DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM

       Dated this the 15^th day of December, 2023.                                                                                             

                           Filed on: 10/08/2022

PRESENT

Shri.D.B.Binu                                                                          President

Shri.V.Ramachandran                                                              Member Smt.Sreevidhia.T.N                                                              Member

C.C. No. 374/2022

COMPLAINANT

Franklin Chellath , S/o. A.A. Xavier,  Advocate, Chellath Anjiparambil, Gandhi Nagar, Kaloor.P.O., Cochin-17.

OPPOSITE PARTY

Manager, representing, KILIYANKAL , HOLIDAYS, Opp: Co-operative Hospital, Kakkanad.P.O., Kochi-30.

F I N A L   O R D E R

D.B. Binu, President:

1. A brief statement of facts of this complaint is as stated below:

This complaint was filed under Section 35 of the Consumer Protection Act, 2019. The complainant, who is an Advocate, hired a luxury bus service from the opposite party for a trip with family members to St. Thomas Church at Arunootimangalam in Peruva. An advance payment of Rs. 5,000/- was made for this service. The opposite party is a business providing luxury buses and other vehicles for hire.

After making the advance payment and agreeing to the trip, unforeseen circumstances led to the cancellation of the planned journey. The complainant informed the opposite party in advance and requested a refund of the advance payment. Despite sending a legal notice and acknowledgment of receipt, the opposite party failed to refund the Rs. 5,000/-. The complainant alleges that this failure to refund the advance amount constitutes an unfair business practice and has caused damages.

The complainant requests the commission to order the opposite party to reimburse an advance of Rs. 5,000 with interest, compensate Rs. 3,000 in damages, and litigation expenses and costs.

2) Notice

The Commission sent notice to the opposite party, which was acknowledged by them, but they did not file their version. Therefore, they have been set as ex-parte.

3). Evidence

          The complainant submitted an ex-parte proof affidavit along with three documents, which were marked as Exhibits A-1 to A-3.

Exhibit A-1: Original receipt No.043 handed over by the opposite party on 10-04-2022 to the complainant.

Exhibit A-2: True copy of Legal notice dated 01-06-2022 sent to the opposite party.

Exhibit A-3: Original acknowledgement of legal notice on 4 - 6 – 2022.

4) The main points to be analysed in this case are as follows:

i)       Whether the complaint maintainable or not?

ii)      Whether there is any deficiency in service or unfair trade practice from the side of the opposite party to the complainant?

iii)     If so, whether the complainant is entitled to get any relief from the side of the opposite party?

iv)     Costs of the proceedings if any?

5)      The issues mentioned above are considered together and are        answered as follows:

            In the present case in hand, as per Section 2(7) of the Consumer Protection Act, 2019, a consumer is a person who buys any goods or hires or avails of any services for a consideration that has been paid or promised or partly paid and partly promised, or under any system of deferred payment.  Original receipt No.043 handed over by the opposite party on 10-04-2022 to the complainant (Exhibit A-1). Hence, the complainants are consumers as defined under the Consumer Protection Act, 2019 (Point No. i) goes against the opposite party.

The complainants have filed a case seeking compensation from the opposite party for deficiency in service, unfair trade practices. These allegations arise from the opposite parties' failure to fulfil their obligations, resulting in the stated grievances.

We have heard from the complainant that he hired a luxury bus from the opposite party for a family trip from Gandhi Nagar to St. Thomas Church on 11.6.2022, paying an advance of Rs. 5,000 (Exhibit A-1).

Due to unforeseen circumstances, the trip was cancelled, and the cancellation was communicated both telephonically and via email on 25.5.2022. The opposite party did not respond to requests for a refund, leading to the issuance of a legal notice (Exhibit A-2) by the complainant, which was acknowledged (Exhibit A-3) but remained unanswered. Alleging a deficiency in service, the complainant has filed a complaint, seeking a refund of Rs. 5,000 with interest, compensation of Rs. 3,000 for financial loss and mental agony, and litigation expenses. The commission is requested to grant these reliefs.

The evidence presented included an ex-parte proof affidavit filed by the complainant, and it was unchallenged by the opposite parties. Therefore, the complainant's claims were considered credible and supported by the evidence. Therefore, the complainant requests the commission to grant the relief sought, including compensation for mental agony and unfair trade practices.

The opposite parties’ conscious failure to file their written versions in spite of having received the Commission’s notice to that effect amounts to an admission of the allegations levelled against them.  Here, the case of the complainant stands unchallenged by the opposite party.  We have no reason to disbelieve the words of the complainant as against the opposite party. The Hon’ble National Commission held a similar stance in its order dated 2017 (4) CPR page 590 (NC).

We have thoroughly examined the original receipt, No. 043, which was provided by the opposite party to the complainant on April 10, 2022 (Exhibit A-1). Within this receipt/agreement, there are 15 conditions outlined by the opposite party for the complainant's reference. We would like to highlight the second condition from the agreement, which reads as follows:

'In the event of program cancellation for any reason, the advance payment will not be refunded.'

It is crucial to note that the complainant did not affix their signature to this agreement. As a result, it is not legally binding to the complainant.

The core legal concept here is that if the complainant did not sign the agreement, the terms and conditions within it may not be binding on them. This relates to the principle that parties must consent to the terms of a contract for it to be enforceable. The statement indirectly alludes to the concept of unilateral contracts, where one party makes an offer, and the other party accepts it through performance. In this case, the absence of the complainant's signature raises questions about the validity of their acceptance.

The complainant, an Advocate, entered into an agreement with the opposite party, a luxury bus service provider, for a family trip to St. Thomas Church at Arunootimangalam in Peruva. An advance payment of Rs. 5,000/- was made, but due to unforeseen circumstances, the trip was cancelled. Despite the complainant's advance notice and subsequent legal notice, the opposite party failed to refund the advance payment, leading to this complaint. The complainant seeks a refund of Rs. 5,000 with interest, compensation of Rs. 3,000 for damages, and Rs. 1,500 for litigation expenses.

Analysis and Legal Reasoning:

1. Complaint Maintainability: As per Section 2(7) of the Consumer Protection Act, 2019, the complainants are consumers as they hired services for a consideration. Hence, the complaint is maintainable.
2. Deficiency in Service and Unfair Trade Practice: The complainant's main contention is that the opposite party's failure to refund the advance payment constitutes deficiency in service and unfair trade practice. The evidence presented, including the legal notice and acknowledgment, supports this claim. The opposite party consciously chose not to file a written response, which amounts to an admission of the allegations.
3. Entitlement to Relief: The complainant seeks a refund of Rs. 5,000 with interest, compensation of Rs. 3,000 for financial loss and mental agony, and litigation expenses. The evidence, including the original receipt, conditions therein, and the absence of the complainant's signature, is critical in determining the complainant's entitlement.

Notably, the second condition in the agreement stated, "In the event of program cancellation for any reason, the advance payment will not be refunded." However, since the complainant did not sign the agreement, its terms are not legally binding on them. This is consistent with the principle that parties must consent to the terms of a contract for it to be enforceable.

Additionally, the condition mentioned could be interpreted as an unfair trade practice, as it unilaterally absolves the opposite party from refunding the advance payment even in cases of genuine cancellations. The Hon’ble National Commission held a similar stance in its order dated 2017 (4) CPR page 590 (NC), which underscores the importance of fair and transparent business practices.

The evidence, including the original receipt and the absence of the complainant's signature on the agreement, suggests that the terms and conditions regarding the non-refundability of the advance payment are not legally binding on the complainant. Furthermore, the opposite party's failure to file a written response despite receiving notice strengthens the complainant's case.

Liability of the Opposite Party:

In light of the above analysis, it is evident that the opposite party failed to provide the services as agreed and engaged in an unfair trade practice by refusing to refund the advance payment. The complainant is entitled to relief in the form of a refund of Rs. 5,000 with interest, compensation and litigation expenses.

          We find that issues (i) to (iv) also favour the complainant, as they are a result of the serious deficiency in service on the part of the Opposite Party. Naturally, the complainant has experienced a significant amount of inconvenience, mental distress, hardships, financial losses, etc., due to the deficiency of service and unfair trade practices by the Opposite Party.

In view of the above facts and circumstances of the case, we are of the opinion that the Opposite Party is liable to compensate the complainant.

Hence the prayer is partly allowed as follows:

1. The opposite party shall refund the advance payment of ₹ 5,000/- (Five thousand rupees only) to the complainant as per (Exhibit A-1) for the deficiency in service and unfair trade practices caused by the Opposite Party.
2. The opposite party shall Pay ₹3,000/- (Three thousand rupees only) to the complainant as compensation towards financial loss and mental agony suffered due to the indifferent attitude of the opposite party.
3. The opposite parties shall also pay the complainant the sum of ₹5,000/- (Five Thousand Only) towards the cost of the proceedings.

The opposite parties are jointly and severally liable for the above-mentioned directions. They must comply within 30 days from the date of receiving a copy of this order. If they fail to do so, the amounts ordered in points (i) and (ii) above will attract interest at a rate of 9% per annum from the date of the complaint (10.08.2022) until the date of realization.       

Pronounced in the Open Commission on this the 15^th day of December, 2023.

Sd/-                     

D.B.Binu, President

Sd/-  

V. Ramachandran, Member

Sd/-

Sreevidhia.T.N, Member

Forwarded/By Order

Assistant Registrar  

Appendix

Complainant’s Evidence

Exhibit A-1: Original receipt No.043 handed over by the opposite party on

10-04-2022 to the complainant.

Exhibit A-2: True copy of Legal notice dated 01-06-2022 sent to the opposite party.

Opposite party’s evidence

Nil

kp/

Despatch date:

By hand:                                                                        

by post:           

                                                                             C.C. No. 374/2022

                                                                        Order date:          15/12/2023