Advocate Jayashree Kulkarni for the Complainant
Advocate Shrikant V. Kanetkar for the Opponents
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Per Hon’ble Shri. V. P. Utpat, President
:- JUDGMENT :-
Date – 19th July 2013
This complaint is filed by consumer against the Proprietor and Manager of the Marriage Hall who had caused deficiency in service by not refunding the amount which was deposited by the complainant in advance. Brief facts are as follows-
[1] Complainant is the resident of Narayan Peth, Pune. Opponent Nos. 1 and 2 are the Proprietor and Manager of the Marriage Hall known as “Rajyog Banquet Hall” which is situated at Wakdewadi, Pune 411 003. The marriage of daughter of complainant was scheduled on 23/11/2010. Hence the complainant booked the Marriage Hall as well as catering services of the Opponents. He has paid Rs.47,000/- by issuing cheque on 19/07/2010 and on 09/11/2010 he issued another cheuqe of Rs.64,000/- for catering services. The Hall of the Opponents was engaged for the period of 22/11/2010 7.00 p.m. till 23/11/2010 5.00 p.m. Opponents had issued receipts for the said deposits. The cheques were encashed by the Opponents. On 13/11/2010 grandmother of the complainant died. Hence complainant was constrained to postpone the marriage of his daughter which was scheduled on 23/11/2010. He met the Opponent No.2 personally and explained the situation and requested for cancellation of the booking. Opponents assured to refund the advance but avoided to return the money evenafter persuasion on behalf of the complainant. Hence complainant had issued notice to the Opponents on 09/09/2011. Opponents replied the notice falsely. Hence complainant has filed this complaint for refund of Rs.1,10,000/- alongwith interest @ 18% p.a. and for compensation of Rs.25,000/- alongwith cost of proceeding to the tune of Rs.10,000/-.
[2] Opponents appeared before the Forum and resisted the claim by filing written statement. Contents of the complaint are denied by the Opponents. It is flatly denied that the Opponents had booked the same Hall for another party and accepted the rent. It is further denied that the Opponents have caused deficiency in service. According to the Opponents they have given advances to various persons for catering and other purposes. They have sustained loss due to cancellation of booking. Complainant has not asked alternative date for booking. Hence complainant is not entitled for any refund. The amount deposited by the complainant was not refundable as per the terms and conditions of the contract. Hence complainant is not entitled for refund of money, compensation for deficiency in service as well as cost of the proceeding. The Opponents have prayed for dismissal of the complaint.
[3] After scrutinizing the documentary evidence and hearing the argument of both counsel following points arise for my determination. The points, findings and reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1 | Whether the complainant has proved that the Opponents have caused deficiency in service ? | In the affirmative |
2 | What order ? | Complaint is partly allowed. |
Reasons
As to the Point Nos. 1 and 2-
The admitted facts in the present proceeding are that the complainant had deposited amount of Rs.1,11,000/- with the Opponents as rent and for catering services. It is also not in dispute that the complainant asked for cancellation of booking as there was mishap in his family. Complainant has established that on the scheduled date i.e. during 22/11/2010 to 23/11/2010 the Marriage Hall was booked for another person named as Vishwanath Mahadeo Shinde. It has been tried to argue on behalf of the Opponents that there are two units – lower and upper and Mr. Shine had engaged upper unit and lower unit was allotted to the complainant. In order to falsify this fact complainant has produced the record as regards booking of Hall by Shinde on the same date. The receipt issued by the Opponents in the name of Mr. Shinde for lower unit is produced on record by the complainant. It reveals from the same that the Opponents have received from Mr. Shinde amount of Rs.21,500/- on 29/11/2010 as final payment. According to the Opponents as the lower unit was vacant Opponents allowed Mr. Shinde to occupy the same gratuitously. But if the said unit was given to Mr. Shinde gratuitously it was not necessary for the Opponents to issue receipt of Rs.21,500/- by way of final payment for lower unit. Hence I do not accept the argument of learned Advocate for the Opponents. It is also argued that the Opponents had given advance to caterers and other service providers. Hence the Opponents have sustained loss due to cancellation of booking. It is significant to note that as the complainant has established that the Marriage Hall belonging to the Opponents was engaged for another party Mr. Shinde. In such circumstances it cannot be accepted that the Opponents have paid advance to caterers for two times for the programe which was organized on only one day. This argument also cannot be accepted. It is pertinent to note that the booking of the Hall was cancelled by the complainant well in advance. Hence it cannot be accepted that the caterers have sustained loss due to cancellation of booking. According to the Opponents as per the terms and conditions 75 % advance can be returned only if the party who has booked the Marriage Hall has exercised option for alternative date. In the present case complainant has cancelled the booking hence the complainant is not entitled for refund of advance. It is significant to note that the Opponents have used the Marriage Hall for another party and earned profits by giving Hall on rent basis. It is not the case of the Opponents that the Marriage Hall was vacant on the scheduled date and it has sustained loss due to the cancellation of booking. The receipt of advance from the complainant is not in dispute. Complainant has established that the Hall was not vacant and used by another party – Mr. Shinde. The Opponents were benefited due to the booking from Mr. Shinde. In such circumstances the Opponents are duty bound to refund the advance amount. As the act of complainant regarding deposit of advance with Opponents is not gratuitous act Opponents are bound to refund advance irrespective with the terms and conditions between the parties. The case of the complainant squarely falling u/s 70 of the Indian Contract Act which laid downs as follows-
“70. Obligation of person enjoying benefit of non-gratuitous act- Where a person lawfully does anything for another person or delivers anything to him, not intending to do so gratuitously and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered.”
The contract between the parties is in contravention of Provisions of Indian Contract Act hence it is not binding on the complainant. Non refund of advance amount itself amounts to deficiency in service. Eventhough it is not specifically pleaded by the complainant in the pleading that there is deficiency in service the pleadings of the Opponents in which opponents have denied the refund of advance is sufficient to draw the inference as regards deficiency in service. Hence the opponents are bound to refund the advance which was taken from the Complainant. At the most 10% amount can be deducted by the Opponents for the inconveniences caused to them due to cancellation of booking.
In the result I answer the points accordingly and pass the following order-
:- ORDER :-
1. Complaint is partly allowed.
2. It is hereby declared that the Opponents have caused deficiency in service by not refunding the advance which was accepted from the complainant.
3. The Opponent Nos.1 and 2 are jointly and severally directed to refund Rs.99,000/- to the complainant within six weeks from the date of receipt of copy of order.
4. The Opponent Nos.1 and 2 are jointly and severally directed to pay compensation of Rs.10,000/- for deficiency in service and for mental agony and sufferings to the complainant within six weeks from the date of receipt of copy of order.
5. The Opponent Nos.1 and 2 are jointly and severally directed to pay Rs.2,000/- towards costs of complaint to the complainant within six weeks from the date of receipt of copy of order.
6. Parties are directed to collect the sets which are provided for the Hon’ble Members within one month from the date of order. Else those will be destroyed.
Copy of order be supplied to both the parties free of cost.
Place- Pune
Date – 19/07/2013
