DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.144/2012
Mrs. Aditi Raina,
E-361, Second Floor
Greater Kailash-2,
New Delhi-110048 ….Complainant
Versus
Meru Cab Company Pvt. Ltd.
Bimal Plaza, 1st Floor
Plot No.9, Pocket-4, Sector-11,
Near Kargil Road,
Dwarka, New Delhi ….Opposite Party
Date of Institution : 10.04.2012
Date of Order : 22.12.2021
Coram:
Ms. Monika A Srivastava, President
Sh. U.K. Tyagi, Member
ORDER
President: Ms. Monika A Srivastava
The complainant in the present complaint filed against OP i.e Meru Cabs and has prayed for Rs. 2,00,000/- on account of mental torture and Rs.20,557/- for the actual monetary loss caused along with Rs.10,000/ towards costs of litigation.
The facts leading to the filing of the present complaint are as follows:
The complainant had decided to avail the OP’s services for the purposes of a drop-off at the domestic airport as they were travelling to Assam for a special year end celebration. It is alleged by the complainant that they had taken this decision keeping in mind that they did not want to take any chances by hiring an unreliable taxi service. The cab was booked on 26.12.2010 at 9:51 pm and the said cab was booked for 27.12.2010 at 5:00 am. The said booking was instantly confirmed by the OP on 26.12.2010 by an email sent to the complainant on her email id as also the complainant received a confirmation sms with booking reference no. 2574263 from the OP. These are annexed as Annexure 2 of the complaint.
It is the case of the complainant that on the morning of 27.12.2010 the complainant kept waiting for the cab but neither did the cab come nor any intimation was received by the complainant in this regard. The complainant anxiously called up the helpline no. of the OP but it went unanswered. She tried searching for alternate cab/conveyance but since she lost precious time in doing so, she missed her flight. The complainant again at 10:30 called up the helpline no of the OP and was told that her grievance was noted and that she would be soon getting an explanation, in this regard.
The complainant further states that she lost a sum of Rs. 12,057/- by way of cancellation charges of the trip to and fro to Assam and further she has lost a sum of Rs. 8,000/- on account of booking of stay and sight-seeing a sum of Rs. 500/- on account of conveyance taken from the residence to the airport. Reliance has been placed on Annexure 3 in this regard. She has further stated that the trip that she had planned with other friends was spoilt and that holidays availed of by both she and her husband and their investment in planning the holiday was ruined owing to the deficient services of the OP. The complainant has filed a print out of an email with respect to cancellation of hotel bookings and cab booking as exhibit C-7.
The complainant has further relied on an affidavit filed by her colleague Ms. Mita Nangia who has stated in her affidavit that she's a colleague of the complainant and that she had coordinated the entire trip for the complainant which ultimately did not materialise due to deficiency in service on the part of the OP. It is also stated in the affidavit that she's a member of the North East writers forum and that she and the complainant were to spend the new year eve of 2011 at Tezpur.
The OP has refuted all the allegations of the complainant and has stated that the jurisdiction to entertain the present complaint lies only with Mumbai Courts as provided for in clause 11 of their terms and conditions provided on their website annexed as Annexure OP-1. The OP further states that on account of the no liability clause, the OP is not liable as it has been clearly mentioned at Clause 3 that the use of the services offered by OP is at the sole risk of the customer.
It is further stated by the OP that they make no representation or warranty that the service will be uninterrupted, timely, secure or error free. Therefore, it is stated that the OP is not liable for the alleged damages incurred, if at all, by the complainant.
It is further stated that there is no deficiency in services by the OP as the cab was booked for 5:00 AM whereas the flight was to depart at 5:30 am and that the reporting time for any domestic flight was at least 45 min to 1 hour.
It is stated that on the morning of 27.12.2010 at about 3:25 AM all of a sudden the server of the OP ‘manthan’ went down and was down till 11:35 AM on the same day. Due to the server being down from 3:25 AM till 11:35 AM which was an event totally beyond the control of the OP, no online bookings could be attended to by the OP during the said period. As such, the bookings of the complainant also could not be attended to and neither any response could be sent to the complainant 30 minutes prior to the pick-up time as is generally done. In this regard the OP has filed an email as Exhibit OP-3 wherein the manager was informed by the assistant manager about the disruption in the services.
The OP has further stated that the alleged deficiency in service is due to circumstances beyond the control of the OP and has relied on a judgment passed by the Hon’ble NCDRC in R.P N o. 1557/2006 as also judgment of the Hon’ble Supreme Court in Interglobe Aviation Ltd. Vs N. Sachidanand decided on 04.07.2011.
It is further the case of the OP that the complaint is false, he has relied on an email written by the complainant to her guest house in Assam Boville Home Stay where in she is cancelling her stay on 26.12.2010 at 7:26 PM whereas she was to board the flight on 27.12.2010. The OP has also stated that the complainant has not filed any evidence regarding her bookings made by her at Boville Home Stay or the taxi that she had rented at Assam. It is further the case of the OP that the complainant has done nothing to carry on with her program and had in fact taken a pessimistic approach of returning back home so that the OP could be made responsible for the consequences.
After going through the facts of the case carefully we are of the view that this Commission has the jurisdiction to try the present complaint as the cause of action giving rise to the present complaint had arisen within the jurisdiction of this Commission.
Section 2 (11) of Consumer Protection Act, 2019 defines Deficiency of Service as “any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service and includes (a) any act of negligence or omission or commission by such person to the consumer and (b) deliberate withholding of relevant information by such person to the consumer.”
In the view of this Commission the OP has been deficient in its services by not providing a cab to the complainant in time. Though the OP is taking refuge behind a ‘failed server’ by stating that it is beyond their control but the OP is liable to each and every customer who had booked their cab within that time span of the ‘server error’. The customer who books the cab as that of the OP in comparison to other cab service, pays a higher amount so that they can reach in time and are not supposed to comprehend that there could be server error and therefore one would not be able to reach to their destination in time.
In this regard, the Hon’ble Supreme Court in Northern Western Railway and Ors. vs. Sanjay Shukla SLP (C) No. 13288 of 2021 decided on 06.09.2021 has held the Railways guilty for deficiency in service and therefore “Railways were liable to pay the compensation to the passenger-complainant for the loss suffered and for the agony suffered. These are the days of competition and accountability.…….. Citizen/passenger cannot be at the mercy of the authorities/administration.”
Therefore, the OP is liable to compensate the complainant for the taxi fare from her residence to the airport and also for the flight that the complainant missed on account of deficiency in service on the part of the OP. Out of a total of Rs. 12,057/- which the complainant had spent on air travel, a refund of Rs. 9,608/- has already been made by the airlines and the agent, therefore the OP is liable to pay an amount of Rs. 2,449/- to the Complainant. The OP is further liable to pay an amount of Rs. 500/- spent on account of taxi taken by the Complainant to the airport. Though the mental harassment cannot be measured in terms of money, this Commission opines that the OP is liable to pay Rs.2,000/- as token on account of mental harassment caused to the complainant.
However, since the complainant has not provided any explanation for cancelling her bookings at hotel in Assam, as has been rightly pointed out by the OP at Annexure C-7 therefore, the Complainant is not entitled to any refund in relation to her booking at the hotel and the purported cab in Assam.
File be consigned to the record room after giving copy of the order to the parties. Order be uploaded on the website.
