District Consumer Disputes Redressal Commission, Hooghly

PETITIONER

VS.

OPPOSITE PARTY

Complaint Case No.CC/221/2022

(Date of Filing:-21.10.2022)

1. Prabir Roychowdhury

31/6, Baidikpara Lane,

P.O. Hindmotor, P.S. Uttarpara,

District:- Hooghly, West Bengal : 712333

    Versus  -

1.  Sampark Caterer,

represented by its Proprietor

Shankar Singh alias Babu Singh

Nischinda (East), Ghoshpara, Bally,

P.O. Ghoshpara, P.S. Nischinda,

District:- Howrah, Pin:-71122

…………Opposite Party

Mr. Debasish Bandyopadhyay, President

Mr. Debasis Bhattacharya, Member

Mrs. Babita Chowdhury, Member

PRESENT:                            

Dtd. 28.02.2024

Final Order/Judgment

Debasis Bhattacharya:- Presiding Member

Being aggrieved and dissatisfied with the deviation from the prior commitment by the OP catering concern to serve foods as categorized by the Complainant in the occasion of his daughter’s marriage ceremony, the instant case has been filed by the complainant on 21.10.2022, u/s 35(1) of the Consumer Protection Act 2019.

Brief facts of the case:-

The fact of the case after trimming the unnecessary details is as follows.

The OP catering concern was entrusted by the Complainant with the job of providing food and all other allied arrangements for approximately 300 persons in the occasion of the complainant’s daughter’s marriage ceremony which was scheduled on 20.11.2021. While placing the order the OP was informed well in advance that some of the guests (30-35), representing the groom side coming from Delhi were totally vegetarian and accordingly the OP would have to arrange vegetarian food for them.

Reportedly, the OP assured the Complainant that the order placed by the complainant in the matter of serving vegetarian food to some of the guests would be complied with.

Apart from the above, the OP was also given catering contract for the premarriage and post-marriage functions scheduled to be held on 19.11.2021 and 21.11.2021 respectively for more or less 45 persons.

This is to be mentioned that the material period was the period when the pandemic situation was prevailing in the country and several restrictions imposed by the Government in the matter of gathering in social functions were applicable.

Catering charges were fixed accordingly on mutual consent and the OP is claimed to have signed and issued the ‘contract form’. An advance payment of Rs.501/- is claimed to have been paid by the Complainant to the OP on 22.08.2021.

Subsequently, on different dates ranging from 10.10.2021 to 13.11. 2021 the Complainant claims to have paid Rs.1,90,501/-to the OP against the contract.

On 19.11.2021 i.e. in the pre-marriage function the Complainant claims to have noticed certain irregularities so far as supply of food materials, drinking water bottles, size and quantity of fish were concerned.

Again on 20.11.2021 i.e. on the day of the marriage there were no sufficient arrangement for mask and sanitizer for the guests and invitees which the OP was supposed to provide as per ‘oral contract’.

Besides, no separate arrangements for vegetarian food were made for guests who were totally vegetarians. There was no menu card in respect of vegetarian items also.

As a result of which certain such guests took non-vegetarian items unknowingly and eventually when the same came to their knowledge they got annoyed, left the place virtually without having food and termed the incident as a deliberate attempt to hurt their religious belief, belittle their sentiments and tarnish their social prestige.

Allegedly, the bride i.e. the daughter of the Complainant had to face unpleasant situation and caustic remarks when she shifted to the other family for no fault on the part of the Complainant.

On being asked to offer an explanation for creating such unpleasant mess the OP could not give any satisfactory reply.

In spite of repeated persuasions the OP catering concern declined to make any refund.

The entire development which in the opinion of the Complainant was as good as deficiency of service and unfair trade practice caused mental agony, anxiety and harassment for the Complainant. The cause of action firstly arose on 22.08.2021 when the first advance payment was made and entered into the contract with the OP and thereafter on different dates when certain other payments were made and finally on 27.09.2022 when the Complainant sent a letter to the OP.

          Having been irked with the entire development the Complainant approached to this Commission with a prayer to impose direction on the Opposite Party to make refund of the entire advance payment of Rs.1,90,501/-, to pay compensation to the tune of Rs.10,00,000/- for causing mental agony, anxiety and harassment, to pay further Rs.20,000/-  towards litigation cost and such other relief to which the Complainant is entitled under law and equity.

         The Complainant along with the complaint petition has annexed copies of certain loose sheets containing proposed menu for all the dates signed by the representative of the caterer, contract form dtd.22.08.2021 signed by both the parties, letter dtd.  26.09.21 sent to the OP by the Complainant demanding the refund of Rs.1,90,501/- and corresponding postal track report. 

       Now, in the light of the discussion made hereinabove, the complainant having placed order with the OP for making all catering arrangements for the invitees in the occasion of his daughter’s marriage ceremony, against advance payments is a consumer u/s 2(7) (i) of the Act.

        The complainant is a resident within the district of Hooghly and the claim preferred by the complainant does not exceed the amount of Rs.50,00,000/-. Thus this Commission has both territorial as well as pecuniary jurisdiction to proceed in the instant matter.

       The questions whether there was any deficiency of service on the opposite parties’ part and whether the complainant is entitled to get any relief will be taken together in the concluding part of this order for convenience.

Now so far as the defence case is concerned, the OP filed written version and interrogatories against the evidence on affidavit filed by the Complainant. However, since filing the interrogatories, the OP preferred to stay away from the proceedings of the case even after being asked to show cause for their disappearance. Finally the case had to be proceeded ex parte against the OP.

 Ex parte argument was heard on 04.01.24.

        However in the written version, the OP has admitted that the Complainant entered into a contract with the answering OP on 22.08.2021 for arrangement of catering and food supply on 19.11.2021 i.e. on the date, just preceding to the marriage ceremony for 80 heads, to arrange snacks in the ‘wine party’ same night, to arrange breakfast on 20.11.2021 for 50 heads, to arrange catering and food supply for 300 heads the same evening in the marriage reception.

The OP denied in their written version that they were asked to make provision for vegetarian menu separately for certain guests who represented the groom side from Delhi. It is further claimed by the OP that the same guests consumed non-vegetarian items in the pre-marriage and post-marriage rituals on 19.11.2021 and 21.11.2021 respectively.

         Apart from the above, the OP in their written version has denied all the allegations related to irregularity in supply of food materials, supply of drinking water bottles, size and quality of fish etc., leveled against them. The OP further claims that in absence of any irregularity, question of being apologetic did not arise.

       The OP asserts that in compliance of the Covid protocol as stipulated by the Government, arrangements were made for sufficient supply of mask and sanitiser and the staff under the catering concern maintained Covid protocol.

         It is specifically pointed out by the OP that during the material period, under the Covid 19 protocol the permissible limit of heads in a social function was 70 (seventy) in number and accordingly the OP claimed to have denied to cater service to 300 (three hundred) people. But reportedly, the Complainant referring to his ‘high post’ in a Government Department and his ‘highly influential connection’  assured the OP that there would be no trouble in the matter of the gathering of people exceeding the permissible limit and if there would be any, he would have the control over it.

         The OP puts stress on the issue that it was not the OP but the Complainant who was supposed to maintain the Covid protocol.

The OP repeatedly mentions in the written version that there was no specific contract for vegetarian items for certain number of people. However there were provisions for alternative vegetarian items for people who were vegetarians as it is practiced in regular catering business.

         Allegedly, the Complainant did not pay the balance amount of Rs.2,37,749/- which the OP claims to have incurred to provide service to the Complainant as per ‘contract’.

       However the OP side has not filed evidence on affidavit and finally the case ran ex parte against the OP.

      In the evidence on affidavit, apart from repeating the content of the Complaint petition, the Complainant has denied all the statements and allegation made by the OP in their written version.

      In the brief notes of argument nothing apart from the content of complaint petition and evidence on affidavit has been highlighted by the Complainant.

 The OP on the other hand filed interrogatories against the evidence on affidavit filed by the Complainant. Most of the questions and the corresponding replies given by the Complainant are routine and stereo-type and do not have much relation with the crux of the case. Thus the exhaustive mention of all those will be redundant here. However in question no.7 the OP asked whether the Complainant produced any document establishing that he had informed the OP that some guests would be pure vegetarian and if so whether there was any document showing the exact number of such guests.

In reply, the Complainant stated that the matter was discussed in ‘various meeting’ held with the OP prior to the contract and the OP agreed to the said proposal signing the contract form on receipt of the advance money.

In question No.10 the OP stated that the Complainant made payment to the extent of Rs.1,90,501/- and no payment beyond that was made by the Complainant.

In reply to that the Complainant has admitted to have made payment of Rs.1,90,501/- only.

Decision with reason

Materials on records are perused.

       Now, so far as the instant case is concerned the focus lies on the sole issue whether order was separately placed by the Complainant for serving vegetarian food for certain number of guests, whether the catering concern agreed to the proposal and committed to act accordingly and whether eventually on the specific day the OP caterer deviated from their commitment.

      As this is not a civil court, there was no question of deposition of witnesses. The commission is supposed to take the decision and deliver the Judgment on the basis of documents filed by the parties.

       However, apart from filing the written version, the OP side has not filed any document to corroborate their standpoint.

Now the Commission has to concentrate on the documents filed by the Complainant in support of his written allegations.

It is already stated in the earlier part of the order that the documents submitted by the Complainant constitute of two loose sheets out of which one appears to be a page of  a diary of ‘Income-Tax Gazetted Officers’ Association, West Bengal Unit’ simply containing names of certain food items both vegetarian and non-vegetarian only, in Bengalee and a ‘contract form’ of the OP catering concern in their letter head mentioning the Party name, address, mobile no., nature of reception, reception date, time, place, no. of heads, rate per heads, total amount chargeable, advance paid and balance amount payable.

The first two loose sheets appear to have been signed by some person without any stamp. And the second one which is a contract form appears to have been signed by both the parties.

But, nowhere in these papers, the number of vegetarian guests, was specifically spelt out. No formal placement of order in black and white was made by the Complainant instructing the caterer to make completely separate arrangement for specific number of guests who were vegetarian. On the other hand no written assurance or commitment in this regard from the OP’s end could be filed. Allegations regarding quality of food and supply of masks and sanitiser are simply written allegations, devoid of any evidence.

Onus of proof of deficiency of service in the instant case primarily was on the Complainant under the Act.

But the only issue which is substantiated that out of the total contract amount, a part payment only to the extent of Rs.1,90,501/- was made by the Complainant.

Considering the facts and circumstances of the case the Commission is of the opinion that allegations leveled by the Complainant against the OP is bereft of any concrete evidence and deficiency of service or unfair trade practice on the part of the OP catering concern cannot be established.         

  Hence, it is     

ORDERED

 that the complaint case bearing no. 221/2022 be and the same is dismissed ex parte. However there is no order as to costs.

Let a plain copy of this order be supplied free of cost to the parties or their authorized Advocates/Agents on record, by hand against proper acknowledgement or sent by ordinary post for information and necessary action.