BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the day of 31st day of January 2012
Filed on : 31/12/2010
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member
Smt. C.K. Lekhamma, Member
C.C. No.686/2010
Between
K.A. Sebastian, : Complainant
Editor, Naal Bullattin, (party-in-person)
Jyothisha Kudumbamasika,
Narayanan Aasan road,
Vyttila P.O, Kochi-682 019.
And
1. Shri. Mamman Varghese, : Opposite parties
Malayala Manorama company ltd., (By Adv. Millu Dandapani
Malayala manorama, Kottayam. Dandapani Associates,
2. Shri. Thomas Jacob, “Thrupthi” T.D. Road North
Editoriyal Director, End, Cochin-682 035)
Malayala Manorama,
Kottayam.
3. Shri. Philip Mathew,
Managing Director,
Malayala Manorama,
Kottayam.
4. Shri. Mamman Mathew,
Chief Editor, Malayala Manorama,
Kottayam.
O R D E R
A Rajesh, President.
The case of the complainant is as follows:
Lured by the advertisement of Malayala Manorama calendar in Malayala manorama daily dated 24-11-2010 the complainant purchased two calendars on 04-12-2010. To the utter dismay of the complainant, it was found in the calendar under the heading ‘panchangam’ only 3 limbs were published out of the 5. Panchangam is completed only when there are 5 organs viz. Varam, Nakshathram, Thithi, Yogam and Karanam. Out of the above five members Varam, Thithi and Nakshathram alone are there in the calendar. Publication of incomplete datas in the calendar not only amounts to deficiency in service but also unfair trade practice on the part of the opposite parties. Due to the same the complainant has had to suffer mental agony and sufferings which cannot be compensated in terms of money. Thus the complainant is before us seeking the following directions against the opposite parties.
i. to pay a compensation of Rs. 1 lakh to the complainant.
ii. To stop the unfair trade practice and publish all the ingredients of panchangam.
iii. To pay costs of the proceedings
2. The version of the 2nd opposite party.
The complainant is not a consumer and the complaint is not maintainable in the Forum. The complainant has not availed any service from the opposite parties, so also there is no unfair trade practice on the part of the opposite parties as alleged by the complainant. The word ‘panchangam’ has been used in the sense that it has 5 divisions and it is a common usage and not as used in astrology or astronomy. Even astrologers and the astronomers have commonly used the word panchangam which has 5 divisions viz week, English date, Malayalam date, Star (nazhika and vinazhika etc.) and thithi (nazhika, vinazhika etc.) Since the word Panchangam is used in 5 divisions, it can be used by anybody without having any copy right. The price paid by the complainant is for the calendar and not for the panchangam. The train timings, bus timings ,panchangam, udayasthamayangal, muhurthangal, visesha divasangal, nakshathraphalangal, namaskara samayam too are supplied along with the calendar. The complainant is not entitled to get any damages from the opposite parties. This complaint has been filed by the complainant solely with the intention of extracting money from the opposite parties.
3. The 1st, 3rd and 4th opposite parties filed a memorandum stating that they adopt the very same contentions of the 2nd opposite party.
4. The complainant was examined as PW3 and his witnesses were examined as PWs 1 & 2 respectively. Exbts. A1 to A9 were marked on the side of the complainant. The witness for the opposite parties was examined as DW1. Heard the complainant who appeared in person and the learned counsel for the opposite parties.
5. The points that enunciated for consideration are
i. Whether the complainant is a consumer ?
ii. Whether the complaint is maintainable in this Forum?
iii. Whether there was unfair trade practice on the part of the
opposite parties in not publishing the 5 elements of
panchangam.?
iv. Whether the complainant is entitled to get compensation and
costs of the proceedings from the opposite parties.?
6. Points No. i&ii. Admittedly on 04-12-2010 the complainant purchased Ext. A3 Calendar published by the opposite parties evidenced by Ext. A1 receipt indisputably a person who buys any goods for a consideration is defined as a consumer as contemplated in Section 2 (1) (d) (i) of the Consumer Protection Act. So we have no doubt to hold that the complainant is a consumer and this complaint is maintainable in this Forum as per the provisions of the Consumer Protection Act. Points i & ii are answered accordingly.
7. Point No. iii. According to the complainant allured by the advertisement of the opposite parties in Ext. A2 he purchased Ext. A3 calendar, under the impression that ‘panchangam’ is also included in the calendar along with other details. The complainant maintains that out of the 5 compulsory elements in panchangam the opposite parties have incorporated only 3 elements which is misleading and amounts to unfair trade practice on the part of the opposite parties. Per contra, the learned counsel for the opposite parties vehemently contended that the literal meaning of the word Panchangam is used in Ext. A3 calendar as 5 divisions and they are week, English date, Malayalam date, star (Nazhika, Vinazhika etc) and thidhi (nazhika, Vinazhika etc) It is also contended that the opposite parties had no intention to cheat anybody by using the word ‘Panchangam’ and it has been used in Ext. A3 with utmost respect and importance.
8. PWs 1 and 2 are astrologers by profession, PW3 is the complainant who is a student of astrology and DW1 is an astrologer by tradition. PWs 1 to 3 and DW1 unanimously deposed before the Forum that there are 5 elements in Panchangam. Exts. A4 to A9 dictionaries as well go to show that literally the following 5 elements are the integral and important elements of panchangam and they are
a. Thidhi
b. Karanam
c. Yogam
d. Varam
e. Nakshatram
9. Panchangam is the Indian calendar which has been in use from time immemorial. This calendar supposedly covers everything from the phases of moon, the position of stars and planets and identifies, auspicious times and days for various activities. In that perspective it is necessary to delve into the above 5 elements in detail with the help of wikipedia which declares as follows:
Thithi:-Ending moment of elongation of the moon. The lunar day, the angular relationship between the sun and moon one thithi equals 12 degrees difference between moon and sun.
Nakshatra:- Ending moment of asterism of the day, that is the stellar mansion in which moon is located for an observer at the centre of the earth, one nakshathra equals 13 degrees 20 minutes. There are 27 Nakshathra in 360 degrees.
Yoga:- Ending moment of the angular relationship between sun and moon one yoga is 360 degree Karana. Ending moment of half a thithi. One Karana equals 6 degree difference between moon and sun.
Vara:- day of the day.
Karana Ending moment of half of a thithi. One Karana equals 6 degree difference between moon and sun.
10. Even according to DW1 the opposite parties have omitted to state Karanam and yogam in Ext. A3 Calendar. He is of the view that a person in acquaintance with astrology can understand grasp or infer Karanam and yogam from the other 3 elements mentioned even though they have not been mentioned explicitly in Ext. A3. A purchaser buys a calendar with a bonafide belief that what is stated is true. The opposite parties of such repute is necessarily bound to convey the real ideas in astrology and astronomy in the realms of Vedas in which the opposite parties seem to have failed. So the non publication of 2 limbs out of 5 limbs in Ext. A3 calendar under the heading panchangam would necessarily go to unfair trade practice on the part of the opposite parties. Probably the belief of the complainant that the opposite parties is the number one in the whole of India which made him assured that such a publication would not make a mistake though found not necessarily drastic for reasons explained above. Since Ext. A3 calendar is for the year 2011 and we are in 2012 already a direction to the opposite parties to stop the unfair trade practice at this point of time is not at all practical In the above circumstances we think that a direction to the opposite parties to publish the calendar without giving rise to such complaints in future would suffice.
11. Point No. iv. During evidence PW3 deposed that he has not suffered personal loss due to the unfair trade practice except the money expended for the calendar. Moreover he has also stated in the complaint that a mere compensation would not abate the agony. So the claim for compensation for claim sake can be discarded and over not called for which would not go against the interest of the complainant for whatever reasons. It is evident that the complainant has raised an issue which shows a nature of more than an individual grievance which has necessary cost him his time and unwarranted expenses which alone calls for a compensatory costs of the proceedings as claimed. We fix at as Rs. 2,000/- which not necessarily to be mentioned includes the price of Ext. A3 calendar.
12. In the result, we allow the complaint in part and direct as follows:
i. The opposite parties shall publish their calendar without giving rise to such apprehension leading to complaints in future as observed above.
ii. The opposite parties shall jointly and severally pay Rs. 2,000/-to the complainant towards costs of the proceedings for the aforesaid reasons.
The above said order shall be complied with within a period of one month from the date of receipt of a copy of this order failing which the above amount shall carry interest @ 12% p.a. till payment.
Pronounced in the open Forum on this the 31st day of January 2012.
Sd/- A Rajesh, President.
Sd/- Paul Gomez, Member
Sd/- C.K. Lekhamma, Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s exhibits:
Ext. A1 : copy of bill dt. 04/12/2010
A2 : Copy of paper cutting
A3 : Malayala manorama
calendar 2011
A4 : copy of clause about
Panchangam
A5 : Copy of sabdhatharangini
A6 : Copy of Sabdhatharavali
A7 : Copy of Jyothishanikhandu
A8 : Copy of Samboorna
Jathakaganitham
A9 : Rashtriya Panchang (English)
Opposite party’s exhibits: : Nil
Depositions :
PW1 : K.P. Narayanan
PW2 : L.K. Haridas
PW3 : K.A. Sebastian
DW1 : A.K. Revindran
