BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA
Consumer Complaint No | : | 04 of 2022 |
Date of Institution | : | 03.01.2022 |
Date of Decision | : | 10.09.2024 |
Swapan K. Bansal S/o Late Sh.Shubkaran Bansal, age 59 years, R/o Kothi No.74, Sector-4, Panchkula, Haryana.
….Complainant
Versus
Deventure Hotel and Resorts Pvt. Ltd. Kalka Shimla National Highway, Kandaghat District, Solan, Himachal Pradesh through its Director. ..….Opposite Party
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: Sh.Pavinder Singh Bedi, Advocate, for the complainant.
Sh.Anish Gupta, Advocate, for OP.
ORDER
(Satpal, President)
1. The brief facts, as alleged in the present complaint, are, that the complainant had booked the Opposite party(hereinafter referred to as OP) hotel on 08.10.2020 for holding the marriage function of his daughter on 15.02.2021 to 17.02.2021 with the expected gathering of 250 guests. Sh.Malkeet Singh, who was Vice President of the OP, had agreed to provide the facility of boarding, lodging, breakfast, lunch, dinner and high tea facilities to the guests and the charges of alcohol and DG were extra to be borne by the complainant. The total consideration of sum of Rs.29,00,000/- was settled for the marriage function, out of which Rs.5,00,000/- was to be paid on signing of the contract and Rs. 7,00,000/- were to be paid on 31.12.2020 and Rs.3,00,000/- on 31.01.2021 and the balance amount was to be paid at the time of check-in. A sum of Rs.5,00,000/- was paid by the complainant in advance on 09.10.2020 vide cheque in OP’s account no.50200018626360 in HDFC Bank. It is averred that a call was received by the complainant from the employee of the OP on 02.01.2021 asking him to deposit additional amount of Rs.7,00,000/- and thereupon, he accompanied by his wife and family friend Sh.Rajiv Khanna visited the OP hotel to discuss the prevailing covid-19 restrictions limiting the gathering to 50 guests only as imposed by the Government. It is averred that Sh. Malkeet Singh, Vice President and Sh. Het Ram Thakur, Manager of the OP had formally agreed to refund the entire advance payment amounting to Rs.5,00,000/- keeping in view the restrictions imposed by the Government on the gathering due to Covid-19 situation. On 15.01.2021, the complainant received a call from the OP’s representative that the Government had allowed unlimited gathering at the function but vide notifications dated 16.01.2021, the limit for the gathering was fixed as 200 persons. It is stated that the OP, on 29.04.2021, only after the repeated requests, had refunded 50% of the advance payment and assured to refund the balance amount of Rs.2,50,000/-. It is stated that the complainant was not responsible for the cancellation of the function because the gathering of the persons was initially allowed up to 100 persons, which later on was increased up to 200 persons by the Government of India keeping in view the covid-19 situation. It is stated that the similar restrictions on gathering of the persons at the social function were imposed by the Himachal Pradesh Government vide its circular dated 01.10.2020/order dated 03.11.2020 passed by the District Magistrate Solan, notification dated 24.11.2020 issued by the Government of India, which was followed by the District Magistrate order dated 28.11.2020. It is stated that the OP has not refunded the balance amount i.e. Rs.2,50,000/- despite the receipt of legal notice dated 19.10.2021 sent by the counsel of the complainant to it(the OP). Due to 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 OP appeared through its counsel and filed the written statement by raising preliminary objections, such as, the complainant has no locus standi; the Commission at Panchkula has no territorial jurisdiction to entertain and adjudicate the present complaint as no office of the OP’s is located in the territorial jurisdiction of the Commission; the complainant has not come with clean hands. It is submitted that the complainant had approached the Op in the month of October 2020 for booking of the OP hotel for holding the marriage function and after receiving all required information from the complainant, the OP had provided the price quotation to him and thereupon he(the complainant) had made the booking for the marriage function from 15.02.2021 to 17.02.2021. It is submitted that the complainant was duly apprised about the cancellation policy of OP-hotel at the time of booking. It is submitted that the contract was executed between the complainant and the OP and an advance payment of Rs.5,00,000/- was received from him. The complainant was asked by the OP’s representative to make the payment, which was due on 31.12.2020 as per the contract but he instead of making the payment, had cancelled the booking. It is submitted that 50% amount was liable to be deducted as reduction charges, in case, the cancellation was made between 30 to 59 days before the check-in date as per cancellation policy. It is submitted that the complainant was eligible only for 50% refund of the advance payment amounting to Rs.5,00,000/-, and the same was duly refunded to him on 29.04.2021.
On merits, it is submitted that Sh.Malkeet Singh, Vice President and Sh. Hetram Thakur, Manager of the OP-Hotel had never agreed and assured the complainant to refund the entire amount as alleged by the complainant. It is submitted that the complainant was never motivated or asked by the OP to cancel the booking. It is submitted that the complainant has run away from the agreed terms and conditions of the contract whereas the OP was always ready to perform its part of the contract. The OP has already refunded a sum of Rs.2,50,000/- on 29.04.2021 as per its cancellation policy and thus, there was no deficiency in service on the part of the OP; hence, 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 OP has tendered affidavit Annexure R-A along with documents Annexure R-1 & R-2 and closed the evidence.
During arguments, the learned counsel for the complainant has placed on record the copy of order dated 01.10.2020 & 24.11.2020 issued by the Government of Himachal Pradesh, which are taken on record as Mark ‘A’, ‘B’ & ‘C’ so as to decide the controversy in a proper and fair manner.
4. We have heard the learned counsels for the complainant as well as OP and gone through the entire record available on the file including the written arguments filed by complainant, carefully and minutely.
5. During arguments, the learned counsel for the complainant has reiterated the averments as made in the complaint as also in the affidavit(Annexure C-A) and contended that the cancellation of the booking for the marriage function was made by the complainant due to the placing of ceiling on the total numbers of persons at the marriage function. It was argued that it was not feasible for the OP to permit the holding of function, having gathering of 250 persons, in the light of orders dated 16.01.2021(Annexure C-1) issued by the Government of Himachal Pradesh, wherein the gathering of 200 persons was allowed. It was argued that the booking was cancelled on 06.01.2021 i.e. 40 days prior to the date of function on 15.02.2021 and thus, there was no justification on the part of the OP in withholding forfeiting the amount of Rs.2,50,000/- out of the total advance payment amounting to Rs.5,00,000/-. It was argued that no fault can be found with the complainant qua the cancellation of the booking by him on 06.01.2021 because the gathering of 250 persons as per Government orders was not permissible on the date of function on 15.02.2021 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 OP has contested the complaint primarily on the ground that a sum of Rs.2,50,000/- has already been refunded out of total advance payment of Rs.5,00,000/- as per its cancellation policy. The learned counsel on behalf of the OP, during arguments, reiterating the averments as made in the written statement as also in the affidavit (Annexure R-A) contended that the complainant was duly apprised qua the terms and conditions of the cancellation policy at the time of booking of the venue by him on 08.10.2020. It was argued that the OP has acted strictly in accordance with the terms and conditions of its cancellation policy, wherein a sum of Rs.2,50,000/- was liable to be deducted as retention charges in case of cancellation of the booking between 30 to 59 days of the check-in date and thus, the complaint is liable to be dismissed being frivolous, baseless and meritless.
7. After hearing the rival contentions of the learned counsels for the parties, the question that arises for consideration before the Commission, is, whether the withholding/forfeiting of Rs.2,50,000/- out of the total sum of Rs.5,00,000/- by the OP is valid and justified.
8. The sole defence of the OP is that it has deducted a sum of Rs.2,50,000/- as per terms and conditions of its cancellation policy. The aforesaid defence plea is not tenable because it was not feasible for the OP to permit the gathering of 250 persons on its venue w.e.f. 15.02.2021 to 17.02.2021 in view of the restrictions imposed by the Government of Himachal Pradesh on the gathering of persons limiting the same to 200 persons vide its order dated 16.01.2021(Annexure C-1) on account of Covid-19 situation; thus, the version of the OP that it was ready to perform its part on the contract qua holding of the marriage function on 15.02.2021 do not have any force and substance in it.
9. Pertinently, the Government of India vide order dated 30.09.2020 and the Government of Himachal Pradesh, in the wake of covid-19 situation, had issued the directions vide order dated 01.10.2020 & 24.11.2020 limiting the gathering at social function up to 100 persons; thus, the complainant had genuine and bonafide apprehensions qua the feasibility of the marriage function, having gathering of 250 persons, w.e.f. 15.02.2021 to 17.02.2021. As such there can be no doubt of any kind in any manner as to the fact that the complainant had cancelled the booking on 06.01.2021 not out of his choice but he was compelled to do the same because of the restrictions imposed by the Government on the gathering of the persons in the light of out-break of Corona Virus leading to Covid-19 situation;
10. Further, the complainant has got cancelled the booking on 06.01.2021 i.e. 40 days prior to the date of marriage function on 15.02.2021; thus, the OP had enough time to have the booking from other persons qua holding of function within the permissible limits of gathering of persons. Even it is not the case of the OP that the cancellation was made by the complainant on short notice. Further, it is not the case of the OP that the OP-hotel had remained vacant w.e.f. 15.02.22021 to 17.02.2021 due to the cancellation of the booking by the complainant. Furthermore, there is not even an whisper of averments in the written statement that the OP had incurred any additional expenses on account of advance payment to the other vendors/service providers like decorators, flowers arrangement, catering etc. Even there is no pleading in the entire written statement that the OP had sustained any loss or damages due to the cancellation of the booking by the complainant.
11. As discussed above, various orders were issued by the State Government of Himachal Pradesh fixing the maximum limit of persons at a social gathering/function so as to contain the further spread of Corona Virus infection. In such exceptional circumstances, the OP cannot be permitted to take shelter of the terms and conditions of its cancellation policy. Therefore, the defence plea taken by the OP, which is based solely on its cancellation policy is rejected; accordingly, we hold that the OP was deficient while withholding/forfeiting the sum of Rs. 2,50,000/- i.e. 50% of the advance payment of Rs.5,00,000/-.
12. In relief, the OP has claimed the refund of Rs.2,50,000/- along with interest. Further, he has claimed the compensation of Rs.5,00,000/- & Rs.55,000/- 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 OP:-
- To refund a sum of Rs.2,50,000/- to the complainant along with interest @ 9% per annum (simple interest) w.e.f. 06.01.2021 i.e. the date of cancellation of booking till its realization.
- To pay a compensation of Rs.15,000/- to the complainant on account of mental agony and harassment.
- To pay an amount of Rs.5,500/- as litigation charges.
14. The OP 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 OP. 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:10.09.2024
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
