BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.505 of 2016

Date of Instt. 28.12.2016

Date of Decision:20.02.2018

Arun Mehta aged about 46 years S/o Narinder Dev Mehta R/o H. No.327, Riazpura Central Town, Jalandhar.

                                                                                                                                                           ..........Complainant

                                                                                 Versus

1. MakeMyTrip India Pvt. Ltd., Tower A, SP Infocity, 243, Udyog Vihar, Phase 1, Gurgaon, Haryana-122016, India through its authorized signatory.

                                                                                                                                                           ….….. Opposite Party

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Smt. Harvimal Dogra (Member)

Present: Sh. Mukhtiar Mohd., Adv Counsel for the Complainant.

Sh. Kunal Guglani, Adv Counsel for the OP.

Order

Karnail Singh (President)

1. The instant complaint filed by the complainant, wherein stated that he booked a hotel room through website, vide his ID and approximately Rs.15,000/- was paid through online credit card on 21.11.2016. As per hotel cancellation policy, the complainant intimated through email regarding the cancellation of hotel room, booking on 21.11.2016, but till date the complainant has not received the amount of booking, inspite of 10 to 15 reminders through email and telephonically for refund of booking amount. The complainant served registered legal notice upon the OP through counsel on 25.11.2016, calling upon the OP to pay the refund amount of booking amount as per the cancellation policy of the Hotel Booking, but till date neither the OP responded the legal notice nor refunded the booking amount as per the cancellation policy of the Hotel and whereby the complainant suffered a lot of mental torture as well as harassment and there is also negligence as well as deficiency in service on the part of the OP, which give cause of action to file the present complaint and accordingly, this complaint filed with the prayer that the complaint of the complainant may be accepted and OP be directed to refund an amount of Rs.15,012/- along with penal charges and compensation of Rs.50,000/- and litigation expenses of Rs.11,000/- and also be awarded an interest @ 18 % per annum on the aforesaid amount.

2. Notice of the complaint was given to the OP, who appeared through his counsel and filed written reply and contested the complaint by taking preliminary objections that the instant complaint is not maintainable either on merits or as per law and liable to be dismissed out right. The instant complaint filed by the complainant on mere conjectures and surmises and OP has no role to play in this entire dispute being escalated by the complainant. It is further submitted that the contents of the complaint are wholly misconceived, vexatious, misleading, misrepresented, unsustainable, false, frivolous. There is no deficiency of service on the part of the replying OP, the replying OP acted as a booking agent and therefore, no case is made out against the OP under the provisions of the 'Consumer Protection Act', 1986 as the default was made at the end of the complainant himself by not availing the confirmed booking for stay in Grand Hotel at Bangkok as well as in Grace Hotel at Bangkok. The present complaint is therefore, liable to be dismissed in limine with exemplary costs. It is further averred that this Forum does not have the jurisdiction to entertain the present case because as per the jurisdiction clause of the User Agreement, only the Court of NCR, Delhi have the territorial jurisdiction to entertain the disputes, if any, arising out of the bookings and copy of the agreement is enclosed herewith and thus, this complaint is liable to be dismissed. It is further submitted that on 21.11.2016, the complainant visited the web portal of OP i.e. www.makemytrip.com and enquired about the booking of the accommodation in Grand Hotel Bangkok and Grace Hotel Bangkok and thereafter, the complainant booked the accommodation for himself in both the hotels under two different booking IDs i.e. NH2101238410637 and NH2101238411235 and further submitted that the OP discharged its duty by providing the confirmed hotel bookings as desired by the complainant and then the complainant approached to the OP on 21.11.2016 for date change/cancellation of his booking, on this development, the complainant was categorically explained that no date change or cancellation was possible as the bookings made by the complainant were Non-Changeable and Non-Refundable and as such, any modification/cancellation would attract 100% penalty charges. However, on repeated request for cancellation/date change, OPs supervisor even checked with the concerned hotels, if any date change/cancellation was possible. However, the same was denied at the end of both the hotels. Accordingly, the complainant was duly informed and made aware to avail his confirmed booking since the booking was Non-Refundable and Non-Changeable, but the complainant himself failed to avail the bookings and was thus marked as “No-Show”. It is further alleged that the OP being a booking agent had issued the confirmed booking for accommodation in Grand Hotel at Bangkok and Grace Hotel at Bangkok under separate booking IDs as desired by the complainant and being a booking agent discharged its duty thereof. Subsequently, if at all the complainant did not avail the said booking due to his own fault as have been explained herein, OP cannot be held liable for the fault at the end of the complainant. On merits, the booking of the complainant in two different hotels is admitted, but the other allegations as made in the complaint are categorically denied and lastly prayed that the complaint of the complainant is without merits and the same may be dismissed.

3. In order to prove the case of the complainant, complainant himself tendered into evidence his duly sworn affidavit Ex.CA alongwith some documents Mark C-1 to Mark C-5 and closed the evidence.

4. Similarly, counsel for the OP tendered into evidence affidavit Ex.OPW/1 alongwith documents Ex.OPW/A to Ex.OPW/C and then closed the evidence.

5. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.

6. Before imparting with the main controversy, there is a legal aspect raised by the OP in regard to jurisdiction of this Forum, for filing and entertaining the instant complaint on the ground that there is a User Agreement executed between the parties and as per the Clause of User Agreement Ex.OPW/B, only the Court of NCR, Delhi have the territorial jurisdiction to entertain the dispute, if any, arising out of the bookings. On the basis of the above contention of the OP, we have gone through the photostat copy of the User Agreement Ex.OPW/B and find that the said agreement is neither signed by the complainant nor OP, if so then, how we can assume that the parties have amicably choose the jurisdiction of one Court at Delhi. So, in the absence of the signature of the party on the said agreement, it cannot be accepted that the jurisdiction of this Forum is ousted by way of the Clause as enumerated in the said agreement and accordingly, we find that the contention raised by the learned counsel for the OP is not acceptable.

7. Coming to the main contention of the complainant that he got booked two different hotels in Bangkok through OP and copy of the booking letter Mark C-3 and Confirmation Voucher of one hotel is Mark C-4 and Confirmation Voucher of other hotel is Mark C5 and payment of the said booking of the hospital has been admittedly made by the complainant online credit card, which is shown in the account statement of the complainant of SBI Branch Jalandhar, photostat copy of the statement of account is Mark C-4. The complainant alleged that he got canceled the said ticket on 21.11.2016 i.e. on the same day, on which he booked the said hotel, but despite cancellation of booking, the booking amount of Rs.15,000/- has not been paid by the OP even inspite of 10 to 15 reminders through email. No doubt the OP has not categorically denied that the complainant approached for cancellation of said booking of both hotels, but indirectly replying the OP that the complainant approached for date change/cancellation of his booking, but he was very well make aware that the bookings made by the complainant were non changeable and non refundable and as such, any modification/cancellation would attract 100% penalty charges, but despite that the complainant himself not avail the booking and as such, there is no fault on the part of the OP rather it is an own fault of the complainant.

8. In order to prove the allegations as made in the complaint, the complainant brought on the file his own affidavit Ex.CA and legal notice Mark C-1, Postal Receipts Mark C-2, Mark C-3 and Mark C-5 Confirmation Vouchers and Statement of Account of the Bank Mark C-4. Apart from that the complainant has not tendered or proved any other documents. We think that it is the duty of the complainant to bring on the file copy of email regarding cancellation of the Hotel booking dated 21.11.2016, but for the best known reason, the complainant has not brought on the file any written request, whereby he asked the OP to cancel his hotel room booking, no doubt, if the complainant make a request by way of telephonically, then the OP also alleged that they had informed the complainant that this booking is non-refundable and non-changeable, if so then, it is the duty of the complainant to avail the said booking if the same is not changeable or refundable and these factum have been very well mentioned in the Voucher Mark C-3 and as per hotel cancellation policy given on the Confirmation Voucher Mark C-5 is to mention the time of cancellation, but that condition is not fulfill in the present complaint because the complainant has not brought on the file the copy of email, where from we can construe the time at which the said request for cancellation was sent to the OP. So, with these observations, we are of the opinion that there is no deficiency in service on the part of the OP rather there is an obviously fault of the complainant himself for not availing the hotel booking and therefore, we reach to the conclusion that the complaint of the complainant fails and the same is dismissed with no order of cost. Parties will bear their own cost. The complaint could not be decided within stipulated time frame due to rush of work.

9. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Harvimal Dogra Karnail Singh

20.02.2018 Member President