Per Mr.S.R.Khanzode, Hon’ble Judicial Member

This appeal takes an exception to an order dated 07/11/2006 passed in consumer complaint no.698/2003, Shree Zalawadi Sthanakavasi Jain Mitra Mandal Kandivali v/s. M/s.Nishiland Park Ltd. and another, passed by Central Mumbai District Consumer Disputes Redressal Forum.  It is the grievance of the respondent / original complainant (herein after referred as ‘respondent’ ) that for the benefit of their members they have arranged a picnic at M/s.Nishiland Park Ltd. situated at Old Bombay Pune Road, Near Khalapur and Panvel and which is run by appellant/original opponent no.1- M/s.Nishiland Park Ltd.(herein after referred as the ‘appellant’). The charges levied for 472 members of the respondent for the trip scheduled on 15/2/1998 were at `325/- per member and, accordingly, it is alleged that the respondent had paid `1,28,275/- to the appellant.  The members of the respondent accordingly visited to M/s.Nishiland Park Ltd. on the assigned day and started enjoying the facilities. However, around 11.00-11.30 a.m. one Mr.Akash belonging to another group of people namely Jain Social Group met with an accident and drowned and died subsequently in the hospital in the afternoon.  Trip was abandoned by the respondent.  Thereafter, again respondent thought to arrange another trip at M/s.Nishiland Park Ltd. on 24/1/1999 for 500 members.  After prolonged negotiations, concessional rate was offered by the appellant.  Some advance was also paid but as it appears the respondent stopped payment of said cheque of `30,000/-.  Some 5 days prior to 24/1/1999 i.e. on 19/1/1999 the respondent cancelled their picnic scheduled for 24/1/1999 by visiting M/s.Nishiland Park Ltd. and written accordingly to the appellant informing them that looking to the another report in the newspaper about the mishap of one labourer, they feel it unsafe and cancelled their visit to M/s.Nishiland Park Ltd. scheduled on 24/1/1999.  On the next day immediately appellant written back to the respondent informing them that their such cancellation of visit is unwarranted and also informed that full safety measures are observed at the M/s.Nishiland Park Ltd. and that their such sudden cancellation will drive them to incur heavy losses and, therefore, they requested not to cancel the visit to M/s.Nishiland Park Ltd. However, the respondent cancelled the visit and, thereafter, claimed back `1,28,275/- which according to them is the amount adjusted against the refund of their first visit on 15/02/1998 against the charges levied for their proposed visit on 24/01/1999. Since the appellant failed to refund the amount they filed this consumer complaint.

Appellant resisted the consumer complaint as per their written version.  They submitted that there is no deficiency on its part and since the respondent cancelled the visit on 24/1/1999 on their own and that too without any sufficient reason, the complaint deserves to be dismissed.  They did not admit that `1,28,275/- against the visit dated 15/2/1998 was agreed to be refunded and that they are liable to refund the said amount to the respondent.  Forum below upholding the contention of the complainant directed to refund the amount of `1,16,475/- along with interest @ 9% p.a. w.e.f. 15/2/1998 and also awarded cost of `3,000/-.  Feeling aggrieved thereby appellant preferred this appeal.

Heard Mr.Ajay Panicker-Advocate for the appellant and Ms.Priya Oswal-Advocate for the respondent.

In the instant case alleged refund amount of `1,28,275/- worked out is nowhere stated either in complaint or in the affidavit of their witness, namely, Mr.Jitendra Shah.  Considering the totality of the facts as emerged from the documents placed on record and considering respective pleadings, it could be seen that nowhere the amount of refund of `1,28,275/- as alleged in the complaint was worked out at any time or that the appellant agreed to refund said amount to the respondent against the part cancellation of their first visit dated 15/2/1998. In fact appellant came with the case that on 15/2/1998 visitors were rowdy after the alleged incident related to Mst.Akash and said crowd caused heavy damage to their properties and only at the intervention of the police the respondent members left the premises on their own.  It may not be out of place to mention here that relating to the mishap and involved death of Akash, criminal complaint was filed against M/s.Nishiland Park Ltd. and it resulted into acquittal.  Similarly, consumer complaint filed by parents of late Akash against M/s.Nishiland Park Ltd. also stood dismissed.

These two adjudications prima facie show that there was no lacking of any safety measures at M/s.Nishiland Park Ltd. and the appellants were not negligent in maintaining the requisite safety standards. This fact is further affirmed by an independent agency, namely, Rail India Technical and Economic Services Ltd. who carried out their inspection and submitted its report on 02/04/1998.

Against this there is only a mere allegation and that too quite subjective to state that due to earlier incident on 15/2/1998 and the one reported in press news item about the labourer working at M/s.Nishiland Park Ltd., the respondent just concluded that there were no proper safety measures observed at M/s.Nishiland Park Ltd. and then took a decision to cancel their visit on 24/1/1999.  Had they really enquired into or had taken any information regarding safety measures observed at M/s.Nishiland Park Ltd., they could have got the information about the same. They did not engage themselves into any such verification or to satisfy themselves about propriety of their apprehension on lack of safety measures at M/s.Nishiland Park Ltd.  Therefore, their such action to cancel the visit on 24/1/1999 is their own act and, certainly, for which appellant is not responsible and hence, no deficiency in service on the part of appellant could be inferred.

As earlier pointed out, even after the incident dated 15/2/1998 respondent themselves approached again the appellant and after prolonged negotiations could fetch quite concessional rate for their second visit scheduled on 24/1/1999. According to appellant, they gave the special concession considering their larger business interest and to maintain the goodwill.

Further, only for the sake of argument if it is assumed that they agreed to adjust `1 lakh and odd amount against the visit dated 24/1/1999 and, thus, adjusted the payment against their concessional rate given for the said visit, it would be a novation of contract or a fresh contract. Therefore, deficiency in service, if any, on the part of appellant could be only in resepct of visit dated 24/1/1999.  We find, the respondent miserably failed to establish the same.

The Forum, considering their empowerment under section 14 of Consumer Protection Act, 1986, without any basis and unreasonably engaged itself in calculating the amount of refund relating to the first visit dated 15/2/1998 and, thus, committed an error of law.

For the reasons stated above, we find ourselves not in agreement with the impugned order. We hold accordingly and pass the following order:-

                                                ORDER

Appeal is allowed.

Order passed by the District Consumer Disputes Redressal Forum, Central Mumbai dated 07/11/2006 in consumer complaint no.698/2003 is hereby quashed and set aside and, in the result, the consumer complaint stands dismissed.

Amount which is deposited by the appellant under section 15, proviso, of the Act and as a condition of interim stay be returned to the appellant (after due verification).

Copies of the order be furnished to the parties.