BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 11^TH DAY OF JULY 2024

ORDER

SMT. SUMA ANILKUMAR, MEMBER

The complaint filed U/S 35 of Consumer Protection Act 2019, complainant seeking direction towards OP for the following reliefs:-

a) To direct the OPs to refund the amount of Rs.2,296/- paid by the complainant to Goibibo along with                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  interest at 24% p.a. w.e.f. the date of deposit till the realization of the amount.

b) To direct the OPs to pay compensation on account of mental agony, harassment and significant women’s safety at night risk due to the deficiency in service, Unfair Trade Practice, and fraudulent act conducted by Goibibo.

c) To direct the OPs to pay damages of Rs.3,00,000/- for fraudulent and unlawful acts committed by Goibibo and Sunshine Lodge and for the risk of Women’s safety, time wasting of 2 plus hours, forcing to drive with lack of sleep, harassment, financial losses since this was planned with some local sightseeing’s and cannot simply go back, humiliation, great mental stress, strain of being inside car with lack of ventilation and mosquito bites and mental agony caused to all three complainants.

d) Pass such other and further orders as may deem fit and proper and in the interest of justice.

2. Brief facts of this case are as follows:-

The complainant submits that they were on a round trip and returning from Goa to Bangalore and booked hotel at Hubli for a night stay to relax after a long drive and for avoiding night driving. The next day itinerary was planned with local sightseeing and visiting Chitradurga fort.

3. The complainant had booked a hotel room through the Goibibo Mobile App for a stay at sunshine lodge, Goa with the following details:

(details)

4. On 23.12.2023, on reaching hotel Sunshine Lodge at 5.00 p.m., the complainant were denied entry with the hotel stating that all rooms were overbooked. The hotel suggested the complainants to contact the Goibibo customer care and refused any immediate help. Subsequently on 23.12.2023, at 5:42 p.m., the complainants called Goibibo (OP No.1) customer care and lodged a complaint, receiving complaint/Task Id: 18564053354714048. The complainant received call from Goibibo (OP No.1) at 5:59 p.m., answering that they would confirm with the hotel and provide solution OPs in spite of assurance took 1.16 hours to offer hotel. OPs offered hotels of cheaper cost. The complainant rejected the option offered by OPs on looking into the reviews in Google about the hotel and requested the hotels with same value or higher option along with secure car parking availability. This was rejected and complainants demanded for refund and compensation.

5. Complainants tried to get shelter in other hotels and lodges, but since it was late evening, all the places where completely fully booked. Left with no option the complainants stayed overnight in the car parking it near highway restaurant. Complainant had to suffer with no ventilation and mosquito bites and where at a high risk of safety. With no option left the complainants had to drive again at 2 a.m. in the night for 6 hours which was tiring and difficult as the complainants had no proper sleep since 17-18 hours. This caused mental agony and difficulty for the complainants. The complainants had requested for cancellation and refund on 23.12.2023 but OP No.3 fail to refund. Complainant tried to contact customer care but in vain as the calls where auto disconnected. Messages where received on the Goibibo App stating that the issue has been escalated, but in vain. Complainants received no response to any E-mail sent to grievance officer. Several attempts where made but OPs failed to respond. Hence left with not option the complainants had to file complainants. Hence this complaint.

6. On issue of notice to OPs. OP filed version OP No.2 failed to appear before this commission, hence placed Ex-parte.

7. In the version of OP, OP No.1, it is submitted that the present complaint filed by the complainant is not maintainable either on merits or as per law and is liable to be out rightly dismissed. OP No.1 cannot be held liable for any alleged deficiency in service when it is a case where the concerned hotel/OP No.2 did not honour the reservation made by complainant using website of OP No.1/denied accommodation. It is submitted that OP No.1 is an intermediary and has a limited role of issuing confirmed booking vouchers against desired booking by consumers, OP No.1 has no control or role in logistics and services rendered by service providers/OP No.2 in the present case. Further, it is pertinent to mention that it is the responsibility of the concerned and service providers/OP No.2 to update the rooms and nature of services on the platform through extranet offered by OP No.1 and OP No.1 doesn’t play any role in the same. That as per the complaint, the complainant alleged that OP No.2 denied accommodation due to overbooking. OP No.1 tried to make suitable alternate arrangement for the complainant.

8. If any default as alleged is made on the part of hotel/OP No.2, the OP No.1 cannot e held liable. In this context, the provision under section 230 of Indian Contract Act, 1872 is traceable which reads as follows:

Section 230 in The Indian Contract Act, 1872

“Agent cannot personally enforce, nor be bound by, contracts principal, - In the absence of any contract to that effect, an agent cannot personally enforce contracts entered into by him on behalf on his principal, nor is he personally bound by them. Presumption of contract to contrary,”.

9. The hotem room booking the present case are governed by the terms and condition agreed between complainant and OP No.1 at the time of the online booking on website which is applicable to bookings made u sing website of OP No.1. it is in this regard submitted that, it is a settled position of law that the LD. DC should not entertain and/or interfere in the matter; where terms and conditions of the booking has been duly agreed ad binding between the parties. Reliance in this regard is placed on:

* “Bharathi Knitting Co. Vs. DHL Worldwise Express Courier” [reported in (1996) 4SCC 704];

* “Orix Auto Finance (India) Ltd. Vs. Jagmander Singh & amp; Anr.” (2006) 2 CC 598.

* “HDFC Bank Ltd. Vs. Kanwar Ohri & Ors.” [RP No.2001 of 2012] reported in MANU/CF/0496/2014.

* “Karnataka State Financial Corporation Vs. Mrs. Sheela S. Kotech”, [R.P. No.488 of 2005, NCDRC 16.09.2009].

* Hotel Vrinda Prakash and Ors. Vs. Karnataka State Financial Corporation and Ors. [reported in 2007(6) KarLj624].

Without prejudice to the rights of OP No.1, it is submitted that OP No.1 is an intermediary under section 2 (1) (w) of the Information Technology Act, 2002 (hereinafter called the ‘IT Act’). In accordance with the section 2(1) (w) of the IT Act, OP No.1 merely receives, stores or transmits information on behalf of the concerned users and the concerned and service providers including Air Aisa in the present case. And with respect to such temporary stored information provides services of an online travel agency. It is stated that in terms of section 79 of IT Act an intermediary shall not be held liable for any third party information or data, uploaded to its online platform, by any third party.

10. The OP No.1 is a private limited company duly incorporated under the Companies Act, 1956, OP No.1 has since positioned itself as one of the leading companies, providing great offers, competitive airfares, exclusive discounts and a seamless online booking experience to many of its customers. The OP No.1 is a well reputed and highly acclaimed tour and travel company. The present reply is being filed through Puneet Chawla working as manager legal and authorized officer in the OP No.1/company, who has been duly authorized vide board resolution dated 07.03.2022. The complainant on 22.12.2023 using mobile application of OP No.1 booked one room at hotel Sunshine Lodge, Hubli/OP No.2 for 3 guests. The details are as under:

ID: GH73208208279618

Check In: 23-Dec-23

Check Out: 24-Dec-23

Hotel Name: Sunshine Lodge, Hubli

Amount paid: Rs.2,296/-

That booking was done online by complainant through OP’s mobile application. Agreement between user and Makemytrip (earlier IBIBO) available on the website 11. As per the complaint, the complainant alleges that OP NO.2 denied accommodation due to overbooking. That the complainant reached out to the customer care of OP No.1, that following process OP No.1 duly lodged complaint and sought time to arrange for alternate accommodation. OP No.1 also tried to contact OP No.2 but no response was received from their end. Therefore, OP No.1 tried to make suitable alternate arrangement for the complainant. However, admittedly (para 4 of the complaint)the complainant rejected alternate arrangement was allegedly based on google reviews, and hence OP No.1 was not in any position to assist the complainant.

12. Thereafter, the OP No.1 tried contacting OP No.2 and was informed orally that check in was denied due to sudden group offline walks and the new hotel manager of OP No.2 was unaware of the extranet and couldn’t block on time. It is pertinent to mention at this stage that it is the responsibility of the concerned end service providers to update the rooms and nature of services on the platforms through extranet offered by Op No.1 and OP No.1 doesn’t play any role in the same. It is submitted that OP No.1 tried to assist the complainant in the best manner possible; however, the complainant himself rejected alternate options and OP No.2 denied check-in. It is stated that OP No.1 cannot be held liable for alleged deficiency in services on part of OP No.2.

13. It is pertinent to point out the relevant terms and conditions vis a vis Hotel booking is reproduced herein below:

Any issues or concerns faced by the user at the time of availing any such services ahll be the sole responsibility of the service provider. Goibibo will have no liability with respect to the acts, omissions, errors, representations, warranties, breaches or negligence on part of any service provider

Unless explicitly committed by Goibibo as a part of any product or service;

Goibibo assumes no liability for the standard of services as provided by the respective service providers.

Goibibo provides no guarantee with regard to their quality or fitness as represented.

Goibibo doesn’t guarantee the availability of any services as listed by a service provider.

By making a booking, user understands Goibibo merely provides a technology/platform for booking of services and products and the ultimate liability rests on the respective service provider and not Goibibo. Thus the ultimate contract of service is between user and service provider.

User further understands that the information displayed on the Website with respect to any service is displayed as furnished by the service provider. Goibibo, therefore cannot be held liable in case if the information provided by the service provider is found to be inaccurate, inadequate or obsolete or in contravention of any laws, rules, regulations or directions in force.

In the present matter, in view of the User Agreement, OP No.1 cannot be held liable for denial of admission/not honouring reservation to the complainant by the hotel chosen/OP No.2 by the complainant.

14. It is imperative to state that OP No.1 only acted as mere facilitator and/not honouring reservation cannot be held liable for denial of accommodation by hotel in question/OP  No.2. Further, OP No.1 made all possible efforts to assist complainant however OP No.2 was not responding to any requests. In view of the same the present complaint deserves to be dismissed; as devoid of merits qua the OP. Further, the grievances of the complainant are not well founded and requires no consideration and/or indulgence by this Ld. Commission qua OP. Complainant despite being aware of the terms and condition of the booking process; has approached the Ld. Commission by way of present false, baseless and vexatious complaint and the contents of the same are clearly an afterthought. It is submitted that the complaint is without any cause of action against the OP No.1 in as much as OP No.1 is not guilty of any ‘deficiency of service’ as alleged by the complainant. Hence the present is to be rejected out rightly as pet the provisions enumerated under the order VII, Rule 11(a) of Code of Civil Procedure 1908.

15.   Complainant files affidavit evidence along with 10documents marked as Ex.P.1 to Ex.P.10. Complainant files written arguments. OP No.1 files affidavit evidence along with 5 documents marked As Ex.R.1 to Ex.R.2. OP counsel files written arguments with decisions. Heard both the OP NO.1 and complainant counsel.

16. On the basis of above pleadings for our consideration are as follows:-

i) Whether the complainant proves the deficiency of service on the part of OP’s?

ii) Whether complainant is entitled for the relief?

iii) What order?

17.  Our answers to the above points are as follows:-

Point No.1:-Affirmative.

Point No.2:-Partly Affirmative.

Point No.3:- As per the final order.

REASONS

18. Point No.1&2:-These points are inter-connected to each other and for the sake of convenience, to avoid repetition of facts, these points are taken up together for common discussion.

19. The complainant in their contention have filed 10 documents. On perusal of the documents, Ex.P.3 (a) is a copy of mail by the complainant to OPs regarding the complaint and refund against the booking ID No. GH73208279618. Ex.P.4 is the copy of E-mail sent to OP No.2 regarding the compensation request. On looking into the above documents we see that it is true that the complainants have raised complaint with OPs and had requested for refund. The OP No.1 in its contention has filed affidavit evidence with 5 documents. Ex.R.3 is a hotel confirmation voucher issued by OP dated 22.12.2023 to the complainant i.e. the Sunshine lodge, Hubli for 1 night from 23.12.2023 12 p.m. to 24.12.2023 12 p.m. for an amount of Rs.2,296/-. This shows that the complainant had booked their room well in advance with the OPs and a confirmation regarding the same was given by OPs. The OP No.1 also agrees to the fact that the OP NO.2 without informing OP NO.1 had denied the accommodation for the complainants due to over booking. OP No.1 also submits that OP No.1 offered alternate arrangement but was not accepted by the complainants chased on google review and that OP No.1 is only a platform between OP NO.2 and complainant.

20. On perusal, we see that the booking made by the complainant is through the OP No.1 platform which plays major role here, as the booking with OP No.2 is made on OP platform. The complainants are not directly connected to OP No.2 and based on the trust and reputation of OP No.1 the complainants have booked their stay. OP No.1 is a platform for both the hotels and consumer/customers. OP No.1 charges for services provided by it. OP NO.1 has failed to provide a proper and equal standard rooms as an alternative for the complainants. OP No.1 should have made sure that OP NO.2 provides rooms for its consumer/customer or kept other equal options for their customers but OP No.1 offered lower rooms for the complainants which is uncomfortable and unsafe for the complainants. Consumer book rooms well in advance for the comfort and safety of their journey and any discomfort or troubles faced leads to more discomfort as the consumers here are travelling and will be tired. Travels planned by customers are well in advance with an effort to take time out of their job, work, etc. Such travel plans and events on being troubled not only bring momentary loss but also loss at their work and mental and physical agony. OP No.1 here has failed to provide proper rooms as per the bookings.  OP No.2 has taken the booking with OP No.1 and given confirmation of booking but has rejected accommodation later. The OPs have failed to refund the amount to the complainants after all the problems faced by the complainant. This shows negligence and deficiency of OP No.1 and 2. Both OP No.1 and 2 have not only shown deficiency in service but also Unfair Trade Practice. Hence OP No.1 and 2 are jointly and securely liable to refund the amount of Rs.2,296/- with interest of 8% p.a. from the date of cancellation of the said booking i.e. 23.12.2023. OP No.1&2 are fully liable for the compensation of Rs.10,000/- and litigation charges of Rs.2,000/-. Therefore on the above discussion, we answer Point No.1&2 accordingly.

21. Point No.3:-In view of the discussion referred above, we proceed to pass the following:-

ORDER

1. Complaint filed by the complainant U/S 35 of Consumer Protection Act, is hereby allowed in part.
2. OP No.1& 2, both jointly and severally are directed to repay the booking amount of Rs.2,296/- with interest of 8% p.a. from the date of cancellation of the booking i.e. 23.12.2023.
3. OP No.1&2 are further directed to pay a compensation of Rs.10,000/- and litigation charges of Rs.2,000/-
4. OP No.1&2 are directed to comply this order within 45 days from the date of order failing which are directed to pay an interest of 10% p.a. on the entire Award amount till realization.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 08^TH day of JULY 2024)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party1 – R.W.1;