Tamil Nadu

North Chennai

CC/399/2018

Y.Balakrishnan - Complainant(s)

Versus

Sterling Holiday Resorts(India)Ltd., &others - Opp.Party(s)

A.K.Mylsamy & Associates

28 Apr 2023

ORDER

Complaint presented on  :10.08.2012    Date of disposal               :28.04.2023

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (NORTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 600 003.

 

PRESENT: THIRU. G.VINOBHA, M.A., B.L.                            : PRESIDENT

                   TMT. KAVITHA KANNAN,M.E.,                           : MEMBER-1

                                THIRU V. RAMAMURTHY, B.A.B.L., PGDLA     : MEMBER II

 

C.C. No.399/2018

 

DATED THIS FRIDAY THE 28^th DAY OF APRIL 2023

 

Y.Balakrishnan,

Door No.8/1, Plot No.1,

Annamalai Colony,

Virugambakkam, Chennai-600 092.

                                                                                                  .. Complainant.                                

..Vs..

1.The Managing Director,

Sterling Holiday Resorts (India) Ltd.,

Corporate Office, Citi Tower,

No.7, 3^rd Cross street,

Kasturba Nagar, Adyar,

Chennai-600 020.

 

2. The Office-In-Charge,

Makemytrip (India) Pvt. Ltd.,

Shop G6, Ground Floor, GeeGeeEmarald,

151, Village Road, Nungambakkam,

Chennai-600 034.                                                                      ..  Opposite parties.

 

Counsel for the complainant                      : M/s.A.K.Mylsamy Associates/

                                                                  Party-In-Person

Counsel for  1^st opposite party                 : Exparte.

Counsel for  2^nd opposite party                 : M/s.V.Selvaraj.

 

 

ORDER

THIRU. V. RAMAMURTHY, B.A., B.L., PGDLA, MEMBER

          This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act, 1986 prays to directing the Opposite parties desist from continuing their unfair trade practice and to tender unconditional apology and to pay a sum of Rs.2.00 lakhs to the complainant towards compensation for mental agony and to pay Rs.2.00 lakhs to this complainant as punitive damages and to pay Rs.2000/- towards costs.

This complaint was originally filed before the District Commission, Chennai (South) and taken on file in C.C. No.202/2012.  Thereafter, the said complaint has been transferred to this Commission as per the proceedings of the Hon’ble S.C.D.R.C. and taken on file as C.C. No.399/2018.

1.THE COMPLAINT IN BRIEF:

         According to complaint the complainant had booked two rooms in the 1^st opposite party unit hotel Sterling Fern Hill, Kundah House Road, Fern Hill Post, Ooty on 02 March 2012 through 2^nd opposite party website www.makemytrip.co and the booking was from 23 March 2012 to 26 March 2012 for six persons and had paid full amount of Rs.15,450/- and also got the Hotel confirmation voucher.  In the voucher, it is mentioned as “Booking was confirmed; Not required to contact the Sterling Resort or MakeMyTrip for reconfirmation” and the contact person name was given as one Mr. Imran Khan with mail id st opposite party residing at Chennai and the matter is rested with Mr. Imran Khan and 2^nd opposite party and the hotel staff had nothing to do in this matter.  Again, after persuasions with hotel staff, the complainant was offered rooms at a different hotel, but the complainant was not preferred to go there because the 1^st opposite party hotel was selected keeping several considerations in mind.  With no other alternative the complainant had asked for refund of money, it was informed to take up the matter with 2^nd opposite party.  When the complainant called the travel agent of 2^nd opposite party at Delhi and conveyed the plight of complainant and after phone conversation between Mr. Ruthwik of 2^nd opposite party and the Sterling Resort staff Mr. Sridhar, it was told that full refund will be made in due course by 2^nd opposite party, but opposite parties did not explain why and how this happened to complainant.  When the complainant was about to move out of hotel, again to their shock, the hotel staff suddenly offered rooms at Sterling itself but by that time the complainant and their people thoroughly disgusted with the wayward dealings of the Resort and had tasted the unscrupulousness and the complainant was afraid as to what kind of service would be offered in for, at the hands of staff with their attitudes.  This offer was not made initially but only after gone through all the hassles stated above, including their offer at some outsiders hotel.  The complainant felt completely uncomfortable and insecure about accepting the alternative options from the Sterling hotel as a good likely alternative.  With the apprehension that refund may be denied without proof, the complainant spent some more time to get it in writing about the non-availability of rooms and after much hesitation the Manager Mr. Anurag Dhiman scribbled the fact about ‘No vacancy’ signed it and rubber stamped on insistence.  It was also noticed that many customers who had booked through various online platforms were facing the same problems with Sterling Staff.  The complainant then moved to some other resort at Kothagiri i.e. Suthi Resorts by 4.30 pm and by that time their half-a-day programme gone away.  This clearly seems to be a case of unscrupulous and unfair trade practice by M/s. Sterling for undue gain for themselves at the cost of several individual small groups/families who had looked forward to their holidays in the hill station.  To our knowledge and belief, no reputed travel agent would or can book rooms in any hotel as desired by travellers from any part of the world, confirm the bookings, take the total cost in advance, and give full details of the rooms, type of rooms, meal plan and so on without prior confirmation from the hotel concerned.  The travel agents have also clearly mentioned that the Hotel would not be able to cancel the booked reservations directly even if customers wanted and that only agents could do that.   In the midst of above situation, the 2^nd opposite party did not offer any explanation for the state of affairs but simply apologised on phone and offered their refund in due course.  In response to the complainant’s complaint through mail after return, the 2^nd opposite party had advised the refund of hotel charges plus a token compensation of Rs.2,000/- and the complainant took the same without protest as a token and sign of their genuineness as travel agent although the 2^nd opposite party had offered no explanation as to why their confirmed bookings were treated by Sterling in this cavalier manner.  After discussion with consumer association, the complainant felt that he should not have accepted the 2^nd opposite party’s paltry compensation and was willing to return to 2^nd opposite party in his larger concern of overall public interest. The complainant had sent a joint notice on 23.04.2012 to both opposite parties but no response despite receipt of notices.  As an outcome of complainants discussions with consumer groups, few phone call offering free stay and email dated 28.07.2012 from Sterling Resorts were received by complainant denying any wrong doing on their part.   Likewise, phone calls and an email dated 17.7.2012 from 2^nd opposite party was also received offering a compensation of 5,000/- rupees cash equivalent with several conditions and the complainant had not responded to this offer as there has been no proper reply for legal notice; there has also been no explanation as to why this happened and how this could not recur in future.  In view of the reasons stated above, the complainant prayed a) desist from continuing with their unfair & unscrupulous practice for undue gains by opposite parties b) unconditional apology to the complainant, c) Compensation of Rs. 2 Lakhs for acute mental agony, hardships and mental trauma d) Rs.2,000/- towards cost of this complaint e) Rs.2 Lakhs to complainant towards punitive charges.  Hence this complaint. 

2. WRITTEN VERSION OF 2^nd OPPOSITE PARTY IN BRIEF:

The 2^nd Opposite Party in their version stated that they denies all the allegations contained in the complaint except to the extent the contents thereof are specifically admitted.  The complaint filed by the complainant is not maintainable either on merits or as per law and is liable to be out rightly dismissed.  It is submitted that the contents of the complaint are wholly misconceived, vexatious, misleading, misrepresented, unsustainable, false, frivolous and are nothing but a flagrant abuse of the process of law.  There is no deficiency of service on the part of 2^nd opposite party and hence the present complaint is liable to be dismissed with exemplary costs.  The 2^nd opposite party submits that according to terms and conditions of agreement between complainant and 2^nd opposite party, this Hon’ble Forum does not have jurisdiction to entertain this present complaint and according to agreement only the Court of NCR Delhi have the territorial jurisdiction to entertain the disputes.  The 2^nd Opposite party further states that in case the online bookings has been done through the 2^nd opposite party, no cause of action said to have arisen at Chennai and it is settled in law that territorial jurisdiction of a court or tribunal cannot be created by availing services of any person through internet.  The 2^nd opposite party also submits that it is a settled position of law that Hon’ble District Forum should not entertain and / or interfere in the matter, where terms and conditions of user agreement has been duly agreed and binding between parties.  It is submitted that all the online transactions by the users of the website are governed by the website’s user agreement, as accepted by each user at the time of making a booking and in view of the terms and conditions as enumerated in the agreement, the 2^nd opposite party is not liable for any claim whatsoever as being alleged in the complaint.  It is evident that in case of non-performance and / or not providing the rooms by the 1^st opposite party despite confirmed bookings, the 2^nd opposite party shall only be liable to refund the booking amount and shall in no circumstances liable for direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the use or performance of the 2^nd opposite party website or any other channel.  Further, the parties had agreed that in no case the liability, if any, shall include any loss, damage or additional expense whatsoever beyond the amount charged by 2^nd opposite party for its services.  The 2^nd opposite party submits that no where the complainant mentioned about any defective and / or deficient services provided by the 2^nd opposite party and the complaint deals only with defective and / or deficient services and negligence on part of the 1^st opposite party as evidently averred and submitted / admitted by the complainant.  There is nothing on record to establish that the complainant had suffered any loss or damages at all for the reasons attributable to the 2^nd opposite party.  The grievance of the complainant was admittedly beyond the control of the 2^nd opposite party and the 2^nd opposite party had only booked the rooms in question in the hotel of 1^st opposite party and has no control over the functioning of the 1^st opposite party and hence the 2^nd opposite party cannot be held responsible for the non-performance of the 1^st opposite party.  The 2^nd opposite party performed all its duties by confirming the bookings and sent the confirmation voucher to the complaint as well as 1^st opposite party official Mr. Imran Khan and further the payment was also made to 1^st opposite party account on 07 March 2012 vide transaction No.P12030725836693.  The 1^st opposite party never informed the 2^nd opposite party about non availability of rooms or refund the booking money and 2^nd opposite party came to know the non-availability of rooms only from the complainant when he reached the hotel.  Hence it is only 1^st opposite party failed to deliver and act as per the commitment and confirmed bookings and not the 2^nd opposite party.  The 2^nd opposite party submits that 1^st opposite party offered rooms to complainant but the complainant refused to accept the same and the 2^nd opposite party immediately informed the complainant that entire amount of the bookings shall be refunded.  When the complainant served a complaint through e mail asking for refund of booking amount and compensation, the 2^nd opposite party refunded the entire booking amount and as a goodwill gesture a sum of Rs.2000/- as compensation was paid to complainant and informed to complainant on 29 March 2012.  Despite receipt of booked amount and compensation, the complainant had sent legal notice claiming compensation of Rs.5 Lakhs and the 2^nd opposite party re-investigated the matter and sent an email to complainant offering Rs.5,000/- voucher as full and final settlement as goodwill gesture without admitting any deficiency in service.  The complainant in reply to the aforesaid mail sent email on 10.8.2012 informing that consumer complaint has been filed impleading 1^st and 2^nd opposite party in public interest. The 2^nd opposite party had booked the rooms at the hotel of the 1^st opposite party and has no control over the functioning of 1^st opposite party.  The 2^nd opposite party has sent confirmed hotel vouchers to complainant and 2^nd opposite party is not held responsible for the non-performance of 1^st opposite party.  The 2^nd opposite party denies the version of 1^st opposite party that non-availability of rooms were informed to Mr. Imran Khan.  In fact, Mr. Imran Khan is the official of 1^st opposite party and not of 2^nd opposite party.  Further, the 1^st opposite party offered rooms to complainant but the complainant refused to accept it and 2^nd opposite party discharged its part of obligation and confirmed the bookings and for the any act or omission only 1^st opposite party is held responsible.  The 2^nd opposite party submits that complainant must prove the loss suffered due to the acts and / or omissions of the 2^nd opposite party and as per the terms of the agreement between complainant and 2^nd opposite party, there is no liability that can be fastened on 2^nd opposite party.  The 2^nd opposite party submits that it is crystal clear that the deficiency alleged by the complainant in the complaint is not in any manner attributable to 2^nd opposite party, as the 2^nd opposite party has duly discharged its duties as per the scope of services and duly confirmed by the complainant.  Despite the opposite party trying to explain and accommodate the complainant, the complainant taking advantage of situation has made this false and frivolous complaint against the 2^nd opposite party.  In consonance with the above submissions, it is submitted that the complaint is without any cause of action against the 2^nd opposite party and 2^nd opposite party is not guilty of any deficiency in services as alleged by the complainant.  Hence it is prayed that the present complaint is to be dismissed.

3. POINTS FOR CONSIDERATION:

1. Whether there is any deficiency in service and unfair trade practice on the part of the opposite parties as alleged in the complaint?

2. Whether the complainant is entitled to the reliefs prayed in the complaint. If, so to what extent?

The complainant had filed proof affidavit, written arguments and documents Ex.A1 to Ex.A4 were marked on his side.The 2^ndopposite party had filed a written version, proof affidavit, written arguments and documents Ex.B1 to Ex.B6 were marked on their side.The 1^st opposite party was set exparte.

4. Point No.1:-

The admitted facts of the complaint are that complainant had booked two rooms at 1^st opposite party hotel at Ooty through 2^nd opposite party and 2^nd opposite party had sent the confirmation voucher to complainant.  When the complainant reached the hotel and when asked for rooms the 1^st opposite party hotel staff refused to provide rooms stating non-availability of rooms.  After much efforts the 1^st opposite party offered rooms but the complainant refused to accept the same.  The 2^nd opposite party accepted for full refund of booking amount and accordingly 2^nd opposite party refunded the full of booking amount and Rs.2,000/- towards compensation. 

5. The complainant alleged that despite booking of rooms from 23^rd to 26^th March 2012 in 1^st opposite party hotel at Ooty through 2^nd opposite party well in advance on 02^nd March 2012 and 2^nd opposite party confirmed the bookings by confirmation voucher, the 1^st opposite party staff at Hotel refused to provide rooms to complainant and failed to redress their issues.  The 1^st opposite party representative Mr. Imran Khan never responded to the phone calls made by the complainant well in advance before arrival at hotel and the hotel staff at Ooty just evaded their responsibility by informing that non-availability of rooms were already informed to Mr. Imran Khan and any further queries may be dealt with Mr. Imran Khan and 2^nd opposite party.  The 1^st and 2^nd opposite parties never informed the reasons for the failure to provide rooms to complainant and 2^nd opposite party also agreed to refund the booking amount without stating any reasons.  The entire acts of 1^st and 2^nd opposite parties put the complainant and his co-travellers into mental agony, hardship which according to the complainant amounts to unfair trade practice and deficiency in service.

6. On the other hand, the 2^nd opposite party contended that this complaint is not maintainable on the ground of territorial jurisdiction and only the court of NCR Delhi have the territorial jurisdiction to entertain the disputes as per the Agreement between complainant and 2^nd opposite party.  The 2^nd opposite party further contends that where terms and conditions of the user agreement has been duly agreed and binding between the parties, the disputes relating to facts should be heard in Civil Court.  The 2^nd opposite party further contends that as per User Agreement, the 2^nd opposite party shall not be responsible for any circumstances and the customers have to contact that service provider directly for any further resolutions and refunds.  The maximum liability on the part of 2^nd opposite party is refund of total amount received from the customer and in no case the liability shall include any loss, damage or additional expense whatsoever beyond the amount charged by 2^nd opposite party for its services.  Further in no event shall 2^nd opposite party and / or its suppliers be liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the use or performance of the 2^nd opposite party website or any other channel.  The 2^nd opposite party contends that they are the agent of the 1^st opposite party and when the complainant booked two rooms through 2^nd opposite party in the name of the complainant from 23^rd to 26^th March 2012 and 2^nd opposite party immediately issued the confirmation voucher to complainant.  The confirmation voucher was also sent to 1^st opposite party through mail on 03^rd March 2012 and the payment was made to 1^st opposite party on 07^th March 2012 to their bank account No. 00042210006169 with transaction id. P12030725836693 and reconfirmed the booking to 1^st opposite party representative Mr. Imran Khan on 6^th March 2012 itself.   The 2^nd opposite party was never informed about the non-availability of rooms by the 1^st opposite party and it came to know only when the complainant approached the hotel.  2^nd opposite party further contends that 1^st opposite party offered room after persuasion but the complainant refused to accept the offer and decided to stay outside the hotel and immediately the 2^nd opposite party informed the complainant that the booking amount shall be refunded and accordingly on receipt of complaint through email from the complainant refunded the entire booking amount alongwith a sum of Rs.2,000/- as compensation as a goodwill gesture.  Hence the 2^nd opposite party contended that it has discharged its obligations fully and it acted as agent only and it cannot control the functions of 1^st opposite party and for the acts and omissions of 1^st opposite party, the 2^nd opposite party cannot be held responsible.  There is no deficiency in service on the part of 2^nd opposite party and it is only 1^st opposite party held responsible for the failure to provide rooms to complainant.

7. On careful perusal of averments and documents filed by complainant and 2^nd opposite party it is observed that complainant had booked two rooms in the 1^st opposite party hotel at Ooty through 2^nd opposite party as evidenced from Ex.A2.  The confirmation voucher clearly states that “kindly note, your booking is CONFIRMED, and you are not required to contact the hotel or MakeMyTrip.com to reconfirm the same”.  It also contains the mail id nd opposite party confirmed the booking to 1^st opposite party.  Based on the instructions in the confirmation voucher the complainant directly gone to hotel and on the way to hotel he contacted the mobile no. given in confirmation voucher but there was no response.   From the averments of the complainant which was admitted by 2^nd opposite party also that rooms were not provided to complainant on arrival at right time on given date.  The complainant came to know only at hotel that the mobile number given in the confirmation voucher belongs to one Mr. Imran Khan who is the representative of 1^st opposite party.  After much persuasion and efforts, the hotel staff offered rooms to complainant, but the complainant did not accept apprehending the kind of service offered and the attitude of hotel staff.  It is observed from the Ex.B5, the email communication dated 01.04.2012 from complainant to 2^nd opposite party that hotel staff never told anything about any technical error to any of the customers and on the otherhand they were disowning any responsibility in the matter as these reservations were said to be handled by Mr. Imran Khan located in Chennai and they had informed Mr. Imran Khan about the non-availability of the rooms and advised the customers to contact him at Chennai.  It is also seen from Ex. A2, that Hotel Manager of opposite party had written on the confirmation voucher stating, “We informed to MMT through Imran CRS Chennai Rooms are blocked because of reservation and we made alternative arrangements in other property, but guest wants refund the amount paid”. 

8. Even though the 1^st opposite party set exparte, from the averments and documents of complainant and 2^nd opposite party, 2^nd opposite party immediately after booking the rooms informed the 1^st opposite party on 03^rd March 2012 and transferred the amount to 1^st opposite party account on 07^th March 2012 itself.  Having received the confirmation voucher and money into their account, it is the bounden duty of the 1^st opposite party to inform the 2^nd opposite party as well as the complainant about the non-availability of rooms.  From the averments of the complainant, it is observed that complainant was told by the hotel staff that non-availability of rooms was already informed to Mr. Imran Khan but no proof for the same is available.  It is pertinent to note that Mr. Imran Khan is the representative of 1^st opposite party, but he failed to act to inform the complainant and 2^nd opposite party about non-availability of rooms and he remains non-responsive for phone calls.  It is also observed from the averments of 2^nd opposite party that the booking amount transferred to 1^st opposite party account by the 2^ndopposite party was not refunded to 2^nd opposite party even after refusal to provide rooms to complainant despite advance booking.  Under these circumstances, we are of the opinion that the above acts of 1^st opposite party amounts to unfair trade practice and deficiency in service and hence 1^st opposite party is to be held liable for the same.

9. The 2^nd opposite party contended that the complaint is not maintainable on the ground of territorial jurisdiction because online booking was done through 2^nd opposite party and no cause of action either wholly or in part can be said to have arisen at Chennai.  As per the jurisdiction clause of the Agreement only the court of NCR Delhi have the territorial jurisdiction to entertain the disputes, if any, arising out of the bookings.  According to Section 34 (2) (b) of Consumer Protection Act 2019, “a complaint shall be instituted in a District Commission within the local limits of jurisdiction of the Complainant resides or works for gain”.  Hence the complaint is within the territorial jurisdiction of this Commission and therefore the contention of the 2^nd opposite party is not sustainable.

10. The 2^nd opposite party further contends that District Commission should not entertain and / or interfere in the matter; where terms and conditions of the User Agreement has been duly agreed and binding between parties, and when there is an acute dispute relating to facts, the District Forum ought not have gone behind the terms of Agreement and should have instead referred the parties to the Civil Court.  Section of 100 of Consumer Protection Act 2019 clearly states that “The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force”. Accordingly, this complaint can be entertained by this Commission and therefore, the contention of the 2^nd opposite party is not maintainable.

11. The 2^nd opposite party contended that they had acted only as a booking agent and accordingly once the complainant booked the rooms through 2^nd opposite party, they had promptly sent the confirmation voucher to complainant and informed to 1^st opposite party immediately. The booking amount was also transferred to 1^st opposite party account immediately.  When the rooms were not provided by the 1^st opposite party to complainant, the 2^nd opposite party returned the total booking amount and a compensation amount of Rs.2,000/- as a goodwill  gesture to complainant.  After receipt of legal notice from complainant, the 2^nd opposite party reinvestigated the matter and again offered Hotel Voucher worth of Rs.5,000/- as full and final settlement but the complainant had filed a consumer complaint.  The 2^nd opposite party contended that they had fulfilled all their obligations and there is no deficiency of service on their part and they are not liable for the acts and / or omissions of 1^st opposite party.  But it is observed from the Ex. A2, the confirmation voucher, the 2^nd opposite party clearly mentioned that complainant is not required to call the hotel or MakeMyTrip.com to reconfirm the same.  It is also observed from Ex.B2, (page 6 of Index) under FAQ it is mentioned that “Bookings made on MakeMyTrip are absolutely confirmed.  You will be sent a confirmation email upon completing your booking.  You need to carry a printout of this email and present it at the hotel while checking in.  The hotel phone number will be sent to you by email upon completing your booking.  You don’t need to call the hotel to reconfirm your booking.  Our team reconfirms your booking with the hotel prior to your check in date”.  Based on the above assurance only the complainant never approached the hotel before check in date. The 2^nd opposite party never reconfirmed the booking to complainant before check in date as stated supra.  The complainant would have contacted the hotel and reconfirmed the booking on their own if this statement is not prevailed in the confirmation voucher.  Whereas the 2^nd opposite party evaded their responsibility just by sending confirmation voucher to complainant, intimation to 1^st opposite party and transferring the booking amount to 1^st opposite party account.   Since the 2^nd opposite party is the booking agent of 1^st opposite party, it is obligatory on the part of 2^nd opposite party to confirm the availability of rooms with 1^st opposite party by mail or phone prior to sending confirmation voucher and in case of non-availability of rooms, the 2^nd opposite party immediately have to inform its customers and refund the money, so that the customers can make alternative arrangements on their own.  The 2^nd opposite party contends that they cannot interfere in the functions of 1^st opposite party.  Being the agent of 1^st opposite party and the 2^nd opposite party is equally responsible and liable for the omissions and commissions of the 1^st opposite party. In the absence of the any document releving the 2^nd opposite party of its responsibility to the customer it is found that both are jointly and severally held responsible for deficiency in service to its customers since this booking and providing rooms to its customers is a joint responsibility.  From the Ex. B6, the mail correspondence dated 29.03.2012 from 2^nd opposite party to complainant, it is observed that the 2^nd opposite party had clearly admitted that no rooms were available in this hotel for the given dates and rooms were showing available on the website due to a technical error.  Under these circumstances only, the 2^nd opposite party agreed to refund the entire booking amount without cancellation charges and refunded accordingly with a compensation of Rs.2,000/- even though they have not received back the booking amount from 1^st opposite party as averred by 2^nd opposite party.  It appears that 2^nd opposite party tried to close the issue by giving compensation of Rs.2,000/- on their own.  When the complainant sent a legal notice on 20^th April 2012 i.e. Ex. A3, demanding a compensation of Rs.5 lakhs, the 2^nd opposite party instead of providing reply to the notice, offered voucher for Rs.5,000/- with certain conditions as a full and final settlement for the issue as seen in Ex. B4 to B6.  The above offers of the 2^nd opposite party is a clear indication of acceptance of deficiency in service on the party of 2^nd opposite party.  The 2^nd opposite party made no efforts before or after booking of rooms with 1^stopposite party and failed to reconfirm the availability of rooms for the given dates and communicate the same to its customers.  The mere paltry compensation of Rs.2,000/- and Rs. 5,000/- hotel voucher is not a sufficient compensation for the sufferings undergone by the complainant.  Therefore, the Commission of considered opinion that 2^nd opposite party also indulged in unfair trade practice and committed deficiency in service and hence they are also liable to compensate the complainant.

12. The 2^nd opposite party contends that as per User Agreement terms and conditions that in case of non-performance and / or not providing the rooms by the 1^st opposite party despite confirmed bookings, the 2^nd opposite party shall only be liable to refund the booking amount and shall in no circumstances liable for direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the use or performance of the 2^nd opposite party website or any other channel.  Further, the parties had agreed that in no case the liability, if any, shall include any loss, damage or additional expense whatsoever beyond the amount charged by 2^nd opposite party for its services. It is observed from the averments of complainant and 2^nd opposite party that no such circumstances had arisen as narrated under the Force Majure Circumstances.  Further the 2^nd opposite party themselves admitted that there is technical error and hence they refunded the amount.  Being the agent of 1^st opposite party the 2^nd opposite party is equally liable for the omission and commission of the 1^st opposite party in case of deficiency in service to its customers.  The 2^nd opposite party cannot escape from its liability. From the Ex. B2, the terms and conditions as applicable and agreed between the parties under the clause RESPONSIBILITIES OF USER VIS-À-VIS- THE AGREEMENT states that “The user expressly agrees that use of the services is at their sole risk.  To the extent MMT acts only as a booking agent on behalf of third party service providers, it shall not have any liability whatsoever for any aspect of the standards of services provided by the service providers.  In no circumstances shall MMT be liable for the services provided by the service provider”. 

13. There is no force in the contention of the 2^nd opposite party by placing reliance upon the terms and conditions of the user agreement when the terms are unfair and not valid and therefore the 2^nd opposite party is not entitled to allege that the online transactions are governed by terms of user agreement and the 2^nd opposite party is not entitled to escape from liability by taking shelter over the clauses in the user agreement. Therefore, we are of the considered opinion that despite advance booking by making full payment by complainant, the complainant was not provided with booked confirmed rooms amounts to unfair trade practice and deficiency in service.

14. Based on the observations from the above, this commission is of considered view that there is deficiency in service and unfair trade practice on the part of opposite parties.  Point No.1 is answered accordingly.

15. Point No.2.

               Based on the findings given to Point No.1 since there is deficiency in service and unfair trade practice on the part of Opposite parties 1 and 2 and hence the complainant is entitled for Rs. 2,00,000/-  paid towards compensation for deficiency in service and unfair trade practice and Rs.2,000/- towards cost of this complaint. Point no.2 answered accordingly.

          In the result the Complaint is partly allowed.  The Opposite Parties 1 and 2 are directed to pay jointly or severally a sum of Rs.2,00,000/-(Rupees Two Lakhs Only)  towards compensation for deficiency in service and unfair trade practice and Rs.2,000/- towards cost of this complaint.  The above amount shall be paid to the Complainant within two months of the date of receipt of the copy of this order, failing which the above said amount shall carry 9% interest from the date of order to till the date of payment.

          Dictated  by Member II to the Steno-Typist taken down, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 28^th day of April 2023.

 

MEMBER I                                  MEMBER – II                           PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:         

Ex.A1	30.07.2012	Postal orders no.50G 075253 to 075256 four nos each for Rs.50/-.
Ex.A2	02.03.2012	Hotel confirmation voucher from 2nd opposite party
Ex.A3	23.04.2012	Copy of his joint notice to the opposite party.
Ex.A4	Postal receipts.

 

LIST OF DOCUMENTS FILED BY THE 2^nd OPPOSITE PARTY:

 

Ex.B1	09.12.2011	Copy of board resolution issued in favour of Shri.Kamal.K.Avutapalli by the 2nd opposite party.
Ex.B2		Process or steps for the booking at the portal of the 2nd opposite party and copy of terms and conditions.
Ex.B3		The copy of Hotel voucher sent to the complainant and confirmation e-voucher sent to the 1st opposite party.
Ex.B4	29.03.2012	The copy of email sent by the 2nd opposite party to the complainant.
Ex.B5	17.07.2012 & 07.08.2012	The copy of email sent by the 2nd opposite party to the complainant.
Ex.B6	10.08.2012	The copy of email sent by the complainant to the 2nd opposite party.

 

 

MEMER  I                           MEMBER II                       PRESIDENT