SHIV BEHARI SHARMA vs Suraj Prakash Agrawal

RP 2413 of 2014 and RP 2414 of 2014 have been filed by Shri Shiv Behari Sharma against two orders of Rajasthan State Consumer Disputes, in Appeal No.145 of 2014 and the Appeal No.146 of 2014 respectively. While both appeals had arisen out of two separate complaints before the District Forum, the consumer dispute had arisen out of the same event. Marriage of son of one Complainant to the daughter of other had been fixed for 28.5.2011. For this purpose, bookings in the resort of the RP/OP were done for two days and booking amount of Rs.5 lakhs was paid in one case and Rs.2 lakhs in other. On 26.5.2011 the brother of one of the Complainants passed away. Due to this, the marriage ceremony had to be postponed. Consequently the two bookings in the resort for 27.5.2011 and 28.5.2011 were terminated by the Complainants.

HAVING failed to obtain refund of the booking amounts, two consumer complaints were filed before the District Forum, seeking refund with interest, compensation and cost. The District Forum allowed refund with 12% interest, Rs.5000/ - as compensation and Rs.1,500/ - as litigation cost, in each case. Appeals against the same were dismissed by the State Commission in the two impugned orders. However, as the two revision petitions arise from the same set of facts and circumstances, they are taken up together for disposal through this common order.

THE records of the two revision petitions have been carefully perused. Mr. Saransh Ghiya, counsel for the Petitioner and Mr. Rajesh Ranjan, counsel for the Respondents have been heard. The fact of booking and subsequent cancellation of the facility for performance of the marriage is not in dispute. It is also not in dispute that cancellation took place on account of death of a very close relative. What is in dispute is the right of the Complainants to refund of the deposits. The case of the Complainants before the fora below was that no arrangements had been done by the OPs and no expenditure had been incurred before communication of cancellation. Therefore, they were entitled to full refund of the deposits. On the other hand the RP/OP claimed that, under the agreed terms and conditions, he was entitled to retain upto 50% of the total estimated billing amount for cancellation within 30 days prior to the event. It was also claimed that expenditure had been incurred in arranging inputs for the meals to be served. In this behalf, the District Forum gave a clear finding that no evidence was led to prove the expenditure claim of the OP. Nor was there proof of any loss suffered by the OP from this cancellation.

BEFORE this Commission, neither the revision petition nor learned counsel for the Petitioner/OP point to any evidence in this behalf which was adduced before the fora below and was either ignored or misconstrued in the finding reached in this behalf. The main ground is that there was no deficiency of service on the part of the Petitioner. Primary defence of the revision petitioner has remained based on terms and conditions allegedly agreed between the parties under which for cancellation within 30 days of the event the OP would have right to charge 100% of the expected bill.

IN support, learned counsel for the revision petitioner relied upon the decision of this Commission in Mukta Kalyan Mandapam Vs. N. Radhakrishna and Anr., 1994 3 CPJ 54 . This was a case in which booking of the Kalyan Mandapam had subsequently been cancelled. The Opposite Party declined to refund the deposit on the ground of a specific stipulation of no refund in the contract between the parties. The National Commission held that the dispute as to whether the refund should have been allowed or not, is not a consumer dispute as no deficiency of service is involved.

ON the other hand, learned counsel for the Respondent/Complainant has placed reliance on the decision of this Commission in K. Gururaj and Ors. Vs. Sree Saraswati Tours and Travels and Anr., RP No.1597 of 2012, decided on 21.03.2013 (NC), where a package tour from Delhi to Badrinath/Kadarnath was organised through the Respondent. The Complainants were taken from Delhi to Haridwar, but the remaining part of the tour had to been cancelled on account of natural calamity. The National Commission held that there was no deficiency of service on the part of the OP in cancelling a part of the programme on account of a natural calamity. However, the National Commission took into account the expenditure. At the same time it dismissed the contention of the OP that expenditure towards arrangement for the cancelled part of the tour should also be taken into account, on the ground that it was neither the plea of the OP before the fora below nor was any evidence led in this behalf. The balance amount pertaining to cancelled part of the tour was ordered to be refunded with 12% interest.

LEARNED counsel for the Respondent/Complainant has vehemently argued that the Petitioner/OP has failed to make out any case before fora below on reimbursement of the cost incurred by him. He also argued that non refund of the deposit under these circumstances would amount to unjust enrichment as well unfair trade practice on the part of the Petitioner.

THE facts and circumstances of the case before us stand on a different footing. On the one hand cancellation of the booking in the background of sudden death of a very close relative cannot be deemed as unwarranted or capricious conduct on the part of the complainants. On the other, complete denial of refund of the deposits by the RP/OP, would amount to retaining the consideration without having to render the agreed service, even though no responsibility for this cancellation would lie at his door. Viewed in this light, while I find full justification for refund of the deposits, I deem award of 12% interest as excessive. The State Commission has refused to interfere with it on the ground that it falls within the discretion of the District Forum. Nevertheless, it is felt that it will just and equitable to reduce it to reasonable level.

THEREFORE , the Revision Petitions are partly allowed and the rate of interest awarded by the fora below is reduced from 12% to 7%. The entire amounts should be paid to the respective Complainants within a period of three months. Failing this additional interest at 3% will be payable for the period of delay. The Revision Petitions are disposed off in the aforesaid terms.