Chandigarh

StateCommission

A/126/2024

HAIR MASTERS LUXURY SALON PVT. LTD. - Complainant(s)

Versus

ARUSHI LAMBA - Opp.Party(s)

ALANKAR NARULA

02 Jul 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T. CHANDIGARH

[Additional Bench]

==================

Appeal No.	:	A/126/2024
Date  of  Institution	:	26/03/2024
Date   of   Decision	:	02/07/2024

 

 

 

 

 

Hair Masters Luxury Salon Pvt. Ltd., SCO 180-181-182, Sector 9-C, Chandigarh.

….Appellant

Vs.

 

Arushi Lamba d/o Sh. Ashay Lamba, Resident of House No.3031, Sector 27-D, Chandigarh.

…. Respondent

 

 

BEFORE: MRS. PADMA PANDEY   PRESIDING MEMBER

                PREETINDER SINGH     MEMBER

 

PRESENT	:	Sh. Alankar Narula, Advocate for the Appellant.
		Sh. Vikram Singh Brar, Advocate for the Respondent.

 

PER PADMA PANDEY, PRESIDING MEMBER

 

 

 

1.         The present appeal has been filed challenging the impugned order dated 13.02.2024, rendered by the District Consumer Disputes Redressal Commission-II, U.T. Chandigarh (for brevity hereinafter to be referred as “the Ld. District Commission”), vide which, it allowed the Consumer Complaint No.352 of 2023, in the following manner:-

 

“7]      From the above discussion and findings, we are of the opinion that the deficiency in service and unfair trade practice has been proved on the part of the OP. Therefore, the present complaint is allowed with direction to the Opposite Party to refund an amount of Rs.5000/- to the complainant and to pay a lumpsum amount of Rs.15,000/- towards compensation for deficient services and indulging in unfair trade practice, which includes litigation cost as well.”

2.         For the convenience, the parties are being referred to, in the instant Appeal, as position held in Consumer Complaint before the Ld. District Commission.

 

3.         Before the Ld. District Commission, it was the case of the Complainant that on 26.5.2022 she booked the services of Makeup with Opposite Party for 08.06.2022 on account of engagement ceremony of her cousin and paid an advance amount of ₹5000/- to Opposite Party out of total bill of ₹20,000/-. However, when due to unforeseen circumstances, the said engagement ceremony got cancelled, the Complainant informed the Opposite Party a week in advance for cancellation of her booking, whereupon the Manager of the Opposite Party asked her to book an appointment whenever she required the services and they shall book the said services accordingly while adjusting the advance money of ₹5000/- already paid by her. The complainant also re-confirmed her advance payment with Opposite Party during Sept. 2022 and Jan, 2023.  It was alleged that on 13.6.2023 when the complainant approached the Opposite Party, it refused to either provide any service against said advance payment or refund the amount.  Eventually, the complainant sent legal notice to the Opposite Party on 13.6.2023, but to no avail. Hence, the aforesaid Consumer Complaint was filed before the Ld. District Commission, alleging deficiency in service and unfair trade practice on the part of the Opposite Parties.

 

4.         Before the Ld. District Commission, despite due service through registered post, the Opposite Party failed to put in appearance, therefore, it was ordered to be proceeded against ex-parte.

 

5.         On appraisal of the pleadings and the evidence adduced on the record, Ld. District Commission allowed the Consumer Complaint of the Complainant as noticed in the opening para of this order.  

 

6.         Aggrieved against the aforesaid order passed by the Ld. District Commission, the instant Appeal has been filed by the Appellant/Opposite Party.

 

7.         We have heard the Learned Counsel for the parties and have gone through the evidence and record of the case with utmost care.

 

8.         The core question that falls for consideration before us is as to whether the Ld. District Commission has rightly passed the impugned order by appreciating the entire material placed before it. 

 

9.         After giving our thoughtful consideration, to the contentions raised and material on record, we are of the considered opinion, that the instant Appeal is liable to be dismissed for the reasons to be recorded hereinafter.

 

10.         It is the case of the Appellant/Opposite Party that the Ld. District Commission while passing the impugned order has failed to appreciate the documentary evidence available on record, which resulted into perverse finding. It has been contended that at the time of reservation for the senior artist, it was unequivocally emphasized that any subsequent alterations, be they in the form of refunds or adjustments would categorically not be entertained, refundable and not adjustable in any service. It has been further contended that the Ld. District Commission failed to consider that at the time of making the booking the Respondent/ Complainant had agreed to such terms & conditions by signing the bill/ receipt and in order to shy away from her duties of fulfilling her part of the promise, she has filed the present misleading Complaint on false grounds.

 

11.         Conversely, it has been contended on behalf of the Respondent/Complainant that the order passed by the Ld. District Commission is quite just & right and does not call for any interference. The detailed finding of facts has already been recorded by the District Commission while allowing the Consumer Complaint. The learned counsel further argued on the similar lines as stated in the complaint filed before the Ld. District Commission and prayed for dismissal of the present appeal. 

 

12.         There is no denying the fact that Complainant booked the services of Makeup for 08.06.2022 and paid an advance amount of ₹5,000/- to the Opposite Party.  However, she neither availed the desired services nor got the refund of the advance payment made by her to the Opposite Party. It is the categorical stand of the Appellant/Opposite Party that once a reservation request for a senior artist is articulated, it is irrevocably considered as confirmed. However, in support thereof, the Appellant failed to adduce any such policy or principle stipulating such a condition. In absence whereof, to our mind, the Appellant cannot be allowed to draw any benefit therefrom.

 

13.         Learned Counsel for the Appellant argued that the Respondent proceeded to visit the Appellant a year after the scheduled date in order to utilize the services, which fact has erroneously been ignored by the Ld. District Commission. As against it, Learned Counsel for the Respondent submitted before approaching the Appellant, the Respondent during the month of Sept. 2022 and Jan. 2023 reconfirmed that her advance money was secure and she could avail services whenever she required the same. Although there is no tangible evidence available on record to corroborate the same, yet the fact remains that the Respondent did the booking; never availed the desired services or got the refund of the amount paid by her, despite serving legal notice. At any rate, the Appellant cannot be allowed to deny the refund to the   Respondent in respect of the service which she never availed.  Hence, the argument raised by the Learned Counsel for the Appellant is bereft of any merit, must fail, and the same stands rejected.

 

14.         Dwelling further, Learned Counsel for the Appellant argued that in view of clear recital on the bill/receipt dated 26.05.2022 (Annexure C-1) that “advance is not refundable and not adjustable in any service”, the Respondent/Complainant has no claim whatsoever and the Ld. District Commission failed to appreciate the same while allowing the Complaint. However, we are not impressed with this limb of argument, in asmuch as, the clause relied upon by the Appellant to resist the refund claim made by the Respondent/Complainant was wholly one sided, unfair and unreasonable and could not be relied upon. No service provider could take consideration of the service which was neither provided nor availed. Further, collecting advance payments from the customers and thereafter not refunding the same by taking shelter under some self-serving clause that advance is not refundable and not adjustable in any service, is nothing but deficiency in service and unfair trade practice on the part of the Appellant. Needless to mention here, the incorporation of one-sided terms amounts to unfair trade practice as per Section 2(47) of the Consumer Protection Act, 2019 since it adopts unfair methods or practices for the purposes of marketing the services offered by the Appellant.

 

15.         No other point was urged, by the Learned Counsel for the parties.

 

16.         It is demonstrable from a reading of the impugned Order of the Ld. District Commission that it is certainly not an order passed without reasons or without applying the judicious mind. The facts and circumstances of the case have been gone into, weighed and considered, and due analysis of the same has been made. It also does not appear to be an order passed without taking into account the available evidence. In this view of the matter, we are dissuaded to interfere with the impugned order rendered by the Ld. District Commission. The appeal being bereft of merit is accordingly dismissed and the order of the Ld. District Commission is upheld.

 

17.         All the pending application(s), if any, also stands disposed off accordingly.

 

18.         Certified Copies of this order be sent to the parties, free of charge.

 

19.         The file be consigned to Record Room, after completion.

Pronounced

02^nd July, 2024                                                                  

                                         Sd/-                         

                                                                (PADMA PANDEY)

PRESIDING MEMBER

 

 

Sd/-

(PREETINDER SINGH)

MEMBER

 “Dutt”