Delhi

North

CC/212/2021

RICHA ARORA - Complainant(s)

Versus

NAGPAL HOSPITALITY PRIVATE LIMITED - Opp.Party(s)

30 Apr 2024

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

 

CC No.:212/2021

In the matter of:

 

Ms. Richa Arora

2423, Punjabi Basti, Subzi Mandi,

Malka Ganj, North Delhi-110007.                                     …       Complainant

Vs

Nagpal Hospitality Private Limited,

Office at:

C-93, Wazirpur Industrial Area,

Main Ring road,

Delhi-110052.                                                                 …       Opposite Party

                            

ORDER

30/04/2024

 

Ashwani Kumar Mehta, Member:

 

1.       The present complaint has been filed under Section 35 of the Consumer Protection Act, 2019. The brief details of facts, as alleged by the Complainant in the Complaint in hand, are that:-

1. the complainant had booked Green Lounge North Banquets at C- 93, Wazirpur Industrial Area, Main Ring Road, Delhi- 110052 for 14.04.2021 for solemnization of her marriage.
2. as demanded by the opposite party, she deposited Rs.21,000/- [Rupees Twenty One Thousand Only] in cash, vide receipt dated 07.01.2021 issued by the opposite party in favour of her Sister Ms. Antika Arora. Copy of said receipt has been annexed with the complaint as Ex. CW-1/1.
3. Further, as insisted, forced and compelled by the OP, the complainant  further deposited Rs. 50,000/- with the opposite party on February 23rd 2021 through cheque No. 095923 drawn on Indian Bank (Formerly known as Allahabad Bank), Roshanara Road Branch, Delhi, from account No.50140498207 of her Mother Smt. Lalita Arora. Copy of said cheque has been annexed with the complaint as Ex. CW-1/2. The opposite party had acknowledged the receipt of said cheque vide receipt dated 23.02.2021. Copy of said receipt has been annexed with the complaint as Ex. CW-1/3.
4. the said cheque was duly encashed on 01.03.2021. Copy of bank statement showing debit entry of sum of Rs.50,000/- [Rupees Fifty Thousand Only] from aforesaid account of her mother has been annexed with the complaint as Ex. CW-1/4.
5. Due to spread of black fungus, second surge of COVID 19 pandemic disease and Lockdown imposed by the Government of National Capital Territory of Delhi, the scheduled date of solemnization marriage was postponed from April 14, 2021 to July 4, 2021.
6. Unfortunately, the Govt. of National Capital Territory of Delhi on account of guidelines of ICMR and Central Govt. requisite permission for solemnizing marriage at Green Lounge North Banquets at C-93, Wazirpur Industrial Area, Main Ring Road, Delhi-110052 even on 04.07.2021 was also not allowed,  despite the fact that Complainant’s marriage Invitation cards were already distributed and different arrangements for solemnizing her marriage on 04.07.2021 at Green Lounge North Banquets at C-93, Wazirpur Industrial Area, Main Ring Road, Delhi-110052 were already made.
7. under the aforesaid compelled circumstances beyond control, absolutely due to natural calamity and for protection of human lives, safety from Covid 19 pandemic disease, the complainant’s parents and parental relations were forced to arrange function of solemnization of her marriage at an alternative venue, strictly within the guidelines and protocol of Central Govt. of India as well as Govt. of N.C.T. of Delhi with very little gathering. Under the aforesaid facts and circumstances, the Complainant & her parents used to approach and request personally, telephonically and through respectable persons of the Society to the Opposite party to refund the said sum of Rs.71,000/-(Rupees Seventy One Thousand Only) from time to time consistently, however, the opposite party did not accede to the requests.
8. a written notice through e-mail was also sent to the opposite party vide e-mail dated September 18th 2021 for refund of amount with interest from date of deposit till realization but the opposite party  failed to respond to said notice/email till date. Copy of notice/e-mail has been annexed with the complaint as Ex. CW-1/5.
9. The Complainant had also lodged a detailed complaint dated 29.09.2021 on National Consumer helpline portal. Copy of said complaint has been annexed with the complaint as Ex. CW-1/6. The agent of National Consumer Helpline had sent her complaint through email to opposite party on October 5, 2021, beside reminder dated October 11, 2021 and 2nd reminder dated October 22, 2021 but no response was received from OP. Copies of email and its reminder and 2nd reminder has been annexed with the complaint as Ex. CW-1/7 [colly]. As such, the opposite party is indulging in corrupt and unfair trade practices, for their wrongful gains and causing wrongful loss to innocent customers like complainant, by making false inducements, assurances, representations etc.

 

(2)      It has been alleged that on account of opposite party unfair, corrupt and mal practices, intentional and wilful negligence, apparent deficiency in service, the Complainant suffered mental shock, agonies, hardships, humiliations, pains and sufferings etc. for which opposite party is legally liable to pay Rs.1,00,000/- [Rupees One Lakh Only] as damages & compensation. It has therefore been prayed to direct the opposite party:-

1. to refund of Rs.71,000/- [Rupees Seventy One Thousand Only] with interest @ 18% per annum from date of deposit till realization to the Complainant.
2. to pay a sum of Rs.1,00,000/- [Rupees One Lakh Only] as damages, compensation for harassment, hardships, mental shock, agonies, pains, sufferings etc., suffered by Complainant, on account of unfair, corrupt and mal practices, intentional and wilful negligence, deficiency in service, on part of opposite party.
3. to pay Cost of Rs.25,000/- towards prosecuting present complaint.

 

(3)      On going through the allegations levelled in the complaint, it was found that the payments of booking have been made by the sister and mother of the complainant. Therefore, the provisions of section 2(7) of the Consumer Protection Act, 2019 are relevant in the matter which state that:-

"Consumer" means any person who—

(i) XXXXX

(ii) hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and

 

includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose”.

 

(4)      As per the above explained provisions of Section 2(7) of CP Act, 2019, the beneficiary of the services hired, is also a consumer, therefore, notice was issued to the OP to defend the complaint before the commission but notice was received back from the Postal Department with the remarks “Refused”. In this context, reference is made to section 27 of the General Clauses Act, 1897, which reads as under:-

“27. Meaning of service by post.: Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression ‘serve’ or either of the expressions ‘give’ or ‘send’ or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.”

 

(5)      Section 27 of the General Clauses provides that service is deemed to be effective, when the letter is properly addressed, pre-paid and posted by registered post, unless the contrary is proved. The notice was duly addressed, postage was pre-paid and the letter was sent by Speed Post, which is also another form of registered post offered by India Post. Hence in view of section 27 of the General Clause Act, 1897, the service was deemed to have been affected.

 

(6)      Reliance is also placed on the  judgment of Hon’ble Supreme Court of India in the matter of D Vinod Shivappa vs Nanda Belliappa [(2006) 6 SCC 456], whereby, while dealing with service of notice under section 138 Negotiable Instruments Act, 1881, Hon’ble Supreme Court has dealt with section 27 of the General Clauses Act, 1897 observing that:-

“18. This Court noticed the position well settled in law that the notice refused to be accepted by the drawer can be presumed to have been served on him. In that case the notice was returned as "unclaimed" and not as refused. The Court posed the question "Will there be any significant difference between the two so far as the presumption of service is concerned?" Their Lordships referred to Section 27 of the General Clauses Act and observed that the principle incorporated therein could profitably be imported in a case where the sender had despatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee, unless he proves that it was not really served and that he was not responsible for such non-service. This Court dismissed the appeal preferred by the drawer holding that where the notice is returned by the addressee as unclaimed such date of return to the sender would be the commencing date in reckoning the period of 15 days contemplated in clause (c) to the proviso of Section 138 of the Act. This would be without prejudice to the right of the drawer of the cheque to show that he had no knowledge that the notice was brought to his address. Since the appellant did not attempt to discharge the burden to rebut the aforesaid presumption, the appeal was dismissed by this Court. The aforesaid decision is significant for two reasons. Firstly it was held that the principle incorporated in Section 27 of the General Clauses Act would apply in a case where the sender despatched the notice by post with the correct address written on it, but that would be without prejudice to the right of the drawer of the cheque to show that he had no knowledge that the notice was brought to his address.”

(Emphasis supplied)

 

(7)      This judgment was also relied upon by Hon’ble Supreme Court in the matter of CC Alavi Haji vs Palapetty Muhammed [(2007) 6 SCC 555], whereby Hon’ble Supreme Court has also referred to Section 114 of the Evidence Act and held as under:

“13. According to Section 114 of the Act, read with illustration (f) thereunder, when it appears to the Court that the common course of business renders it probable that a thing would happen, the Court may draw presumption that the thing would have happened, unless there are circumstances in a particular case to show that the common course of business was not followed. Thus, Section 114 enables the Court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. Consequently, the court can presume that the common course of business has been followed in particular cases. When applied to communications sent by post, Section 114 enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. But the presumption that is raised under Section 27 of the G.C. Act is a far stronger presumption. Further, while Section 114 of Evidence Act refers to a general presumption, Section 27 refers to a specific presumption. For the sake of ready reference, Section 27 of G.C. Act is extracted below:

 

27. Meaning of service by post. -

Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression ‘serve’ or either of the expressions ‘give’ or ‘send’ or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.

 

14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement ‘refused’ or ‘not available in the house’ or ‘house locked’ or ‘shop closed’ or ‘addressee not in station’, due service has to be presumed. [Vide Jagdish Singh Vs. Natthu Singh; State of M.P. Vs. Hiralal & Ors. and V.Raja Kumari Vs. P.Subbarama Naidu & Anr.] It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved.”

(Emphasis supplied)

 

(8)      Hence, in view of the judgments referred above and also in view of Section 27 of the General Clauses Act and Section 114 of the Evidence Act, the notice has been presumed to have been served upon OP but the OP neither appeared nor did send any communication, therefore, has been proceeded Ex-parte.The complainant has filed evidence by way of Affidavit. Therefore, the complaint has been examined on the basis of the documents/evidences and material available on records. Since the OP has chosen not to contest the allegations levelled in the complaint despite service, it is considered as deemed acceptance of the allegations of deficiency of service and harassment to the complainant by the OP.

 

(9)      In view of the these observations, we are of the considered view that the complainant has suffered directly due to deficient service and unfair trade practice on the part of the OP in terms of the deficiency defined in the Act which includes any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained in relation to any service and includes any act of negligence or omission or commission by such person which causes loss or injury to the consumer. The deficiency of service on the part of the OP has also caused mental pain, agony and harassment to the complainant. Therefore, we feel appropriate to direct the OP to:-

 

1. Refund Rs.71,000/-( Rs. Seventy One Thousand only) to the Complainant, within 30 days of the date of receipt of this order, alongwith interest @ 9% per annum w.e.f. 23-02-2021 till the date of payment;
2. pay Rs.50,000/- (Rupees Fifty Thousand Only) to the complainant as compensation for the mental  pain, agony and harassment caused by the OP.

 

(10)    It is clarified that the aforesaid amount shall be paid by the OP within 30 days from the date of receipt of this order as directed above at para 9 (i) & (ii) failing which the OP shall be liable to pay interest @12% per annum on the entire awarded amount from the date of expiry of 30 days period.

 

(11)    Order be given dasti to the parties in accordance with rules. Order be also uploaded on the website. Thereafter, file be consigned to the record room.

 

                       ASHWANI KUMAR MEHTA                                                 DIVYA JYOTI JAIPURIAR

                                     Member                                                                                         President 

                             DCDRC-1 (North)                                                                          DCDRC-1 (North)