Kerala

Alappuzha

CC/28/2023

Sri.K.C.Dasan - Complainant(s)

Versus

Sri.Shemeef - Opp.Party(s)

09 Mar 2023

ORDER

IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Pazhaveedu P.O., Alappuzha
 
Complaint Case No. CC/28/2023
( Date of Filing : 30 Jan 2023 )
 
1. Sri.K.C.Dasan
S/o K.M.Chandhu Kizhakkechakkalakal S.S.K.S Road Vaduthala Kochi-682023 Ernakulam
...........Complainant(s)
Versus
1. Sri.Shemeef
S/o Shereef Madeena Catering Services Vadakekollam Parambu Keerthi Nagar Elamakara Kochi-682026 Ernakulam
............Opp.Party(s)
 
BEFORE: 
 HON'BLE MR. S. Santhosh Kumar PRESIDENT
 HON'BLE MRS. Sholy P.R. MEMBER
 
PRESENT:
 
Dated : 09 Mar 2023
Final Order / Judgement

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA

Thursday the 09thday of March, 2023.

                                      Filed on 30.01.2023

Present

 

  1. Sri.S.Santhosh Kumar  BSc.,LL.B  (President )
  2. Smt.C.K.Lekhamma, B.A., LLB (Member)
    •  

CC/No.28/2023

between

Complainant:-                                                              Opposite party:-

Sri.K.C Dasan                                                         Sri.Shemeef

S/o K.M Chandhu                                                   S/o Shereef, Madeena Catering services

Kizhakkechakkalakal                                               Vadakekollam Parambu,

S.S.K.S Road, Vaduthala                                        Keerthi Nagar, Elamakara,

Kochi-682023                                                         Kochi-682026

Ernakulam                                                               Ernakulam

(Adv.D.B.Binu)                                                      (Adv.George Cherian Karippaparambil)

O R D E R

SRI. S.SANTHOSH KUMAR (PRESIDENT)

Complaint filed under Sec.12 of the Consumer Protection Act, 1986.

Material averments briefly stated are as follows:-

The marriage of the complainant’s daughter was scheduled for 21.08.2016.  There was a party during the evening of the previous day for which opposite party who is conducting a catering service had agreed to supply welcome drinks, chicken biriyani, Salads, chilli gopi, dates pickle, lemon pickle and ice cream.  For the marriage opposite party had agreed to supply two types of welcome drink at 9 AM and a feast with dishes and two types of payasam at the Chittoorappan Kalyana Mandapam.  They had also agreed for all arrangements stage arrangements etc.   Accordingly an agreement was executed agreeing to supply chicken biriyani and other items for 300 persons and feast for 800 persons on the marriage day of 21.08.16 @ Rs.110/-.  An advance of Rs.2000/- was collected at the office of the opposite party and on 16.08.16 Rs.8000/- at the residence of the complainant.  An order sheet was supplied in token.  It was agreed to pay the balance amount after marriage.

On the previous day evening though opposite party had agreed to provide biriyani for 300 persons when it was supplied for 200 persons the masala finished and for the remaining persons only biriyani rice was supplied.  It was informed to the opposite party immediately and he had agreed to provide sufficient quantity on the next day for the marriage. On the marriage day though opposite party agreed to provide welcome drink at 9 AM even after contacting opposite party it was provided at 11 AM.  It was also noticed that though two items were ordered only pista was supplied.  There was nobody to take responsibility.  Opposite party was not available over phone though contacted.  The feast was produced at the hall only at 12’O clock in the noon and the supply could start only after 12.30 PM.  Though the son of the complainant along with his friends reached the office of the opposite party it was closed. 

Sufficient quantity of dishes were not supplied.  When feast was supplied for 250 persons the items were finished.  Opposite party was not available over phone when contacted.  Thereafter relatives of the complainant managed to get food from other hotels in Ernakulam and purchased food for Rs.60,000/-.  Certain guests left without having food.  Dishes were not available for serving even to the bride and bride groom.  The act of the opposite party amounts to deficiency of service and unfair trade practice for which he is liable to compensate.  Complainant had to purchase food from several hotels for Rs.60,000/-.  He had also suffered mental agony due to the acts of the opposite party by not providing food at the agreed time.  On 05.09.16 opposite party came to the house of the complainant and issued a consent letter admitting his fault and agreeing to pay compensation.  Hence the complaint is filed for realizing an amount of Rs.2 lakhs for deficiency of service and compensation, Rs.60,000/- along with interest being the amount spent by the complainant for purchasing the food from other hotels,  Rs.1500/- being the amount spent for cleaning the hall and Rs.5000/- as cost.

  Opposite party filed a version mainly contenting as follows:-

The complaint is not maintainable.  This is filed as a counter blast to complaint No.443/16 dated 08.10.16 filed by the opposite party before the Sub Inspector of Police, Elamakkara Police station against the complainant.  Complainant had entrusted the function of 300 persons on 20.08.16 on the previous night of the wedding day.  The items undertaken to be supplied were one welcome drink, chicken biriyani, salad, chilly gopi, dates pickle, lemon pickle and ice cream.  Opposite party had undertaken the function at the rate of Rs.110/- per plate.  The averment in the complaint that the masala in the biriyani was over when it was served to 200 persons is absolutely false.  For serving biriyani to 300 persons the chicken meat required is 55 Kg.  Considering the fact that the house of the complainant is situated in a location like Lakshamveedu colony and that there is serving of liquor instead of 55 kg of chicken, opposite party had prepared the chicken biriyani with 60 kg of chicken.  For this 300 plate of biriyani function of the complainant on the night of 20.08.16 and 1000 plate biriyani function of Razak, aged 55 years was purchased by the opposite party.  Lagan brand name biriyani rice was purchased on 19.08.16 from Star Stores, Freedom road, Kaloor and 405.300 kg chicken on 20.08.2016 as per bill No.841 from Amen Chicken centre, Kaloor.  The biriyani for both the function on 20.08.16 were served without any complaint.

On 21.08.16 opposite party had undertaken the ‘Kalyana Sadya’  function of the complainant’s daughter for 800 persons.  The chief cook was Sri. M.N Gopy.  As instructed by him all the ingredients for the kalyana sadya was arranged by the opposite party.  Accordingly as promised with the complaint opposite party had made available all the items of kalyana sadya at 9.30 AM on 21.08.16 for 800 persons at Chittoorappan Kalyana mandapam, Chittoor.  Whereas instead of 800 persons approximately 1000 persons were present for the kalyana sadya.  Still the rice was sufficient but towards the end there was shortage of the side dishes.  Opposite party as promised provided kalyana sadya for 800 persons and the shortage of the side dishes had occurred only due to the presence of about 1000 guests for the marriage.  The averment that the food was brought late and the welcome drink reached at 11 AM only and the serving of food was started only at 12.30 PM and that side dishes were not served in sufficient quantity are absolutely false.  The further averment that the complainant and friends had purchased food for Rs.60,000/- is also equally false.  The averment that by the time the purchased food arrived the guests left the hall without having food is false.  The allegation of irresponsibility, deficiency in service, unfair trade practice and negligence alleged against the opposite party are only as a ruse to avoid payment of Rs.1,25,000/- due to him.  Opposite party is initiating legal proceedings for realization of the amount.  For 300 persons function of chicken biriyani and 800 persons of kalyana sadya the amount paid by the complainant is only Rs.10,000/-.  On 05.09.16 complainant telephoned the opposite party for settling the account.  Accordingly opposite party reached the house of the complainant on 05.09.16 at about 8 PM.  On entering the house complainant closed the door.  There were about 30-35 persons in the house.  They threatened the opposite party of physical assault and abused.  Under force, coercion and threat of physical assault document was obtained by the opposite party in his own handwriting.  Hence the document has no legal force.  Accordingly opposite party had lodged a complaint No.443/16/ police  before the Sub Inspector of Police, Elamakkara police station.  It is only after filing this police complaint, complainant has initiated the consumer complaint only as a ruse to avoid payment of Rs.1,25,000/- due to the opposite party.  Hence the complaint may be dismissed with compensatory cost.   

On the above pleadings following points were raised for consideration:-

  1. Whether there is any deficiency of service from the part of opposite party as alleged?
  2. Whether the quantity of food supplied by the opposite party at the previous day’s function and at the marriage day’s function were insufficient as alleged in the complaint?
  3. Whether the complainant is entitled to realise an amount of Rs.2,00,000/- as compensation from the opposite party as prayed for ?
  4. Whether the complainant is entitled to realise an amount of Rs.60,000/- along with interest being the price of the food purchased from outside due to insufficient supply of food by the opposite party?
  5. Whether the complainant is entitled to realise an amount of Rs.1,500/- being the amount spent for cleaning?
  6. Reliefs and costs?

Evidence in this case consists of the oral evidence of PW1 and Ext.A1 to A4 series from the side of the complainant and the oral evidence of RW1 and Ext.B1 to B8 from the side of the opposite party.

Point Nos.1 to 5

          PW1 is the complainant.  He filed an affidavit in tune with the complaint and marked Ext.A1 to A4 series.

RW1 is the opposite party.  He filed an affidavit in tune with the version and marked Ext.B1 to B8.

Originally the case was taken on file as CC 576/16 by the District Consumer Disputes Redressal Commission, Ernakulam and thereafter as per the order of the Hon’ble State Consumer Disputes Redressal Commission, Thiruvananthapuram the case was transferred to this Commission and renumbered as CC 28/2023.  The marriage of complainant’s (PW1) daughter was fixed for 21.08.2016. Opposite party who is the owner of M/s Madeena catering services had taken the contract as per Ext.A1 to supply feast (sadya) for 800 persons @ 110/- per plate.  The side dishes which are to be supplied are entered in Ext.A1.  Besides sadya he had also agreed to provide two types of welcome drinks (Pista and lemon).  He had also taken contract for supplying 300 plates of chicken biriyani and allied dishes on the previous day evening ie, 20.08.16.  An amount of Rs.10,000/- was collected as advance.  Now the case advanced by PW1 is that on the function scheduled for 20.08.16 evening opposite party had only supplied chicken masala for 200 plates.  So after supplying for 200 persons only biriyani rice were supplied for the remaining persons.  However when it was brought to the notice of the opposite party they had undertaken that on the next day they will take care to supply sufficient quantity.  On the date of marriage ie, 21.08.16 though opposite party had agreed to supply welcome drink at 9 AM it was supplied at 11 AM that also only pista was supplied.  Though opposite party had agreed to supply feast for 800 persons when about 250 persons had food it finished.  Though PW1 and his son tried to contact opposite party he was not available over phone.  Certain person who came to attend the  marriage left without having food.  Relatives of the complainant managed to get food from several hotels for which they had to spent Rs.60,000/-.  It is alleged by the complainant that this amounts to unfair trade practice and deficiency in service.  This caused much mental pain to the complainant and his family members.  Thereafter on 05.09.16 opposite party reached the house of the complainant and admitted his guilt and made an undertaking in writing that he will not claim the balance amount and that he will pay an amount of Rs.60,000/- which was spent for purchasing food  within 30 days ie, on or before 04.10.16.  Since the opposite party violated the undertaking the complaint is filed for realizing an amount of Rs.2,00,000/- on account of deficiency of service, Rs.60,000/- along with interest which was agreed as per undertaking dated 05.09.16 and Rs.1500/- being the amount spent for cleaning the hall and Rs.5000/- as cost.  Opposite party filed a version denying the allegations.   In the version he admitted that he had agreed to supply 300 plates of chicken biriyani on 20.08.16 and feast (sadya) for 800 persons on the marriage day.  He had purchased chicken and other items morethan sufficient quantity and supplied 300 plates of biriyani on the previous day.  However there were no complaints on the previous day.  For the function scheduled for 21.08.16 he had engaged Sri.M.N. Gopi as chief cook and purchased provisions and vegetables and provided sadya at 9.30 AM for 800 persons.  However there were morethan 1000 persons and so some side dishes were not sufficient.  There was enough rice for supplying to 1000 persons.  The allegation that complainant had to purchase food for Rs.60,000/- was denied.  It was contented that though Rs.1,25,500/- is to be paid being the balance amount it was not paid and only the advance amount of Rs.10,000/- was paid to him.  On 05.09.16 complainant telephoned opposite party for settling the amount and when he reached the house of PW1 there were 30-35 persons.  They threatened to him and under coercion obtained the so called undertaking.  Opposite party had filed a complaint before the Sub Inspector of Police, Elamakkara as petition No.443/16/police and it is pending.  Thereafter to avoid payment of balance amount this complaint is filed with false allegations.  Hence they prayed for dismissal of the complaint.  Complainant got examined as PW1 and marked Exts.A1, A2, A3 series and A4 series.  Opposite party got examined as RW1 and marked Ext.B1 to B8.  Relying upon the oral evidence tendered by PW1 coupled with documents marked the learned counsel appearing for the complainant pointed out that the complaint is proved as per law and so the complainant is entitled for the reliefs sought.  It was pointed out that Ext.A4 series bills will show that complainant had purchased food worth Rs.60,000/- on the date of marriage since the food supplied by the opposite party was not sufficient for the guests attended for the function.  It was also pointed out that Ext.A2 document was voluntarily executed by the opposite party and the so called police complaint (Ext.B1 ) was filed only on 08.10.16.  Per contra the learned counsel appearing for the opposite party relying upon the evidence of RW1 coupled with Ext.B1 to B8 documents pointed out that the case put forward by the opposite party is more probable.  Ext.A2 document was executed under coercion for which Ext.B1 complaint was filed before the Elamakkara police station.  Ext.B2 and B3 will show that on 19.08.16 and 20.08.16 sufficient quantity of articles including chicken were purchased for preparing chicken biriyani.  Though 55 Kg of chicken is sufficient for preparing 300 biriyanis, 60 Kg were purchased.  As per Ext.B3 more quantity of chicken was purchased since he had another order of 1000 chicken biriyani.  It was also pointed out that from Ext.B4 it can be seen that Sri.M.N.Gopi was engaged for preparing sadya and Ext.B5 to B8 bills will show that on 20.08.16 sufficient quantity of vegetables and provisions were purchased.  Since the allegations are baseless the complaint may be dismissed. 

The allegation of PW1 is that on the previous day function though RW1 had undertaken to supply 300 plates of chicken biriyani chicken masala was available only for 200 plates.  On the other hand RW1 stated that though 55 Kg of chicken is sufficient for preparing 300 plates of chicken biriyani he had purchased 60 Kg.  It is alleged that certain chicken masala was taken for the drinking party and hence certain quantity of chicken masala became insufficient.  It is noticed that complainant is relying upon his solitary testimony to prove the case.  Admittedly morethan 300 persons attended on the previous day function and none of them were examined to prove the case.  To prove that sufficient quantity of food was not supplied for the marriage function PW1 is relying upon Ext.A3 series photographs and Ext.A4 series bills.  Ext.A3 series photographs shows that though rice was supplied sufficiently for the guests side dishes were not available except in the 1st photograph ( Ext.A3).  However it is noticed that as per the admitted case of PW1 he had purchased 1055 plates of food as per Ext.A4 series bills from various hotels for an amount of Rs.56,600/-.  If he had purchased that much food it is not known why it was not supplied to the guests.  It is also noticed that Ext.A3 series photographs were marked through PW1 and no steps is seen taken to examine the photographer who took the photographs to prove the same. 

PW1 is also relying upon Ext.A4 series bills to prove that on 21.08.16 ie, on the date of marriage he had purchased food from 8 hotels.  On a perusal of Ext.A4 series it is seen that it is bills issued from various hotels in and around Ernakulam for 1055 plates of meals and the total amount paid is Rs.56,600/-.  As rightly pointed out by the learned counsel appearing for the opposite party Ext.A4 series bills were not produced along with the complaint.  It was produced on a later stage at the time of examination of PW1 ie, on 06.10.18.   The complaint is seen filed on 17.10.16. The persons who issued Ext.A4 series bills are not seen examined as witnesses and the bills were marked through PW1.   As held by the

Hon’ble High Court in M/s PRS Hospital, Thiruvananthapuram and another Vs. P Anil Kumar (2021 KHC 1)

There are four stages before a Court of law can rely upon a document.  They are (i) marking of a document, (ii) admissibility of a document, (iii) proof of contents of the document, and (iv) evaluation of the document.  Reliance upon a document can be made by the court only if all the above four stages are complied with or satisfied.  By the mere marking of a document, it does not become admissible in evidence.  Further, the marking of a document and being admissible in evidence, will still not render the contents of a document as ‘proved’.  When a document, admissible in evidence, is marked, still to be relied upon by the courts, its contents will have to be proved.  For the contents of a document to have a probative value, the person who wrote the contents or is aware of the contents and its veracity must be invited to give evidence about it.  It is thereafter the last stage ie, evaluation takes place.  Evaluation of the document is a judicial exercise.  Unless all these stages are done, a court of law cannot rely upon any document produced or marked before it.

          Hence applying the principles laid down by the Hon’ble High Court Ext.A3 series and A4 series cannot be relied upon since the person who took ext.A3 series photographs and the persons who prepared Ext.A4 series bills are not examined as witnesses in this case. 

          PW1 is relying heavily on Ext.A2 undertaking executed by RW1.  It is seen executed on 05.09.16 and it contains the signature of RW1.  According to PW1 on 05.09.16 opposite party reached his house to tender pardon and executed Ext.A2 undertaking stating that he will repay Rs.60,000/- which was spent for purchasing food and that he will relinquish the balance amount due to him.  RW1 contented that he was called to the house of PW1 on a pretext to settle the account and under threat and coercion by about 30-35 persons who were present there, Ext.A2 document was executed.  Though execution of Ext.A2 was seriously challenged in the version no steps is seen taken to prove the same by examining the witnesses in the document. It is seen that two witnesses by name Rajesh and Siva Prasad are signatories in Ext.A2 document.  Since execution of Ext.A2 was seriously challenged it was incumbent upon PW1 to prove the same by examining witnesses which is not seen done for the best reason known to PW1.  The learned counsel appearing for the opposite party relied upon Ext.B1 complaint filed by the opposite party before Elamakkara police station in which it is stated that Ext.A2 document was executed under threat and coercion.  It is true that though Ext.A2 is seen dated 05.09.16 Ext.B1 complaint is filed only on 08.10.16.  However during cross examination PW1 admitted that on 08.10.16 he was called by the Elamakkara police and informed about the complaint.

          Admittedly as per Ext.A1 agreement RW1 had agreed to supply 800 sadya during the marriage.    Ext.B4 will show that he had engaged one Sri.M.N.Gopi and he had given a list of articles to be purchased for the feast.  Accordingly as per Ext.B5 to B8 bills opposite party purchased provisions and vegetable on 20.08.16.  Ext.B5, B6 and B7 is issued in the name of Madeena caterers and Ext, B8 is issued in the name of Noufal.  As rightly pointed out by the learned counsel appearing for the opposite party in Ext.B5 bill it is seen that opposite party had purchased 850 plantain leaves.  So it is crystal clear that opposite party had arranged feast for morethan 800 persons and that is why they had purchased 850 plantain leaves.   Though PW1 has got a case that several guests left without having food and that the son of the complainant and his friends were running from pillar to post to arrange alternate food none of them were examined to prove the case.  Hence on assessing the evidence as a whole it can be seen that execution of Ext.A2 document is under challenge and Ext.B1 petition was filed before the police against the same.  Admittedly only an amount of Rs.10,000/- as advance was paid though morethan Rs.1,25,000/- is due to the opposite party.  Ext.A3 series and A4 series cannot be relied upon since the person who took the photographs and the persons who prepared the bills are not examined.  The documents produced from the side of opposite party ( B2 to B8 ) will show that sufficient quantity of vegetables and provisions were purchased for preparing feast for 800 persons and that opposite party had arranged a cook by name Sri.M.N Gopi.  The non examination of witnesses to prove the case is fatal to the complainant’s case.  In such circumstances we are of the opinion that complainant is not entitled to get a favourable order and so these points are found against the complainant.

Point No.6

          In the result complaint is dismissed.  Parties are directed to bear their respective cost.      

           Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 9th   day of March, 2023.                

                                                                 Sd/-Sri.S.SanthoshKumar (President)

                          Sd/- Smt.C.K.Lekhamma (Member)

Appendix:-Evidence of the complainant:- 

PW1                     -   Sri.K.C.Dasan (Complainant)

Ext.A1                 -   Copy of contract 

Ext.A2                  -   Copy of document

Ext.A3                  -   Photographs (6 Nos)

Ext.A4 series        -   Bills (8 Nos)

Evidence of the opposite parties:               

RW1                       -   Smt.Shemeef (OP)

Ext.B1                    -   Complaint filed before Elamakkara Police station

Ext.B2                   -   Estimate dtd.19.08.16

Ext.B3                    -   Cash bill dtd.20.08.16

Ext.B4                    -   Copy of Bill

Ext.B5                    -   Bill dtd.20.08.16

Ext.B6                    -   Invoice dtd.20.08.16

Ext.B7                    -   Invoice dtd.20.08

Ext.B8                    -   Invoice dtd.20.08

 

///True Copy ///

To     

          Complainant/Oppo.party/S.F.

                                                                                                     By Order

 

                                                                                                 Assistant Registrar

Typed by:- Sa/-

Comp.by:

 

 

 
 
[HON'BLE MR. S. Santhosh Kumar]
PRESIDENT
 
 
[HON'BLE MRS. Sholy P.R.]
MEMBER
 

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