Tamil Nadu

South Chennai

CC/166/2019

V Vijaya Sarathy - Complainant(s)

Versus

M/s Clear Trip Pvt Ltd - Opp.Party(s)

M/s Shameema Parveen

07 Jun 2023

ORDER

  Date of Complaint Filed:04.07.2019

  Date of Reservation     :23.05.2023

  Date of Order              :07.06.2023

         

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT: TMT. B. JIJAA, M.L.,                                           : PRESIDENT

                     THIRU. T.R. SIVAKUMHAR, B.A., B.L.,          :  MEMBER  I 

                     THIRU. S. NANDAGOPALAN., B.Sc., MBA.,   : MEMBER II

               

CONSUMER COMPLAINT No.166/2019

 WEDNESDAY,THE 7^th DAY OF JUNE 2023

 

Mr. V. Vijaya Sarathy,

S/o Mr. V S Ramachandra Rao,

2A, Krishna Apartments,

580, Alagirisamy Salai,

KK Nagar, Chennai-600 078.                                           .. Complainant.

 

-Vs-

 

M/s Cleartrip Private Limited,

Rep by its Authorised Signatory,

Unit No.001, Ground Floor,

DTC Building, Sitaram Mills Compound, N.M.

Joshi Marg, Lower Parel,

Mumbai 400 011.                                                         .. Opposite Party.

* * * * *

Counsel for the Complainant         : M/s. Shamima Parveen,  

                                                             S.Abubacker Sidhic,

 

Counsel for Opposite Party           : M/s. C. Franco Louis, C.Louis Franco

 

On perusal of records and upon hearing the oral arguments of the counsel for Complainant and the counsel for the Opposite Party this Commission delivered the following:

 

 

ORDER

Pronounced by Member-I, Thiru. T.R. Sivakumhar, B.A., B.L.,

(i)     The Complainant has filed this complaint as against the Opposite Party under section 35 of the Consumer Protection Act, 2019 and prays to return the price paid by the Complainant for booking the rooms through the Opposite Party website and to pay an amount of Rs.1,00,000/- towards compensating for all the mental agony suffered by this Complainant and his family members, due to the unprofessionalism, negligence and gross deficiency in the service caused by the Opposite Party and to pay an amount of Rs.1,00,000/- for the consequential illness and physical sufferings faced by the old aged parents of he Complainant and to direct the Opposite Party to present an affidavit to that effect with the changes made in their business practice that will ensure that similar sub-standard service are not repeated to other gullible customers of the Opposite Party along with cost of the complaint.

I.  The averments of Complaint in brief are as follows:-

1.   The Complainant submitted that he is presently working as Vice President with M/s. BNY Mellon Technology, a multinational company situated in Ascendas Tech Park, Taramani, Chennai.

2.     He along with his aged parents, wife and minor son, namely Mr.V.S.Ramachandra Rao, Mrs.V.Sita Ratnam, Mrs. Padmini V,Master. Kaustub VA, attended the marriage of his niece Sravani Sindhuja with Venkata Balakrishna Siddartha held on 30.12.2018 morning at the venue Satyasai Aaradya Dhamam, D.D Colony, Bagh Amberpet, Hyderabad-500013. He and the said family members boarded a train on night of 28.12.2018 from Chennai and arrived in Hyderabad on the next day, for attending the above said marriage.

3.     The Complainant submitted that he had planned well in advance for a stay of on night on 29.12.2018 at Hyderabad and had properly booked for two rooms in the Opposite Party network hotel in Hyderabad through the Opposite Party’s company website www.cleartrip.com. Two rooms were booked (one each of types Executive Room, Executive Deluxe Room) in "Hotel Grand Seasons" which is situated at Shivam Road, Bagh Amberpet, New Nallakunta, Hyderabad, 500013, one of these rooms booked for his aged parents (70 years+) and the other room for himself, his spouse and son. For the said booking he had paid a sum of its 2830/- via online mode vide Voucher Numbers; CHMM- 11203614 and CHMM-11205368 both dated 26.12.2018 issued by the Opposite Party and the bookings were properly confirmed by Opposite Party by issuing appropriate vouchers online.

4.     The Complainant submitted that the above said hotel booking service provided by the Opposite party were suffering from the following defects, as to his utter shock when he actually arrived at the hotel along with his family members on 29.12.2018, no such rooms were reserved in his name and hence rooms for their stay were not provided at the concerned hotel, i.e., "Hotel Grand Seasons". Further the staff at the reception desk at the "Hotel Grand Seasons", had ill- treated him without honouring the Cleartrip booking vouchers and instead behaved unkindly mentioning that the hotel contract with Cleartrip was rescinded by the opposite party already one year time back itself. The opposite party had wilfully suppressed this fact and confirmed room booking to the Complainant. And the staff at the reception desk at the "Hotel Grand Seasons" did not even consider his request to provide with rooms on his personal booking with them, but unfortunately denied with his request for the reason that they cannot honour any of Cleartrip customers as a payback gesture on Cleartrip for having unreasonably rescinded the contract between them. Further the opposite party had wilfully made the said rooms booked with a hotel that is not part of the network hotels of the opposite party and had negligently let him to suffer on the night of 29.12.2018.

5.     The Complainant submitted that the opposite party had wilfully given an alternative hotel very much knowingly that he had only to painfully dishonor such offer as the alternative hotel recommended by opposite party was far away from the location of the originally booked hotel. This action of opposite party is only to comply their terms & conditions of sale but not truly to resolve and support him who was in deep distress at that moment.

6.     The Complainant submitted that the opposite party as a service provider neither taken care to confirm actual rooms availability in the hotel booked nor did any after sales coordination activities like a) whether the customer had peacefully checked-in to the hotel?, b) whether there are any service issues at the agent/network hotel end?

7.     The Complainant submitted that when he tried and call the Opposite Party’s customer care numbers, he was subjected to a cumbersome and non- user friendly IVR system only. The resolution options given by the Opposite Party when a booking fails, which did not meet his basic requirements and hence he was really forced only to turn down those options.

8.     The Complainant submitted that by the said acts the opposite party had wilfully portrayed as a properly established organization with such effective customer care support to their customers but in reality, such after sales practices of opposite party is just an eyewash practice only.

9.     The complainant submitted that a legal notice was also issued through his counsel to the opposite party for rectifying the sub-standard service provided by the opposite party and for damages also, went in vain.

10.    The complainant submitted that the deficiency in service provided by the opposite party which is indeed regrettable. All aforesaid dereliction of duty and failure, and neglection to rectify the same the Complainant has suffered huge mental agony and losses/incurred expenses on that night of 29.12.2018 and the next day 30.12.2018 because of the sub-standard service provided to him, of which he and his family members felt very humiliated and were left abandoned standing with his parents and spouse on the street to painfully search and find for alternative to do and due to last minute efforts, he was not able to find rooms in any hotels near and around his original location of hotel. He had to finally seek help from his niece family to accommodate his old aged parents in the marriage mandap only. That his ailing parents had to stay in the terrace dormitory above the mandapam three floors high without lift facility, as the other rooms in the lower floors were occupied by the bride and bridegroom families.

11.    The Complainant submitted that because of the sub-standard service provided by the Opposite Party, his parents had to undergo very bad stay in the bad cold night of 29.12.2018 with so many people in the mandapam, he and his family were subjected to shortage of washrooms, inadequate hot water facility, and extreme cold weather, etc, which caused unexplainable pains to himself and his family on that night and the next day also. Further the terrace room where he and his family had to adjust themselves and stay along with many others, did not have cots but only beds put on the floor, that caused a severe inconvenience to his aged ailing parents to get up and move around. Further his mother having knee problems could not easily climb stairs as there were no lifts in the mandapam, it was extremely difficult situation that his parents literally suffered and pushed the night & day at the mandapam, before their return to Chennai.

12.    The Complainant submitted that email notice request sent to the opposite party for proper response from the opposite party concerned, left with no response and no proper clarification was given by the Opposite Party. Because of the act of the opposite party which is by wanton, malafide, made him to incur irreparable loss and also made him to feel dejected with such reluctant behaviour of the opposite party in justifying its actions, remaining silent. He is worried and suffered agonies due to such attitude of the opposite party. He had suffered losses both direct and indirect due to carelessness and sloppiness shown by the opposite party in handling his requests. It is very clear and reasoned to understand that he and all in his family, both directly and indirectly, have been put into mental pain of being dejected, and also unnecessarily discomforted by the opposite party who have been evidently unprofessional, irresponsible, negligent and deficient in providing even the minimum expected consumer friendly service to the Complainant.

13.    The Complainant submitted that as a responsible a citizen also very much afraid of such filthy service which may possibly recur to him in the future as well. Hence feels as his bounden duty to do all the necessary to prevent the opposite party causing such damages to other gullible customers of the opposite party. Hence the compliant.

14.    The Complainant submitted that he seeks as part of the relief under section 14(1)(f) of the Act, that the opposite party to submit before this Hon'ble forum, its "Standard Operating Procedure" that elaborately explains on how such deficiency of service would not be provided to any of its customers in future i.e, by not to repeating the deficiency of service in future.

15.    The Complainant submitted that he expects a fair compensation for all the losses and pains incurred by himself and his family during the entire course of awful events and aftermath sufferings and pains also, which the opposite party to pay as prescribed under the Act.

 

II. Written Version filed by the Opposite Party in brief is as follows:

16.    The Opposite Party submitted that they are not the final supplier of services and merely provides intermediary services to its customers, whose function is to solely assist its customers in gathering travel information, determine the availability of travel- related products and services, making reservations or otherwise transacting business with travel suppliers and for facilitating travel requirements. Their customers access their website, i.e. www.cleartrip.com including on the mobile site and the smartphone application platforms seeking facilitation of their travel requirements.

17.    The Opposite Party submitted that their Terms of Service are visible for all its customers and easily accessible on all platforms state that they are not the last mile service provider and does not have control over the lack or deficiency in services provided by any person or entity including an airline, hotel, activity provider etc.,. Their Terms of Service further state that the Opposite Party cannot be deemed to be responsible for any such deficiency or lack of services caused on accord of the 'last mile service provider". This Terms of Service is accepted by every customer of the Opposite Party including the Complainant herein and forms a binding agreement between the Opposite Party and the customer.

18.    The Opposite Party submitted that they deny the contents of the present complaint in its entirety and the complaint is misconceived both in law and in fact. It is submitted that the relief sought by the complainant cannot be said to be maintainable as against them since they are not the service provider but is only an intermediary which the Complainant was fully well aware of when he first accessed their platform to make a reservation with the hotel –‘Hotel Grand Season' located at Hyderabad.

19.    The Opposite Party submitted that the Complainant had on 26.12.2018 at around 7.00 pm booked two rooms in the Hotel Grand Season ("the Hotel") at Hyderabad using our website as a platform to make the booking for four adults for one night i.e. for the night of 29.12.2018.

20.    The Opposite Party submitted that the Opposite Party and the Hotel have entered into an agreement in which it has been clearly stated in Clause 5 that"5.1 if the Hotel was unable to honor any of its reservations, for any reason whatsoever, it shall immediately notify Cleartrip and upgrade such customer booking made through Cleartrip to the next best higher room type, without any extra charge or relocate the Cleartrip customer to comparable or higher rated/starred hotel or resort, with the same (identical) inclusions at its own cost, and in clause 5.2 “The Hotel shall also prepay to such comparable or higher hotel or resort the room charges for the nights in question, together with all the transportation cost of such customer to such alternatives inclusions. The Hotel will immediately deliver a written apology to the Cleartrip and/or the customer including an explanation holding Cleartrip harmless on account of the unforeseen event leading to the hotel's failure to honor the reservation...."

21.    The Opposite Party submitted that they had made payment to the Hotel on 28.12.2018, on behalf of the Complainant by way of bank transfers made on 28.12.2018 vide Trip ID Nos.181226579644 and 181226579810, Bank Reference No.AXISP00028420680, Account Nos.07221900005142, for a sum of Rs.1073.99/- and Rs.908.63/-, respectively.

22.    The Opposite Party submitted that the hotel booking was confirmed from their end and that they had also transferred the booking amount to the Hotel. However, the Hotel did not honor the reservations made in the name of the Complainant. It was not the Opposite Party who failed to honor its obligations to the Complainant. In so far as the failure to honor the reservations made in the name of the Complainant was not a deficiency of service on the part of the Opposite Party but was a deficiency on the part of the Hotel.

23.    The Opposite Party submitted that the Hotel booked was in fact a part of their network of hotels had tie-ups with. The agreement entered into by the Opposite Party and the Hotel further made it clear that the responsibility of not honouring reservations would be on the Hotel. The allegation that the Opposite Party's negligence was somehow responsible for the Complainant to suffer cannot be said to be true especially since the Opposite Party offered repeatedly to the Complainant an alternate to the Hotel which was within three kilometres from the Hotel. It was the Complainant who refused to take up the Opposite Party on its offer and refused to answer calls as well.

24.    The Opposite Party submitted that it cannot be said that three kilometres in a metropolitan city can be considered to be 'far away'. It is clear that the Complainant to now cover up his own refusal to accept an alternate hotel is claiming that the alternate hotel was 'far away from the original hotel. If it was indeed true that the alternate hotel was far away, then the Complainant could have always answered the calls of the Opposite Party's executives instead of refusing to do the same. It is the Complainant who refused to accept the Opposite Party's offer and it is the Complainant who chose to instead put his family through the alleged trauma, despite having a readily available alternative hotel offered by the Opposite Party.

25.    The Opposite Party submitted that the contents of paragraph 7(d) make it clear that the Complainant has chosen to ignore the nature of the services rendered by the Opposite Party despite the same being contained in the Terms of Service. It is not the responsibility of the Opposite Party to ensure the customer has had a 'peaceful' check in into the hotel and whether all the services promised by the service provider have been rendered. It is once again submitted that the Opposite Party is only an intermediary and not the ultimate service provider.

26.    The Opposite Party submitted that the Complainant has omitted to mention that their executives were in touch with him and that they repeatedly tried to contact him after he of his own accord refused to accept for refund of the amount paid or an immediate access to an alternate hotel. The Complainant has made it out to seem that the alternates offered by them were substandard when in fact they acted beyond its scope as an intermediary. The legal notice appears to be a near perfect replica of the present complaint and are hence denied as false and fraudulent in their entirety.

27.    The Opposite Party submitted that they continued to attempt reaching out to the Complainant even after a month of receiving the complaint. In fact, on 29.01.2019, their executive spoke to the Complainant and informed him that a full refund had been given. However, the Complainant, it would now seem, was bent upon obtaining a compensation from the Opposite Party even though the events of 29.12.2018 cannot be in any manner stated to be their fault. Further, their executives on 01.02.2019 informed the Complainant that the only compensation they would be able to give him, apart from a full refund of the amount paid, would be a sum of Rs.500 as a wallet credit. The Complainant refused the same and made reference to the legal notice issued on his behalf.

28.    The Opposite Party submitted that the issue and trouble caused to the Complainant was not due to any deficiency in service on their part but was due to the Hotel. Further, they made several attempts at placating the Complainant by even offering a full refund and an immediate alternative to the said Hotel. The Opposite Party went above and beyond what its scope of services as only an intermediary entail. If at all there arises a need to compensate the Complainant, it is not due to the deficiency in service of the Opposite Party but due of the actions of the Hotel.

29.    The Opposite Party submitted that the alleged rescinding of the contract between the Opposite Party and the Hotel are denied. Further, even though the alleged behaviour on the part of the Hotel staff was regrettable, it cannot be said that the Opposite Party can be held liable for the same since they were the employees of the Hotel and not of the Opposite Party. Even assuming without admitting that there existed no longer an agreement between the Opposite Party and the Hotel, the very statement made by the Complainant that the Hotel refused to honor the commitment goes to show that there was a commitment and that the reservation had been made by them, thereby going to show no default on the part of the Opposite Party.

30.    The Opposite Party submitted that the alleged inconvenience suffered by the Complainant and his family, the details of which are more fully laid down in paragraphs 10(e) to 10 (i), is regretted by the Opposite Party. However, none of the issues caused to the Complainant can be said to have been cause on accord of the Opposite Party. It is a fact, even admitted by the Complainant, that the Opposite Party immediately offered the Complainant and his family an alternate to the Hotel and it was the Complainant who refused to accept the same. It cannot be held despite it being the Complainant who refused to accept the Opposite Party's attempts to settle the issues and also refuse the offer for assistance and refund of the booking amount, the Opposite Party would have to bear the brunt of being made party to the present proceedings. Further, a compensation amount of Rs.25,000/- was also offered to the Complainant which was once again refused by the Opposite Party. The Complainant has not annexed the email referred to by him with the complaint and has not specified which email he had referred.

31.    The relief sought from the Opposite Party by the Complainant and in respect of the same, it can only be stated that the deficiency in service, if any has been caused by the Hotel and not the Opposite Party. The Complainant has attempted to mislead this Hon'ble Forum and not brought on record facts which would only go to show the several gestures and attempts made by the Opposite Party to ensure customer satisfaction despite the alleged failure to honor reservations by the Hotel.

32.    The Opposite Party submitted that even as recent as 26.07.2019 sent an email to the Complainant, offering the Complainant a compensation amount of Rs.25,000/- apart from a full refund of the amount paid while also apologising for all the inconvenience caused to the Complainant. Their executives even had a telephonic conversation with the Complainant who made it very clear that he wanted to deal with the matter in court and would not be ready to accept any compensation even if the amount offered was Rs.1,00,000/-.

33.    The Opposite Party submitted that they have time and again tried to ensure the Complainant is compensated for the alleged trouble and inconvenience that he and his family has gone through, in spite of the fact that they are not legally required to do so and could have very well not offered any compensation or refund of the booking since the deficiency of service, if any is not on their part but is on the part of the Hotel. Therefore, in case of any liability to compensate the Complainant, it is the Hotel against which the Complainant ought to seek relief and not from them.

III.   The Complainant has filed his proof affidavit,  in support of his claim in the complaint and has filed 6 documents which are marked as Ex.A1 to A6. The Opposite Party had submitted its proof affidavit. On the side of Opposite Party documents were marked as Ex.B-1 to Ex.B-5. Written argument  of Complainant and Opposite Party were filed.

V. Points for Consideration:-

 

1. Whether there is deficiency of service on the part of the Opposite Party?

2.Whether the Complainant is entitled for the reliefs claimed in the complaint?

3.Whether the Complainant is entitled for any other relief/s?

POINT NO. 1 :-

34.    It is an undisputed fact that the Complainant has booked two rooms on 26.12.2018 in his name through Opposite Party for stay on 29.12.2018 and 30.12.2018 at Hotel Grand Seasons at Hyderabad. It is also not in dispute that the booking of one executive room and one Executive Deluxe room was confirmed in Hotel Grand Seasons by the Opposite Party. It is also not in dispute that the payment for the said rooms was received by the Opposite party.

35.    The contentions of the Complainant are that the booking of rooms were made in advance at Hotel Grand Seasons through the Opposite Party for stay of one night on 29.12.2018 and to attend the marriage function of his niece by the Complainant along with his aged parents, wife and minor son, as the said Hotel was very nearby to the Marriage Hall. As planned the Complainant and his family members reached the said Hotel on 29.12.2018 but to his shock no reservations were made in his name and the staff of the Hotel had informed him that the agreement with the Opposite Party got rescinded one year back and they cannot accommodated the Complainant and his family members, as there are no rooms available. Thereafter the Complainant had contacted the Opposite Party and informed about the same, who had in turn arranged an alternate Hotel which is 3kms far away from the Marriage Hall, which would be difficult for the Complainant and his family members consist of aged parents and the purpose of booking rooms in Hotel Grand Seasons well in advance as the said Hotel was nearby to the Marriage Hall and hence the offer of alternate hotel could not be accepted by the Complainant. Further contended that the Opposite Party had supressed the fact that the agreement with the said Hotel was got rescinded and thereby had rendered sub-standard service.    

36.    Further contended that on 26.12.2018 around 7 pm itself the Complainant had made payments to the opposite party on 26.12.2018 but the Opposite Party has paid to the Hotel only on 28.122018 which was admitted in its written version.

37.    Further contended that in the present case, the actual terms and conditions are only those that are printed on the confirmation vouchers issued by the opposite party and nothing more would be construed as terms and conditions for room booking service availed from opposite party when the said vouchers are sent by opposite party directly to the Complainant and not have forwarded them, as received from the Hotel.

38.    Further contended that there is unfair trade practice committed by the Opposite Party, as the Opposite party makes an Exclusive Agency Agreement with many hotels which was fled and marked by the opposite party and pre-book or pre-block such number of rooms under "specific private rate" and sells it so complainant like end users at a different "public rate” as given under clause 3.3 of the said agreement. Moreover, in the said agency agreement under clause 3.9.1 "pre-paid booking", it is clear that the opposite party directly collects the payment from complainant like customers and later pays the hotels based on their private rate after further deduction of their commission.

39.    Further contended that the contents of alleged "Agency Agreement" do not concern on the Complainant, as it is self-serving internal document claimed to be made between the Opposite Party and the Hotel Grand Seasons Hyderabad. The Opposite Party in fact had failed to provide the service with the quality for the complete negligence on its part for not having properly monitored, and controlled its agent Hotel" in providing the assured service to the Complainant. Further even in the alleged Agency Agreement clause 3.1 draws an adverse inference wherein it is mentioned that "The Hotel shall update and intimate Cleartrip regarding the availability of Hotel rooms. Cleartrip will offer for sale on Cleartrip Platform in capacity of an agent to potential customers and update such information on a daily basis". Further contended that in clause 3.6 it is mentioned as "The Hotel shall update the room availability to Cleartrip on a real time basis by updating details and information through the specified gateway and/or through offline means especially for sold out dates”.

40.    Further contended that as per the said clauses if such communication assumed to have happened on real time or daily basis between the Opposite party & the Hotel, then based on the information on non-availability of rooms received from the said Hotel on 25.12.2018 the Opposite Party ought not to have listed the said "Hotel" itself on its website for accepting booking of rooms on 12.2018 the day when Complainant made his room booking.

41.    Further contended that the alleged agreement in clause 3.9.3(c) it is mentioned as "In the event, Hotel does not mark the reservation with the time limit mentioned in clause 3.10.2, then the reservation shall be treated as "Confirmed". Such confirmed bookings shall entitle Cleartrip its respective commission”. Hence it can be inferred that when the said hotel has not communicated the marking of reservation to the Cleartrip, then the next day itself the Opposite Party ought to have ensured receiving the confirmation/acknowledgement from the said "Hotel" on the booking made by the complainant on 26.12.2018, otherwise the Complainant would not have undergone that acute pain and mental agony he suffered on the evening of 29.12.2018 and 30.12.2018. Hence, it becomes lucidly evident that Cleartrip have not proactively checked the "marking of reservation" by the said Hotel. The clause itself explains on the Opposite Party is interested in having his commission from the said Hotel but not understood his accountability to ensuring the provision of assured service to the Complainant. By the way, is this Complainant been cheated again without having such clause 3.10.2 existing in the said Agreement.

42.    Further contended that alleged agency agreement produced is an unsigned document and not properly executed binding document between parties, hence the Opposite Party is trying to mislead this Commission with the submission of such concocted document for the sake of defending his case and in the guise of having such alleged "Agency Agreement" trying to evade from its offences committed on the Complainant.

43.      Further contended that the averment of the opposite party projecting that all their staff ran on toes to address the plight of the Complainant on the night of suffering and to the averment that the opposite party has provided a suitable hotel in fifteen minutes of time from the Complainants call made, as untrue and stoutly objected, in fact Complainant become tired and only after painful experience reached out to the opposite party only to become disappointed to understand that they can provide some other hotel which is further far from the marriage venue, when the Complainant had initially chosen the said Hotel Grand Seasons, only for the reason the Hotel Grand Seasons, Hyderabad is closer to the Marriage Venue as it would be more comfortable for his aged parents to avoid discomforts in travelling any long distance the next day to attend the Marriage in the early morning and also for easy return to their hotel room for quick breaks of rest & relaxations, toilet/adult diaper changing requirements during the Marriage Day. While the basic necessity of the Complainant being so, that that Complainant cannot even think to accept having his aged parents to be put in a further farther place from the already booked the Hotel Grand Seasons, Hyderabad.

44.    Further contended that when the rooms required by Complainant was requested with opposite party only and not with the Hotel, further the rooms confirmed by the opposite party is both operationally and financially managed under the control of the Opposite party, which is evident through the admitted agreement which alleged to be existing between the Hotel and the Opposite Party. It is the responsibility of the Opposite Party who undertook the rooms booking through its website www.cleartrip.com, is ought to have ensured a proper and quality service been provided to the Complainant and hence the Complainant preferred the Complaint for a fair compensation for all the pairs and sufferings undergone on 29.10.2013 and 30.12.2018, by the Complainant and his family having aged parents, whom also suffered further pains and health complications after having returned to their home in Chennai.

45.    Further contended that the compensation of Rs.25,000/- offered by the opposite party was only after receiving the legal notice caused by the Complainant with an intention to avoid the present legal proceedings initiated against its poor, sub-standard, deficient service, mental agony, loss and pains, cased to the Complainant and his family. And the opposite party has now admitted about the trouble and inconvenience, mental agony, loss and pains underwent by the Complainant only after initiating the legal proceedings against it.

46.    Further contended that the opposite party has been evasive to the request of making correction to their present standard operating procedures to ensure this Complainant and other Customers of Opposite party in future as well as to print its service assurance terms and conditions on the vouchers, email, and to confirm every customer about the service booked for and ensure its availability to the customer immediately, after booking of such a service with cleartrip.

47.    Further contended that this Complainant is more interested in seeking the abovementioned relief in the interest of the other gullible customers of the opposite party as well and as a responsible citizen also very much afraid of such filthy service that may possibly recur to him or other users of the Opposite Party website www.cstrip.com in the future as well. As such the Complainant feels it as his bound duty to do all that necessary things to prevent the Opposite Party from causing such damages to other gullible customers of the Opposite Party, in future. Hence the Complainant seeks as part of the relief that the opposite party to submit its "Standard Operating Procedure -SOP" before this Hon'ble Commission, that elaborately explains on how such deficiency of service would not be provided to any of its customers in future i.e, not to repeat the deficiency of service in future.

48.    Further contended that the complainant cannot explicitly demand anything from the said "Hotel" and that the Hotel persons have also asked the Complainant to contact only the Opposite Party for any of his problems and they cannot be of any help and because of the sub standard service of the Opposite Party the Complainant's family and his parents were left stranded on the road in front of the said "Hotel" suffering due to cold, it amounts to both the physical and mental injury caused on all of them.

49.    Further contended that the Opposite Party was at serious fault, which was well aware of the Complainant cannot easily move his aged parents to avail an alternate hotel situated farther, the Opposite Party had willfully suggested an alternate Hotel which is purposefully done as to project themselves as being supportive to the Complainant as per the standard operating procedure but as expected by it the Complainant did not opt the same. The manner of the Opposite Party had also avoid ending up in paying more to the alternate Hotel than the original booking amount paid by the Complainant. When the Complainant was in deep distress to find a safe accommodation to his family, the opposite party had wantonly played with the emotions of the Complainant as well.

50.    The contentions of the Opposite Party are that it is an online travel company which provides intermediary facilities hotel reservations and booking air tickets through its website (www.cleartrip.com) and Mobile App, hereinafter referred to as ("Booking Platform"). The Opposite Party is not the final supplier of services and merely provides intermediary services to its customers. Their Terms of Service, which is visible for all its customers and easily accessible on all platforms which clearly state that it is not the last mile service provider and does not have control over the lack or deficiency in services provided by any person or entity including an airline, hotel, activity provider etc. The Terms of Service further state that it cannot be deemed to be responsible for any such deficiency or lack of services caused on accord of the last mile service provider. This Terms of Service is accepted by every customer of the Opposite Party including the Complainant herein and forms a binding agreement between the Opposite Party and the Customer.

51.       Further contended that the Complainant had on 26.12.2018 at around 7.00pm booked two rooms in the Hotel Grand Season at Hyderabad using their website as a platform to make the booking for four adults for one night i.e. for the night of 29.2018, Further, they had made the payment to the Hotel of Rs.1073.90 vide bank reference No. AXISP00028420880 dated 25.12.2018 and Rs. 908.63/- vide bank reference No. AXISP00028420680 dated 25.12.2018 on behalf of the Complainant.

52.    Further contended that the Opposite Party and the hotel have entered into an agreement in which it has been clearly stated in Clause 5.1 that if the Hotel was unable to honor any of its reservations, for any reason whatsoever, it shall immediately notify Cleartrip and upgrade such customer booking made through Cleartrip to the next best higher room type, without any extra charge or relocate the Cleartrip customer to comparable or higher rated/stareed hotel or resort, with the same (identical) inclusions as its own costs as per below.

53.    Further contended that the Complainant had contacted them Party when he was unable to check in stating that he was not checked in by the hotel and the hotel has refused to honor the reservations made in the name of the complainant, and as soon as they received a call from the complainant, the area manager, their employee, attempted calling the management of the hotel several times but was unable to reach out to them. Subsequently in an urgent need to placate the Complainant, their area manager offered the Complainant an alterative to the said hotel, by name, Nand International. The alternative Hotel was within 3 kilometers from the hotel which remained unreachable to their executives. This offer was made within fifteen minutes of receipt of the call from the Complainant despite the fact neither the agreement signed by them with the Hotel nor the Terms of Service which bound the Complainant required the Opposite Party to do so.

54.    Further contended that it was the Complainant who refused to accept their alternative as well as to refund the amount paid by the Complainant, despite the fact that their executives contacted the Complainant several times through the day. Further contended that the Complainant even supported responding to the calls made by their executives, it was that of its own accord and wanting to support the Complainant in any which way, sent an email to the Complainant stating that the refund amount would be processed and would be credited back to the Complainant's account. This is despite the fact that the Complainant had explicitly stated that he did not want to refund and then refused to answer the calls of the Opposite Party.

55.    Further contended that they continued to attempt reaching out to the Complainant even a month of receiving the complaint. In fact, on 29.01.2019, their executive spoke to the complainant and informed him that full refund was been given. But the Complainant, it would be seem was bent upon obtaining a compensation from them even through the events of 29.12.2018 cannot be in any manner stated to be its fault. Further, their executive on 01.02.2019 informed the Complainant that the only compensation would be able to give him, apart from a full refund of the amount paid would be a sum of Rs. 500 as a wallet credit, the Complainant refused the same and made reference to the legal notice issued on his behalf.

56.    Further contended they have even as recent as 26.07.2019 sent as email to the Complainant offering compensation amount of Rs. 25000/- apart from a full refund of the amount paid while also apologizing for all the inconvenience caused to the Complainant. Their executives even had a telephonic conversation with the Complainant who made it very clear that he wanted to deal with the matter in court and would not be ready any compensation even if the amount offered was Rs. 1,00,000/-.

57.    Further contended that they had time and again tried to ensure the Complainant is compensated for the alleged trouble and inconvenience that he and his family has gone through, in spite of the fact that they were not legally required to do so and could have very well not offered any compensation or refund of the booking since the deficiency of service, if any is not on their part but is on the part of the Hotel.

58.    Further contended that they made several attempts at placing the Complainant by even offering a full refund and an immediate alternative to the said Hotel and they went above and beyond what its scope of service as only an intermediary entail. Hence, in case of any liability to compensate, it is the Hotel which against the Complainant ought to seek relief and not from them.

59.    Further contended that the Complainant has failed to establish any cause of action against them in the present Complaint, and hence, the relief claimed under the present Complaint is not maintainable against them. Further the relief claimed under the present complaint is untenable and unreasonable as the Complainant has failed to establish any kind of harassment or financial loss caused by them, under the circumstances and for the reasons stated above, they are not liable to pay any compensation or any other relief to the Complainant. The Complainant has attempted to mislead this Hon'ble Commission and not brought on record facts which would only go to show the several gestured and attempts made by them to ensure customer satisfaction despite the alleged failure to honor reservations by the Hotel.

60.    On discussions made above and on perusal of records, it is clear that the Complainant had booked two rooms on 26.12.2018 in Hotel Grand Seasons at Hyderabad through Opposite Party website and the same were confirmed by the Opposite Party through their Vouchers issued on 26.12.2018 to the Complainant, as evidenced from Exs.A-1 and A-2. The contention of the Complainant that the purpose of booking of Hotel Grand Seasons, is that the said Hotel is nearby to the Marriage Hall where the Complainant’s niece marriage to be performed on 30.12.2018 and in support of the said contention the Marriage Invitation was marked as Ex.A-3. The Marriage Hall found to be situated at Bagh Amberpert and from Exs.A-1 and A-2 the said Hotel Grand Seasons was also found to be situated at Bagh Amberpet.  

61.    It is to be noted that the fact of denial made on 29.12.2018 by the said Hotel in accommodating two rooms booked by the Complainant, was not objected by the Opposite Party and at the same it is also to be noted that the Opposite Party had not conversed any reasons for such denial made by the said Hotel claimed to be their network hotel, instead had pointed that they have taken immediate steps to arrange and provide an alternate hotel to the Complainant. It is further noted that the alternate hotel that was arranged by the Opposite Party, namely, Nand International, as admitted by the Opposite Party the said Hotel is 3 kms away from the Hotel originally booked by them, in this regard the contention of the Complainant was that the alternate hotel alleged to have been arranged could not be accepted for the reason that the same is far away from the Marriage hall and the very purpose of booking made in Hotel Grand Seasons well in advance through the Opposite Party as the said Hotel is nearer to the Marriage Hall and would be much easier to attend the marriage with his family and age old parents. Since no other nearby alternate hotel was provided by the Opposite Party, the refund of the booking amount offered to be made by the Opposite, could not be accepted, as the confirmation of rooms made by the Opposite Party on 26.12.2018 itself.

62.    The Opposite Party had also admitted that the payments were made to the said Hotel Grand Seasons only on 28.12.2018, though they have received payments from the Complainant on 26.12.2018 itself and they had even confirmed the booking of rooms on 29.12.2018 by Exs.A-1 and A-2 as if the rooms were confirmed in the name of the Complainant on 29.12.2 018 by their network hotel.

63.    The contentions of the Opposite Party relying upon the Agency Agreement, Ex.B-3, entered into between them and Hotel Grand Seasons, Hyderabad, as per Clause 5 that"5.1 If the Hotel was unable to honor any of its reservations, for any reason whatsoever, it shall immediately notify Cleartrip and upgrade such customer booking made through Cleartrip to the next best higher room type, without any extra charge or relocate the Cleartrip customer to comparable or higher rated/starred hotel or resort, with the same (identical) inclusions at its own cost as per below. And as per clause 5.2 “The Hotel shall also prepay to such comparable or higher hotel or resort the room charges for the nights in question, together with all the transportation cost of such customer to such alternatives inclusions. The Hotel will immediately deliver a written apology to the Cleartrip and/or the customer including an explanation holding Cleartrip harmless on account of the unforeseen event leading to the hotel's failure to honor the reservation”. In the instant case, the Complainant and his family members were denied accommodation of the booked rooms by the Network Hotel of the Opposite Party, i.e., by Hotel Grand Seasons. And it is clear from the submissions made by the Opposite Party that no such actions mentioned in the above clauses were found to be taken by the said Hotel.

64.    The contentions of the Complainant highlighting clauses 3.1, 3.6and 3.9.3(c)of the Agency Agreement, Ex.B-3, entered into between the Opposite Party and Hotel Grand Seasons, under Clause 3.1 it is mentioned that "The Hotel shall update and intimate Cleartrip regarding the availability of Hotel rooms. Cleartrip will offer for sale on Cleartrip Platform in capacity of an agent to potential customers and update such information on a daily basis". Under clause 3.6 it is mentioned that "The Hotel shall update the room availability to Cleartrip on a real time basis by updating details and information through the specified gateway and/or through offline means especially for sold out dates”. Under clause 3.9.3(c) it is mentioned that "In the event, Hotel does not mark the reservation with the time limit mentioned in clause 3.10.2, then the reservation shall be treated as "Confirmed". Such confirmed bookings shall entitle Cleartrip its respective commission”. Hence, if at all the Opposite Party would have ensured the confirmation of booking with the said Hotel, the Complainant and his family members consist of age old parents would not have suffered mentally and physically, apart from financial loss, is legally acceptable.

65.    The Complainant further contended that as per Annexure A of the Agency Agreement, Ex.B-3, Under clause B Agreed Commission of 20% exclusive of taxes on all rate plans to be paid to the Opposite Party by Hotel Grand Seasons and under Clause C, the Opposite Party is entitled for 10 rooms in Hotel Grand Seasons and in relation to the number of rooms under Clause 3.1 Hotel Grand Seasons was obliged to offer atleast 5 rooms on daily basis to the Opposite Party. Hence the Opposite Party had failed to make the said Hotel in following the terms and conditions of the Agency Agreement and to provide accommodation to the Complainant in the rooms booked in his name and the Opposite Party had shown interest only in collecting their commission and had provided a subs standard service to the Complainant.

66.    On considering the facts and circumstances, the contentions of the Opposite Party  that they are only an intermediary and they cannot made liable and responsible as per the terms and conditions are not legally sustainable, as it is clear that only on the confirmation about the booking of rooms in the name of the Complainant in Hotel Grand Seasons, by the Opposite Party, the Complainant had reached the Hotel with fond hope of occupying the rooms booked in his name, when the accommodation was denied by the said Hotel the responsibility vest with the Opposite Party to provide an alternate Hotel that suits the Complainant according to his needs and claiming shelter under the Agency agreement entered into between the Opposite Party and the said Hotel, and pleading to sue the said Hotel, where in no way the Complainant is aware of such Agreement nor in no way the Complainant is bound by the terms and conditions of the such Agreement, further it is clear that the Opposite Party had not taken any effective steps to accommodate the Complainant in the rooms booked in Hotel Grand Seasons on 29.12.2018 to 30.12.2018 and had acted lethargically and negligently in the present case, and it is also clear that the Opposite Party was ever ready to cancel the booking and make refund, without considering the pain and suffering of the Complainant. Hence the negligent act of the Opposite Party clearly amounts to deficiency of service. Therefore this Commission is of the considered view that there is deficiency of service on the part of the Opposite Party. Accordingly Point no.1 is answered.

POINTS NO 2 & 3

67.    As discussed and decided Point No.1 against the Opposite Party and as the Complainant had admitted that the Opposite Party had refunded the booking charges, the Opposite Party is directed to pay a sum of Rs.50,000/- (Rupees Fifty Thousand Only) towards deficiency of service and mental agony and to pay a sum of Rs.5,000/- (Rupees Five Thousand Only) towards cost of the litigation to the Complainant, within 8 weeks from the date of receipt of this order.

In the result, the complaint is allowed in part. The Opposite Party is directed to pay a sum of Rs.50,000/- (Rupees Fifty Thousand Only) towards deficiency of service and mental agony and to pay a sum of Rs.5,000/- (Rupees Five Thousand Only) towards cost of the litigation to the Complainant, within 8 weeks from the date of receipt of this order, failing which the above amount shall carry interest at the rate of 9% from the date of receipt of this order to till the date of realisation.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 7^th of  June 2023.

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                    B.JIJAA

      MEMBER II                             MEMBER I                        PRESIDENT

 

List of documents filed on the side of the Complainant:-

 

Ex.A1	26.12.2018	Room Booking Voucher CHMM-11203614
Ex.A2	26.12.2018	Room Booking Voucher CHMM-11205368
Ex.A3	30.12.2018	Wedding Invitation
Ex.A4	30.12.2018	Train Journey ticket for travelling from Hyderabad to Chennai
Ex.A5	18.02.2019	Legal Notice issued to the Opposite Party
Ex.A6		Acknowledgement card

 

 

List of documents filed on the side of the Opposite Party:-

Ex.B1		Online terms of use
Ex.B2		Booking details
Ex.B3		Copy of the agreement with hotel
Ex.B4		Copy of the email sent on 29.12.2018
Ex.B5		Copy of email sent on 26.07.2019

 

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                    B.JIJAA

      MEMBER II                             MEMBER I                             PRESIDENT