KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION\
VAZHUTHACAUD THIRUVANANTHAPURAM
APPEAL NO.831/04
JUDGMENT DATED 25.3.2011
PRESENT:
SHRI.M.V.VISWANATHAN : JUDICIAL MEMBER
Prabhavathi, : APPELLANT
W/o. V. Ramachandran, Prabhatham,
Chelanoor Post, Kozhikode.
(By Adv. P.M.Mohammad Shiraz)
Vs.
Manager, : RESPONDENT
M/s. Malabar Palace,
Manuel Sons, Kozhikode.
(By Adv. Shyam Padman)
JUDGMENT
SHRI.M.V.VISWANATHAN, JUDICIAL MEMBER
Appellant was the complainant and the respondent was the opposite party in OP.612/99 on the file of CDRF, Kozhikode. The complaint in the said OP.612/99 was filed alleging deficiency in service on the part of the opposite party in providing facilities for the marriage function conducted. Malabar Palace in connection with the marriage of the complainant’s daughter. The complainant alleged that for the said marriage she along with her husband booked food for 850 persons and that there occurred failure on the part of the opposite party in supplying food for 400 guests who participated in the marriage ceremony and that out of 600 invitees, the opposite party could supply food for 200/- persons. Therefore, the complainant suffered mental agony and humiliation before the guests. Hence, the complaint was preferred claiming refund of Rs.52,000/- out of the total amount of Rs.68,000/- received by the opposite party from the complainant and also compensation of Rs.50,000/-.
2. The opposite party entered appearance and filed written version denying the alleged deficiency in service. He contended that the complaint is not maintainable and that the complainant is not a consumer coming within the ambit of the Consumer Protection Act, 1986. It was further contended that the husband of the complainant and the proposed bride groom approached the opposite party and booked the air conditioned hall which could accommodate only around 500 persons and that food was arranged in buffet style and there were un-expected guests of about 1500 and so the crowd became un-controllable; that the opposite party supplied food to all the guests and the inconvenience if any caused was only due to the arrival of un-expected number of invitees for the marriage. Thus, the opposite party prayed for dismissal of the complaint.
3. Before the Forum below, the complainant was examined asPW1 and that 2 other witnesses were examined on the side of the complainant as PWs 2 & 3. On the side of the opposite party RWs 1 to 3 were examined. Exts. P1 to P3 and R1 to R4 documents were also marked on the side of the parties to the complaint in OP.612/99. On an appreciation of the evidence on record, the Forum below passed the impugned order dated 19th August 2004 dismissing the complaint in OP.612/99. Hence the present appeal.
4. We heard the learned counsel for the appellant and the respondent. The counsel for the appellant submitted his arguments based on the grounds urged in the memorandum of the present appeal. He argued for the position that the complainant who filed the complaint in OP.612/99 was the competent person to depose in support of her case in the complaint and that the Forum below has gone wrong in finding that the best evidence was suppressed by the complainant. It is further submitted that the complainant as PW1 has categorically deposed about the reason for non-examination of her husband. It is also submitted that the Forum below has conveniently forgotten the fact that the complainant (PW1) actively participated in the marriage ceremony and she was competent to depose about the deficiency in service on the part of the opposite party in making arrangements and providing facilities for the marriage. He also relied on the testimony of PWs 2 & 3 and argued for the position that the Forum below has gone wrong in dismissing the complaint without going into the merits of the case. Thus, the appellant prayed for setting aside the impugned order passed by the forum below and to allow t he complaint in OP.612/99. On the other hand, the counsel for the respondent/opposite party supported the impugned order passed by the forum below and prayed for dismissal of the present appeal. He pointed out the inconsistency and contradictions in the testimony of PW1 with that of PWs 2 & 3. It is also submitted that there was no deficiency in service on the part of the respondent/opposite party in providing facilities for the marriage which was conducted in the Malabar Palace, where the opposite party was working as the Manager. Thus, the respondent prayed for dismissal of the present appeal.
5. There is no dispute that the appellant’s husband Mr.Ramachandran booked the air conditioned hall in Malabar Palace, Manuel sons, Kozhikode for the marriage of their daughter. He had also booked food for 850 persons for the said marriage, which was solemnized on 29.8.99. The aforesaid booking was done on 1.7.99 along with PW3 Roshin who was the proposed bride groom of the said marriage. On 1.7.99 an advance of Rs.5000/- was also paid to the opposite party, the Malabar Palace, Manuel sons, Kozhikode. It is also an admitted fact that on 17.8.99, the aforesaid Ramachandran paid the balance amount of Rs.63,000/- and the same was accepted by the opposite party. There is no dispute from the side of the opposite party that the booking of the marriage hall and food for 850 persons were done by the said Ramachandran and the said dealings were with the Manager of the Malabar Palace, Manuel sons, Kozhikode.
6. The Manager of Malabar Palace, Manuel sons, Kozhikode was examined as RW1. He categorically admitted the fact that he is the Manager of the opposite party establishment and he has been doing the day to day affairs of the opposite party establishment and that he is assisted by Marketing Manager and Manager operations. He specifically added that he is the Finance Manager. But, at the same time, he admitted the fact that he issued the letter to the complainant. According o RW1, he himself issued a letter to the complainant demanding the balance amount due to the opposite party establishment. A close study of the testimony of RW1 and his affidavit filed in this case would make it clear that the Manager, Malabar Palace, Manuel sons, Kozhikode was the competent party who had transacted with the appellant’s husband Ramachandran in connection with the booking of the marriage hall and for supply of food for 850 invitees to the marriage. It is also come out in evidence that the total consideration was fixed at Rs.68,000/- by treating the number of invitees at 850 at the rate of Rs.80/- per head. The aforesaid circumstance would make it clear that the total consideration of 68,000/- was fixed for providing facilities for the marriage of appellant’s daughter and the said marriage was conducted at the premises of the Malabar Palace, Manuel sons, Kozhikode on 29/8/99.
7. Ext.R1 invitation letter and R4 (P2) cash receipt dated 17.8.99 for Rs.63,000/- would also make it clear that there was booking of the marriage hall and food for 850 persons.
8. The case of the appellant/complainant is that there occurred failure on the part of the opposite party in providing suitable and necessary facilities for conducting the marriage. It is the case of the appellant/complainant that the respondent/opposite party failed to accommodate the guests who had come to participate in the marriage ceremony. More important case of the appellant/complainant is that the respondent/opposite party had only supplied food for 200 guests and the remaining 650 guests were not provided food. Thus, the appellant alleged deficiency in service on the part of the opposite party in providing facilities for the marriage.
9. The opposite party vehemently denied the aforesaid deficiency in service alleged against him. The definite case of the respondent/opposite party is that he supplied food for about 1500 guests and that he has claimed charges only for 1200 persons. It is the further case of the opposite party that a sum of Rs.28,000/- is due from the complainant’s husband Ramachandran, as food was supplied to 1200 persons. But, at the same time RW1 has categorically admitted that he has not taken any steps for realization of the aforesaid balance amount of Rs.28,000/- from the appellant/complainant or her husband Mr.Ramachandran. But, the Forum below failed to consider the alleged deficiency in service on the part of the opposite party.
10. A perusal of the impugned order would show that the Forum below has found fault with the complainant in not examining her husband Ramachandran who booked the marriage hall and food for 850 guests. But, the Forum below has conveniently forgotten the fact that the complainant, the wife of Ramachandran is also a competent person to depose about the alleged deficiency in service on the part of the opposite party. The Forum below omitted to note the fact that the complainant (PW1) actively participated in the said marriage function which was conducted at the premises of the Malabar Palace, Manuel sons, Kozhikode on 29.8.99. It is to be noted that the complainant (PW1) is the mother of the bride and wife of Ramachandran who booked the marriage hall and the food for the marriage. It is further to be noted that the complainant alleged deficiency in service which occurred on 29.8.99, the date of the marriage. On that day, the complainant was present and actively participated through out the marriage function. So, the competency of PW1 to depose about the deficiency in service is to be considered. Unfortunately, the Forum failed to consider that aspect. On the other hand, the Forum below was very much interested in finding fault with the complainant for her failure in not examining her husband, Ramachandran. The aforesaid finding of the Forum below can be treated as un-warranted as far as the case in the complaint regarding deficiency in service is concerned.
11. The complainant as PW1 has deposed about the fact that her husband Ramachandran is employed in Merchant Navy. PW3, the son-in-law of the appellant/complainant has also deposed that his father-in-law is employed in Merchant Navy and he will be in Ship and he will be out of station. So, the available evidence on record would show that there is reasonable and acceptable ground for not examining Ramachandran, the husband of the complainant. It is further to be noted that PW3, the son-in-law of the appellant/complainant had also accompanied Mr.Ramachandran when they booked the marriage hall and food for the guests. The evidence of PW3 is also to be considered. But, the Forum below failed to appreciate the evidence tendered by PWs 2 & 3. The Forum below pointed out some inconsistencies and contradictions in the testimony of PW1 and thereby not relied on the testimony of PW1. The reason stated for not relying on the testimony of PWs 2 & 3 is that their evidence is only the supporting evidence. But, the Forum below cannot be justified in not relying on the testimony of PW3 and that of PW1 for considering the material issue as to whether there was any deficiency in service on the part of the opposite party in providing the facilities for the marriage.
12. It is further to be noted that there is no discussion about the testimony of RWs 1 to 3. The Forum below failed to analyze the evidence of RWs 1 to 3 and how far their evidence can be relied on for rejecting the case of the complainant regarding deficiency in service. It can be seen that the only reason stated by the Forum below for rejecting the case of the complainant is the non- examination of Ramachandran, the husband of the complainant. The aforesaid approach made by the Forum below cannot be appreciated. The available circumstances would also show that the complainant was not given the opportunity to examine her husband to prove the alleged deficiency in service. The learned counsel for the respondent/opposite party has argued about the non-production of the Photographs and Video graphs covering the marriage function. It is vehemently argued by him that production of the Video graphs and the Photographs covering the marriage function are to be treated as best piece of evidence to prove the case of the complainant regarding deficiency in service. If that be so, the matter can be remitted back to the Forum below to consider the material issue regarding the alleged deficiency in service on the part of the opposite party. By remitting the matter to the Forum below, both parties can also adduce evidence in support of their respective pleadings. The failure on the part of the complainant in not examining her husband Ramachandran can also be rectified. At any rate, the Forum below cannot be justified in rejecting the case of the complainant on the ground that the husband of the complainant was not examined in the case. So, this Commission have no hesitation to set aside the impugned order dated 19.8.04 passed by the Forum below in OP.612/99 and to remit the matter to the Forum below for fresh disposal in accordance with law.
13. In the result, the appeal is allowed by remanding the matter to the Forum below for fresh consideration and disposal of the same on merits. For that limited purpose, the impugned order dated 19.8.04 passed by the Forum below is set aside. It is made clear that both parties are at liberty to adduce further evidence in support of their respective pleadings. As far as the present appeal is concerned, there will be no order as to costs. The parties are directed to appear before the Forum below on 29.4.11.
SHRI.M.V.VISWANATHAN, JUDICIAL MEMBER
