O R D E R

Sri. P. Satheesh Chandran Nair (President):

                   The complainant filed this complaint before this Forum u/s.12 of the C.P. Act for getting reliefs against the opposite party.

                   2. The case of the complainant is stated as follows:  The complainant is conducting a DTP Centre at Pandalam Thekkekkara Village.  On February 2014, the complainant has gone to opposite party’s shop and verified wedding cards and subsequently ordered for some wedding card after paying Rs.10,000/- as advance amount.  Even though the opposite party received the amount he did not send the wedding card as informed by the complainant.  The complainant contacted the opposite party several times and demanded for the wedding card at last the opposite party sent about 30 wedding card to the complainant which cost from Rs.2.50 to Rs.300.  According to the complainant, all these cards are substandard one and the quality of these cards are so less so that the complainant again asked the opposite party to send standard wedding card for the said amount.  At last on 17.11.2014 the opposite party again send 30 numbers of wedding cards, which are also on the same nature of former cards.  It is contended that the opposite party purposefully and deliberately in order to cheat the complainant sent the above number of cards in substandard to the complainant.  It is further stated that at the time of visit of the complainant at opposite party’s card shop he himself selected the wedding card which he want to purchase.  The opposite party as stated earlier with ill motive and for gaining illegal profit sent substandard wedding card to the complainant as stated above.  The act of the opposite party is clearly comes under the purview of deficiency in service and unfair trade practice defined in the C.P. Act.  It is further contended that the complainant conducting this business as a self employment scheme financed by the Catholic Syrian Bank, Thatta Branch in Adoor Village.  This business is only for her day to day life and earning from the business is the only source of income for her family.  In other words this shop is only for the livelihood of the complainant.  The complainant filed this case before this Forum for realising the advance amount of Rs.10,000/- from the opposite party, compensation, cost etc. etc.

                   3. The opposite party entered appearance and filed their version as follows:  According to the opposite party, the complaint is not maintainable either in law or on facts.  It is contended that the complainant is not a consumer as defined in C.P. Act, 1986 and there is no cause of action arise within the jurisdiction of this Forum.  It is admitted that on February 2014 the complainant and his wife came to the shop of the opposite party and verified the wedding cards.  It is also contended that as per the repeated request of the complainant, the opposite party sold samples of wedding card for an amount of Rs.300 to Rs.400 per cards and the complainant and his wife accepted and selected about 30 numbers of cards.  The opposite party sent these cards to the complainant after receiving Rs.10,000/-.  It is again contended that the complainant again contacted the opposite party and ordered another different types of wedding cards worth Rs.10,000/-.  On believing the complainant, the opposite party send another 30 different types of cards to the complainant.  It is stated that though the complainant received the subsequent 30 cards the complainant did not pay the price of the subsequent cards Rs.10,000/- to opposite party.  It is also contended that the opposite party received Rs.10,000/- through bank and he sold 1^st set of wedding card for that amount as consideration.  According to him, the rate of cards depends on the material, which used for the card and opposite party sent 2^nd set of 30 wedding cards to the complainant as per the assurance and as per the consideration amount Rs.10,000/-.  According to the opposite party, he sent another 30 wedding cards to the complainant by believing the words of the complainant.  But the complainant did not pay the amount of the said subsequent transaction.  According to the opposite party, there is no deficiency of service or unfair trade practice on the part of him and the complainant is not eligible to get any of the relief claimed.  Hence the opposite party prayed to dismiss this complaint with an exemplary cost to the opposite party.

                   4. Apart from the above version, the opposite party filed an additional version on the basis of the amendment made by the complainant in this complaint.  As per the contention in the additional version, it is stated that the contention of the complainant to the effect that the business of the complainant is a self employment scheme and the complainant has no other income other than the income from the said business is absolutely false.  It is further contended that the complaint is doing various business like travels, real estate, money lending etc. and his wife is already in the business of DTP Centre. 

                   5. On the basis of the complaint, version and the records before this Forum, we framed the following points for consideration.

1. Whether this case is maintainable before the Forum?
2. Whether the opposite parties committed any deficiency in service or unfair trade practice as alleged by the complainant?
3. Regarding reliefs and costs?

                   6. The evidence of this case consists of the evidence adduced by PW1 and Ext.A1 to A14 and M.O.1 wedding cards.  On the other side, the opposite party he who examined as DW1 and marked Ext.B1 to B7.  Ext.A1 is the statement of account dated 22.04.2015 for Catholic Syrian Bank, Thatta Branch, Adoor.  Ext.A2 is the advocate notice dated 31.01.2015 sent to the complainant to opposite party.  Ext.A3 is the acknowledgment card of Ext.A2.  Ext.A4 is the letter dated 08.07.2013 issued by the General Manager, Dist. Industries Centre Office, Pathanamthitta to complainant’s wife.  Ext.A5 is the copy of application issued to Dist. Industries Centre Office, Pathanamthitta by the complainant’s wife.  Ext.A6 is the copy of sanction of loan letter dated 25.10.2013 sent by SBT, Thumpamon Branch.  Ext. A7 is the copy of details for data updation of PMEGP.  Ext.A8 is the copy of passbook in SBT, Thumpamon Branch in complainant’s wife.  Ext.A9 series are the copy of demand draft issued by SBT, Thumpamon Branch,  Ext.A10 is the copy of licenses (2013-14, 2014-15)  issued by Adoor Municipality.  Ext.A11 is the copy of insurance policy issued by Keerthi DTP Centre.  Ext.A12 is the copy of certificate issued by Rural Self Employment Training Institute, Pathanamthitta.  Ext.A13 is the copy of photo issued by Rural Self Employment Training Institute, Pathanamthitta.  Ext.A14 is the copy of agreement dated 02.04.2015.  On the other hand, Ext.B1 to B7 marked.  Ext.B1 and B2 are photos.  Ext.B3 and B4 series are the copy of bills, Ext.B5 is the copy of legal notice dated 14.02.2015 issued by the opposite party to the complainant.  Ext.B6 is the proof of delivery of speed post dated 02.03.2015.  Ext.B7 is the copy of Order in Munisiff’s Court, Ernakulam.

                   7. The complainant he who filed proof affidavit in place of chief examination, deposed that he and his wife jointly conducted the Keerthy DTP Centre for their livelihood and it is also deposed that on February 2014 both the complainants had gone to the opposite party’s shop at Ernakulam and verified the wedding cards.  Subsequently on 14.03.2014 the complainant send Rs.10,000/- to the opposite party through a bank transaction and informed the opposite party to sent the wedding card sample to the complainant for the said amount.  It is deposed that even if the complainant and his wife enquired about the wedding card, only after one month, 30 numbers of low quality wedding cards were sent to the complainant.  Dissatisfied by these cards the complainant asked the opposite party to send another cards for the said amount.  On 17.11.2014 the opposite party again sent another 30 wedding cards, which was also on the same quality of the former one.  All these act of the opposite party is comes under deficiency in service and unfair trade practice on their side, hence the opposite party is liable to the complainant.

                     8. In order to substantiate the case of the complainant, complainant’s wife Smt. Vineetha kumary is also examined as PW2.  PW2 also filed a proof affidavit in lieu of her chief examination she deposed that she availed PMEGP loan from the bank and conducting this business with her husband.  PW2 is also supported the case of PW1 through her proof affidavit.  On the other side, the opposite party he who filed a proof affidavit in place of chief examination and as stated earlier marked Ext.B1 to B7.  DW1 deposed that there is no deficiency of service or serving of defective product on the side of DW1 and also contended that the case is not maintainable before the Forum.  He admitted that on February 2014 the complainant and his wife (PW1 & PW2) arrived his shop and requested to give the sample of wedding cards for exhibiting in their shop.  It is further deposed that due to the compulsion of the complainant, DW1 sold wedding cards for an amount of Rs.300/- to Rs.400/- to the complainant.  On deposit of Rs.10,000/- on 14.03.2014 PW1 sent 30 cards along with the bill to the complainant.  It is further deposed that the complainant again contacted DW1 and ordered another different types of wedding cards for an amount of Rs.10,000/-. Though the complainant received 2^nd set of wedding card he did not pay the price Rs.10,000/- to the opposite party.  According to DW1, the complainant filed this case to escape from the payment of the 2^nd set of cards price of Rs.10,000/-.  After the closure of evidence of both sides we heard the counsels appearing for the complainant and opposite party. 

                   9. Point No.1:-  The opposite party in this case raised a serious contention with regard to the maintainability of this case.  It is argued that the complainant in this case are not comes under the definition clause Sec.2(d) of C.P. Act 1986 because the complainant is conducting this business on commercial basis.  It is again argued that the complainant purchased these wedding cards for resale hence a subsequent purchaser does not comes under the purview of this act.  When we peruse the evidence before us it is clear that the complainant availed PMEGP loan and conducting the business on self employment basis and more over it is specifically pleaded that this business is for their livelihood and there is no other income for the complainant except from this business.  Considering the above discussed evidence it can be inferred that the complainant in this case is not conducting the business on commercial basis and he is doing this business only for his livelihood.  If so, it can be inferred that in this case the complainant is a consumer and the opposite party is a service provider.  Hence Point No.1 is found in favour of the complainant.

                   10. Point Nos.2 & 3:-  For the sake of convenience we would like to consider Point No.2 and 3 together.  The next question to be considered is whether the opposite party committed any deficiency in service or unfair trade practice against the complainant.  When we peruse the evidence before us, we can see that the purchase of the sample wedding card for an amount of Rs.10,000/- is admitted by both the parties.  As per Ext.A1 statement of account of Catholic Syrian Bank, Thattayil Branch the transfer of Rs.10,000/- on the account of opposite party is proved and he also admitted this fact.  Ext.A2 and A3 are legal notice dated 31.01.2015 to the opposite party and its acknowledgment.  In order to prove the PMEGP scheme the complainant produced and marked Ext.A4, A5, A6 and A7.  As per these exhibits, it is clear that as stated earlier the complainant’s wife Vineetha Kumary she who got the necessary approval from the District Industrial Centre, Pathanamthitta to conduct the complainant’s business.  The complainant in his power of attorney as PW1 and PW2 as the wife of PW1 these facts are clearly deposed and substantiated their case by production of Ext.A4 to A7.  Ext.A8 is a copy of the passbook in SBT, Thumpamon Branch in favour of PW2 and Ext.A9 series is a demand draft issued in favour of one Aiswarya System for an amount of Rs.75,000/-.  As per this evidence, the complainant proved that he is conducting DTP business with the help of computer system.  Ext.A10 to A14 documents show that the Adoor Municipality issued licence to complainant’s wife for conducting this DTP Centre and it covers insurance of SBI General Insurance Company Ltd.  Among that Ext.A12, A13 and A14 are the documents to show that PW2 is having rural self employment training and she has given consent to his husband for this business conducting this business.

                   11. The opposite party raised a serious contention at the time of filing his version and at the time of filing his proof affidavit to the effect that he sent a set of wedding cards in 30 numbers for an amount of Rs.300/- to Rs.400/- to the complainant and his wife and they accepted all these cards.  It is deposed that they send these cards on the basis of selection conducted by the complainant and his wife from his shop.  But on the other hand, the complainant alleged that all the 30 cards are substandard or less quality or not even fit for sale.  Anyway, it is clear that the opposite party send 30 cards to the complainant and there is a dispute arised between the parties with regard to its quality.  In order to substantiate the transaction dated 14.03.2014 the opposite party produced Ext.B3 series bill.  The complainant did not raise any serious contention with regard to this Ext.B3 series.  Another contention of the opposite party is that he send another 30 cards worth Rs.10,000/- to the complainant on 12.11.2014 as per Ext.B4 series bill.  It is argued that though the opposite party send 2^nd set of 30 cards to the complainant he did not pay the price of the card to him.  When we examine the evidence of PW1, it reveals that the opposite party send another set of 30 cards to the complainant because the former cards were defective.  Even though, the opposite party contended that he send 2^nd set of card to the opposite party without receiving price Rs.10,000/-, the opposite party has not been proved this fact before the Forum.  Nobody can believe that if a dispute existing between these 2 parties, the opposite party would have send 2^nd set of wedding card without receiving its value.  When we compare the probability and circumstances with regard to the 2^nd set of wedding card it can be assumed that the opposite party send the 2^nd set of cards to the complainant because the prior set of card was in defective.  The opposite party again deposed that there is a Civil Case pending before the Munsiff’s Court, Ernakulam as O.S.No.637/16 between the parties.  When we peruse the Ext.B7, it reveals that the case was filed on 8^th April 2016.  The filing of this Civil Case is no doubt a further thought of the opposite party after the filing of this complaint against the opposite party.  When we consider the quality of the wedding card, we have to evaluate the answer of PW1 at the time of cross-examination.  PW1 answered in cross that within 2 weeks on receipt of the 1^st set of wedding card he made complaint to the opposite party and on 14.03.2014 he did not place any order for wedding cards from the opposite party.  The opposite party raised a serious contention about the genuineness of the quality of the 1^st set of wedding cards.  The complainant produced the wedding card in question and marked it as M.O.1.  The opposite party in this case not only cross-examined this PW1 but also re-cross the witness with the permission of this Forum.  Though the learned counsel cross-examined this witness in detail nothing brought out to disbelieve the complainant’s case with regard to the quality of the 1^st set of wedding card.  In re-cross the counsel asked a direct question, “ഗുണനിലവാരം കുറവാണ് (M.O.1) എന്ന് പറയാൻ കാരണം?  Marketþ ൽ ലഭ്യമായ മറ്റു card കളുമായി താരതമ്യം ചെയ്യുമ്പോള്  ഗുണനിലവാരം കുറവും, വില കൂടുതലുമാണ്. ഗുണനിലവാരം കുറവാണ് എന്നതിന് മറ്റ് തെളിവുകള് ഹാജരാക്കിയിട്ടില്ല, M.O.1 മാത്രമെ ഹാജരാക്കിയിട്ടുള്ളൂ”.  If opposite party has a definite case to the effect that the M.O.1 is having less quality and standard, what prevented them to ask a suggestive question on that way.  Hence we can arrive a conclusion in favour of the complainant with regard to his plea that the 1^st sets of wedding card were substandard and in less quality.  It is true that the opposite party send a 2^nd set of 30 wedding cards to the complainant but either the complainant or the opposite party produced the 2^nd set of cards or equivalent card before the Forum to ascertain its quality or standard.  The complainant is also failed to adduce any substantial evidence to show that whether the 2^nd set of card is suffering sub standardness or quality etc.  In the circumstances, we are not in a position to ascertain the price of the 2^nd set of wedding cards.  On the basis of the available evidence discussed above, we find that the opposite party send 2^nd set of card to the complainant equal to the value of the 1^st set of card.  However, we also find that the opposite party is so duty bound to send genuine card having high quality and standard even at the time of sending the 1^st set of card to the complainant after receiving the value of Rs.10,000/-.  When we verify the M.O.1 card, it can be seen that most of the cards are not up to the standard and the price of the cards are also high.  The claims of the opposite party with regard to the quality of M.O.1 wedding cards are anyway not justifiable.  In the light of the above discussion it can be inferred that the opposite party committed deficiency in service and unfair trade practice against the complainant.  Hence we find that this complaint is partially allowable and Point No. 2 and 3 are found accordingly.

                   12. In the result, we pass the following orders:

1. The opposite party is directed to pay a compensation of Rs.7,000/- (Rupees Seven Thousand only) to the complainant from the date of order onwards with 10% interest till its realisation.
2. The opposite party is also directed to pay a cost of Rs.3,000/- (Rupees Three Thousand only) to the complainant with 10% interest from the date of order till its realisation.

         Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Forum on this the 31^st day of August, 2016.

                                                                     (Sd/-)                                                                           P. Satheesh Chandran Nair,

                                                                    (President)

Smt. K.P. Padmasree (Member – I)             :    (Sd/-)

Smt. Sheela Jacob (Member- II)                 :    (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1  :  Muraleedharan Nair

PW2  :  Vineethakumary. M

Exhibits marked on the side of the complainant:

A1 :  Statement of account dated 22.04.2015 for Catholic Syrian Bank,

        Thatta Branch, Adoor.

A2 :  Advocate notice dated 31.01.2015 sent to the complainant to

        opposite party. 

A3 :  Acknowledgment card of Ext.A2. 

A4 :  Letter dated 08.07.2013 issued by the General Manager, Dist. Industries  

        Centre Office, Pathanamthitta to complainant’s wife. 

A5 :  Copy of application issued by the complainant’s wife to Dist. Industries  

        Centre Office, Pathanamthitta. 

A6 :  Copy of sanction of loan letter dated 25.10.2013 sent by SBT,  

        Thumpamon Branch. 

A7 :  Copy of details for data updation of PMEGP. 

A8 : Copy of passbook in SBT, Thumpamon Branch in complainant’s wife. 

A9 series :  Copy of demand draft issued by SBT, Thumpamon Branch.

A10 :  Copy of licenses (2013-14, 2014-15)  issued by Adoor Municipality. 

A11 :  Copy of insurance policy issued by Keerthi DTP Centre. 

A12 :  Copy of certificate issued by Rural Self Employment Traning Institute,  

          Pathanamthitta. 

A13 :  Copy of photo issued by Rural Self Employment Training Institute,

          Pathanamthitta. 

A14 :  Copy of agreement dated 02.04.2015. 

Witness examined on the side of the opposite party:

DW1  :  Christy Anthony 

Exhibits marked on the side of the opposite party:

B1 & B2 :  Photos. 

B3 & B4 series :  Copy of bills.

B5 :  Copy of legal notice dated 14.02.2015 issued by the opposite party

        to the complainant. 

B6 :  Proof of delivery of speed post dated 02.03.2015. 

B7 :  Copy of Order in Munisiff’s Court, Ernakulam.

Court Witness:  Nil

Court Exhibits:

M.O.1  :  Wedding Cards

                                                                   (By Order)

Copy to:- (1) Muraleedharan Nair. K, Lekshmi Nivas, Mallika kara,

                    Pandalam Thekkekara Village, Thatta.P.O.,

                    Adoor Taluk – 691 525.

              (2)  Christy, Billion Paper Traders, No-F/01, Revenue Tower

                    1^st Floor, Park Avenue Road, Opp. Boat Jetty & Children’s Park,

                    Ernakulam – 682 011.

              (3)   The Stock File.