Before the District Consumer Dispute Redressal Commission [Central District] - VIII, 5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi
Complaint Case No.328/2019
Mr. Manish Maini s/o Mr. Om Prakash Maini
R/o 198, Manu Apartments, Mayur Vihar Phase-I,
Delhi-110091 …Complainant
Versus
Make My Trip India Private Limited
Regd. Off- : B-36, Ist Floor, Pusa Road,
New Delhi-110005
Also at : 18th Floor, Tower A,B and 19th Floor-
Tower A, B, C, Building No. 5, DLF Cyber City,
DLF Phase-III, Gurgaon-122002 ...Opposite Party
Date of filing 02.12.2019
Date of Order: 23.01.2024
Coram:
Shri Inder Jeet Singh, President
Ms. Shahina, Member -Female
ORDER
Inder Jeet Singh , President
1.1. (Introduction to disputes of parties) –The complaint was filed for allegations of deficiency of services and unfair trade practice against the OP. The complainant made online hotel (room) advance booking through OP at www.makemytrip.com on 03.11.2019 of a four star hotel “Velvet Clarks Exotica Hotel, NH-21, Near Old Domestic Airport, Zirakpur, Chandigarh for period from 09.11.2019 to 10.11.2019 (for accommodation 1 night/1 room with breakfast) for two adults and one child (namely the complainant, his spouse and 05 years old son). However, when the complainant along-with his family reached the hotel, it surprised them by learning from the hotel that there was no booking by the OP for the stay of complainant and his family; which put them to harassment and inconvenience that too at odd night hours, while carrying with them luggage. That is why the complaint was filed under the Consumer Protection Law.
1.2. The OP opposed the complaint vehemently on various grounds inclusive on the point of territorial jurisdiction of present District Commission in Delhi, for want of deficiency of services or unfair trade practice, for want of cause of action against the OP besides the complaint suffers from non-joinder of Velvet Clarks Exotica hotel.
On factual position, it is also opposed that the OP had informed the complainant and provided confirmed booking of the desired booking of desired date, therefore, there was no other liability attributed to the OP. The OP, being a technology driven, consumer centric company, has provision of a system to the concerned hotel, wherein the concerned hotel has live inventory of rooms available at their end for the booking made through OP, that too on prevailing rates but it is within prerogative of concerned hotel to keep its inventory assessable till the time all the rooms are not completely booked. However, the said hotel failed to close the inventory despite being aware of the fact that inventory would be available to be booked from the end of the hotel. There is no merit in the complaint against OP and it is liable to be dismissed.
2.1. (Case of complainant) –The complaint introduces about his status of income tax payee besides a practicing lawyer for the last 15 years in the apex court and Delhi High Court. He also gives brief introduction of his family status and his son being a student of international school. Similarly, he also narrates about the activities of OP, on the basis of information gathered from the acclaims advertised on the website, being pioneer of the India in online travel industry. The paragraph-3 of the complaint enumerates about 13 type of services being provided by the OP, one of them is ‘hotel booking’.
2.2. The complainant booked room in hotel by advance booking online through OP at www.makemytrip.com on 03.11.2019 of a four star hotel “Velvet Clarks Exotica hotel, NH-21, Near Old Domestic Airport, Zirakpur, Chandigarh (briefly ‘hotel’) for 09.11.2019 to 10.11.2019 (for accommodation for one night/ one room with breakfast) for two adults and one child (namely the complainant, his spouse and five years old son), by confirmed booking Id NH7207138423952 & PNR No. 0059574408 dated 03.11.2019 against payment of full advance booking amount of Rs.3,167/- to OP, which was also confirmed by OP vide email dated 03.11.2019.
2.3.The complainant with his family reached the hotel on schedule date on 09.11.2019 at 6 pm, it was a utter surprise, when it was conveyed to the complainant and his family that there is no booking/reservation made in their names by the OP. The hotel was shown online advance booking receipt at the reception desk but the hotel staff was clueless about such booking and informed the complainant that there is no accommodation available even otherwise, hotel was fully occupied. The complainant called customer care executive of OP and after half an hour, he was apprised that due to inadvertence the booking could not be conveyed to the hotel. The complainant was disheartened by the conduct of OP, he was also helpless as where to move along-with his child and unwell wife at late hours besides with luggage. The OP had no explanation, except an apology for discomfort and inconvenience. Then OP offered unknown alternate accommodation but it was not acceptable to the complainant because of uncertainty of grade of hotel, its location/distance from that place, besides it was late evening dark hours and complainant was not intending to take any kind of further risks; since the complainant lost all confidence in OP and did not want to chance any mis-happening at that point of time. However, by realizing misery of complainant and his family, as well as own mistake by OP, the OP agreed to refund the amount of Rs. 3,161/- and it was transferred/refunded to his account (vide refund process email dated 09.11.2019 at 19:00 hours) besides adding Rs.750/- to wallet of Make My Trip (which can be utilized only with next transaction from Make My Trip itself) as a compensation for inconvenience caused.
2.3 The complainant was completely shattered after the incident, he was constraint to ascertain room/accommodation in other standard hotel around the place but they could not succeed as there was high foot fall of tourists and visitors being weekend and start of wedding season. There was hardly any other option left except moving back to Delhi. It was bad cold weather and the complainant’s wife’s condition was deteriorating, thus under such constraint, they decided to go to the house of a relative that too without prior notice to them in the dark evening around 20:00 hours, which caused immense humiliation and depression to the complainant and his wife, besides adding woe to the relatives.
2.4 The complainant being a reasonable family person pre-planned trip in most suitable things to do including advance room booking in hotel. But the OP put the complainant and his family to the trouble by breach of fundamental aspect of services. The complainant also served legal notice dated 23.11.2019 in respect of the problems faced by the complainant besides humiliation and mental trauma. There is deficiency of services and unfair trade practice on the part of OP. That is why the complaint for compensation of Rs. 7 lakhs (viz Rs. 1 lakh for gross deficiency in service, unfair trade practices, deceiving claim; Rs.2 lakhs on account of physical pain and inconvenience suffered; Rs. 3 lakhs in lieu of mental agony, trauma and shocked suffered by complainant and his family; Rs. 1 lakh on account of humiliation, embarrassment and loss of reputation in front of relatives), besides cost of the proceedings and other relief.
2.5 The complaint is accompanied with copy of ID proof of the complainant, booking confirmation and payment receipt email, email of denial of booking by the hotel, email of refund by OP, email of amount into Make My Trip wallet and legal notice dated 23.11.2019.
3.1 (Case of OP)- The OP filed detailed written statement by representing it under different headings and sub-headings. The main headings are of preliminary submissions of case of OP, then preliminary objections (under various sub-headings of want of cause of action, want of territorial jurisdiction, want of deficiency in services or unfair trade practice; the liability, if any, is to be of concerned hotel, who was not joined as a party to the complaint, refund of the advance booking with compensation and the claim as presented is exaggerated and not tenable) followed by para-wise reply on merits, being in expansion of the preliminary submissions and objections.
3.2. There was online advance booking of hotel room for traveler Manish Maini and his family. However, it is managed through online web portal www.makemytrip.com and mobile application “MakeMyTrip” and OP provides all travel related unblemished services and information to its customers at very competitive prices. The OP is just a facilitator for booking of the confirmed tickets etc on behalf of its customers with the concerned service provider including hotels. The OP, on receipt of request from its customer, forwards that request to the concerned hotel through software embedded on its web portal. On receiving the confirmation from the hotel booking service provider, the booking ID is generated and confirmed booking ticket is shared with the customer. Moreover, in all online transactions by the user of website or mobile app, the parties are governed by the terms and conditions of ‘user agreement’ vis-à-vis the intended user enters into e-contract with the OP by endorsing consent to the terms and conditions “I agree” pop up or button. Therefore, the role of OP is discharged immediately on generation of confirmation of booking from the concerned service provider.
3.3 The OP had informed the complainant and provided confirmed booking of the desired booking of desired date, therefore, there was no further liability attributed to the OP. The amount received from the complainant was also remitted to the hotel. The OP, being a technology driven, consumer centric company, it has provided a system to the concerned hotel, wherein the concerned hotel has live inventory of rooms available at their end for the booking made through OP that too on prevailing rates but it is within prerogative of concerned hotel to keep its inventory assessable till the time all the rooms are not completely booked. However, the said hotel failed to close the inventory despite being aware of the fact that inventory is available to be booked from the end of the hotel. In this scenario, there is no cause of action against the OP as it was discharged immediately on generation of confirmed booking with ID.
3.4 The complainant was also offered an alternate accommodation by OP, however, it was not accepted by the complainant, there cannot be allegation of deficiency in services or unfair trade practices vis-à-vis cancellation of booking, the complainant was returned the advance booking amount besides Rs. 750/- as per users agreement. which is within the policy. The complaint is mala-fide and the refund alongwith compensation has already been paid.
3.5 Moreover, the hotel is located in Chandigarh and the complainant has not impleaded the said hotel as a necessary party to the complaint, therefore, the complaint suffers from non-joinder of the hotel but OP, despite there is no cause of action against it. Moreover, the territorial jurisdiction for the complaint is not in Delhi since hotel is located in Chandigarh, the complaint suffers from want of territorial jurisdiction with the present Commission. There is no merit in the complaint and it is liable to be dismissed.
3.6 It is relevant to mention the legal issues being raised in the reply/pleading are argumentative in nature, they will be dealt in appropriately while giving the findings on disputes. The OP's reply dated 12.12.2019 is accompanied with documentary record of agreement between user and Make My Trip, confirmed booking at the hotel addressed to complainant, payment detail, refund confirmation and reply to legal notice.
4.1 (Replication of complainant) –The complainant filed detailed replication as a response to the written statement correspondingly to various heads and sub-headings in the reply. Except the admitted facts by the OP, all allegations of reply has been denied by the complainant, while reaffirming the contents of complaint.
4.2. There was confirmed booking with the said hotel, however, the hotel was not having any information by OP of the booking. There was refund by OP of the booking amount alongwith Rs.750/- transferred in the Make My Trip wallet, however, the same can not used unless the complainant uses services of OP again; it is useless amount that too after facing tremendous problems by the complainant and his family for want of services and loss of trust. The complainant also reiterates that proposed alternate accommodation of unknown place and grade of hotel was rightly denied as a prudent man that too at late evening hours, when the complainant was accompanied by his sick wife and minor child besides luggage. There was no reason to implead hotel Velvet Clark being a third party as the booking amount was received by the OP and the said hotel had no information of the booking. There is cause of action and jurisdiction lies with the present District Commission at Delhi. The compensation has been claimed properly and it is to be considered from the status of complainant and his family.
5.1. (Evidence)-The complainant led his evidence by filing detailed affidavit, it is on the lines of complaint, coupled with documentary record annexed with the complaint besides medical record of wife of the complainant & and copy of ITR.
5.2. The OP also led its evidence by filing affidavit of Sh. Ekank Mehra, Deputy Manager-Legal/AR of OP, it is also on the lines of written statement, besides copy of Resolution annexed with the affidavit.
6.1 (Final hearing)- Both the parties filed their respective written arguments followed by oral arguments by the complainant himself (being a practicing Lawyer) and Sh. Harshvardhan, Advocate for OP. The written arguments and oral submissions are in substance as the case of the parties (already introduced hereinabove). However, both the sides have also filed case law to highlight them in their support, especially that there are many decisions by other District Commissions, in which this OP was also a party and those decision were in favour of OP.
6.2. However, while taking into account the features of the case as well as the case law presented, it is material to mention that each case has its own facts, features and issues involved. Moreover, in order to apply/follow a precedent to later case, certain criteria is to be fulfilled, which was laid down in “Padma Sundara Roa & Ors Vs. State of Tamilnadu and Ors. 2002(3) SCC 533, that a ratio of a case is a facts specific i.e. ratio of the case has to be read as per the facts of a particular case and even change of a single fact can make difference to the ratio of case”. This principle will be kept in view, while considering the facts and evidence of this complaint, besides that complaint under the Consumer Protection Act, 2019 is governed by summary procedure.
6.3.1 The complainant has relied upon the following case to fortify its case:-
(a) Poineer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan 2019(5) SCALE 680, it was held that (in para-6.7) that ex-facie the contractual terms of agreement are one sided, unfair and unreasonable. The incorporation of one sided clauses in an agreement constitutes unfair trade practice as per section 2(r) of the Consumer Protection Act 1986, since it adopts unfair methods or practices for the purposes of selling of flats by the builder.
(b) M/s Hello Travel Vs. Harish C. Jain & Anr in RP No. 45/2020 dod 27.02.2020(NC), it was held a case of deficiency of services since the complainant did not receive the hotel vouchers and other documents from the travel agency and advance amount was not refunded. (Ld. Counsel for OP has reservation that in the present complaint that amount was refunded by the OP, that is why this citation does not apply).
6.3.2 The OP has relied upon the following case to fortify its case:-
(i) Bharathi Knitting Co. Vs. DHL Worldwide Express Courier (1996) 4 SCC 7041, it was held that when there are specific terms in the contract, the parties are bound by the terms of such contract. [the OP also refers Patel Roadways Ltd. Vs. Birla Yamaha Ltd. Appeal (civil) 9071/1996 and Citicorp Maruti Finance Ltd Vs S Vijaylakashmi Civil Appeal no.9711/2011, wherein Bharathi Knitting Co.(supra) was referred] {The complainant has reservation that terms and conditions are one sides, the same cannot be construed fair and reasonable}.
(ii) Ayesha Khan Vs. Make My Trip India Pvt. Ltd. in CC. No. 32/2020 DCDRC, Bikaner dod 18.11.2021 that the complaint against Make My Trip India Pvt. Ltd was dismissed by the District Commission, since the concerned hotel namely Trident Hyderabad (Five Star Rating) failed to provide appropriate room, attached bathroom and the beds were in broken condition etc. {The complainant has objection to the applicability of this case as it is of different context when room was made available but services were deficient}.
(iii) Mr. Ashish Arora Vs. Make My Trip India Pvt. Ltd in CC. 598/2019 DCDRC, Amritsar dod 21.02.2022, it was held that it was OP2/Hotel Triund Regency was bound to allot the rooms booked by the complainant through OP1/ Make My Trip India Pvt. Ltd, consequently the OP1 was directed for refund the amount with interest and OP2 was directed to pay the litigation expenses etc. {The complainant also protest applicability of this case law since it was case the room was allotted but it not provided to customer by hotel}.
(iv) Mr. Bhupinder Singh Bhatia Vs. Make My Trip India Pvt. Ltd. in CC. No. 624/2018 DCDRC Amritsar dod 18.10.2021 in para-9 it was held that it stand proved on record that OP1/ Make My Trip India Pvt. Ltd had provided the services to the complainant for which they were hired but the OP2/Hotel Pink White failed to provide the requisite services as booked rooms were sinking and emanating, foul smell, which were not fit for human, the complaint was dismissed against Make My Trip India Pvt. Ltd. {The complainant has reservation to the applicability of this case as it is of different context when room was made available but it was not inhabitable, there were deficient services}.
(v) Abhijeet Singh Vs. GoIBIBO & Anr.(2018) DCDRC, Chandigarh and Manoj Bedi Vs. M/s Make My Trip & Ors. Ld. DCDRC, Amritsar (2019) that it was the liability of airlines to refund the ticket amount to the customers in the event of cancellation/reschedule of the flight and it is not the liability of travel agency who booked the tickets.
(vi) Shri Caitano Fernandes Vs. Make My Trip India Pvt. Ltd in CC. No. 40/2020 dod 07.06.2021 by DCDRC, South Goa at Margao, it was held that complainant had cause of action only against service provider in case of non refund of cancellation/reschedule of booking and not against the travel agency, as travel agency merely acts as a facilitator by forwarding the amount received by the customers, after charging its due service fee to the concerned and service providers and forwarding the refund from concerned and service providers to the customers.
(vii) Further, the OP also refers Bright Transport Co. Vs. Sangli Sahakari Bank Ltd. in CC. No. 286 & 287/2011 NCDRC dod 12.01.2012 and, Synco Industries Vs. State Bank of Bikaner & Jaipur Appeal civil 6453/2000, dod 15.01.2002 and Sonali Srivastav Vs. Red Bus & Anr. CC. 580/2019 dod 12.01.2023 by DCDRC, Janakpur. {However, the complainant has reservations that both the cases are pertaining to different facts and features with regard to banking transaction and bus tickets, which are entirely different from the facts and features of the present complaint. Similarly other cases are also distinguishable from the feature of present complaint}.
7.1 (Findings)-The contentions of both the sides are considered, keeping in view the material on record in the form of evidence of the parties, which also includes documentary record. There are many admitted facts and remaining are disputed facts.
7.2 It is not in dispute that the complainant had booked a room in the hotel for him and his family through OP, confirmed booking was also issued by the OP. However, on the scheduled date and time when the complainant reached the hotel, the accommodation was refused for want of booking in the name of complainant. The complainant was permitted to lodge in that hotel. The complainant raised his grievances, which were also reported to the OP forthwith. The booking amount was refunded to him by OP for want of availability of accommodation.
7.3 However, the other facts and features of the case are disputed besides legal objections, the same are taken one by one.
8.1 Ld. Counsel for OP has objection that the complaint of December 2019, is filed u/s 12 of the Consumer Protection Act 1986, but the Consumer Protection Act 1986 was not in force in December 2019, therefore, the complaint is not maintainable. But the complainant requests that the complaint was filed by mentioning section 12 of the Act 1986 but with up-to date amendments, otherwise it would not make the complaint non-est, the complaint may be treated under the Consumer Protection Act 2019. Further, there was no such objection by the OP earlier.
8.2 The submissions of both the sides are based on record. It is fact that the Consumer Protection Act 2019 was repealed by section 107 of the Consumer Protection Act 2019 subject to repeal and saving clauses. Moreover, instead of going by nomenclature of the title of the complaint u/s 12 of the Act 1986 but by considering the substances being covered under the Act 2019, the present complaint was/is being treated as a complaint under the Act, 2019.
9.1 There is rival contention on the point of territorial jurisdiction of this District Commission, Delhi. According to OP, since the hotel booked is in Chandigarh and for the purposes of present complaint, the jurisdiction lies in Chandigarh and not with the DCDRC, Delhi. But on the other side, the complainant has reservations that the District Consumer at Delhi has territorial jurisdiction, which has been narrated in paragraph-19 of the complaint. Moreover, the registered office of the complainant is at Pusa Road, New Delhi-110005 duly mentioned in the array of parties, thus the jurisdiction lies with this Commission.
9.2 The rival submissions are self-explanatory. Section 34 of the Consumer Protection Act 2019 also defines territorial jurisdiction, which is based on the principle of place of residence, work for gain or cause of action wholly or partly. The complainant is invoking clause on the basis of registered office at Pusa Road, New Delhi of OP, which is governed by section 34(2)(a) of the Act 2019 but the OP is invoking place of hotel on the same very clause. The complainant being master of the lis, has right to make choice any of the options for territorial jurisdiction available. The complaint has also other choice of the clause of cause of action arisen in Delhi and also in Chandigarh being governed by Section 34(2)(c) of the Act 2019 or also u/s 34(2)(a) of the Act 2019 on the basis of address of hotel at Chandigarh, where hotel is located. But, the complainant has chosen and invoked jurisdiction on the ground of section 34(2)(a) of the Act 2019 on the basis of registered office of OP. Therefore, it is held that DCDRC, Central District, Delhi has territorial jurisdiction on the subject matter. This issue is disposed off.
10.1 There are composite objections by the OP that there is no cause of action against the OP since on the eve of booking of the hotel on the portal, the obligations of OP were over and for want of making availability of room in the hotel, the responsibility of hotel commences, for which the OP cannot be blamed. The OP had booked the room on the live portal of the hotel, besides tendering the payment to the hotel. Otherwise, for want of making available room by that hotel, then firstly the complainant was offered alternate accommodation by OP but it was refused and secondly amount was refunded on cancellation as per the user agreement. In addition, another amount of Rs. 750/- were also added at the wallet as compensation. However, the said hotel has not been impleaded as a party, the complaint suffers from non joinder of a party under Order I Rule 10 CPC and for want of cause of action, the complaint deserves dismissal. During submissions an email (Annexure-P3) has been referred that there is no affidavit u/s 65B of Indian Evidence Act to read that email vis-à-vis there is no substance in that email.
Whereas, the complainant has complete reservation to the plea taken by the OP that there was no occasion for the complainant to implead hotel as a party, since there was no permission for entry of the complainant and his family into hotel/room booked through OP. Even the hotel was not having any confirmation of room booking nor receipt of any amount of booking through OP and confirm booking Id receipt was not honoured; the actual fault and deficiency lies on the part of OP.
There is also inconsistent stand of the OP that on the one hand the OP claims that amount was already paid to the hotel vis-à-vis the amount was refunded to the complainant from its own account, had there been remittance of the amount by the OP to the hotel, the OP would not have refunded the amount. The OP withheld the amount and for want of booking of the room, the hotel was not informed. The complaint has been filed properly and there is cause of action against OP, the provisions of Order I Rule 10 CPC is not applicable. The email (Annexure-P3) is clear in itself being exchange of correspondence, which was not factually disputed, otherwise on the same basis if so objected, the record of agreement, other email record of OP also cannot be read for want of certificate u/s 65B of the Indian Evidence Act by OP.
10.2 By taking into account the rival contentions as well as material on record, the following conclusions are drawn in this regard:-
(i) The OP in its pleading and evidence emphasizes that ID of confirmed booking was generated on the basis of live portal of the hotel. Moreover, the OP also mentions, hotel failed to close the inventory despite being aware of the fact that inventory is available to be booked from the end of the hotel. This portal is inter-se between the OP and the hotel; the complainant, being third party to it, did not know about inter-se communication between the OP and the hotel.
It also suggests and proves that when OP itself was not knowing on the same very day of booking of the room on 03.11.2019 or subsequently on 09.11.2019 when complainant along with his family reached the hotel and then informed their grievances that there was actually no booking of room for the complainant and his family, then how complainant could knew it?. The complainant cannot be blamed for inter-se lapse, if any, between the OP and the hotel.
(ii) The OP vehemently claims that the booking amount was remitted to the said hotel, however, no such record has been proved nor any fact has been elaborated on which date and what amount was remitted to the hotel.
(iii) Since the OP and the hotel has arrangement with regard to bookings of the rooms for the customers. However, there is no proof of any record, letter, correspondence or email between the OP and the hotel that there was booking of room for the complainant and his family by the OP in the said hotel.
(iv) In case there was an issue that the hotel failed to close window the inventory on the portal and the OP was keep on booking the room by receiving advance money, even for that the complainant cannot be blamed for nor OP can be exonerated on just saying it was fault of OP. In fact, it is an inter-se issue between the OP and the hotel of want of closing of inventory, the OP issued ID for confirmed booking for the complainant.
Further, a question emerges, when it was a live portal, the inventory was being shown in the window. This means, it was showing occupied/booked rooms and also vacant inventory available. When it was occupied/booked room, then it would not be showing vacant inventory. When the complainant's was issued Id for confirmed booking, it means there was vacant inventory and once it was booked for the complainant, then one of room stand booked out of vacant inventory. This would have been normal and usual standard practice. Then, how it would be possible, the open window was showing inventory for booking and for want of close of that widow, the booking was kept open? Thus, this is again and inter-se issue between the OP and the hotel that window was open for booking but actually not inventory was available, however, the complainant was issued confirmed booking by OP, which was not provided on scheduled date.
(v) The complainant had not availed any services of the hotel nor there was confirmed booking for the complainant and his family, that is why as per evidence of complainant the hotel had not entertained the complainant to make admission in the hotel. The issue deficiency of services could be arisen only after admission of the complainant and his family into the hotel and status of services provided.
(vi) The onus was on the OP to prove that there was confirmed booking acknowledged by the hotel, since the OP had received the advance amount for and on behalf of hotel but the OP failed to establish that it was actually communicated to the hotel, the bookings was confirmed and the amount was also paid/deposited with the hotel. There is also no proof by the OP that amount was received by the hotel from the OP in respect of advance booking by complainant.
(vii) There is no affidavit u/s 65B of Indian Evidence Act regarding emails exchanged between the parties, however, it would not demerit the record, because consequent to such correspondence the OP came to knew about denial of accommodation by the hotel, then offer alternate accommodation and finally refund of amount. To say, the information exchanged was acted upon by the parties to that extent.
The aforementioned conclusions clearly establish that the complaint does not suffer for non-joinder of the hotel as a party and provisions of Order I Rule 10 CPC does not apply. There exists cause of action against the present OP. Accordingly, these contentions are disposed off.
10.3 The purpose of advance room booking and advance payment was for the purposes that at the appropriate moment, the complainant may not feel any kind of labour, pressure harassment in searching the accommodation but to be stress free and comfort, however, that purpose was defeated after reaching the venue of said hotel that there was no advance booking of a room for him and his family. There is no dispute that it was evening hours. The OP had offered another alternate accommodation, it spells out two things - firstly it confirms that there was no confirmed booking or booking in the said hotel; secondly the OP had received the booking amount, that is why an alternate accommodation was offered. It is also matter of record that alternate accommodation was not disclosed to the complainant nor it is disclosed in the written statement or in evidence of OP. It was obvious that when the complainant was at the distant place from place of his residence in Delhi and there was hesitation to accept accommodation of unknown place that too at odd hours, when he was with his family and luggage. This will not extend any benefit to the OP. Had the situation been that well in advance before the date of journey and scheduled date; the OP had informed the complainant about non-availability of advanced booked accommodation in the hotel and proposal for another alternate accommodation, then situation was to be treated differently. But it is not existing so.
Therefore, the complainant was constraint to look for alternate accommodation and that was the compelling reason to seek refund of the booking amount, it was compulsive cancellation and not voluntarily. Simultaneously, the OP had also refunded the amount, however, the compensation of Rs. 750/- was also voluntarily but it was a conditional compensation to be payable in case complainant avails the services of OP subsequently. The offer of such conditional compensation also infers that there was deficiency of services on the part of OP, otherwise in case the booking amount was already remitted to the hotel there was no reason for the OP to make such conditional offer.
10.4 The case law presented on behalf of OP are distinguishable from the feature of this case as in other cases there was occupancy of booked room in the hotel and subsequently deficiency of services by hotel either for want of appropriate accommodation or it was inhabitable room , whereas in the present complaint, situation is different of confirmed booking of a room in the hotel by the OP but hotel was not having any such record or information or confirmed booking with it nor it has been proved by the OP that the hotel was remitted the advance amount with information of booking the room nor record that the hotel had received the amount; the hotel had denied Id of the confirmed booking.
10.5. The aforementioned circumstances, discussed, analyses and assessed proves the case of complainant that there is deficiency of services on the part of OP. However, the OP has returned the booking amount.
11.1. The complainant has claimed compensation of Rs. 7 lakhs under various heads, while relying upon documentary record of income tax return, etc for claim of such compensation. It is also a settled law that compensation should be commensurate to the inconvenience, harassment and agony faced.
Thus, keeping in view the record inclusive of ailment of the spouse of complainant, besides the trauma faced by the complainant, his sick wife and their minor son aged about 5 years at Chandigarh at odd hours that booked accommodation was not provided, therefore, compensation of Rs. 50,000/- appears to be reasonable for both sides and accordingly it is allowed so in favour of complainant and against the OP. It would not be out of context to mention that compensation has been split into various heads by the complainant but basically it is confining to harassment, inconvenience and agony, for which the said amount is determined. The loss of reputation is not covered under the consumer law in complaint, no finding is being given on this issue.
11.2. So the complaint is allowed in favour of complainant and against the OP while directing the OP to pay a sum of Rs. 50,000/- to the complainant within 45 days from the date of this order. Generally, interest component is not allowed on compensation, when there are other substantial reliefs, however, the present complaint confines to compensation exclusively. Therefore, in order to avoid payment by OP, it is held that in case the amount is not paid within 45 days from the date of Order, the amount of Rs. 50,000/- will be payable with interest @ 4%pa from the date of complaint till realization of the amount.
12. Announced on this 23rd day of January 2024 [माघ 3, साका 1945].
13. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances, besides to upload on the website of this Commission.
