KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD THIRUVANANTHAPURAM APPEAL NO.22/09 JUDGMENT DATED 7.12.09 PRESENT JUSTICE SHRI.K.R.UDAYABHANU -- PRESIDENT E.P.Rajan, S/0 Balan, EarathHouse, -- APPELLANT Kizhoor P.O,Kunnamkulam, Thrissur. (By Adv.Arunkumar Kaimal) Vs. 1. Aiswarya Corporation, Tirur-1, Malappuran District (Rep by Managing Partner, Janardhanan) 2. Janardhana, S/o Achukuttan, PidakkalHouse, Annara,Tirur, Malappuram. 3. K.Radhakrishna Menon, Pattarumadathil House, Parathur.P.O, Tirur, Malappuram. -- RESPONDENTS 4. Beerankutty, Kodiyanakunnath House, Karathur,Kodakkal, Tirur, Malappuram. 5. N.Unnikrishnan, Nirathala House, Mangattiri.P.O, Tirur, Malappuram. 6. E.M.Sudhakaran, Ezhukupurakkal House, Ayyappath Road, Chowanoor P.O, Kunnamkulam (via) Thrissur. JUDGMENT JUSTICE SHRI.K.R.UDAYABHANU,PESIDENT The appellant is the complainant in OP.22/2000 in the file of CDRF, Malappuram. The complaint stands dismissed. 2. It is the case of the complainant/appellant that he deposited a sum of Rs.30,000/- on 29.1.97 and Rs.20,000/- on 28.7.98 with the opposite party. FD receipts were also issued promising to repay with interest at 12%. The FD for Rs.30,000/- is to mature on 27.1.98 and the deposit of Rs.20,000/- is to mature on 20.8.99. Since 28.7.98 no interest has been paid. After maturity the amounts were also not repaid. The complainant has been filed seeking to get back the amounts with interest at 12% from 27.1.98. 3. During the pendency of proceedings, opposite party No.3 expired and his name was deleted. The opposite parties 1, 2, 4 and 5 that included the second opposite party/Managing partner and the first opposite party firm has filed a joint version alleging that the fixed deposit receipts have been forged by the 6th opposite party ie; another partner in collusion with the complainant. It is alleged that the 6th opposite party was actually conducting the business of the firm as Manager and the second opposite party was only acting as Managing Partner for name’s sake. It is contended that the 6th opposite party filed the signature of the second opposite party using the printed form available in the firm. The other partners are not liable for the actions of the 6th opposite party. 4. 6th opposite party has filed a separate version denying that he has received any amount from the complainant. 5. The matter was disposed of by the Forum on 31.7.2000. This Commission as per judgment dated 10.6.05 in A.No.63/2000 set aside the order of the Forum and remanded the matter back, directing to provide opportunity to the parties to adduce evidence. It is seen that no oral evidence was adduced before remand. Subsequently, PW1, DWs 1 and 2 were examined, and Exts. P1,P2 and R1 were marked. 6. The Forum dismissed the complaint on the ground that the demeanor of the complainant did not inspire confidence. It is contended by the counsel for the appellant that on the date of examination of the complainant he was suffering from fever and hence he asked for a seat in the witness box. The Forum has mentioned that the witness asked for a seat as he could not withstand cross examination. It is also mentioned that the testimony of PW1 contained contradictions and inconsistencies. It is noted that he has stated in the cross examination that Rs.50,000/- was paid in one instance and subsequently stated that paid the amount in 2 instances. It is also noted that he has stated that he cannot say whether Exts.P1 and P2 documents were forged by himself and the second opposite party. The complainant has not produced the original receipt for Rs.20,000/-. 7. As pointed out by the counsel for the appellant, I find that the date of payment and the dates of the maturity and the rate of interest has been specifically mentioned the complaint. The payments are admitted in Ext.R1 the document allegedly executed among the opposite parties. Of course, in Ext.R1 produced by the opposite parties, it is mentioned that the amounts were received by the 6th opposite party without the knowledge of the other opposite parties. As pointed out by the counsel for the appellant when DW1, the 6th opposite party was cross examined by the counsel for the other opposite parties no questions regarding Ext.R1 was asked to DW1. The above conduct is very much relevant in the circumstances. The complaint has produced the original of Ext.P2 ie; FD receipt of Rs.30,000/-. I find that there is nothing to disbelieve the genuineness of the Ext.P1 especially, in view of the fact that the receipt of the above amount has been admitted in Ext.R1. Witnesses may error when faced with cross examination and also due to stage fright. The above alone cannot be relied on to non-suit the complainant. The complainant has only pressed for the payment of Rs.30,000/- and interest. The original FD receipt with respect to the above deposited amount has been produced. Ext.R1 is dated subsequent to the dates of the deposit. Ext.R1 is dated 1.2.2000. The fact that the partners have fallen out is no reason for denying the relief to the complainant. In the circumstances, the order of the Forum is set aside. The opposite parties are ordered to pay a sum of Rs.30,000/- with interest at 12% from 28.1.97. The complainant/appellant would also be entitled to cost of Rs.2,000/-. The opposite parties would be jointly and severally liable. The appeal is allowed as above. JUSTICE K.R.UDAYABHANU -- PRESIDENT | 
