By. Sri. K. Gheevarghese, President :
 

The complaint filed under section 12 of the Consumer Protection Act 1986, for non publication of advertisement in the scheduled time by the Opposite Party and for compensation of the non performance of the terms agreed.

2. The complaint in brief is as follows:- The Complainant is a business man having registered lodging house mainly meant for accommodation of the tourists in and out side Kerala.   The rental charge per rooms is Rs.3,000/-. The Complainant gave an advertisement in Malayala Manorama Daily which schedule to be published 23.3.2008 in the entire editions in India and Gulf Countries. The caption given for advertisement is “Travel and Tours”. The contract was entered into with the agent of the Malayala Manorama Daily and the charge of Rs.660/- was given to the agent, who is arrayed as the 3^rd Opposite Party. The Opposite Party had not published the advertisement as agreed by the contract and it was only upon the reminder of the Complainant the Opposite Party responded. The non publication of the advertisement on acceptance of the charge is a violation of the terms agreed and deficiency in service. The inaction or the non performance of the contract caused heavy loss to the Complainant which is estimated to Rs.4,08,000/-. The publication of the advertisement if done in time as scheduled, the Complainant would have more earnings from the tourists in an out side Kerala. There may be an order directing the Opposite Parties to pay:

(a) Rs. 4,08,000/- towards the compensation of the loss incurred with an interest at the rate

of 12% from 23.3.2008 onwards till realization.

(b) Rs. 25,000/- towards the damages and mental agony.

© Rs.5,000/- as the cost of this proceedings.

2. The sum up of the version filed by the Opposite Party is as follows. The complaint is filed not within the territorial jurisdiction and that a part the complainant is not entitled for any relief as sought for. Since the purpose of the lodging house is commercial which is not adjudicative as per the act. The 3^rd Opposite Party is only a canvasing agent of 1^st and 2^nd Opposite Parties. There by no liability can be fastened upon the 1^st and 2^nd Opposite Parties. There is no previty of contract between the Complainant and Opposite Parties No.1 and 2. The advertisement canvased by the 3^rd Opposite Party was scheduled for publication in the Malayala Manorama Daily. The terms of contract was agreed by the Complainant as per which it was known to the Complainant that the publication could not be done on a particular day and no such undertaking was there in between the Complainant and 1^st and 2^nd Opposite Parties. No particular day was specified in the publication of the advertisement and the complainant is in no way entitled for any claim upon it. The advertisement entrusted was published on 23.3.2008 in the editions within Kerala and Gulf Countries. Because of some technical reasons, in the out side Kerala editions the advertisement was not published. Later the publication was done on 27.4.2008 without charging anything extra. There was no assurance from the part of the 1^st and 2^nd Opposite Parties on the publication of the advertisement on a particular day.

3. The allegation of the Complainant that the non publication of the advertisement caused heavy loss and damages are baseless and which are not sticking to the facts. The damages and compensation claimed by the Complainant are based on whims and fancies and it is also unsupported. There is no action of short coming or deficiency in service on the part of the Opposite Parties. The complaint is to be dismissed with cost to the Opposite Parties.

4. The points in consideration are :

1. Whether the complaint is maintainable?

2. If so what order on the relief and cost ?

    

5. Points No.1 and 2:- The points No. 1 and 2 can be considered together. The evidence of the Complainant consists of oral testimony and the documents Exts.A1 to A4 produced for the Complainant. The Opposite Parties No.1 and 2 filed proof affidavit. Exts. B1 to B3 series are the documents produced in support of their contentions. The Opposite Party has also tendered oral evidence. The 3^rd Opposite Party is declared exparte. The case of the Complainant is that the advertisement of the lodging house was entrusted for publication through the agent of the 1^st and 2^nd Opposite Parties who is arrayed as the 3^rd Opposite Party. The advertisement was scheduled to be published on 23.3.2008 in all editions of Malayala Manorama Daily in Kerala, out side Kerala and editions in Gulf Countries. The advertisement was not published on acceptance of the charge for publication in none of the editions in Malayala Manorama Daily. The non publication of the advertisement caused heavy loss to the Complainant who runs the lodging house. The advertisement of the lodging house was to attract tourists for residential purpose from in and out side Kerala. The complaint is not having any averment that the lodging house is a source of his income for living. More over the purpose of the concern is purely for the commercial purpose. The other contentions of the case in hand is that no advertisement as ordered was published on the specified date 23.3.2008. The documents produced by the Opposite Party further shows that the advertisement was published in Kerala and Gulf Countries on 23.3.2008 and the publication in out side editions of Kerala was effected on 27.4.2008. Ext.A4 shows that the owner of the premises is Mrs. Shelter Elizabath. The Complainant is the keeper of the lodging house. The claim of the Complainant that the advertisement was not done as per the terms is not supported by evidence. More over the complaint is not having any indication that the concern is run for his livelihood. Instead the complaint itself enlighten the purpose that the lodging house is a business purpose. In the discussion of the above we are in the opinion that the complaint is not maintainable and the points are decided accordingly.

In the result, the complaint is dismissed no order as to costs.

Pronounced in open Forum on this the day of 30^th September 2009.

PRESIDENT: Sd/-

MEMBER- I: Sd/-

MEMBER-II: Sd/-

APPENDIX

Witness for the Complainant.

PW1. M.Y. Eliyas. Complainant.

Witness for the Opposite Parties.

OPW1. Viswambharan Senior Executive Malayala Manorama.

Exhibits for the Complainant:

A1. Advertisement Bill. dt:23.03.2008.

A2. Copy of letter. dt:16.5.2008.

A3. Reply Letter. dt:20.05.2008.

A4. Copy of the Registration of Lodge. dt:21.05.2008.

Exhibits for the Opposite Parties:

B1. Classified Advertisement Order Form.

B2 series. Malayala Manorama News Paper dt:23.3.2008.

(9 numbers)

B3 series. Malayala Manorama New Paper dt:27.4.2008.

(3 numbers)