Haryana

Kurukshetra

CC/57/2019

Gajender - Complainant(s)

Versus

Make My Trip - Opp.Party(s)

Sadhu Ram Sharma

28 Sep 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KURUKSHETRA.

 

        Complaint No.57 of 2019.

        Date of instt.:13.02.2019

        Date of Decision: 28.09.2021.

 

Gajender Singh son of Sh.Dewa Singh resident of village Barna tehsil Thanesar, District Kurukshetra, now residing at 114, Sewells Lane, Brampton on, Ontario Canada through his power of attorney Sh.Narender Singh son of Sh.Deva Singh resident of village Barna Tehsil Thanesar District Kurukshetra.

                                                                        …..Complainant.

                                             Versus

 

Make my Trip India Private Limited, DLF Building No.5, Tower-B, DLF Cyber City, DLF Phase -2, Sector 25, Gurugram, Haryana India through its authorized person.

                                                                ……Opposite party.

 

Complaint under Section 12 of Consumer Protection Act.

 

Before      Smt. Neelam Kashyap, President.    

                Shri Issam Singh Sagwal, Member.

                Smt. Neelam, Member.

 

Present:    Shri Sadhu Ram  Sharma Advocate for the complainant.

                Sh.J.S.Sunarian Advocate for the OP.

.

           

ORDER    

 

                This is a complaint under Section 12 of the Consumer Protection Act, 1986 moved by complainant Gajender  Singh against Make My trip etc. the opposite party.

2.            It is stated in the complaint that complainant had gone to abroad in Canada and for this, he booked a room in Hotel at Toronto for two adults i.e. complainant and his wife Neelam Rani on 24.7.2018 for a cum of Rs.9037/- through OP vide ID No.NH2005789776349 but the OP booked the Hotel at Palacio Rejadorada in some other city instead of Toronto. On asking of the complainant, OP apologized  for the same and has refunded  the amount paid to the OP. Then the complainant approached the OP again on the same day for booking the Hotel at Toronto and the room had been booked vide ID No.NH2005789776349 but this time the OP has booked the hotel of the complainant twice in different city Edmonton Alberta instead of Toronto which is far away from Toronto. so due to deficiency in services on the part of the OP, the complainant alongwith his wife were arrested there on suspicion that the complainant has not booked the hotel in Toronto, rather they have booked it in different city and the complainant has to face a lot of problems only because of deficiency in services on the part of the OP.  As stated above, the complainant and his wife were arrested and the  complainant had  to engage a lawyer there and has to spend  a sum of Rs.10.00 lacs, so the OP is liable to pay compensation. The complainant also served legal notice dated 8.10.2018  upon the OP  but nothing has been paid. Thus, the complainant has filed the present complaint alleging deficiency in services on the part of the OP and has filed the present complaint claiming compensation for deficiency in services on the part of the OP alongwith litigation expenses.

 

3.             Upon notice OP appeared and filed written statement disputing the claim of the complainant. It is stated that OP is merely a facilitator for booking the confirmed air tickets/hotel bookings on behalf of its customers with concerned service providers. The OP upon the request received from its customer, forwards the same to service providers and upon receiving the confirmation from concerned service providers the Booking ID is generated and confirmed bookings/tickets is shared with the customer.  All the online transactions by the user of the website of answering OP i.e. www.makemytrip.com are governed by the website’s user agreement applicable to the person intending to purchase or inquiring for any products and/or services for the answering OP Every person intending to purchase any product or avail the services of the OP is bound to adhere by the terms and conditions of the User Agreement. It is further submitted that the complainant is resident of Toronto and upon the perusal of complaint, it is learnt that the present complaint has been filed to claim compensation for mental harassment caused to the complainant in Toronto, hence, the court  at Toronto  have the jurisdiction to entertain the present complaint. The complainant  had booked a room in a Hotel Palacio  Rejadorada for two adults and  has paid a sum of Rs.9037/-. However, the same was cancelled by the complainant owing to the fact that the same was made under mistake. The OP upon receiving the request for cancellation have duly cancelled the said booking and admittedly refunded the complete amount to the complainant. Thereafter, the complainant made the another booking for the Hotel at Edmonton Alberta vide booking ID No.NH7003686563582 and paid the sum of Rs.9523/-.The said booking was also confirmed by the OP, therefore, at no stretch of imagination it can be believed that OP was deficient in providing services.  It is denied that the complainant and his wife were arrested at Toronto. Thus, it is alleged that there is no deficiency in services on the part of the OP and prayed for dismissal of the present complaint.

 

4.             The complainant in support of his complaint has filed his affidavit Ex.CW1/A and tendered documents Ex.C-1 to Ex.C-16 and closed his evidence.

 

5.             On the other hand, OP in support of its case has filed affidavit Ex.RW1/A and tendered documents Ex.RW-1 and Ex.RW-2 and closed its evidence.

 

6.             We have heard the learned counsel for the parties and gone through the case file very carefully.

 

7.             The learned counsel for the complainant while reiterating the averments made in the complaint has argued that  the complainant has gone to abroad in Canada vide flight tickets Ex.C-2. Copies of passport of the complainant and his wife are Ex.C-10 and Ex.C11 respectively. For this purpose he booked a room in a Hotel at Toronto for two adults i.e. complainant and his wife Neelam Rani on 25.7.2018 for a sum of Rs.9030 /- through OP vide ID No.NH2005789776349 but the OP booked the Hotel at Palacio Rejadorada in some other city instead of Toronto as per Ex.C-3. On asking of the complainant, OP apologized for the same and has refunded  the amount paid to the OP vide Ex.C-7. It is also argued that  the complainant approached the OP again on the same day for booking the Hotel at Toronto and the room of hotel has been booked vide ID No.NH2005789776349 but this time the OP has booked the hotel of the complainant in different city Edmonton Alberta instead of Toronto which is far away from Toronto , so due to deficiency in services on the part of the OP, the complainant alongwith his wife were arrested there on suspicion that the complainant has not  booked the hotel in Toronto, rather they have booked it in different city and the complainant has to face a lot of problems only because of deficiency in services on the part of the OP. The complainant had to pay 6500 C$ to the advocate at Canada and spent  C$ 1800  for stay besides mental harassment and agony caused to them. As per Ex.C-2, the complainant the complainant had to got air tickets cancelled due to the circumstances which arose due to mistake of the OP.   Thus it is argued  that  complainant has to engage a lawyer there and has to spend  a sum of Rs.10.00 lacs, so the OP is liable to pay compensation. The complainant also served legal notice dated 8.10.2018 upon the OP but nothing has been paid. Thus, there is deficiency in services on the part of the OP and the complainant is entitled to relief. During course of arguments, the learned counsel for the complainant has stated at bar that now the complainant is residing at Kurukshetra.

 

8.             On the other hand, We have perused the written arguments filed on behalf of OP and have heard  the learned counsel for the OP  who while reiterating the contentions made in the written statement has argued that  as per settled law, the Forums should not entertain and/or interfere in the matter, where terms and conditions of the User Agreement  have been duly agreed to and binding between the parties.  The online transactions by the user of the  website  or the mobile application of the OP are governed by the website’s and application’s User Agreement, applicable to the person intending to purchase or inquiring for any products and/or  services of the OP.  It is also argued that there is no occasion for the complainant to approach this Commission seeking redressal of his grievances against the OP. It is also argued that the complainant is resident of Toronto and upon the perusal of the complaint it is learnt that the present complaint has been filed to claim compensation for mental harassment caused to the complainant in Toronto, hence the Commission at Toronto have the jurisdiction to entertain the present complaint.  Further, the registered office of the OP is in New Delhi and also works for gain in New Delhi, hence, the present complaint deserves dismissal on this score also. It is also argued that there is not an iota of evidence to prove the allegations of the complainant and as such no deficiency in services is established against the Ops and prayed for dismissal of the present complaint.

 

9.             After hearing the learned counsel for the parties, we are of the view that the argument advanced by the learned counsel for the Ops that as per settled law, the Forums should not entertain and/or interfere in the matter, where terms and conditions of the User Agreement  have been duly agreed to and binding between the parties is devoid  because as  per Section 3 of the Consumer Protection Act, the provisions of this Act shall be in addition  to and not in derogation of the provisions of any other law, therefore, this Commission has jurisdiction to decide the present matter and there is no need to refer the matter to the Arbitrator, as contended on behalf of the applicant/OP. In our view arbitration clause in the agreements cannot circumscribe the jurisdiction of a consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act.

 

10.           As per the case of the complainant,  in fact the complainant had chosen  for a tour package and under the said scheme, the OP had to arrange for air tickets and hotel at the desired place of the complainant and  the complainant  had  got booked a room in the hotel at Toronto for two adults i.e. complainant and his wife Neelam Rani  and on 24.7.2018 paid a sum of Rs.9037/- for booking of room through OP vide ID No.NH2005789776349 but the OP booked the Hotel at Palacio Rejadorada in some other city instead of Toronto. On asking of the complainant, OP apologized for the same and has refunded  the amount paid to the OP. Then the complainant approached the OP again on the same day for booking the Hotel at Toronto and the room had been booked vide ID No.NH2005789776349 but this time the OP has booked the hotel of the complainant in different city Edmonton Alberta instead of Toronto which was at a distance of 3,267.2  KMs from the desired place of  booking and it needed to 32 hours to cover this distance as shown  in Mark “A” placed on the file during the course of arguments.  As per document Ex.C-9 the Ops have admitted their mistake by stating “ We regret to inform that the booking was generated in a different city (Alberta) due to technical glitch. However, it is showing Toronto in the voucher which is shared to you by us. We deeply regret the incontinence caused to you.

                This mistake of the Ops led to great difficulty and humiliation to the complainant and his wife. They were arrested by the  Canada policy and were dragged into litigation in the court there. They had to engage a counsel for defending their case because when the room was not made available to them they were arrested by the police finding with no proof of residence. As per complainant he spent  C$ 6500 for engaging counsel and  also spent  C$ 1800.00 for stay. Though there is authentic proof of counsel fee on the file. However, this all has happened due to  non booking of the room at the exact place which caused the complainant financial as well as mental harassment  and this act on the part of the OP amounts to deficiency in services on the  part of OP and the OP is liable to pay Rs.3,00,000/- to the complainant.

 

11.           In view of our above discussion, we accept the present complaint and direct the OP to pay the sum assured i.e. Rs.3,00,000/- to the complainant  for the deficiency in services and for the mental harassment and agony suffered by him and  financial loss suffered  by the complainant, within a period of 30 days from the date of this order, failing which the said amount of Rs.3,00,000/- shall carry interest at the rate of 6% per annum from the date of this order till its realization.  The complainant shall also be entitled for a sum of Rs.10000/- for the litigation expenses.  It is also made clear that if the OP  failed to make the compliance of this order within  a period of 45 days from the date of this order, the complainant will  also be at liberty to initiate proceedings under Section 25/27 of the Act against the OP. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the record-room, after due compliance.

 

Announced in open commission:

Dt.:28.09.2021.                                         (Neelam Kashyap)

                                                                     President.

 

 

(Issam Singh Sagwal),               (Neelam)     

 Member                              Member.