Chandigarh

StateCommission

A/54/2021

Makemytrip India Pvt. Ltd. - Complainant(s)

Versus

Pritpal Singh - Opp.Party(s)

Zenith Law Chambers Adv.

13 May 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Appeal No.	:	54 of 2021
Date of Institution	:	11.08.2021
Date of Decision	:	13.05.2022

 

 

 

MakeMy Trip (India) Pvt. Ltd., Building No.5, Tower-B, 19^th Floor, Building No.5 (EPITOM), DLF Cyber City, Phase-3, Gurugram, Haryana-122002.

……Appellant/Opposite Party No.1.

Versus

1. Pritpal Singh son of Ishar Singh resident of H.No.404, Phase3A, SAS Nagar, Mohali, Punjab.
2. Devinder Kaur wife of Pritpal Singh, resident of H.No.404, Phase3A, SAS Nagar, Mohali, Punjab.

…..Respondents/Complainants.

3. MakeMy Trip, SCO No.169-170, Ist Floor, Near Sindhi Sweets, Sector 8, Chandigarh – 160017 through its Manager.

…Proforma Respondent/Opposite Party No.2

BEFORE:    JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                  MRS. PADMA PANDEY, MEMBER

                  MR. RAJESH K. ARYA, MEMBER

 

Present:-    

Sh. Gaurav Rana, Advocate for the appellant.

Sh. J. S. Randhawa, Advocate for respondents No.1 & 2.

Respondent No.3 ex-parte vide order dated 08.11.2021.

 

PER  RAJESH K. ARYA, MEMBER

          This appeal has been filed by opposite party No.1, namely, Makemy Trip (India) Pvt. Ltd. (appellant herein) against order dated 16.06.2021 passed by District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (now District Consumer Disputes Redressal Commission-II, U.T., Chandigarh) [in short ‘District Commission’], whereby consumer complaint bearing No.1084 of 2019 filed by the complainants, namely, Sh. Pritpal Singh and Smt. Devinder Kaur, (respondents No.1 & 2 herein) has been allowed by the District Commission in the following manner:-

“17]      Taking into consideration the facts & circumstances of the case, as well as discussion made in preceding paragaraphs, the deficiency in rendering proper service on the part of Opposite Parties coupled with unfair trade practice adopted by the OPs have been established, which certainly has caused harassment to the complainants.  Therefore, the complaint stands allowed against OPs with a direction to compensate the complainants by paying an amount of Rs.20,000/- along with litigation cost of Rs.10000/-. The OPs are also penalized with cost of Rs.One Lakh for the unfair trade practice resorted to by them and the said amount is directed to be deposited by OPs in the “Consumer Legal Aid Account” No.32892854721, maintained with the State Bank of India, Sector 7-C, Madhya Marg, Chandigarh in the name of Secretary, Hon’ble State Commission UT Chandigarh.

          This order shall be complied with by the OPs within 45 days from the date of receipt of its certified copy, failing which, they shall also be liable to pay additional cost of Rs.10,000/- to complainants apart from the above relief.”

2.      The brief facts as culled from the impugned order dated 16.06.2021 passed by the District Commission were as under:-

          “Briefly stated, the complainants booked a Holiday Trip to Nepal through OP No.1, whereby OP No.1 promised to provide 4-Star facilities to the complainants during their stay at Hotels at Kathmandu and Pokhara in Nepal.  The schedule for the said trip was from 8^th June to 15^th June, 2019 and for that the OP No.1 charged an amount of Rs.66,661/- for two persons. 

         It is stated that the experience of the complainants about the trip booked through OP No.1 was very pathetic.  It is submitted that while arriving at Kathmandu on 8.6.2019, the car provided to the complainants was not of Sedan Standard, as mentioned in the Brochure (Ann.C-1); Dahlia Boutique Hotel at Pokhara (Nepal) provided by OPs was not of 4-Star Category and more so, the lift in the said Hotel was out of order, causing further inconvenience to the complainants.  It is also submitted there was no swimming pool facility at the said Hotel as mentioned in the Brochure by the OPs and when this matter was reported to the executive of the said Hotel, she also sent an email in this regard to the OPs on 10.6.2019 (Ann.C-5 & C-6).  It is further submitted that even the food served at the said Hotel at Pokhara, its preparation, the ambience of the Dinning Hall, was not as per the standard of 4-Star Hotel (Ann.C-7 to C-9).  It is pleaded that when these things as well as the deficiency in rendering proper service has been highlighted to the Ops, they offered an amount of Rs.3000/- in cash by sending email dated 13.8.2019 (Ann.C-10), which was not accepted by the complainants.  Thereafter, a legal notice was sent to the OPs on 24.9.2019, which was replied by the OPs on 1.10.2019 seeking some information, which has been provided, but despite that no response has been received from the side of the OPs (Ann.C-11 to C-13).  Hence, this complaint.

2]       The OPs have filed joint reply and while admitting the factual matrix of the case about booking and travel of the complainants undertaken through them, stated that OPs being only the facilitator between the concerned service provider and intended traveller, are not responsible or liable for any deficiency caused on the part of the Hotel or any service provider, as the same is the sole prerogative of the Hotelier or the service provider.  It is stated that once the confirmed bookings are shared with customer, the answering OPs are discharged from its obligations and duties qua the said booking.  It is also stated that the OPs have shared a detailed itinerary with the complainants at the time of booking of the package, which complainants must have gone through before finalizing the package and did not raise any issue.  It is pleaded that so far as the star rating of concerned Hotel i.e. Dahlia Boutique Hotel, Pokhara, Nepal or other hotels are concerned, till date there is no set mechanism for rating the Hotels or Resorts and that the rating is provided by the Hotelier and it also depends upon the reviews or recommendations of the customers.

         It is submitted that the OP as a gesture of goodwill, has already offered the compensation to the complainants for the alleged substandard service provided by the Hotel, by issuing a fine-dinning voucher amounting to Rs.2000/-.  Further, the complainants when approached the OPs being aggrieved by the quality of the vehicle for transport services duly provided the complainant with a substitute vehicle and apart from this, the OPs as a goodwill also offered a refund of Rs.3000/- to the complainants, which was rejected by them.  It is also submitted that no liability or deficiency in service can be attributed to the OPs and the concerned Hotel i.e. Dahlia Boutique Hotel, Pokhara and the concerned Transport Service Provider are only liable to compensate the complainant.  Denying all other allegations and pleading no deficiency in service, the OPs have prayed for dismissal of the complaint.”

3.      The order passed by District Commission has been assailed on the ground that the impugned order has not been signed by the President of the District Commission and thus, is liable to be set aside for non-compliance of the provisions of Section 39(4) of Consumer Protection Act, 2019. It has further been stated that the District Commission failed to consider the terms and conditions of the User Agreement, which was duly understood and consented by the respondents. It has further been stated that the District Commission fastened the liability on the appellant without proper evidencing and detailed examination of the facts. It has further been stated that respondents No.1 & 2/complainants miserably failed to raise any complaint as regards the concerned Hotels not providing sufficient/on-part service related to the elevators, swimming pool and the food, vehicle provided was of substandard and lacks basic amenities, with the concerned Hotelier/Travel Service Provider or provide any proof to the appellant for the same. It has further been stated that the District Commission failed to appreciate the fact that the appellant, being merely a facilitator, has no fault/control over the standard or services provided by the concerned end service provider. It has further been stated that after the issuance of the said confirmed bookings/tickets, the appellant is discharged from its duties and obligations qua respondents No.1 & 2/complainants, as duly agreed to in the User Agreement.  It has further been stated that the fine-dining voucher of Rs.2,000/- and a Goodwill refund of Rs.3,000/- was offered by the appellant as a goodwill gesture, which respondents No.1 & 2 rejected in their own wisdom. It has further been stated that the District Commission failed to accord any reasons for fastening the liability of the omission of adoption of the mechanism of the Star-Rating of the concerned Hotel or the concerned Statutory Body of Nepal. Award of the District Commission qua compensation awarded has been assailed in view of pronouncement of Hon’ble  Supreme Court in case ‘Charan Singh Vs. Healing Touch Hospital & Ors.’, AIR 2000 Supreme Court 3138 and that of Hon’ble National Commission in case ‘Surendra Kumar Tyagi Vs. Jagat Nursing Home and Hospital and Anr.’, IV (2010) CPJ 199 (NC). In its additional written arguments, the appellant cited ‘Sri. Kunal Bahl & Anr. Versus State of Karnataka’ reported as 2021(2) KantLJ 254, wherein the Karnataka High Court, while referring to the provisions of Section 79 of Information Technology Act, 2000 (in short ‘I.T. Act, 2000’) observed that Consumer Protection (E-Commerce) Rules, 2020 makes a distinction between Marketplace e-commerce websites and inventory e-commerce websites and as such, Snapdeal falls within the ambit of market place e-commerce website and hence, shall be applicable to the exemption as laid down under Section 79 of the I.T.Act 2000 and thus, the appellant is also a market place e-commerce platform since it does not provide inventory and merely connected respondents No.1 & 2/complainants with the concerned Hotel i.e. Dahlia Boutique Hotel, Pokhara and the concerned Travel Service Provider and hence, is applicable to the exemption as laid down under Sec-tion 79 of the I.T.Act, 2000.

4.      On the other hand, while reiterating the averments of complaint in their written arguments filed, on behalf of respondents No.1 & 2/complainant, it has been stated that the impugned order is well reasoned and sustainable in the eyes of law. Lastly, stating that the District Commission has rightly allowed the complaint, prayed for dismissal of appeal with costs.

5.      After giving our thoughtful consideration to the contentions raised by the Counsel for the parties and going through the record, impugned order and the written arguments/additional written submissions very carefully, we are of the considered view that the appeal is liable to be dismissed for the reasons to be recorded hereinafter.

6.                Insofar as the contention raised on behalf of the appellant that impugned order has not been signed by the President of the District Commission and thus, is liable to be set aside for non-compliance of the provisions of Section 39(4) of Consumer Protection Act, 2019, it may be stated here that the order under challenge has duly been signed by all the Members of the Bench including the President of the District Commission and therefore, the objection raised stands rejected.

7.                As regards the contention raised that the District Commission failed to consider the terms and conditions of the User Agreement, which was duly understood and consented by the respondents and further the appellant, being merely a facilitator, has no fault/control over the standard or services provided by the concerned end service provider and the appellant is discharged from its duties and obligations qua respondents No.1 & 2/complainants, as duly agreed to in the User Agreement after the issuance of the said confirmed bookings/tickets, it may be stated here that admittedly, respondents No.1 & 2/complainants booked holiday tour to Nepal with the appellant - Company scheduled for 8.6.2019 to 15.6.2019 and they paid Rs.66,661/-. However, since they faced discrepancies in the committed services being provided by the appellant Company, respondents No.1 & 2/complainants raised issue for not providing Sedan standard car as committed and also the Hotel provided at Pokhara, Nepal, was not of committed category and further the services were not up to mark as the lift was out of order which caused inconvenience to them as allotted room was on the First Floor. On being approached by respondents No.1 & 2/complainants, vide email dated 11.6.2019, AnnexureC-2, the appellant’s representative furnished their apology vide email, Annexure C-3, which the District Commission has duly reproduced in its order under challenge, to the effect, interalia, “Thank you for notifying us your query please accept our sincere apologies for the inconvenience your may have experience in regard to your trip.”. Not only this, qua non-availability of swimming pool, as per the brochure list of the appellant Company being committed service and in response to the matter raised with the Hotel at Pokhra, Nepal, the Executive Marketing & Sales of that Hotel vide email dated 10.6.2019, Annexure Annexure C-5, stated that “We are facing a great issue with this swimming pool thing shown in the front page of MMT & which is not mentioned in our extranet. This is the second time for the same issue & guest is really angry because of the same.” Further, the representative of the appellant - Company vide email dated 10.6.2019, Annexure C-6, stated that they have noted the same and would forward the same to the team concerned to remove the icon from Goibibo as on MMT the same was not shown. From perusal of these emails, the District Commission, very rightly observed that the appellant - Company is habitual to project false commitments or allurements having clear knowledge  & intention not to fulfill the same in toto and at the first glance, the deficiency in service on the part of the appellant - Company has been reflected. Moreover, the terms and conditions agreed upon between the parties are one sided and totally against the interest of respondents No.1 & 2/complainants. In our view, the District Commission has rightly observed that the appellant – Company vide the said terms & conditions tried to aloof itself from the burden of any of the liability, which has arise due to deficient services. 

8.                It may also be stated here that it was the utmost duty of the appellant – Company to make sure that respondents No.1 & 2/complainants get the promised services as per the terms and conditions agreed upon between the parties & up to the mark, in which, the appellant-Company lacked and due to this deficiency in rendering service on its part, respondents No.1 & 2/complainants suffered immense mental agony and physical harassment, for which, they have rightly been compensated by the District Commission. The appellant – Company has tried to shift its burden of liability by merely pleading that it was the liability of the concerned service provider on account of deficient services i.e. transporter or the Hotel service provider but we do not agree with the contention raised as respondents No.1& 2/complainant had availed the services of the appellant - Company after going through the advertisement of the appellant - Company vide which they claimed to provide services as mentioned therein.  The District Commission rightly observed that the appellant-Company failed to produce any evidence showing that respondents No.1 & 2/complainants had any direct contact with the persons, hotel or other facilities being provided by the appellant – Company. It is also not out of place to mention here that for the alleged substandard service provided by the Hotel by issuing a fine-dining voucher amounting to Rs.2,000/-, the appellant – Company also offered compensation to respondents No.1 & 2/complainants. When approached by respondents No.1 & 2/complainants with the grievance of quality of the vehicle for transport services, the appellant – Company also provided a substitute vehicle. The appellant – Company further offered an amount of Rs.3,000/- to respondents No.1 & 2/complainant as goodwill refund which they did not accept. This all goes to show that somewhere, there was admission on the part of the appellant – Company that they lacked in making sure that respondents No.1 & 2/complainant must get promised services, which was definitely a deficiency in rendering service and unfair trade practice on the part of the appellant – Company. The appellant – Company should not accept the amount, if it was not in their capacity to make sure as regarding providing promised services to respondents No.1 & 2/complainants. Rather they lured respondents No.1 & 2/complainant on showing them rosy picture qua promised services.

9.                On behalf of the appellant, by relying upon judgments of Hon’ble Apex court, as referred to above, it has been stated that the appellant is also entitled to exemption as laid down under Section 79 of the I.T.Act, 2000. Such a plea does not cut any ice. The appellant had taken the consideration amount for providing better, quality and promised facilities at a Hotel booked by respondents No.1 & 2. If due to poor quality of such services, the purpose is not served, the person would suffer loss and mental agony and harassment. The provisions of Consumer Protection Act, 1986 clearly say that any shortcoming, imperfection 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, amounts to deficiency in service as defined by Section 2(1)(g) of the Act. Thus, the appellant failed to fulfill its promises and assurances given to the respondents qua the services to be provided to them at the Hotel booked through the appellant and rather, showed & projected rosy pictures to the appellant, who actually suffered mental agony and physical harassment due to deficiencies in such promised services. Therefore, in our concerted view, the District Commission rightly allowed the complaint of respondents No.1 & 2/complainants  by holding in Paras 15 & 16 of its order as under:-

“15]      From Ann.C-5, it transpires that OP Company is not much bothered about the facilities being available in the hotel booked under the package, rather they are committing unfair trade practice by projecting the availability of the facilities, which do not exist in actual.  It seems that when any discrepancy is noticed in the services, they by taking shelter under the so called terms & conditions try to shift their burden and also offer compensation in the shape of peanuts.  We feel that it has not been considered or bothered that what harassment the customers/consumers face when they are not being provided all the services for which they have paid under the package.  There is no breakup given by the OP Company for the services provided under the package.  Once they commit to provide certain amenities under the package, they must adhere to the same. 

 

         Missing of one or two facilities may not affect the OP Company, but certainly it effects other party mentally as well as financially.  A person pays certain amount under the package having influenced by the facilities to be provided under the package at fixed amount.  Such allurement should not be made for the sake of enticing the consumers or public at large. 

 

16]      In view of the above discussion, it is clearly established that the OP Company failed to render proper services to the complainants and it also shows the malpractices adopted by OP Company in projecting numerous facilities to be provided, which in actual are not even mentioned in their extranet with concerned Hotel etc. This malpractices are nonetheless the unfair trade practice resorted to by the OP Company, which needs to be curbed.  In our considered opinion, this complaint has also exposed the sham reality about the functioning of the OP Company.”

 

10.    Therefore, in our considered view, the District Commission rightly allowed the complaint vide the order impugned, which does not suffer from any infirmity or material irregularity and is based upon true appreciation of facts and settled law on the subject.

11.    For the reasons recorded above, the appeal is dismissed with no order as to costs.

12.    Certified copies of this order be sent to the parties, free of charge.

13.    The files be consigned to Record Room, after completion.

Pronounced

13.05.2022.

[RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 

 (PADMA PANDEY)

          MEMBER

 

 

 

(RAJESH K. ARYA)

MEMBER

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