DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD

Dated this the 29th day of January 2009.

Present : Smt. H. Seena, President

: Smt. Preetha G. Nair, Member

: Smt. Bhanumathi.A.K, Member

C.C.No.171/1999

Maj (Retd) P.M. Ravindran

2/18, 'Athira'

Kalpathy

Palakkad – 678 003. - Complainant

V/s

Ms. Latha Joby

(Wife of Arimbookkaran Joby and

Agent, Kerala Agricultutal Mobile Farm

Nettissery, Mannuthy)

Resident of Mannathanmar House

Paruthipra

Shornur

Palakkad – 679 101 - Opposite Party

(Adv. P.N. Vinod & Adv. Sreelatha)

O R D E R

By Smt. H. Seena, President

The case of the complainant in brief is as follows.

1. The complainant in this case is a retired defence personnel. He had entrusted the work of developing a lawn of 825 sq.feet in front yard of his house and for the maintenance of the same with Opposite party for a consideration of Rs.13,125/-. The complainant says that he entrusted the work with the opposite party as she introduced herself as an agent of Kerala Agricultural Mobile Farm, Mannuthi. The Opposite party in pursuance of the above said oral agreement, did the work of planting grass in the lawn on 6^th July, 98. The complainant also says that he paid an amount of Rs.10,000/- on that day which include Rs.700/- paid for 10 cement pots and Rs.175/- towards the cost of a spade. The complainant further says that the Opposite party did not appear thereafter and on enquiry he came to know that she has nothing to do with Kerala Agricultural Mobile Farm as represented by her. The

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complainant says that has sent Registered letters to her but the letters were returned by the postal authorities without delivery. The complainant in the circumstances reported the matter to the Police. When the Opposite party came to know that matter was reported to the Police, she went to the complainant on 29.08.98 and executed an agreement in a bond paper on that day stating that she has received an amount of Rs.13,125/- from the complainant and further that she will maintain the lawn till 26^th August 1997. But the Opposite party did not honour the stipulations in the agreement dated 29.09.98. The complainant, therefore, prays this forum for an order directing the Opposite party to pay him Rs.13,125/- received by the Opposite party for developing and maintaining the lawn and another Rs.17,000/- spent by him towards watering to lawn, denial of its facility, including the cost of this case.

 

0. Our predecessor allowed the complaint and ordered the Opposite party to refund Rs.13,125/- and further an amount of Rs.2,500/- as compensation. Against the order appeal was preferred by the Opposite party. Honourable State Commission was pleased to set aside the impugned order and case was remitted back. Notice was served to the Opposite parties. Opposite party filed version.

1. According to the Opposite party planting of grass to the satisfaction of the Complainant was over by 17/07/1998. The payment was made only after the Complainant got fully satisfied with the work. Payment was for the work completed and the complainant has no right to claim any compensation or return of amount paid. According to Opposite party, complainant has no case that the lawn was not provided. It is apparent that the lawn was planted, set up and provided by the Opposite party as agreed. The compensation fixed in the agreemnt is unreasonable and is by way of penalty. Complainant cannot claim any compensation for mental agony in the case.

2. Evidence adduced consists of the proof affidavit and Exhibit A1 to A7 marked on the side of the complainant. Opposite party has not filed any affidavit

The questions to be decided as per the order of the Honourable State Commission is

1. Whether the sum named in the contract is a genuine pre estimate of damage or the sum named in the contract is a penalty and

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2. Whether the complainant is entitled to claim compensation for mental agony?

Point No.1

On perusing the wordings of Exhibit A3, agreement executed by the complainant and Opposite party, the sum named in the contract is not a genuine pre estimate of damage and is only a penalty for the breach of contract. According to Section 74 of the Indian Contract Act which reads as under:

Sec. 74:- When a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such breach, or if the contract contains any other stipulation by way of penalty, the party complaining of the breach is entitled whether or not actual damages or loss is proved to have been caused thereby, to receive from the party who has

broken the contract, reasonable compensation not exceeding the amount so named or as the case may be, penalty stipulated for.

We have gone through all relevant documents on record in order to ascertain the actual loss incurred by the complainant. Complainant himself admits that Opposite party planted the grass as per the agreement and it was over on 17^th July 1998. The only grievance as per the complaint is regarding monthly maintenance for one year as agreed by the Opposite party. Further complainant also admits that Opposite party has done the maintenance work for 2 months ie, in the month of October and November. So according to the complainant itself major portion of the agreed work was completed. Admittedly there is breach of contract by the Opposite party. Unless the lawn is maintained properly, it will certainly result in over crowding with weeds and will no more remain a lawn. Opposite party counsel is vehemently arguing that no commission was taken for ascertaining actual damages. It seem to be not fair on the Opposite party to remain silent when the notice for appearance was received and raise such a contention at this belated stage. Further other than mere pleadings in the version, Opposite party has not filed any affidavit or documents in support of their case.

In view of the above discussions, we are of the view that an amount of Rs.8,000/- will meet the end of justice . We are not ordering any amount as compensation for mental

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agony.

In the result, complaint allowed. Opposite party is directed to refund an amount of Rs.8,000/- together worth Rs.2,000/- as cost of the proceedings to the Complainant within one month from the date of communication of order failing which the whole amount shall carry interest at the rate of 9% per annum from the date of order till realization.

Pronounced in the open court on this the 29^th day of January 2009.

PRESIDENT (SD)

MEMBER (SD)

MEMBER (SD)

Forwarded/By Order

Senior Superintendent