DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (CENTRAL)ISBT KASHMERE GATE DELHI

COMPLAINT CASE NO. 55/2017

No. DC/ Central/

vs.

Coram:       Ms. Rekha Rani, President

                    Shri Vyas Muni Rai, Member

                   Ms. Shahina, Member (Female)

ORDER

Mr. Vyas Muni Rai, Member

1. Sh. Aditya Trehan (in short the complainant) has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 against OPs stating therein, inter alia, that the complainant made online booking through website of YATRA.COM to visit Dharamshala with his family which is located in State of Himachal Pradesh for appearing in Himachal Pradesh Judicial Services (Preliminary) Examination 2015 which was scheduled to be held on 1^st March 2015 (Sunday) at Government Degree College, Dharamshala (Centre-I) from 10:00 AM to 04:00 PM. For the aforesaid purpose the complainant resorted to online booking through the website of YATRA.COM in hotel “ The Dhauladhar” located at Kotwali Bazar, Dharamshala, H.P.-176215 vide Booking No. 28021528252  for himself, Ms. Usha Trehan (mother) and Ms. Sonam Trehan (Sister) for 2 nights (from 1^st March, 2015 to 3^rd March, 2015) upon making payment of Rs. 5,889/- using his credit card. Thereafter, complainant received booking confirmation of the said hotel on his e-mail sent by YATRA.COM. The said booking confirmation on the part of the OP has been filed on record.
2. Further, on 28.02.2015 at about 08:30 PM the complainant boarded the Volvo bus to Dharamshala from ISBT Bus Terminal, Kashmere Gate, Delhi. On 1^st March, 2015 at about 07:00 AM early morning, the complainant reached Dharamshala Bus Terminal with his family. At that time, it was raining heavily as stated by the complainant in his complaint. The complainant has also submitted on record the copy of ticket (from Delhi to Dharamshala with journey date 28.02.2015). He has also submitted on record the ticket of the return journey from Dharamshala to Delhi.
3. On reaching to the booked hotel i.e. The Dhauladhar, he contacted the gentleman at reception and to his disgust and surprise the gentleman at reception categorically stated that his hotel has not been received any booking from YATRA.COM in the name of the complainant. The complainant was also shown the list of bookings but his name did not exist in the list. The complainant got stunned and stranded at that moment and he came to know from booking details that bookings were made and confirmed in another hotel namely “Hotel Dhauladhar View” located at Kotwali Bazar, Dharamshala, which is stated to be half a kilometer away from hotel Dhauladhar, though, the complainant had booked hotel Dhauladhar. Having no alternative left with him, the complainant  along with his family rushed to hotel ‘Dhauladhar View’ but his suffering did not end here. On reaching hotel ‘Dhauladhar View’, the complainant met one Shri Naresh claiming to be owner of the hotel but Mr. Naresh stated that hotel is under construction and no booking can be made during this period and expressed his helplessness to accommodate any person during construction. Since the time was running out of the hand of the complainant as there was limited time left to report to the examination center for his test. Having no alternative left with him, the complainant rushed back to the hotel Dhauladhar and told the gentleman present there about all his mental agonies and he requested to the staff and hotel Dhauladhar (booked initially) to accommodate the complainant and his family but of no relief.
4. Not only this, having faced all the above traumatic conditions complainant called to the Officers/ staff of the OPs i.e. YATRA.COM and narrated his sufferings at their end. Some lady executive from the OPs responded to the complainant’s phone call and apologized over the phone for the entire situation which resulted in denial of check-in in hotel Dhauladhar. The said gentle lady executive of the OPs also told the complainant to get the entire amount of Rs. 5,889/- (Five thousands eight hundred eighty nine rupees only) refunded immediately. However, complainant continued to request to the OPs on phone to book some other hotel in contact with YATRA.COM in the same vicinity as approaching time of his examination was hitting hard in his mind.
5. To travel further, after facing a tough and traumatic situation on his request the Manager of hotel Dhauladhar managed another hotel namely “Kashmir House” located near Kotwali Bazar, Dharamshala and he rushed to the said hotel by hiring a private taxi. All the aforesaid hibernating period faced by the complainant resulted in his reaching to the examination center late by 30 minutes and after much request and appeal he was allowed to sit in the examination.
6. The complainant admittedly got refund the amount of Rs. 5,889/- on same day i.e. 1^st March 2015 from the OPs and he has annexed on record the proof of the same.
7. Feeling aggrieved and deficiency in service, the complainant has filed the instant complaint after all his written request/ mails to OPs to compensate him yield no result. The present complaint has been filed with the prayers as under:-

1. Opposite Parties to refund the amount of Rs. 4,575/- on account of stay and fooding for two nights spent by the complainant at Kashmir House, Dharamshala;
2. Opposite Parties to pay a sum of Rs. 250/- on account of conveyance from Hotel Dhauladhar to Kashmir House;
3. Opposite Parties to pay the complainant a sum of Rs. 2,50,000/- as compensation and punitive damages for the mental harassment, agony and duress caused to complainant and his family for their illegal and unprofessional conducts. Though, the complainant made an advance booking was not provided the accommodation in either of the hotels nor any booking was received in either of the hotels in name of the complainant resulting into Check-in-denied situation.
4. Opposite Parties to pay the complainant a sum of Rs. 25,000/- as cost of litigation and other miscellaneous expenses;
5. Any other relief/ further order/ direction which this Hon’ble Forum may deem fit and appropriate in the interest of justice.
   8. We have carefully gone with the records, Replies, Written Submissions, Evidences and mail exchanged between the parties. In its reply the OPs have taken the objection about the jurisdiction of this Commission. In its reply the OP has mentioned that ‘as per terms and conditions of the agreement entered between the OPs and complainant, the parties have agreed that courts at Gurugram will have the exclusive jurisdiction to try any dispute between them. It shall not be out of the place to mention that it is settled principle of law that when two courts have concurrent jurisdiction, parties may, by agreement, oust the jurisdiction of one of the courts……’. Therefore OP has pleaded that this Forum/ Commission does not have territorial jurisdiction to adjudicate in the matter.

In this regard law is settled which does not come to the rescue of the OPs. However, the complainant in his rejoinder has placed reliance to the decision of Hon. National Consumer Disputes Redressal Commission (in short NCDRC), New Delhi in case of Neha Singhal vs Unitake Limited reported in II 2011) CPC 88, wherein it has been held, inter alia, ‘ “clause relate to jurisdiction of Courts in the agreement between the parties cannot override the statutory right of the complainant conferred by the provisions of the Act”. This view is also in accord with the provisions of Section 28 of the Indian Contract Act, 1872 (as amended with effect from 8^th, January, 1997). Therefore the fact that Gurugram Court could have the jurisdiction to try any dispute between the parties cannot suffice to oust the territorial jurisdiction of Delhi Court to adjudicate upon the complaint.

9. Further, OP in its reply has also stated that the OP is merely a booking agent, providing facility through the medium of internet and phone. OPs arrange for tour and travel bookings as per user’s convenience with best possibility. It was hotel Dhauladhar View which had to provide actual service to the complainant. To controvert, the complainant has submitted that originally the complainant wanted to book hotel ‘Dhauladhar’ after having convinced from the hotel reviews but he was surprised to notice as to how booking was made to hotel ‘Dhauladhar View’ by the OPs. Yet, the fact is that the booking made at hotel ‘Dhauladhar View’ by the OPs the service of the hotel could not be availed by the complainant as no booking was received in hotel ‘Dhauladhar View’ in the name of the complainant from the OPs. The reply of the complaint filed by the OP is nothing more than the stereotype stating, inter alia, that the submissions made in the complaint is false, speculative and untenable. The OP in its reply has admitted to have refunded the total booking amount of INR 5,889/- to the complainant against cancellation of hotel and by doing so, as pleaded by OP, it has discharged its duties towards the complainant.
10. To travel further, we are also in a position to lay our fingers on the different mails on the part of the OPs admitting its mistake and craving apologies. In different mails dated 20.07.2015, 08.11.2015, 09.11.2015 available on record wherein, in a very categorical terms the OPs have mentioned as under:-
11. 11. To add further, OPs in its Written Arguments submitted on record has also taken the plea about the misjoinder and non-joinder of necessary parties. It has also taken the plea that the complaint has been filed after more than two years from the date of cause of action and the same is liable to be dismissed. We have perused the records, all these pleas by the OPs taken in its WA have no legs to stand of their own and appears to have based on surmises. Further, submissions by the OPs that the complainant has already accepted the refund of booking amount and the cause of action, if any, does not survive. This plea of the OPs is not sustainable so far as the mandate of the Act is concerned with regard to deficiency in service.
    12. Keeping in mind the facts and circumstances of the case and available records with us we hold that the deficiency of service on the part of the OPs is writ large on the face of it and they are liable to compensate the complainant on this score.
    13. Therefore, we directed the OPs as under:-

1. To pay compensation amounting to Rs. 20,000/- (Twenty Thousands rupees only) for the mental agonies and sufferings meted out to complainant and his family members.
2. To refund the amount of Rs. 4,575/- on account of stay and fooding for two nights spent by the complainant at Kashmir House, Dharamshala.
3. To pay Rs. 5,000/-as litigation cost.

14. Copy of this order be sent to the parties as per rules. File be consigned to record room.

Announced on this 17^th June of 2022.