THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM
Present:
Sri. Santhosh Kesavanath P., President
Smt. Bindhu M. Thomas, Member
Sri. K.N. Radhakrishnan, Member
CC No. 202/2009
Saturday, the 26th day of February, 2011.
Petitioner : K.N. BHuvanendranatha Kamath,
Kanjirathimmoottil,
Vattappally, Changanacherry.
(By Adv. V.T Rejimon)
Vs.
Opposite party : M/s. Contour Holiday Resorts (P) Ltd.,
NSS Union Buildings, Perunna,
Changanacherry,
reptd. by its Chairman & M.D
Mr. N. Suresh, Kaveri, Puzhavathu,
Changanacherry.
(By Adv. Cherian Chacko)
O R D E R
Sri. Santhosh Kesavanath P., President.
Case of the petitioner filed on 8..7..2009 is as follows:
Petitioner is a business man doing business at Changanacherry. Opposite party is having a hotel complex and auditorium in the name and style as ‘Contour Convention’ Centre, A/C road, Changanacherry, having it is corporate office situated at NSS Union Building Perunna, Changanacherry. On 4..1..2008 petitioner booked the auditorium of the opposite party for the purpose of conducting marriage of his daughter, on 18..5..2008. The rent of the auditorium was fixed at Rs. 50,000/-. Opposite party demanded Rs. 25,000/- as advance from the petitioner and the petitioner paid the said amount on booking day itself. Receipt of payment of advance amount was issued by the Managing Director of the Holiday Resort himself. He told the petitioner that the balance Rs. 25,000/- has to be paid on 17..5..2008, when the auditorium is handed over to him for conducting the marriage. Marriage invitation card was printed by the petitioner and sent to distant relatives and friends in India and
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abroad stating the venue of marriage of his daughter at the said auditorium. Petitioner made every arrangements and preparations for conducting marriage of his daughter at the Contour Convention Centre. On 16..2..2008 petitioner received a letter, Dtd: 14..2..2008, intimating the petitioner that opposite party is intending to give the auditorium to somebody else on the date booked by the petitioner. Along with the letter opposite party sent a pay order for Rs. 25,250/-. But the pay order, sent along with the letter, was not proper and valid. Petitioners name was deliberately shown as Bhuvaneswar Kammath instead of Bhuvanendra Nadha
Kammath. Letter was also followed by a caveat petition containing false and concocted stories. During January last week one retired principal approached the complainant and offered to give compensation if the venue of marriage is shifted from Contour Convention Centre to any were else. But the petitioner did not agree to the unreasonable demand. Several other persons including one police official contacted the petitioner and requested the petitioner that the booking made with the opposite party may be cancelled. Petitioner never dream that the opposite party will venture to commit a breach of contract. But receiving a letter from the opposite party, and copy of caveat petition, the petitioner reasonably apprehended that opposite party will commit breach of agreement. Petitioner approached the Munsiff Court, Changanachery by filing a suit. In the suit an interim application for temporary injunction was also filed. But the interim application was dismissed on 18..5..2008. Opposite party has not granted the auditorium as agreed and committed the breach. There after aggrieved complainant was compelled to take a comparatively small viz. East West Auditorium at Vazhappally , Changanacherry and conducted the marriage of his daughter in hurry. According to the petitioner the loss and mental agony
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caused to the petitioner and his family cannot be expressed in words of monetary compensation. Due to the wrongful and deficient act of the opposite party petitioner suffered mental agony and so much so he is entitled for compensation. So, the petitioner prays for a compensation of Rs. 2 lakh for the loss and mental agony petitioner also claims refund of the advance amount of Rs. 25,000/- along with 18% interest from 11..1..2008. Petitioner claims cost of the proceedings.
Opposite party entered appearance and filed version contenting that the petition is not maintainable. According to the opposite party there is no deficiency in service or unfair trade practice on the part of the opposite party. Opposite party is having various business establishment. The Convention Centre is being constructed in 5 acre plot and is having an auditorium, hotel complex, cottages, artificial lake and staff quarters. Construction of the complex was started in year 2006 and the compensation of the project was expected to be November, 2007. It is being constructed at a cost of Rs. 6.5 crore out of this 3.3 crores was raised through loan from KSIDC. But due to labour problem and reasons beyond the opposite parties control the project could not be completed in Nevember, 2007. Auditorium was almost complete by December, 2007. Opposite party had no personal dealings with the petitioner in connection with the disputed booking with the auditorium on 11..1..2008 or any other date for the marriage of his daughter. The booking transaction was not done by the opposite party himself. Averment of the petitioner with regarding to senting of the invitation card is denied by the opposite party. During October 2007 opposite party happened to visit bangalore as usual business trip. One Muraleedhar met opposite party in company with one of his friends. On 20..10..2007 Muraleedhar enquired the opposite party that his daughter’s marriage is
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to be conducted on 18th May 2008. He enquired the opposite party that whether the auditorium will be completed before 18..3..2008. Opposite party assured him that the auditorium will be available on that day said Muraleedhar had paid an advance amount of Rs. 20,000/- and the opposite party issued hand written receipt for the same. Due to the busy business schedule and pre occupation and since the project was in complete opposite party forgot to inform his office at Changanacherry regarding the booking made with Muraleedhar. Opposite party used to keep at his office at Changanacherry with the chartered accountant, signed blank Cheque and signed letter heads of the company for day today functioning of the office. Without knowing about personal booking with said Muraleedhar they accepted the booking of the complainant. When the opposite party visited his office at Changanacherry during the last week of January 2008 the chartered accountant, friend of the opposite party inform the opposite party with regard to the booking of the complainant on 18..5..2008. Then only opposite party remembered that he has not inform the office about the earlier booking with said Muraleedhar. Immediately opposite party contacted the petitioner through telephone and told his inability to provide the auditorium on 18..5..2008. But the petitioner did not respond. So, opposite party inform the matter to one K.S Somanadhan Nair, retired Principal of NSS College, who is a near relative of said Muraleedhar, who is authorized to look after marriage arrangements locally at Changanacherry. Opposite party issued a registered letter, with acknowledgement due dated 14..2..2008, stating cancellation of the booking done by the petitioner, along with a pay order for Rs. 25,250/-, including interest and the same was accepted by the petitioner. Opposite party filed a caveat petition before the concerned court. According to opposite party he is legally and morally
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duty bound to provide the auditorium to said Muraledhar because he has booked the auditorium by October 2007. Petitioner is wealthy and affluent person of Changanacherry and local business man and Muraleedhar is a permanent resident of Bangalore. Opposite party always prefer the petitioner and other local persons to booke the auditorium since opposite party gets more business from the people of locality. The alleged mistake of name of the petitioner in the notice , pay order and in the caveat petition is not deliberate. According to the opposite party there is no breach of agreement or deficiency in service on their part. Opposite party pray for dismissal of the petition with their costs.
Points for determinations are:
i) Whether there is deficiency in service on the part of the opposite party?
ii) Relief and costs?
Evidence in this case consists of affidavit filed by both parties and Ext. A1 to A4 documents on the side of the petitioner and Ext. B1 to B8 documents on the side of the opposite parties.
Point No. 1
Admittedly marriage of the petitioner’s daughter was not conducted as agreed between the petitioner and opposite party at the convention centre of the opposite party named ‘Contour Holiday Resort’. According to the opposite party he has no personal dealings with the petitioner in connection with the disputed booking of the auditorium either on 11..1..2008 or any other date with regard to the marriage of the petitioner’s daughter. Opposite party contented that opposite party on 14..2..2008 issued a letter to the petitioner stating the inability to conduct the marriage of petitioners daughter as per booking on 11..1..2008. Original letter produced is
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marked as Ext. A3. In Ext. A3 letter opposite party stated that the booking of the marriage of the petitioner’s daughter was done at office of the opposite party on 11..1..2008. The receipt of advance issued by the opposite party to the petitioner is produced and the same is marked as Ext. A1. Opposite party has not disputed the signature of the opposite party in Ext. A1. According to the opposite party he used to keep with his chartered accountant friend signed blank Cheque and signed letter heads of the company for day to day functioning of his office. Without knowing the personal booking of the opposite party, with the said Muraleedhar at bangalore, office of the opposite party accepted the booking of the petitioner. From Ext. A1 document it can be seen that the signature of the opposite party was in the left side top corner. No prudent man will kept blank signed letter head by signing it on the top left corner. So, by perusing Ext. A1 we are of the view that Ext. A1 receipt was given by the opposite party himself. The other stories as stated by the petitioner in his affidavit and during cross examination is only a concocted story for the purpose of this case. Further, more admittedly the marriage of the petitioner’s daughter, to be conducted on 18..5..2008, is the first marriage convened in the Contour Holiday Resorts. So, being an opening ceremony function opposite party as the owner will be cautious about its booking. The case of opposite party that he forgot with regard to the earlier booking, with one Muraleedhar at Bangalore, due to his busy business schedule is not much probable and believable. So, we disagree with the argument put forth by the learned counsel for the opposite party. According to the opposite party there is no other alternative other than to provide the auditorium to said Muraleedhar and further more opposite party informed the petitioner within 2 weeks of the booking about the inability for giving the auditorium to the petitioner.
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In our view the act of the opposite party amounts to an inadequacy in the quality, nature and manner of performance which is required to be maintained to be been undertaken to be perform in pursuance of a contract and definitely that act of breach amounts to deficiency in service. The other question to be decided is with regard to the quantum of damages to be allowed. Opposite party himself admitted in their version that the petitioner is a wealthy and affluent person of Changanacherry and a local business man. So, while fixing the quantum of damages the feelings and status of the petitioner in the society is to be considered. Further more, admittedly the petitioner was compelled to take a comparatively small hall than the opposite parties convention centre. Definitely due to the act of the opposite party the petitioner was forced to conduct marriage of his daughter in a hurry. Being a father petitioner has his own ambition desires and colourfull thoughts of the marriage of his daughter. Without saying the petitioner’s daughter and his near relatives both ashamed and insulted in front of all invitees, friends, relatives and the in-laws in their family. So, in our view the petitioner is entitled for un liquidated damages. According to the opposite party along with a letter opposite party at the earliest sent a pay order for the advance amount with its interest to the petitioner. So, the petitioner is not entitled for the compensation other than refund of the advance amount. The pay order issued by
the petitioner to the opposite party is produced and is marked as Ext. B4. From Ext. B4 it can be seen that the name of the petitioner as shown in the pay order is not correct. So, the said pay order cannot be said to be proper and valid. From the available evidence it can be seen that there was litigation between the petitioner and opposite party followed by the booking of the auditorium. So, without saying what
had happened caused much hardship and sufferings to the petitioner and is to be heavily compensated. So, point No. 1 is found accordingly.
Point No. 2
In view of the finding in point No. 1. Petition is allowed. In the result petitioner is entitled for the following relief’s. (a) Opposite party is ordered to pay the petitioner an amount of Rs. 75,000/- as compensation for the loss and sufferings sustained to the petitioner due to the breach of agreement between the petitioner and opposite party. (b) Opposite party is ordered to refund the petitioner the advance amount of Rs. 25,000/- with interest at the rate of 9% from the date of booking till
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realization (c) Opposite party is ordered to pay an amount of Rs. 3,000/- to the petitioner as litigation cost.
Order shall be complied with within one month of the receipt of the copy of the order.
Dictated by me, transcribed by the Confidential Assistant, corrected by me and pronounced in the Open Forum on this the 26th day of February, 2011.
Sri. Santhosh Kesavanath P., President Sd/-
Smt. Bindhu M. Thomas, Member Sd/-
Sri. K.N. Radhakrishnan, Member Sd/-
APPENDIX
Documents for the Petitioner
Ext. A1: Receipt Dtd: 11..1..2008
Ext. A2: Invitation letter of the marriage between Gayathri with Diljeeth
Ext. A3: Letter issued by the opposite party to the petitioner Dtd: 14..2..2008
Ext. A4: Cheque Dtd: 13..2..2008 for an amount of Rs. 25,250/-
Documents for the Opposite party
Ext. B1: Copy of letter Dtd: 25..10..2007 issued by the President, Karnataka
Nair Service Society.
Ext. B2: Copy of the letter issued by the opposite party to Muraleedhar Dtd:
20..10..2007
Ext. B3: Copy of invitation letter of the Daughter of Muraleedhar
Ext. B4: Copy of the cover of the invitation letter.
Ext. B5: Copy of receipt issued by the Post Master, Changanacherry.
Ext. B6: Order in IA 419/08 in OS- 61/2008
Ext. B7: Copy of order in OS 61/2008
Ext. B8: Extract of complete tax assessment register for the year 2006-2007
kept in Vazhappally Grama Panchayath.
By Order,
Senior Superintendent
Despatched on / Received on
