Date of Filing – 14.12.2016
Date of Hearing – 25.01.2017
PER HON’BLE MR. SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of the Opposite Party to impeach the Order No.09 dated 22.09.2016 passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II (for short, Ld. District Forum) in Consumer Complaint no. 275/2016. By the impugned order, the Ld. District Forum allowed the complaint lodged by the Respondent under Section 12 of the Act with certain directions upon the Appellant like to pay Rs.807/- along with interest 10% p.a. w.e.f. 09.05.2016, to pay Rs.30,000/- as compensation and Rs.10,000/- as litigation cost and in the event of non-compliance with the order, the Appellant shall be liable to pay penal damage @ Rs.5,000/- to be paid to the Ld. Forum.
The Respondent herein being Complainant filed the complaint stating that on 09.05.2016 he booked a room in a hotel at Ranchi through online of the Opposite Party and the said booking was confirmed by OP no.1 and payment of Rs.807/- was deducted from the account of the Complainant and the said booking was for one day only on 16.05.2016. On that date at about 07:00 A.M. on reaching the said hotel, the Complainant was shocked and surprised that there is no contract in between the hotel and the OP for providing any room in the hotel. The Complainant had to roaming repeated hotels but could not arrange any room. Thereafter, on several requests somehow the Complainant got a room in the hotel by paying cash of Rs.1,071/- as he was in urgent need of the room in the hotel to accommodate himself and his Ld. Advocate to attend before Ranchi High Court at 10:00 A.M. The Complainant submits that he and his advocate had to face huge mental agony and harassment on account of deficiency in services and unfair trade practice on the part of the OP. Hence, the complaint with prayer for certain reliefs, viz- (a) for direction of payment of Rs.807/- along with interest; (b) compensation of Rs.1,00,000/- for harassment, mental agony etc.; (c) Rs.15,000/- as litigation cost etc.
The Appellant being Opposite Party by filing a written version has stated that the Ld. District Forum lack territorial jurisdiction in entertaining the complaint. The OP submits that the Complainant booked a hotel room from their website in Hotel Bina Inn on 16.05.2016 and paid an amount of Rs.807/- for the same but the Complainant has not suffered any loss due to the act or omission of them in order to receive any monetary compensation.
On evaluation of materials on record, the Ld. District Forum by the impugned order allowed the complaint with certain directions upon the OP, as indicated above. Challenging the said order, the Complainant has come up in this Commission with the present appeal.
We have scrutinised the materials on record and considered the submission advanced by Ld. Advocates appearing for the parties.
Having heard the Ld. Advocates appearing for the parties and on going through the materials on record, it would reveal that the Appellant is a company under the provisions of Companies Act, 1956 having its head/registered office at Gurgaon (Haryana) and also having branch office at Premises No.11/1, Sarat Bose Road, Kolkata – 700020. Admittedly, the Complainant for the purpose of his visit to Ranchi with his lawyer booked a hotel named Hotel Bina Inn through the website of Appellant and accordingly the amount of Rs.807/- was deducted from the account of the Respondent via online.
The Ld. Advocate for the Appellant challenged the maintainability of the proceeding on the ground that the Ld. District Forum lack territorial jurisdiction because the head office/registered office of the Appellant Company is situated at Gurgaon and as such a Forum of Kolkata has got no jurisdiction to entertain the same. In reply to the same, Ld. Advocate for the Respondent has placed reliance to a recent decision of this Commission dated 24.01.2017 in FA/1178/2016 (Chairman & Group CEO Make My Trip – vs- Soumitra Choudhuri & Anr.).
We have considered the rival contention of the parties. Section 11(2) of the Act deals with the territorial jurisdiction of District Forum which reproduces below –
“(2) A complaint shall be instituted in District Forum within the limits of whose jurisdiction –
- the opposite party or each of the opposite parties, where there are more than one, at the time of institution of complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, or
- any of the opposite parties, where there are more than one, at the time of institution of the complaint, actually and voluntarily resides or carries on business or has a branch office, or personally works for gain, provided that in such cases either the permission of the District Forum is given or the opposite parties who do not resides, or carry on business or have a branch office, or personally work for gain, as the case may be acquiesce in such institution; or
- the cause of action, wholly or in part arises.
The factual matrix makes it abundantly clear that Appellant Company’s business is spread all over the world and they are offering their services throughout the country including Kolkata. The Appellant/OPs attract tourists via internet and facilitate and except payment through payment mode meaning thereby the internet online transactions. The Appellant Company received payment from the Respondent through online and the Respondent paid the amount at Kolkata which accepted by the Appellant. The Appellant has also a branch office at 11/1, Sarat Bose Lane, Kolkata -700020 within the jurisdiction of the Ld. District Forum. Therefore, the Ld. District Forum has rightly observed that the part of the cause of action arose in Kolkata within the jurisdiction of the Fora and as such it has got territorial jurisdiction to entertain the complaint. We fully endorsed the view of the Ld. District Forum that it had territorial jurisdiction to take cognizance of the matter. Therefore, the point raised by the Ld. Advocate for the Appellant for want of territorial jurisdiction does not appear to have any force.
Admittedly, the Respondent in order to stay in a hotel at Ranchi on 16.05.2016 booked a room of Bina Hotel Inn at Ranchi through the Appellant Company on 09.05.2016 and on account of such booking through online, payment was deducted from the account of the Respondent. The Respondent booked the said hotel because he had to attended in a legal proceeding at Jharkhand High Court at Ranchi with his Ld. Advocate. It is not in dispute that on 16.05.2016 when the Respondent along with his Advocate reached the hotel, the hotel receptionist denied allotting any room on such booking via online through the Appellant. The Respondent being surprised tried to make contact with the Appellant Company but he could not make any contact and to overcome the situation tried to find out some other hotel. All the attempts in this regard went in vain. After a while again the Respondent came back to the said hotel and on repeated persuasions had to book a room in the said hotel by paying cash of Rs.1,071/-. No one can deny that it is a glaring example of deficiency in service. However, subsequently, finding their fault, the Appellant Company refunded a sum of Rs.807/- to the Respondent.
But mere refund of the amount collected through online from the account of the Respondent is not enough. The Respondent had to suffer a lot at Ranchi. For safe stay and smooth performing of work in High Court, the Respondent accompanied by his Advocate booked the room of the hotel at the instance of Appellant Company but the negligence on the part of the Appellant Company caused a real harassment to the Respondent. But at the same time, it should be taken into consideration that subsequently, the Respondent got a room in the said hotel on payment of extra amount. There is no evidence whatsoever that on account of such deficiency, the Respondent has failed to perform his job at Ranchi. Therefore, taking into consideration all the attending factors, in our view, the compensation of Rs.30,000/- awarded by the Ld. District Forum was on higher side. In our view, a compensation of Rs.10,000/- in the facts and circumstances would sub-serve the object of justice.
So far as, imposition of penal damages is concerned, we do not find any averment in the petition of complaint or prayer made by the Complainant. Naturally, the OP did not get the opportunity to refute the same. It is well settled that fair procedure is the hallmark of natural justice. In such a situation, the Ld. District Forum should have restrained itself from passing any award on the head of penal damages. Therefore, the order of penal damage also should be interfered with.
In view of our foregoing observations, we modify the impugned order only to the extent that the amount of compensation will be reduced to the extent of Rs.10,000/- from Rs.30,000/- as imposed by the Ld. District Forum and the Appellant shall have no liability to pay any amount on account of penal damages. The other part of the order passed by the Ld. District Forum is maintained.
With the above observations and directions, the appeal is disposed of on contest. However, there will be no order as to costs in this appeal.
The Registrar of the Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II for information.
