Date of filling: 14.11.2016
Date of Disposal: 06.07.2018
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
THIRUVALLUR -1
PRESENT: THIRU.S.PANDIAN.B.Sc., L.L.M., - PRESIDENT
THIRU:BASKARKUMARAVEL .B.Sc.,L.L.M., BPT., PGDCLP., - MEMBER
CONSUMER COMPLAINT 51/2016
FRIDAY, THE 06DAY OF JULY 2018
Haja Nazirudeen,
S/o.Sheikh Mohammed,
No.7B, Plot No.257,
22nd Street, sri Krhshna Nagar,
Maduravoyal, Chennai -95 …… Complainant
//Vs//
1.C.Ramesh,
Proprietor, K.R.S. Choda Mahal,
No.78, Poonamallee High Road,
Chennai - 95.
2.Jeniffer,
Manager, K.R.S. Choda Mahal,
No.78, Poonamallee High Road,
Chennai -95. …. Opposite parties.
The complaint is coming upon before us finally on 25.06.2018 in the presence of Mr.R.Tholgappian, counsel for complainant and M/s.R.S.Vaideeswaran, counsel for the opposite party and upon hearing arguments, having perused the documents and evidences this Forum delivered the following:-
ORDER
PRONOUNCED BY THE S.PANDIAN, PRESIDENT.
This complaint is filed by the complainant U/S 12 of the Consumer Protection Act, 1986 against the opposite parties to refund the sum of Rs.50,000/- towards booking advance of the Mahal with interest and Rs.50,000/- towards compensation for the mental agony due to the deficiency of service with cost.
2.The brief averments of the complaint are as follows.
That, for the purpose of conducting his son’s marriage reception scheduled on 12.12.2016 when the complainant was searching for a marriage hall through internet ,he had come across K.R.S. Choda Mahal, Situated At No.78, Poonamallee High Road, Maduravoyal (Opp to piller No,86) Chennai -95.
3. Then, he had approached the 2nd opposite party who is the manager of the 1st opposite party and enquired about the facilities available provided in the hall and particularly, with regard to kitchen facilities for preparation of non-vegetarian food for serving during the reception. The 2nd opposite party who represented herself as the manager of the K.R.S. Choda Mahal on behalf of the 1st opposite party who is the proprietor of the Marriage Hall, had represented that preparation of non-vegetarian is allowed in the kitchen.
4. That believing the representation so made by the opposite parties the complainant had requested time to pay the booking advance after showing the marriage hall to his family members for their satisfaction and confirmation. But, however, the opposite parties stated that marriage halls are in demand on account of marriage season and therefore advised to pay booking advance or else they would not be in a position to keep the required date for the reception indefinitely blocked since there was high demand for marriage halls in the coming months and insisted for booking on payment of advance amount of Rs.50,000/-
On belief over and the representation made by the opposite parties, and out of anxiety to fix a marriage hall at the earliest point of time an advance amount of Rs.50,000/- was paid by cheque on 14.08.2016 under due acknowledgement receipt issued by the opposite parties.
5. At the time of payment of advance, the opposite parties had requested him to sign a printed form purporting to be the terms and conditions of booking without furnishing a copy of the same. Even at this stage, when the complainant enquired as to whether the advance amount paid would be refunded in the event of cancellation for any reason, the opposite parties had stated that the signature in the printed booking form is only a formality and a record for statutory compliance purpose and further assured that refund would be given if cancelation is done within a reasonable time. Copy of the same was not provided to the complainant and as well as the receipt issued does not purport any condition therefore.
6. When the complainant and his family members subsequently visited the marriage hall to check the facilitates available, they were shocked to be informed by the 2nd opposite party that preparation of non-vegetarian food in the kitchen cannot be allowed as per the instruction of the 1st opposite party and that only serving of non-vegetarian food would be permitted.
7. On account of the sudden change of situation, he was constrained to cancel the booking duly informing in advance through SMS sent on 04.09.2016, 05.09.2016 and 11.09.2016 and also over mobile phone to the 2nd opposite party who had then assured to refund the advance amount of Rs.50,000/- paid after obtaining concurrence from the 1st opposite party. But thereafter, despite several calls being made there was no response on the side of the opposite parties. Therefore, a letter was addressed to the opposite parties on 12.09.2016 requesting the opposite parties to refund the advance amount. Then, the opposite parties in response had chosen to issue a legal notice on 23.09.2016 containing false allegations and denials.
8. The complaint that in response thereto, a reply legal notice was issed on 30.09.2016 refuting the false allegations and statements and called upon the opposite parties to refund the advance amount of Rs.50,000/- within one week from the date of receipt thereof.
9. The opposite parties thereafter addressed a rejoinder through their lawyer on 13.10.2016 wherein they have refused to comply with the demand for refund and also failed to disclose the ownership particulars of K.R.S. Choda Mahal and as also name of the Manager/Representative with ulterior motives only after having made diligent enquiry. The complainant was able to trace out ownership details as well as name of the Manager.
10. That clause 3 of the so called Rules and Regulations relating to refund has no legal sanctity for enforcement and refusal to refund the advance in the circumstances amounts to unfair trade practice deprecated under law. At any rate, the said option of re-booking provided to customer in the event of demand for refund is only contingent and conditional and hence cannot bind the customers as mandatory. The refusal to refund tantamount to deficiency in relation to service and unfair trade practice. Hence the complaint.
11.The contention of written version of the 1st opposite party is briefly follows:-
The opposite parties deny the averments and allegations stated in the complaint as false, untrue, frivolous and vexatious, excepting those that are specifically admitted hereunder. The complaint is not maintainable either in law or by the Rules and Regulations of the 1st opposite party Mahal for the use of Mahal.
12.The 2nd opposite party had not assured or given permission to cook the Non-vegetarian food in the mahal. That at the time of Booking the Mahal the complainant have opted for serving non-vegetarian. Food during the function, for that the 2nd opposite party refused to book the Mahal as per the Rules and Regulations of the Mahal, but however, at the request and compulsion of the complainant, the 2nd opposite party booked the hall with a condition that the complainant should not cook the Non-veg. Food in the Mahal and the complainant is only permitted to serve the vegetarian food which is duly accepted and signed by the complainant at the time of booking the Mahal on 14.08.2016.
13. That, before booking the Mahal, the complainant have visited the Mahal along with his friends and relatives more than 10times and after satisfying himself with the facilities available in the a Mahal, then only he booked the Mahal on 14.08.2016 after gone through the contents of the Rules and Regulations of the mahal and he also sighed in the relevant form. The 2nd opposite party has not insisted or compelled the complainant to book the mahal or to pay the full amount of Rs.50,000/-.
14. The averments, that the complainant had booked the mahal out of anxiety and believed the representation of the 2nd opposite party utter false hood. The complainant had booked the Mahal after getting satisfied with the facilities of the Mahal and then only he has paid the amount and after knowing the terms and conditions of the Mahal.
15. It is denied that at the time of payment of advance, the opposite parties had requested him to sign a printed form purporting to be the terms and condition of booking without furnishing a copy of the same is a concocted story invented for the purpose of this complaint and also denied the further averment that the opposite parties assured to refund the advance amount if cancellation is done within a reasonable time is an white lie. The printed terms and conditions of the opposite parties mahal have been given to the complainant along with the payment receipt.
16. The averments that preparation of non-vegetarian food would be permitted is false and incorrect and invented for the purpose of filing the above complaint. At the time of visiting the Mahal before and after booking as stated earlier paragraphs the 2nd opposite party clearly informed to the complainant that cooking of non vegetarian is not allowed and in the Mahal and the complainant is only permitted to serve the vegetarian Food.
17. The 1st opposite party as a proprietor has not given concurrence or the 2nd opposite party has not assured the complainant to refund the advance amount of Rs.50,000/-. But, however, at the time of cancellation the opposite parties gave the option to change the venue date to some other available date. But the complainant has not accepted for that. The rules and regulations of the mahal in clause-3 is as follows:-
3.No refund of money paid will be made in case of cancellation. The Applicant, however, will have the option to re-book the hall free of charges for his/her use on any subsequent day/days according to his/her choice within two months from the date of cancellation, subject to the availability. The use of the Hall cannot be transferred by the Applicant to any other person.
18. Now the complainant is claiming the refund intentionally to harass the opposite parties. The complainant is not entitled for any refund of the advance amount paid by him.
19. The opposite parties denied the averments stated in para-9 of the complaint that the opposite parties have not furnished the ownership particulars of the opposite parties and the name of the Manager/Representative of the Mahal.
20. The opposite parties have not committed any deficiency in their service. The opposite parties state that the complainant failed to utilize the chance to change the date of the Reception and hence he is not entitled for any refund of amount paid or any compensation from the opposite parties. The opposite parties and the complainant have to bind by the terms and conditions of the Mahal. Therefore, this complaint is not maintainable in law and liable to be dismissed with exemplary costs.
21. In order to prove the case, on the side of the complainant, the proof affidavit submitted as his evidence and Ex.A1toEx.A5 were marked. While so, on the side of opposite party, the proof affidavit submitted as his evidence and Ex.B1 to Ex.B3 were marked.
22. At this juncture, the point for consideration before this Forum is:-
1. Whether there is any deficiency of service on the part of the opposite parties as alleged in the complaint?
2. To what other reliefs, the complainant is entitled to?
23. Written arguments have been filed by the both sides. In addition, oral arguments also adduced on the side of the complainant and the opposite party.
Point No.1:-
24. According to the case of the complainant, it is stated that though the complainant came forward to cancel the booking of the Marriage Hall belongs to the opposite party namely K.R.S. Choda Mahal, Poonamallee High Road, Maduravoyal through SMS sent on 04.09.2016,5.09.2016 and 11.09.2016 and also over mobile phone and refund the advance amount of Rs.50,000/-paid on 14.08.2016, which date the said Mahal was booked but, thereafter despite several calls being made there was no response from the opposite parties and also the issued of legal notice and thereby the complainant has compelled to file this complaint.
25. While so, as per the version of the opposite parties is that as per the rules and regulation of the Mahal and the terms and conditions which was already supplied to the complainant when the Marriage Hall was booked it is clearly informed, that at any cost the advance amount could not be refunded and at any point of time, the opposite party-2 had assured to refund the advance amount for the booking of the Marriage Hall and their allegation in respect of the preparation of Non Vegetarian and servicing of the Non-Vegetarian are all false and therefore there is no deficiency service on the part of the opposite parties.
26. At this juncture, it goes without saying that the complainant is having bounden duty to prove the allegations made in the complaint against the opposite party by means of concrete and consistent evidence. At this instance, on going through the proof Affidavit of the complainant which is filed as his evidence, it is stated that the complainant was searching for a marriage hall for doing the son’s marriage reception scheduled on 12.12.2016 through internet, he had come across the K.R.S.Choda Mahal, Ponamallee High Road, Maduravoyal, Chennai -95 and therefore he had approached the opposite party 2 who is Manager of the opposite party-1 and enquired about the facilities available for providing in the hall and particularly, with regard to kitchen facilities for preparation of non vegetarian food for serving during the reception.
27.It is further stated that on believing the version of the opposite party-2 the complainant has paid an advance amount of Rs.50,000/- by means of cheque on 14.08.2016 and receipt for the same is marked as Ex.A1 and not furnishing any copy of the terms and conditions of booking in which the complainant has requested to sign and on enquiry, the opposite party had stated that the signature in the printed booking form is only a formality and assured that the refund would be given if cancellation is done within a reasonable time. It is further seen from the evidence that when the complainant and the family members visited the marriage hall subsequently to check the facilitates available they were shocked to be informed by the 2nd opposite party that the preparation of non-vegetarian food in the kitchen cannot be allowed as per the instructions of the 1st opposite party and only serving of non-vegetarian food would be permitted and also on account of the sudden change of situation, the complainant was constrained to cancel the booking date duly informing in advance through SMS sent on 04.09.2016,05.09.2016 and 11.09.2016 and also over mobile phone to the 2nd opposite party who had then assured to refund the advance amount of Rs.50,000/- but thereafter, despite several calls being made there was no response on the side of the opposite parties. Hence, a letter which is marked as Ex.A2 addressed to the opposite parties on 12.09.2016 to refund the advance amount. In turn the opposite parties issued a legal notice (Ex.A3) on 23.09.2016 containing false allegations and for which Ex.A4, the reply notice issued by the complainant on 30.09.2016 and for which the opposite parties had sent Ex.A5 the rejoinder notice. Furthermore, it is stated that the class 3 of the so called Rules and Regulations relating to refund has no legal sanctity for enforcement and refusal to refund the advance in the circumstances clearly amounts to unfair trade practice deprecated under law.
28.On the other hand, on going through the evidence of the opposite parties it is learnt that the 2nd opposite party had not assured or given any permission to cook the non-vegetarian food and infact, at the time of the booking the Mahal, the complainant have visited the Mahal along with his friends and relatives after satisfying himself with facilities available in the Mahal and also after gone through the contents of the Rules and Regulation of the Mahal and complainant signed in the form. At this point of time, the opposite party is not insisted or compelled the complainant to book the Mahal or pay the full amount of Rs.50,000/-. It is further stated that infact, on full satisfaction only the complainant has paid sum of Rs.50,000/- and the carbon copy of the Mahal is marked as Ex.B2 which was signed by the complainant. On further perusal of the evidence it is reported that as per the Ex.B2 and Ex.B3 it is clearly mentioned that the advance amount will not be refunded on any case of cancellation and therefore the opposite parties act as per the Ex.B2 and hence there is no deficiency of service and in the result, the complainant is not entitled for any relief as pray in the complaint.
29. At this juncture, on careful perusal of the rival submissions put forth on either side, it is crystal clear that it is an admitted fact that the complainant has booked the opposite party Mahal for the marriage reception to be held on 12.12.2016 on payment of Rs.50,000/- paid on 14.08.2016. In such circumstances, it has to be analyzed whether the opposite party has assured or given permission to cook the non–vegetarian food in the Mahal or denied the same when the complainant asked for the cooking and surviving of non-vegetation food in the ensuing function to be held on 12.12.2016. Regarding this facts on seeing of the complainant, it is pertinent to note that, it is stated by the complainant that the opposite party-2 being the Manager of the said Mahal had represented that the preparation of the non-vegetarian is allowed in the kitchen and believe over words of the opposite party2 and insisted for booking on payment of advance amount of Rs.50,000/-on the day itself when the complainant visited the Mahal on 14.08.2016 the advance amount of Rs.50,000/- was paid
30. While so, it is denied by the opposite parties that the opposite party 2 had not assured or given permission for cooking the non-vegetarian food in the Mahal and in order to substantiate they have produce the Ex.B2 the rules and regulations for use of the Mahal and for which the copy of the same was also furnished to the complainant in which the complainant also has signed and also produced Ex.B3 before this Forum to show that it is clearly informed that they allowed only for cooking vegetarian food not for non-vegetarian. At the outset, it is true that the Ex.B2 was signed by the complainant but there is no evidence to show that the copy of Ex.B2 has been furnished to the complainant at the time of booking the Mahal. More so, in respect of Ex.B3 it is no doubt that in Ex.B3 it is mentioned as mirt czTfis jahupf;fNth kz;lgj;jpw;Fs; nfhz;L tuNth mDkjp ,y;iy but there is no evidence or documents produced on the side of the opposite parties to show that the copy was furnished to the complainant either at the time of booking the Mahal or after wards. Not only that Ex.B3 was not signed by the complainant either for informing nor for furnishing copies.
31. At this juncture, this Forum wants to enlighten that to the common knowledge that the complainant is being a Muslim, he would not book the Mahal if actually or really the opposite party has not given any assurance for cooking or surviving the non-vegetarian food, since the Muslim are having customs and usage in preparing non-vegetarian food during the function or festivals. Therefore unless or otherwise the opposite party 2 has given assurance there is no necessity to the complainant to book the said Mahal by paying huge a sum of Rs.50,000/- on the day itself when the complainant visited the Mahal that is on 14.08.2016. More over at this instance, the decision submitted on the side of the complainant Reported in CPJ 1991(II) 670 Mrs.Angela Fonseca /Vs/ Coral Lawns & Another. The full Bench of this commission has held that, Mere mention of the word advance once paid will not be refunded on the receipt is an exploitation of a needy and helpless consumer and imposition of said condition amounts to unfair trade practice which is squarely applicable to the facts of this complaint on hand. So the opposite parties contention that as per Ex.B2 and Ex.B3 no refund of money paid will be made in case of cancellation has lost its merit.
31. At this point of time, it is pertinent to note that on careful perusal of the averments and evidence on both sides, it is well in advance informed the opposite parties through SMS on relevant dates on 04.09.2016, 05.09.2016 and 11.09.2016 and also over mobile phone to the 2nd opposite party regarding the cancellation of the Mahal which was booked on 14.08.2016 for which the function to be held on 12.12.2016 and the same was not disputed. The only contention placed on the side of the opposite parties is that as per the Ex.B2 and Ex.B3 the complainant is not entitled for refund of the advance amount paid at the time of booking. In this aspects, it is clearly discussed above that mere mention of the word advance once paid will not be refunded on the receipt is an exploitation of a needy and helpless consumer and imposition of said condition amount to unfair trade practice as per the decision held in CPJ1991. Furthermore, this Forum wants to state that since the cancellation should have informed well in advance by the complainant there is every possibilities to the opposite parties to rebook the Mahal which was booked by the complainant for some other person or function and therefore there is no question of incurring loss to the opposite parties because of the above said cancellation.
32. In the light of the above facts, observations and the decision this Forum come to conclusion that the refusal to refund the advance amount of Rs.50,000/- paid towards the booking of the Mahal by the complainant, which is clearly amounts for unfair trade practice which also leads to the deficiency of service on the part of the opposite parties and the same has been proved properly by the complainant. Thus, point No.1 is answered accordingly.
Point No:2:-
33. Regarding this point, it is crystal clear that there is not disputed regarding the payment of advance amount of Rs.50,000/- at the time of booking the Mahal on 14.08.2018 by the complainant. Such being so, considering other facts and circumstances and to meet the end of justice this Forum feels that there is no harm to decide to refund the said Rs.50,000/- without interest. At the same time, it is contented by the opposite parties that by mentioned clearly about the condition in respect of refund in Ex.B2 signed by the complainant deposit amount not refunded but not otherwise. So, though there is some deficiency of service on the part of the opposite parties, this Forum concluded that there is no valid reason to pay compensation. At the same time, because of the non refund of the deposit amount by the opposite parties the complainant had certainly incurred some litigation expenses and the same has to be compensated and thereby the complainant is entitled for the cost towards litigation. Thus, the point no.2 is answered accordingly.
In the result, this complaint is allowed in part. Accordingly, the opposite party is directed to refund the amount of Rs.50,000/-(Fifty Thousand only) paid towards booking advance and to pay a cost of Rs.5,000/- (Five thousand only) towards the litigation expenses to the complaint. Regarding other reliefs, this complaint is dismissed.
The above amount shall be payable within one month from the date of receipt of the copy of the order, failing which, the said amount shall carry interest at the rate of 9% per annum till the date of payment.
This order was dictated by the President to the steno-typist, typed by him, corrected, sighed and pronounced by us in open Forum, today on this day 06th of July 2018
-Sd- -Sd-
MEMBER PRESIDENT
List of document filed by the complainant:-
Ex.A1 | 14.8.2016 | Receipt issued by the 1st opposite party | Xerox |
Ex.A2 | 12.09.2016 | Letter issued by complainant | Xerox |
Ex.A3 | 23.09.2016 | Legal Notice issued by 1st opposite party | Xerox |
Ex.A4 | 30.09.2016 | Reply legal notice issued by complainant | Xerox |
Ex.A5 | 13.10.2016 | Rejoinder notice issued by the 1st opposite party | Xerox |
List of document filed by the 1st and 2nd opposite parties:-
Ex.B1 | 14.08.2016 | Receipt | Carbon copy |
Ex.B2 | 14.08.2016 | Terms and conditions of the mahal in printed form. | Original |
Ex.B3 | 14.08.2016 | Estimation of expenses. | original |
-Sd- -Sd-
MEMBER PRESIDENT
