Tamil Nadu

North Chennai

201/2014

N.J.Annamalai - Complainant(s)

Versus

Kailash Shreemahal,Rep by its proprietor, - Opp.Party(s)

N.Premalatha

27 Apr 2016

ORDER

                                                              Complaint presented on  :  17.10.2014

                                                                Order pronounced on  :  27.04.2016

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,         :      PRESIDENT

                    TMT.T.KALAIYARASI, B.A.B.L.,            :     MEMBER II

 

WEDNESDAY THE  27^th   DAY OF APRIL 2016

 

C.C.NO.201/2014

 

 

N.J.Annamalai,

No.21, Noor Veerasamy Street,

Nungambakkam, Chennai – 600 034.

                                                                            ..... Complainant

 

..Vs..

 

Kailash Shreemahal,

Represented by its Proprietor,

P1/1, II Floor, Third Avenue,

Anna Nagar, Chennai  – 600 040.

	...Opposite Party

Date of complaint                                  : 21.10.2014

Counsel for Complainant                      :Mrs. N.Premalatha

Counsel for Opposite Party                      :M/S. M.Kempraj & N.Ganesh (Ex-Parte)

 

 

 

         

 

 

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.SC., B.L.,

          This complaint is filed by the complainant u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The Opposite Party is engaged in the business of providing Halls (Mandapams) in different floors and for different functions on payment of necessary charges. There are Four Halls namely Kailash Shree Mahal, Vijay Shree Mahal, Balaji Shreemahal and Krishna  Shree Mahal in the same complex. The Complainant booked the Kailash Shree Mahal of the Opposite Party on 02.04.2014 for two days i.e 30.08.2014 and 31.08.2014 for performing his son Mr.A.Arunkumar reception and marriage. The Complainant also issued IOB cheque for a sum of Rs.1,34,832/- towards hall service and service tax. As insisted by the Opposite Party the Complainant also paid a sum of Rs.80,000/- by way of cash for Pandal, Flower Decorations for which no receipt was issued. Further the Opposite Party has also   written as “MUST” that the Complainant should avail Pandal Flower Decoration service from them. Due to unavoidable circumstances he had to cancel the booking hall on 04.04.2014 itself and he had also given letter dated 04.04.2014 to refund the cheque and also cash Rs.80,000/-. The Opposite Party refused to comply the demand of the Complainant by issuing a reply dated 04.04.2014 to the Complainant requesting him to re-book the hall within two months  from the date of cancellation. Since there was no scope for the Complainant to reuse the hall, he gave Stop Payment Instruction to his bank and accordingly the cheque was returned. The Opposite Party wrote a letter dated 10.04.2014 again requesting the Complainant to pay the returned cheque amount and to rebook the hall. The Complainant met the Opposite Party in person several times, explained the situation and requested them to refund the sum of Rs.80,000/- paid by him towards the Pandal & Flower Decorations, but all his efforts were in vain.  The refusal of the Opposite Party to refund the amount of Rs.80,000/- collected from the Complainant by way of cash is nothing but an unfair trade practice,  hence the Complainant issued notice dated 21.08.2014 to return the sum of Rs.80,000/-. The Opposite Party sent a reply that the question of repayment arise and hence the Complainant filed this Complaint for refund of money of Rs.80,000/- and also for compensation for mental agony with cost of the Complaint.

2. WRITTEN VERSION OF THE OPPOSITE PARTY IN BRIEF:

          The Opposite Party specifically denies that they demanded a sum of Rs.80,000/- towards cost of Pandal and Flower decorations and that it is denied that the Complainant has paid the same and thereby puts the Complainant to strict proof of the same. The Opposite Party has not issued any receipt for Rs.80,000/- since the same was not paid. As per clause – 3 of the said contract, the money paid as rent and service tax will not be refunded, in case of cancellation of booking, the Complainant has an option to rebook the same within two months from the date of cancellation of booking subject to availability of the hall and specifically advised to re-book the hall within two months. The Opposite Party reliably came to understand that after booking on 02.04.2014 and within two days cancelling the same, but conducting his son’s marriage at another hall, has caused loss to this Opposite Party only. The hall rent charges paid by way of cheque by the Complainant, was returned as dishonoured due to the reason of payment stopped by the drawer on 04.04.2014 itself. Hence, a letter was issued only on 10.04.2014 requesting the Complainant to pay the said cheque amount towards the hall charges which was dishonoured. Whereas on 21.08.201 the Complainant  had issued a letter without adverting to the dishonour or return of the cheque paid towards the hall charges, but asking for a sum of Rs.80,000/-  allegedly paid in cash, for which on 26.08.2014, the Opposite Party had issued a reply stating that the said cheque amount was paid only towards hall charges, but was willfully stopped the payment by the Complainant and the same was returned as dishonoured and hence, no hall charges was paid and no payment was made towards the marriage for booking the hall and hence the booking was cancelled. Rs.80,000/- was paid for a service and denies that opted out for the same and when the same was neither received nor acknowledged the refund of the amount will not at all arise. It is specifically denied that this Opposite Party insisting on cash payment and not issuing receipts for  the entire amount received with  ulterior motive and once again denies that all amounts to unfair trade practice, Deficiency in Service. The Complainant had paid any amount in cash, especially Rs.80,000/- and denies that he is entitled to refund of entire amount and   further denies that for the said amount not received any service and amount received for a particular service cannot be forfeited. The Complainant is not a Consumer within the defined meaning under section 2  (1) (d) (ii) of the Consumer Protection Act as he did not paid any amount, he has not opted for any service from this Opposite Party. As the Opposite Party has not committed any Deficiency in Service and unfair trade practice the Complaint is liable to be dismissed.

3. POINTS FOR CONSIDERATION:

          1.Whether there is deficiency in service on the part of the opposite party?

          2.Whether the complainant is entitled to any relief? If so to what relief?

 

 

4. POINT:1

          It is an admitted  fact that the Complainant booked  a Krishna  Shree Mahal on 02.04.2014 with the Opposite Party for the marriage of his son A.Arunkumar for Celebrating the Reception and Marriage on 13.08.2014 and 31.08.2014 and at the time he issued a cheque dated 02.0.2014 for a sum of Rs.1,3,832 drawn on Indian Overseas Bank and to book the mandapam the Complainant gave Ex.A1  application and for receipt of the cheque the Opposite Party issued Ex.A3 bill and also Ex.A4 receipt and further at the time the Complainant and the Opposite Party authorized signatory  entered Ex.A2 contract and after two days on 04.04.2014 the Complainant approached the Opposite Party by handling  Ex.A5 letter dated 04.04.201 requesting to cancel the booking and return the cheque and also cash of Rs.80,000/- and on the same day the Opposite Party gave Ex.A6 letter re-book the hall for his use within two  months from the date of cancellation of booking.

          5. The Opposite Party did not return the cheque. Hence the Complainant issued to his bankers Stop Payment Instruction and accordingly the payment of  the cheque was stopped and returned. After return of cheque the Opposite Party also cancelled the booking. However the Complainant insisted the Opposite Party   to return the  sum of Rs.80,000/- which was paid by him on the same day by way of cash for  Pandal and Flower Decoration and for which no  receipt was issued as per  the practice of the Opposite Party. The Opposite Party denies the payment of cash of Rs.80,000/- in his written version first time. However the Opposite Party has not filed proof affidavit in spite of sufficient opportunity given to him and hence for non filing of proof affidavit he was set ex-parte. Therefore there is no contra evidence on behalf of the Opposite Party and the evidence of the Complainant has to be accepted.

          6. The Complainant demanded the Opposite Party to return the cheque and also Rs.80,000/- paid by cash in Ex.A5 letter. The Opposite Party issued Ex.A6 reply for  Ex.A5 letter and in Ex.A6 nowhere he had denied in the said reply that the cash was not paid to him at the time of booking. Ex.A2 is the contract between the Complainant and the Opposite Party at the time of booking the mandapam. At page 6 in Ex.A2, it is clearly stated that the applicant should choose only from the listed contracts mentioned below for Flower Decoration and serial light and further in that page the Opposite Party also written as “MUST”. Therefore as per the above said condition the Opposite Party insisted the Complainant to pay Rs.80,000/-for Flower Decoration and Pandal is accepted. The Complainant also sent Ex.A8 letter dated 21.08.2014 to pay back the amount of Rs.80,000/- paid by cash  to him and for the said letter the Opposite Party gave Ex.A9 reply that the cheque was returned and the same was informed to the Opposite Party from his bankers and therefore payment does not arise. When the Complainant specifically asked to return the money which was paid in cash a sum of Rs.80,000/-, the Opposite Party should have referred the same in his reply Ex.A9. Failure to mention or denial about the payment of cash of Rs.80,000/-  by  the Opposite Party only leads  to an irresistible  conclusion that  the Opposite Party received the said amount Rs. 80,000/- from the Complainant is accepted.  The Opposite Party first time in the written version denied that the sum of Rs.80,000/-  towards cost of pandal and Flower Decoration was not paid to him. If the statement made in the written version is correct, the Opposite Party ought to have taken the same stand in the earlier correspondences    Ex.A4, Ex.A9 reply after the booking on 02.04.2014. Therefore the stand taken in the Written version is only an afterthought. Further Ex.A10 proves that on the date of booking another Marriage was also performed. Therefore there was no loss to the Opposite Party. Therefore as discussed above the Complainant proved that on the date of booking of Mandapam as insisted by the Opposite Party the Complainant paid sum of Rs.80,000/- towards Flower Decoration and Pandal and the said amount was not refunded to the Complainant on demand made  by him, we hold that the Opposite Party committed Deficiency in Service.

7. POINT:2

          Since the Opposite Party committed Deficiency in Service, the Complainant suffered with mental agony is accepted. Therefore for such mental agony the Complainant is entitled for compensation and also for refund of sum of Rs.80,000/- which was paid by the Complainant towards Flower Decoration and Pandal and with cost  of the Complaint.

          In the Complaint is partly allowed. The Opposite Party is ordered to refund a sum of Rs.80,000/- (Rupees eighty thousand only) to the Complainant and also to pay a sum of Rs.25,000/-(Rupees twenty thousand only) towards compensation for mental agony, besides a sum of Rs.5,000/-(Rupees five thousand only) towards litigation expenses. The above amount shall be paid to the complainant within 6 weeks from the date of receipt of the copy of this order failing which the above said amount shall carry 9% interest till the date of payment.

 

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 27^th   day of April 2016.

 

MEMBER – II                                                               PRESIDENT

 

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 02.04.2014                          Copy of Application

Ex.A2 dated 02.04.2014                Contract between the Complainant and

                                                       Opposite Party  

Ex.A3 dated 02.04.2014                          Bill

Ex.A4 dated 02.04.2014                Receipt

 

Ex.A5 dated 04.04.2014                Letter of the Complainant

 

Ex.A6 dated 04.04.2014                          Reply of Opposite Party

 

Ex.A7 dated 10.04.2014                          Letter of Opposite Party

 

Ex.A8 dated 21.08.2014                          Notice of Complainant with

                                                       Acknowledgements

 

Ex.A9 dated 04.04.2014                          Reply of Opposite Party

 

Ex.A10 dated 31.08.2014                         Photographs

                            

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTY:                                     ……. NIL……

MEMBER – II                                                               PRESIDENT