| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II Udyog Sadan, C-22 & 23, Qutub Institutional Area (Behind Qutub Hotel), New Delhi- 110016 Case No. 02/2019 Sh. Devvrat, 268, Pocket B, Sukhdev Vihar, New Delhi-110025 ….Complainant Versus Make My Trip India Pvt. Ltd., F-26, 1st Floor, Connaught Place, Inner Circle, Opposite Palika Bazar, New Delhi-110001. ….Opposite Party Date of Institution : 03.01.2019 Date of Order : 24.03.2023 Coram: Ms. Monika A Srivastava, President Ms. Kiran Kaushal, Member Sh. U.K. Tyagi, Member ORDER Member: Sh. U.K. Tyagi - Complainant has made a request for passing an award directing Mr. Deep Kalra-Chief Executive, Make My Trip India Pvt. Ltd. (hereinafter referred to as OP) (a) to refund the full amount of Rs. 29,000/- (Rs. 14,000/- paid to MMT + Rs. 15,000/- paid to other Resort); (b) to pay Rs. 70,000/- towards medical expenses of children accompanying the Complainant; (c) to pay a sum of Rs. 5,00,000/- towards mental & physical harassment;(d) to grant damages to the tune of Rs. 5,00,000/- in lieu of malpractices etc.
- Brief facts of the case are as under:-
The Complainant made a booking through Mobile of 6 persons (4 adults + 2 children) 2 room at the Pacific Inn 360 degree Resort, Ratta Panni, Neelkantt Road, Rishikesh via Make My Trip. The Complainant paid a total of Rs. 14,005/- through his credit card for the said booking. It was stated that the Complainant made a call to the aforesaid Resort to inform them about their arrival/check-in time. It was told by the Resort person that the accommodation in the Resort was sold out and there was no vacancy. The Complainant made a call immediately “Call Centre of the OP” informing about the unavailability of accommodation. The Call Centre kept the Complainant on waiting for 12 minutes. The agent of OP informed that there was no problem and room booked to the Resort in question stood confirmed. The said call got recorded. The said Resort was located at secluded place and in the midst of thick forest. It was further alleged that on reaching near the said Resort, he made call to the attendants of Resort to send errand boy to show the way to Resort. After long waiting, two boys came and lifted two baggage and they were made to carry remaining baggages. Thereafter it was told that there was no room available with said Resort. The Complainants were made to walk on the edge of the open drain around 500 mtrs. The Complainant also attached some photographs of the way & surrounding area at Annexure-C/2. - The Complainant had to shell out the huge amount for taking another Resort. The Bill of said Resort i.e. Nakshatra is attached at Annexure-C/3. Due to cold experienced in the night, the toddlers went down with heavy fever. The Complainant contacted 24 hours custom care Call Centre of the OP but they did not provide any assistance whatsoever. This comes under anti-consumer practices and glaring example of mis-selling unfair trade practices. The Complainant also sent e-mail to Mr. Deep Kalra for cancellation of booking and process the refund. There was exchange of e-mail for apologies for the inconvenience caused. Last e-mail received from OP was 28.12.2017, the update shall be shared in next 12 hours. It is noticed that the OP instead of taking corrective step tried to provide justification for illegal and reprehensible act of the company and hotel partner. The Complainant also got the legal notice issued. The OP replied to the said legal notice defending the undefendable acts. The Complainant filed complaint at M-Block, Vikas Bhawan, near to his office. But the Complainant was asked to withdraw vide order dated 29.05.2018 on the ground of territorial jurisdiction. Hence the complaint was filed in this jurisdiction.
- OP, on the other hand, filed its written statement interalia raising some objections/submissions. It is stated that the present complaint is flagrant abuse of power therefore is liable to be dismissed with exemplary cost U/s 26 of Consumer Protection Act 1986. It is to be taken into essential consideration by this Commission that the OP just acted as facilitator for booking of Hotel Pacific Inn 360 Degree Resort. The Complainant himself booked the hotel/Resort via Mobile App of the OP. If at all, there was a fault as alleged made on the part of Resort. In this regard the provisions of Section 230 of Indian Contract Act 1872 are invoked. The agent cannot be held responsible on behalf of principal. Reliance is also placed on “Prem Nath Motor Vs. Anurag Mitra (2008) CPJ 37 SC” wherein it has been held that Section 230 of Contract Act 1872 categorically makes it clear that an agent is not liable for the acts of a disclosed principal.
- The present complaint is bad in law for non-joinder of said Resort. It was further stated that the agreed terms & conditions enumerated in booking Forms, governs the provisions of contract. Reliance was also placed on the case of Bharathi Knitting Co. Vs. DHL World Wide Express Courier- wherein it has been held that the Commission/Forum are not entitled to modify the terms of agreement. Complicated case like this, should be referred to Civil Court. Case law of Citicorp Maruti Finance Ltd Vs. S. Vijaya Lakshmi and HDFC Bank Ltd Vs. Kanwal Ohri & Ors (RP No. 2001 of 2022) also refer the same ratios. The OP also invoked the provision of “Force Majeure” circumstances.
- The transactions with OP are governed by Website’s “User Agreement”. “Make My Trip” only acts as a booking agent facilitating hotel room reservation between hotel & customers. Customer is ultimate user. The Complainant also availed all meals which were not included in the package and had not paid any thing and stayed one day to adjust the 2 nights stay as informed by Resort to OP. No deficiency in service on the part of OP. Hence the Complaint is liable to be dismissed.
- Both the parties have filed written submission and evidence in affidavit. Written Statement is on record so is rejoinder. Oral arguments were heard and concluded.
- This Commission was taken through the records/evidence available on record. Due consideration was given to the arguments. While going through the material, it was found that the booking was made through Mobile App of the OP. It brings to the conclusion that the Complainant was in direct contact of OP and further details were made available by the OP through its App. Hence, there is no reason not to believe the contention of the Complainant to this extent that the booking was made through OP only. Hence, OP should be responsible for the deficiency in service which ought to have been available as per terms & conditions of the booking. The contention of the OP for relationship with Complainant that of Principal-Agent is not found convincing therefore the invocation of provision of Section 230 of Contract Act 1872 is unwarranted and undesirable so much so the ratios of Hon’ble Supreme Court in the cases referred above. The facts of these cases are not pari materia of the present case. The OP has also invoked of the “Force Majeure” as applicable to the circumstances of the present case. The Complainant vide replication rebutted the aforesaid clauses of Force Majeure. He further stated that there was no such mis-happening such as acts of God, fire, strikes, embargo etc. and misplaces reliance on such unusual clause, amply makes clear that the OP has no ground to defend its case. The Complainant also contested the terms & conditions of Goibibo as referred by OP whereas the Complainant booked the Resort booking on Mobile App of the OP. So the terms & conditions of Goibibo has nothing to do with the present case.
- After having considered the facts and circumstances in the case, this Commission is of the strong view that the OP is wholly responsible for the deficiency in services. Therefore, OP is directed to make the payment of Rs. 24,000/- as requested by the Complainant in its complaint after deducting the amount of Rs. 5000/- as claimed by OP for meals & one night stay. The Complainant is also entitled Rs. 30,000/- towards compensation, malpractices, legal expenses etc. The above amount is to be paid within 2 months from the receipt of this order failing which the rate of interest @ 7 % p.a. shall be levied on above amounts of Rs. 24,000/- till its realization.
Parties to be provided copy of order as per rules. File be consigned to the record room. Order be uploaded on the website. | |
