BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD                                        :  PRESIDENT

SMT. R. SATHI                                         :  MEMBER

SMT. LIJU B. NAIR                                  : MEMBER

C.C. No. 363/2012 Filed on 15.10.2012

Dated: 31.07.2014

Complainant:

 

M.P. Sasidharan, residing at 123 (c), Vaishnavam, Near Jagathy Government School, Thiruvananthapuram-1.

 

                               (By adv. B. Sakthidharan Nair)

Opposite party:

Trivandrum Club, represented by its Secretary, P.B. No. 2204, Vazhuthacaud, Thiruvananthapuram-695 010.

 

 (By adv. C.S. Sukumaran Nair)

This C.C having been heard on 22.07.2014, the Forum on 31.07.2014 delivered the following:

ORDER

SRI. G. SIVAPRASAD:  PRESIDENT

The facts leading to filing of the complaint are that on 05.08.2011 complainant had booked the P.S. Hall of the opposite party Trivandrum Club, for conducting an event under the name and style Bollywood Night (Brand overt) to be conducted on 10.09.2011 ( 5 pm to 9 pm) to entertain his friends, relatives and well wishers, that the opposite party had received a sum of Rs. 41,150/- towards the rent of the Hall on 05.08.2011 in addition to the receipt of Rs. 5,000/- as caution deposit, that immediately after the booking of the Hall, complainant cancelled the booking of the Hall on 09.08.2011 and claimed refund of the aforesaid amount of Rs. 46,150/- from the opposite party, that opposite party failed to refund the amount, that lastly on 13.03.2012 complainant caused to issue an advocate notice calling upon the opposite party to pay a sum of Rs. 46,150/- with 12% interest thereon along with compensation, that the act of the opposite party in not returning the amount is a clear deficiency on the part of the opposite party.  Hence this complaint to direct opposite party to refund a sum of Rs. 46,150/- with 12% interest thereon along with Rs. 50,000/- as compensation. 

The opposite party, on being served, entered appearance and filed version contending interalia that complainant is not a consumer as defined in Consumer Protection Act and the alleged complaint does not contain any grievance or allegation of negligence or deficiency in service, that the opposite party is not a commercial concern, that on 05.08.2011 complainant booked P.S. Hall for the evening on 10.09.2011 for conducting event ‘Brand overt’, that complainant remitted Rs. 41,150/- towards rent and Rs. 5,000/- towards caution deposit on 05.08.2011, that after accepting the terms and conditions of booking, complainant filed declaration that opposite party, on taking booking of the hall on 10.09.2011 kept the hall vacant for the use of the complainant as per the booking, that had it not been booked by the complainant for the evening on 10.09.2011 the opposite party could have given the A/C hall for 10.09.2011 to some other party for marriage or marriage receptions, that the amount paid on booking the hall as rent is not refundable according to Regulations of the opposite party Club.  As opposite party is not liable to refund the amount, the complainant is not entitled to demand refund and that complainant is not entitled to any of the reliefs as prayed for.  Hence opposite party prayed for dismissal of the complaint with compensatory cost. 

The points that arise for consideration are:-

1. Whether the complainant is a consumer as defined in Consumer Protection Act?

2. Whether the complainant is entitled to the refund of Rs. 46,150/- with interest thereon?

3. Whether there is deficiency in service on the part of the opposite party?

4. Whether the complainant is entitled to compensation?

In support of the complaint, complainant has filed proof affidavit in lieu of chief examination as PW1 and has marked Exts. P1 to P7.  In rebuttal, opposite party has produced oral testimony of DW1 and has marked Exts. D1 to D4.

Points (i) to (iv):- The grouse of the complainant is that on 05.08.2011, he had booked the P.S. Hall of the opposite party for conducting an event under the name and style Bollywood Night (Brand overt) to be conducted on 10.09.2011 ( 5 pm to 9 pm) to entertain his friends, relatives and well wishers and opposite party had received Rs. 41,150/- towards the rent of the hall and Rs. 5,000/- towards caution deposit.  The issue herein is that immediately after the booking of the hall, complainant cancelled the booking on 09.08.2011 due to some personal inconvenience and claimed refund of the aforesaid amount of Rs. 46,150/- from the opposite party, but the opposite party failed to refund the amount.  According to opposite party, complainant is not a consumer as complaint does not contain any grievance or allegation of negligence or deficiency in service.  Complainant denied the statement of the opposite party that he is not a consumer.  As per the Consumer Protection Act, a person who buys any goods or avails any service for a consideration is a consumer but it does not include a person who obtains such goods or avails services for resale or for any commercial purpose.  Commercial purpose does not include use by a consumer of goods bought and used by him or services availed by him exclusively for the purpose of earning his livelihood by means of self employment.  In the case in hand, admittedly, complainant had booked the said hall for conducting an event (Bollywood Night).  Opposite party has no case that the Bollywood Night is a commercial show yielding profit to the conductor.  The very case of the complainant is that the said event was meant to entertain his friends, relatives and well wishers.  Since no commercial element is involved in the event, it cannot be treated that the event is for any commercial purpose.  The purpose for which the hall was booked is to be considered to determine commercial element of the event.  During cross examination by the opposite party, complainant has deposed that 09.09.2009 was his son’s marriage day and every year he will celebrate that day by arranging a party.  That this year on the date of celebration, one singer, a family friend, agreed to sing but later he informed that he could not come on that day.  Thus the programme was cancelled immediately after the booking of the hall on 09.08.2011.  Since the purpose of the programme is having no commercial element, the issue of commercial purpose does not arise.  Hence we find complainant is a consumer as defined in the Consumer Protection Act and complaint is maintainable before this Forum.  As regards the claim for refund of the booking amount and caution deposit, it has to be mentioned that complainant cancelled the booking of the hall on 09.08.2011, immediately after four days of booking, but opposite party failed to refund the said amount on the ground that clause 3 among the Rules and conditions stipulates that the rent will not be refunded to the party on any account whatsoever.  According to opposite party, there is further provision under clause (a) of the special instructions that the amount is not refundable once the booking of the hall is confirmed even if the purpose of booking the hall is cancelled, postponed or on any other grounds.  After accepting the aforesaid terms and conditions and special instructions, the complainant filed the declaration.  Complainant resisted the version by invoking Sec. 29 of the Indian Contract Act that “Agreements, the meaning of which is not certain, or capable of being made certain are void”.  According to complainant, as per Sec. 65 of the Indian Contract Act, “When an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it, to the person from whom he received it”.  Ext. D1 is the copy of the form for booking of P. Subramaniam hall and Trivandrum Club Hall.  As per Ext. D1 complainant booked Sri. Subramaniam hall for one day on 10.09.2011 for conducting ‘Event Brand overt’.  The amount of rent and other charges printed in Ext. D1 form for the hall is Rs. 72,000/- and Rs. 5,000/- as caution deposit for the above purpose.  In the space provided for office use, there is handwritten endorsement that Evening A/C Hall Rs. 41,150/-, caution deposit – Rs. 5,000/-.  The amount printed in Ext. D1 is not seen corrected, though the Rules and Declaration signed by the customer.  Complainant has led evidence by oral testimony of PW1 and Exts. P1 to P7.  Ext. P1 is the copy of the receipt dated 05.08.2011 for Rs. 41,150/- for booking the PS Hall issued by the opposite party.  Ext. P2 is the receipt dated 05.08.2011for Rs. 5,000/- towards caution deposit issued by the opposite party.  Ext. P3 is the copy of the letter dated 09.08.2011 addressed to the Secretary, Trivandrum Club informing that the event scheduled to be held on 10.09.2011 has been cancelled.  Ext. P4 is the request dated 27.12.2011 for refund of hall cancellation.  Ext. P5 is the copy of the advocate notice dated 13.03.2012 addressed to opposite party calling upon to pay a sum of Rs. 46,150/- with interest to the complainant.  Ext. P6 is the postal receipt.  Ext. P7 is the acknowledgement card.  Complainant has been cross examined by the opposite party.  Complainant denied the suggestion put by the opposite party that the hall was booked for complainant’s business purpose.  PW1 also denied the suggestion put by the opposite party that the hall was booked for entertaining his customers.  PW1 has added that it was meant for entertaining only family and friends.  PW1 has deposed that he has affixed his signature in the form, but he has not read the contents of the form.  PW1 has deposed further that had he read the contents, he would not have signed the form.  PW1 has deposed further that the form was never filled while he signed it.  Opposite party has led evidence by oral testimony of DW1 and DW2 and Exts. D1 to D4.  Ext. D1 is the booking form dated 05.08.2011.  Ext. D2 is the receipt for central service tax payments in the name of Trivandrum Club.  Ext. D3 series include Return in Form No. 1 and details of luxury tax collected.  Ext. D4 is the copy of booking register.  On perusal of Ext. D4 it is seen that there is handwritten endorsement of cancellation on 09.08.2011 which supports Ext. P3 letter issued by the complainant showing that on 09.08.2011 complainant had informed the opposite party that event has been cancelled.  Thus evidently by Ext. D4 and Ext. P3 complainant had cancelled the booking on 09.08.2011 and opposite party had knowledge of cancellation immediately after the booking, that is on fourth day of booking.  The hall was booked for the event scheduled on 10.09.2011.  During cross examination of DW1 by complainant, DW1 has deposed that the cancellation will be recorded in the register.  Ext. D4 is the copy of the relevant register.  DW2 has admitted that the handwritten endorsement seen in the bottom of Ext. D4 is written by him at the time of booking.  DW2 has deposed that as per Rules, opposite party will never let out halls for political and commercial purpose.  DW2 has admitted that complainant had cancelled the booking on 09.08.2011.  DW2 has also admitted that luxury tax was remitted on 06.09.2011.  According to complainant, had opposite party refunded the booking amount on demand, opposite party could have avoided the luxury tax.  On being asked about the document showing refund of booking amount in C.C. No. 468/2012, DW2 deposed that the same can be known only on examination of account records.  Admittedly complainant never availed any service from the opposite party on 10.09.2011 after booking the hall due to cancellation of the event scheduled.  Evidently by Ext. D4 & P3 and deposition of DW2 complainant had informed the cancellation of event and booking on 09.08.2011, that is after four days of booking.  The event was scheduled on 10.09.2011.  Opposite party has not produced any evidence to show that other parties had approached them for booking the hall for the evening on 10.09.2011 during the period from 05.08.2011 to 09.08.2011.  The contention of the opposite party that on taking the booking of the hall on 10.09.2011, the opposite party kept hall vacant for the use of the complainant as per the booking, that had it not been booked by the complainant, for the evening on 10.09.2011, the opposite party could have given the A/C hall for the evening on 10.09.2011 to some other party for marriage or marriage reception and that during September it is very difficult to get a hall like A/C hall due to high demand for such halls during the said season, goes wrong since complainant had cancelled the same immediately after the booking due to cancellation of the event.  The burden of proof is on the opposite party to show that they have incurred loss due to cancellation of booking by the complainant.  Further luxury tax is seen remitted on 06.09.2011, that is after the date of cancellation.  Had the opposite party refunded the booking amount on demand, opposite party could have avoided the payment of tax also.  The Ext. D1 is a common form.  The irrelevant portion in Ext. D1 is not seen omitted.  As such, even though complainant had affixed signature in Ext. D1 which cannot be treated as a genuine contract.  Further in consumer complaints what we need to follow is the principles of natural justice.  The provision of the Consumer Protection Act is a social benefit oriented legislation.  The provisions of the Act have to construed in favour of the consumer to achieve the purpose of enactment as it is a social benefit legislation.  The act of the opposite party in not refunding the booking amount and caution deposit to complainant immediately after the cancellation of the booking is against the principles of natural justice and hence it tantamounts to deficiency in service on the part of the opposite party.  Taking the overall situation we find complainant is entitled for refund of booking amount and caution deposit with interest at the rate of 8% from the date of the complaint. 

In the result, complaint is allowed in part.  Opposite party is directed to refund an amount of Rs. 46,150/- with interest at the rate of 8% per annum to complainant within one month from the date of receipt of this order, failing which the refund amount will carry interest at the rate of 12%.  In facts and circumstances of the case, there will be no order as to compensation and cost. 

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room. 

          Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 31^st day of July 2014.

Sd/-

G. SIVAPRASAD                   : PRESIDENT

 

          Sd/-

R. SATHI                      : MEMBER

 

          Sd/-

                                                                        LIJU B. NAIR                : MEMBER

 

 

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C.C. No. 363/2012

APPENDIX

 

  I      COMPLAINANT’S WITNESS:

          PW1  - M.P. Sasidharan

 II      COMPLAINANT’S DOCUMENTS:

          P1     - Copy of receipt dated 05.08.2011 for Rs. 41,150/-.

P2     - Receipt dated 05.08.2011 for Rs. 5,000/-.

P3     - Copy of letter dated 09.08.2011 addressed to opposite party.

P4     - Request dated 27.12.2011 by the complainant

P5     - Copy of advocate notice dated 18.03.2012.

P6     - Postal receipt

P7     - Acknowledgement card

III      OPPOSITE PARTY’S WITNESS:

          DW1 - Krishna Kumar

          DW2 - Satheesh Kumar

 IV     OPPOSITE PARTY’S DOCUMENTS:

D1     - Booking form dated 05.08.2011

D2     - Receipt for Central service tax payment s in the name of O.P.

D3(series)- Return in Form No.1 & details of luxury tax collected.

D4     - Copy of booking register

 

                                                                                                     Sd/-

PRESIDENT

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