Kerala

Kollam

CC/90/2016

Jain.S,29 years, - Complainant(s)

Versus

Omanakuttan, - Opp.Party(s)

Adv.KISHORE.P

16 Mar 2020

ORDER

Consumer Disputes Redressal Forum
Civil Station , Kollam-691013.
 
Complaint Case No. CC/90/2016
( Date of Filing : 04 Apr 2016 )
 
1. Jain.S,29 years,
S/o Jayaprakash,Jain Nivas,Eram,Chathannoor,Kollam. Power of Attorney Holder Jayaprakash,58 years,S/o Sivadasan,Jain Nivas,Eram,Chathannoor,Kollam.
...........Complainant(s)
Versus
1. Omanakuttan,
Karthika Bhavan,Mallikamuri,Pandalam,Pathanamthitta.
............Opp.Party(s)
 
BEFORE: 
 HON'BLE MR. E.M.MUHAMMED IBRAHIM PRESIDENT
 HON'BLE MRS. SANDHYA RANI.S MEMBER
 HON'BLE MR. STANLY HAROLD MEMBER
 
PRESENT:
 
Dated : 16 Mar 2020
Final Order / Judgement

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOLLAM

DATED THIS THE 16thDAY OF MARCH 2020

Present: -    Sri.E.M.Muhammed Ibrahim, B.A, LLM. President

        Smt.S.Sandhya   Rani. Bsc, LLB ,Member

                   Sri.Stanly Harold, B.A.LLB, Member

CC.No.90/2016

Jain S.,29 years,

S/o Jayaprakash,

Jain Nivas, Eram,

Chathannoor, Kollam

Power of Attorney Holder Jayaprakash,                      :           Complainant

58 years, S/o Sivadasan,

Jain Nivas, Eram, Chathannoor,

Kollam.

(By Adv.Kishore P.)

V/S

Omanakuttan,

KarthikaBhavan,

Mallikamuri,

Pandalam,

Pathanamthitta.                                                                  :           Opposite party

(By Adv.P.Abi)

FAIRORDER

Smt.Sandhya Rani, B.SC, LLB, Member

This is acase based on a consumer complaint filed under section 12 of the Consumer Protection Act 1986.

          The averments in the complaint in short are as follows.

          Complainant is a person employed at gulf country and hence he has given the Power of Attorney in favour of his father.  On 23.11.2014 the complainant made an agreement with opposite party Omanakuttanwho is the owner of the elephant named Deepu.  As per the agreement the opposite party has to bring the elephant at the residence of the complainant at about 7 A.M on 04.2015 for one day yearly festival ceremony of SreeBhoothanatha Temple,Chathannoor, where the elephant is considered as the deity of temple on that particular day.   At the time of executing the agreement the total rental amount for the elephant was fixed at Rs.30,000/-out of which the complainant had paid 5000/- in advance on 23.11.2014 and agreed to pay the balance amount Rs.25,000/- on the festival day after the arrival of elephant. The elephant by name Deepu is famous in his size, shape, colour and due to that reason itself the complainant had booked that elephant by paying such a huge amount.  Moreover the procession of that particular elephant was a part of the prayers of his family.  At the time of booking the opposite party had given direction to the complainant regarding the publicity of the procession elephant and as such he had given advertisement by installing flex board, banner, notices and announcement regarding the publicity of the procession of elephant Deepu by spending money from his pocket.  The complainant arrived athis residence on 28.03.2015 from abroad where he was working on loss of pay leave to participate in the utsavam.  All the close relatives of the complainant were assembled in his house on 04.04.2015 with intend to participate in the festival but the opposite party has not sent the elephant to his residenceas agreed till 8.30.A.M on 04/04/2015.  When he contacted,over telephone the opposite party replied very casually that the elephant is not well so he is ready to give back the advance amount or else he will arrange another elephant.  The complainant had booked that particular elephant by name Deepuparticularly due to the features of the said Elephant.  Hence the complainant was not satisfied with a substitute elephant.  Moreover the matter of offering of the particular elephant was intimated to the temple authorities and also published through advertisements at the vincity of temple.  As the particular Elephant by name Deepu was not available as promised by the complainant the festivalcommittee members and the local people began to tease the complainant and his family by saying that the offering of the said famous elephant was a false story.  Due to the teasing the complainant and his family members couldn’t even go to temple to see the festival ceremonies. 

On enquiry the complainant could realize that the opposite party had given that particular elephant to one Prakash(Kuttan) at Polayathodu, Kollam on lease basis and the said elephant was participated in the festival ceremony of AttoorkonamSreeAyyappaswamy Temple, Karingannoor, Kollam on the same day.  Thereafter the complainant caused to send Advocate Notice to theopposite party on 24.06.2015.  On receipt of notice the opposite party had orally agreed to give back the advance amount and compensation to the complainant.  But the same were not given.  Hence the complainant filed the present complaint praying to direct the opposite party to pay (a)Rs.5,000/- being the advance amount paid by him with interestat the rate of 18 % per annum (b) Rs.50,000/- as compensation for the 20 days loss of pay leave taken by the complainant to participate in the festival.(c) Rs.1, 50,000/- as compensation for the expenses incurred for advertisement in connection with the procession of elephant and also for mental agony suffered by the complainant.(d) Cost of the proceedings.

          Opposite party resisted the complaint by filing a detailed version raising the following contentions.

The complaint is not maintainable either in law or on facts. The complainant is not a consumer of opposite party as there exists a contractual relationship between the petitioner and opposite party, the petition would have been filed before a civil court.  According to opposite party all the documents filed by the complainant are photocopies and the signature in vakalath and Power of Attorney are same. The Power of Attorney is not signed by Mr.Jain, hence it is a forged one.  Opposite party would content that the nonproduction of elephant on 04.04.2014 was not due to his fault but was due to the severe illness happened to the elephant in its stomach and the same was intimated to the complainant two days before the alleged procession ie on 02.04.2015 itself.  As per the direction of veterinary doctorBinu,all theprogramme booked for the elephant were cancelled for two weeks since 02.04.2015.  Even though the opposite party had offered other elephants named VarkalaBiju(Mahadevan) orPuthanulamModi for the proposed procession, the complainant didn’t reply to him till 04.04.2015 morning and thus the adamant complainant waived his right to claim the advance paid by him.  Another contention raised by the opposite party is that movement of elephant on road while it is suffering from illness or having physical discomfort is strictly prohibited by Government.  Again as per clause 6 of the alleged agreement the first person in the agreement has all legal right to withdraw from the agreement in any contingent or unforeseen situation and in the unhealthy condition of the elephant.  According to the opposite party the complainant had never made any advertisement as alleged in the complaint and the elephant named Deepu hadn’t any particular features as claimed by complainant and all such description made by him was with intend to mislead this Forum.  Hence the present complaint has no merit and the petitioner cannot claim waived advance amount and in the absence of any consumer relationship between the petitioner and respondent the petition may be dismissed with cost.

          In view of the above pleading the points that arise for consideration are:-

  1. Whether the complainant is a consumer as defined under Consumer Protection Act?
  2. Whether there is any deficiency in service on the part of opposite party in not sending the booked elephant for festivalas agreed?
  3. Whether the complainant is entitled to get the advance amount refunded?
  4. Whether the complainant is entitled to get compensation and costs as prayed for?
  5. Reliefs and costs?

Evidence on the side of complainant consists of oral evidence of PW1 andPW2 Ext.P1 to P13 series documents.No oral or documentary evidence has been adduced on the side of opposite party.

Both sides have filed notes of arguments.Heard the counsel for the complainant.Though sufficient opportunity has been granted the learned counsel for the opposite party has not turned up and advanced any oral argument.Hence the matter was taken up for order.

Point No.1

          The elephant by name Deepuwas booked by/on behalf of the complainant on 23.11.2014 by paying Rs.5,000/- as advance to the opposite party. The consideration agreed for one day’s procession along with Chamayangal is Rs.30,000/- and the complainant was agreed to pay the remaining Rs.25,000/- as rent for the use of the said elephant on the festival day. In the written version the opposite party admits the booking of the elephant by the complainant and also admits the receipt of advance Rs.5,000/-towards the rental advance.  In the circumstances it is crystal clear that the complainant has availed of the service of the elephant by name Deepuwhich was under the control of the opposite party by paying consideration.  Hence undoubtedly the complainant is a consumer U/s 2(1) (d) of Consumer Protection Act 1986.  Therefore it is clear that the complaint is maintainable under the Consumer Protection Act.  The point answered accordingly.

Point No.2

PW1 Jayaprakash is the father of the original complainant and also the power of attorney holder.  He deposed strictly in terms of the complainant and also proves Ext.P1 to P13 series documents. Ext.P1 is Power of Attorney executed by the original complainant Jain infavour of his father Jayaprakash Ext.P2 is a copy of agreement (Karar) dated 23.11.2014, Ext.P3 copy of visa and passport of Jain who has been working abroad.  Ext.P4 is AIR ticket obtained by the original complainant for the travel from OMAN to Trivandrum, Ext.P5 is the copy of Advocate Notice, Ext.P6 is the postal receipt, Ext.P7 is the postal acknowledgment card.  Ext.P8 isUtsava Broacher of Srebhoothanatha temple Chathannoor, Ext.P9 is the Utsava Notice of Ayyappa Swami Temple VarshikaMahotsavam 2015 Karingannoor, Aattoorkonam, Puthusseri.  Ext.P10 series are the photo of an elephant.  Ext.P11 series is cutout of elephant KodumonDeepu, Ext.P12 is the bill dated 04.04.2015 for Rs.4,400/- from BendigitalChathannoor.  Ext.P13 series are bills for Rs.1690/- issued by the flower mart. It is also an undisputed fact that the opposite party has not sent the elephant by name Deepu as agreed for conducting procession in connection with the festival of SreeBhoothanatha Temple, Chathannoor scheduled to be conducted on 04.04.2015.  As per Ext.P2 agreement the opposite party is bound to make available the elephant at 7 A.M on 04.04.2015 at the residence of the complainant but unfortunately the elephant was not made available by the opposite party till 8.30 A.M on that day and on enquiry over phone the opposite party informed that the elephant is suffering from illness and therefore he is not in a position to depute the elephant. 

The specific case of the complainant is that the opposite party has deliberately not produced the elephant for the festival after receiving advance amount as consideration and at the same time he deputed the very same elephant for the procession at AttoorkonamSreeAyyappaSwamyTemple ,Karingannoor, Kollam.  According to PW1 well before receiving advance from the complainant the elephant Deepu was entrusted to one Prakash (Kuttan) Polayathodu, Kollam on lease and by deceiving the complainant the opposite party made the complainant to believe that he is the owner and the person in charge of the elephant by name Deepuand received advance in respect of the said elephant.  Butthe said Elephant was not in his custody, possession and control as on those days.  However the complainant when enquired about the non availability of the elephant the opposite party informed the complainant that the elephant is not well.  However the opposite party has miserably failed to substantiate that fact.PW1 has sworn in the proof affidavit regarding his case.  Even though PW1 was cross examined in length nothing material had been brought out in evidence to disbelieve the version of PW1 sworn in para 7 and 9 of proof affidavit. Hence it is crystal clear that the opposite party has committed unfair trade practice in obtaining consideration /advance for the elephant which was not available with him nor under his control.  Not arranging to send the elephant Deepufor festival purpose as per booking after receiving advance also amounts to deficiency in service on the part of opposite partyThe points answered accordingly.

Point No.3&4

          For avoiding repetition of discussion of materials these two points are considered together. Admittedly the opposite party has received Rs.5,000/-as advance for deputing the elephant Deepu as agreed in Ext.P2 agreement.  But the same has not been return though the opposite party has not deputed the elephant and sending Ext.P5 notice. Hence the complainant is entitled to get the said amount.  It is also brought out in evidence that the complainant has spent lot of amount in connection with the booking of the elephant and advertisement for arranging necessary articles B\-am-e, Igp-¯v, Imev, XnS-¼v, AhÂ, iÀ¡c.  It is clear from Ext.P13 series bills that the complainant has spent Rs.1690/- for the above articles and the complainant has also spent Rs.4400/- as per Ext.P12 receipt for exhibiting flex board.  It is also brought out in evidence that the complainant has issued notice in connection with festival by stating that he had offered elephant Deepu for the festival.  It is also brought out in evidence that the opposite party has not sent the elephant Deepufor festival as agreed and hence the complainant could not carry out his promise in connection with the festival as declared in Ext.P8 and P11 documents.  In para 7 of the proof affidavit  PW1 has sworn that ……………..F¶mÂhmZn-bp-sSbpwIpSpw-_-¯nsâbpwhÀj-§-fm-bp-ff t\À¨-bp-sS-bpw B{K-l-¯nsâbpwImc-W-¯mÂtIc-f-¯nseXs¶ hfsc {]ap-J-\mbHcp B\sb _p¡psNbvXpDÂk-h-¯n\p Fgp-¶-f-fn-¡-W-sa-¶p-f-fXvsIm­v C{]-Imcw {]i-kvX-\mbZo]p F¶ B\sbhfscIqSnbhmSI \ÂIn _p¡vsNbvXn-cp-¶-Xv.hmZn-bp-sSbpwIpSpw-_-¯nsâbpwhÀj-§-fm-bp-ffHcm-{K-l-amWv \S-¡msX t]mb-Xv F¶p-f-f-Xn-\mÂIpSpw-_-¯nÂsam¯wHcp ac-W-ho-Snsâ {]Xo-Xn-bm-bn-cp-¶p.  IqSmsX A¼-e-I-½n-än-¡m-tcm-Spw, \m«p-Im-cp-sS-b-Sp¯pwhmZn¡pwIpSpw-_-¯n\pw adp-]Sn]d-bm³ t]mepw ]äm¯ hfsc ]cn-Xm-]-I-c-ambHc-h-Ø-bm-bn-cp-¶p.  hmZnbpwIpSpw-_hpwIf-hm-bn-«m-bn-cp¶phfschne-Iq-SnbZo]p F¶ B\sbDÂk-h-¯n-\mbnFgp-¶-f-fn-¡m³ sIm­phcp¶pF¶p ]c-kyw \S-¯n-b-sX¶p \m«p-ImÀ ]dªpIfn-bm-¡n. Bb-Xn-\mÂhmZn¡pwIpSpw-_-¯n\pw DÂk-h-Ø-et¯m A¼-e-¯ntem ]cn-k-c¯v t]meptamDÂkhZnhkw t]mIm³ ]äm¯ Ah-Ø-bp-­m-bn. The above averments in para 7 and 8 of proof affidavit remains unchallenged which would clearly indicate that the complainant and his family members have suffered much mental agony.  Hence the complainant is entitled to get sufficient compensation for the said mental agony.

It is also brought out in evidence that the complainant has sent the original of Ext.P5 lawyer notice stating his entire case and asking compensation and also demanding to return the above amount with compensation and costs.  Ext.P6 Post receipt and Ext.P7 postal acknowledgement card would substantiate that he had sent the original of Ext.P5 lawyer notice and the opposite party has received the same. Admittedly the opposite party has not sent any reply but orally agreed to return the advance amount. Non sending of any reply to Ext.P5 notice amounts to the admission of the contents of the notice which would probabilisethe entire case of the complainant.

Now regarding the claim of compensation for the loss of pay leave availed by him and also for the loss caused to the complainant on account of his inward and outward journey from foreign country by name Oman, there is no reliable materials apart from the Ipsy dixitof the complainant to prove that he has availed loss of pay leavefor 2 days and thereby sustained loss of salary of 20 days as claimed by him.  It is true that the complainant has produced Ext.P4 photocopy of the ticket showing that on 28.03.2015 the complainant has arrived at Thiruvananthapuram by Jet Airways but he departed from Thiruvananthapuram only on 27.06.2015 which would not probabalise the contention that he arrived at his native place for 20 days leave without salary but he was in India for about 3 months.  Hence it cannot be held that he arrived in India on leave for the sole purpose of conducting festival.  In the circumstances we are not inclined to allow any amount as compensation under the above two heads. 

On evaluating the entire facts and circumstances of the case we are of the considered view that the complainant is entitled to get compensation to the tune of Rs.25,000/- for the mental agony sustained by him. Thecomplainant is further entitled

to get back the amount of Rs.5,000/- paid as advance with interest at the rate of 12 % per annum from the date of complaint till realization.  The complainant is also entitled to get Rs.1690/- being the expenses incurred for purchasing articles necessary for the procession of the elephant and Rs.4400/- being the expenses met by the complainant in connection with exhibiting flex board etc. during the festival.  The complainant is entitled to get Rs.5,000/- as costs of the proceedings.  The points answered accordingly.

Point No.5

In the result complaint stands allowed in the following terms:-

  1. The opposite party is directed to return Rs.5,000/-received as advance with interest at the rate of 9 % per annum from the date of complaint till realization.
  2. The opposite party is also directed to pay Rs.4,400/-+1690/- being the expenses met by the complainant with interest at the rate of 9 % per annum from the date of complaint till realization.
  3. Opposite party is further directed to pay Rs.25,000/- as compensation for the mental agony sustained by the complainant along with the interest at the rate of 9 % per annum form the date of complaint till realization.
  4. The opposite party is also directed to pay Rs.5,000/- as costs of proceedings.

The opposite party is directed to comply with the above directions within 30 days from the date of order failing which the complainant is at liberty to recover Rs.41,090/- with interest at the rate of 12 % from the date of complaint till realization except for costsfrom the opposite party and his assets by filing EP U/s 25 & 27 of the Consumer Protection Act 1986.

Dictated to the  Confidential Assistant Smt.Minimol S. transcribed and typed by her corrected by me and pronounced in the  Open Forum on this the 16th day of  March 2020.

                                                                                    E.M .MUHAMMED IBRAHIM:Sd/-

                       S.SANDHYA   RANI:Sd/-

                                                                                                                                                                               STANLY HAROLD:Sd/-

                                                                                                                                                                     Forwarded/by Order

                                                                                                                                                                                Senior superintendent

 

INDEX

Witnesses Examined for the Complainants:- 1) Jayaprkash 2) Chandrasanan

Documents marked for the complainant

Ext.P1:- Power of attorney

Ext.P2:- copy of agreement (Karar) dated 23.11.2014

Ext.P3:-copy of visa and passport

Ext.P4:-Copy of Air ticket

Ext.P5:-copy of Advocate Notice

Ext.P6:-Postal receipts

Ext.P7:- Postal acknowledgment card

Ext.P8:-Utsava Broacher

Ext.P9:-Utsava Notice

Ext.P10 series:-photos of an elephant

Ext.P11 series:-cutout of elephant KodumonDeepu 

Ext.P12:-bill dated 04.04.2015

Ext.P13 series:-bills  for Rs.1690/- issued by the flower mart                                                           

Witness examined for the opposite party:-Nil

Documents marked for the opposite party:-Nil                                                                                                                                                                       

 
 
[HON'BLE MR. E.M.MUHAMMED IBRAHIM]
PRESIDENT
 
 
[HON'BLE MRS. SANDHYA RANI.S]
MEMBER
 
 
[HON'BLE MR. STANLY HAROLD]
MEMBER
 

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