D.O.F. 02.04.2009
D.O.O.07.01.2014
IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR
Present: Sri. K.Gopalan : President
Smt. Sona Jayaraman K. : Member
Sri. Babu Sebastian : Member
Dated this the 7th day of January, 2014.
C.C.No.95/2009
Ayar Kasmi,
S/o. Abdul Khader,
A.K. House,
Azhikkal Ferry, : Complainant
Kannur District
(Rep. by Adv. K. Gopakumar)
1. M.K. Hashim,
Proprietor,
Afra Marine Industries,
Palakkod, Ramanthali,
P.O. Palakkod, : Opposite Parties
Kannur District.
(Rep. by Adv. Muraleedharan Kuthoor)
2. P.A. Ganeshan
Sree Ganesh Fibers
P.O. Thykkadappuram
Nr. Store, Neeleswaram,
Kasaragod District.
(Rep. by Adv. P.T. Ranjan)
O R D E R
Sri. K. Gopalan, President
This is a complaint filed under Section 12 of Consumer Protection
Act for an order directing the opposite parties to pay `50,100 for the loss sustained by complainant.
The case of the complainant in brief is as follows : Complainant is a fisherman. He approached opposite party and entered into a contract on 10.08.2008 to build a fiber boat of 24 feet length 4 feet 4 inch breadth with a height of 2 feet 2 inches fixing remuneration as `30,000. It was agreed to hand over the boat on 29.10.2008. Opposite party failed to deliver the boat in time and complainant lodged a complaint before Payyannur police. Police called him and the opposite party committed to deliver the boat on 19.11.2008. Thus the opposite party delivered the boat to complainant through Payyannur police in the presence of the witness Muhammed Ali Haji. Complainant paid the agreed amount of `30000 and also `9500 over and above agreed upon since he has demanded saying the price increase of materials etc. But the delivered vehicle was not having the requisite measurement. It has only l23 feet length and 4 feet 2 inch width with a height of only 19 inches. The complainant engaged in fishing with this boat together with some other fisher men but while engaging so, the said boat was collapsed into sea. The fellow workers who reached there rescued them. Subsequently the boat was repaired from 2nd opposite party by spending an amount of more than `40,000. 2nd opposite party repaired the vehicle knowing well that the boat was not sea worthly. Hence he is also liable to pay compensation.
Pursuant to the notice opposite parties made appearances and filed version denying the main allegations of the complainant. 1st opposite party filed version contending as follows. The complainant is a business person in the fishing field. He does fishing business for commercial purpose by engaging large number of workers. Complainant approached 1st opposite party asked for a two-paddle fibre boat with a length of 23 feet. `29000 fixed as price and this complainant paid `16000 agreeing to pay the balance amount of `13000 within one month. 1st opposite party completed the work in time but complainant did not pay the balance amount. On 10.04.2008 the complainant approached him and paid `6000 agreeing to pay balance very shortly. But he did not comply the promise. Then he approached him on 10.08.2008 for some arrangement by handing over the boat. He asked him to issue an invoice/cash bill to produce the same before the Fisheries Department for Registration so as to acquire loan. This proposal was discussed and arrived at a conclusion that the cost of the boat shall be increased to `30000 and thereby opposite party issued cash bill and handed the possession of the boat to complainant. Excess amount `1000 paid on the same day and subsequently on 22.09.2008 complainant paid another `5000 and agreed to pay the balance forthwith. Instead of paying the amount complainant approached him on October 2008 and requested to install an engine to the boat. Opposite party was not ready to do the same since he did not comply the earlier promise. Complainant then lodged a petition before the Payyannur Police stating some false and baseless allegations against this opposite party. Complainant manipulated the cash bill issued by opposite party and produced before the police. Police summoned both parties and on discussion matter was settled agreeing to install the engine by paying an amount of `4500 to opposite party. After installation complainant was intimated and thus he came and gave opposite party an amount of `1000 and asked further time for paying balance. He requested to handover the boat telling him that there was a purchase for the boat. Complainant took the boat on the same day with full satisfaction. Opposite party did not pay the amount and `3500 and consequently there was an altercation in between them. It is due to this reason opposite party filed this complaint.
2nd opposite party filed version separately denying the allegations. The brief content of the version of 2nd opposite party is as given below. There is no allegation in the complaint against this opposite party and so he is an unnecessary party. Complainant entrusted 2 boats with length of 32 feet and 22 feet. 32 feet was entrusted for certain repair works and that was repaired from Boat Jetty itself. Second boat was taken by the complainant after 8 months. There was no complaint at the time of delivery and he collected `16000 from the complainant. No bill was issued. The bill alleged to be issued was a fabricated one. It is false to say that the repair charge was `30000. The price of a new fiber boat is only `30000. Complainant has no case that he was not repaired the boat in a proper manner. So the person who repaired the boat is not liable in its manufacturing defect. 2nd opposite party done only some repair work on it and complainant has no complaint regarding the repair work done by this opposite party. Thus there is not deficiency in service on the part of 2nd opposite party.
On the above pleadings the following issues have been taken for consideration.
- Whether there is any deficiency in service on the part of opposite parties, if so, who is liable?
- Whether the complainant is entitled for the remedy as prayed for?
- Relief and cost.
The evidence consists of the oral evidence adduced by PW1,CW1, DW1 and Ext.A1 to A6, Ext.B1 to B3 and Ext.C1.
Issues No.1 to 3 :
Admittedly complainant purchased a fibre boat from 1st opposite party. Complainant and opposite party are in dispute with respect to the specification of boat. Complainant alleged that he had entered into a contract with opposite party to build a fibre boat of 24 feet length, whereas, opposite party contended that complainant approached and asked him to build a boat with a length of 23 feet. Complainant’s real case is that the boat is not designed suitably to venture into sea. That is the reason for the accident, that had been taken place while he and his workers being on sail in the boat. The boat was alleged to the broken when they travelled about 200 metres away from the seashore. Complainant further alleged that the said boat was subsequently repaired from 2nd opposite party spending an amount of `30,600. Commission was taken out and on the basis of his report, complaint was amended and supplementary 2nd opposite party was impleaded so as to make him also liable for the loss sustained by the complaint on the ground that the repair was carried out knowing well that it could not be repaired. It is really alleged that 2nd opposite party was carried out the repair with the knowledge that the mere repair work would not make the boat sea worthy because of the existence of manufactured defect and this money spend for repair caused loss to complainant. However it is a fact that complainant had no such case at the time of filing the complaint. He was impleaded later on, after the report of the Expert Commission. Whether 2nd opposite party can be made liable on the question of manufacturing defect, the answer is no. But he can only be made liable for deficiency in service either on insufficiency shown in the repair work or for the work if any done with an intention to cheat and cause loss to complainant. The report goes to show that the boat is unstable due to design fault. So in the technical aspect, the design fault cannot be cured by repair work. But when a boat is repaired that should be sea worthy. If it is not so, the purpose of repair will be spoiled. After all, the boat is taken for repair for the purpose of using it in the sea and not keeping it in the shelter. It may be true that the repairer has nothing to do with the mistake of design. But he has the bounden duty to bring to the notice of the owner the actual fault of the boat. If the boat is not useful there is no meaning in repairing it. The repair is intended to cure the defect of the boat so as to make ready sea worthy for fishing purpose. Hence there is no meaning for the attempt on the part of 2nd opposite party justifying the useless repair telling that the work which he had carried out was perfectly good, ignoring the fact that the very purpose of repair is to make use of the boat for fishing. The repair work can be claimed to be perfect and successful only if the boat is seaworthy or else the conduction of the vehicle should have been properly explained to complainant before he started doing the repair. The preliminary duty of a repairer is to ascertain the actual defect of the subject matter, without which one cannot decide what is to be done. Here the question is not whether the 2nd opposite party, the repairer is liable for the manufacturing defect or not. The relevant question is whether the boat entrusted for repair was sea worthy after carrying out the entrusted repair. After the repair it should be capable of using for fishing. Otherwise there is no meaning in repair.
The main case of the complainant is that he had approached 1st opposite party for building a boat having length of 24 feet with a width of 4 feet 4 inch and a height of 2 feet 2 inch fixing a price `30000 delivering on 29.10.2008. The agreement was executed on 10.08.2008. Opposite party delivered a boat, qualitatively very poor standard as against the assurance. On the very next day of its delivery on 22.11.2008 within the distance of only 200 meters from the shore the said fiber boat collapsed into the sea and other fishermen engaged in fishing rescued them. Use of standardless articles for the construction is the reason for the collapse. Complainant also narrated the background history regarding the delivery of boat. Since the opposite party did not make delivery of boat on the promised day complainant lodged a complaint before Payyannur Police Station, and from there it was agreed to delivery on 19.11.2008. Thus the boat was delivered on 21.11.2008. But as against the terms agreed earlier and the invoice dated 10.08.2008 he had delivered a boat with a length of 23 feet length instead of 24 feet and a width of 4 feet 2 inches instead of 4 feet 4 inch with a depth of 19 inches instead of 2 feet 2 inches.
Subsequently complainant amended the complaint and impleaded 2nd opposite party, who had repaired the boat for the purpose making him liable for the deficiency in service in repairing the above said boat.
1st opposite party on the contrary contended that the complainant approached him on 29.10.2007 for a two paddle fiber boat 23 feet length. On negotiation `29000 fixed as cash out of which `16000 paid then and agreed to pay the balance on completion of the work. He completed the work in time but complainant did not pay the balance. On 10.04.2008 complainant approached again and paid `6,000 agreeing to the balance amount shortly. Complainant failed to pay again. Then he approached this opposite party on 10.08.2008 requesting to make certain arrangements helpful to acquire a loan. He wanted an invoice/cash bill to produce before Fisheries Department for registration to avail the loan. If that be so he can easily pay the balance amount. Proposal was discussed and assured at a conclusion to increase the cost to `30,000 due to delayed payment and then issued the cash bill. The excess `1000 paid on the same date. Thereafter an amount of `4000 and another sum `500 paid in different dates promising to pay the balance in some other day. He further contended that complainant approached opposite party in the month of October, 2008 and requested to install an engine to the boat. Since he was not ready to do the same complainant lodged a false case before Payyannur Police Station. Anyhow they arrived at a settlement by which 1st opposite party agreed to install the engine on payment of an amount of `4500. He then paid `1000 and asked further time for payment. On that day the complainant requested to handover the same since there was some one to purchase the boat. He took the boat but thereafter he did not make any payment due to which same ultercation had taken place. It was this reason complainant filed this complaint.
It can be seen that as per the averment of the complainant the boat was delivered through Payyannur Police infront of the witness Muhammed Ali Haji on 21.11.2008. It was found changed the specification of the boat as against the invoice. Complainant neither made any complaint to police nor made any attempt through the said witness Muhammed Haji in respect of the change of specification. The very next day on 22.11.2008 when he and his workers went for fishing in the sea the boat collapsed into sea within a short distance of 200 meters. They were saved by other workers engaged in fishing. Even after occurring such a life threatening incident of accident complainant never approached the police through whom the dispute of delivery of boat was settled. It is quite wonderful to see the reluctance of complainant to approach the police who settled dispute and made possible the delivery of boat, eventhough the accident took place within a span of twenty four hours of delivery of that boat. There is no police complaint at all. In the ordinary course of dealings there shall be complainant on occurring such an accident. Complainant’s main case is that the boat was not sea worthy and that is why it was collapsed into sea without much delay. Then the first place he has to approach to report the incident was before police from whom he found solution of delivery of boat. There is no reasonable explanation why did he was reluctant to approach the police.
Moreover, the witness Muhammed Ali Haji is an important person. It was before him the boat was delivered. He is the best person who is able to speak of what had happened in police station and the terms upon which the boat was delivered. But he was not examined before Forum. In a case wherein so much of facts required to be gathered for clarity of truth the non-examination of such a important witness is a failure on the part of complainant in proving his case. The Payyannur Police, who were involved in solving the dispute with respect to the boat and Muhammed Haji whose presence the said boat was delivered to complainant is not in picture, eventhough the accident took place on the very next day of delivery. It creates a suspicion in the genuinity of the complainant’s case.
The design and measurement of the fiber boat is the central point of the subject matter in issue. Complainant’s case is that there is a contract with the opposite paty. It is his pleading that “എതിര്കക്ഷിയുടെ കമ്പനിയിൽ പോയി എതിര്കക്ഷിയെ മുഖദാവിൽ സമീപിച്ചു 24 അടി നീളമുള്ളതും 4 അടി 4 ഇഞ്ച് വീതിയുള്ളതും 2 അടി 2 ഇഞ്ച് ഉയരമുള്ളതുമായ ഒരു ഫൈബർ ബോട്ട് നിർമ്മിച്ച് നല്കുന്നതിനായി സംസാരിക്കുകയും ചെയ്തതിൽ 30000 രൂപ വില നിശ്ചയിച്ചു 28.10.2008 നുള്ളിൽ കൈമാറാമെന്ന വ്യവസ്ഥയോട് കൂടി 10.08.2008 നു കരാർ ചെയ്യ്യുകയും ചെയ്തിരുന്നു.” This contract has not been produced before the Forum. This is the most important document that could have been capable of establishing the case of the complainant beyond doubt. PW1 also given evidence by means of chief affidavit in tune with the above pleading. So his definite case is that there is a contract. Then what is the reason for not producing this most relevant basic document which is sufficient enough to prove the question of measurement of the boat. The case of the 1st opposite party is that complainant asked for a fiber boat having the length of 23 feet. 2nd opposite party contended that no such boat of 24 feet length entrusted him for repair. Pleading of 2nd opposite party is that “32 അടിയുടെയും 22 അടിയുടെയും ഓരോ ബോട്ടുകൾ ഈ എതിര്കക്ഷിയെ ഏൽപ്പിച്ചിരുന്നു” If that be so the terms and conditions with respect to the boat in between complainant and 1st opposite party can only be proved by producing the above said agreement between them. Though he has taken plea that there is agreement with specific terms and conditions he did not produce the same before the Forum. Further he has stated that “ഗണേശന് ബോട്ട് കൊടുക്കുംബോഴുള്ള സമയത്ത് തോണിയുടെ specification കാണിക്കാനുള്ള രേഖകളൊന്നും ഹാജരാക്കിയിട്ടില്ല.” In short complainant is not able to establish the specification of boat with enough evidence. It is true that the expert commission submitted a report Ext.C1. 1st opposite party has filed objection to the report stating that the petitioner/ complainant brought some other boats before the expert and obtained a report. The identification of the boat, however is so important and it is necessary to ascertained whether the commission has examined the boat in dispute which was manufactured by 1st opposite party or not is a question to be assured before coming into conclusion. Complainant did not examine any of the witnesses in order to prove the identity. The evidence goes to show that complainant’s disputed boat collapsed in sea when he was going for fishing with other works. None of them were examined. They are most important witnesses. Apart from that other fellow men, engaged in fishing who helped to save the complainant and his group, were also witnessed the collapse of boat. No one from among them also was not examined either to prove the incident or to identify the boat. The report of the Commissioner has undoubtedly stated that the boat is not sea worthy. His oral evidence as CW1 has also confirmed that the boat he had examined was not sea worthy.
Even if the report Ext.C1 as well as the oral evidence adduced by CW1 expert commissioner is taken for granted it can only be assumed that the boat examined by the commissioner is not unworthy but it canot be believed that he had inspected the same boat which is in dispute. The interested testimony of PW1 alone is not sufficient enough to arrive at a conclusion that the same is the boat in question. Ext.A1 cash bill issued by 1st opposite party goes to show that the length of the boat is 23 feet. Complainant has endorsed that he had received the same. No protest has been seen recorded anywhere. Even in his pleadings no case has been raised that such a protest had been made at any time before or at the time of delivery. Though commissioner had reported that boat is not satisfying minimum design value, he did not go into its particulars and explain what exactly does it mean. Anyhow the existing evidence could not reveal the identity of the boat. Complainant should have examined some of the workers who were with him at the time of incident of collapse of the boat into sea or else some one from other workers who had helped him from the alleged accident so as to identify the boat as well as to narrate the incident in the sea. The contention of opposite party with respect to the overwriting in Ext.A1 cannot be ignored. The draft shown is seen looks doubtful and the over writing therein seems to be an attempt to change the writing 1.7 in to 2.2.
It can also be seen that certain facts are suppressed by complainant. In the usual course of dealings the documents in respect of the Fiber boat should be given to Fisheries Department. He is a member of the welfare fund. Registration is necessary to take the loan. In the cross examination complainant deposed that “സാധാരണ ഒരു ഫൈബർ ബോട്ട് ഇറക്കുമ്പോൾ അതിന്റെ രേഖകള fisheries departmentൽ കൊടുക്കേണ്ടത് ആവശ്യമാണ്.” He has also deposed further that “രജിസ്റ്റർ ചെയ്തു കഴിഞ്ഞാൽ ഫിഷറീസ് മുഖേന ലോണ് സാധാരണ കൊടുക്കാറുണ്ട്.” There was no whisper about these things on the part of complainant. Atleast recordical specification of the boat should have been brought before the Forum. Complainant did not remember the date of taking back the boat after repair. According to complainant 1st opposite party delivered the vehicle on 21.11.2008. It was collapsed on 23.11.2008. 2nd opposite party contended in his version that the complainant had taken back the boat only after 8 months of entrusting it for repair. What is the then condition of the boat is a material fact. Whether it was sea worthy then? When did the complainant realized that the repaired boat was not sea worthy. Complainant adduced evidence that the boat was repaired by paying an amount of `30000 before filing the complaint. The prayer of the complaint therein was for the repair charge of the boat `30600, and the amount 1st opposite party obtained from him `9500 and `10000 for compensation. What does it mean? Even according to the prayer the actual damage is `40100. As the complainant amended upto date the actual loss sustained by the complainant is `30000 spent for building the boat and another `30000 for repair i.e. altogether an amount of `60,000. Ext.A5 notice dated 05.12.2008 just four months before the filing of the complaint also complainant’s legal demand for the actual loss was `23000 repair charge and another amount `9500 obtained by 1st opposite party from complaint ie `32500.
Apart from the contrariety with respect to the actual loss it brings out in light his mind of approval that the then condition of the boat after repair was alright. But his state of mind all on a sudden turned upside down after the report of the Commissioner. The complainant has no case that the boat was useless after the repair. Moreover, it is pertinent to note that he has spent an amount equal to that of a new boat of the same in order to repair it. That means a thorough repair was done almost making it new. Then the complainant did not disclose the day when the repaired boat became unworthy to use in sea. But now complainant has raised additional prayer also to get `30000 from 2nd opposite party separately. Complainant even has no a specific prayer. Explanation of complainant regarding the colour of the boat also invite attention. PW1 deposed in his cross examination thus: “ഞാൻ കാണിച്ചു കൊടുത്ത ബോട്ടിന്റെ കളർ നീല ആയിരുന്നു. ഹാഷിമിന്റെ അടുത്ത് നിന്ന് ഇറക്കുമ്പോൾ ബോട്ടിന്റെ കളർ പുറമേ നിന്ന് ഓറഞ്ച് ആയിരുന്നു. ഉള്ളിൽ ബ്ലൂ കളറും ആയിരുന്നു. കമ്മിഷണർ ക്ക് കാണിച്ചു കൊടുക്കുമ്പോൾ പുറത്ത് നീല കളർ ആയിരുന്നു. ബോട്ടിന്റെ കളർ ഇപ്പോൾ മാറിയിട്ടാണ് ഉള്ളത് എന്ന് എവിടെയും പറഞ്ഞിട്ടില്ല. ” As far as identity of the boat is concerned the colour is very material. When it was questioned complainant was not able to give a correct explanation. Naturally it creates a sort of suspicion. The nature of evidence adduced by complainant as such does not make an impression that it is sole enough to depend upon to drive at conclusion that the case of the complainant is true. Hence we are of opinion that complainant has miserably failed to establish his case. The issues No.1 to 3 are answered against complainant.
In the result, the complaint is dismissed. No order as to costs.
Dated this the 7th day of January, 2014.
Sd/- Sd/- Sd/-
President Member Member
APPENDIX
Exhibits for the Complainant
A1. Receipt dated 10.08.2008.
A2. Receipt dated 09.01.2009
A3. Receipt dated 02.02.2009.
A4. Receipt dated 03.03.2009.
A5. Copy of Lawyer notice dated 05.12.2008
A6. Reply notice dated 17.12.2008.
Exhibits for the opposite party
B1. Copy of written complaint of complainant to S.I.,
Payyannur Police Station.
B2. Written particulars given to OP.
B3. Copy of receipt.
Exhibits for the Court
C1. Commission Report
Witness examined for the complainant
PW1. Complainant
Witness examined for opposite party
DW1. M.K. Hashim
DW2. P.A. Ganeshan
/forwarded by order/
SENIOR SUPERINTENDENT
