BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT MANGALORE
Dated this the 23rd July 2015
E.P NO.12/2012
(In Com.NO.189/2011)
PRESENT
SMT. ASHA SHETTY : HON’BLE PRESIDENT
SMT.LAVANYA M. RAI : HON’BLE MEMBER
SRI. B. NIRMALKUMAR : HON’BLE MEMBER
BETWEEN:
Sunanda. D. W/o D.Rama Rao,
Aged about 64 years,
Padma Nilaya, Kalladka,
Bantwal Taluk, DK.
dated 16-6-2010 ……COMPLAINANT
(Advocate for Complainant: Sri.Sanjaya D)
VERSUS
Nalina Finance Corporation (Regd),
Kukkaje, Bantwal Taluk,
Represented by
The Managing Partner,
1. Dinesh Shetty @ Shettigara,
S/o Babu Shettigar,
2. Babu Shetty @ Shettigar, (Now dead)
S/o Veerappa Shettigar,
3. Tharanath,
S/o Babhu Shettigar,
4. Smt. Nalini,
W/o Babu Shettigar,
All are R/at Suribailu, Beerukodi,
Bolanthur Post & Village,
Bantwal Taluk …. ACCUSED
1. Date of admission of the Complaint : 21.12.2011
2. Original order passed in
CC.No.189/2011 dated : 20.09.2011
3. Non compliance of the order
in CC.No.189/2011 : 20.10.2011
4. The Offence complained of : Section 27 of the
C.P. Act 1986.
5. Opinion of the Bench : Found Guilty.
6. Complainant represented by : Sri. Sanjaya D
Advocate.
7. Accused defenced by : Sri Vasanth.K
Advocate
JUDGMENT DELIVERED BY MEMBER
SMT. LAVANYA M. RAI:
1. The Accused has been charged for the offence punishable under Section 27 of the Consumer Protection Act.
2. The facts of the Complaint in brief are as follows:
On 20.09.2011 the complainant has obtained an order against the accused in original complaint No. 189/11 on the file of this District Forum.
As per the order the O.P/Accused M/s Nalina Finance Corporation (R) represented by all the partner are jointly and severally directed pay to pay a sum of Rs. 1,00,000/- (Rupees one lakh) (i.e. Ex C 2 to C5) to the complaint along with interest at 14% per annum from January 2010 till the date of payment. Further Rs. 1,000/- awarded as cost of the litigation expenses. The above said payment ordered to be made within 30 days from the date of the order. On failure to comply the above said order the complainant filed the present complaint U/sec 27 of the Consumer Protection Act 1986 against the accused in their case.
3. It is seen on record, the above complaint was filed by the complainant on before this D.F. under Section 27 of the Consumer Protection Act. BY keeping in view of the observation made in writ petition No 700/2008 by the Hon’ble High Court of Karnataka we have proceeded the above complaint in accordance with law.
4. Since the accused are not complied the order, by taking statement of the complainant by way of affidavit, thereafter cognizance taken for the offence punishable under Section 27 of the C.P. Act 1986. All the accused appeared before this FORA and enlarged on bail. Plea recorded, accused pleaded not guilty and claimed to be tried.
5. The Complainant in order to substantiate his case and to prove the guilty of the Accused, examined herself as CW-1 and produced Ex.C1 to C2 and C3. The Ex.C1 is the certified copy of the order passed in original Complaint No.189/2011 on the file of this FORA. Ex C2 and C3 are the agreement between both the parties.
6. After concluding the Complainant evidence, on behalf of the accused, complainant is partly cross examined. But till to day accused are not lead their evidence and 313 statement has been not recorded hence treated nil.
7. Heard, the arguments the following points arise for our consideration are as follows:
(i) Whether the Complainant proves beyond reasonable doubt that the accused not complied the order passed in Complaint No.189/2011 vide its order dated 20.9.2011and thereby accused committed an offence under Section 27 of Consumer Protection Act 1986?
(ii) Whether the Accused/Opposite Party guilty of an offence under Section 27 of Consumer Protection Act and thereby punishable under Section 27 of the C.P. Act 1986?
(iii) What Order?
8. Our findings on the above points as under:
Point No.(i) and (ii): In the Affirmative.
Point No.(iii): As per the final order:
REASONS
9. POINTS No.(i) to (iii):
As these points are interlinked to each other to avoid the repetition of facts and evidence, we have taken up these points together for discussion.
10. It is a definite case of the Complainant that, on 20.09.2011 the complainants have obtained an order against the accused in original complaint No.189/2011 which is marked as Ex.C1. But the accused herein are not complied the order till this date. Hence complaint filed under Section 27 of Consumer Protection Act.
11. We have perused the entire oral as well as documentary evidence available on record, while considering the case on hand our attention was drawn towards the ingredients of Section 27 of the C.P. Act 1986. The Section is very clear that, where a trader or person against whom a complaint is made (or the Complainant) fails or omits to comply with any order made by the District Forum, the State Commission or the National Commission as the case may be such trader or person shall be punishable. When that being the case, what is material is that whether the Complainant proved beyond doubt that accused not complied the order passed in original Com.No.189/2011 thereby committed an offence or not?
12. In the given case, it is admitted by both the parties that the order dated 29.09.2011 passed in original complaint No. 189/2011 filed against the accused. It is also admitted that, no payment has been made by the accused in this case.
13. It is manifest to note that, the order passed by this Forum in Original Com.No.189/2011 is not challenged by the accused hence the order passed by this Forum is final. The statutory period of 30 days completed on 20.10.2011. The Complainant filed the above complaint under Section 27 of the C.P. Act on 21.12.2011 i.e. after the statutory period.
14. Further we noticed that in this case the accused are entered an agreement to settle the dispute and filed memo in that effect the order sheet reveals that on 21.11.2012 the accused are intends to settle the dispute and 12.12.2012 filed memo and the above said E.P. closed. Thereafter on 14.05.2013, the E.P. reopened and the complainant submitted that, the accused are violated the conditions of the agreement. On 03.07.2013 the accused filed memo stated that they are willing to pay Rs. 2 lakh. Further on 21.08.2013 the accused filed another memo stating that Rs. 6 Lakhs will pay at the end of September. On 30.10.2013 the accused filed another memo for close the E.P. In view of the memo filed by the parties E.P. was closed on 06.01.2015. After the complainant re-opened the case once again and stated that the accused are failed to comply the Conditions of the agreement. Further also this fora given another opportunity to the accused on 15.04.2015, 24.06.2015 for settlement, but the accused are not taking the advantage. Further this Fora is already given lot of opportunity’s to the accused to settle the dispute for meet ends of natural justice. But these accused are not taking this opportunities by seriously they simply taking advantage of this Fora. One or another applications for simply drag on the case. The complainant appearing for the case is a senior citizen waiting justice from more than 4 years.
15. Now we find that the accused are taking several opportunities to settle this dispute on the other hand the complainant also cooperate the accused from many years. We noted that, the accused are not taking the opportunities seriously and simply they drag on the case one or other pretext. The accused are simply filing memo for settlement. But till today they are not given awarded amount. The complainant submitted that accused are have vast coconut and arecanut plantation and they also have poultry farm. The complainant deposed in the cross examination till today not received awarded a mount. Further we also noticed that, the accused not lead defense evidence till today and also the accused are not appeared before the fora regularly.
16. On over all consideration of the evidence and documents on record we are of the considered opinion that, the accused failed to comply the order passed in complaint No. 189/2011 under that circumstances, we hold that the accused are guilty of the offence punishable U/sec 27 (1) of the Consumer Protection Act 1986 in this case.
17. The power of District Forums under Section 27 to award compensation is not ancillary to other sentences but it is in addition to do something to reassure the victim that he or she is not forgotten in the criminal justice system. We therefore, recommend to excise the power of fine liberally so as to meet ends of justice in a better way. The whole purpose of provision was to accommodate the interests of the victim in the criminal justice system sometimes the situation becomes such that no purpose will be served by keeping a person behind the bar. Instead directing the accused pay compensation to the victim or affected party can ensure delivery of total justice. Therefore, grant of compensation is some time in lieu of sending a person behind bars or in addition to a very light sentence of imprisonment. By keeping in view of the above, we hold to pass both sentence and fine in this case to meet the ends of justice.
18. For the reason and discussions made above, we have proceeded to pass the following order:-
ORDER
The Nalina Finance Corporation (Regd), Kukkaje, Bantwal Taluk, Represented by all The Partners, are convicted for the offence punishable under Section 27 of the Consumer Protection Act and all the Accused are hereby sentenced to undergo imprisonment for a period of two years and also pay fine of Rs.5,000/-(Rupees Five thousand only).
Further acting under Section 357 (1) of Cr.P.C. the entire fine amount of Rs.5,000/- (Rupees Five thousand only)on recovery shall be paid as compensation to the Complainant. In default to pay the fine amount, the accused further undergo simple imprisonment for one month.
Both sentences shall run consecutively.
Since the accused No. 2 is dead complaint against accused No. 2 is dropped.
Bail bond of the accused shall stands cancelled.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.
(Dictated to the stenographer typed by him, revised and pronounced in the open court on this the 23 day July 2015).
PRESIDENT MEMBER MEMBER
(SMT. ASHA SHETTY) (SMT.LAVANYA M. RAI) (SRI. B. NIRMALKUMAR)
ANNEXURE
Witnesses examined on behalf of the Complainant:
PW1 – Smt Sunanda D
Documents marked on behalf of the Complainant:
Ex C1 – 20.09.2011: Copy of the Order in C.C. NO.189/2011.
Ex C2 – 10.12.2012: Copy of the agreement
Ex C3 – 29.10.2013: Copy of the agreement
Witnesses examined on behalf of the Respondent:
….Nil….
Document marked on behalf of the Respondent:
…. Nil….
Date: 23.07.2015 MEMBER
