SRI JIBAN KRUSHNA BEHERA, MEMBER (I/C)
The Complainant has filed this complaint petition, U/s-35 of C.P.A.-2019, (here-in- after called as the “Act”), on dated 17.03.2022, alleging a “deficiency-in-service” by the OP, where OP is the owner of a Girls Hostel namely “Sai Girls Hostel”. That, as per the complainant’s petition the cause of action arose on dated 19.01.2022 and 2.2.2022.
2. That, upon admission of the present case, the OP was appropriately noticed along with copy of the complaint petition. The record reveals, the notice was properly served upon the OP on dated 13.04.2022, but she did not turn up to contest the case before this commission despite given several opportunities and hence set ex parte.
3. The case of the Complainant in brief is that, on 15.10.2021, the complainant, for accommodation of his daughter in the above named hostel of the OP for her higher study, had visited the hostel of the OP and accordingly, the complainant paid Rs.5,000.00 to OP for bed charges in advance for four months i.e. November, 2021 to February, 2022 @ Rs.1,200.00 per month. On 20.11.2021, the daughter of the complainant got a better accommodation to which the complainant informed the OP that his daughter will not stay there and about to leave the hostel and requested to refund the money paid by him deducting rent for one month. The OP agreed to it and assured to refund Rs.3,800.00, but did not return the amount as yet. Finding no other way out, complainant sent legal notice on 1.2.2022 with a request to refund the agreed amount, but in vain. Thus, the complainant was constrained to file this case with the prayer stated in his complaint petition. Hence, this case.
4. To substantiate the case, the complainant relied upon the following documents, which are placed in the record-
- Xerox office copy of advocate’s notice dated 1.2.2022.
- Xerox copy of the postal registration receipt.
- Postal tracking report.
5. The Opposite Party although served upon & received notice, did not turn up despite given several opportunities and was set ex parte.
In view of the above averments of the parties, the points for determination in this case are as follows:-
(i) Whether the Complainant is a Consumer as per C.P Act, 2019?
(ii) Whether there is any cause of action to file this case?
(iii) Whether this Consumer case is maintainable as per Law?
(iv) Whether there is any deficiency of service on the part of the O.P to the Complainant?
(v) To what other relief(s), the Complainant is entitled to?
F I N D I N G S
6. For the sake of convenience and for better appreciation of the case, the Issues No.i, ii & iii are taken up together. It is the case of the complainant that the OP is the owner of a Girls Hostel namely “Sai Girls Hostel” situated at Bagbrundaban (Choudhuri Sahi) in Balasore Town area. On 15.10.2021, the complainant along with his family member had been to the aforesaid hostel for the purpose of his daughter’s accommodation for her higher study. Accordingly, the complainant paid Rs.5,000.00 towards seat rent in advance for four months @ Rs.1,200.00 per month i.e. from the month of November, 2021 to February, 2022 plus Rs.200.00. It is further stated that on 20.11.2021, the daughter of the complainant got a better place for accommodation and the complainant informed the OP that his daughter will not stay in her Hostel and requested the OP to refund the money which he had paid on deducting one month rent. The OP also agreed and assured the complainant to refund Rs.3,800.00 and for that the complainant went to the residence of OP on 21.11.2021, but the OP did not refund the money on the ground that she has not withdrawn the money from the bank and on withdrawal she will intimate over phone. Again, on 19.1.2022 in the morning, the complainant had been to the residence of the OP to receive back the amount as aforestated, but the OP did not refund the amount and moreover on repeated request also the OP refused to return back the amount and thereby cheated the complainant. The complainant, finding no other way out, on 1.2.2022, sent legal notice against the OP requesting to refund the money as agreed upon which was received by the OP on 2.2.2022, but in vain. Hence, the complainant was constrained to file the case.
7. In the present case, it is to be seen how far the complainant is proved himself to be a consumer as required U/s 2(7)(i) & (ii) of the C.P. Act. No doubt, OP is the owner of a Girls Hostel namely “Sai Girls Hostel” situated at Bagbrundaban (Choudhuri Sahi) in Balasore Town area. As it is stated earlier that the complainant for accommodation of his daughter for her higher study visited the above hostel of the OP on 15.10.2021 and for the seat charge, he has paid Rs.5,000.00 in advance for four months @ Rs.1,200.00 per month, which the OP had received. Therefore, it is clearly made out that the complainant is a consumer under the Opp. Party.
8. It is seen from the complaint petition that on 20.11.2021, the daughter of the complainant got a better accommodation and the complainant informed about the said fact to the OP and requested her to refund Rs.3,800.00 out of Rs.5,000.00 only after deducting one month seat rent @ Rs.1,200.00. The OP was agreed to refund the amount, but when the complainant visited the residence of the OP on 21.11.2021, the OP stated that she has not withdrawn the amount from the bank and stated that she will inform over phone when she withdraw the amount and again on 19.1.2022, when the complainant visited the residence of OP, the OP refused to pay back the aforesaid amount. Lastly, the complainant served legal notice on the OP on 1.2.2022 which the OP was received on 2.2.2022 and as no reply is received, the complainant was constrained to file this case. Hence, it is held that the complainant has a cause of action to file the present case and the case is maintainable.
9. As discussed above in the foregoing paragraphs that on 20.11.2021 the daughter of the complainant got a better place for accommodation and the complainant informed the OP that his daughter will not stay there and requested the OP for refund of the money on deducting one month seat rent. The OP agreed and assured the complainant to refund Rs.3,800.00 and on 21.11.2021, when the complainant went to the house of the OP to receive the agreed amount, the OP did not pay the amount, rather stated that she has no money as she has not withdrawn the money from the bank and on withdrawal of money from the bank, she will inform. Again, on 19.1.2022, when the complainant had been to the house of the OP and requested her to pay back the amount, the OP refused to pay back the agreed amount which she had committed to refund and thereby cheated the complainant. Besides the above, it is seen that on 13.4.2022, the OP has received the notice issued by this Commission, but she has not appeared in this case to defend her case. That apart, it is also made out from the documents produced by the complainant that on 2.2.2022, OP has received the advocate’s notice dated 1.2.2022 issued by the complainant. From the above discussions, it is, therefore, clearly made out that the OP has failed to comply the performance on her part which she had undertaken to be performed and for such negligence the consumer like complainant sustained loss and mental agony. For the above reasons mentioned above, it is concluded that unfair trade practice was adopted by the OP. From the above discussion, it is held that there is deficiency of service on the part of the OP towards the complainant. Consequently, the entire testimony of the complainant goes unchallenged. Therefore, the OP is liable for the compensation as claimed by the complainant.
Hence, it is ordered –
O R D E R
The case of the complainant is allowed ex parte against the OP. The OP is hereby directed to pay the agreed amount of Rs.3,800.00 to the complainant along with compensation of Rs.5,000.00 and litigation expenses of Rs.2,000.00. Further, the OP is directed to pay the aforesaid awards to the complainant within two months hence, failing which the complainant is entitled to get interest @ 6% PA payable by the OP from the date of actual cause of action till its realization. In case of deviation, the complainant is at liberty to realize the same through the process of law. In the peculiar facts & circumstances of the case, no order as to cost.
Given under my hand and the seal of this Commission, this the 23rd day of May, 2023.
