Appeared at the time of arguments For the Appellant : Mr. Sanjiv Arora, Advocate Mr. Shubham Arora, Advocate For the Respondent : Mr. Ashok Mehta, Senior Advocate Pronounced on: 21st January 2022 ORDER PER DR. S. M. KANTIKAR, MEMBER 1. The instant Appeal was preferred by the Appellant/Opposite Party (The Fern-an-Ecotel Hotel) under Section 19 of the Consumer Protection Act, 1986 against the impugned Order dated 23.09.2013, passed by the State Consumer Disputes Redressal Commission, Rajasthan, Jaipur (hereinafter referred to as the “State Commission”), whereby the Complaint was allowed and the Appellant was directed to pay a compensation. 2. Brief facts are that the marriage of Ms. Priyanka Nahata, the daughter of Mr. Navratan Nahta- the Complainant No. 1, was fixed on 24.02.2012. Therefore, about 6 months in advance, 25 rooms were booked by the Complainants for stay of the marriage guests, in ‘The Fern-An Ecotel Hotel’ - Opposite party (herein after referred to as “the hotel”). It was booked for three days from 23.02.2012 to 25.02.2012 at the rate of Rs. 2,500/- per day. An initial booking amount of Rs. 25,000/- was deposited with the Opposite Party on 07.07.2011. However, after the span of about 4 ½ months (4 months & 21 days) of booking, the Hotel sent an e-mail to the Complainant on 29.11.2011 about cancelling the said booking on the ground of non-availability of rooms till 31.03.2012 because of maintenance work. It was alleged that the reason of maintenance stated by the Opposite Party was completely false and malafide, though the hotel booking was open on the website during the said period. The booking was cancelled with a bad intention to get more tariff at Rs.10,888/-per day. Due to sudden cancellation of booking, the Complainants were compelled to book rooms at a higher tariff in Om Tower- the three star Hotel. Aggrieved by the deficiency in service, the conduct and negligent act of the Opposite party, the Consumer Complaint was filed before the State Commission, praying for a compensation of Rs. 23,45,500/- for damages and mental agony. 3. The Appellant filed its written version and stated that the claim of the Complainants for Rs.23,45,000/- was highly inflated, without any basis. The Complainants were in need of 75 rooms whereas only 25 rooms were available in the Opposite Party - Hotel. Therefore, the Complainants were in search of some hotel near to their residence. Therefore, a tentative booking by depositing Rs. 25,000/- was made and the balance 80% amount was to be paid within 2-3 weeks. The Opposite Party informed the condition that the booking would be confirmed only after remitting 80% of balance amount and subject to completion of maintenance work, flooring of the rooms. The Complainant did not pay 80% of balance amount within 2-3 weeks and since the maintenance work was not completed, an e-mail dated 29.11.2011 was sent to the Complainants and expressed their inability to provide rooms and offered refund of their advance booking amount of Rs.25,000/-. The bank details were asked for remittance of the refund, but the Complainants neither replied nor raised any objection to the e-mail. The cheque for refund was also prepared by Opposite Party. 4. The State Commission vide order dated 23.09.2013, allowed the Complaint and awarded Rs.16,37,500/- with interest @ 9% p.a. on the aforesaid amount from the date of filing of Complaint and Rs. 25,000/- towards the cost of proceedings. 5. Being aggrieved by the Order of the State Commission, the Opposite Party filed this Appeal. 6. We have heard the learned Counsel on both the sides, perused the relevant material on record. 7. The learned Counsel for the Complainant argued that it was unexpected and on sudden receipt of email dated 29.11.2011 about cancellation of booking at Opposite Party, they were compelled to search and book 75 rooms in “Hotel Om Towers” for 03 days @ Rs. 2886/- per room per night which was higher to the booking which was offered by the Opposite Party @ Rs.2,500/- per room. Therefore, the Complainants had to bear the extra amount at the difference of Rs. 386/- per room. Moreover, the Complainants have to compromise with lesser facilities at Hotel Om Tower compared to the facilities offered by the Fern Ecotel Hotel. Therefore, the Complainants suffered severe embarrassment in front of the guests and the in-laws. 8. The learned Counsel for the Opposite Party during argument reiterated the written version and evidence. He further submitted that it was a tentative booking made by paying Rs. 25,000/- only. The other details like number of persons and menu for their lunch, high tea, dinner etc., were not finalized. It was submitted that the Complainants booked 75 rooms at one place in Hotel Om Tower at the reasonable rates. 9. We have perused an e-mail dated 29.11.2011 (Annexure –4) sent by the Opposite Party which informed the Complainant about ongoing maintenance in two rooms floors till March 2012, and requested the Complainants to make their alternative arrangements. We note that as per the terms of quotation (Annexure 3), the Complainants failed to deposit the balance amount to confirm their booking for 25 rooms. There was no existence of any agreement between the Parties. The Appellant cancelled the booking and offered to refund the booking amount of Rs. 25,000/- but the Complainants did not prefer to collect the amount but filed the Consumer Complaint before State Commission with highly inflated claim. It should be borne in mind that bare quotation is not a confirmation of booking. There should be any agreement executed between the parties. 10. It is pertinent to note that the Complainants have booked 75 rooms on 06.12.2011 in Hotel Om Tower @ Rs. 2886/- per room per day. Admittedly, the difference was Rs.386/- more than the price Rs.2500/- quoted by the Opposite Party. Therefore, in our considered view, the liability upon the Opposite Party shall be the difference of amount for 3 days i.e. Rs. 28,950/-. It was the breach of contract as under Section 73 of Indian Contract Act. The State Commission was not justified to award Rs. 6,37,500/-. It should be borne in mind that, by no stretch of imagination, any five star hotel will confirm 25 rooms booking for 3 days on the deposit of Rs. 25,000/- only. It appears the claim of Complainants was on the assumption based on the rates available on various websites and advertisements. Even based on the website information, the Complainant failed to establish the availability of 75 rooms in Hotel -Opposite Party for 3 days (23rd to 25th Feb. 2011) and as alleged those rooms were sold at the price of each room at Rs.11,000/- per night. Therefore, it was illegal to claim the compensation based on the probabilities of profit generation by the Opposite Party. The State Commission on presumption held that 75 rooms were available on the said dates and calculated the amount @ Rs. 8,500/- per day (Rs.11,000/- minus 2500/- as agreed) and awarded the compensation to Rs.6,37,500/-, which appears to be unjust enrichment of the Complainant. 11. The memories of marriage ceremonies are life time events in the life of bride and bridegroom and their family members to make their moments memorable. In our country, certainly, it is not an easy task for the parents to arrange their daughter’s marriage in a five star hotel in place like Jaipur or any big cities. All of sudden cancellation of booking about 3 months prior to the date of marriage on account of maintenance is not acceptable reason. The five star hotel industries had protocols for periodic maintenance and other activities. The guests (the travellers, delegates and dignitaries) expect good hospitality and care after spending huge charges. In most of the star hotels, maintenance schedule /calendar is fixed well in advance. As in the instant case the Opposite Party was under knowledge that the maintenance work would be completed up to 31.3.2012. Therefore at first instance only, the Opposite party would have rejected the booking. Moreover, after cancellation, the Opposite Party did not volunteer or propose any alternate accommodation facility at their end. The hotel management was at serious fault, which was well aware of their schedule of maintenance and the room reservations well in advance. In our view, such unilateral cancellation of rooms certainly caused huge loss and mental agony to the Complainant and his family. They felt humiliated in front of their invitees, friends, relatives etc. Thus, the act of the Opposite Party amounts to deficiency of service which needs just and reasonable compensation to the Complainants. 12. In the instant case, the State Commission awarded punitive damages of Rs. 10,00,000/- in our considered view, which could not have been done and same is set aside. We have found that there was no unfair trade practice committed by the Appellant- Hotel and it was not wanton and/or willful misconduct of the Appellant In the present case, the Complainants had not prayed for such punitive damages in the complaint or proved that any actual loss was suffered by them. This view dovetails from the decision of Hon’ble Supreme Court in General Motors (India) Private Ltd Vs Ashok Ramnik Lal Tolat[1]. Moreover, awarding punitive damages requires evidence that the Opposite Party proceeded intentionally with an unlawful action after knowing that the act was likely to cause injury. 13. Now on the point of quantum of compensation, the Complainant prayed compensation of Rs. 23,45,500/- plus the booking amount of Rs. 25,000/-. As we have already discussed in preceding paragraphs, it was highly inflated claim and it shall not be on the probabilities and the projected profit. Admittedly the Complainant was compelled to book all 75 rooms in Hotel Om tower, with some higher rate @ Rs. 2,886/- per day for three days. It was Rs. 386/- more than the rate quoted by the Opposite Party hotel for 25 rooms. Therefore, it would be just and fair to allow the difference of amount for 3 days for 25 rooms, which would be Rs. 28,950/- (3x386x25). In addition, we cannot ignore the mental agony and the embarrassment suffered by Complainant- the father of girl and his family members. The loss and mental agony cannot be expressed in terms of the money. Therefore, to meet the ends of justice to the Complainants, we award the just and proper lump sum compensation of Rs. 2 lakh in addition to Rs.28,950( the difference) + Rs.25,000/-(advance payment). 14. Based on the discussion above, the First Appeal is partly allowed with the direction that the Opposite Party shall pay Rs. 2,53,950/- to the Complainants along with interest @ 9% per annum from the date of cancellation of booking i.e. 29.11.2011 within 6 weeks from today. Any delay beyond 6 weeks, shall attract an interest @12% per annum till its realization. |
