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S.N. Govinda Prabhu & Bros. - Appellant
Versus
P. Vijayan & another - Respondent
Decided On : 01/14/1992
Complaint No. 12 of 1991
Advocates Appeared :
R. Raghwan Pillai,M/s. C.S. Sukumaran Nair,Others
Headnote:(i) Consumer Protection Act, 1986 - Section 2(1)(o) r/w 2(1)(d)(ii) - Complaint by umbrella manufacturer for deficiency in advertising services of opposite parties - Opposite Party 1 booking telecast of a casette for certain days in June of 1990 not telecasted - Whether complainant is a consumer? (Yes of service) Hiring of service for commercial purpose Whether outside the Consumer Protection Act? (No). (Para 7)
(ii) Consumer Protection Act, 1986 - Section 2(1)(c) r/w 13 - Complaint is sought to be dismissed on ground that it required elaborate enquiring and evidence - Whether sustainable? (No)
Held: The Act does not envisage parties to canvass this as valid ground for preliminary objection and pray for dismissal of the complaint at the threshold itself. However, we are recording here that the complaint under reference does not appear to us as one that requires elaborate enquiry and evidence appreciation as in a Civil suit and stands admitted for adjudication.
(para 8)
(iii) Consumer Protection Act, 1986 - Sections 2(1)(c) and 14(1) - Complaint about non-telecast of complainants booked casette on 6th & 7th June 1990 on Doordarshan - Opp. Party 1 having booked for two days - Doordarshan informed of one day - Reason of non-telecast discrepant - Opp. Party 1 saying it was due to oral cancellation - Doordarshan alleging it was due to non-receipt of payment - There is deficiency in service (Para 12) - Only one cansette made instead of two (para 13) - There is no refund of hire charges properly - Relief.
(Para 14)
In the light of the above discussion, we have come to the conclusion that the opposite party No.1 M/s Media Waves, Thiruvananthapuram is guilty of deficiency of service on the grounds of:
(i) arranging with the opposite party No. 2 Doordarshan, Thiruvananthapuram the telecast of the advertisement casette of the complainants Kilimark Kudakal for one day only i.e. 6th June 90 instead of both 6th and 7th June 90 as per the hiring agreement.
(ii) failure to get the casette telecast by Doordarshan on 6th and 7th June 90 as agreed upon, solely due to his default in making payment to Doordarshan in time:
(iii) non-return of the advertisement casette or refund of its production cost of Rs. 20,0001- to the complainants; and
(iv) non-refund of the hire charges of Rs.8,553/- received as per Ext P3 as the opposite party No.1 failed to perform the hiring contract (It may be noted that there is a discrepency of Rs.3/- between the amount shown in PI invoice and P2 stamped receipt, both issued by the opposite party. We are accepting the amount of Rs. 8,533/- in Ext P2 stamped receipt as the amount refundable)
In the result, we order that the opposite party No.1 M/s. Media Waves, Thiruvananthapuram shall within one month from the date of receipt of this order:
(1) refund to the complainants Rs.8,533/received by him as hire charge together with interest at the rate of 15% per annum from 1st June, 1990 till the date of payment.
(2) either return the 15 seconds advertisement casette Kilimark Kudakal intact to the complainants or pay them the production cost of the same Rs. 20,000/- together with Rs.5,000/- as compensation for its loss; and
(3) pay an amount of Rs.10,000/- to the complainants as the reasonable compensation we estimate for the loss of profit sustained by them because of non-telecast of the casette on 6th and 7th June, 1990.
In addition, we order Rs. 750/- as costs payable by opposite party No.1 to the complainants.
The complaint is allowed in the above terms.
(para 16)
IMPORTANT POINT
Hiring services for commercial purpose is not excluded from purview of COPRA.
R. Ramachandran Nair, Member.- The complainant is a family concern of manufacturing dealers of Umbrellas under the name M/s. Hindustan Umbrella Factory. They used to hire the services of M/s. Media Waves, Thiruvananthapuram, opposite party No. 1 which is an advertising concern purporting to be an authorised agency of Doordarshan, Thiruvananthapuram opposite party No.2, for designing and preparing advertisement casettes and booking time and arranging for telecast of the same to support marketing of their products. The arrangement was going on smoothly till the end of May, 1990. The casette prepared by the opposite party No. I for the complainants at a cost of Rs.20,000/- was telecast through the Doordarshan, Thiruvananthapuram on seven days in May and two days in June, 1989. May-June is the peak period of sales of Umbrellas as the schools and other educational institutions reopen and the rainy season commences then. The complainants had arranged through opposite party No. 1 telecast of their advertisement casette before local newstime on 6th and 7th June 1990 in Doordarshan but it did not come up. Alleging default and deficiency of service against the opposite party the complainants have approached the Commission to direct the opposite party No.1 to return their T.V. casette 'Kilimark Kudakal' which they have not returned or to pay Rs. 20,000/- its cost and compensation of Rs .10,000/- for loss of the same together with interest at 18% per annum, the refund of Rs. 8533/- already collected by the opposite party as advertisement charges with 18% interest and also Rs. 1,00,000/- to compensate loss of profit due to non-telecast of the advertisement in June 1990.
2. Opposite party No.1 in his written version has denied the allegation of default or deficiency of service on his part and hence any liability to pay compensation for loss of the casette or loss of profit because of failure to get it telecast on 6th and 7th June 1990. According to him the time was booked and telecast of the casette 'Kilimark Kudakal' was arranged with Doordarshan, Thiruvananthapuram on 6th and 7th June 1990 after payment of the required amount. But in response to an urgent direction over the telephone from one Mr. Prabhu of the Hindustan Umbrella Mart, the arranged telecast on 6th and 7th June was cancelled. He was told that the complainants were short of sufficient stock of Umbrellas at that time to meet the demand and hence to cancel the proposed telecast. The original casette was handed over to another advertising agency K.P.B. Advertising, Kottayam in January 1990 under oral instruction from the complainant and so the question of return of the casette or compensation for non-return of the same does not arise at all. The opposite party further alleges that the original casette made at a cost of Rs. 20,000/- in 1989 was a 10 seconds' slot which was later converted into 15 seconds' casette as required by the complainants who had agreed to pay Rs. 5,000/- as additional charge which they have not paid yet to opposite party No.1. After handing over the original 15 seconds casette to the K.P.B. Advertising Co. under their instruction, the complainants required the opposite party to prepare another 15-secondcasette by remarking the earlier one at an agreed cost of Rs. 12,000/- which also they did. That amount is also due from them. The amount of Rs.8,533/- collected by the opposite party for telecasting the advertisement on 6th and 7th June 1990 has been adjusted to the total amount of Rs.17,000/- due from the complainant as detailed above and even after the adjustment of that amount a balance of Rs.8,467/-(17000-8533) is due from the complainant. The 15 seconds' Casette remade from the original one in 1990 was collected by the complainant in June 1990.
The damages claimed by the complainant is baseless and without any supporting material data. On these grounds opposite party No. 1 has prayed for dismissal of the complaint with costs.
3. On behalf of opposit
