DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE

PRESENT: Sri. P.C. PAULACHEN, M.Com, LLB    : PRESIDENT

Smt. PRIYA.S, BAL, LLB, MBA (HRM) :  MEMBER

Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER

Thursday the 23^rd day of November 2023

CC.172/2020

Complainant

T. P. Bichu Koya,

                        S/o Mammu Koya,

                       Farah (HO),

                      Meenchanda,

                      P.O. Vattakkinar,

                     Calicut - 673018

                    (By Adv. Sri.M. Shanavas)

Opposite Parties

1. Malabar and Pioneer Hosiery Pvt. Ltd,

     Registered Office 16/37,

      Kallai Road,

      Calicut - 673002

2. The Manager,

     Sumangali Kalyana Mandapam,

     Panniyankara P.O,

     Kozhikode - 673003

ORDER

By Sri.V.BALAKRISHNAN  - MEMBER

            This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.

2. The case of the complainant, in brief, is as follows:

The complainant booked the Kalyana Mandapam owned by the opposite party on 22/10/2018 for the marriage of his nephew that was to be held on 13/04/2019 Rs. 1,000/- was paid as caution deposit on the day of booking and there after an amount of Rs. 53,100/- was also paid as advance. The total rent of the hall at that time was Rs. 1,13,000/-. Later he canceled the hall on 02/02/2019 since the marriage fixed was not materialized due to some personal reasons. Even though the cancellation of the hall was done much earlier than the proposed date of marriage, the caution deposit of Rs. 1,000/- and the advance rent of Rs. 53,100/- was not paid back by the opposite parties. The denial of re-payment of advance rent of Rs. 53,100/- is improper and unjustifiable and amounts to unfair trade practice. The caution deposit of Rs. 1,000/- was not repaid to the complainant. Even though the lawyer notice was sent, there was no favourable reply. The act on the part of the opposite parties amount to unfair trade practice and deficiency in service. They cannot go away from the usual trade practice and normal way of conducting the business. Hence the complainant has approached before this Commission to issue the following directions to the opposite parties.

              1.  To pay an amount of Rs. 53,100/- to the complaint with interest @ 12% per annum from 22/02/2019 till the realisation of the                      amount.

              2.  To pay compensation of Rs. 1,00,000/- towards the mental agony and suffering caused to the complainant.

               3. To pay an amount of Rs. 5,000/- as cost of the conducting the case.

3. The opposite party resisted the complaint by filing version. Booking of the community hall Sumangali Kalyana Mandapam on 22/10/2018 to conduct wedding on 13/04/2019 and 14/04/2019 is admitted by the opposite parties in the version. Payment of Rs. 54,100/- is also admitted. The cancellation of the marriage was informed to the opposite party on 02/02/2019 and the complainant requested for refund of the amount. As per clause 8 of the terms and conditions which had been agreed and signed by the complainant, in the event of cancellation of booking, the amount paid as advance shall be forfeited and there is no right to get it refunded. Even then the company follows a standard procedure of refunding the advance less GST, if another booking is received after cancellation. The receipt of the lawyer notice is also admitted. The complainant was informed on 2^nd February 2019 that he could inform a fresh date when the function could be held and accordingly he promised to do so within one month. It was also informed to him that if there is another booking for 13^th and 14^th of April 2019 the collected amount would be refunded. There was no booking on that specific day and there was no refund. With above contentions, the opposite parties pray for dismissal of the complainant.
4. The points that arise for determination in this complaint are;

            1) Whether there was any deficiency of service or unfair trade practice on the part of the opposite parties, as alleged?

            2) Reliefs and costs.

5. Evidence of the Power of Attorney Holder of the complainant was recorded as PW1 and Exts. A1 to A3 were marked on the side of the complainant. RW1, the second opposite party was examined and Ext. B1 to B6 were marked on the side of the opposite parties.
6. Heard both sides.      
7. Point No.1: The complainant has approached this Commission seeking return of advance amount of Rs. 53.100/- paid to the opposite parties in connection with the booking of the community hall along with interest at rate of 12% per annum from 22/02/2019 till realization of amount. Compensation to the tune of Rs. 1,00,000/- for the hardship and metal agony caused on account of deficiency of service and unfair trade practice on the part of opposite parties is also demanded in addition of Rs.5,000/- as cost of conducting above case.
8. PW1 is the power of attorney holder of complainant. He filed proof affidavit and deposed in terms of the averments in the complainant. Ext. A1 is the deposit receipt for Rs. 1,000/- issued to complainant by second opposite party, Ext. A2 is the deposit receipt for Rs. 53,100/- issued to the complainant by second opposite party and Ext. A3 is the copy of the lawyer notice issued to the second opposite party. The opposite party was examined that as RW1. RW1 has filed proof affidavit in support of the contentions in the version. Ext. B1 is the copy of terms and conditions, Ext. B2 is the copy of letter given by the complainant, Ext. B3 is the copy of booking register page 79, Ext. B4 is the copy of letter of authorization, Ext. B5 is the copy of lawyer notice received by second opposite party and Ext. B6 is the copy of the lawyer notice reply.
9. The main argument of complainant is that there was gross deficiency of service and unfair trade practice on the part of opposite parties in not re-funding the advance amount received towards booking charges of community hall even though the fact that the cancellation was intimated well in advance.
10. It is an undisputed fact that the complainant had booked the Kalyana Mandapam owned by first opposite party on 22/10/2018 for conducting the marriage ceremony on 13/04/2019. A total amount of Rs. 54,300/- was paid to opposite party on the booking date. The marriage was cancelled due to some reasons and complainant had given the cancellation request on 02/02/2019. At the time of booking the complainant was served with the terms and conditions which was duly signed by him. (Ext. B1). The 8^th condition of Ext. B1 clearly mention that in case of cancellation of booking the amount paid as advance would not be returned. From the B3 document there is no evidence to show that there was a fresh booking on 13/04/2019 afternoon and 14/04/2019 forenoon in place of cancelled marriage. There is no evidence produced by the complainant that the hall was engaged for other function on the specific date mentioned.
11. The grievance of complaint is that the opposite party collected big amount while booking the Kalyana Mandapam, and refused to refund the amount subsequently on cancellation. In the terms and conditions of Ext. B1, there is specific stipulation that under no circumstances the amount paid shall be refunded in the event of cancellation. It is an admitted fact that Ext. B1 is agreed and signed by the complainant and is binding on him. The decision reported in (3) 1994 CPJ 54 (NC) Mukta Kalyana Mandapam Vs N. RadhaKrishnan and another is referred here. In that case the Honourable National Commission held that the dispute as to whether the refund should be allowed or not does not fall within the scope of the Consumer Protection Act, so long as no deficiency in service is alleged or made out. It was also observed by the commission that the complainant might urge his claim before the Civil Court. It was held that as long as there was no breach of the terms and conditions of agreement from the side of opposite party, there was no deficiency of service. In the case in hand, there is no negligence on the part of opposite parties to make available the hall on the particular day. But, it is a clear case of cancellation by none other than the complainant himself.  So the action of opposite parties in the present case cannot be attributed to any deficiency of service. The above decision of the Hon’ble National Commission was relied on by the Kerala State Consumer Disputes Redressal Commission in (1996(1) CPR 489) Manager, Aswathy Kalyana Mandapam Vs Sukumaran Nair. It was held in paragraph 10 as follows:

“Learned Counsel ultimately contended this would came within the meaning of unfair trade practice contained in section 2(1)(r). In the first place there is no specific averment of any unfair trade practice in the complaint. Learned Counsel submitted that the averment that the amount was not refunded itself would amount to unfair trade practice. In order to appreciate this contention it would be profitable to consider the definition unfair trade practice contained in Section 2(1)(r). “Unfair trade practice” means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair methods or unfair or deceptive practice including any of the following practices, namely:- (Practices enumerated omitted). Learned Counsel has no case that the failure to refund the amount on cancellation of the booking would fall in any of the clause enumerated therein as cases of unfair trade practice. Then the only question is whether it falls within the purview of the main limb of the section which states fair trade practice means a trade practice which, for the purpose promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice. It cannot be said that the refusal of refund of the amount is a method adopted for promotion of any service or promotion of sale, use or supply of any goods. If the matter does not fall within the meaning of the main limb of definition or the items enumerated as being included as unfair trade practices it is not possible to hold that any question of unfair trade practice is involved in the matter.”

The complainant herein has failed to establish that the opposite party has adopted any unfair trade practice. In view of the above dictum, no deficiency of service or unfair trade practice can be attributed against the opposite parties.

12. In the affidavit filed by the complainant it is admitted that the total rent of the hall was Rs. 1,13,000/- and the advance paid was Rs. 54,100 including caution deposit. If the hall was let out for any other function the opposite parties would have received Rs. 1,13,000/-. In the present case the hall was kept unused on the specific day of booking.
13.  The terms and conditions of allotment of Kalyana Mandapam contained in Ext. B1 are binding on the complainant. There was a delay of more than 3 months from the date of booking to the date of information of the cancellation. The belated cancellation had also resulted in loss and injury to opposite party. Failure to comply with the terms and conditions of booking necessarily attracts the consequences of forfeiture of advance booking amount to mitigate the consequent loss suffered by the opposite parties. The opposite parties are entitled to forfeit the advance booking amount. Consequently the complainant is not entitled to seek refund of same.
14. Point No. 2: In view of the findings on the above point, the relief sought for is not allowable and complaint is only to be dismissed.

In the result, the complaint is dismissed.However, no order as to costs.

Pronounced in open Commission on this, the 23^st day of November, 2023.

Date of Filing: 27.08.2020

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                                 PRESIDENT                                           MEMBER                                        MEMBER

APPENDIX

Exhibits for the Complainant :

Ext.A1 – Deposit receipt for Rs. 1,000/- issued to complainant by second opposite party.

Ext.A2 – Deposit receipt for Rs. 53,100/- issued to the complainant by second opposite party .

Ext.A3 – Copy of the lawyer notice issued to the second opposite party.

Exhibits for the Opposite Party

Ext.B1 -  Copy of terms and conditions.

Ext.B2 - Copy of letter given by the complainant.

Ext.B3 - Copy of booking register page 79.

Ext.B4 - Copy of letter of authorization.

Ext.B5 -  Copy of lawyer notice received by second opposite party.

Ext.B6 -  Copy of the lawyer notice reply.

Witnesses for the Complainant

PW1 – Azees. M.V

Witnesses for the opposite parties 

RW1 - C. Amarnadh

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True Copy,

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