DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 30th day of March, 2023.
Filed on: 25/09/2021
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member Smt.Sreevidhia.T.N
C.C. No. 339/2021
Between
COMPLAINANT
Smt. Bindya V Suthan, Wo Lieutenant Colonel Salin Kumar Sa residing at C-1003, AWHO(Army Welfare Housing Organisation) CK Army Towers, Silver Sand Island, Vytilla.
(Rep. by Adv. Rajesh Vijayedran)
VS
OPPOSITE PARTY
M/s Maze Restaurant, Door no 66/6316, Near central square mall. Ernakulam Kochi- 682035, Represented by its Manager.
F I N A L O R D E R
D.B. Binu, President.
1. A brief statement of facts of this complaint is as stated below:
The complaint was filed under Section 35 of the Consumer Protection Act, 2019. The brief facts, as averred in the complaint, are that the husband of the complainant, who is an army officer is presently employed at Naval Head Quarters, New-Delhi. The opposite party claims to be a reputed multi-cuisine restaurant offering quality food and prompt service. Carried away by the advertisements and brochure regarding the supply of "Special Onam Sadya" on 21.08.2021, on the Thiruonam day, the complainant on 16.08.2021 booked 'sadya for 5 persons after paying the entire amount of Rs 1295/- in advance as demanded by the opposite party. The payment was made through Google pay by the complainant's husband to the opposite party and the G-pay receipt was shared with the opposite party. While accepting the said order of the complainant, it was assured by the opposite party that the 'sadya' booked by the complainant would be delivered to the Flat of the complainant in the above address, by 11:30 AM on 21.08.2021. Even otherwise, it was clearly mentioned in the leaflet that home delivery is available for a minimum of 5 numbers of sadya. This apart, on 16.08.2021, while booking the sadya, the complainant had also conveyed to the opposite party that the 'sadya' should reach them in time as she had invited a few distinguished guests for lunch. On the bonafide expectation that the 'sadya' will be delivered on time as assured by the opposite party, the complainant had requested the guests to reach her flat by 1 PM, so that the 'sadya' can be kept ready before their arrival. Needless to mention, pursuant to the booking of sadya' the complainant did not cook any other food on the 'thiruvonam' day and the complainant began anxiously waiting for the supply of 'sadya' from 11.30 AM on 21.08.2021. Even before this, the complainant in her anxiety made a reminder call to the opposite party by 10.30 AM on 21.08.2021 and it was confirmed by the opposite party that sadya will be delivered at any rate before 12.30 PM to the flat of the complainant though the agreed time at the time of booking was 11.30 AM. Though reluctant the complainant categorically conveyed to the opposite party that no further extension of time from 12.30 PM will be permissible. But most unfortunately, the delivery of 'sadya' got delayed even beyond 12.30 PM. and adding to the concerns of the complainant there was no response from the opposite party to her repeated reminder calls and messages. Tension began to escalate when the opposite party failed to deliver the 'sadya' despite the arrival of guests by 1 PM. Pursuant to this, the complainant desperately made a call from her land phone at 1.05 PM, as the opposite party had stopped picking up calls from her mobile phone, whereupon it was conveyed to the complainant that the delay had occasioned following some confusion and that the same will be delivered to the complainant's flat within no time. Believing the words of the opposite party, the complainant and her distinguished guests, none other than a high-ranked Army Officer and his family, waited impatiently for the 'sadya to arrive. But even as time passed by, there was no glimpse of the delivery of 'sadya' as reassured by the opposite party. The complainant and her aged father though began making frantic phone calls and messages informing their plight and requesting for delivery of sadya, but there was no response from the opposite party. Finally, after eagerly waiting till 3.00 PM, the complainant got convinced that 'sadya' will never be delivered and that the opposite party has cheated her. By then, the complainant started making efforts to get 'sadya' from elsewhere. But despite her herculean efforts, she could not arrange either a 'sadya' or any ordinary vegetarian meals for her guests and they left the flat of the complainant highly dejected and without any food. Left with no other go, the complainant and her father had to consume the earlier day's food on the auspicious day of Thiruvonam. Adding insult to injury, the opposite party cared to message the complainant only by 06.05 PM on that day putting up lame excuses for your betrayal and agreeing to refund the money collected from the complainant for failing to provide the 'sadya’. The magnitude of embarrassment meted out to the complainant pursuant to the treacherous acts of the opposite party on the Thiruvonam day needs no further elucidation.
The complainants had approached the Commission seeking an order directing the opposite party to refund Rs 1295/- towards the cost of five numbers of 'sadya', to pay Rs.50,000/- towards compensation for the deficiency of service committed by the opposite party, and for the mental agony and physical hardships sustained by the complainant and the costs of the proceedings.
2) Notice
Notice sent to the opposite party returned by the postal department stating that intimation is given. Hence, deemed service, consequently, the opposite party is set ex-parte.
3) . Evidence
The complainant had filed a proof affidavit and 3 documents that were marked as Exhibits-A-1- to A-3. The complainant had examined as PW -1.
Exhibit A-1: Copy of G-PAY receipt evidencing payment to the opposite party.
Exhibit A-2: Lawyer notice dated 24.08.2021 issued by the complainant.
Exhibit A-3: Acknowledgement card evidencing receipt of layer notice.
4) The main points to be analysed in this case are as follows:
i) Whether the complaint is maintainable or not?
ii) Whether there is any deficiency in service or unfair trade practice from the side of the opposite party to the complainant?
iii) If so, whether the complainant is entitled to get any relief from the side of the opposite party?
iv) Costs of the proceedings if any?
5) The issues mentioned above are considered together and are answered as follows:
As per Section 2 (7) of the Consumer Protection Act, 2019, a consumer is a person who buys any goods or hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment. The complainant produced a copy of the G-PAY receipt evidencing payment to the opposite party (Exhibit A-1). Hence, the complainant is a consumer as defined under the Consumer Protection Act, 2019.
The above case is filed by the complainant for compensation for the deficiency of service caused to the complainant due to the inaction of the opposite party in delivering the sadya on Thiruvonam day.
The learned counsel for the complainant submitted that extremely aggrieved, the complainant caused to issue a lawyer notice dated 24.08.2021 to the opposite party (Exhibit A-2) in his prevailing 2 addresses, detailing the aforesaid unfortunate events and thus seeking to refund to the complainant Rs 1295/- towards the cost of 5 numbers of 'sadya', together with compensation and cost. Even though the notice sent to the opposite party was intimated by the Postal Authority to them, the opposite party had not cared to initiate any positive steps to settle the grievance of the complainant to date. But despite the receipt of the notice, (Exhibit A-3). As already submitted the complainant had availed of the services after believing the opposite party regarding timely delivery of ‘sadya’ who avails such services, especially for Onam 'sadya' on the Thiru Onam day, would the assurances of the opposite party sadya . Any customer including the reasonably the orders in the most professional manner with effective supervision. The above acts of the opposite party in keeping on delaying delivery of ‘sadya' and finally failing to provide the same without any notice, thereby putting the complainant in extreme mental agony and humiliation and other hardships, is totally unexpected and unwarranted and thus amounts to gross dereliction of duty and deficiency of service from the part of the opposite party. At the time of availing the services of the opposite party, the complainant never expected that they would have to encounter insults and hardships of such enormity, that too from the hands of the opposite party, who had claimed to be a renowned hotel. If at all the opposite party were responsible, they ought to have foreseen the eventualities and ought to have made necessary and effective alternate arrangements, in which event the complainant would not have sustained such hardships. It is further embarrassing that despite having the full address and mobile number of the complainant, the opposite party has till date not even cared to refund the cost of the sadya, which would substantiate the arrogant and callous attitude of the complainant. Needless to mention, the complainant has already sustained extreme mental agony, humiliation, and irreparable hardships, due to the inaction of the opposite parties in delivering the sadya on the Tiruvonam day by any means, the opposite party is solely accountable for all the hardships faced by the complainant in this regard and hence the complainant needs to be adequately compensated by the opposite party.
We have also noticed that a Notice sent to the opposite party returned by the postal department stating that intimation is given. Hence, deemed service, consequently, the opposite party is set ex-parte. The complainant had produced 3 documents which are marked as Exbt.A-1 to A-3. But the opposite party did not make any attempt to appear in the case and participate in the above proceedings before this commission and did not make any attempt to set aside the ex-prate order passed against it. It was further stated that this illegal, arbitrary, and unjustified act of the opposite party amounted to deficiency in service, indulgence in unfair trade practice, and caused mental agony and physical harassment to the complainant.
The opposite parties’ conscious failure to file their written version in spite of having received the Commission’s notice to that effect amounts to an admission of the allegations levelled against them. Here, the case of the complainant stands unchallenged by the opposite parties. We have no reason to disbelieve the words of the complainant as against the opposite parties. The Hon’ble National Commission held a similar stance in its order dated 2017 (4) CPR page 590 (NC).
The opposite party had inadequately performed the service as contracted with the complainant and hence there is a deficiency in service, negligence, and failure on the part of the opposite party in failing to provide the Complainant desired service which in turn has caused mental agony and hardship, and financial loss, to the Complainant. The aforesaid acts of the opposite party would stand to show their callous attitude, utter negligence, and deficiency of service, for which they are solely answerable.
Every Malayali has an emotional attachment to Thiruvona Sadya. Having invited guests for 'sadya' and waiting for a long time and not getting the "Special Onam Sadya" ordered is very frustrating. The opposite party is liable to compensate the complainant for deficiency in rendering service and also for immense physical harassment and mental agony.
We find the issue Nos. (I), (II), (III), and (IV) are found in favour of the complainant for the serious deficiency in service that happened on the side of the opposite party. Naturally, the complainant had suffered a lot of inconvenience, mental agony, hardships, financial loss, etc. due to the negligence on the part of the opposite party.
In view of the above facts and circumstances of the case, we are of the opinion that the opposite party is liable to compensate the complainant.
Hence the prayer is partly allowed as follows:
i. The Opposite Party shall refund Rs.1,295/- (Rupees one thousand two hundred ninety five only) towards the cost of five numbers of 'sadya' as per Exhibit A-1 invoice to the complainant.
ii. The Opposite Party shall pay Rs.40,000/- (Rupees forty thousand only) towards compensation for the deficiency of service committed by the opposite party, and for the mental agony and physical hardships sustained by the complainant.
iii. The Opposite Party shall also pay the complainant Rs.5,000/- (Rupees five thousand only) towards the cost of the proceedings.
The above-mentioned directions shall be complied with by Opposite Parties within 30 days from the date of the receipt of a copy of this order. Failing which the amount ordered vide (i) and (ii) above shall attract interest @9% from the date of receipt of a copy of this order till the date of realization.
Dictated to the Confidential Assistant Smt. K.P. Liji transcribed and typed by her corrected by me and pronounced in the Open Commission on this the 30th day of March, 2023
Sd/-
D.B.Binu, President
Sd/-
V. Ramachandran, Member
Sd/-
Sreevidhia.T.N, Member
Forwarded/by Order
Assistant Registrar
APPENDIX
COMPLAINANT’S EVIDENCE
Exhibit A-1: Copy of G-PAY receipt evidencing payment to the opposite party.
Exhibit A-2: Lawyer notice dated 24.08.2021 issued by the complainant.
Exhibit A-3: Acknowledgement card evidencing receipt of layer notice.
OPPOSITE PARTIES’ EVIDENCE
Nil
Despatch date:
By hand: By post
kp/
CC No. 339/2021
Order Date: 30/03/2023
