By Smt. Padmini Sudheesh, President: The case of the complainant in brief is as follows: Complainant is the President of Mampullikavu Kshethra Mathethara Centre Festival Committee. As per the decision of the committee the complainant had booked the elephant of respondent named Kandampully Balanarayanan for the festival celebration, which was decided to conduct on 6.2.06. For that on 8.9.05 both the parties were executed a karar. As per the agreement Rs.11,000/- is to be paid for the elephant only. It was also included the amount of decorative items of the elephant for this function. An amount of Rs.1000/- was given as advance. Upon the assurance of the agreement, the complainant had published notice stating the participation of the said elephant in the function. Subsequently the respondent entered into another karar with Sree Narayana Seva Sangham, Nellikode agreeing to provide the self same elephant for their function on the very same day. This was a clear breach of the contract entered into between the complainant and the respondent. In the notice published by Sree Narayana Seva Sangham the participation of the very same elephant is also mentioned. This notice was noted by the complainant only on 27.1.06. So the complainant had arranged another elephant namely Appu from the Guruvayur Devaswom and paid Rs.4265/-. A complaint was also made to D.S.P., Thrissur. The act of the respondent is illegal and there is deficiency in service and unfair trade practice. Hence this complaint. 2. The counter in brief is that the agreement is true. As per the agreement, 10 days before the function the balance amount has to be paid by the petitioner. But this was not done by the complainant. Hence on 31.1.06 registered notice has sent to the petitioner. That notice has returned as not claimed. There is breach on the part of the complainant and the respondent had incurred loss on the acts of petitioner. It was the duty of petitioner to pay the balance amount before ten days. Only after this period, the respondent had entered into karar with Sree Narayana Seva Sangham. There was breach of contract on the part of complainant. The D.S.P. has not investigated the complaint. There is no deficiency in service on the part of respondent. Petitioner was an employee in the Forest Department. So he often used threat to reduce the amount of the elephant. There is enmity between the parties. The complaint is liable to dismiss. 3. The points for consideration are: (1) Is there any deficiency in service on the part of the respondent? (2) If so, is the complainant entitled for the compensation claimed? (3) Other reliefs and costs. 4. The evidence consists of Exts. P1 to P12 and Exts. R1 and R2. There is no oral evidence. 5. Point No.1: Ext. P1 is the agreement executed between complainant and respondent. At the time of booking the elephant, the complainant had given Rs.1000/- as advance. The total amount was Rs.11,400/-. As per Ext. P1 complainant had to pay the balance amount ten days before the function. The complainant had seen the Ext. P3 notice on 27.1.06. Immediately they booked another elephant and published another notice. Ext. P3 is the copy of complaint put before D.S.P. It is dated 25.1.06 and receipt also produced and marked as Ext. P7. In Ext. P6 it is stated that when they gone to pay the balance, the respondent returned them without accepting the amount. The complainant alleged that this was because the respondent had already entered into agreement with another for the self same elephant for the very same date promised to the complainant. Ext. P7 is evidenced the application put to Police. Whether police had investigated or not is not relevant. From this it is proved that the complainant was ready and willing to perform his part of the contract. The elephant Kandampully Balanarayanan was a very famous and tallest elephant in Kerala. So the availability of the elephant to a function is very difficult. The complainant had booked the elephant on 8.9.05 for the function of 6th February 2006. As per the karar they are bound to pay the balance only 10 days before 6.2.06. The petition put to D.S.P. shows their readiness. On 17.12.05 Ext. P2 notice was published for the festival of 6.2.06. They already booked the famous elephant Balanarayanan. Ext. P3 is the notice published by the Sree Narayanan Seva Sangham, Nellikad, in which there is no date specified. Availing an elephant like this earlier booking is essential. So it is very clear that the respondent had much earlier entered into agreement with the Sree Narayana Seva Sangham in violation of Ext. P1 document. A story of enmity is also stated in the version. On 31.1.06 the respondent had sent Ext. R2 notice to the complainant, which was not accepted by the complainant. In that notice it is stated that due to the breach of contract by the complainant he could not take out the elephant to another function on 6.2.06 to somebody. This view cannot be accepted. Because an elephant like the above mentioned wont be available without booking much earlier. Moreover he also filed caveat before the Thrissur and Wadakkanchery Munsiff Court by apprehending legal action against him. These overt acts establish the breach from the respondent. There is service deficiency on the part of respondent. The point is found against the respondent. 6. Point No.2: The next point is the quantum of compensation for the mental agony and harassment suffered by the complainant. Only upon the month end of January 2006 they knew the shocked news. Firstly they approached the police official and immediately after that they arranged another elephant from Guruvayur Temple. They had published earlier notice on 17.12.05. In that it is specifically mentioned the name Kandampully Balanarayanan. Later a few days remaining they have to arrange another elephant in the place of this famous elephant. Arranging another elephant with immediate effect will cause much difficulties. Exts. P4 to P9 describe the difficulties suffered by the complainant committee. We can realize the situation. Petitioner is entitled for a reasonable compensation from the respondent. He is entitled for Rs.30,000/- as compensation. 7. In the result complaint is allowed and the respondent is directed to provide Rs.30,000/- (Rupees thirty thousand only) as compensation to the complainant for the mental agony arising from the breach of contract by the respondent. The respondent is further directed to pay Rs.2000/- (Rupees two thousand only) as costs to the complainant. Comply the order within two months. Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 14th day of August 2008.
