State Consumer Disputes Redressal Commission
Ram Mangal Sanskrutik Bhavan Through ... vs Aanand Dattatray Koli on 21 August, 2018
A/16/3013 1
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Circuit Bench at Kolhapur
FIRST APPEAL NO.A/16/3013
(Arisen out of Order 29/09/2016 in Consumer Complaint No.121/2016 of District
Forum, Kolhapur)
Ram Mangal Sanskrutik Bhavan
Through Manager, Ingle Nagar,
Near NCC Office, Rajendra Nagar, Ring Road,
Kolhapur. ...........Appellant(s)
Versus
Aanand Annasaheb Koli,
Pl No.204, Building No.H-11, Pam Ekars
Co-operative Housing Society,
Pratiksha Nagar, Sion, Mumbai. ............Respondent(s)
BEFORE:
Hon'ble Mr.Justice A.P.Bhangale, PRESIDENT
Hon'ble Dr.S.K.Kakade, MEMBER
For the appellant:
Adv.P.R.Ingle
For the Respondent: Adv.Arpita Phansalkar
ORDER
Per Mr.Justice A.P.Bhangale, Hon'ble President [1] By this appeal, appellant has questioned validity and legality of the impugned judgment and order in consumer complaint no.CC/16/121 dated 29/09/2016 whereby the case of the complainant was partly allowed and opponent was directed to refund an amount of Rs.85,000/- together with interest @9% p.a. to the complainant with effect from 25/08/2015 to 25/03/2016. Compensation on account mental harassment in the sum of Rs.10,000/- and litigation costs in the sum of Rs.5,000/- was also awarded.
[2] Brief facts are that the complainant resident of Mumbai had approached opponent to book marriage hall for his daughter, Sudestha A/16/3013 2 by depositing an amount of Rs.16,000/-on 25/08/2015. Marriage was fixed on 20/01/2016. Pursuant to the marriage intended, the complainant had also deposited certain sums for incidental services such as decoration, food supply etc. at the time of marriage. There is no dispute that the booking amounts were deposited as mentioned in the tabular form in the impugned judgment and order.
[3] On behalf of the appellant, it is submitted that learned Forum below did not consider the rulings cited which were binding upon and erroneously passed award in favour of the complainant. According to the learned advocate for the appellant, there is no deficiency in service as such as the appellant was ready and willing to provide services for which amounts were deposited. Further it is more submitted that refund could not have been allowed pursuant to the terms and conditions agreed upon between the parties as conditions were printed on the overleaf of the receipt. According to the appellant, there is no unfair trade practice in any manner and learned Forum below could not have exercised jurisdiction to entertain the trial of the complaint as, according to the appellant there was no relationship between the parties as 'consumer' and 'service provider' and as no irreparable loss is caused so as to compensate the complainant, as the complainant himself had cancelled booking and appellant could not assign the booking in favour of any other person and no new booking had taken place on the date fixed. Therefore, it is submitted that complaint ought to have been dismissed. Further, according to the learned advocate for the appellant, learned Forum below failed to notice the rulings which are referred as under:-
i. 1994 (3) CPJ (NC 54) - Mukta Kalyan Mandapan V. N.Radhakrishna ii. 1996 (1) CPR 46 - K. Babu Prasad Reddy vs. Dr.Rajasekhar Reddy iii. 2009 (4) CPR 227 - Deepak Kumar vs. Sahraz Husain iv. First Appeal No.FA/2010/317 - decided by State Commission, Chennai - P.C.Murugesan vs. c. Padmavathi.A/16/3013 3
[4] Further, according to the advocate for the appellant, rulings which were cited by or on behalf of the respondent/complainant were not applicable to the facts and circumstances, therefore, could not have been considered by the learned District Forum. According to the appellant, the issue as to whether refund should have to be allowed or not did not fall within the scope of Consumer Protection Act, 1986. On these grounds, therefore, is submitted that there is no deficiency in service as such.
[5] On the other hand, on behalf of respondent it is contended that receipts were issued in favour of the complainant separately as under:-
i. Receipt No.012 dated 25/08/2015 for booking Ram Mangal Sanskrutik Bhavan for Shubha Mangal Hall in the sum of Rs.16,000/-.
ii. Receipt No.013 dated 25/08/2015 was issued for Rs.16,000/- in the name of Yash Decorators.
iii. Receipt No.012 dated 25/08/2015 in the name of Swapn Sajavat Decorators in the sum of Rs.16,000/- for decoration, chairs, Pooja material etc. iv. Receipt No.013 dated 25/08/2015 was issued by Ram Mangal Sanskrutik Bhavan in the sum of Rs.5,000/- as deposit.
v. Cash/Credit Memo dated 25/08/2015 was issued in the sum of Rs.16,000/- for marriage hall decoration. vi. Receipt No.013 dated 25/08/2015 was issued in the sum of Rs.16,000/- by Ram Mangal Sanskrutik Bhavan for Swapna Mangal Dinning Hall.
[6] Our attention is also invited to the hand written document dated 25/08/2015 whereby amount mentioned as hall rent was in the sum of Rs.1,16,000/- whereby according to the appellant, complainant had mentioned in Marathi as under :-
"आनंद कोळी, मु हु त 20/01/2016 ; ल नकाय ; हॉलभाडे - 1,16,000/-
ल नकायाकर ता बु कं ग केलेल तार ख 20/01/2016 काह कारणा तव र द के यास बु कं ग केलेल जमा अॅड हा स र कम परत मळणार नाह हे मला मा य आहे ."
These contents were signed on 25/08/2015 and on the same document A/16/3013 4 on 01/11/2015, following endorsement was made:-
"20/01/2016 ह तार ख इतरांना बु कं गसाठ दे णेस आमची मा यता आहे ."
[7] In the receipt no.13 dated 25/08/2015 in the sum of Rs.5,000/- also, there is a mention that "20/01/2016 ह तार ख इतरांना बु कं गसाठ दे णेस आमची मा यता आहे ." This document is also dated 25/08/2015. Terms and conditions are mentioned in the receipt overleaf which also bears signature of the complainant in which it is contended that if programme is cancelled, advance could not be refunded as one of the condition. Our attention is invited to the various receipts that the complainant has agreed that hall can be given to other person for booking and made endorsement below the documents of receipt. In these facts and circumstances of the case, it appears that complainant had informed by letter dated 15/01/2016 on the subject of the refund of amount making reference to various receipts for total sum of Rs.85,000/- inclusive of receipt no.012 dated 25/08/2015 for Shubha Mangal Hall in the sum of Rs.16,000/-, receipt no.013 dated 25/08/2015 for Shubha Mangal Hall Deposit in the sum of Rs.5,000/-, receipt no.012 dated 25/08/2015 for Swapna Sajawat Decorators in the sum of Rs.16,000/-, receipt no.013 dated 25/08/2015 for Yash Decorators in the sum of Rs.16,000/-, Cash/Credit Receipt No. Nil dated 25/08/2015 in the sum of Rs.16,000/- and receipt no.012 dated 25/08/2015 for Swapna Mangal Dining Hall in the sum of Rs.16,000/-. By said letter, complainant further informed regret that due to some domestic reasons, marriage is cancelled seeking refund of amount paid in the sum of Rs.85,000/-.
[8] Our attention is invited to certain rulings in this regard on behalf of the appellant as under:-
[1994] 3 CPJ (NC) 54 - Mukta Kalyan Mandapam vs. N. Radhakrishna - decided the Hon'ble National Commission in which grievance of the complainant that he paid hiring charges in full while booking Kalyana Mandapam for particular date but, subsequently he cancelled that A/16/3013 5 booking and wanted refund of money, but such refund was wrongly denied by the opponent. In that case, it was defence of the opponent that under no circumstances, there would be refund of amount in the event of cancellation of booking. Hon'ble National Commission observed that the dispute as to whether the refund should have been allowed or not, does not fall within the scope of the Consumer Protection Act, 1986 so long as no case of deficiency in service is made out. Thus, opinion was expressed that revision petitioner may urge his claim before the Civil Court and he will be at liberty to do so notwithstanding the dismissal of the present complaint.
[9] In next ruling, Deepak Kumar vs. Sahraz Husain - [2009] 4 CPR 227 - Appeal No.926 of 2008 was decided on 04/09/2009 in which due to death, booking was cancelled. Refund of which was refused. It was held in that case that no prior intimation of cancellation of booking of marriage house was given to the opponent and the marriage house was kept vacant for ceremony of the complainant. As per terms of agreement between the parties, the booking amount was not refundable. Thus in refusing to refund the booking amount, no deficiency in service has been committed. In that case, it was observed that no printed receipt was given to the complainant by the opponent and document was in the form of deposit receipt and on overleaf no such term was printed that no money will be refunded in case of cancellation. It was observed that incident of death of family member was beyond control of the complainant and entire programme was to be cancelled on account of sad demise and then at-least 50% of the deposited amount is required to be refunded to the complainant. Considering the documents, the argument that whole booking amount was to be refunded was not accepted.
[10] In third ruling in - K.Babu Prasad Reddy vs. Rajasekhar Reddy - another case of cancellation of booking is reported in [1996] 1 CPR 46. There was no evidence of intimation given to the opponent of cancellation and complaint was dismissed for relief of refund. In the appeal, it was observed that there was no deficiency in service. As the complainant did A/16/3013 6 not inform cancellation and even when some other party came for booking the Kalyanmandapam between 19/12/1992 and 20/12/1992, the opponent could not oblige them. Thus, considering material on record, the registers produced by the opponent, District Forum came to conclusion in that case that the opponent did not let out the Kalyanamandapam on that day to anybody else. In appeal, it was observed by the State Commission, Andhra Pradesh that there was no merit in the appeal as there was no deficiency in service on the part of the opponent. Moreover, appeal filed with prayer to condone the delay of 18 days in presenting the appeal was dismissed as not satisfactorily explained.
[11] Next ruling between P.C.Murugesan vs. C.Padmavathi decided by State Commission, Chennai - reported in 2015 0 AIR (SC) 2006 - in which complainant had paid advance to the opponent for booking of marriage hall and marriage was cancelled. In the facts and circumstances of the case, State Commission held that the opponent had not violated the contract so as to make them liable. According to the advocate for the appellant, learned forum below ought to have considered the binding effect of these judgments so as to dismiss the complaint. Reference is made to - Foreshore Co-operative Housing Society Limited vs. Praveen D. Desai (Dead) the Lrs. And others to canvass the decision of larger benches to burden the court. Final reference is made to ruling in Central Board of Dawoodi Bohra Community and another vs. State of Maharashtra and other - reported in 2005 0 AIR (SC) 752 - to argue that learned forum below ought to have considered the binding effect of decision in the aforesaid case.
[12] On the other hand on behalf of the respondent, it is contended that when booking was cancelled in the present case, intimation was given to the opponent before the date of marriage and deposits advanced for such purposes was the duty of the opponent to refund the advance at least partly if not fully. Reference was made to Contour Holiday Resorts Private Ltd. vs. K.N.Bhuvandndranatha Kamath - reported in II (2013) CPJ 245 A/16/3013 7 (NC). In that case, booking done for marriage of daughter of the complainant was unilaterally cancelled by petitioner just to accommodate another business associate. In the result, the Hon'ble National Commission awarded compensation considering mental agony and suffering undergone on such occasion by family which be measured just in terms of money alone.
[13] Next ruling on behalf of the respondent cited in - Surinder Kumar vs. Baba Makhan Shah Lobana Foundation - IV (2005) CPJ 36 - in which case, the complainant had booked hall for celebration of marriage of son. However, booking had to cancel on account of illness of his mother. Refund was declined on the ground that condition no.11 of the terms and condition of the booking did not permit the refund of the advance money in case of booking wag got cancelled. The Hon'ble State Commission Chandigargh remanded the matter back for fresh adjudication.
[14] After making reference to the ruling in CCI Chambers Co- op.Hsg.Society Ltd. vs. Development Credit Bank Ltd. - III (2003) CPJ 9 (SC) - the State Commission considered the prayers of the complainant and held that in absence of prayer to declared the condition no.11 ultra vires, the relief sought regarding refund on the ground of deficiency in service had to be considered in accordance with law and specific finding is to be recorded as to whether the respondent committed deficiency in service within the meaning of Sections 2(1)(g) and 2(1)(h) of the Consumer Protection Act, 1986. In that case, the case was remanded for decision afresh according to law to the District Forum on the ground that submissions of appellant to be considered and decided as to the condition no.11 being unjust, illegal and opposed to public policy and unconscionable under the Indian Contract Act, 1872.
[15] Finally, reference was made to ruling in - Dr.M.K.Sebastian vs. Dr.N.Jagadeesan & anr. - I (1998) CPJ 242 - decided by the State Commission, Pondicherry. In that case, complainant had booked a marriage hall by paying advance. Complainant cancelled the booking and sought refund of amount. Opponent did not refund the amount.
A/16/3013 8Complainant filed consumer complaint. It is held that there is no deficiency in service. In reply, opponent replied that advance will not be refunded on the basis of printed entries on the receipt as to non- entitlement of refund. It was held that money can be appropriated only in accordance with law.
However, there would be deficiency in service. In the facts and circumstances of the case, therefore, it was held that the opponent was entitled to detain 15% of the booking amount and was directed to pay balance together with interest @12% p.a. from the date of cancellation of booking.
[16] Considering these rulings in the facts and circumstances of the case, we are of the view that in the present case, deposits were accepted by the opponent under different heads, such as on account of marriage hall, decoration, chairs, reception goods as such and dining hall etc. for marriage on 20/01/2016. Same amounts were accepted by the opponent on 25/08/2015. The booking of that date i.e.20/01/2016 was cancelled for some reason on 01/11/2015. At the time of booking, opponent had taken endorsement from the complainant that liberty is granted to the opponent that the date 20/01/2016 can be given to other party for booking. In receipts also, such liberty was granted by the complainant on 01/11/2015 while marriage was fixed on 20/01/2016. It must be noted that the documents prepared on account of expenses of booking advanced were printed receipts have also printed terms and conditions readily present to the complainant for signature. In such cases, when consumer has booked a marriage hall and other incidental services by depositing certain sum, in the facts and circumstances of each case, Consumer Fora need to apply its mind as to whether the deposit was advanced under the contract which was well understood between the parties and whether rival parties were aware of their contractual obligations on the basis of promises made. In the present case, we find from the receipts prepared for receiving the advance and handwritten documents whereby the complainant had signed and endorsed that in case of booking date 20/01/2016 is cancelled, he will A/16/3013 9 not get part of the booking amount. However, that was not final word given by the complainant as had he allowed the opponent to assign the date 20/01/2016 to others. Since such endorsement was made on 01/11/2015 well in advance before the date 20/01/2016, it was possible for the opponent to advertise the said date for booking by others, but no such step was taken in the present case. In our view, when deposits were accepted on account of different heads not only for marriage hall, but also for decoration, chairs, articles for pooja, fans etc., opponent should not have unreasonably refused the refund of amount, though in our view, complainant is not entitled for 100% refund of amount advanced. The argument that in such cases provisions of Consumer Protection Act, 1986 would not apply as observed in the earlier order passed by the Hon'ble National Commission cannot be accepted as each case will have to be considered in the light of facts and circumstances made out in the complaint. In the Consumer Protection Act, 1986, merely because the Civil Court will have jurisdiction to decide the civil dispute, does not mean that a 'consumer' is barred from approaching the consumer fora so as to complain against the opponent on account of 'deficiency' in services or 'unfair trade practice' or 'restrictive trade practice', as the case may be. Section 3 of the Consumer Protection Act, 1986 does provide additional or supplementary remedy for the consumer to approach the Consumer Fora. In the facts and circumstances of the case, in our view, learned forum below cannot be faulted with in entertaining the consumer complaint and deciding the complaint. However, considering the reasons for cancellation of booking mentioned by the complainant and the fact that booking was cancelled well in advance upon giving sufficient liberty for the opponent to advertise for the hall for use of any other party and considering that such opportunity was available for the opponent since 01/11/2015 though notice was sent by the complainant on 15/01/2016 for refund of amount of Rs.85,000/- on account of cancellation of booking of the hall, we are persuaded to consider the ruling cited before us in Dr.M.K.Sebastian vs. Dr.N.Jagadeesan & anr. - I (1998) CPJ 242 - which appears to have been in larger interest of justice allowing the opponent to A/16/3013 10 retain or detain 15% amount of the amount deposited and refund rest of the amount together with interest. In our view, therefore, we must modify the impugned judgment and order by directing the opponent to retain 15% of the amount advanced by way of deposits and to refund 85% of the amount to the complainant together with interest @ 9% p.a. In the facts and circumstances of the case, we set aside the clause no.4 of the award which grants compensation for mental harassment of the complainant. We, therefore, partly allow the appeal as follows :-
ORDER [1] Impugned judgment and order dated 29/09/2016 passed in consumer complaint no.CC/16/121 is modified as under :-
Appellant (original opponent) is entitled to retain or detain 15% amount of the amount advanced by the complainant. Rest of the amount shall be refunded to the complainant together with interest thereon @ 9% from the date of deposit till realization of the amount by the complainant along with litigation costs in the sum of Rs.5,000/- as awarded by the learned District Forum below.
[2] Appeal is disposed off accordingly.
[3] Certified copies of this order be furnished to the parties forthwith.
Pronounced & dictated in Open court on 21st August, 2018.
[ Justice A.P.Bhangale] PRESIDENT [ Dr.S.K.Kakade] MEMBER pg