Haryana

Panchkula

CC/495/2021

RAMAN GAUR. - Complainant(s)

Versus

CLEOPATRA ,SPA WELLNESS BEAUTY & MAKEUP STUDIO. - Opp.Party(s)

ANJU SAINI

22 Feb 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA

 

                                                       

Consumer Complaint No	:	495 of 2021
Date of Institution	:	02.12.2021
Date of Decision	:	22.02.2023

 

Raman Gaur aged 63 years, son of Sh. Raj Kishan Gaur, resident of House No.380, Mamta Enclave, Post Office Dhakoli, Zirakpur, District S.A.S. Nagar, Mohali, Pin-160104, having office at Chamber No.82, Judicial Complex, Sector-1, Panchkula.                                                                                                                                                                                                      ...….Complainant

                                Versus                                                                  

1. CLEOPATRA, SPA Wellness Beauty  & Makup Studio, SCO No.34-35-36-37, Madhya Marg, Sector-9-D, Chandigarh-160008(U.T.) through its Manager.

 

2. CLEOPATRA, Spa, Salon and Makeup Studio, DSS-402, Sector-5, Panchkula-134109(Haryana) through its Manager.  

 

                                                                     ……Opposite Parties

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

 

 

Before:              Sh. Satpal, President.

Dr. Pawan Kumar Saini, Member.

Dr. Sushma Garg, Member.

 

For the Parties:   Complainant in person along with Ms. Anju Saini,     Advocate.

                        Sh.Sachit Mahindroo, Authorised representative of                   Ops No.1 & 2.  

                               

ORDER

(Satpal, President)

1.             Briefly stated, the facts of the present complaint are that the marriage of daughter of the complainant, namely, Ishu Gaur, who is residing in Canada and working as I.T.Professional, was to be solemnized on 16.04.2020; In order to solemnize marriage of his daughter in a lavish manner, the complainant had booked the Red Bishop Tourist Complex, Sector-1, Panchkula and he made the advanced payment as per usual practice; it is stated that the complainant in order to avail the service of beauty parlour for the bridal make-up and other  family members and close relatives visited  the main CLEOPATRA Studio Chandigarh in February 2020i.e. OP No.1; an amount of Rs.150000/- was settled qua  the services of beauty parlor through experts  for engagement/ring ceremony function to be held on 15.04.2020 and on the date of marriage i.e. on 16.04.2020; the  bridal make up was to be performed by the beautician of CLEOPATRA, Chandigarh, whereas the services  to other family members was to be provided by CLEOPATRA, Sector-8, Panchkula(OP No.2). On 02.02.2020, the OP No.1 had received a total settled amount of Rs.1,50,000/- from the complainant. As per the instructions of OP No.1, an amount of Rs.24,900/- was paid through credit card of Axis Bank and rest of the amount i.e. Rs.1,25,000/- was paid in cash by the complainant. A invoice amounting to Rs.24,900/- only was issued by OP No.1 vide bill no.7717 dated 02.02.2020. On asking of the complainant, the manager of OP No.1 assured that the receipt qua the balance amount of Rs.1,25,000/- would be provided by OP No.2. It is stated that, on account of severe restrictions, imposed during lockdown, which was declared on account of Covid-19, the complainant under compelling circumstances after seeking permission from the concerned SDM, arranged the marriage function at his residence on 16.04.2020. After the relaxation in the lockdown, the complainant requested the OP No.1 to refund his entire amount of Rs.1,50,000/- but the OPs did not refund the amount. A legal notice was served upon the OPs on 31.08.2021 through Ms.Anju Saini, Advocate asking the Ops to refund the amount. It is stated that the Ops had denied the refund of amount, being non-refundable, vide their reply dated 16.09.2021, wherein the payment of Rs.24,900/- was admitted and the payment of Rs.1,25,100/- was denied, which was paid in cash. It is stated that the Haryana Tourism has already refunded the booking amount of Rs.1,25,000/-, which was paid to them qua marriage function on 16.04.2020. It is further stated that all other service provider except the OPs, have refunded the booking amount. Due to the act and conduct of the OPs, the complainant has suffered a great mental agony, physical harassment and financial loss; hence, the present complaint.

2.             Upon notices, the OP No.1 & 2 appeared through authorized representative and filed separate written statement raising preliminary objections qua complaint is not maintainable as the consumer Commission at Panchkula has no territorial jurisdiction to entertain and decide the present complaint. It is stated that the OP No.1 never denied the services to the complainant and he himself(complainant) opted not to take the services. There is no deficiency on the part of the OP No.1 and the present complaint involves the issue of civil nature, thus, is liable to be dismissed.

                On merits, it is stated that the OP No.1 had received the full amount of Rs.24,900/- from the complainant which was non refundable. It is stated that except the sum of Rs.24,900/-, no other amount was received from the complainant. The averments of the complainant qua making the payment of Rs.1,25,100/- in cash is denied. It is stated that the business of the OP No.1 had suffered during the lockdown period and did not get any respite from the Government or any other authority. It is submitted that the decision of the complainant to solemnize the marriage of his daughter at his house was totally his decision. It is submitted that the Ops had continued to provide the bridal services even during the lockdown period and at no point of time, the Ops had denied their services to the complainant. It is submitted that the Ops had provided their services during covid period only to those consumer, who had got the curfew passes of the Ops staff from the appropriate authority. It is submitted that the Ops did not have any refund policy and the same was mentioned on the bill itself. It is submitted that full payment amounting to Rs.24,900/- was paid by the complainant to Ops and nothing was balance. It is denied that  a sum of Rs.1,25,100/- was paid in cash by the complainant to the Ops and thus, there is no deficiency in service on the part of the OP No.1 and as such, the complaint of the complainant is liable to be dismissed.

                Upon notice, the OP No.2 appeared through authorized representative and filed separate written statement mentioning therein that no booking, whatsoever, as alleged by the complainant was made with OP No.2 and no amount, whatsoever, was received by it and thus, no lapses and deficiencies can be attributed qua its part. 

3.             The learned counsel for the complainant has tendered affidavit as Annexure C-A along with document Annexure C-1 to C-9 in evidence and closed the evidence by making a separate statement. On the other hand, the Authorised representative of OPs No.1 & 2 has tendered affidavit Annexure R/A along with documents as Annexure R-1 & R-2 and closed the evidence.

4.             We have heard the learned counsel for complainant as well authorized representative on behalf of OPs No.1 & 2 and gone through the entire record including the written arguments filed by the OPs, minutely and carefully.

5.             Admittedly, the marriage of the daughter of the complainant was to be solemnized on 16.04.2020 and the service of Ops were booked qua bridal make-up and other family members for 15.04.2020/16.04.2020 by paying a sum of Rs.24,900/-vide bill no.7717 dated 02.02.2020(Annexure C-2). Pertinently,  the marriage function was not feasible on 15/16.04.2020 at any public place on account of lockdown, imposed at national level, due to Covid-19 situation, wherein the celebration of all types of 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 his house after obtaining necessary permission, for gathering of five persons, from  SDM, Dera Bassi vide letter dated 14.04.2020(Annexure C-5). Evidently, neither the complainant was able to avail the services of Ops qua bridal make up etc. nor the OPs were in a position to provide their services qua bridal make-up etc. to the complainant’s family including the bride. Therefore, no liability can be fastened upon either of the parties i.e. complainant or the Ops on this count.

6.             The grievances of the complainant are that he approached the Ops several times after the relaxation of the restrictions, imposed  on account of Covid-19, requesting them to refund his amount of Rs.1,50,000/-. During arguments, the learned counsel reiterating the averments made in the complaint contended that the Ops had indulged into unfair trade practice, while not refunding the amount paid by the complainant as no services were provided by OPs to the complainant’s family. It is contended that the legal notice dated 31.08.2021 sent through Smt.Anju Saini to the Ops also failed to bring any positive response. Concluding the arguments, the learned counsel has prayed that the Ops may be directed to refund the deposited amount i.e. 1,50,000/- along with compensation on account of mental agony and litigations charges.

7.             On the other hand, the authorized representative on behalf of the Ops no.1 & 2 vehemently controverted the assertions of the complainant qua payment of Rs.1,25,100/- in cash. Reiterating the averments made in the written statement as well as in affidavit Annexure R-A, the authorized representative contended that there was no refund policy of the OPs and thus, no deficiency can be attributed on their part. It is stated that as per bill(Annexure C-2), only a sum of Rs.24,900/-was received by the Ops from the complainant, which was full and final payment and there was nothing due towards the complainant qua the bridal services to be provided to the complainant’s family on 15/16.04.2020. Concluding the arguments, the authorized representative contended that the OPs were ready to provide their services to the complainant, even after the relaxation of the restrictions, imposed during the Covid-19 and thus, there was no deficiency on the part of the Ops.

8.             The aforementioned contentions as raised by the authorized representative on behalf of the Ops are not tenable. Pertinently, the insertion of a term in the invoice by the OP No.1 that amount paid qua its services was not refundable as per its policy clearly tantamounts to adoption of unfair trade practice by 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. Undoubtedly, in the present case, the complainant had no meaningful choice while making payment of Rs.24,900/- vide receipt no.7717(Annexure C-2) wherein the words “non-refundable” was already printed on it. In fact, the complainant had no option except to make the payment. The term mentioned as non-refundable vide receipt Annexure C-2 was one sided unfair & unreasonable and therefore, the OPs are not justified in denying the refund of sum of Rs.24,900/- to the complainant.

9.             The next plea taken by the authorized representative is that the complainant had himself postponed the marriage function. This contention is also not tenable in view of the severe restrictions imposed on the opening of shop etc during the lockdown period.

10.            The next submission of Authorized representative of Ops is that the Ops had provided their services even during the lockdown the period. This contention is totally baseless and incorrect as delivery of no service was possible during the lockdown period except the essential services.  

11.            In view of the aforementioned discussion, we conclude that there have been lapses and deficiencies on the part of the OP No.1 while rendering services to the complainant; hence the complainant is entitled to relief. The present complaint is dismissed qua OP No.2.

12.            Coming to the relief, it is found that no proof whatsoever has been placed on record by the complainant qua making of payment of sum of Rs.1,25,100/- to the Ops in cash. Mere bald assertions, which are not corroborated and substantiated by any adequate, cogent and credible evidence do not carry any evidentiary value. Thus, the complainant is entitled only to the refund of Rs.24,900/- as paid by him vide bill dated 02.02.2020(Annexure C-2).

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

1. To pay a sum of Rs.24,900/- to the complainant alongwith interest @9% per annum(S.I.) w.e.f. from the date of filing of the 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/- to the complainant on account of litigation charges.

 

 14.          The OP No.1 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, 2019 against the OP No.1. 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 on: 22.02.2023

 

 

 

          Dr.Sushma Garg         Dr. Pawan Kumar Saini            Satpal

                  Member                  Member                        President

 

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

 

                                             Satpal

                                            President