BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 143/2004 Filed on 25.03.2004

Dated : 31.03.2012

Complainant :

The Secretary, Advisory Committee, Manicode Siva Temple, Vayyettu, Venjaramoodu P.O, Thiruvananthapuram.

(By adv. S. Reghukumar)

Opposite parties :

1. Cini Sounds, Kulathoor, Kazhakkuttom P.O.

    

2. Shahnawaz, Proprietor, Cini Sounds, Kulathoor, Kazhakkuttom

(By adv. V. Bhuvanendran Nair)

This O.P having been heard on 16.03.2012, the Forum on 31.03.2012 delivered the following:

ORDER

SMT. BEENAKUMARI.A: MEMBER

Complainant in this case is the Secretary of the advisory committee of Manicode Siva temple. The most important festival of the temple is the Sivarathri Mahotsav which is conducted every year and the said festival was to be conducted on 16^th, 17^th and 18^th February 2004. For the festival, the advisory committee had called for the quotations from various sound and electrical contractors to the work of illumination and to install sound systems. The advisory committee received 3 quotations. The advisory committee selected the quotation of M/s Rozario Sounds and Electricals who had quoted the lowest price for illumination work i.e; Rs. 89,000/-. But it was informed that the firm cannot carry out the work and subsequently the committee was constrained to award the contract to the second lowest bidder viz Cini Sounds. The tender document contained the specification of work to be executed. It is after perusing the tender document that the opposite parties furnished their quotation. Thereafter the opposite party started the work of illumination as agreed on 16.02.2004. But the work was either completed on 16^th or on 17^th. The paucity of materials as well as man power resulted in delay in execution of the work. A portion of the work alone was completed on 18.02.2004. It was noticed by the complainant at about 7.30 p.m on 18.02.2004 that illumination was not done as per the specification. The said anomaly was also brought to the notice of the opposite party. They did not furnish proper explanation. The committee members once again requested the opposite party to adhere to the specification and complete the work. But they shirked their responsibility by saying that they do not have either the required material or skilled manpower to do the work as per the specifications. Further the lights and sound were switched off at 12 midnight on 18.02.2004 when the opposite parties were duty bound to continue till day break. It is pertinent to note that 18.02.2004 was the day of Sivarathri. The illumination was not done as per the specification stipulated in the quotation. Since the illumination work has not been carried out as per the specification stipulated in the quotation the prominent festival of the locality became a lackluster event and the said events led to monetary loss, undue hardships and irreparable injury to the members of the advisory committee and hardship to the worshipers of the temple. Later on 20.02.2004 the opposite party furnished a letter admitting and confessing the deficiency committed by them in the execution of the work. The complainant alleges that the act of the opposite party constitutes deficiency in service and unfair trade practice. The said events led to monetary loss, undue hardships and irreparable injury to the members of the advisory committee especially the Secretary experienced mental agony and suffering.

Opposite parties filed version through the proprietor, Cini sounds denying all the allegations levelled against them. The opposite parties stated that the contention of the complainant is against the facts. The illumination has to be installed and live on 16^th, 17^th and 18^th of February 2004. The complainant's contention that the work started on 16^th February 2004 is against the facts. The work was started weeks before and ready for illumination on 15.02.2004 onwards. The assigned works were done in time with ulterior perfection and the opposite party has the power to do the same as agreed in accurate time. The opposite party has so many experience and had prized in competition conducted in the Kazhakkuttom Mahadeva temple. No deficiency has been committed by the opposite party. His works were perfect and his performance was applausing. The opposite party never had issued any letter of confession and there was no need of that. The agreed works were perfectly done by the opposite party. Ext. P5 is a fraudulent letter forged for the purpose of cheating and harming the reputation of the opposite party and the complainant knowing fully that it is likely to be used as genuine. The complainant had drafted a confession letter on the blank signed letter pad for the use of agreement towards the complainant by the opposite party. After successfully completed the agreed work, the complainant had given only Rs. 80,000/- to the opposite party against the agreement of paying Rs. 1,30,000/-. After the purpose has been duly served, the complainant purposefully evaded from balance payment and caused breach of agreement to the opposite party. The opposite party had made a series of requests to the complainant for more than one month he had sent an advocate notice to the complainant on 15.03.2004. The complainant had accepted the same on 17.03.2004. After accepting the said notice, the complainant fraudulently forged a confession letter in the blank letter pad and filed this case on 23.03.2004 without mentioning anything about the notice for defeating the opposite party's claim of repayment of balance amount. The complainant never cared to issue a notice to the complainant at any time before filing this petition. The petition filed in hurry burry on 23.03.2004 but the reply was given with ulterior motive on 02.04.2004. The opposite party states that there is no fault or imperfection in manner of performance on the part of the opposite party.

Complainant and opposite party in this case filed proof affidavits. From the side of complainant 8 documents were marked as Exts. P1 to P8. Opposite party has produced one document which was marked as Ext. D1.

The points to be ascertained are:-

1. Whether there is deficiency in service from the side of opposite parties?

2. Reliefs and costs.

Points (i) & (ii):- The case of the complainant is that the complainant entrusted the illumination work of Manicode Siva temple in connection with 'Sivarathri Mahotsav' on the basis of the quotation with the opposite party i.e; Cini Sounds. Ext. P1 is the certificate dated 19.03.2005 issued by Pirappancode Sub Group Officer, Travancore Devaswam Board. That document shows that the deponent who filed the chief affidavit in this case is the Secretary of the advisory committee. Ext. P7 is the tender document. Ext. P5 is the copy of quotation of Cini Sounds i.e; opposite party. As per this document the agreed rate of work is seen as Rs. 1,30,000/-. The festival was to be conducted from 16^th to 18^th February in the year 2004. The complainant alleges that the opposite parties had furnished their quotation after perusing the tender documents and they have started the work of illumination very late on 16.02.2004. But they never completed the work even on 16^th or 17^th February 2004. The illumination was not done as per the specification and the anomaly was brought to the notice of the opposite parties and more over they switched off the lights and sounds at mid night when the opposite parties were duty bound to continue till 6 am. But the complainant has not produced any evidence to prove the allegation. We cannot admit that allegation without any proof. The complainant admitted that they had paid only Rs. 80,000/- to the opposite party against their agreement of paying Rs. 1,30,000/-. The complainant argued that since the illumination work has not been carried out as per the specification stipulated in the quotation, the prominent festival of the locality became a lackluster event and the said events led to monetary loss, undue hardships and irreparable injury to the members of the advisory committee and hardships to the worshipers of the temple. Hence they claimed Rs. 80,000/- as compensation and other consequences. The complainant has filed proof affidavit and examined him as PW1. Opposite party cross examined the complainant. At the time of cross examination PW1 answered the question put forwarded by the opposite party that “illumination work ആരെങ്കിലും sponsor ചെയ്തതാണോ ക്ഷേത്ര കമ്മിറ്റി ചെയ്തതാണോ? ക്ഷേത്ര കമ്മിറ്റി നേരിട്ട് ചെയ്തതാണ്”. From this deposition we find that the complainant has no liability to answer to anybody else about the defects in illumination work. In this case the complainant argued that the illumination work was contributed by sponsors from the locality and they have withdrawn from the obligation to contribute money as they agreed. But the complainant has not produced any evidence for proving that statement. If the fact is so the complainant should have produced the non-payment receipts or coupons. In this case complainant relied only one document i.e; Ext. P8 executed by the opposite party. In that document opposite party states that “ഞാന്‍ അവിടെ വന്ന് ഏരിയാ കണ്ടുവെങ്കിലും ഒരു കിലോമീറ്റര്‍ ദൂരം മാത്രമേ കണക്കാക്കിയിട്ടുണ്ടായിരുന്നുള്ളൂ. പക്ഷേ രണ്ട് കിലോമീറ്റര്‍ ദൂരമുണ്ടായിരുന്നതിനാല്‍ ഞാന്‍ പ്രതീക്ഷിച്ച പോലെ വര്‍ക്ക് ഭംഗിയാക്കുവാന്‍ എനിക്ക് കഴിഞ്ഞില്ല”. This letter is the only piece of evidence to prove the contention of the complainant. In that letter the opposite party requested the complainant to pay the balance amount of Rs. 50,000/- to him. The opposite party's contention for the circumstance in which he has written Ext. P8 letter is that in order to get the balance amount and for getting further works of the complainant, as per the direction of the complainant he had written and given Ext. P8 to the complainant. At the time of cross examination he deposed that “താങ്കളുടെ ഭാഗത്ത് നിന്നും വീഴ്ച വന്നതിനാലാണ് 20.02.2004-ല്‍ താങ്കള്‍ ഉത്സവകമ്മിറ്റിക്ക് 'ഇനി യാതൊരു വീഴ്ചയും വരുത്തുകയില്ലായെന്നും അടുത്ത കൊല്ലവും പണി തരണമെന്നും' പറഞ്ഞ് ഒരു കത്ത് കൊടുത്തതെന്ന് പറയുന്നു” (Q) “അവര്‍ അടുത്ത കൊല്ലവും പണി തരണമെങ്കില്‍ ഇങ്ങനെ ഒരു കത്ത് കൊടുക്കണമെന്ന് എന്നോട് പറഞ്ഞു. അതിനാലാണ് ഞാന്‍ അങ്ങനെ കത്ത് കൊടുത്തത്”. Opposite party argued that it was the situation in which he has written Ext. P8 letter to the complainant. But the complainant did not pay the balance amount. Hence he sent an advocate notice to the complainant on 15.03.2004. The complainant had accepted the same on 17.03.2004. After accepting the said notice the complainant filed this complaint on 25.03.2004 before this Forum. The complainant argued that without mentioning anything about the notice for defending the opposite party's claim of balance amount of Rs. 50,000/-. In this case the opposite party has raised another contention that the complainant is not a consumer as defined in the Act. The whole facts of the case is of civil nature. From the above mentioned discussions we find that the contention raised by the opposite party is genuine and correct. The complainant in this case failed to establish his case. From the evidences adduced by both parties, we find that the purpose of the complainant in filing this case is to evade from the liability of payment of balance amount of Rs. 50,000/- to the opposite party. Hence the complaint is dismissed.

In the result, the complaint is dismissed.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 31^st day of March 2012.

Sd/- BEENAKUMARI. A : MEMBER

Sd/-

G. SIVAPRASAD : PRESIDENT

Sd/-

S.K. SREELA : MEMBER

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O.P. No. 143/2004

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - P. Vamadevan Pillai

II COMPLAINANT'S DOCUMENTS :

P1 - Certificate dated 19.03.2005 issued by Pirappancode Sub

Group Officer, TDB.

P2(a) - Attested copy of page No. 69 of the minutes book

P2(b) - Attested copy of page No. 70 of the minutes book

P2(c) - Attested copy of page No. 73 to 75 of the minutes book

P3 - Attested copy of page No. 61 & 62 of the minutes book

P3(a) - Attested copy of page No. 66 of the minutes book

P4 - Copy of quotation of Rozario Sounds & Electricals

P5 - Copy of quotation of Cini Sounds

P6 - Copy of quotation of Moly Sounds

P7 - Copy of tender document

P8 - Copy of letter dated 20.02.2004 issued by opposite party.

III OPPOSITE PARTY'S WITNESS :

DW1 - Shanavas Maitheen Kannu

IV OPPOSITE PARTY'S DOCUMENTS :

D1 - Copy of agreement dated 26.01.2004

Sd/-

PRESIDENT

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