This is a case U/s.12 of the Consumer Protection Act, 1986 filed by the complainant, Smt. Ruma Dutta Chakraborty.
The fact of the complainant in a nutshell is that the complainant being an old aged lady was in search for a suitable old age home and at the material point of time meet with the opposite party No.2, proprietor of Deb Bhumi an old age home of Delhi Road, Sugandha, Hooghly. After long discussion the opposite party No.2 convinced the complainant and considering gesture and representation of opposite party No.2 the complainant decided and made up her mind to stay in the ‘Deb Bhumi’, the old age home in the opposite party No.1. The complainant asked the opposite party No.2 about the formalities which were required to be observed by the complainant. The complainant decided to stay in the old age home. The opposite party No.2 placed certain documents before the complainant and asked to put her signature on those documents and further asked the complainant to pay an amount of Rs.2,00,000/- for lifelong arrangement for staying in the old age home. The complainant states that at first he was hesitating to put her signature without perusing the documents.
The complainant paid an amount of Rs.2,00,000/- to the opposite party No.2 through NEFT and in this regard the opposite party issued money receipt dated 26.6.2015. Upon receiving the said money receipt the complainant noticed that aforesaid amount was realized by the opposite party No.1 for Room No.27 & 28 of the opposites party No.1, old age home on account of donation and then the same was brought to the notice of the opposite party and it was told by the complainant that she had objection with regard to such payment of Rs.2,00,000/- on account of donation and at that time the opposite party No.2 told the complainant that in the agreement there shall be specific stipulation and it was assured that in future the complainant shall have no problem in the matter of stay in the opposite party No.1, old age home and the complainant being an old aged lady relied upon such statement of the opposite party No.2. But till this day no copy of the agreement has been served upon the complainant and for which the complainant is in dark as to the terms and conditions as allegedly stipulated in the agreement inspite of the fact that the complainant repeatedly requested the opposite party No.2 to provide a copy of agreement. But the opposite party No.2 deferred the matter of handing over the copy of the agreement by taking one after another false plea.
That during her stay in the opposite party No.1, old age home for the period from 28.6.2015 to 26.7.2015, it was noticed by the complainant that although the authority concern of the opposite party No.1 i.e. the opposite party No.2 committed to protect the old ailing person in all respect but in fact, there was no provision of safeguarding and/or protecting the old aged person like complainant and by this time there is during the stay an unfortunate incident took place. The incident was an old aged lady committed suicide in her room and for which this complainant was mentally shocked and it was found by the complainant that there was no care take, night guards, home timer supervisor to supervise, control, manage and look after the welfare and wellbeing of the old aged persons including this complainant. The complainant placed her grievance before the opposite party No.2 and opposite party assured that he will take proper steps but opposite party was found disinterested rather reluctant in paying any heed to such request. So, the mental condition of the complainant was totally broken.
The complainant approached before the opposite party No.2 for refund of Rs.2,00,000/-. The opposite party first time disclosed that said amount was realized on account of donation and the same was not refundable. The complainant stated that she never donate such amount of Rs.2,00,000/- to the opposite party No.1 and on that plea of donation the opposite parties cannot frustrate the genuine claim of the complainant who is well entitled to get refund of such amount. The complainant stayed at the opposite party No.1, old age home for more or less 28 day and it is not expected from any authority that for a such stay the opposite parties forfeit the entire amount of Rs.2,00,000/- particularly when service rendered by the opposite parties was deficient, negligent and unfair trade practice.
Thereafter the complainant lodged a complaint before the Central Consumer Grievance Redressal Cell, Kolkata against the opposite party No.2 and upon receiving notice from the said redressal cell the opposite party No.2 appeared and filed written version. Upon hearing of both parties the Grievance Cell by a letter dated 14.3.2016 requested the opposite party No.2 to pay back the sum of Rs.2,00,000/- to the complainant within 30 days but opposite party did not comply the order of the Grievance Cell.
Finding no other alternative the complainant filed this case before this Forum for relief with a prayer to direct the opposite parties to refund of Rs.2,00,000/- to the complainant along with interest till realization of the said amount, to pay Rs.1,00,000/- as compensation for mental agony and pain and to pay Rs.25,000/- as litigation cost to the complainant.
O.P. No.1 & 2 jointly contested this case by filing written version denying inter-alia all the material allegation as leveled against them. The submit that complainant deposited Rs.2,00,000/- only as donation for double occupancy of two rooms for lifetime accommodation for herself which was non-refundable and was clearly mentioned in the opposite party’s brochure and website. And after taking all the information and having been fully aware that the said amount is non-refundable. She also signed in a declaration that she will abide by all the terms and conditions of the Home Authority like other borders in presence of her relative and friend as witness. So, any question of deficiency in service or unfair trade practice does not arise at all.
These opposite parties further submit that the complainant in different occasion expressed her full satisfaction in service of the Home Authority. Such she sent SMS to the opposite party on 22.6.2015 that “Just I want to express my view over Deb Bhumi as I liked it very much. One can see your hard work and strong will to develop it larger. So, I am very much happy that I will be part of Deb Bhumi”. Thereafter on 27.6.2015, 5.7.2015 and 12.7.2015 sent SMS to the opposite party about her view. So, the statements that opposite parties were full of deficiency, negligence and unfairness is not at all true as because the complainant expressed her satisfaction in different times.
The opposite party further states that Central Consumer Grievances Redressal Cell, Khadya Bhawan Complex, Kolkata-87 without considering the opposite parties objection or without going through the real point of controversy passed a baseless, partial and fictitious order which was not communicated to this opposite party. It is also mentioned here that at the time of delivery of possession of the occupied rooms to the complainant. On 29.8.2015 the complainant expressed her willing to stay Deb Bhumi Senior Citizen’s Home in future according to availability of room at that time by signing a declaration. So, it is clear the complainant left the home in her own desire not for any circumstances created by Home Authority and donation cannot be refundable in any circumstances.
Documents filed by the complainant money receipt of Deb Bhumi of Rs.2,00,000/-, letter to Sumit Das, proprietor of Deb Bhumi, letter to the Secretary, Deb Bhumi Senior Citizen Home, letter to Joint Secretary, Consumer Affairs Department, which all are photocopies. The complainant also filed evidence in chief, brief notes of argument, reply of interrogatories of opposite party No.1 & 2. The opposite party also filed photocopies of letter of Ld. Advocate Ashim Banerjee addressing to the complainant Ruma Dutta Chowdhury., evidence on affidavit, brief notes of argument and interrogatories to the complainant and eight in numbers of SMS with printing, photocopy of Brochure.
Points for decision
- Whether the complainant is a consumer or not?
- Whether there is deficiency in service on the part of the O.Ps.?
- Whether the case is maintainable or not?
- Whether the complainant is entitled to get relief as prayed for?
Decision with reason
All the points are taken together for easy discussion of this case.
From the material on record it transpires that the complainant is a consumer under section 2(1) d (ii) of the C.P. Act, 1986. The complainant here is the consumer of the opposite parties as the complainant has paid an amount of Rs.2,00,000/- to the opposite party No.1 through and or by way of transit from bank to bank received by the opposite party No.2 for self and behalf of the opposite party No.1 for lifelong arrangement for the complainant so that the complainant is entitled to get service.
The case of the complainant is that she decided to stay at the opposite party No.1 Old age home for lifelong arrangement in the opposite party No.1 and paid Rs.2,00,000/-. According to the complainant the Opposite parties issued money receipt being serial No.678 dated 26.6.2015 against the room No.27 & 28 of Deb Bhumi Old age home. As stated by the complainant during her stay in the Opposite Party No.1 Old age home from the period from 28.6.2015 to 26.7.2015 and untoward incident took place for which the complainant was mental shocked and noticed that on the date of incident there was no caretaker, night guard, home timer, supervisor to supervise control and look after the welfare of the old age person. It caused tremendous mental agony and pain to the complainant. The complainant placed her grievance but the opposite party No.2 is very much reluctant to pay any heed and request of the complainant. The mental condition of the complainant was totally broken and the complainant had to take decision that the opposite party No.1 Old Age Home is not fit for her wherein the old aged person like complainant were not at all safe and the opposite parties have no intention to provide minimum help to the old aged person. As the complainant could not stay there so the complainant requested the opposite parities to return amount of Rs.2,00,000/- which was taken by the opposite parties and the opposite parties denied return back the payment on the ground that the same sum of rs.2,00,000/- was the amount toward donation and could not be refunded.
It is the settle principle of law that by merely mentioning that the amount was not refundable and could not be made non-refundable and by merely mentioning that the amount was for donation could not be made donation and showed detain the amount without rendering any service amounts to unfair trade practice and there is no evidence that opposite party old age home suffered any loss and as such the opposite parties have committed the deficiency in service and unfair trade practice for not refunding the amount of Rs.2,00,000/-. The complainant is relying upon the judgment reported in 2009(1) CLT 616.
More over after perusing the record and hearing argument advance by the parties we have seen that the untoward incident i.e. that an old aged lady committed suicide at a room of Old Age Home which is adjacent to the room of the complainant. At that incident the complainant became afraid and annoyed very much. And she felt herself in secured at that Old Age Home where the authorities are not concerned regarding the safety and security of the inhabitants. It is the utmost duty of the Old Age Home to manage the situation and counseling the complainant and try to mitigate the grievance of the complainant. But insptie of giving protection to the inhabitants the opposite parties have failed to provide safety and security to control the situation arose due to untoward incident. So, there is no legal bar and to allow the prayer of the complainant.
From the above discussion this Forum is in the opinion that the complainant able to prove the deficiency of services of the opposite parities by adducing cogent documents/evidence, so the prayer of the complainant is allowed. However considering the facts and circumstances there is order as to cost. With the above mentioned observation the complaint thus disposed of accordingly. Hence, it is
Ordered
that the case No.75/2016 be and the same is allowed on contest against the opposite parties with a litigation cost of Rs.10,000/-.
The opposite party No.1 & 2 jointly or severally be directed to refund the amount of Rs.2,00,000/- to the complainant along with interest @ 8% from 27.5.2016 to till realization of the said amount.
At the event of failure to comply with the order the opposite party shall pay at the rate of Rs.50/- each days delay, if caused on expiry of the 45 days by the deposit the accrued amount if any in the Consumer Legal Aid Account.
