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Complainant in person
Advocate M. B. Maheshwari for the Opponents.
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Per Hon’ble Shri. V. P. Utpat, President
:- JUDGMENT :-
Date – 19th August 2013
This complaint is filed by consumer against the Maheshwari Charitable Foundation u/s 12 of the Consumer Protection Act, 1986. Brief facts are as follows-
[1] Complainant is the resident of Kothrud, Pune. On 20/5/2011 he had booked the Marriage Hall of the Opponents for the marriage of his daughter which was scheduled on 20/1/2012. Hall was booked for two days i.e. on 19th and 20th January 2012. He had deposited Rs.80,000/- towards rent for two days and Rs.30,000/- by way of security deposit. Due to unavoidable circumstances he had cancelled the booking immediately after 17 days from the date of booking i.e on 7/6/2011. It was almost 225 days in advance. After cancellation he approached to the Opponents who had assured that the entire amount will be refunded if they got another booking for the same date. As per the assurance complainant had waited till the said hall was booked by another party. When he learnt about the booking by another party again he approached to the Opponents for refund of amount. Opponents have avoided and were reluctant to refund the full amount. Eventhough the said hall is constructed for social and charitable purpose the opponents are earning profit by booking the same hall for the same date for 2 to 3 times. Complainants had sustained loss of Rs.1,10,000/-. Hence he has filed this complaint and asked refund of Rs.1,10,000/- as well as compensation for mental harassment and expenses of the litigation.
[2] Opponents resisted the claim by filing written statement. According to them the complaint is not maintainable as the Trust is not made party to the proceeding. They in individual capacity are not liable to pay any amount to the complainant. They have denied that the said hall was booked for other party on the scheduled date. They have further contended that they were ready to refund 50% of the amount to the complainant but he did not accept the same. As per the rules framed by the Trust he was entitled for the amount of Rs.40,000/- towards rent and Rs.30,000/- towards security deposit. It is also contended that the dispute between the parties cannot be resolved before this Forum as the relations between the parties are not as consumer and service provider. They have prayed for dismissal of the complaint.
[3] After scrutinizing the documentary evidence which is produced by both the parties, considering the affidavits, pleadings and legal submissions made by both parties following points arise for my determination. The points, findings and the reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1 | Whether complainant has proved that the Opponents have caused deficiency in service by not refunding the rent amount as well as security deposit ? | In the affirmative |
2 | What order ? | Complaint is partly allowed. |
Reasons
As to the Point Nos. 1 and 2-
The admitted facts in the present proceeding are that the complainant had booked Marriage Hall of the Opponents near about one year before the scheduled date. Unfortunately the booking was cancelled by the complainant due to unavoidable circumstances. This fact was immediately communicated to the Opponents. It is the case of the complainant that the Opponents booked the same marriage hall for other party hence he is entitled for the refund of entire amount which was deposited by him. Complainant has produced copies of receipt which were issued by the Opponents. According to the Opponents as per the rules and regulations of the Trust the complainant is entitled for only 50% of the amount. Copy of the rules is produced by the Opponents. It is also denied by the Opponents that the said hall was booked by another party on the scheduled date. It is significant to note that the Opponents have not produced any documents to show that complainant has agreed for the said rules as well as terms and conditions between the parties. More over the booking of the marriage hall was cancelled well in advance i.e near about 225 days before the date of alleged function. This fact is not disputed by the Opponents. Eventhough it is not proved by the complainant with cogent and reliable evidence that another party has booked the hall for the same date it was not fault of the complainant as the booking was cancelled well in advance. More over the Opponents have not produced their account books and booking register in order to prove that the hall was not booked by any other party. As the record about the booking of the hall by the third party is in the custody of the Opponents it is the duty of the Opponents to produce the same. But the Opponents failed to produce the same hence adverse inference can be drawn against them. The act of payment of rent as well as security deposit by the complainant to the Opponents was not gratuitous act. It was his hard earned money and the transaction between the parties was the consumer transaction. The Opponents have not rendered any services to the complainant after receiving the amount of Rs.1,10,000/- from him. This fact itself is sufficient to draw legitimate inference that the Opponents have caused deficiency in service. Eventhough the Opponents have framed rules as regard not refunding the entire amount after cancellation of booking those are not binding upon the complainant as the Opponents have failed to produce any documentary or oral evidence to show that they have sustained loss due to the cancellation of booking. It is alleged by the Opponents that they are made party individually and not as office bearer of the Trust. But it reveals from the title page of the complaint itself that they are made party as chairman and secretary of the said Trust. Hence I do not find any substance in the objection raised by the Opponents. The rules and regulations framed by the Trust are hit by section 70 of the Indian Contract Act which laid down as follows-
“70. Obligation of person enjoying benefit of non-gratuitous act- Where a person lawfully does anything for another person or delivers anything to him, not intending to do so gratuitously and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered.”
As the complainant has sustained loss without any fault he is entitled to receive the refund of money as well as compensation for deficiency in service, compensation for mental and physical sufferings as well as cost of the litigation to the tune of Rs.15,000/- in lumpsum.
In the light of the above discussion I answer the points accordingly and pass the following order-
:- ORDER :-
1. Complaint is partly allowed.
2. It is hereby declared that the Opponents have caused deficiency in service by not refunding the booking amount as well as security deposit to the complainant.
3. Opponents are jointly and severally directed to refund Rs.1,10,000/- to the complainant within six weeks from the date of receipt of copy of order.
4. Opponents are jointly and severally directed to pay Rs.15,000/- to the complainant by way of compensation for deficiency in service, for mental and physical sufferings and cost of the litigation within within six weeks from the date of receipt of copy of order.
5. Both parties are directed to collect the sets which are provided for the Hon’ble Members within one month from the date of order. Else those will be destroyed.
Copy of order be supplied to both the parties free of cost.
Place- Pune
Date – 19/08/2013
