 1st opposite party states that the liability of ibibo in case of denial of check-in by a hotel for any reason what–so-ever including over-booking, system or technical error or unavailability of rooms etc will be limited to either providing a similar alternate accommodation at the discretion of ibibo (subject to availability at that time) or refunding the booking amount (to the extent paid) to the user. Any other service related issues should be directly resolved by the user with the hotel. However, in the present case the 1st opposite party had booked the room without any authority and hence the case of denial of check-in by hotel for the reason over booking, technical error or non availability of rooms etc. did not arise at all;
The 1st opposite party though received an amount of Rs.7,552/- no proof was submitted by them that the said amount was redirected to the 2nd opposite party’s Account and nothing was mentioned about the receipt of money by them. It causes a doubt as to who is liable to refund the money when the services availed was denied by the service provider. It amounted to illegal retention of money on the part of 1st opposite party if the same was not paid to the 2nd opposite party;
It is argued by the learned counsel appearing for the 1st opposite party that being a facilitator they will include all hotels available in their website for booking and it is for the hotels that don’t wish to avail their services to get withdrawn from their website. Such arguments is unreasonable as being a facilitator/service provider including the name of the hotel without their consent and any contract which amounts to unfair trade practice on the part of the service provider;
The 1st opposite party submitted that as per Information Technology Act they are exempted from any liability towards third party information. However, in the present case they cannot escape from liability for the reason that they had booked the room for the complainant on behalf of 2nd opposite party without their permission and without any contract or agreement between them and had made the complainant to suffer without any booking after receiving a considerable amount of Rs.7,552/- which amounted to clear deficiency in service and unfair trade practice for which they cannot escape from their liability by pointing out the exemptions from Information Technology Act. Merely citing any rule or law, a service provider cannot escape from their liability when they do service for consideration affecting the consumer.
For the above reasons we could safely come to a conclusion that it is the 1st opposite party which had committed clear deficiency in service and unfair trade practice towards the complainant. Thus we hold that the complaint allegations with respect to booking of hotel by the 1st opposite party without consent of 2nd opposite party amounts to clear deficiency in service. The point is answered accordingly in favour of complainant and as against the opposite party.
Point No.2:-
As we have held above that the 1st opposite party had committed deficiency in service and unfair trade practice in booking the room without the consent of 2nd opposite party it is for them to refund the amount collected from the complainant. Thus, we direct the 1st opposite party to refund a sum of Rs.7,552/- within six weeks from the date of receipt of copy of this order. For the mental agony caused to the complainant and for making them to suffer in the streets without any room and making them to return home without accomplishing the purpose, we award a sum of Rs.50,000/- as compensation which would be appropriate in the facts and circumstances. We also award Rs.10,000/- towards litigation cost.
In the result, the complaint is dismissed against the 2nd opposite party and partly allowed against the 1st opposite party directing them
a) To refund a sum of Rs.7,552/- (Rupees Seven thousand five hundred and fifty two only) with 6% interest from 17.07.2019 till date of realizations to the complainant within six weeks from the date of receipt of copy of this order;
b) To pay a sum of Rs.50,000/- (Rupees fifty thousand only) towards compensation for the mental agony caused to the complainant;
c) To pay a sum of Rs.10,000/- (Rupees ten thousand only) towards litigation expenses to the complainant.
d) Amount in clause (a) if not paid within six weeks from the date of receipt of copy of this order, enhanced interest at the rate of 9% will be levied on the said amount from date of booking i.e. on 17.07.2019 till realization.
Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 16th day of May 2023.
Sd/- Sd/- Sd/-
MEMBER-II MEMBER I PRESIDENT
List of document filed by the complainant:-
Ex.A1 17.07.2019 Email confirmation by the 1st opposite party. Xerox
Ex.A2 17.07.2019 Watsapp message confirmation and communication by the 1st opposite party. Xerox
Ex.A3 17.07.2019 Tax Invoice for receipt of payment by the 1st opposite party. Xerox
Ex.A4 16.08.2019 Legal notice issued by the complainant to the opposite parties along with returned covers and postal tracking. Xerox
List of documents filed by the 1st opposite party:-
Ex.B1 ............ Copy of the confirmed hotel vouchers shared with the complainant. Xerox
Ex.B2 ............. Copy of the User Agreement with terms of services. Xerox
Ex.B3 .......... Copy of the page No.6 of the complaint copy. Xerox
Ex.B4 ............... Copy of the reply to legal notice dated 13.11.2019. Xerox
Ex.B5 ............. Certificate U/S 65 B of the Indian Evidence Act along with copy of the Board Resolution. Xerox
Sd/- Sd/- Sd/-
MEMBER-II MEMBER I PRESIDENT