Haryana

Panchkula

CC/103/2019

MOHIT RATHEE. - Complainant(s)

Versus

THE CHIEF EXECUTIVE OFFICER,YATRA.COM. - Opp.Party(s)

MOHIT RATHEE.

03 Nov 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA

                                                              

Consumer Complaint No	:	103 of 2019
Date of Institution	:	12.02.2019
Date of Decision	:	03.11.2021

 

Mohit Rathee aged 27 years son of Shri Bijender Singh, resident of Flat no.401, GH-13, Sector-27, Panchkula.

 

                                                                     ….Complainant. 

 

Versus

The Chief Executive Officer, Yatra.com, Head Office:1101, 11^th Floor, Tower B, Unitech Cyber Park, Sector 39, Gurgaon-122001.

….Opposite Party

 

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019.

 

Before:                Sh.Satpal, President.

Dr.Pawan Kumar Saini, Member.

 

 

For the Parties:    Complainant in person.

                           Mr. Arjun Kundra, Advocate, counsel for the OP.

ORDER

(Satpal, President)

1.               The brief facts of the present complaint are that complainant had booked a room in Hotel Eminent Agra from Panchkula through opposite party (herein called after OP) on 14.12.2018 for 15.12.2018 to 16.12.2018 till morning. The payment of the said booking was duly made on 14.12.2018 from the complainant’s account. Complainant received a confirmation message and mail from the website of the OP on 14.12.2018. On 15.12.2018 complainant had reached at the booked Hotel Eminent Agra at almost 3:30 P.M. and asked for room to the Manager showing vide booking ID 141287773234, but the manager of the said hotel clearly denied to provide room in the said premises and had claimed that they had not received any kind of confirmation mail or message from OP. The manager of the concerned hotel denied for the booked room, the complainant was shocked and repeatedly requested to provide the room. Instead of settling down the matter, the manager alongwith the staff entered into aggressive argument with complainant and talked in a very disrespectful manner and said get out from the premises of the concerned hotel. After the said act, complainant had tried to connect with the OP so many times to the toll free number that Yatra.com (OP) have provided on their website, but complainant had not received any quick response from the OP. After feeling immensely harassed and tortured, complainant forwarded an E-mail on OP’s E-mail ID provided on the website but still no satisfactory response was received from the OP side. After that complainant, tried for another room in Agra, but there was no availability of room due to the judiciary exam on 16.12.2018 morning. Due to OP’s negligence and omission, complainant was disabled from staying in peaceful and confortable environment and he was forced to stay whole night in his car with his wife and sister in such cold weather of mid-December. Due to disrespectful attitude of hotel staff and staying whole night in car, complainant suffered from serious fever and also suffered headache, cold and due to such severe mental and physical harassment, the complainant was not able to attempt the said exam which was not just and common exam, but a whole life aim for complainant and he missed it because of ‘deficiency in service’ on OP part. Due to the acts and conduct of the OP, the complainant has suffered a great mental agony, harassment and financial loss; hence, the present complaint.

2.               Upon notices OP appeared through counsel and filed written statement raising preliminary objections qua territorial jurisdiction, complaint is not maintainable being false and frivolous; no cause of action etc. On merits, the learned counsel for OP stated that on 14^th December, 2018, the complainant had booked one room on the portal of OP at hotel Eminent from 15^th December 2018 to 16^th December, 2018, by paying an amount of Rs.1,698/- to us. After receiving the booking, the OP made the required booking with the hotel. The Hotel Eminent has tie up with Yatra.com and booking was confirmed as per availability received from the hotel and displayed on the site. An amount of Rs.1,474/- was also transferred to the hotel as consideration for the same. When complainant informed the OP that the hotel is not allowing to check in, the OP informed him that the booking was confirmed with the hotel. Complainant asked for refund of booking amount of Rs.1,698/-, which was promptly refunded to him. The OP without admission of any deficiency merely as a goodwill gesture, offered a compensation of Rs.500/- and the same was telephonically agreed by the complainant, but the complainant had not provided his account details and therefore the refund is pending. By refunding the booking amount and offering refund of Rs.500/- as goodwill gesture, the OP had fully discharged its duty and prayed for dismissal of the present complaint with costs.

3.               Replication to the written statement of the OP was filed by the complainant reiterating the contents of the complaint while controverting the contentions of the OP.

4.               To prove his case, complainant has tendered his affidavit as Annexure C/A along with documents Annexure C-1 to C-7 in evidence and closed the evidence by making a separate statement. On the other hand, the ld. counsel for the OP tendered affidavit as Annexure R-A along with documents Annexure R-1 and R-7 and closed the evidence.

5.               We have heard the complainant and learned counsel for the party and have gone through the entire record available on record including the written arguments filed by complainant as well as the ld. counsel for the OP, minutely and carefully.

6.               Admittedly, the complainant accompanied by his wife and sister, was denied the lock-in-facility on 15.12.2018 by Hotel Eminent at Agra. It is also an admitted fact that a sum of Rs.1,698/- as paid by the complainant vide Invoice/Receipt Annexure C/1 to the opposite party for his stay in Hotel Eminent at Agra from 15.12.2018 to 16.12.2018 has already been refunded to the complainant, by the opposite party. In addition to the above mentioned refunded amount, the opposite party has also offered a sum of Rs.500/- as compensation on account of the hardships and inconvenience faced by the complainant accompanied by his family members. The complainant has rejected the said offer of Rs.500/- stating it to be inadequate and insufficient.

7.               In the present complaint, following reliefs have been claimed by the complainant:-

                  (i)     A compensation of Rs.50,000/- has been claimed on   account of mental and physical harassment.

                  (ii)     A sum of Rs.2 lakh has been claimed allegedly spent  by him on his coaching for preparation of the                                        Judiciary Exam and loss of career.

                  (iii)    Rs.30,000/- has been claimed as litigation charges.

                           The aforesaid amount has been claimed along with interest @18% per annum.

8.               Although, the opposite party has not disputed the receipt of sum of Rs.1698/- to it by the complainant through online for booking of a room in the Hotel Eminent at Agra, but the opposite party has contested the complaint, apart from merits, by raising several preliminary objections.

                  Vide first objection, the territorial jurisdiction of this Commission has been disputed, stating that as per Master User Agreement (Annexure R/1), the dispute can only be settled at Gurgaon. Relaince has been placed upon the case law i.e Taneja Developers & Infrastructure ltd and ors (first appeal nos.33 and 126 of 2014) decided by State Consumer Commission Punjab.

                  This objection, is liable to be rejected in view of the fact that the payment by the complainant was made online from Panchkula, which is within the jurisdiction of this Commission. As per well settled legal preposition, in the case of payment made online, no dispute can be raised regarding territorial jurisdiction. In the present case, confirmation of booking of room in Hotel Eminent, Agra from the opposite party was received by the complainant at his address at Panchkula and thus, partly cause of action has arisen within the territorial jurisdiction of this Commission. Therefore, there is no doubt with regard to the territorial jurisdiction of this Commission. In this regard, we may, safely, place reliance upon the order dated 03.04.2017 passed by the Hon’ble State Consumer Commission, Punjab in F.A. No.548 of 2016 titled as Yatra Online Pvt. Ltd. Vs. Dr. Vikramjeet Aggarwal & Others.  The case law as relied upon by the ld. counsel for the OP, being disguisable on facts and law, is not applicable to the facts and circumstances of the present case and thus, is of no help to the case of the opposite party.

9.               The second objection raised by the OP is with regard to the non-joinder of necessary party. It is contended that the grievance of the complainant is solely against the hotel Eminent, who was service provider in the present case and who denied the lock-in-facility to the complainant on 15.12.2018. It is contended that impleadment of the Hotel Eminent was necessary in the present complaint, so as to reach at the just conclusion of the present case in a proper and fair manner. This objection is also liable to be rejected in view of the fact that payment of Rs.1698/- was made by the complainant to opposite party only and not to the Hotel Eminent at Agra. Admittedly, there was a tie up between the Hotel Eminent at Agra and the opposite party and thus, it was their internal matter, in case of any conflict between them, having no concern with the complainant. In this regard, we may, safely, place reliance upon the decision dated 29.09.2017 passed by State Consumer Commission Punjab in FA.No.107 Of 2017 titled as Yatra Online. Pvt. Ltd Versus Vinod Kumar.

10.             The next objection is that the complainant having used the website of the opposite party has made himself bound by the terms and conditions of the Master User Agreement, copy of which is available on record as Annexure R/1. It is alleged that by virtue of the terms and conditions of the said agreement, no liability can be fastened upon the opposite party being intermediary and facilitator. This objection is also liable to be rejected in view of the fact that opposite party has not merely acted as an intermediary as alleged by it. Admittedly, the payment in question for booking of a room in hotel Eminent at Agra was made to it and confirmation of the same was also sent by it to the complainant. Moreover, it is not the case of the opposite party that it works on charity basis and in a gratuitous manner.

11.             Besides above, the opposite party cannot be permitted to avoid its liability on the basis of terms and conditions as contained in the online agreement as the online agreement when compared with an offline ordinary written agreement cannot be equated and placed on similar footing. The online agreement, when compared with an offline ordinary written agreement, is not entitled to the similar weight and treatment. In fact, a consumer while browsing and choosing the goods and services available on the website of the seller/service provider, he/she has no real choice between the acceptance or the rejection of the terms and conditions of the online agreement.  It is pertinent to mention here that the terms and conditions of online agreement, generally, are found voluminous, spanning over several pages, with small alphabets/letters, which are difficult to peruse and read minutely by a man of ordinary prudence exercising due diligence.  Apart from above, the terms and conditions of the online agreement are, very often, hidden, vague and confusing and thus, in the case of online agreement, in our considered opinion, a consumer is afforded no real choice between the acceptance or the rejection of the terms and conditions of the online agreement. In our considered opinion, the complainant had no meaningful choice except to give his consent to the unfair, unreasonable and unconscionable terms and conditions of the online agreement.

                  In the light of above discussion, the case law i.e “Cleartrip Pvt.Ltd versus Sri Ramachandraiah Bollepogu” A/293/2016 State Consumer Disputes Redressal Telangana at Hyderabad as relied upon by the Ld. Counsel for the OP, being disguisable on facts and Law, is not applicable to the facts and circumstances of the present case and thus, is of no help to the case of the opposite party.

12.             On merits, it is contended that a sum of Rs.1,474/- was duly transferred by the opposite party to the said Hotel Eminent as consideration. It is also contended that apart from making the refund of Rs.1,698/- to the complainant in lieu of his payment made online, a sum of Rs.500/-as goodwill gesture was  offered to him. It is contended that the said offer of Rs.500/- was also accepted by the complainant. Reliance has been placed upon the order passed by the Hon’ble National Consumer Commission in case titled as Air India Vs. Susheel Kumar, II(2015) CPJ 75(NC).     

13.             Undoubtedly, there has been lapse and deficiency on the part of Hotel Eminent at Agra, who denied the lock-in-facility on 15.12.2018 despite the fact that complainant had made a payment of Rs.1,698/- for booking a room for his stay on 15.12.2018 to 16.12.2018. Although a sum of Rs.1,698/- has already been refunded, but in view of the fact that the complainant accompanied by two other family members was left in lurch on 15.12.2018, he is entitled to be compensated  with adequate and sufficient amount. The complainant has claimed that he had spent the whole night in the winter season in his car along with his wife and sister. The complainant has also claimed that he could not appear in the judicial exam to be held on 16.12.2018, on account of the inconvenience and hardship faced by him. In support of his contention, the complainant vide Annexure C-7 has placed on record a report obtained by him under RTI Act that he did not appear in the PCS (J) pre-exam, 2018. The complainant has also claimed a sum of Rs.2 lakh on account of the expenses incurred by him for taking coaching classes. In our opinion, no compensation can be payable on account of the expenses incurred by him during coaching etc. Further, no compensation is also payable, in our opinion, on account of his absence from the PCS Judicial Exam, because the non providing of stay facility by Hotel Eminent might not alone be the reason for non appearance of the complainant in the exam. However, the complainant is entitled to be duly compensated on account of his mental and physical harassment. In our considered opinion, a compensation of Rs.500/- as offered by the opposite party was not adequate, keeping in view the hardship and inconvenience faced by the complainant. The transfer of Rs.1,474/- by the opposite party into the account of Hotel Eminent does not exonerate the OP from its liability to compensate the complainant. It is pertinent to mention here that opposite party has not placed on record any such document which shows that it pursued the matter with the Hotel Eminent asking for the reasons of non providing of stay facility to the complainant. In view of the above discussion, we conclude that there has been lapse and deficiency on the part of OP while rendering services to the complainant; hence, the complainant is entitled to relief.

14.             In our opinion, keeping in view the facts and circumstances of the case, an award of compensation of Rs. 10,000/- to the complainant would be just, fair and adequate and it is ordered  accordingly. Apart from above, the OP is directed to pay a compensation of Rs. 5,000/- to the complainant as litigation charges.    

15.             The OP shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OP. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced:03.11.2021

 

         Dr. Pawan Kumar Saini                      Satpal     

                               Member                            President

 

Note: Each and every page of this order has been duly signed by me.