State Consumer Disputes Redressal Commission
Rajinder Chawla vs Make My Trip on 22 August, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 355 of 2013 Date of Institution : 16.08.2013 Date of Decision : 22.08.2013 Sh. Rajinder Chawla aged 47 years, son of Banarsi Dass Chawla, resident of House No.3108, IInd Floor, Sector 44-D, Chandigarh. Appellant/Complainant. Versus 1] M/s. Make My Trip India Pvt. Ltd.,Tower A,SP Infocity, 243, Udyog Vihar, Phase-I,Gurgaon 122016 Haryana, through its Managing Director. 2] M/s Makemy Trip India Pvt. Ltd., SCO No.43-44, First Floor, Sector 8-C, Madhya Marg Road, Chandigarh, through Branch Head Mr.Vikram Goparai. 3] M/s. Hilltone Resorts, Opposite Span Resorts, Manali (H.P.) through its Managing Partners/Proprietor. ....Respondents/Opposite Parties. Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. SH. DEV RAJ, MEMBER.
Argued by:Sh. Harsh Manocha, Advocate for the appellants.
PER DEV RAJ, MEMBER This appeal is directed against the order dated 05.07.2013, passed by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it dismissed the complaint filed by the complainant (now appellant).
2. The facts, in brief, are that the complainant booked three rooms for three days for 6 adults, from 21.6.2012 to 24.6.2012, with Opposite Party No.3 - Hotel at Manali (H.P.) through Opposite Parties No.1 & 2, by making payment of Rs.18,693/- through Debit Card (Annexure C-1). It was stated that the said booking was also confirmed by the said Hotel vide Annexure C-2. It was further stated that on reaching Manali on 21.6.2012, the complainant was informed that only two rooms could be made available, even though the payment for three rooms had already been made in advance. It was further stated that despite several requests, the Hotel Authorities did not pay any heed, to the request of the complainant, and other members. It was further stated that all other hotels were also running fully occupied, being peak season time. It was further stated that Opposite Party No.3 also wrongly and illegally charged additional tax @7.42% on the total amount, amounting to Rs.1,387/- even though the advance booking amount paid to Opposite Party No.3, was including taxes. It was further stated that the three rooms were booked due to the reason that the complainant had gone on tour with his friends and with their respective wives, and, as such, they preferred personal rooms for privacy. It was further stated that they were forced to get accommodated in two rooms, due to fault of the Opposite Parties, which spoiled their whole tour. It was further stated that the matter was brought to the notice of the Opposite Parties No.1 & 2, through whom the said hotel and rooms were booked, but they did not pay any heed. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), seeking directions to the Opposite Parties, to refund the booking amount of Rs.18,698/- plus Rs.1,387/- service tax, alongwith interest @18% per annum; pay Rs.20,000/- towards deficiency in rendering service & indulgence into unfair trade practice; Rs.20,000/- as compensation for mental agony and physical harassment; and Rs.15,000/- as cost of litigation, was filed.
3. Opposite Parties No.1 and 2, in their written version, took up a preliminary objection that the District Forum at Chandigarh had no territorial jurisdiction to entertain and adjudicate the dispute. However, on merits, Opposite Parties No.1 and 2 admitted the booking & confirming the rooms, as requested, by the complainant. It was stated that the Opposite Parties No.1 and 2 had performed all its duties by making the booking, as requested, and, as such, discharged all their obligations, as requested by the complainant. It was further stated that the alleged deficiency, in service, was strictly limited to the affairs of the service provider, which could not be linked with Opposite Parties No.1 and 2, as per the User Agreement. It was further stated that the complainant never made any complaint about the alleged deficiency, on the date of check-in, and if the same had been reported, in time, some sort of help would have been extended to him. It was further stated that on contacting Opposite Party No.3, it was informed that though three deluxe rooms were booked, for the complainant, yet, at the time, when he checked in, he opted for one family suite, and one deluxe room and, as such, one family suite was given to him, which was having two interconnected rooms with separate bathrooms and everything. It was further stated that technically, as per the booking, three rooms were provided to the complainant. It was further stated that in the Hotel Voucher, issued to the complainant, it was mentioned that 7.42 percent Additional Service Tax Compulsory, on total tariff, shall be directly payable at the hotel by the guest. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Parties No.1 and 2, nor did they indulge into unfair trade practice. The remaining averments, were denied, being wrong
4. Opposite Party No.3, did not appear despite service, before the District Forum, and hence, it was proceeded against exparte vide order dated 01.02.2013.
5. The parties led evidence, in support of their case.
6. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, dismissed the complaint, as stated above, in the opening para of the instant order.
7. Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.
8. We have heard the Counsel for the appellant, at the preliminary stage, and, have gone through the evidence, and record of the case, carefully.
9. The Counsel for the appellant/complainant submitted that the ratio of law laid down in Renaissance Hotel Holding INC Vs. Vihaya Sai and other, 2010 (8) RCR Civil 1289, after relying upon which, the District Forum held that it did not have the territorial jurisdiction to entertain the complaint, is not applicable to the complaint filed by the appellant/complainant because firstly, in that judgment, the booking was sought through internet from Delhi to book a hotel in Banglore, and secondly, it was a civil suit for permanent injunction, and thirdly, the respondents were not having any branch office or place of business at Delhi. It was further submitted that in the present case, respondent No.1 was having Branch Office at Chandigarh i.e. Respondent No.2 in the appeal.
10. After giving our thoughtful consideration, to the submission, made by the Counsel for the appellant/complainant and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, at the preliminary stage, for the reasons to be recorded hereinafter. The core question, which arises for consideration, in the instant appeal, is, as to whether, the District Forum at Chandigarh had the territorial jurisdiction to entertain and decide the complaint. The answer, to this question, is in the negative. It is evident from record that the appellant/complainant booked three rooms for three days for six adults from 21.06.2012 to 24.06.2012, in a hotel of Opposite Party No.3, situated at Manali, online, through his debit card. Annexure C-2, copy of the Hotel confirmation voucher attached with the complaint, bears the address of Opposite Party No.1 only. Clearly neither booking was made through Opposite Party No.2 at Chandigarh nor any payment for booking was made at Chandigarh, nor any other cause of action arose at Chandigarh. The accommodation, booked at Manali, was also outside the territorial jurisdiction of the District Forum at Chandigarh. The mere fact that the complainant averred, in the complaint, that Opposite Party No.2 is the branch office of Opposite Party No.1, at Chandigarh, without any further cause of action having arisen at this place, did not confer any territorial jurisdiction upon the District Forum, at Chandigarh. While interpreting the provisions of Section 17(2)(b) of the Act, which are para-materia with the provisions of Section 11(2)(b) of the Act, in Sonic Surgical Vs National Insurance Company Ltd. IV(2009) CPJ 40(SC), the Apex Court held as under ;
4. In our opinion, no part of the cause of action arose at Chandigarh. It is well settled that the expression cause of action means that bundle of facts which gives rise to a right or liability. In the present case admittedly the fire broke out in the godown of the appellant at Ambala. The insurance policy was also taken at Ambala and the claim for compensation was also made at Ambala. Thus no part of the cause of action arose in Chandigarh.
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8. Moreover, even if it had application, in our opinion, that will not help the case of the appellant. Learned Counsel for the appellant submitted that the respondent-Insurance Company has a branch office at Chandigarh and hence under the amended Section 17(2) the complaint could have been filed in Chandigarh. We regret, we cannot agree with the learned Counsel for the appellant. In our opinion, an interpretation has to be given to the amended Section 17(2)(b) of the Act, which does not lead to an absurd consequence. If the contention of the learned Counsel for the appellant is accepted, it will mean that even if a cause of action has arisen in Ambala, then too the complainant can file a claim petition even in Tamil Nadu or Gauhati or anywhere in India where a branch office of the Insurance Company is situated. We cannot agree with this contention. It will lead to absurd consequences and lead to bench-hunting. In our opinion, the expression branch office in the amended Section 17(2) would mean the branch office where the cause of action has arisen. No doubt this would be departing from the plain and literal words of Section 17(2)(b) of the Act but such departure is sometimes necessary (as it is in this case) to avoid absurdity [vide G.P Singhs Principles of Statutory Interpretation, Ninth Edition, 2004 P. 79].
11. The perusal of the facts of Sonic Surgicals case (supra), clearly goes to reveal that the Policy was taken by the complainant at Ambala, the godown, in respect of which, the Policy was taken, was situated at Ambala, and the incident took place at Ambala, whereas the complaint was filed before this Commission, at Chandigarh. Under these circumstances, it was held that since no cause of action arose, within the territorial Jurisdiction of this Commission, at Chandigarh, except that the Opposite Party had the Branch Office there, it had no territorial jurisdiction to entertain and decide the complaint. In Sonic Surgicals case (supra), before the Honble Supreme Court, an argument was advanced, by the Counsel for the appellant/complainant, that since the Branch Office of the Insurance Company, was situated at Chandigarh, even if, no other cause of action, arose to the complainant, within the territorial jurisdiction of Chandigarh, the State Commission, at Chandigarh, had jurisdiction to entertain and decide the complaint. That argument of the Counsel for the appellant/complainant therein, was rejected, by the Honble Supreme Court, in the manner, referred to above. The principle of law, laid down, in Sonic Surgicals case (supra), is fully applicable to the facts and circumstances of the instant case.
12. The appellant/complainant was very well aware that no cause of action arose at Chandigarh and, therefore, he sent legal notice dated 18.07.2012 (Annexure C-5) to Opposite Parties No.1 and 3 only. It seems that by impleading Opposite Party No.2, the appellant/complainant made an attempt to confer jurisdiction upon the District Forum situated at Chandigarh.
13. Undisputedly, the facility of booked rooms was availed of by the appellant/complainant, at Manali (H.P.). The District Forum, relying upon the judgment of Delhi High Court in case Renaissance Hotel Holding INC Vs. Vihaya Sai and other (supra), rightly observed that the territorial jurisdiction could not be invoked, merely looking at the booking through email, but it could be invoked at the place where the actual physical business was being done. The operative part of the aforesaid judgment i.e. Para No.3, being relevant, is reproduced below:-
3. I consider that on the basis of on-line booking from Delhi of a hotel room situated in USA or situated in Bangalore, the jurisdiction of this Court cannot be invoked. With the vast spread of Internet and e-business, booking of a hotel room can be done from any corner of the world. Merely because a person can get hotel room booked from any corner of the world, would not mean that the hotel or the company running hotel was having place of business at the place of booking through Internet. Similarly, booking of hotel rooms by hospitality or Travel Agents spread over throughout the world would not give rise to the presumption that the Hotels business was being done at the place of such agent. The place of business and place of work has to be understood not looking at the booking through e-mails but where the actual physical business of hospitality is being done. If the hotel rooms are available in Bangalore and can be occupied and used in Bangalore the place of business of hotel has to be in Bangalore. The place of business cannot be in Delhi or at any other place.
14. Clearly, the cause of action or part of it, to the appellant/complainant, had arisen outside the territorial limits of Union Territory, Chandigarh and, therefore, the District Forum was right in holding that the complaint was not maintainable due to lack of territorial jurisdiction. The findings of the District Forum, in this regard, are affirmed.
15. Since, due to lack of jurisdiction, the complaint was not maintainable, the District Forum was not competent to decide the complaint on merits. The findings recorded by the District Forum, on merits of the case, after holding that it had no territorial jurisdiction to entertain and decide the complaint, are a nullity and cannot be acted upon.
16. In view of the above discussion, it is held that the order passed by the District Forum, that it had no territorial jurisdiction to entertain and decide the complaint, does not suffer from any illegality or perversity warranting the interference of this Commission.
17. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum that it had no territorial jurisdiction to entertain and decide the complaint, is upheld.
18. The appellant/complainant shall, however, be at liberty, to file a complaint before the appropriate Forum having the territorial jurisdiction or resort to any other legal remedy, which may be available to him, for redressal of his grievance.
19. Certified copies of this order, be sent to the parties, free of charge.
Pronounced.
22nd August, 2013.
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT [DEV RAJ] MEMBER Ad STATE COMMISSION (First Appeal No.355 of 2013) Argued by:Sh. Harsh Manocha, Advocate for the appellants.
Dated the 22nd day of August, 2013 ORDER Vide our detailed order of even date, recorded separately, this appeal has been dismissed, at the preliminary stage, with no order as to cost. The order of the District Forum that it had no territorial jurisdiction to entertain and decide the complaint, has been upheld.
2. The appellant/complainant shall, however, be at liberty, to file a complaint before the appropriate Forum having the territorial jurisdiction or resort to any other legal remedy, which may be available to him, for redressal of his grievance.
(DEV RAJ) MEMBER (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT Ad