State Consumer Disputes Redressal Commission
Ibibo Group Pvt. Ltd. & Anr. vs Mr. Aparesh Nandi & Another on 17 February, 2020
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/758/2018 ( Date of Filing : 05 Sep 2018 ) (Arisen out of Order Dated 24/05/2018 in Case No. Complaint Case No. CC/202/2017 of District Kolkata-I(North)) 1. IBIBO Group Pvt. Ltd. & Anr. Corporate office at 19th Floor, Tower-A,B,C Building no.5, DLF Cyber City, DLF Phase-III, Gurugram, Haryana - 122 002. 2. Director, IBIBO Group Pvt. Ltd. 19th Floor, DLF Epitome, Building no.5, Tower -A, DLF Cyber City, Phase-III, Sector-25, Gurugram, Haryana - 122 002. ...........Appellant(s) Versus 1. Mr. Aparesh Nandi & Another S/o Lt. Jatindra Mohan Nandi, Flat -3A, 36/A/1B, Sujata Enclave Aprt., Hari Ghosh Street, Kolkata - 700 006. 2. Hotel Shangri- LA Regency 21, Gandhi Road, opp., Bethany School, Darjeeling - 734 101, W.B. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. Dipa Sen ( Maity ) MEMBER For the Appellant: Mr. Ananda Ghosh, Advocate For the Respondent: Mr. Bhaskar Roy., Advocate Dated : 17 Feb 2020 Final Order / Judgement PER :HON'BLE SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as "the Act") is at the behest of opposite party Nos. 1&2 to impeach the judgement/final order being order No.12 dated 24th May, 2018 passed by the District Consumer Disputes Redressal Forum, Kolkata, Unit-I (In short, "Ld. District Forum") in Consumer Complaint No.202/2017.
By the impugned order, the Ld. District Forum allowed the complaint on contest against opposite party No.3 and ex parte against opposite party Nos. 1 & 2 with direction upon the opposite parties jointly and/or severally to refund the amount of Rs.30,761/- (Rupees thirty thousand seven hundred sixty one) only, to pay compensation of Rs.5,000/- and litigation cost of Rs.2000/- within 30 days from the date of communication of the order, in default, the amount shall carry interest @ 8% p.a. till its realisation.
The Respondent No.1 herein Sri Aparesh Nandi lodged the complaint under Section 12 of the Act before the Ld. District Forum stating that he along with his family members had planning a vacation in Darjeeling and with that aim in view he was searching the hotels on the website of IBIBO (opposite party No.1) and in course of searching of various hotels in the portal of IBIBO the complainant saw some luxurious and elegant rooms displayed by opposite party No.3 hotel as one of the hotel in Darjeeling. Believing the description displayed in the website of opposite party No.1, the complainant booked two family suits in Hotel Shangri-la Regency, Darjeeling (opposite party No.3) on 21/02/2017 for the period from 30.04.2017 to 04.05.2017 i.e. 5 days 4 nights through opposite party No.1 portal online and the tariff charge for the booking was Rs. 30,761/-. The complainant alleged that on reaching the hotel in Darjeeling on 30.04.2017 in the evening, he found that the suits were just opposite side to what was displayed on the online of portal of opposite party No.1. The rooms were shabby and unclean and the bed sheets were dirty and unhygienic. Out of two rooms booked by the complainant, one room was given to the complainant on 2nd floor and second room was given on the 3rd floor but the hotel did not have the lift facility. The complainant found the accommodation not fit, after a long search was able to find another accommodation in a hotel named Crescent Resort for which he had to pay an amount of Rs.39,885/-. The complainant has stated that he had checked in on 30.04.2017 in the evening and left the room before 12 noon on 01.05.2017. The complainant has further stated that he sent the IBIBO an email on 30.04.2017 describing the problem faced by them and IBIBO promising to resolve the dispute within two hours failing which they promised to pay back promotional go cash @ 100 per hour. In the mail, the complainant requested the IBIBO to deduct the tariff of one night stay and refund the amount but till date IBIBO did not accept the claim of the complainant. On 18.05.2015 complainant sent a legal notice to the OPs and OP No.3 did not reply but OP Nos. 1 & 2 sent a letter on 24.05.2017 informing the complainant to send his booking id, email id and mobile number. The complainant has alleged that due to acts of the OPs he had to spend an amount of Rs.30,761/- and thereafter had to again book another hotel for Rs.39,885/-. The complainant submits that as the booking was done by him on 21.02.2017 through internet from Kolkata address and the payment of Rs.30,671/- was made form HDFC credit card from an account lying with a Branch located at Kolkata, the Ld. District Forum has jurisdiction to entertain the same. The complainant has alleged that since the opposite party Nos. 1 & 2 had accepted the booking through online transaction but did not render services, the respondent No.1 approached the Ld. District Forum with prayer for several reliefs viz.- (a) to allow the complaint of the complainant allowing the complainant the refund of Rs.30,761/-; (b) to direct the opposite parties to pay the amount Rs.39,885/- which was paid by the complainant for booking another hotel; (c) to direct the respondent Nos. 1 & 2 to pay back promotional Go Cash at the rate of Rs.100/- per hour from May 11, 2017 from 3.18 P.M. till its realization which was assured by the respondent Nos.1 & 2 vide their email dated 11.05.2017 sent to complaint at 1.18 P.M.; (d) an interest of Rs.18% be awarded from the date of payment of Rs.30,761/- and Rs.39,885/- till its realization; (e) a compensation of Rs.1,50,000/- be ordered to be paid by the complainants jointly and severally, for the unfair trade practices & deficiency in service; (f) cost of proceeding etc. The respondent Nos. 1 & 2 i.e the opposite party Nos. 1 & 2 did not appear to contest.
The respondent No.3/ opposite party No.3 by filing a written version has stated that the complainant made online booking through IBIBO and they did not make any payment to them. The OP No.3 has stated that the photographs of the hotel rooms are genuine and not doctored and nowhere on the IBIBO website the hotel described by IBIBO or the OP No.3 as luxurious. The OP No.3 has stated that the hotel is rated at two Star to the comments of the boarders of the hotels reviews the same as 4.5 out of 5 Star. The OP No.3 has further stated that in the website of the IBIBO it was not mentioned that there is lift in the hotel. The OP No.3 has further stated that the complainant for the reasons best known shifted to another hotel and there was no deficiency in services on the part of them.
After assessing the materials on record, the Ld. District Forum by the impugned order allowed the complaint to the extent, as indicated above. To assail the said order, the opposite party Nos. 1 & 2 have come up in this Commission with the instant appeal.
We have heard Mr. Saptak Sanyal, Ld. Advocate with Mr. Ananda Ghosh, Ld. recorded Advocate for the appellants and also Mr. Bhaskar Roy, Ld. Advocate for respondent No.1. Despite service of notice none appears for respondent No.2/opposite party No.3 to participate in the hearing of appeal. We have also scrutinized the materials on record.
Ld. Advocate for the appellants has submitted that the office of IBIBO Group Pvt. Ltd. is lying and situated at Gurugram (Haryana) and therefore the Ld. District Forum should have rejected the complaint simply on the ground that it had no territorial jurisdiction to entertain the complaint. In this regard, Ld. Advocate for the appellants has referred agreement between user and make my trip (MMT) and referring to jurisdiction of the said agreement it has been contended that the subject matter of jurisdiction only lies with the courts of NCR of Delhi. In support of his submission, Ld. Advocate for the appellants has placed reliance to paragraph 31 of a decision of Hon'ble Supreme Court reported in 2013 (8) scale 433 (Swastik Gases Pvt. Ltd. -Vs.- Indian Oil Corporation Ltd.) and paragraph 13.7 of a decision collected from 2020 SCC online Del 454 (Amazon Seller Services Pvt. Ltd. -Vs- Amway India Enterprises Pvt. Ltd.) and also a decision reported in AIR 1989 SC 1239 (A.B.C Laminart Pvt. Ltd. and another -Vs.- A.P. Agencies., Salem).
Ld. Advocate for the respondent No.1, on the other hand, has contended that the plea taken by the appellants just to cause unnecessary delay in execution of the order and the impugned order being a reasoned one, it should not be interfered with.
The question falls for consideration whether the order under challenge is bad for want of territorial jurisdiction. The provisions of territorial jurisdiction of a District Forum is dealt with in Section 11(2) of the Act which is set out below:-
"(2) A complaint shall be instituted in a State Commission within the 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 and voluntarily resides or 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 State Commission 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".
The foregoing provision clearly speaks that a complaint can be filed before the District Forum, within whose jurisdiction the Opposite Party (s) resides, or carries on business or has a branch office or personally works for gain. It is further provided that the complaint can be filed in a place, before a Forum, where any of the Opposite Parties actually and voluntarily resides etc. and personally works for gain. Above filing will be subject to permission granted by the District Forum or consent of the opposite parties, not residing within the jurisdiction of a District Forum, where a complaint was filed. The provision also stipulates that the complaint can be filed before a District Forum where cause of action wholly or in part arises.
Be that as it may, with the growth of E-commerce and commercial activities over the internet, it has become possible for conducting business across the world without actual physical presence at every place. There is widespread usage of plastic money i.e. credit and debit cards, which has facilitated those operations. At times, in such like cases, the consumer may get raw deal, as internet dealings are done with unknown parties, operating far away from different places.
In a land mark decision reported in AIR 1994 SC 787 (Lucknow Development Authority -Vs.- M.K. Gupta) the Hon'ble Supreme Court has specifically observed that the provisions of the Act are to be construed in favour of the consumers to achieve purpose of enactment, as it is a social benefit oriented legislation. Therefore, to interpret the provisions of the Act, rational approach and not a hyper technical approach needs to be adopted and the provisions of the Act need to be interpreted broadly to protect interest of poor consumer.
The provisions of Section 11(2) of the Act are akin to the provisions of Section 20(C) of the Civil Procedure Code. The pronouncement of law, as made by the Hon'ble Supreme Court, in the case of A.B.C. Laminart Pvt. Ltd. (supra) would apply in full force to a Forum constituted under the Act when trying the complaint. Not only this, the Hon'ble Supreme Court in paragraph 4 in case reported in AIR 1999 SC 80 (Marine Container Services South -vs.- Go Go Garments) has held that the Contract Act applies to all litigants, including the litigants under the Act. In view of the above, it can be safely be said that for the purpose of consumer complaint, relating to normal contract for services and/or goods, cause of action arises inter alia at any of the places, where - (a) the contract is made; and/or (b) where acceptance of the contract is communicated and/or (c) where the contract is performed or is to be performed and/or (d) where money under the contract is either payable or paid and/or (e) where repudiation of the contract is received, if any. Consequently, territorial jurisdiction over a consumer complaint also lies with the consumer Fora situated at any place, where any of the aforementioned cause of action arises.
In the instant case, it is evident that the respondent No.1 booked the hotel at Darjeeling on 21.02.2017 through internet of IBIBO portal on payment of Rs.30,671/- through HDFC credit card issued by HDFC Bank located at Kolkata and the amount has been collected by the appellants from the said bank at Kolkata. Therefore, the acceptance of the contract would also be deemed to have been communicated at Kolkata.
By reading the provisions of the Act coupled with the provisions of Information and Technology Act., 2000 and with the help of ratio of the judgement in A.B.C. Laminart Pvt. Ltd. (supra) we can safely hold that where contract for services and or goods are entered into over the internet, then internet, for the purpose of consumer complaint, part of the cause of action arises inter alia, at the complainant's places of business, but acceptance of the contract was communicated to him through the internet including the medium of email.
Considering the above, the submission made by the Ld. Advocate for the appellants regarding want of jurisdiction does not appear to be acceptable and as such we discard the same.
Ld. Advocate for the appellants has further submitted that the respondent No.1 has only made user agreement and as they did not render any services, the Ld. District Forum should have dismissed the complaint. The said submission is also not tenable because by their e-mail dated 11.05.2017 the appellants informed the respondent No.1 that they promise a time of two hours for resolving the issue and if they miss their promise they will pay back promotional go cash @ INR Rs.100/- per hour of delay. Therefore, the appellants cannot absolve their responsibility to keep promise to compensate the respondent No.1 when admittedly due to shabby and unclean set up of the hotel the respondent No.1 had to find out another accommodation in another hotel and to pay Rs. 39,885/- for another hotel where the respondent No.1 along with his family had to shift on 01.05.2017.
The Ld. District Forum, considering the facts and circumstances, rightly found that the appellants were also deficient in rendering services and thereby allowed the complaint by a reasoned order.
In that perspective, we do not find any merit in the appeal. On the contrary, without complying with the said order, the appellants had no reason to prefer this appeal and as such the appeal being a harassing one, it deserves dismissal with cost of Rs.10,000/-.
For the reasons aforesaid, the appeal is dismissed on contest with cost of Rs.10,000/- to be paid by the appellants/OP Nos.1&2 in favour of the respondent No.1/complainant within 30 days from date.
The impugned final order/Judgement being No.12 dated 24th May, 2018 is hereby affirmed.
The Registrar of the Commission is directed to send a copy of the order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-I for information. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. Dipa Sen ( Maity )] MEMBER