Date of Filing      : 04.09.2017

                                                                                                                     Date of Disposal:  31.01.2019

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

THIRUVALLUR-1.

THIRU.  J. JUSTIN DAVID, M.A., M.L.                                         .…. PRESIDENT

TMT.      K. PRAMEELA, M.Com.                                                  ….. MEMBER-I

THIRU.  D.BABU VARADHARAJAN, B.Sc., B.L.                          ..… MEMBER-2

CC.No.38/2017

THUSDAY THE 31^th  DAY OF JANUARY 2019

A.S.Rajasekaran,

S/o.N.Shankar Reddy,

No.42A, Kavarai Street,

 Athipattu,

Chennai - 600 058.                                              ……………. Complainant.

                                               //Vs//

The Managing Director,

M Weddings and Conventions,

(A unit of M/s.Sri Mak and Co.)

S.No.98/99, LBR Gardens,

Vanagaram - Ambattur Road,

Adyalampattu,

Chennai - 600 095.                                                  …… Opposite party.

This complaint is coming upon before us finally on 18.01.2019 in the presence of M/s.V.Balaji, Counsel for the complainant, Mr.K.Easu, Counsel for the opposite party and having perused the document and evidences and written argument of the both sides this Forum delivered the following. 

ORDER

PRONOUNCED BY THIRU.J.JUSTIN DAVID, PRESIDENT.

This complaint is filed by the complainant Under Section 12 of Consumer Protection Act-1986 against the opposite party for seeking direction to refund a sum of Rs.6,40,000/- paid towards booking amount and to pay a sum of Rs.5,00,000/- towards compensation for causing mental agony due to the deficiency of service on the part of the opposite party and to pay a sum of Rs.50,000/- towards cost of the litigation to the complainant.

2. The brief averment of the complaint is as follows:-

The complainant had booked the Marriage Hall V-Elite at M - weddings and Conventions Centre run by the opposite party on 01.11.2016 for performing her daughter’s marriage originally scheduled on 11.06.2017 and the complainant has paid a  sum of Rs.4,60,000/- through a cheque bearing No.005999, drawn on Bank of India, Chennai and Rs.1,80,000/- by cash (In total rent of Rs.6,40,000/-) for which the opposite party has given receipt only for the amount received through cheque i.e for Rs.4,60,000/- and has not issued any receipt for the balance amount of Rs.1,80,000/-. The opposite party’s Manager had acknowledged the receipt of the entire amount both by cheque and cash by making an endorsement in Form-B or application for Hall Booking.  The complainant subsequently requested for change in Hall-Booking date from 10^th -11^th June 2017 to 16^th – 17^th May 2017 through a letter dated 01.02.2017 as the marriage of the complainant’s daughter owing to Astrological reasons but request of the complainant was not entertained by the opposite party.  Since there was no response from the opposite party the complainant proceeded further and booked the Marriage Hall at Shrivaru Venkatachalapathy Palace for the marriage on 17.05.2017.  Further the complainant was assured by the Manager of the opposite party that they would refund the rent paid towards Hall Booking at M, even if the complainant books the hall at SVP as both the Marriage Halls are run by the same management M/s SRI MAK & Company. Therefore the complainant has approached the Manager of the opposite party several times in person and through phone requesting refund of the amount but, the opposite party did not repay or refund the amount of Rs.6,40,000/-. Therefore the complainant sent a notice dated 06.06.2017 through his advocate for which reply notice dated 23.06.2017 was received by the complainant’s advocate.   The condition imposed in Form - B in case of cancellation the entire amount will not be refunded is heavily loaded in favour of the opposite party and against the complainant. Therefore such agreement clearly amounts to unfair trade practice as held in 2009 (1) CPJ 136 NC and State Commission also held in identical circumstances as reported in 2005 (3) CPJ 326 TN that such contract amounts to unfair trade practice.  Therefore the complainant has incurred a loss of Rs.6,40,000/- due to unfair trade practice and deficiency in service on the part of the opposite part and the complainant had suffered mental agony due to non-accommodation of genuine request for change in date of Hall Booking by the opposite party.  Thus the complainant is entitled for compensation for deficiency in service on the part of the opposite party.

3. The contention of written version of the opposite party is briefly as follows:-

The opposite party contended that as per the agreement between the parties have agreed that all disputes between them shall be referred to arbitration.  As such the present complaint is not maintainable. The opposite party’s wedding hall namely MWedding and Conventions is one of the largest wedding hall in Tamil Nadu.  The opposite party has been rendering its service to the customer with utmost care without any demur.  The complainant approached the opposite party to book the marriage hall namely V-Elite on 01.11.2016 for wedding function scheduled to be held from 10.06.2017 to 11.06.2017.  The complainant had paid a sum of Rs.4,60,000/- towards hall charges as advance.  The complainant has not paid Rs.6,40,000/- as alleged by the complainant.  The complainant had approached the opposite party on 01.02.2017 and sought to pre-pone the marriage and wanted to conduct the same at a different venue namely in Shrivaru Venkatachalapathy Palace on the evening of 16.05.2017 and on the forenoon of 17.05.2017.  The Complainant was also informed that as per the cancellation policy provided in the terms and conditions that was agreed upon at the time of booking the complainant would not be eligible for a refund and that the complainant request to adjust the amount paid for availing the venue V-Elitefor the venue Shrivaru VEnkatachalpathy Palace would not be possible and accordingly the complainant had paid for the venue Shirivaru Venkatachalapathy Palace.  Thus the complainant was well aware that the amount paid towards the venue V-Elite would be non-refundable as the cancellation was within 180 days prior to the date availed. Further the opposite party never promised the complainant that in the event of cancellation of the venue V-Elite within 180 days prior to the date of booking the complainant would be entitled for refund, the complainant had booked the venue V-Elite for the function to be held on 10.06.2017.  The opposite party was unable to allot the said hall for any other person who had enquired for the same date between the periods from 01.11.2016 to 01.02.2017.  Subsequently the opposite party had not received any enquires or request for booking the venue V-Elite on 10.06.2017 thus the hall remained vacant on the said date.  Therefore as alleged in the complaint by the complainant untold pain and mental agony if any suffer by the complainant was due to his own decision and the opposite party is no way responsible for the same. Further the complainant had accepted the contractual conditions, which contains the cancellation policy of the opposite party and having agreed to the same the complainant is not entitled to state that opposite party has committed deficiency in service.

4. In order to prove the case, on the side of the complainant, the proof affidavit submitted as his evidence and Ex.A1to Ex.A6 were marked.  While so, on the side of the opposite party, the proof affidavit submitted but no document filed on their side. Further written argument filed and oral argument adduced on both sides.

5. At this juncture, the point for consideration before this Forum is:-

(1)Whether this forum has jurisdiction to entertain this complaint?

(2)Whether there is any deficiency of service on the part of the opposite

      party as alleged in the complainant by the complainant?

(3)Whether the complainant is entitled for refund of booking amount of

       Rs.6,40,000/-?

(4) Whether the complainant is entitled towards compensation and cost?

(5)To what other reliefs, the complainant is entitled to?

6. Point No.1:-

The opposite party in the written version contended that the complainant agreed that all disputes between the parties shall be referred to arbitration and therefore this complainant is not maintainable before this Forum.  On the other hand the complainant has marked Ex.A3 to prove the booking of Marriage Hall.  Ex.A3 is the Form –B dated 02.11.2016 and the complainant booked the marriage Hall to the opposite party on 02.11.2016 for the marriage of his daughter to be held on 10^th-11^th June 2017.  In Ex.A3 there is clause 53 reads as follows:

Both the parties that any and all controversy(ies) /disputers)/difference(s)/ claim(s)/claim(s) in tort arising out of or in connection with or in relation to this contract, including its existence, validity or termination, shall be referred to and finally resolved by arbitration of sole Arbitrator nominated by the Council for National and International Commercial Arbitration (CNICA), at New No.90 (73), Armenian Street, IV Floor, Chennai -600 001, India, and its Rules shall prevail.  The award so rendered shall be final and binding on the parties.  The language shall be English and the venue shall be at Chennai. 

In Ex.A3 is the Form-B dated 02.11.2016 there is no signature of the opposite party therefore both parties has not signed in Form-B.  Hence it is not a bilateral agreement.  Further the learned counsel for the complainant argued that this complaint is maintainable before this Forum as per section 3 of the Consumer Protection Act relayed on following ruling as follows:-

Aftab Singh & others                                        ………..Complainants

                                                    //Vs//

Emaar MGF land limited &  Another.             …………Opposite parties.

It is held that in light of the overall architecture of the Consumer Act and Court evolved jurisprudence, amended Sub-section (1) of Section 8 cannot be construed as a mandate to the Consumer Forum, constituted under the Act, to refer the parties to Arbitration in terms of the Arbitration Agreement.  Consequently, we unhesitatingly reject the arguments on behalf of the builder and hold that an Arbitration Clause in the afore-stated kind of Agreements between the complainants and the builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding, the amendments made to section 8 of the Arbitration Act.

                                   (2)  IV (2017) CPJ553 (NC)

Dinesh Thakkar &another.                          ……..Petitioners.

                                                         //Vs//

Surender Mohan Kochhar&others.      ………..Respondents.

It is held that the remedy under the Consumer Protection Act-1986 was an additional remedy and the complainant was not debarred from approaching the Consumer Fora for the redressal of his grievance, even if the arbitration clause could be invoked.  In view of this finding, it is held that the application under section 8 of the arbitration and conciliation Act-1996 filed before the Consumer Fora below was not maintainable and the same has been rightly dismissed by them.

In the above ruling it is clearly stated that even though there is Arbitration clause in the agreement and the complaint before this Forum is maintainable.  Under these circumstances this complaint filed before this Forum is maintainable.

7. Point No. 2and 3:-

According to the case of the complainant, it is stated that the complainant subsequently requested the opposite party namely V-Elite M Wedding and Conventions for change in hall booking from 10^th-11^th June 2017 to 16^th-17^th May 2017 as the marriage of the complainant’s daughter for which the complainant has paid full rent of Rs.6,40,000/-.  But, request of the complainant has not entertained by the opposite party and there is no response from the opposite party and therefore the opposite party has caused mental agony due to the deficiency in service and thereby the complainant filed this complaint.

8. While so, the opposite party vehemently contended that the complainant had paid only Rs.4,60,000/- and he has not paid Rs.6,40,000/- as alleged by the complainant, that the complainant approached the opposite party through a letter on 01.02.2017 for change in hall booking date from 10^th-11^th June 2017 to 16^th -17^th May 2017 but the opposite party has also informed to the complainant that as per the cancellation policy provided in the terms and conditions that was agreed upon at the time of booking and the complainant would not eligible for refund.  Therefore there is no deficiency in service on the part of the opposite party.

9. At this juncture, it goes without saying that the complainant is having bounden duty to prove the allegation made in the complaint against the opposite party by means of concrete and consistent evidence.  At this instance on going through the proof affidavit of the complainant which is filed as his evidence and it is stated that the complainant has paid Rs.4,60,000/- as advance amount to the opposite party by way of cheque on 01.11.2016 which is marked as Ex.A1 and the same was encashed by the opposite party which has been marked as Ex.A2.  Ex.A2 is the statement of account of the complainant issued by Bank of India, Ambattur branch, in which clearly stated the cheque of Rs.4,60,000/- was encashed. Further the complainant alleged in the complaint also paid 1,80,000/- towards cash.  But there is no receipt to show that the opposite party received Rs.1,80,000/-.  On last page of the Ex.A3 there is a tick mark in 4,60,000/- and 1,80,000/- and the said tick mark cannot be taken as proof of receipt of cash. Therefore the complainant has not proved through documentary evidence that cash of Rs.1,80,000/- amount paid to the opposite party by cash.  On the other hand the opposite party also admitted the receipt of Rs.4,60,000/-.

10. The case of the complainant is that the complainant had booked a Marriage Hall namely V-Elite M Wedding & Conventions centre run by the opposite party on 01.11.2016 for performing his daughter marriage scheduled to be held on 10.06.2017 to 11.06.2017. Therefore the complainant has paid a sum of Rs.4,60,000/- by way of cheque and a sum of Rs.1,80,000/- by cash totally 6,40,000/-.  But owing to Astroligical reasons the complainant requested the opposite party through a letter dated 01.02.2017 to advance the Marriage date from 10^th-11^th June 2017 to 16^th -17^th May 2017, which has been marked as Ex.A4. But the opposite party is not entertained the request of the complainant therefore the complainant booked another hall at ‘Shirivaru Venkatachalapathy Palace under the management of  the same opposite party, that the Manager of the opposite party’s has assured the complainant that they would refund the rent paid towards hall booking at V-Elite  M Wedding & Conventions, even if the complainant booked hall at ‘Shirivaru Venkatachalapathy Palace as both halls are run by the same Management M/s SRI MAK & Company. Therefore the complainant requested to refund the amount or adjust the amount of booking ‘Shirivaru Venkatachalapathy Palace but, the opposite party failed to do so and the above attitude of the opposite party amount to deficiency in service.

11. It is admitted by the both parties that the complainant on 01.02.2017 had approached the opposite party to pre-pone the marriage of the complainant’s daughter from 10^th-11^th June 2017 to 16^th-17^th May 2017 through Ex.A4.  Ex.A4 is the copy of the letter dated 01.02.2017 written by the complainant to the opposite party.  In Ex.A4 the complainant has written as follows:-

I have booked V. Elite Banquet hall at M Wedding & Conventions to perform the wedding of my daughter on June 11, 2017.  We want to advance the date of May 16&17^th 2017 due to astrological reasons.  So, we request you to adjust the amount paid towards the banquet hall for June 11-2017 to the rescheduled date (May 16&17^th 2017).

12. Therefore the complainant through the Ex.A4 requested the opposite party to advance the date of marriage or to adjust the amount already paid by the complainant.  The opposite party also received the letter dated 01.02.2017 and failed to sent a reply to the complainant.  This letter Ex.A4 also amounts to cancellation of booking.  Under these circumstances complainant booked another hall at ‘Shirivaru Venkatachalapathy Palace’ run by the management of the same opposite party and the Manager of the opposite party’s has assured to the complainant that they would refund the rent paid towards hall booking at V-Elite M Wedding & Conventions, even if the complainant booked hall at Shirivaru Venkatachalapathy Palace as both halls are run by the same Management M/s SRI MAK & Company.  Further as per Ex.A3 clause 25, the complainant have the option to rebook the hall free of charges for his use on any subsequent days.  In this complaint also the complainant has re-booked another marriage hall run by the same opposite party management.  But the opposite party without adjusting the amount already paid, collected entire amount for the 2^nd time booking without adjustment. So the complainant paid entire amount for booking Marriage Hall at Shirivaru Venkatachalapathy Palace. Hence as per clause 25 of Ex.A3 also the complainant is entitled for return of the booking amount. Therefore it is the duty of the opposite party to refund the booking amount of Rs.4,60,000/- to the complainant.

13. The opposite party contended that there is a clause in Ex.A3, if cancellation is not done before 180 days from the date of booking and the complainant is not entitled for refund of the amount. But in Ex.A3 there is no signature of the opposite party hence it is not an agreement.  Further the learned counsel for the complainant argued that the clause mentioned in Ex.A3 is heavily loaded and the same is not binding on the complainant and relied on the following ruling:-

                                                (1)      I (1998) CPJ 242

THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PONDICHERRY

Dr.M.K.Sebastian.                                            …………. Appellant.

                                                      //Vs//

Dr.N.Jagadeesan & another.                         ………. Respondents.

Consumer Protection Act, 1986-Section 2(1)(g)-Deficiency in service-Marriage Hall – Complainant booked a Marriage Hall –Paid advance –Cancelled Booking –Sought refund of amount –Not refunded –Complaint- Whether there is deficiency in service? (yes)

                                              (II)      I (2009) CPJ 136 (NC)

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI.

Prasad Homes private limited.                      …….Petitioner.

                                                      //Vs//

E.Mahender Reddy &others.                       ………..Respondents.

It is held that, it view of this factual position builder cannot be allowed to take shelter under the grab of clause 7 of the agreement so as to usurp the money deposited by the complainants.  We must observe that clause 7 of the agreement is heavily loaded in favour of the builder and against the purchasers of the flat in as much it entitles the builder to forfeit the entire amount so deposited by the purchasers of the plots even if the fault is on the part of the builder itself.  In our view such an agreement would clearly amount to unfair trade practice within the meaning of consumer Protection Act.

14. The above rulings clearly stated that the clause in the agreement is heavily loaded in favour of the opposite party and the same amounts to unfair trade practice and not refunding advance amount amounts to deficiency in service.   In this complaint also the complainant booked a Marriage Hall by paying Rs.4,60,000/- and requested for pre-pone the marriage before three months from the date of marriage but the opposite party has refused the request of the complainant and also failed to return the booking amount and the above attitude of the opposite party caused mental agony and financial loss to the complainant. Under these circumstances there is deficiency in service on the part of the opposite party and the complainant is entitled for refund of the booking amount of Rs.4,60,000/- and also reasonable cost.

15. Point No.4:-

In the result, this complaint is allowed in part.  Accordingly, the opposite party is directed to return the amount of Rs.4,60,000/-(Rupees Four Lakhs Sixty thousand Only) paid towards booking advance and to pay a sum of Rs.1,50,000/- (Rupees One lakhs Fifty thousand only) towards compensation for causing mental agony, hardship and monetary loss due to the deficiency of service on the part of the opposite party and also to pay a sum of Rs.10,000/- (Rupees Ten Thousand Only) towards cost of litigation to the complainant. 

The above amount shall be payable within two months from the date of receipt of the copy of the order, failing which, the said amount shall carry interest at the rate of 9% per annum till the date of payment.

Dictated by the president to the steno-typist, transcribed and computerized by him, corrected by the president and pronounced by us in the open Forum on this 31^th January 2019.

        -Sd-                                           -Sd-                                         -Sd-

  MEMBER-II                             MEMBER-I                              PRESIDENT

List of document of the complainant:-

List of document filed by the opposite party:-

-Nil-

       -Sd-                                      -Sd-                                               -Sd- 

MEMBER-II                         MEMBER-I                                    PRESIDENT