State Consumer Disputes Redressal Commission
. K.A. Mathew, | Chief Editor, | Malayala ... vs M.P. Ravindran,Chennai 600 034. on 31 March, 2010
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Tmt.Vasugi Ramanan, M.A. B.L., MEMBER I Thiru.S.Sambandam, B.Sc., MEMBER II F.A.298/2006 [Against order in C.C.No.410/2004 on the file of the DCDRF, Chennai (South)] DATED THIS THE 31st DAY OF MARCH 2010 1.
K.A. Mathew, | Chief Editor, | Malayala Manorama Company Ltd., | Kottayam 686 001, | State of Kerala. | | Appellants/Opposite Parties
2. The Executive, | Malayala Manorama Company Ltd., | Unit B, III Floor, "Heavitree", | 23, Spur Tank Road, Chetpet, | Chennai 600 031. | Vs. M.P. Ravindran, | S/o. M.P. Kumar, | Respondent/Complainant Proprietor "Hotel Alankar", | 11, Velayutham Street, | Opp: Valluvarkottam, | Chennai 600 034. | The respondent as complainant filed a complaint before the District Forum against the appellants/opposite parties praying for the direction to the opposite parties to pay a sum of Rs.1240/- paid on 28.4.2004, Rs.1000/- towards legal charges, Rs.80,000/- for the loss and injury and to pay the cost. The District Forum allowed the complaint, against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.30.11.2005 in C.C.410/2005.
This appeal coming before us for hearing finally on 24.03.2010. Upon hearing the arguments of the counsels on eitherside, this commission made the following order:
Counsel for the Appellants /OPs : Mr.T.K. Bhaskar, Advocate Counsel for the Respondent/ Complainant :
Mr.N.F.J.Ponnudurai, Advocate.
M. THANIKACHALAM J, PRESIDENT
1. The opposite parties are the appellants.
2. The complainant having decided to open a posh hotel, in the name and style of 'Hotel Alankar' near Vallurvarkottam, decided to give advertisement by publication in Malayala Manorama both in Malayalam and Tamil in order to invite and to inform his friends, relatives and general public.
For this purpose, the second opposite party at Chennai was approached and for giving advertisement, a sum of Rs.1,240/- was paid for publication in Malayala Manorama daily newspaper in the issue to be published on 1.5.2004 in Malayalam published from Cochin and in tamil edition from Chennai. The opposite parties in violation of their acceptance, committed deficiency in not publishing in the issue of Malayala Manorama edition in Chennai on 1.5.2004, thereby, caused mental agony and other sufferings, for which, they should be directed to refund the amount received namely of Rs.1,240/- as well a sum of Rs.2 lakhs as compensation, in addition to, a further sum of Rs.60,000/- for business loss.
3. The opposite parties admitting the receipt of the amount for publication in the Kozhikode and Chennai editions of Malayala Manorama would contend that the advertisement could not be published in the Chennai Edition alone on 1.5.2004, that as per the condition available in the receipt, if the advertisement was not given, the advertisement will be published on the next immediate available date, that when the complainant was not willing, though the opposite parties was willing to return the money received for the advertisement, the same was not accepted by the complainant and that the allegation that the complainant suffered loss to the extent of Rs.2,60,000/- etc., are all false, invented for the purpose of the case, thereby, praying for the dismissal of the complaint.
4. The District Forum, considering the admitted position as well as the deficiency caused by the opposite parties, directed them to refund a sum of Rs.620/-, in addition to, compensation of Rs.10,000/- and cost of Rs.1,000/-, thereby, causing grievance to the opposite parties, resulting this appeal.
5. Heard, the learned counsel appearing for either side, perused the documents, written submissions as well as the order of the District Forum.
6. The complainant having decided to open a Hotel in the name and style of "Hotel Alankar", approached the opposite parties to give advertisement in the issue of Malayala Manorama, one in Malayalam emanating from Cochin and in tamil, emanating from Chennai. Admittedly, for the said purpose, the opposite parties have collected a sum of Rs.1,240/-, not in dispute. Unfortunately, the advertisement could not be published in the Chennai edition alone, though in Cochin, Kozhikodu Edition, it was published in Malayalam. Thus, the complainant who had paid amounts to the opposite parties for publication, failed to get the benefits of the publication in Tamil, in the issue of Malayala Manorama Edition, Chennai. Therefore, as said above, complaining deficiency, case has been filed, resulted in partial victory, which is under challenge.
7. The tall claims made by the complainant, were not fully accepted by the District Forum and major claims were dismissed. Aggrieved by the dismissal, the complainant has not preferred any appeal.
8. It is admitted by the opposite parties, in the Written Version itself that they have collected a sum of Rs.1,240/- from the complainant for the publication to be made in the Kozhikode and Chennai Editions of Malayala Manorama. Though they would contend that there was no privity of contract between the complainant and the first opposite party, it is proved by the documents that agreeing to publish the inaugural function of the Hotel of the complainant, amount was collected, which should be construed as contract between the parties. The learned counsel for the appellant would contend that if advertisement on the specified date was not published due to unavoidable reasons, the advertisement would be published on the next immediate available date and when the same was informed to the complainant, he has not agreed to give any date and therefore, no deficiency could be attributed to the opposite parties. In this case, an inauguration of the Hotel was fixed on 02.05.2004, the opposite parties have agreed to publish the advertisement in the edition dated 1.5.2004, for which, amount was collected previously. Since the purpose of advertisement was over even on 2.5.2004 itself, question of accepting any other date thereafter for publication of this advertisement may not serve any purpose and in this view, the non-acceptance of the complainant to publish the same advertisement, subsequently will not relieve the opposite parties from the deficiency committed, namely, their undertaking to publish in the newspaper dated 1.5.2004. Therefore, in this view of the admitted position, that the opposite parties have not published the advertisement given by the complainant in the Chennai Edition on 1.5.2004 should be construed as deficiency in service. Considering these facts, the District Forum proportionately ordered the refund of the amount collected, in which, we find no illegality or anything against the facts. Hence, the first direction should be confirmed.
9. The complainant though claimed Rs.2,60,000/- under two heads, no materials has been placed either to prove that the quantum of damage or the quantum of damage as ordered by the District Forum namely Rs.10,000/-. The fact remains because of the non-publication of the news on 1.5.2004, the complainant was deprived of certain benefits, his friends or relatives would have seen, consequentially, attended the function, thereby, communicating to others also about the establishment of the Hotel on 2.5.2004, consequentially benefiting the complainant, also to some extent. In the absence of materials in fixing the quantum of damage, only a nominal compensation alone can be ordered, which we are inclined to quantified at Rs.5,000/- instead of Rs.10,000/-. In this view, the order of the District Forum is to be modified.
10. In the result, the appeal is allowed in part and the order of the District Forum in O.P.410/2004, dt: 30.11.2005 is modified, directing the opposite parties to pay a sum of Rs.620/- as ordered by District Forum and a sum of Rs.5,000/- as compensation with cost of Rs.1,000/-. There is no order as to cost in this appeal.
S. SAMBANDAM VASUGI RAMANAN M.THANIKACHALAM MEMBER II MEMBER I PRESIDENT INDEX : YES / NO Ns/mtj/Misc/fm