State Consumer Disputes Redressal Commission
Yatra Online Pvt. Ltd. vs Vikramjeet Aggarwal on 3 April, 2017
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No.548 of 2016
Date of institution: 19.7.2016
Date of Decision: 03.04.2017
Yatra Online Private Limited (Yatra.com), Unitech Cyber Park, Tower
B, First Floor, Sector- 39, Gurgaon through its Authorized Signatory
Mr. Abhay Nath, General Manager (Operation).
Appellant/OP No.1
Versus
1. Dr. Vikramjeet Aggarwal C/o Ashirwad Hospital, Sri Muktsar
Sahib (Punjab).
Respondent No.1/Complainant
2. Mr. Ravi Chauhan, Travel Consultant, Yatra Team, Yatra
Online Private Limited (Yatra.com), Unitech Cyber Park, Tower D, 6th
Floor, Sector-39, Gurgaon.
3. Azad Singh Bisht, Team Leader-OBT Service, Yatra Online
Private Limited (Yatra.com), Unitech Cyber Park, Tower D, 6th Floor,
Sector-39, Gurgaon.
4. Nidhi Saxena, Travel Consultant, Yatra Team, Yatra Online
Private Limited (Yatra.com), Unitech Cyber Park, Tower D, 6th Floor,
Sector-39, Gurgaon.
Proforma Respondents /Opposite Parties
First Appeal No.548 of 2016 2
First Appeal against the order dated
25.02.2016 passed by the District Consumer
Disputes Redressal Forum, Muktsar Sahib.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President.
Shri Gurcharan Singh Saran, Judicial Member
Present:-
For the Appellant : Sh. Sachin Ohri, Advocate
For Respondent No.1 : None
For Respondent No.2to4 : Ex-parte
Gurcharan Singh Saran, Judicial Member
ORDER
The appellant/Opposite Party No.1 (hereinafter referred as 'OP No.1') has filed the present appeal against the order dated 25.2.2016 passed by the District Consumer Disputes Redressal Forum, Sri Muktsar Sahib (hereinafter referred as the 'District Forum') in consumer complaint No.57 dated 03.06.2015, vide which, the complaint filed by Respondent No.1/complainant (hereinafter referred as 'Complainant') was allowed with a direction to OP No.1 to pay Rs.1,22,800/- along with interest at the rate of 7.5% per annum with effect from 27.2.2015 till the date of recovery, with costs of Rs.10,000/-. The impugned order was directed to be complied with within a period of thirty days from the date of receipt of a copy of the impugned order.
First Appeal No.548 of 2016 3
2. Complaint was filed by complainant under the Consumer Protection Act, 1986 (in short 'the Act') against Ops on the averments that the silver jubilee marriage anniversary of the complainant had taken place on 27.2.2015 and the complainant booked tour programme vide booking reference No.S1439729 from Delhi to Dubai through OP No.1 on 26.2.2015 for three nights and four days of two members i.e. the complainant and his wife Dr. Ranju. The OPs asked the complainant to deposit Rs.2,04,000/- in the account of OP No.1. The complainant deposited the said amount in bank account No.000705020946 of OP No.1 from Sri Muktsar Sahib on different dates from 28.1.2015 to 18.2.2015. The tour programme of the complainant was confirmed vide conformation No:10054600 along with all types of services. As per the tour programme on 27.2.2015, all the OPs were to pick up the complainant and his wife at 10:30- 11:00 hours from Hotel Lobby to visit Burj Khalifa Tour and in the afternoon to visit Burj Al Arab for lunch. However, to great surprise when the complainant contacted North Tour Operator, they said that they did not have any programme to take the complainant and his wife to Burj Al Arab, when the complainant reached Burj Al Arab with his wife after hiring a private taxi and paying hefty sum to taxi driver, the complainant was not allowed to enter into the said hotel/place saying that there was no registration in the name of the complainant and his wife. The said date was an important date in the life of complainant as they were to celebrate their Silver Jublee of marriage. The complainant waited for three hours and tried to contact the OPs, but without any result. The complainant hired the taxi for Rs.7400/- First Appeal No.548 of 2016 4 again and had wasted his full day. The complainant was unnecessarily harassed and sentiments of the complainant and his wife were injured. It was brought to the notice of the OPs. On 5.3.2015, the OPs sent e-mail and apologized to the inconvenience caused to the complainant and lapse on the part of OPs. Later on, as per the next programme on 4.3.2015 the OPs were to pick up the complainant and his wife from the hotel in Mauritius to ILX-IIe Aux Cerfs Island. But none of the OPs had reached the hotel to pick up the complainant and his wife. They tried to contact the OPs, but without any result and whole day was wasted. The entire tour programme, which started from 27.2.2015 to 4.3.2015, stood frustrated. It amounted to deficiency in service on the part of OPs. Accordingly, Complainant requested to Ops to refund the amount of Rs.2,04,000/- but to no response. Accordingly, he filed the complaint before the District Forum seeking directions against Ops to Refund Rs.2,04,000/- alongwith compensation for harassment and Rs.20,000/- as litigation expenses.
3. Complaint was contested by Ops, who filed written reply by taking preliminary objections that the complainant having used the platform as www.yatra.com had become user and accepted the master user agreement as per the provisions of Information Technology Act of 2000; this Forum has no territorial jurisdiction to entertain the complaint. The office of OP is situated in Gurgoan, Haryana, therefore, the District Forum Sri Muktsar Sahib did not have territorial jurisdiction to entertain the complaint. On merits, it was admitted by the OP that complainant had booked an FIT tour First Appeal No.548 of 2016 5 package with OP No.1 vide booking reference No.S1439729 for 6 nights and 7 days from 26.2.2015 to 4.3.2015 and OP provided a detailed itinerary of the tour in advance. Ops paid all flight and hotel bookings with advance payments for the successful tour of the complainant and his wife and provided all the inclusions as promised. The entire tour of the complainant was thoroughly enjoyed by the complainant and his wife and no complaint was received by OP No.1. The complainant had just brought to the notice of OP No.1 that on 27.2.2015, pick up facility from the hotel and one particular meal/lunch scheduled in another hotel for the complainant was not available. On enquiry, it was found that due to some mis- communication from the principal service provider of the OP, pick up facility and booking of meal/lunch cannot be provided to the complainant. However, it was denied that OP was made aware in time. Immediately OP No.1 took prompt action when the complainant was still on tour and immediately wrote an e-mail to the complainant on the same day i.e. 27.2.2015 apologizing for the said inconvenience and offered to process the refund for meal/lunch and further requested the complainant to inform OP No.1 for the cost incurred by the complainant. It was denied that on 4.3.2015 while the complainant and his wife was still on the tour, they were not taken to IIe Aux Cerfs Island. It was denied that before filing the complaint, the complainant had informed OP No.1 of such an incident. It was informed by he OP No.1 that complainant could not avail the tour of IIe Aux Cerfs Island as they were not available at the scheduled time for their pick up for the tour and they had missed the tour as they First Appeal No.548 of 2016 6 were not locking the time. Therefore, there was no deficiency in service on the part of OP No.1. Complaint is without merit and it be dismissed.
4. Whereas, the complaint against OP no.4 was dismissed for not complying the order of the District Forum vide its order dated 26.11.2015.
5. Before the District Forum, the parties led their respective evidence.
6. In support of his allegations, the complainant had tendered into evidence affidavit of complainant Ex.C-1, computer generated copy of notice Ex.C- 2, postal receipts Ex.C-3 to Ex.C-6, copies of the vouchers regarding deposit of the amount Ex.C-7, e- mail dated 26.2.2015 Ex.C-8, detail of programme Ex.C-9, e-mail dated 27.2.2015 Ex.C-10, e-mail dated 6.3.2015 Ex.C-11 and closed evidence on behalf of the complainant. On the other hand, learned counsel for OP No.1 tendered into evidence affidavit of Sh. Abhay Nath, General Manager (Operations) Ex.OP-1/1, photo copies of user agreement Ex.OP-1/2, e-mails dated 30.1.2015, 27.2.2015 and 24.8.2015 Ex.OP-1/3 to Ex.OP-1/5, respectively and closed evidence on behalf of OP No.1.
7. After going through the allegations in the complaint, written version filed by OPs, evidence and documents brought on the record, the complaint was allowed by the District Forum as referred above.
First Appeal No.548 of 2016 7
8. Aggrieved with the order passed by the learned District Forum, the appellant/OP No.1 has filed this appeal.
9. We have heard Sh.Sachin Ohri, Advocate. None was present on behalf of the Respondent No.1 and in the appeal Respondents No.2&3 was ex-parte and have carefully gone through the order passed by the District Forum and the record of the District Forum.
10. It was argued by the counsel for the appellant/OP no.1 that none of the office of the Ops is located at Sri Muktsar Sahib. A specific objection was taken by the OPs that the District Forum did not have the territorial jurisdiction to entertain the complaint. However, the District Forum in the impugned order observed that the online programme was booked by the complainant from Sri Muktsar Sahib, therefore, a part of cause of action had arisen within the territorial jurisdiction of District Forum, Sri Muktsar Sahib.
11. The jurisdiction is a legal term describing the power vested in a court, fora and tribunal to adjudicate the matter between the parties. Under the Act, Section 11(2) of the Act deals with the jurisdiction, which reads as under:
Section 11(2) of the C.P. Act reads as:
(2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,--
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually First Appeal No.548 of 2016 8 and voluntarily resides or 2[carries on business or has a branch office or] personally works for gain, or
(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry on business or have a branch office, or personally work for gain, as the case may be, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
12. Relevant provisions under the CPC is Section 20, reads as under:-
Section 20 of CPC 1908 reads as under:-
Subject to the limitations aforesaid, every suit shall be instituted m Court within the local limits of whose jurisdiction--
(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.First Appeal No.548 of 2016 9
13. Under the information and technology Act, 2000, Section 10A and 13 of the Act are relevant, which read as under:-
S. 10A. Validity of contracts formed through electronic means. -
Where in a contract formation, the communication of proposals, the acceptance of proposals, the revocation of proposals and acceptances, as the case may be, are expressed in electronic form or by means of an electronic record, such contract shall not be deemed to be unenforceable solely on the ground that such electronic form or means was used for that purpose.
S. 13. Time and place of despatch and receipt of electronic record.-
(1) Save as otherwise agreed to between the originator and the addressee, the despatch of an electronic record occurs when it enters a computer resource outside the control of the originator.
(2) Save as otherwise agreed between the originator and the addressee, the time of receipt of an electronic record shall be determined as follows, namely:-
(a) if the addressee has designated a computer resource for the purpose of receiving electronic records,-
(i) receipt occurs at the time when the electronic record enters the designated computer resource; or
(ii) if the electronic record is sent to a computer resource of the addressee that is not the designated computer resource, receipt occurs First Appeal No.548 of 2016 10 at the time when the electronic record is retrieved by the addressee;
(b) if the addressee has not designated a computer resource along with specified timings, if any, receipt occurs when the electronic record enters the computer resource of the addressee.
(3) Save as otherwise agreed to between the originator and the addressee, an electronic record is deemed to be despatched at the place where the originator has his place of business, and is deemed to be received at the place where the addressee has his place of business.
(4) The provisions of sub-section (2) shall apply notwithstanding that the place where the computer resource is located may be different from the place where the electronic record is deemed to have been received under sub-
section (3).
(5) For the purposes of this section,-
(a) if the originator or the addressee has more than one place of business, the principal place of business, shall be the place of business;
(b) if the originator or the addressee does not have a place of business, his usual place of residence shall be deemed to be the place of business;
(c) "usual place of residence", in relation to a body corporate, means the place where it is registered.
14. Section 16 and 28 of the Indian Contract Act are also relevant to it, which is reproduced as under:-
S.16. 'Undue influence' defined.--
(1) A contract is said to be induced by 'undue influence' where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.First Appeal No.548 of 2016 11
(2) In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another--
(a) where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other; or
(b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress.
(3) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall be upon the person in a position to dominate the will of the other. Nothing in the sub-section shall affect the provisions of section 111 of the Indian Evidence Act, 1872 (1 of 1872).
Section-28. Every agreement,-
(a) by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights; or
(b) which extinguishes the rights of any party thereto, or discharges any party thereto from any liability, under or in respect of any contract on the expiry of a specified period so as to restrict any party from enforcing his rights, is void to that extent.
Exception l.-This section shall not render illegal a contract, by which two or more persons agree that any dispute which may arise between them in respect of any subject or class of subjects First Appeal No.548 of 2016 12 shall be referred to arbitration, and that only the amount awarded in such arbitration shall be recoverable in respect of the dispute so referred.
Exception 2. Nor shall this section render, illegal any contract in writing, by which two or more persons agree to refer to arbitration any question between them which has already arisen, or affect any provision of any law in force for the time being as to references to arbitration.
15. In case we conjointly reads only these Sections, in case apart of cause of action has been arisen within the territorial jurisdiction of Sri Muktsar Sahib, then that Forum has the territorial jurisdiction to entertain the complaint. As is clear from the facts of the present case is that the complainant booked his tour programme with OP No.1 online from Sri Muktsar Sahib and in response to that the complainant received an E-mail from the OP giving information of the booking of the tour programme of the complainant. There is E-mail Ex.OP1/3 sent to the complainant conveying the quotation for Yatra reference number 14604072 for the requested tour, giving the details of the tour and then the tour was confirmed vide E-Mail Ex.C-8.
16. The consumer fora is required to consider two major factors while extending its jurisdiction over e-commerce transactions/e-contracts through Internet. Firstly, big business houses opt Internet transactions for business because of its cost effectiveness, secondly, it allows the business house and service provider to insulate itself against the jurisdiction in every State except the place where they are physically located. It is troublesome and First Appeal No.548 of 2016 13 unreasonable to the consumer located at a distant place or in other jurisdiction who have much lesser bargaining power and resources to litigate with business houses. To achieve a balance between two diverse considerations, we would consider with adaptations to e- contracts. Then from the facts, it is to be determined, did business house on its own volition marketed and contracted with the other party and consequent cause of action arising out of its actions.
17. The electronic contracts are governed by basic principles provided in the Indian Contract Act, 1872. Section 4 of the IT Act gives legal recognition to electronic records. Section 10-A of IT Act provides recognition to e-contracts. Section 13 of the IT Act addresses the issues of time and place of dispatch and receipt of an electronic record and thus addresses the issue of jurisdiction in e- contracts. Sub-section (1) of Section 13 provides that dispatch of an electronics record occurs when it enters a computer resource outside the control of the originator. The originator sent a message to a computer resource designed by the recipient to receive communications. Receipt takes effect at the time the electronic record enters the designated computer resource. Hence, it is crystal clear that when acceptance of an offer is via email to the computer system designated by the offeror, then contract is complete. Section 13 (3) of IT Act states that an electronic record is deemed to be dispatched from the place where the originator has his place of business and is deemed to be received at the place where the addressee has his place of business.
First Appeal No.548 of 2016 14
18. The need to interpret a contract/e-contract would arise into situations, firstly if the adjudicating authority is of the opinion that the gap is needed to be filled in order to interpret the contract and secondly if it believes that an ambiguity is needed to be resolved in order to find out the correct intention of the contract. The doctrine of Contra Proferentem is generally implied where contract appears to be ambiguous.
19. The Hon'ble Supreme Court in "Trimex International FZE ltd. Dubai versus Vedanta Aluminium Ltd." (2010) 3 SCC 1 has held that e-mails exchanged between parties regarding mutual obligations constitute a contract. Section 16 (3) of Indian Contract Act provides that where a person proposes certain terms to the other and other party accepts the same by clicking on it, it is bound by all terms so proposed by the proposer. In online transaction party offering is in a position to dominate the will of another party and such a transaction appears on the face of it to be unconscionable. In online purchasing, sales proposal and acceptances are made on computer sitting at their respective places. The jurisdiction at both the places is to be considered, so that consumer can easily approach the Consumer Forum/State Commission under the C.P. Act. While dealing such issues under CP Act, the jurisdiction of the Fora is to be decided keeping in view where the cause of action arose. This is the only rational approach to the concept of jurisdiction over the transactions made through Internet.
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20. In "PR Transport Agency v Union of India" AIR 2006 Allahabad 23, the Allahabad High Court held that since the acceptance (through e-mail) was received by the petitioner at Chandauli/Varanasi, therefore, the contract became complete by receipt of such acceptance. And, as both these places were within the territorial jurisdiction of the High Court of Allahabad, therefore, a part of the cause of action had arisen in UP and the High Court had territorial jurisdiction.
21. In view of the above, we are of the opinion that a part of cause of action had arisen within the territorial jurisdiction of District Forum, Sri Muktsar Sahib. Therefore, the District Forum of Sri Muktsar Sahib had the territorial jurisdiction to entertain the complaint. We do not find any force in the arguments raised by the counsel for the OP No.1 that District Forum of Sri Muktsar Sahib did not have the territorial jurisdiction to entertain the complaint.
22. Secondly, it was argued by the counsel for the OP no.1 that the District Forum Mis-construed, mis-represented the documentary evidence. The total tour was booked from Sri Muktsar Sahib online and payment of Rs.2,04,000/- was made to the OP. As alleged in the complaint, as per tour programme on 27.2.2015, he and his wife were picked up by OP from Hotel Lobby to visit Burj Khalifa Tour and in the afternoon they were to visit Burj Al Arab for lunch. When the complainant contacted North Tour Operator, they said that they did not have any programme to take the complainant and his wife to Burj Al Arab. It has been further alleged that on First Appeal No.548 of 2016 16 4.3.2015 the OPs were to pick up the complainant and his wife from the hotel in Mauritius to ILX-IIe Aux Cerfs Island. But they did not come in time, which was necessary because other tourists were also to be picked up. For the deficiency, if any, on the part of the OP, the compensation allowed by the District Forum is quite excessive i.e. Rs.1,22,800/- out of the total sum of Rs.2,04,000/-.
23. As per the booking programme, the complainant had booked tour for Dubai to Mauritius ex Delhi for 6 nights and seven days for two adults and per person it was Rs.1,02,000/- and for two persons it was Rs.2,04,000/- out of the entire tour programme of 6 nights and seven days, the complainant missed their lunch in Burj Al Arab on 27.2.2015 and on 4.3.2015 they could not pick up for ILX-IIe Aux Cerfs Island. It has been stated by the counsel for the OP that as per the agreement between the parties i.e. user's agreement, the complainant were required to be available in the lobby at the given time and in case they were not present at the given time on 4.3.2015 then the negligence cannot be held on the part of the programmer/Ops. Even if, it is taken that there was some lapse on the part of the programmer engaged by the Ops, then the compensation allowed by the District Forum is on the higher side. Out of the total programme of 6N7D the complainant and his wife missed just two occasions and the compensation should be allowed in consonance to the deficiency on the part of the Ops. We are of the opinion that compensation allowed by the District Forum is on the higher side. To be just and reasonable we allow that the complainant First Appeal No.548 of 2016 17 compensation of Rs.55,000/-, instead of Rs.1,22,800/- as allowed by the District Forum.
24. Sequel to above, we partly accept the appeal. The order passed by the District Forum is modified that instead of Rs.1,22,800/- the complainant will be entitled to compensation of Rs.55,000/- on account of deficiency in service on the part of Ops. Other part of the order passed by the District Forum will remain as it is.
25. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
26. Order be communicated to the parties as per rules.
27. The appellant had deposited an amount of Rs.25,000/- with this Commission at the time of filing the appeal. This amount along with interest accrued thereon, if any, be remitted by the registry to the Respondent No.1/Complainant by way of a crossed cheque/demand draft after the expiry of 90 days, from the date of despatch of the order to the parties; subject to stay, if any, by the higher Fora/Court. Appellant is directed to pay the remaining amount to the complainant as per the directions given by the District Forum after 90 days from the date of receipt of the copy of the order.
(Justice Paramjeet Singh Dhaliwal)
President
April 03, 2017 (Gurcharan Singh Saran)
RS/- Judicial Member