KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM. APPEAL No. 1034/2004 JUDGMENT DATED: 07-11-2009 PRESENT: SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER 1. M/s Shriram Investment Ltd., : APPELLANTS Mookambika Complex, 3rd Floor, 4, Lady Desike Road, Mylore, Chennai. 2. Shriram Investments Ltd., 1st Floor, Legacy Commercial Complex, Bendorwall, Kankanady, Mangalore. (Rep. by Adv. Sri. S.S. Kalkura & others) Vs Anil Kumar, : RESPONDENT S/o A. Chandrashekara, Annappoorna House, Badiadka Road, Kumble, Kasaragod. (Rep. by Adv. Sri. S. Ajith) JUDGMENT SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER The above appeal is preferred against the order dated 15th September, 2004 of the CDRF, Kasaragod in OP.No. 118/04. The complaint in the said original petition was filed by the respondent herein against the appellants/opposite parties claiming refund of Rs. 64,000/- which was paid by the complainant to the opposite parties for getting the vehicle bearing Reg. No/ KL 14 C/5290. The complainant alleged deficiency in service on the part of the opposite parties in not refunding the aforesaid amount in the event it was found difficult for the opposite parties to sell the vehicle to the complainant under a higher purchase agreement. The complainant has also claimed compensation, interest and costs. The opposite parties entered appearance by filing written version contending that the amount of Rs. 64,000/- was received from the complainant on behalf of one Thimmanna Rai who had entered into a higher purchase agreement with the opposite parties. Thus, the opposite parties denied deficiency in service and prayed for dismissal of the complaint in OP 118/04. 2. Before the Forum below, the complainant was examined as PW1 and Exts. A1 to A6 documents were marked on his side. The second opposite party, the Manager of the first opposite party, M/s Shriram Investments Ltd. was examined as DW1 and Exts B1 to B5 and B5(a) documents were marked on the side of the opposite parties. On an appreciation of the evidence on record, the Forum below passed the impugned order allowing the complaint in OP 118/04 and thereby directing the opposite parties to refund Rs. 64,000/- with interest at 12% per annum from 12-02-2004 till the date of realization with cost of Rs. 1,000. The opposite parties are made jointly and severally liable to pay the aforesaid amount with interest and costs. The prayer for compensation was disallowed by the Forum below. Aggrieved by the said order, the present appeal is filed by the opposite parties in OP 118/04. 3. We heard both sides. The learned Counsel for the appellants/opposite parties submitted his arguments based on the grounds urged in the memorandum of the present appeal. He argued for the position that no amount was received from the complainant; but the amount of Rs. 64,000/- was paid by the complainant for and on behalf of the Thimmanna Rai who had entered into a higher purchase agreement with the opposite parties. He also relied on A1 to A3 receipts issued to Thimmanna Rai for payment of the said sum of Rs. 64,000/-. He further relied on B5 and B5(a) documents and prayed for setting aside the impugned order passed by the Forum below. On the other hand, the learned Counsel for the respondent/complainant supported the impugned order passed by the Forum below. It is submitted that payment of Rs. 64,000/- was in fact paid by the complainant; but the agent of the opposite parties issued A1 to A3 receipts in the name of Thimmanna Rai. It is also submitted that he relinquished his right to get the vehicle purchased because of the delay in getting the RC book endorsed in his name. It is also submitted that the complainant had no sort of relationship with Thimmanna Rai as contended by the opposite parties. Thus, the respondent requested for the dismissal of the present appeal. 4. The points that arise for consideration are: 1. Whether there was any agreement entered into between the complainant and the opposite parties for purchase of the vehicle bearing Reg. No. KL 14 C/5290 which was in the possession of the opposite parties under the higher purchase agreement with Thimmanna Rai? 2. Whether the case of the complainant that he paid Rs. 64,000/- towards the price of the said vehicle bearing Reg. No. KL 14C/5290 and that the opposite parties failed to sell the vehicle by making necessary endorsements in the registration certificate of the vehicle can be believed or accepted? 3. Whether the Forum below can be justified in ordering refund of Rs. 64,000/- with interest and costs to the complainant? 5. Point Nos. 1 to 3: The parties to this appeal will be referred to according to their rank and status before the Forum below in OP 118/04. 6. There is no dispute that the complainant paid Rs. 64,000/- to the second opposite party and that the same was received by the second opposite party and issued A1 to A3 receipts. The case of the complainant is that he paid the aforesaid sum of Rs. 64,000/- towards the purchase price of the vehicle (bus bearing Reg. No. KL 14 C/5290). On the other hand, the opposite parties would contend that the said amount of Rs. 64,000/- was paid by the complainant on behalf of Thimmanna Rai who had entered into a higher purchase agreement with the opposite parties. The fact that there was a higher purchase agreement entered into between the opposite parties and Thimmanna Rai with respect to the vehicle bearing Reg. No. KL 14 C/5290 is an admitted fact. It is also admitted that the opposite parties repossessed the aforesaid vehicle from the possession of Thimmanna Rai for the default in making payment of the higher purchase instalments. Admittedly, Rs. 64,000/- was due from Thimmanna Rai under higher purchase agreement. It is to be noted that the higherer, Thimmanna Rai had defaulted payment of Rs. 64,000/- under the higher purchase agreement and due to the said default the aforesaid vehicle was repossessed by the opposite parties. It is further to be noted that Thimmanna Rai never came forward to get back the vehicle which was repossessed by the opposite parties. The documentary evidence and the facts and circumstances of the case would make it clear that Thimmanna Rai had no intention or desire to get back the aforesaid vehicle which he had taken as higherer under the higher purchase agreement. Issuance of Ext B4(a) letter by Thimmanna Rai would make it clear that such a letter was received by the opposite parties as a result of the collusion between Thimmanna Rai and the opposite parties. Had there will be any intention to get back the said vehicle, the aforesaid Thimmanna Rai would not have issued B4(a) letter. It is also to be noted that B4, the original of B4(a) has not been proved by examining the author of the said letter namely, Thimmanna Rai. There is no acceptable evidence that the B4 letter was issued by Thimmanna Rai. It is also to be noted that in B4 the amount is shown as Rs. 45,000/- but no explanation is forthcoming about the balance payment of Rs. 19,000/- by Thimmanna Rai. So, the facts and circumstances and the available evidence would make it clear that B4 is a document created for the purpose of this case and to defeat the interest of the complainant Anil Kumar. 7. The complainant as PW1 has categorically deposed that he paid a total of Rs. 64,000/- covered by A1 to A3 receipts and the said payments were effected through the agent of the opposite parties namely, Chandrahas Shetty and the said payments were effected at Kasaragod. It is also deposed by PW1 that the agent Chandrahas Shetty issued the receipts A1 to A3 in the name of Thimmanna Rai because of the pendancy of the higher purchase agreement. The aforesaid evidence of PW1 can be believed. There is no circumstance or situation to disbelieve the testimony of PW1. It is pertinent to note at this juncture that the opposite parties themselves admitted that there was an agreement entered into between the complainant Anil Kumar and the opposite parties for sale of the bus bearing Reg. No. KL 14 C/5290 which was in the possession of the opposite parties, at the relevant time. This circumstance would strengthen the case of the complainant that he paid Rs. 64,000/- on the strength of the aforesaid agreement for purchase of the vehicle from the opposite parties and that the said sum of Rs. 64,000/- was paid by the complainant towards the purchase price of the vehicle. It would inturn negative the case of the opposite parties that the said amount of Rs. 64,000/- was paid by the complainant on behalf of Thimmanna Rai. 8. The complainant has categorically deposed that he had no connection or relation with Thimmanna Rai and the aforesaid Thimmanna Rai was not in anyway connected with the complainant. The opposite parties could not adduce any evidence to substantiate their case that the complainant Anil Kumar acted as an agent of the aforesaid Thimmanna Rai. It is to be noted that the opposite parties produced B4 letter said to have been issued by Thimmanna Rai. If that be the position, the opposite parties could have examined the aforesaid Thimmanna Rai to prove their case that payment of Rs. 64,000/- was made by the complainant on behalf of Thimmanna Rai. But no such evidence is forthcoming from the side of the opposite parties. The Forum below has rightly relied on the testimony of PW1 that the said payment of Rs. 64,000/- was made by the complainant towards the purchase price of the vehicle and that the amount was paid by the complainant from his own pocket. 9. Admittedly, the opposite parties sold the vehicle bearing Reg. No. KL 14 C/5290 to one Jayarama. So, the complainant is entitled to get bank the said amount of Rs. 64,000/- which he paid to the opposite parties through the agent of the opposite parties. The acceptance of Rs. 64,000/- from the complainant is admitted by the opposite parties. The Forum below is perfectly justified in ordering refund of the aforesaid amount with interest at 12% per annum from 12-02-2004 till the date of realization. The complainant is also entitled to get his costs of the proceedings. The Forum below has rightly ordered Rs. 1,000/- by way of costs. So, the impugned order passed by the Forum below can be upheld. Hence we do so. These points are answered accordingly. In the result, the appeal is dismissed. The impugned order passed by the Forum below is confirmed. As far as the present appeal is concerned, the parties are directed to suffer their respective costs. M.V. VISWANATHAN : JUDICIAL MEMBER Sr. | 
