DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM

       Dated this the 14^th day of December 2023 

                             Filed on: 03/02/2021

PRESENT

Shri.D.B.Binu                                                                            President

Shri.V.Ramachandran                                                               Member

Smt.Sreevidhia.T.N                                                                   Member                                                                   

C C. No. 63/2021

COMPLAINANTS

1. Frolin V.P., 1-2, Vattapparambil House, M.C.Road, Mattoor, Kalady, Pin-683 574
2. Smt.LuciFlorin, W/o. Florin, M.C.Road, Mattoor, Kalady, Pin-683 574

(By Adv. P.Samban,P.G.N. Classic Towers, Oushadhi Junction, Perumbavoor)

Vs.

OPPOSITE PARTIES

1. Jaison, Executive Chef, Saj Earth Resort, Near Cochin International Airport, Nedumbassery, Pin-683 572
2. Sajan Varghese, Chairman & Managing Director, Saj Earth Resort, Near Cochin International Airport, Nedumbassery, Pin-683 572

(2^nd op rep. by Adv. P.A.Ahamed, Thoufeek Ahamed, Ahad .T., Gopal Warriam Road, Cochin-16)

F I N A L    O  R  D  E  R

Sreevidhia T.N., Member

1. A brief statement of facts of this complaint is as stated below:

The complainant is a retired airforce officer.  He lives with his family in house No.2 of ward No.1 of Kalady Grama Panchayat.  In connection with the marriage of the son of the complainant, which was scheduled on 04.07.2020, the complainant had booked a Banquet Hall (Ball Room) on 15.02.2020 at Saj Earth Resort, near to Cochin International Airport, Nedumbassery for Rs.229500/-.  The complainant had given Rs.59500/- as advance amount to the 2^nd opposite party (Jaison) through bank cheque and had obtained receipt for the advance amount from the 2^nd opposite party.  Due to the Covid pandemic situation in the year 2020, the marriage of the complainant’s son had to be postponed indefinitely.  The complainant had met with the 2^nd opposite party and cancelled the reservation of the Banquet Hall and had verbally asked the 2^nd opposite party to return the advance amount.  The 2^nd opposite party had informed that the reservation of the hall by the complainant is cancelled.  But the amount paid as advance towards booking of the hall was not refunded to the complainant by the 2^nd opposite party.  So the complainant had sent a legal notice to the 1^st opposite party (Sajan Varghese) and that legal notice was returned as unserved.  The complainant states that he had to suffer huge mental agony, pain and financial loss due to the deficient act of the opposite party.  Hence the complainant approached this Commission seeking orders directing the opposite party to refund Rs.59500/- with 12% interest and also a compensation of Rs.5000/-to the complainant.

2. Notice

Notice was issued to the opposite party from this Commission on 02.03.2021.

     The notice sent to 1^st opposite party (Sajan Varghese, Chairman & MD of Sajan Earth Resort) returned as ‘Refused’.  Hence 1^st opposite party is treated as deemed service.  Consequently 1^st opposite party set as ex-parte.  Upon notice from this Commission the 2^nd opposite party appeared through counsel and filed version on 30.03.2021.

3. Version of the 2^nd opposite party

The 2^nd opposite party contented that the complaint is not maintainable and hence liable to be dismissed.  The 2^nd opposite party contended that the 2^nd opposite party is only a chef attached to the kitchen of the hotel and is not involved in the management and running of the hotel.  The 2^nd opposite party denies the averment that he has accepted the cheque of Florin VP, the complainant.  As per document No.2 produced by the complainant one Lucy Frolin has issued the cheque and not the complainant.  Further the 2^nd opposite party denies that the complainant has neither entrusted any cheque to the 2^nd opposite party nor the 2^nd opposite party has issued any receipt for the same.

The 2^nd opposite party also denied the cancellation of reservation of the hall since the 2^nd opposite party is only a chef and does not have any authority to take decision in the Management and business of the hotel and that is usually done by the General Manager who is the licensee of the hotel.

The 2^nd opposite party also submits in their version that the complainant is bound by the contract ie., document 1.  As per condition 28 cancellation policy, once the hall is booked for a particular date, the refund will not be possible in any circumstances’.  Hence the complainant is not entitled to get any refund.  The 2^nd opposite party has also contended that there is no deficiency of service occurred from the part of the 2^nd opposite party towards the complainant.  

          On 30.09.2021 the complainant filed I.A 179/2021 to implead Smt.Lucy Frolin, w/o the complainant as the 2^nd complainant and to implead Saj Earth Resort as the 1^st opposite party.  Objection on the impleading petition was not filed by the 2^nd opposite party.  Heard and I.A 179/2021 allowed.  Smt. Lucy Frolin is impleaded as the 2^nd complainant and the 1^st opposite party is changed as the 2^nd opposite party and the 2^nd opposite party is changed as the 1^st opposite party.

4. Evidence

Evidence in this case consists of the proof affidavit filed by the complainant and the documentary evidence filed by the complainants which were marked as Exbt.A1 to A4.  No other evidence from the part of the complainants.

Opposite party is absenting continuously.  Opposite party has no evidence.

Heard the counsel for the complainant.

5. The points taken for consideration in this case are as follows:

1.  Whether any deficiency in service or unfair trade practice is proved from the side of the opposite party towards the complainant?
2. If so, reliefs and costs?

6. Point No.(i)

We have analysed the facts of the case, version filed by the opposite party (Jaison, Executive Chef, Saj Earth’s Resort, Near Cochin International Airport, Nedumbassery) and the evidence filed by the complainant Ex,A2 is the statement of account for the period from 25.02.2020 to 25.02.2020 of the 2^nd complainant’s SB account No.0331053 000001788 which is maintained at South Indian Bank Ltd., Angamaly.  As per Exbt.A2 an amount of Rs.59500/- was debited from the 2^nd complainant’s account via clearing cheque No.976415 to Saj Earth Resort.  Exbt.A3 is the legal notice sent by the complainant’s counsel to the opposite party (Sajan Varghese, Chairman & Managing Director, Saj Earth Resort,) dated 13.10.2020.  The opposite party had refused the legal notice sent by the complainant which is evidenced as per Exbt.A4.

          Opposite party has not adduced any evidence in this case.  When notice was issued to Saj Earth Resort the notice sent to the said opposite party was returned as ‘refused’.  The complainant had booked the hall on 15.02.2020.  The complainant submits that due to the covid pandemic  situation, the marriage of the son of the complainant was postponed indefinitely.  The opposite party has not refunded the advanced amount to the complainant.  The opposite party has given no reply to the legal notice sent by the complainant dated 12.10.2020. The 2^nd opposite party (now 1^st opposite party) appeared and contented in their version that the 2^nd opposite party is only a chef attached to the kitchen of the hotel and is not involved in the management and running of the hotel. The Commission has no other way but to believe the words of the complainant.   The refusal of legal notice by opposite party, the Commission observed that it is an admission of the allegations raised by the complainant towards the opposite party.  In the result, the issue is found in favour of the complainant and the complaint is allowed.

1. We direct the opposite party 1 [Sajan Varghese, Chairman & Managing Director, Saj Earth Resort, Near Cochin International Airport (Now 2^nd opposite party)] to return Rs.59,500/- to the complainant as per Exbt.A2 statement of account of the 2^nd complainant’s Bank account.
2. The above opposite party No.1 (now 2^nd opposite party) shall pay an amount of Rs.5000/- as compensation to the complainant for the deficiency in service, mental agony, pain and other sufferings of the complainant.

The above orders shall be complied with, within 30 days from the date of receipt of a copy of this order.  If the order is not complied within 30 days the amount ordered as per order (i), above shall attract interest at the rate of 9% from the date of order till the date of realization.

Pronounced in the open commission on this 14^th day of December 2023.

Sd/-

                                                                   Sreevidhia.T.N, Member

Sd/-

D.B.Binu, President

Sd/-

                                                                   V.Ramachandran, Member

Forwarded/by Order

Assistant Registrar

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