IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOLLAM
DATED THIS THE 21ST DAY OF JUNE 2018
Present: - Sri. E.M.Muhammed Ibrahim, B.A, LLM. President
Sri. M.Praveen Kumar,Bsc, LLB ,Member
CC.No.98/2017
Pathrose : Complainant
S/o Xavier
Edakkandathil Veedu
Dalavapuram, Neendakara P.O
Kollam
[By Adv.Sajumon Vandrose, Kollam]
V/S
Babu.A : Opposite party
Proprietor
St.Antony’s Band Troupe
Das Bhavan (Plavila Veedu)
Near Kumbalam Chruch
Kumbalam P.O
Kundara
Kollam
ORDER
SRI. M. PRAVEEN KUMAR, MEMBER
The case is based on a complaint filed by Pathrose against Sri.A.Babu, proprietor, St. Antony’s Band troupe seeking to direct the opposite party to pay Rs.5,00,000/- as compensation and also direct the opposite party to pay costs of the proceedings to the complainant.
The averment in the complaint is short are as follows. The complainant is a ‘Kaikkaran’ of the St. Joseph church , Thekkumbhagom , Chavara South. The opposite party is the owner and proprietor of the band troupe named St.Antony’s
(2)
troupe , Kumbalam , Kollam . Opposite party entered in to an agreement with the complainant to perform the band troupe in the procession of St. Joseph Church in connection with feast for the year 2017 fixed on 28/01/2017. As per the agreement the remuneration for the programme was fixed at Rs.26,000/- and Rs.4000/- was received by the opposite party as advance. The opposite party had given an assurance that he and his Band troupe will be present on 28/1/2017 evening 4 ‘O’ clock at the church premises and promised to perform with at most professionalism. Procession will pass through Ashtamudi Lake, the complainant had arranged a separate Changadam for travelling through Ashtamudi lake. But neither opposite party nor his troupe turned up as agreed on the very important day to perform. The complainant and the church people was totally disappointed and immediately tried to contact the opposite party. But his phone was switched off and realized that the opposite party had deliberately cheated the complainant and the whole community and violated the agreement executed by the opposite party. The deliberate violation of the terms of the contract would come under the definition of deficiency in service under the Consumer Protection Act. The act of the opposite party had caused unexplainable metal agony pain and sufferings. Immediately the complainant arranged a choir team for singing songs for accompanying the procession. For the immediate arrangements of the choir team huge amounts were spend besides making payment of Changadam arranged for the
(3)
respondents band troupe. After this a legal notice was served to the respondent through his counsel demanding Rs.5,00,000/- including the advance amount paid, the money spend for the immediate arrangements of the choir troupe and as compensation. Said notice was returned with noting that “ Adds refused Rtrn to Sdr- 3/2/2017 and Door locked -4-2-2017”.
According to complainant he suffered huge monetary loss as well as mental pain due to the unlawful, unjust, act of the opposite party. Hence the complainant is constrained to file this complaint praying for an order directing the opposite party to pay compensation for all the deficiency in service and unfair trade practice.
Though opposite party received notice from the forum he has neither appeared nor filed any written version and set exparte on 28/02/2018.
The point that would arise for consideration are:-
- Whether there is any deficiency in service or unfair trade practice on the part of the opposite party?
2.Whether the complainant is entitled to get the amount claimed in the complaint ?
(3).Reliefs and costs?
(4)
The complainant filed proof affidavit and got marked Exts P1 to P3 documents.
Points No.1 and 2:-
The averment in the complaint and proof affidavit coupled with would establish that the complainant had booked a band troupe conducted by opposite party by paying Rs.4000/- as advance by agreeing to perform band troupe at St.Joseph Church in connection with the feast and procession on 28/01/2017. Ext.P1 programme notice published by the church committee and Ext.P2 agreement executed by the opposite party would establish the above case of the complainant. The unchallenged averments in the affidavit would establish that the opposite party after agreeing to perform the band troupe and after receiving advance has failed to perfume as agreed. It is also clear from the Ext.P3 lawyer notice that the complainant had sent a lawyer notice to the opposite party stating facts and demanding compensation for the deficiency in service and unfair trade practice committed by the opposite party . The learned counsel for the complainant has argued that complainant suffered huge monetary loss as well as mental pain due to the unlawful and unfair trade practice and deficiency in service on the part of opposite party and spent additional charges for Changadam and choir troupe . But the complainants has not produced any documentary evidence such as voucher
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for proving the additional expenses. Even if the opposite party remains exparte the
Forum cannot grant any amount towards the additional charges or loss without any materials to prove at least prima facie that the complainant has spent any such amounts. The complainant seeks to award Rs.5 lakhs as compensation causing mental agony, pain and sufferings due the deficiency in service on the part of the opposite party. The act of the opposite party in not performing the programme as agreed would definitely amount to unfair trade practice and deficiency in service. Hence the complainant is entitled to get compensation for the same. In view of the facts and circumstances of the case we are of the view that an amount of Rs.50,000/- will be reasonable compensation.
The points answered accordingly.
Points No.3
In the result, the complaint stands allowed directing the opposite party to pay Rs.4000/- with interest @9% per annum from 28/01/2017, Rs.50,000/- as compensation and Rs.2000/- as costs of the proceedings within 45 days from today failing which the complainant is entitled to realize an amount of Rs.54,000/- with interest @12% per annum along with costs of the proceeding from 28/01/2017 till realization from opposite party and from his assets.
Dictated to the Confidential Assistant Smt.Vijimole.G transcribed and typed
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by her corrected by me and pronounced in the Open Forum on this the 21st day of June 2018.
E.M.Muhammed Ibrahim:Sd/-
M.Praveen Kumar: Sd/-
Forwarded/by Order
Senior Superintendent
INDEX
Documents marked for the complainant
Ext.P1:- Programme notice published by the church committee
Ext.P2:- Agreement executed by the opposite party
Ext.P3:- Lawyer notice
E.M.Muhammed Ibrahim:Sd/-
M.Praveen Kumar: Sd/-
Forwarded/by Order
Senior Superintendent
