H.R.GILL vs SURYAVANSHI KSHATRIYA DNYATI SAMAJ

SHRI H.R. Gill a practicing Advocate made this com- plaint against the opposite parties claiming compensation for hardships and sufferings of as a result of deficiency in the service and also on account of unfair trade practices. The opposite party No. 1 is a registered public Trust and maintains a marriage hall and other premises. Mr. Suresh Kowali is the chairman of the Social Institution. The complainant alleges that the Sabhagruha (marriage hall) is hired out on rent to the public for social functions as a commercial venture. The complainant had booked and reserved the said hall on 7.3.90 for the wedding and reception of his son Dr. Harendra Gill to be performed on 5.6.1990. He made a payment of Rs. 3001 under two separate receipts at the time of booking on 7.3.1990. According to the complainant it was represented on behalf of the institution that the amount of Rs. 3001/-paid of the complainant was towards the full and final rent charges for the hall. It was also informed to the complainant on behalf of the institution that M/s Laxmi Caterers has the monopoly to arrange the decoration in the hall. However, the complainant was at liberty to engage any caterer of his choice. The complainant alleged that after booking the aforesaid hall, he printed the marriage and reception invitations and distributed them. According to the complainant, Mr. Raut on behalf of the institution repeatedly persuaded the complainant on telephone to direct the complainant''s caterer to see him personally or else the booking would be cancelled. When the complainant enquired from Mr. Raut, a day earlier to the marriage about his purpose of contacting the caterer, Mr. Raut informed the complainant that in less the complainant hired the cooking utensils from the institution, the booking be cancelled and the advance paid would be forfeited and directed the complainant to contact the Chairman, opposite party no. 2. According to the complainant he remained busy in the preparations for marriage for 23 days and whilst the marriage celebration was in progress on 5.6.90. Mr. Raut demanded payment of Rs. 800/- towards the utensils charges. According to the complainant due to the continued persuasion of the opposite party, under duress he agreed to make the payment Rs. 800/- but had offered to make the payment by cheque. According to complainant Mr. Raut and two members of the institution one Mr. Raju Kore and one carpenter rudely shouted that the payment must be made in cash. The complainant alleged that taking undue advantage of the situation, the power supply on the ground floor was switched off by the management. The complainant further alleged that the guest and the invitees taking food faced a total black out. The distinguished guests included the members of the Bench and Bar, Government officials and other relatives of the complainant. All were seriously inconvenienced due the high handed act of opposite party which was deliberately done to extract additional money over and above the contractual and agreed upon amount. According to complainant since he was the host and the invitees were caught in an unprecedented situation and he had no other alternative but to accede to the unjust, unreasonable and unlawful demand of money by hands requested Mr. Raut and others to accept the cheque of Rs. 800/- and wrote out the cheque of Rs. 800/- and handed over to Mr. Raut. A receipt of which is filled at Annexure ''C of the complaint. According to the complainant, this act on the part of the opposite party amounts to deficiencies in the service while hiring out the hall. It is further alleged that it amounts to extracting money from the consumers taking undue advantage of their helplessness on such occasions. The complainant, therefore, claimed refund of Rs. 800/- paid on 5.6.90 with 18% p.a. interest. The complainant further alleges that since he was harassed and humiliated he suffered great injury to his reputation and, therefore, claimed a sum of Rs. 50,000/- towards compensation and Rs. 1 lakh as compensation for defamation of the family.

THE complainant had filed the complaint before the District Forum, Bombay claiming total compensation of Rs. 93,800/-. Letter on he made an application for amendment. Considering the proposed amendment the amount was to exceed Rs. 1 lakh and therefore, the District Forum, Bombay by an order dated 5.10.90 returned the complaint to the complainant for caning out amendment and for its presentation before the appropriate authority. THE complainant, therefore, presented the same complaint to the State Commission on 12.10.90, after effecting the necessary amendment to his original complaint. A notice u/Sec. 13(2) of the Consumer Protection Act was served on the opposite parties. THE opposite party sent their written version joined on 20.12.90. Inter alia, in the written version the opposite parties contended that this commission has no jurisdiction to entertain and try the complaint as there is no cause of action. It has been submitted that the opposite party No. list the public charitable trust and the booking of the hall was made subject to the rules of the institution and the collection of utensils charges were justified and that the complainant was made aware about it. THE opposite parties denied the instance of switching off the lights and humiliation suffered by the complainant at marriage party on the date of incident. According to the opposite parties the complaint is false and made with the object of tarnishing the image of the institution in the eyes of the public. The complainant filed a rejoinder after the version of the opposite parties was received and also filed his affidavit and the six affidavits of his witnesses. He also filed the zerox copies of the receipts. The opposite parties files their affidavits through its employees and not by any of the office-bearers.

We have carefully perused the complaint and the various affidavits and documents filed by the complaint and also considered the written version and affidavits of the opposite parties. We have heard the complainant in person and the opposite parties through Shri S. V. Borker, Advocate. After considering the allegations, made in the complaint and the written version of the opposite parties the following points arise for our determination : - (a) Whether this commission has jurisdiction to entertain and try the complaint on the basis of the allegations made therein? (b) Whether the opposite parties render service for consideration and whether there were deficiencies in the service of the opposite party? (c) Whether on the basis of the facts it is proved that the complainant suffered injury as a result of negligence on the part of opposite party and is entitled for compensation as claimed?

AS regards the first and second point, we have no hesitation to hold that the opposite parties rendered service for consideration. The opposite party has placed on record a printed brochure of the institution in which the conditions for the hiring of hall are stated. It is in the vernacular ''Marathi'' language. The conditions very clearly indicate on the last page that the hiring charges for the Sabhagruha (hall) shall be Rs. 750/- and "building fund Rs. 2251/-. The total Rs. 3001/- is indicated as the hiring charges for other persons and for the members of the institutions Rs. 1501/-. Thus it is clear that the opposite party hired out the services of the hall for consideration. The definition of ''service'' in Section 2(o) under the Consumer Protection Act includes the service of any description which is made available to potential users. The definition is having a wide connotation. The definition is inclusive and contains provisions of facilities in connection with the services mentioned therein. In view of the inclusive nature of the definition, some of the facilities available to a consumer though not expressly stated in the definition clause are made available to potential users, like marriage hall. A perusal of the Rules and conditions of hiring out the hall in question clearly show that they fall within the definition of ''service'' u/Sec. 2(o) of the Consumer Protection Act It is an admitted fact that the hall in question was booked by the complainant on 7.3.90 and that he had fully made the payment of Rs. 3001/- as per the terms and conditions of the opposite parties and cheque of Rs. 800 was issued on the date of marriage celebration. In view of the undisputed facts of hiring of the hall by the complainant for consideration, it is fully established that the complainant was the potential user of the marriage hall as a consumer. The "consumer" has been defined in Section 2(d) of the Consumer Protection Act. The requirement of this provision is that a person who hires any service for consideration which has been paid can be legally considered as a "consumer" under the Consumer Protection Act Under the Consumer Protection Act, 1986 the definition of ''complaint'' is stated in Section 2(c) of the Act. sub-clause (iii) means any allegations in writing made by a complainant in respect of the services mentioned in the complaint suffered from deficiencies in any aspect In other words, if the complaint is made as regards the deficiencies in respect by a potential user of any services, in respect a marriage hall, the jurisdiction of the redressal agencies created under the Consumer Protection Act will be invoked. The combined effect of the definition of "complaint u/Sec. 2(c)(iii)", "consumer" Sec. 2(d)(ii) and "Service" Sec. 2(o) brings the present complaint within the jurisdiction of the State Commission for its decision. We are, therefore, of the view that this commission has jurisdiction to decide the present complaint under the provisions of the Consumer Protection Act, 1986.

AS it is admitted by the opposite party that the hall was hired out on payment of Rs. 3001/-to the complainant it is obvious that the opposite party had agreed to render the services to the complainant for consideration. Perusal of the receipt (Annexure ''A'') of Rs. 750/-clearly show that the hire charges were for the use of hall, for supply of electricity, cleaning charges and other connected charges in relation to the hall. It is printed receipt and the opposite party was to render the services to the complainant mentioned therein. In addition to these, the printed rules and conditions issued by the opposite party unmistakably indicated the services to be rendered to a hirer by the opposite party. It is nowhere stated either in the receipt or the Rules and Conditions that the hirer of the hall shall have to pay Rs. 800/- as additional charges for hiring the utensils. According to the opposite party, they have passed the necessary resolution for such a condition to be imposed on a hirer. But no copy of the resolution was filed on record nor was any such condition found in the printed rules and conditions. It clearly appears that this is an attempt on the part of the management to justify the amount of Rs. 800/-collected from the complainant in addition to the hiring charges. During the course of the hearing we asked the opposite parties, whether they are able to place on record the copy at a resolution in support of their submissions; copy of the resolution was produced. Thus, we find that Rs. 800/-has been collected by the opposite party from the complainant over and above the hiring charges which amounts to deficiency in the service. Moreover, receipt at Annexure ''A'' shows that the electricity charges were) included in the payment of Rs. 750/- paid by the complainant The opposite party was, therefore, bound to maintain electric lights during the function. If there is fault in supply of electricity during the function, it will also amount to deficiency in service in as much as the supply of electricity is a part of service to be rendered by the opposite party. The fact that the electric lights were not available for 8 to 10 minutes has been abundantly proved by complainant. There is ample evidence on affidavits of complainant Shantilal Jadhav, Mangaldas Shah, Bhalchandra Kelkar, AShok Abhyankar and Ramakant Marathe showing the interruption of light during function. The persons who filed the affidavits show that they are men of status in the society and there is no reason for them to swear in the false affidavits. AS against this positive evidence of the lights having been switched off amidst the peak hour of the reception. it has not been controverted specifically by the opposite party in their written statement. According to the complainant, the act of switching off the lights cannot be attributed to any of other reason except the management of the opposite party as the unjust and illegal demand of the opposite party to pay in cash Rs. 800/- was not fulfilled by the complainant. From the facts and circumstances, established in this case the only reasonable inference which can be drawn is that the opposite party indulged in the act of creating disturbance in the marriage celebration of the complainants. In our view, the aforesaid act has been intended by the opposite party solely with a view to extracting the additional amount from the complainant. Shri H.R. Gill very emotionally submitted that his reputation was at stake, at that moment and he had cut a very sorry figure in the presence of his relatives and the distinguished guests. He further submitted that the humiliation continued even after the function as the ladies were taunting his wife over the incident in the function. Shri Gill also submitted that the opposite party is indulging in similar tacties to extract more money from the various parties who hire the hall in order to extract more money which is an unfair trade practice. Shri Gill further submitted that in a sky like Bombay there is great demand for marriage premises due to paucity of the accommodation. The hirers are entirely at the mercy of the management of the premises. Some unscrupulous management therefore, exploit the situation by putting forth unreasonable and unjustified demands with a view to extracting more money. These demands include the hiring of a particular caterer, decorator and similar persons only. If outsiders are given the contract for these requirements, then they are not permitted to work at the hired premises. This unfair practice has become so frequent that it is causing great financial hardship to many parents. It is no doubt the choice of the owner of premises to fix his hiring charges for manage premises. But once the fixed charges are paid and the premises are booked, then there should not be any further demand under any pretext to hire any particular services. The parents should be tension free to go ahead with this marriage celebrations. There should not be any occasion on the part of management to coerce parties who go in for booking. We are pained to observe in the instant case that for a small gain the management indulged in unfair practice, and thus were found deficient in rendering service. "deficiency" has been defined in Section 2(g) of the Act. The definition is reproduced below : - "deficiency" means any fault, imperfection, short-coming, or inadequacy in quantity, nature and manner of performance which is required to maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service."

The underlined is ours. The definition of ''deficiency'' mentioned above is also very wide in its connotation and includes in its sweep any service, undertaken to be performed by a person in pursuance of a contract. The word "person" is further defined in sub-Section (m) of Section 2 of the Act. "Person" includes, every other association of persons whether registered under the Societies Registration Act, 1860(21 of 1860) or not Thus the opposite party which is a public Trust is a "person" within the meaning of the Act responsible to perform the conditions of the contract which he had undertaken to be rendered to complainant at the time of marriage celebration. The act of extracting amount of Rs. 800/- over and above agreed amount of rent switching off the lights and indulging in the act of disturbing the marriage reception pf the complainant are clearly the instances of deficiencies on the part of the opposite party. It is pertinent to note that the receipt Annexure ''A'' and the printed conditions show Rs. 750/- as the rent of the hall including the electric lights. But another receipt of Rs. 2251/- as Annexure ''B'' also amounts to an act of deficiency on the part of the opposite party. By the aforesaid receipt of Rs. 2,251/-dated 7.3.1990, the opposite party has collected that amount towards the building fund. It has nothing to do with the hiring conditions of the hall. Although the complainant has not made any grievance about the collection of Rs. 2251/-, this also suggests an act of collecting money by the public trust over and above the hiring charges of the hall. We are aware that the public institutions can survive mainly on the charities and donations. But the manner of extracting money under the guide of a public purpose is reprehensible. In view of our findings and observations in this case, their is no doubt that the complainant suffered injury in body, mind and reputation as a result of the deficiency in the service of the opposite party. The evidence placed on record through various affidavits filed by complainant clearly establish that on account of switching off the lights, the complainant was also put to embarrassing and humiliating situation in the eyes of the relatives and the distinguished guests. We have no doubt in our mind that the injury suffered by the complainant was the result or the negligence on the part of the opposite party to render service in relation to the marriage hall hired out to the complainant. Consequently, we find that as a result of the deliberate negligence on the part of the opposite party the complainant is not only entitled for the refund of Rs. 800/- but also is entitled for token compensation. The injury and humiliation suffered by the complainant cannot be measured in terms of money nor is there any yard stick to measure it. The complainant has urged that he suffered injury. Injury is not defined under the Consumer Protection Act. In Webster''s Ninth College Dictionary 1990, Edition, the meaning of ''Injury'' is given as under : - "An act that damages or hurts, wrong, violation of another''s right for which the law allows an action to the damages. Grievance means an act that inflicts undeserved hurt. Injustice applied to any act that involves unfairness to another or violation of his rights. Injury applied in law specifically to an injustice for which one may sue to recover compensation. Wrong applies also in law to any act punishable according to the Criminal Code. It may apply more general to any flagrant injustice.

Injury is also defined in the Indian Penal Code u/Sec. 44 which denotes any harm whatever illegally caused to any person in body, mind reputation or property.

CONSIDERING the facts and circumstances under which the incident in question has taken place it certainly caused substantial injury to the complainant in his mind & reputation. It is for this reason we are inclined to grant the complainant the token compensation. We, therefore, quantify the amount of token compensation of Rs. 500/- to be paid to the complainant by the opposite party. However, the claim of Rs. 1 lac stated in para 14 of the complaint for the willful acts of defamation cannot be granted as this is not a case of claiming damages for defamation. Thus we pass the following order : ORDER

THE opposite party shall refund Rs. 800/- to the complainant with 12% interest p.a. from 5.6.90 till the date of actual payment. THE opposite party also pay to the complainant amount of Rs. 500/- towards token compensation on account of negligence in the service. THE complainant also be paid Rs. l000/- by the opposite party towards the cost of this complaint. All the aforesaid payments be made by the opposite party within two months from the date of this order, failing which the amount of compensation and cost shall carry interest at the rate of Rs.18% p.a. after the expiry of two months from to-day. Complaint partly allowed.