DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD

Dated this the 12^th day of June 2020

Present: Sri.V.P.Anantha Narayanan, Member(President I/c)  

              : Smt.Vidya.A, Member                                                        Date of Filing: 15/03/2018

CC /43/2018

Prabha Narayanan Iyer,

Iyers Intellect,

Sri Krishna Complex, Third Floor,

Opp.Bismi Hypermarket,                                                        -           Complainant

Near Stadium bus stand,

CBE Road, Palakkad - 678 001.

(By Party in Person only)                                           

V/s

Saiju.K,

Wide Angle Communications,                                                            -           Opposite party

Santhi Nivas, Niethala,

Erattakulam.P.O, Elapully,

Palakkad – 678  622.

(By Advs.P.Anil & N.S.Bivin)

O R D E R

By Smt.Vidya.A, Member

Brief facts of the complaint  

            Complainant is the proprietress of ’Iyers Intellect Coaching Centre’ which offer courses for competitive exams.  The complainant and her family solely depend on the coaching centre for their livelihood.  The opposite party is the official person of the institution named “Wide Angle Communication”. When the complainant was about to start a coaching centre at Palakkad, as part of its promotion, the complainant entrusted the work of placing of flex boards to the opposite party.

            As per the verbal contract, the opposite party promised the complainant that

(1) they will install the flex boards in appropriate locations with the following specification, size

     12x8=96 sq.ft 18 numbers with flex, frame, leg GI pipe fitting, one year maintenance.

(2) The opposite party will take care of the Municipal/Panchayath tax payments for the boards

      wherever required and hand over the tax receipts to the complainant for documentation 

      purposes.

(3) They will maintain the flex boards for the next one year, which includes

      1) to make sure all the flex boards installed by them are present at the locations.

      2) to make sure that they are in appropriate condition and periodic review of the same.

(4) They will install one complementary board.

(5) The contract will continue till the month of April 2018 and renewal for maintenance will be

       in the month of May 2018.

(6) The flex sheets need to be changed as and when it get damaged or when required.

            As per this verbal contract, the complainant transferred an amount of Rs.2,38,050/-(Rupees two lakhs thirty eight thousand and fifty only) through their SBI bank account and the opposite party placed the flex boards in the month of March 2017.

            But by the month of June 2017, some of the flex boards placed by them were not present in their location(6-7 out of 18) and a few of them(4-5 flex boards) were not in proper condition and hence missing the attention of the public.  The above matter was communicated to the opposite party over telephone but no action was taken by them.  Even after her repeated requests over telephone and e-mails, the opposite party didn’t do anything.

            The opposite party started answering the calls rudely and finally he informed the complainant that there is no guarantee about the flex they installed and it can be taken off by the municipal authorities.

            Earlier the opposite party had verbally informed the complainant that if the municipal authorities contact the complainant for payment of tax, all she has to do is to direct the authorities to contact the opposite party and they will take care of all the necessary formalities to be complied with before installing the flex boards.  Eventhough the complainant was planning to place the flex boards in 21 places, later on the advice of the opposite party three were postponed as the boards will not be safe in that places and she went ahead with boards in 18 places only.  He also assured that he will find out rented place for the three flex boards and inform the complaint, but that has not happened till now.

            When the complainant found that seven-eight flex boards which are placed by the opposite party are missing and six of them are not in proper condition, she enquired about this to the opposite party.  Then the opposite party replied that he is not responsible for the above mentioned discrepancies.  The opposite party did not act on the request made by the complainant to give the tax receipts and they had failed to complete the maintenance of the flex boards.

After few days, the opposite party called the complainant and assured that they will contact the municipal authorities and retrieve the flex boards which are missing and place them in apt locations and correct the boards which are not in proper condition, but nothing was done by them till now.

            The complainant started the institution after taking a loan of 20 lakhs from the Bank and if they were aware of the fact that the flex boards can be taken off, the complainant would not have gone with the plan of placing the flex boards and would have invested the amount on some other promotional activity.  All these happened because of the deficiency of service on the part of the opposite party.

Hence the complaint is filed for directing the opposite party to place the flex boards at safe locations and maintain them with periodic review for next one year or to return back the contract amount Rs.2,38,050/- and to pay an amount of Rs.4,00,000/- as compensation for loss of business and defamation of the institution and to pay an amount of Rs.3,50,000/- for mental agony suffered by the complainant because of the misbehavior and deficiency of service on the part of the opposite party.

Complaint admitted and notice sent to the opposite party.  They appeared and filed their version.

The main contentions raised in the version are.

1.         It is true that as per the oral contract between the complainant and the opposite party, he had erected flex boards at different locations as suggested by the complainant in the month of March 2017.  The specifications as to length and breadth of the boards and the manner in which it has to be erected etc. has been meticulously complied by the opposite party.  The complainant paid the agreed amount after being fully satisfied with the work of the opposite party.

2.         It is not correct to say that the opposite party had undertook the liability to maintain the flex boards for one year and pay tax for the same.  The boards are erected at locations pointed out by the complainant over which the opposite party has no authority and they are not under any obligation to maintain them.  In order to maintain their customer relationship, the opposite party had replaced few boards which were tampered and all other averments in the complaint in connection with this is not correct.

4.         The allegation in the complaint regarding the rude behavior of the opposite party is not correct and hence he denies it.

5.         From the number of flex boards and the amount paid, it is clear that it does not include the charges of maintenance, tax etc.

6.         The opposite party is a small team of dedicated workers engaged in the occupation in question and this type of false complaints would cause irreparable damage to their reputation and the opposite party is solely depend on this occupation for their livelihood.  So the complaint has to be dismissed with compensatory to the opposite party.

From the side of the complainant, chief affidavit filed.  Complainant was examined as PW1 and Ext.A1 to A5 marked.(Ext.A2, A4 and A5 marked with objection).

From the side of the opposite party, chief affidavit filed.  Opposite party was examined as DW1 and Ext.B1 series marked.

Main issues arising for consideration are:

1. Whether there is any deficiency of service on the part of the opposite party?
2. If so, what is the relief as to cost/Compensation?

Issues 1&2

Heard both parties.

We have perused the chief affidavits and documents filed from both sides.  Both the complainant and opposite party admits that the opposite party undertook the work of the complainant as per an oral agreement between them.

As per DW1’s deposition, he sent the quotation to the complainant through e-mail and he admitted Ext.A5 as the quotation.  According to the complainant, the opposite party accepted the 3^rd option in Ext.A5, “HIGH WAY AND TOWN BOARDS BIG of size 12x8 =96sq.ft., 20 in number, one year rent is Rs.2,12,300/- which is inclusive of flex, frame, leg GI pipe fitting and one year mintanc, site rent additional Rs.2,500/- per board”.  But in his cross-examination, the opposite party denied this and according to him, they accepted the order in which the rate is different than as shown in the 3^rd option of Ext.A5 eventhough the flex boards are of the same size as shown there.  There is another quotation sent by the opposite party to the complainant which is in his mail and he is ready to produce it.  But he did not produce any other quotation as deposed by him and so Ext.A5 and the option No.3 in Ext.A5 can be taken to be the quotation between the complainant and the opposite party.  He further added that he had not received one year rent from the complainant.  In Ext.A5, the amount quoted is clearly shown as rent for one year.  So the opposite party is under the responsibility of maintaining the flex boards in proper locations and in appropriate condition for a period of one year.  Further Ext.A3, which is the invoice issued by opposite party to the complainant clearly indicates 15% service tax and the  amount charged for the service tax is Rs.31,050/-.  This again indicates that this is a rental agreement and they have charged the service tax for fixing and maintaining the flex boards.

Admittedly the opposite party had placed 18 flex boards in the month of March 2017 at different locations in Palakkad town and surrounding areas.  The opposite party also admits that the complainant had paid off the agreed amount.  So after receiving the full amount, the opposite party has to act as per their agreement in erecting and maintaining the flex boards.

Ext.A2, Palakkad Municipality Bye law ”For erecting and displaying advertisement boards in Public places, road side, private & public building and erecting Arches”, lays down the rules which are to be observed in erecting and displaying advertisement boards within the municipal area.  Different clauses in Ext.A2 clearly states the formalities to be complied with before erecting advertisement boards in Palakkad Municipal area.  The main formalities to be complied with are mentioned in clauses(17),(20),(26) and (27).  As per these clauses, anyone who intends to erect, display or fix advertisement boards in Municipal areas are to submit application to the Municipal Secretary stating the details of the boards and places in which they are to be erected etc. appended by structural stability certificate by competent authority.  The selected applicants are required to remit the required license fee, inspection and advertisement tax deposit.  Further the Municipal Secretary shall allot each of the public places in the list found for advertisement for each financial year through public auction and the highest bidder in the public auction shall be permitted to erect advertisement boards in common declared places observing the rules and regulations and remitting advertisement tax.

Similar rules are to be followed in case of erecting advertisement boards in places other than Municipal area.  Thus, the written permission of the Secretary of the local body has to be obtained after paying necessary tax for erecting advertisement boards.

Here in this case, the opposite party during his cross-examination admitted that he is aware of Ext.A2 Bye-laws of Palakkad Municipality in relation to erection of flex boards etc. in public places.  He further deposed that he is a licensed vendor and he has seven years of experience in the field and he is having more than 50 customers.  But only one or two customers approached him for erecting public boards and for them he had not taken any approval from the Municipality. During the cross examination he deposed that “50 IÌtagvkn Ht¶m ct­m t]À am{Xta public boardsâ tkh\w ssI¸änbn«pÅq.  AhÀ¡v approval H¶pw Rm³ FSp¯n«nÃ.  Approval FSpt¡­Xv Fsâ NpaXebà F¶mWv hnizkn¡p¶Xv.  Flex boardIÄ¡v Municipality A\pimkn¡p¶ taxIÄ hmZnbpsS HmÀUdn\v Rm³ AS¨n«nÃ.  Cu SmIvkpIÄ ASt¡­ NpaXe F\n¡nÃ.      

From this, it is clear that the opposite party had not taken any permission from the Municipal authorities or police station or any public authority before erecting the flex boards.  Being a licensed vendor, he should be aware of the rules to be followed while erecting advertisement boards etc. in public places.  Further, NOC should be obtained from the police station concerned to the effect that the proposed boards would not be an obstruction to free and safe movement of traffic, pedestrians and vehicles.  The boards abutting into roads are hazardous to pedestrians and to traffic and such boards which are placed illegally can be removed by the local authority.

The opposite party being a licensed vendor should abide by the rules of the Municipality.  From his deposition, it is clear that eventhough he was aware of the Municipal bye-laws, he ignored it and did not care to follow the rules.  Erecting the flex boards in public places without the permission of the local authority and without paying the advertisement tax is a clear violation of the bye-laws for which the opposite party is responsible.  Further erection of illegal boards or hoarding should be seen as an offence.  For such irresponsible acts on the part of opposite party, the complainant should not be made to suffer.  As per the complaint, out of 18 boards 6-7 flex boards were not present in their location and 4-5 were not in proper condition within three months of its erection and the complainant was not aware of the reason for the missing of the boards.   The opposite party did not specifically deny this contention and according to him he is not responsible for the maintenance of flex boards.

After accepting the complainant’s contract for erecting the flex boards, the opposite party is bound to submit the application before the Municipal authorities as per the Municipal bye-laws.  Only after participating in the public auction and paying the necessary tax, he can place the flex boards in appropriate places.  But here, from the deposition of DW1, it is clear that eventhough he is aware of the Municipal bye-laws framed by Palakkad Municipality, the opposite party had not taken any permission or paid any tax as prescribed by it.  After accepting the full payment the opposite party cannot simply say that he is under no obligation to maintain them in proper places for the period of one year.  He cannot evade his responsibility of payment of tax and other formalities in connection with the erection of the flex boards.  So there is a clear deficiency in service on the part of opposite party. Complainant entrusted the work to the opposite party who is a licensed vendor having experience in the field believing that he will take care of all the formalities for erecting and maintaining the flex boards.  The complainant paid the rent including the service tax to the opposite party under this belief.   So the opposite party is bound to see that the flex boards are in proper condition and in appropriate places for the period of one year so as to draw the attention of the public about the complainant’s institution.  Due to the deficiency in service on the part of the opposite party, the purpose behind their contract namely the promotional activity of the complainant’s institution did not serve. 

It is understood from Ext.A1 that the complainant took loan from the bank for her business purpose.  The complainant is fully dependent on this institution for her livelihood.  It is clear that, because of the acts of the opposite party, the complainant suffered mental agony as she was not able to fulfill the promotional activity of her institution.  The opposite party erected 18 flex boards and maintained them for three months. After that the opposite party failed to maintain them in their places and in proper condition as per their contract.  His contention that he is not responsible for maintaining them cannot be accepted because as per Ext.A5 it is considered as one year rent.  So the opposite party is only entitled to the charges for the boards he has erected and maintained throughout the period and the balance amount has to be returned to the complainant as he failed to fulfill the contract.

In the result, the complaint is partly allowed and we direct the opposite party to return the proportionate rent amount of Rs.82,800/-(Rupees Eighty two thousand and eight hundred only) for the non-maintenance of 10 boards for 9 months.

Further we direct the opposite party to pay an amount of Rs.30,000/-(Rupees Thirty thousand only) as compensation for the deficiency in service on the part of the opposite party and an amount of Rs.10,000/-(Rupees Ten thousand only) for mental agony.

Order shall be complied within one month from the date of receipt of this order, failing which the complainant is entitled for 9% interest for the whole amount from the date of order till realization.  

Pronounced in the open court on this the 12^th day of June 2020.      

                                                                                                                                Sd/-

                 V.P.Anantha Narayanan

                 Member(President I/c) 

                                                                                             Sd/-       

                                                                                                     Vidya.A

                                Member

Appendix

Exhibits marked on the side of complainant

Ext.A1 – Copy of account statement from 1 March to 28 April 2017.

Ext.A2 – Copy of Byelaw of Palakkad Municipality.(with objection)

Ext.A3 – Invoice issued by opposite party to the complainant.

Ext.A4 series – Supply order sent by complainant to the opposite party.(with objection)

Ext.A5  – Copy of Quotation issued by opposite party to the complainant.(with objection)

Exhibits marked on the side of Opposite parties

Ext.B1 series – Photos(18 Nos.)

Witness examined on the side of complainant

PW1 – Prabha Narayanan

Witness examined on the side of opposite parties

DW1 – Saiju.K

Cost :   NIL