KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD THIRUVANANTHAPURAM

APPEAL.973/2004

JUDGMENT DATED: 5.8.2010

PRESENT

SMT.VALSALA SARANGADHARAN     : MEMBER

SRI.M.V.VISWANATHAN                        : JUDICIAL MEMBER

SRI.M.K.ABDULLA SONA                      : MEMBER

V.A.Ibrahimkutty,

Veluthedathu Agencies, Aluva-1.             : APPELLANT

(By Adv.G.S.Kalkura)

          Vs.

Ammini, W/o Krishnan,                                       : RESPONDENT

Celakkunnu House,

Ashokapuram, Aluva.

JUDGMENT

SMT.VALSALA SARANGADHARAN     : MEMBER

          This appeal is preferred against the order dated 27.9.04 of CDRF, Ernakulam in OP.No.521/02.  The complaint was  preferred by the respondent herein as complainant against the appellant as opposite party whereby Forum below directed the opposite party to refund Rs.3750/- to the complainant along with Rs.2500/- as compensation and Rs.1000/- as costs.

          2. The case of the complainant is that he had purchased quail from the opposite party with the financial aid of Rs.12,500/- given by the Block Panchayat office under the scheme of “Swarna Jayanthi Grama Swarajgar Yogana”.  Of this amount of Rs.12,500/-, Rs.7500/- was for the quail and Rs.5000/- was for the cage.  The actual price of the quail was Rs.3750/-.  The opposite party assured that the balance of Rs.3750/- will be refunded.  On believing this the complainant gave cheque for Rs.7500/- to the opposite party.  The offered quantity was not supplied by the opposite party and thereafter 100 quail died being of old age.  Even though the matter was informed to the opposite party, he did not do anything. Hence alleging deficiency in service on the part of the opposite party, the complaint was filed before the Forum.

          3. The opposite party filed version contended that the complainant had purchased 300 quail from him at the rate of Rs.25/- per quail and he never offered to refund ½  of the amount to the complainant.  He further contended that the alleged death of the quail was not due to the default of the opposite party and the complainant had got  compensation from the insurance company for the dead quails.  Pleading that there was no deficiency on his part, he prayed for dismissal of the complaint.

          4. We heard the learned counsel for the appellant.  There was no representation for the respondent/complainant.  The learned counsel for the appellant argued before us that the Forum below committed grave illegality in directing the opposite party to refund the amount of Rs.3750/- with a compensation of Rs.2500/- and costs of Rs.1000/- to the complainant.  It is his case that there was no agreement between the complainant and the opposite party that ½ of the price of the quail would be refunded to the complainant and that the opposite party had given 300 quails at the rate of Rs.25/- per quail.  It is also argued that the complainant had received compensation for the dead quail and to support this contention he invited our attention to the deposition of DW2 and submitted before us that the Forum below had gone wrong in awarding compensation also.  Thus he requested for setting aside the impugned order passed by the Forum below.

          5. On hearing the learned counsel for the appellant and on going through the order we find that the appellant has a case that there was no assurance for refunding of Rs.3750/- out of Rs.7500/- fixed as the price of 300 quails.  We find force in the said arguments of the learned counsel, as the complainant had not adduced any evidence to show that there was such an agreement between the parties.  The complainant has not even filed an affidavit to the said effect or gone to the box for establishing the said case to the complainant.  But on the other hand the opposite party filed proof affidavit and was examined as DW1 and has also examined a witness as DW2 on his side.  It seems that Forum below  has totally believed the case of the complainant and has passed the impugned order.  In the absence of evidence to show that there was either an agreement or atleast an arrangement for refunding ½ of the price of the quail, the Forum cannot be justified in directing the opposite party to refund Rs.3750/- to the complainant.  The Forum below has also awarded Rs.2500/- as compensation without supporting reasons.  Though it is categorically stated that ‘there was some deficiency in service on the part of the opposite party”, the Forum has come to the said conclusion without supporting evidence.  Hence we feel that the direction to pay compensation and costs is unwarranted and unjustifiable.  In the circumstances the appeal is liable to the allowed.  Hence we do so accordingly.

          In the result appeal is allowed and impugned order passed by CDRF, Ernakulam in OP.521/02 is set aside.  As far as the present appeal is concerned there shall be no order as to costs.

          SMT.VALSALA SARANGADHARAN     : MEMBER

          SRI.M.V.VISWANATHAN                        : JUDICIAL MEMBER

          SRI.M.K.ABDULLA SONA                      : MEMBER

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