BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

Dharamraj Garg, son of Shri Des Raj Garg, resident of House No.907, Sector-12-A, Panchkula.

                                                                ….Complainant

Versus

1.     Apple Resorts, Village Nabha Sahib, Highground Road, Patiala    Road, Zirakpur, Tehsil Dera Bassi, District Mohali through Manoj       Bhasin.

2.     Manoj Bhasin, Apple Resorts, Village Nabha Sahib, Highground  Road, Patiala Road, Zirakpur, Tehsil Dera Bassi, District Mohali,

        2^nd address

        Bhasins Luxury Wedding Planners & Designers, Plot No.337,       Phase 2, Industrial Area, Panchkula-134413.                                                                                                                                                                                                                                                                           ..….Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019.

Before:              Sh.Satpal, President.

Dr.Sushma Garg, Member

Dr.Suman Singh, Member

For the Parties:   Complainant in person.  

                        Sh.Pranav Bhasin, Advocate for OPs No.1 & 2.                

                                        ORDER

(Satpal, President)

1.              The brief facts, as alleged in the present complaint, are, that  the complainant  had approached  the Opposite party no.1(hereinafter referred to as OP No.1)/Opposite party no.2(hereinafter referred to as OP No.2), in order to hold the  marriage function of his daughter on 16.04.2020, who asked him (the complainant) to make the advance payment of Rs.1,00,000/- and accordingly, an amount of Rs.20,000/- and an amount of Rs.30,000/- was paid in cash on 19.02.2020 and 03.03.2020 respectively and remaining payment of Rs.50,000/- was paid through cheque no.917033 dated 19.02.2020 drawn at South Indian Bank. It is averred that public gathering beyond 50 persons was banned by the notification issued by the Government of India on account of covid-19 pandemic & accordingly, the complainant decided to hold the marriage function of his daughter in private and thus, asked the OPs to refund the amount of Rs.1,00,000/- as paid by him. It is averred that no formal agreement was executed between the complainant and the OPs and that the booking was cancelled by the complainant well in time and thus, no loss had occurred to the OPs on account of cancellation of the booking. It is stated that the marriage of the daughter of the complainant was solemnized in private and no social gathering/public function was held. The OPs were requested several times to refund the amount as paid to them but to no avail. Finding no option, a legal notice dated 09.06.2020 was sent through registered post to OPs seeking the refund of the amount, who in response thereto sent the reply denying the refund on frivolous grounds. Due to the act and conduct of the OPs, the complainant has suffered mental agony, physical harassment and financial loss; hence, the present complaint.

2.             Upon notice, the OPs No.1 & 2 appeared through their counsel and filed the reply by way of counter affidavit by raising preliminary objections, therein, that the World Health Organization had declared the emergence of the corona virus as world pandemic and thereafter, the Government of India had imposed lockdown at the National level w.e.f. 25.03.2020. It is submitted that the holding of the marriage function of the daughter of the complainant was not feasible on account of the imposition of lockdown at the National level, in the wake of Covid 19, by the Government of India and thus, the contract as per Section 56 of the Contract Act, 1872 had become impossible because of unavoidable circumstances and thus, the same had become void. It is submitted that as per the notification no.40-3/ 2020-DM-I(A) of the Ministry of Home Affairs dated 01.05.2020, 17.05.2020 and 30.05.2020, all the  public gatherings for any marriage functions/ religious events were prohibited due to the pandemic situation in the country.

                On merits, it is submitted that the complainant was verbally informed, while he was making the advance booking of the OP No.1 resort for holding the marriage function, that the advance payment as per the terms and conditions of the OPs was non refundable. It is submitted that the Government of India vide order dated 30.05.2020 had granted the permission of public gathering up to 50 persons only whereas the marriage of the daughter of the complainant was solemnized in private on 16.04.2020 about which the OPs were not informed by the complainant. Rest of the allegations alleged by the complainant has been denied and it has been prayed that there is no deficiency in service on the part of the OPs No.1 & 2 and as such, the complaint is liable to be dismissed.

3.             To prove the case, the learned counsel for the complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 to C-5 in evidence and closed the evidence by making a separate statement. On the other hand, the ld. counsel for the OPs No.1 & 2 has tendered affidavit Annexure R-A and closed the evidence.

4.             We have heard the complainant as well as OPs No.1 & 2 and gone through the entire record available on the file including the written arguments filed by the OPs No.1 & 2, carefully and minutely.

5.             During arguments, the complainant has reiterated the averments as made in the complaint as also in his affidavit i.e. Annexure C-A and contended that the forfeiture/non refund of the advance payment made by him of the sum of Rs.1,00,000/- to OPs qua the holding of marriage of his daughter on 16.04.2020 was not valid and proper because  the OPs had not informed him at any time on or before the booking that the booking amount was not refundable. It was argued that no such terms and conditions were entitling the OPs to forfeit or withhold the booking amount were ever provided by them and thus, the complaint is liable to be accepted by granting the relief as claimed for in the complaint.

6.             On the other hand, the learned counsel on behalf of the OPs, during arguments, has reiterated the averments as made in the written statement as also in the affidavit i.e. Annexure R-A and contended that no fault or deficiency is liable to be attributed on the part of the OPs qua the non holding of the marriage of the daughter of the complainant on 16.04.2020 because the lockdown was imposed by the Government of India at the national level in the wake of Covid-19 situation. It was argued that the complainant was duly informed at the time of booking of the OP No.1 resort that the advance payment made by him amounting to Rs.1,00,000/- was non-refundable as per terms and conditions of the OPs policy. It was further argued that the payments to several vendors connected with flower decoration, food and tent arrangement etc. were made by the OPs, out of the advance booking amount of Rs. One Lac, which was received from the complainant and thus, the complaint is liable to be dismissed being frivolous, baseless and meritless. Reliance has been placed on the following case laws:-

i.      Satyabrata Vs. Mugneeram (1954 SCR 310).

ii.      Energy Watchdog Vs. Central Electricity Regulatory Commission         (2017) 14 SCC 80, 2017.

7.             After hearing the complainant on one hand and the learned counsel for the OPs on the other hand and perusing the record minutely and thoroughly, the question that arises for consideration before the Commission, is, whether the forfeiting/withholding of the booking amount of Rs.1,00,000/-by the OPs as paid by the complainant  to them qua holding of the marriage function of his daughter on 16.04.2020, is proper, valid and justified.

8.             Admittedly, the marriage of the daughter of the complainant was to be solemnized on 16.04.2020 in OP No.1 resort, which was booked by the complainant on 19.02.2020. Further, the payment of sum of Rs.1,00,000/- by the complainant qua holding of  the marriage of his daughter in OP No.1 resort is  also not in dispute.

9.             Pertinently, the marriage function was not feasible on 16.04.2020 at any public place on account of lockdown, imposed at national level, due to Covid-19 situation, wherein the celebration of all types of public functions etc. were prohibited along with severe restrictions on the movements of the vehicular traffic. As per version of the complainant, the marriage function was held on 16.04.2022 at private place. Evidently, neither the complainant was able to avail the services of Ops qua holding of marriage function on 16.04.2020 in OP No.1 resort nor the OPs were in a position to provide their services qua the said marriage function. Therefore, no lapse can be attributed upon either of the parties i.e. complainant or the Ops on this count.

10.            The OPs have denied the refund of booking amount of Rs.1,00,000/- to the complainant mainly on the ground that the refund of the same was not permissible as per the terms and conditions of their refund policy.

                This plea is not acceptable because no such terms and conditions have been placed on record by the Ops in order to corroborate or substantiate their version. Even if it is assumed that there were any such terms and conditions that the amount paid was not refundable, then in that eventuality, the same tantamounts to adoption of the unfair trade practice by the Ops as per provision contained in Section 47(vii) of the Consumer Protection Act, 2019. The Hon’ble Maharashtra State Commission in the appeal no.14 of 1990 titled as Mrs.Angela Fonseca Vs. Coral Lawns & Anr. decided on 30.08.1990  held that mere mention of words “advance once paid will not be refunded” on the receipt is an exploitation of a needy and helpless consumer and the imposition of such a condition amounts to unfair trade practice. Pertinently, the aforesaid case was also the case of booking of a marriage palace.

                The another ground taken by the OPs is that they had made the payment to the vendors, out of the booking amount, for flower decoration, catering services etc. for the proposed marriage function and thus, the alleged amount of Rs. One Lac was not liable to be refunded.

                This ground is also not tenable because there is no documentary evidence on record, which shows that OPs had made the payment to vendors for flower decoration etc. and thus, in the absence of any such evidence, no merits are found in the said plea.  It is well settled legal proposition that mere bald assertions which are not corroborated and substantiated by any adequate, cogent and credible evidence do not carry any evidentiary value.

11.            From the aforementioned above narrated factual position, no merits are found in the defence version taken by the OPs while forfeiting/withholding the booking amount of Rs.1,00,000/- paid by the complainant  in connection with the marriage of his daughter in OP No.1 resort. As per well settled legal proposition, it is impermissible for the service provider to forfeit/withhold the payment qua which no services were provided by it to the consumers, therefore we hold the Ops deficient, for which, they are liable, jointly and severally, to compensate the complainant.

12.            In relief, the complainant has claimed the refund of Rs.1,00,000/- along with interest. Further, he has claimed a sum of Rs. 1,00,000/- as compensation on account of mental agony, harassment and litigation charges respectively.          

13.            As a sequel to above discussion, we partly allow the present complaint with the following directions to the OPs No.1 & 2:-

1. To refund a sum of Rs.1,00,000/- to the complainant along with interest @ 9% per annum (simple interest) w.e.f. the date of filing of the present complaint till its realization.
2. To pay an amount of Rs.5,000/- to the complainant on account of mental agony and harassment.
3. To pay an amount of Rs.5,500/- as litigation charges.

 14.           The OPs No.1 & 2 shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OPs No.1 & 2. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced: 09.10.2024

        Dr. Suman Singh                   Dr.Sushma Garg                Satpal

                        Member                     Member                     President

Note: Each and every page of this order has been duly signed by me.

    Satpal

  President