Date of Filing:04/02/2014

    Date of Order:10/01/2017

ORDER

BY SRI.SYED ANSER KHALEEM, PRESIDENT

1.     This is the complaint filed under Section 13 of the Consumer Protection Act, 1986, alleging the deficiency in service on the part of the OPs(hereinafter referred in short as O.Ps) and praying for direction to the Ops to pay a sum of Rs.7,51,250/- towards compensation. 

2.     The brief facts of the complaint are that, the OP is claims to be India’s leading online company and engaged in providing online travel services including flight tickets for domestic and international holiday packages etc.  The complainant being impressed about the services of the OP   and hence decided to plan for a family vacation and accordingly intended to go Darjeeling and Gangtok schedule on May 24^th to May 30^th.  Thereafter complainant first booked the tickets through travel agents on 8^th May 2014 .  On 9^th May complainant booked 4 rooms at four stars Hotel namely, Little Tibet Resort of Darjeeling for the days 24^th May to 27^th May 2014 and made payment of Rs.75,125/- through credit card.  It is stated that on 12/5/2014 complainant received a call from One Ms. Kruthika from Make My Trip .com intimated that the rooms in the said Hotel was not available and hence they have given option to book the Hotel at Old Belluve Heritage Hotel can be the only   option, whereas the complainant is not interested in the said Hotel  and informed the OP to arrange for the better alternate.   That the complainant alleges that there was no response from the OP regarding the alternate Hotel and Hence on 12/5/2014 at about 8.30pm and asked the management of the Hotel as to what exactly went wrong and why was the Hotel bookings were cancelled.   It is also alleged that in spite of sufficient rooms available in the Little Tibet Resort, the bookings were not done ,as the intimation comes to the complainant from the said Hotel. Further states that the act of OP in taking the bookings, online receiving the payments, confirming the booking and then thereafter calling and intimating that the bookings were not available, it causes the jeopardizing the family, Family vacations of the complainant and hence alleged the deficiency in service and unfair trade practice.  Thereafter, the complainant got issued a notice to the OP and sought for compensation alleged to the suffering of the mental agony, anguish and financial losses, but the Ops did not bother to reply the notice. Hence this complaint.

3.     Upon issuance of notice, OPs appear through their counsel and filed version. It is contended that, as per the terms and conditions this Forum has no  jurisdiction to entertain this complaint. Further contended that ,in case of the online bookings has been done through the OP, no cause of action either wholly or in part can be said to have arisen at Bangalore. Hence contended that, this Forum has no jurisdiction. It is admitted that, OP was booked Hotel rooms at Little Tibet Resort, Darjeeling on 9thMay 2014,  the entire procedure of online booking is strictly based on the entries made by the Website Visitor and the terms and conditions is accepted by the website Visitor also.   It is also admitted that , they have received Rs. 75,125/- in order to book the said rooms,  thereafter, booking confirmation was sent to the complainant along with Hotel Confirmation Voucher.  The OP contended that, due to in availability of the room after booking of the OP and contacted the complainant and offered her to provide a Hotel of same amenities and the complainant refuse to agree on that. Thereafter the OP proceeded full refund of booking timely on 27^th May 2014 vide RR No:414619571510, which complainant herein as completely canceled in the present complaint. It is contended that, as per the clause in the agreement one of the condition is that, due to Force Majure circumstances the cancellation was done and accordingly, refunded the amount. Further contended that, OP acted in its ordinary course of business and as per the terms of the scheme agreement and on the online bookings, the contents of which were within knowledge of the complainant.   Hence OP contended that, there is no deficiency in service on the part of the OP and further contended that the complaint is not maintainable either in the eye of law or on facts and the same is lacks cause of action to bring the complaint. The OP also denies all the other allegations averred in the complaint and finally prays for dismissal of the complaint..

4.       In order to substantiate the case of the parties and both parties filed their affidavit evidence and also heard the arguments.

5.      On the basis of the pleadings of the parties, the following points will arise for our consideration are:-

                                (A)   Whether the complainant has proved

                     deficiency in service on the part of the O.Ps?

(B)  Whether the complainant is entitled to

     the relief prayed for in the complaint?

(C)   What order?

6.     Our answers to the above points are:-

POINT (A) & (B):      In the Negative.

POINT (C):       As per the final order

for the following:

REASONS

POINT No.(A) & (B):-

7.   On perusing the pleadings of the parties, it is not in dispute that the complainant by availing the services of the OP Website and contacted the OP in order to go for Holiday Vacation with her family members and requested the OPs to book four rooms at 4 Star Little Tibet Hotel at Darjeeling for four days i.e., from 24^th May to 27^th May 2014. It is also not in dispute that, the complainant paid to the OPs Rs. 75,125/- through credit card.

8.     The sole allegation of the complainant is that, after confirmation of the booking of the rooms at 4 star Little Tibet Hotel, the OPs intimated the complainant that the rooms are not available at the Hotel and informed the complainant that they will arrange better alternative with the same  kind of all amenities.  However, the complainant refused for the alternative arrangement. On perusal of the entire complaint no where the complainant stated that they OPs were not refunded the amount. However the OPs contended that, the OPs proceeded to full refund of booking timely on 27^th May 2014 vide RR No:414619571510, which complainant herein as completely canceled in the present complaint. However the complainant did not stated anything about the refund of the amount at the earliest also, not whispered anything about the refund in her affidavit evidence. Hence it is the duty bound that the complainant has to disclose all the material facts regarding the transaction, and not disclosing the same it is as good as suppression of material facts. The law mandates that, the one who approaches the Court of Law , he/she should put forth all the real facts and  should approached with clean hands.

9.     It is worth to note that, the complainant also not stated the terms and conditions of the booking of the Hotel rooms by the OPs and also it is not  the case of the complainant that she is not aware of the terms and conditions of the OPs and hence we have no hesitation to hold that, the terms and conditions of the OPs relating to booking of rooms binds the parties. It is the specific contention raised by the OPs due to Force Majure circumstances, the OPs failed to provide the rooms in the agreed Hotel. The conditions of the Force Majure, it reads thus,

10. The user agrees that there can be exceptional circumstances where the service operators like the airlines, hotels, the respective transportation providers or concerns may be unable to honor the confirmed booking due to various reasons like climatic conditions, labor unrest, insolvency, business exigencies, government decisions, operational and technical issues, route and flight cancellations etc.,  It MMT is informed in advance of such situations where dishonor of booking may happen, it will make its best efforts to provide similar alternative to its customers or refund the booking amount after reasonable service charges, if supported and refunded by that respective service operators.  The user agrees that MMT being an agent for facilitating the booking services shall not be responsible for any such circumstances and the customers have to contact that service provider directly for any further resolution and refunds”.

11.   On perusal of the one of the above terms, it clearly reveals that they are not responsible for facilitating the booking services due to above reasons.  In this particular case, the OPs already intimated to the complainant through email as per documents D-5 and stating that, “We are  checking for alternative options and will get back in next 24 hours” and hence information passed to the complainant and it is the option of the complainant to go for the alternate arrangement in order to fulfill her purpose. It is not the case of the complainant that the complainant not got any alternate rooms of best quality and also not undertaken tour.  Hence in our opinion , the complainant did not suffered any mental agony.  In this particular case, the OPs have also made refund of the booking amount at the earliest and the complainant did not denied the same.  In the light of above discussion, we reached to conclusion that, the complainant failed to prove deficiency in service on the part of the OPs and hence not entertained for the reliefs as sought in the complaint.  Accordingly we answered these points in the Negative.

POINT No. (C):- 

12.   On the basis of the findings  given on the  point No. (A) and (B) and in the result, we proceed to pass the following:-

ORDER

1. The complaint is dismissed. No order as to cost.

2. Send a copy of this order to both parties free of cost.

(Dictated to the Stenographer, transcribed and computerized by him, corrected and then pronounced by us in the Open Forum on this the 10^th Day of January 2017)

MEMBER                 MEMBER                PRESIDENT