Date of filing: 24.12.2013.
Date of disposal: 22.7.2014.
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM - II:
VIJAYAWADA, KRISHNA DISTRICT
Present: Smt N. Tripura Sundari, B. Com., B. L., President (FAC)
Sri S. Sreeram, B.Com., B.A., B.L., Member
Tuesday, the 22nd day of July, 2014
C.C.No.11 of 2014
Between:
Sri Y. Subba Rama Sarma, S/o Y. Sada Siva Murty, R/o.B.G-11, Sai Model Village, N.H-5, Ramavarappadu, Vijayawada – 521 108.
…..Complainan
And
Vijayawada Sindhi Seva Samithi Trust, Brindavan Colony, Labbipet, Vijayawada – 520 010.
.. … Opposite party.
This complaint coming on before the Forum for final hearing on 11.7.2014, in the presence Sri Nandula Natraj, advocate for complainant; Sri B. Venkata Raju, advocate for opposite party and upon perusing the material available on record, this Forum delivers the following:
O R D E R
(Delivered by Hon’ble Member Sri S. Sreeram)
This is a complaint filed by the complainant under Sec.12 of Consumer Protection Act against the opposite party directing them to refund the advance amount of Rs.40,000/- with interest at 24% p.a., to pay Rs.5,000/- towards mental agony, for costs and other reliefs.
1. The brief averments of the complaint are as follows:
The opposite party is an organization who runs a function hall at Vijayawada and they used to provide the same for functions and that the complainant intended to perform the marriage of his daughter Kum.Anjana Siva Bhanu on 4-2-2012 and accordingly approached the opposite party and booked the function hall for 4-2-2012 and on the demand of the opposite party people also paid Rs.40,000/- as advance under receipt No.811, dt.29.12.2011. While so, the mother of the complainant Smt.Yeleswarapu Annapurna died on 27-1-2012 and as such the complainant is forced to cancel the marriage and informed about the same to opposite party on 27-1-2012 and also approached the opposite party on the next day and requested to cancel the function hall. Thereafter the complainant contacted the opposite party in person and over phone and requested to return the advance amount. But the opposite party not returned the same. The complainant got issued notice on 9-2-2013 demanding to return the advance amount and the opposite party received the same, but of no use. Having no other go, the complainant filed this complaint.
2. After registering the complaint, notices were sent to the opposite party. The opposite party while admitting the booking of function hall by the complainant for the marriage of his daughter on 4-2-2012 and receipt of advance amount of Rs.40,000/-, contended that the community hall used to give on rents and such funds are being used for the maintenance of Trust and that in the application form, the very first condition is that “deposit amount once paid is not refundable or not transferable’. It is further contended that in spite of the said condition, some times if any function is cancelled after reserving the same and if the function hall is occupied for other function on same date, some part of amount will be refunded. But on 4-2-2012 the function hall was not taken by any one and as such kept the hall open for others and as such the complainant is not entitled for return of amount and prays to dismiss the complaint.
3. The complainant filed his chief affidavit reiterating the material averments of the complaint and got marked Ex.A1 to A5 on his behalf. The Secretary of opposite party filed affidavit and got marked Ex.B1 and B2.
4. Heard both sides and perused the record.
5. Now the points that stood for consideration are
- Whether there is any deficiency of service on the part of opposite party in not refunding the advance amount to complainant?
- If so, to what relief.
Point No.1:
6. The undisputed facts in this case are that the opposite party Trust is running a function hall for the benefit of Trust and the complainant booked the same on 29-12-2011 under Ex.A1 Provisional Receipt issued by the opposite party by paying Rs.40,000/- as advance, for the marriage of his daughter which is fixed as 4-2-2012. Perusal of Ex.A1 discloses the date of marriage as 4-1-2012. On the other hand Ex.B1 application also not discloses the date of marriage. But as the opposite party is not denying the date of marriage as 4-2-2012, the above aspects have no consequence. Further Ex.A5 marriage card is also disclosing the date as 4-2-2012. As such, the mentioning of date as 4-1-2012 in the Ex.A1 seems to be a clerical mistake.
7. The main grievance of the complainant is that on 27-1-2012 his mother expired, which is evident from cremation notification form Ex.A2 and immediately the complainant informed the same to opposite party with a request to cancel the function hall. The opposite party is also not disputing the said fact as they admitted in the version that the complainant requested just one week before the function to cancel the function hall. The further grievance of the complainant is that after completion of rituals, he approached the opposite party for return of advance amount, but in vain. The complainant also got issued legal notice under Ex.A3 demanding the return of amount and the opposite party received the same under Ex.A4 acknowledgment, but failed to comply with the demand.
8. The only contention of the opposite party for non refund of amount is that as per Ex.B1, the very first condition is that “deposit amount once paid is not refundable or not transferable’ and that as the complainant cancelled the function hall just one week, it is not possible to allot the same to others and if the same is allotted to any one, some amount of advance will be refunded. Admittedly the complainant after accepting the terms and conditions printed on the back side of application under Ex.B1 booked the function hall and paid the advance amount.
9. In this regard, we would like to rely on the decision of the Hon’ble State Consumer Dispute Redressal Commission, Mumbai, Circuit bench at Aurangabad in F.A.No.322/2006, which was submitted by complainant. Wherein their Lordship relied on the decision reported in CPJ 1991 (II) 670 in Mrs. Angela Fonseca Vs. Coral Lawns and Another for the preposition that “mere mention of word ‘advance once paid will not be refunded” on the receipt is an exploitation of a needy and helpless consumer and imposition of said condition amounts to unfair trade practice’ and ordered for refund of amount. The said decision is squarely applicable to the case on hand and the act of the opposite party in this case also amounts to unfair trade practice. In the instant case also, it is not the contention of the opposite party is that the function hall in question was not booked for the date for which the complainant had booked the same. Further perusal of record discloses that the opposite party is a Trust and giving the function hall for rent for the benefit of Trust. As such the opposite party is not running the function hall for commercial purpose. On the other hand, the incident i.e. death of mother of complainant is an unforeseen one. In those circumstances, keeping the entire amount of advance of Rs.40,000/- with the opposite party is not justifiable. But in the circumstances of the case, we are of the considered opinion that, granting Rs.5,000/- out of Rs.40,000/- for the maintenance charges to the opposite party would meet the ends of justice.
10. In the result, the complaint is partly allowed and the opposite party is directed to pay Rs.35,000/- (Rupees thirty five thousand only) to the complainant. Time for compliance is one month. If the opposite party failed to return the amount within time, the amount shall carry 9% p.a. till the date of realization. The other claims of complainant are hereby dismissed.
Typewritten by Steno N. Hazarathaiah, corrected by me and pronounced by us in the open Forum, this the 22nd day of July, 2014.
PRESIDENT (FAC) MEMBER
Appendix of evidence
Witnesses examined
For the complainant: -None- For the opposite party: -None-
Documents marked
On behalf of the complainant:
Ex.A1 29.12.2011 Original copy of provisional receipt.
Ex.A2 Photocopy of cremation notification form.
Ex.A3 07.12.2011 Copy of legal notice got issued by complainant to OP
Ex.A4 Postal acknowledgement.
Ex.A5 Original copy of marriage invitation card.
On behalf of the opposite party:
Ex.B1 Photocopy of application for accommodation.
Ex.B2 Photocopy of daily register.
PRESIDENT (FAC).
