Date of filing: 18/04/2019
Date of Judgment: 21/06/2023
Mrs. Sashi Kala Basu, Hon’ble President.
This complaint is filed by Smt. Jaya Singh under section 12 of the Consumer Protection Act, 1986, against opposite party (referred as OP hereinafter) namely Sri Pallav Das Gupta alleging deficiency in service and unfair trade practice on the part of OP.
Case of the complainant in short is that as per agreement between the parties on 20.08.2017, OP agreed to arrange dinner @ Rs. 450/- per plate for 300 persons on the occasion of the marriage ceremony of the complainant’s sister on 24.11.2017. Complainant paid a total sum of Rs. 1,10,000/- as advance to the OP. But for some differences with the family of the bridegroom, marriage was cancelled on 22.11.2017 which was immediately informed to the OP over phone and asked for refund of advance paid. OP initially agreed to refund the money but neglected to pay it. So complainant sent notices to OP through her Ld. Advocate and in response OP replied to the same but refused to refund the sum paid by the complainant. Thus the present complaint is filed by the complainant praying for directing the OP to return the sum of Rs. 1,10,000/-, to pay Rs. 25,000/- towards mental agony and to pay Rs. 15,000/- as litigation cost.
OP has contested the case by filing written version disputing and denying the allegations contending specifically that OP being a caterer made all arrangement to accomplish the dinner party and made payment of the advance money to the different persons / shop keeper and suppliers for making arrangement and availability of goods required for catering. It is further contended that on 22.11.2017 while OP contacted the complainant over phone for getting key of the main entrance door of the ceremonial house as he would reach in the early morning on 24.11.2017 in the venue with his goods and articles, he was asked by the complainant to postpone the dinner party for the time being. He was not informed that the marriage was cancelled. OP by than had already incurred substantial amount on different hands and accounts to fulfil his contractual obligations. It is the further contention of OP that complainant is not a consumer under Consumer Protection Act and thus he has prayed for dismissal of the case.
During the course of evidence both parties have filed their respective examination in chief on affidavit followed by filing of questionnaire and reply thereto. Ultimately both parties have advanced their arguments. Brief notes of argument is also filed by the complainant.
So the following points require to be determined:-
- Whether the complainant is a ‘Consumer’ under the Consumer Protection Act?
- Whether there has been deficiency in service or unfair trade practice on the part of OP?
- Whether the complainant is entitled to the reliefs as prayed for?
DECISION WITH REASONS
All the three points are taken up together for discussions for the sake of convenience and in order to avoid repetition.
OP has specifically contended that the complainant is not a consumer as the ‘service’ for which OP was hired by the complainant was ultimately not availed and as such there could not be any deficiency in service.
It may be pertinent to point out that OP on his appearance had also filed a petition challenging maintainability of the complaint on the same ground that there could not be any deficiency in service. Said petition was disposed of vide order dated 23.12.2019 whereby petition filed by the OP was considered and rejected with an observation that dispute is a consumer dispute as the OP deviated from the agreement entered into between the parties. However it was also observed that the petition was filed at a stage when the parties did not adduce their respective evidences. So the matter was left opened to some extent to consider it after the evidence is adduced by the parties.
In this case it is an admitted fact that the complainant did hire the service of the OP to arrange dinner for 300 people on the occasion of her sister’s marriage. This is also an admitted fact that the document bearing certain terms and conditions was issued by the OP on receiving advance of Rs. 10,000/- on 20.08.2017. As per the said document or the agreement, OP agreed to arrange dinner for 300 people approximately at the rate of Rs. 450/- per plate. OP has admitted to have received further sum of Rs. 1,00,000/- and thus admittedly Rs. 1,10,000/- in total has been paid by the complainant to the OP.
There is also no denial that intimation regarding postponement or cancellation of the marriage was done on 22.11.2017 by the complainant. So it is apparent that the dinner was never arranged and the service hired was ultimately not availed. In such a situation question does arise that when the dinner party did not happen than how there could be any deficiency in service?
In this regard, it may mentioned that the same situation was in the case of Ram Mangal Sanskrutik Bhavan Vs Anand Annasaheb Koli, wherein Hon’ble SCDRC, Maharashtra, Mumbai, circuit bench at Kolhapur, finding the complainant therein as consumer directed the Appellant / OP therein to refund 85% of the amount to the complainant retaining thereby only 15% of the amount received by it.
In the said case law cancellation of marriage was intimated more than two months before the date of marriage. Marriage was fixed on 20.01.2016 and cancellation was done on 01.11.2015. It has been observed by the Hon’ble State Commission that it was possible for the OP in that case to advertise the said date for booking by others but the same was not done by the OP.
But in the case in hand before us, cancellation was intimated only on 22.11.2017 hardly two days before the marriage date i.e. 24.11.2017. The contention of the OP that he could not undertake any other marriage party on that day as he had already undertaken arrangement of the dinner party of complainant’s sister’s marriage, cannot be discarded. OP’s further contention that to accomplish the dinner party, he made payment of advance money to the different shop keeper or supplier to make all the arrangements and availability of goods for catering to fulfil his contractual obligation, also cannot be disbelieved. However there cannot be any denial that those goods and articles could well be utilised by the OP for some other party as being a caterer, OP is always engaged in making arrangements for food supply and so could use it in some other event. It is not the case of OP that those goods and articles were wasted or destroyed. So OP cannot retain the entire amount paid by the complainant and thus complainant is entitled to refund of 50% of the sum paid by her. But we find no justification to allow any compensation as prayed.
It may be pertinent to mention, that the case law cited by the OP in civil appeal No. 5729 of 2009 (SGA India Ltd. Vs Dolphin International Ltd.), is not at all applicable in the given facts and situation of this case. Regarding settled principles of law that a party seeking the relief has to establish her / his case, it is already discussed above that complainant has been able to establish her case.
Hence,
ORDERED
CC/229/2019 is allowed on contest. Opposite party is directed to pay Rs. 55,000/- to the complainant within 45 days from the date of this order. OP is further directed to pay litigation cost of Rs. 8,000/- to the complainant within the aforesaid period of 45 days. In default of payment, entire amount shall carry interest @ 7% p.a. till realisation.
