DOF.28/1/2006

DOO. 13/9/2010

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR

Present: Sri.K.Gopalan:  President

Smt.K.P.Preethakumari:  Member

Smt.M.D.Jessy:               Member

Dated this, the  13^th    day of   September    2010

CC.17/2006

K.T.Radhakrishnan,

Secretary,

Kumban 23 Aaghosha Committee,

Muzhappilangadu,                                                         Complainant

(Rep. by Adv.K.K.Balaram)

1.M.K.Mohanan,

  Secretary, Music Moments,

  K.P.A Building,

  Vellakkinar Junction,

  Alappuzha

  (Rep. by Adv.P.Dilesh Kumar)

2.E.Sivadasan,

  S.N.Traders,

  502-C, IIIrd floor,

  Sanker Building,

  M.M.Ali Road,

  Kozhikode Dist.

  (Rep. by Adv.C.K.Ambikasuthan)

3.R.Harikumar,

  Secretary,

   Music Moments,

  Sreerekha Bhavan,

  Padinharay Nada,Mavelikkara.                                                           Opposite parties

O R D E R

Smt.K.P.Preethakumari, Member

            This is a complaint filed under section 12 of consumer protection act for an order directing the opposite parties to refund Rs.500/- which was received as advance by the opposite parties along with compensation of Rs.1, 00,000/- with cost.

            The case of the complainant is that he was the Secretary of Kumbam 23 Agosha Committee for Sree Koorumba Bhagavathy Temple, Muzhappilangad. The first opposite party is conducting Ghanamela and Mimics parade in several places including temples. The above committee had decided to conduct Ghanamela and mimics parade on 7.3.05 after 9.30 p.m in connection with the renovation of worship place of the above said temple. Accordingly the opposite parties agreed to conduct the above programme by fixing their remuneration as Rs.17, 000/-. The second opposite party had received Rs.500/- as advance for the programme, since he is the representative of opposite party at Kozhikode area on 14.2.05 after giving receipt in the name of 1^st opposite party institution. The complainant’s committee has done all works which are necessary for the smooth conduct of the programme including the issuance of public notices. But the first opposite party has intimated the complainant on 7.3.05 that they could not conduct the Ganamela and Mimics on 7.3.05. Even though the complainant compelled the 1st opposite party to conduct the programme, they are not willing to dos so. So the complainant being afraid of the public, they search for other troops for conducting the same function in the same day. Accordingly on 7.3.05 at evening the complainant approached a Ganamela troupe at Kozhikdoe and they agreed for conducting Ghanamela for huge consideration. As the complainant has no way-out, he agreed for huge consideration. Moreover the mimics parade was entrusted to a dance troupe at Thalassery by paying Rs.14, 000/-. To pay the remuneration for these two troupes the complainant was constrained to take loan on interest from several people, causing financial burden to the petitioner committee. So due to the act of 1^st opposite party the complainant has caused severe mental as well as physical hardship and financial loss. All these were caused due to the deficient service of the 1^st opposite party. Hence this complaint.

            Upon receiving the notice from the forum opposite parties appeared and filed their version. As per the version filed by 1^st opposite party,  3^rd opposite party was impleaded. Even though proper intimation was given he was absent and hence set exparte.

             1^st opposite party filed version with the following contentions that he has no transaction or relationship with the complainant and hence he is an unnecessary party. The Forum has no territorial jurisdiction to try the case since the 1^st opposite party is not conducting any institution namely Music moments or he is the Secretary of the said Institutions. The 1^st opposite party has no connection with Music moments and does not know whether the institution Music Moments is conducting Ghanamela and Mimics Parade in several parts of Kerala and temple premises. 1^st opposite party did not entered with any agreement with the petitioner committee to conduct Ghanamela and Mimics Parade on 7.3.05 or received Rs.500/- as advance. The 1^st opposite party does not know whether 1st opposite party is representative at Kozhikode had received any amount as advance on 14.2.05 and issued receipt. The 1^st opposite party does not know the 2^nd opposite party and not aware of any amount received by him from the complainant and hence he is not liable for any amount. If any financial loss or mental agony is caused to the complainant due to non performance of Ghanamela and Mimics Prade, 1^st opposite party is not liable for the same. The 1^st opposite party has not informed anybody that the Ghanamela and mimics parade connote be conducted on 7.3.05 and if 2^nd opposite party or Music moments had mentioned the name of 1^st opposite party, 1^st opposite party is not liable. The 1^st opposite party had never conducted an institution by name Music Moments and had never become the Secretary of it. If the Institution had printed the name “M.K.Mohanan” the 1^st opposite party is not responsible for the same. The 1^st opposite party had not received any notice from the complainant. After received the notice from the Forum, he conducted an enquiry with respect to the above institution Music moments, he came to know that it is a Music troupe running by M.Harikumar at Mavelikara. So if the complainant had sustained any loss from the above Music moments, he has to sue the above said Harikumar and 2^nd opposite party. So the complaint is bad for non joinder of necessary party. More over since the complaint is vexatious and malicious one he is entitled to get compensatory cost of Rs.3000/- and the complaint is liable to be dismissed.

               2^nd opposite party  filed version admitting that he is  only a booking agent of music moments of which one  K.Harikumar is the Secretary and the complainant has executed an agreement with the Music moments which was duly represented by its Secretary. The 2^nd opposite party has no commitment or any contractual obligation to the complainant’s committee since the complainant has entered into a contract with the secretary Music moments, Aalapuzha. The Complaint has no locusstandi to raise any claim against music moments, since the complaint and the person who signed the contract are not the same person. The 2^nd opposite party is only a booking agent and  can only make laison work in between the complainant and committee and the Music Moments and hence 2^nd opposite party has no liability and hence the complaint is liable to be  dismissed.

            Upon the above contentions the following issues have been raised for consideration.

1. Whether there is any deficiency on the part of opposite party?

2. Whether the complainant is entitled to any relief as prayed in the complaint?

3. Relief and cost.

            The evidence in this case consists of the oral testimony of PW1, DW1 and Exts.A1 to A5.

Issue Nos.1 to 3

            The complainant’s case is that the opposite parties had entered into a contract and the 2^nd opposite party had received Rs.500/- as advance towards the consideration for conducting Ganamela and mimics parade in the premises of the  SreeKurumba Bhagavathi temple on 7..305 and had withdrawn from the above promise and hence he had suffered lot of mental  as well as physical hardship and financial loss due to the deficient service of opposite parties and to  prove his case he had examined as PW1 and produced  documents such as exts.A1 to A5 i.e. copy of lawyer notice, receipt issued by 2^nd opposite party infaovur of complainant for advance amount of Rs.500/- dt. 14.2.05, Agreement for conducting Ghanamela, agreement dt.7.3.05 by Telly Dance Group, agreement dt.7.305 by singing Birds orchestra, Calicut. In order to disprove the contention the 2^nd opposite party also was examined as DW1. The 2^nd oppose party admits that the complainant had booked for the above said troupe byname Music moments through him and he had received Rs.500/- as advance. Ext.A2 is the booing receipt issued by the 2^nd opposite party through which he had received Rs.500/- as advance. In the Ext.A2 he has not stated anything to show that he is issuing the Ex.tA2. Under the capacity as an agent. In Ext.A2 receipt it is stated that “ Be-¸pg ayqkn-¡vsam-saâ-knsâ Km\-ta-f-bpT (C-S-th-f-bn anan-Ivkp-T) \S-¯p-hm³ {]Xn-^e XpI-bmb 17000/þ dq]-bn AU-zm³kmbn 500  cq] In«n. t{]m{KmT cm{Xn 9 1/2 {]ZÀi\ ØeT þ apg-¸n-e-§mSv {io Iqdp-a] `K-h-Xn-t£-{X-]-cn-k-cT “. Even though 2^nd opposite party contended that he is only an agent of 3^rd opposite party no reliable evidence is before us to prove that he was only an agent. The Ext.A3 is a” Ganamela Agreement” which was issued by 3^rd opposite party. The condition to agreement is in printed form in the letter pad of the above said Music moments. In this Ext.A3 the name and address of 1^st opposite party is shown in the top left hand side as office Secretary and that of 3^rd opposite party is shown in the top left hand side as Camp secretary. But 1^st opposite party contended that he was in no way connected with the music moments and if any body has shown his name in any letter he is not responsible for the same since it was given without his knowledge and consent. The DW1i.e.,2^ndopposite party deposed before the Forum that“   taml-\s\ ]cn-N-b-ap-­v. taml-\³   programme agent BWv. Taml-\\p Cu Imc-y-§Ä And-bm-T. tamls\ ]me-¡mSvsh¨v I­-t¸m-gmWv ]cn-]m-Sn-\-S-¯m³ ]än-bnà F¶ Imc-yT ]d-ª-Xv. taml-\³Cu t{]m{KmT _p¡v sNbvXp \S-¯n-sIm-Sp-¡p¶ tPmen Hcp-]m-Sn-Im-e-ambn sNbvXp-h-cp-¶p. He further deposed that agreement     FT.-sI.-tam-l-\³ sk{I-«-dn, sI.-]n.-F.-_nÂUn-T-Kv, Be-¸pg F¶ A{UÊv taml-\-sâ-Xm-sW¶p F\n-¡-dn-bmT, taml-\-\vI¯v hcp¶ A{U-Êv-C-Xm-Wv.-F-{Kn-saân ]dª Øe¯v Xs¶-bmWv taml-\sâ B^okv.  From the above deposition it is clear that the 1^st opposite party M.K.Mohanan has close relationship with the “Music Moment”. There is no evidence before us that he is only an agent. More over Ex.tA3 agreement proves that he is the Secretary of the above said troupe. The Ext.A3 was issued by 3^rd opposite party who is the camp Secretary of the above said Music moments. The DW1 also deposed that 3rd opposite party is the owner of the above said troupe by name Music moments. Eventhough he had received intimation he was not turned before the Forum to prove  otherwise. So it is clear from A2 and A3 and from the above discussion that the opposite parties 1 to 3 are responsible persons of the above said music troupe, who were canvassing and conducting programmes for and on behalf of the troupe music moments. It is an admitted fact that they were not conducted the programme on 7.3.05 at 9.3-0 pm as promised so thy are responsible for the all consequences that the complainant had met with.

            The complainant pleaded that since it is a public programme  arranged with the money of the public, he had suffered so much of mental, physical and financial hardships due to the unfair trade practice of the opposite parties. According to the complainant the 1^st opposite party informed him that they are not in a position to conduct the programme as promised on 12.30 p.m on the date on which the programme was fixed. The opposite parties were not denied this version. We all know that the consequences of sudden cancellation of a public progamme which conducting with the public money. In such cases the gravity of mental as well as physical strain suffered by the complainant and other members of the committee are very high. So we asses the amount of compensation for the mental and physical strain suffered by the complainant along with the members as Rs.10, 000/-. The complainant has produced Ext.A4 and A5 through which they have conducted two programs i.e. Cinematic dance and Ganamela which are for an amount of Rs.10, 000/- and Rs.20, 000/- respectively. So the complainant is entitled to get that amount also from the opposite parties by way of compensation. The complainant is also entitled to get Rs.1000/- as cost and the advance amount of Rs.500/.-. Hence we are of the opinion that there is gross deficiency and unfair trade practice on the part of opposite parties for which they are liable to compensate Rs.40, 000/- as calculated along with the advance amount of Rs.500/- with Rs.1000/- as cost of the proceedings and order passed accordingly.

            In the result, the complaint is allowed directing the opposite parties to pay

Rs.40, 000/- (Rupees Forty thousand only) as compensation, Rs.500/- (Rupees Five hundred only) as refund of advance and Rs.1000/- (Rupees One thousand only) as cost of the proceedings to the complainant within one month from the date of receipt of this order, failing which the complaint is at liberty to execute the order as per the provisions of consumer protection Act.

                                       Sd/-                              Sd/-                  Sd/-

President                      Member           Member

Appendix

Exhibits for the complainant

A1.Copy of the lawyer notice sent to OP

A2.Receipt dt.14.2.05 issued by 2nd OP

A3.Agreement executed by complainant and 1^st OP

A4.Agreement executed between complainant and Telly Dance Troup

A5.Agreement executed between complainant and singing Birds orchestra, Calciut

Exhibits for the opposite parties: Nil

Witness examined for the complainant

PW1.Complainant

Witness examined for the opposite arties

DW1.E.Sivadasan

                                                                        /forwarded by order/

Senior Superintendent

Consumer Disputes Redressal Forum, Kannur