KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACADU THIRUVANANTHAPURAM
APPEAL NO: 14/2008
JUDGMENT DATED:31..12..2010
PRESENT
SMT. VALSALA SARANGADHARAN : MEMBER
SRI. M.V. VISWANATHAN : JUDICIAL MEMBER
SRI.M.K. ABDULLA SONA : MEMBER
Swedeshi Imports & Exports
(Manufactures & Exporters), : APPELLANT
Main Road, Feroke, Calicut-673 631.
(By Adv:M/s Joy Thattil & Co.)
Vs.
Dr.Valsala Kumari,
Professor, Govt. Homeo Medical College,
Karaparamba, Calicut-673 010. : RESPONDENT
(By Adv.Smt.R.Sathi & B.Ajayakumar)
JUDGMENT
SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER
Appellant was the opposite party and respondent was the complainant in OP.177/03 on the file of CDRF, Kozhikkode. The complaint therein was filed alleging deficiency of service on the part of the opposite party in effecting supply of floor tiles by the brand name copper silk granite tiles. The complainant claimed refund of the amount of Rs.27,560/- which was retained by the opposite party while refunding the price of the defective tiles. The complainant also claimed Rs.50,000/- by way of compensation for the mental agony and inconvenience suffered by him. Thus, a total sum of Rs.73,845/- was claimed under various grounds.
2. The opposite party entered appearance and filed written version denying the allegations levelled against the opposite party. It was contended that the complaint is filed to avoid payment of Rs.35,440/- due to the opposite party’s sister concern Swadeshi Granite (India Private Limited). It is also contended that the complainant had only paid Rs.77,007/- to the opposite party towards the sale price of the tiles purchased from the opposite party and that the opposite party refunded Rs.80,000/-. Thereby, the opposite party prayed for dismissal of the complaint.
3. Before the Forum below the complainant was examined as PW1 and a witness on her side was examined as PW2. Ext.A1 to A14 documents were also marked on the side of the complainant. From the side of the opposite party RW1 was examined and B1 cash bill book for the period from 28/1/2003 to 27/3/2003 was also marked. Expert Commissioner was appointed along with Advocate Commissioner and the report filed by the commissioner has been marked as Exts.C1 to C3. The Advocate commissioner who filed C3 report was examined as CW1. On an appreciation of the evidence on record, the Forum below passed the impugned order dated:31st August 2006 allowing the complaint and thereby directing the opposite party to pay Rs.32,560/- to the complainant as compensation. It is against the said order the present appeal is preferred by the opposite party.
4. We heard both sides. Learned counsel for the appellant/opposite party submitted his arguments based on the grounds urged in the memorandum of the present appeal. He argued for the position that no amount was due from the appellant/opposite party with respect to the transaction entered into between the complainant and opposite party and that there occurred transaction with the sister concern of the opposite party and that the opposite party should not be made liable for the transaction entered into between the complainant and M/s Swadeshi Granites (India Private Limited). He also relied on the documentary evidence available on record and submitted that the opposite party refunded Rs.80,000/- instead of Rs.77,007/-. Thus, the appellant 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 the opposite party/ Swadeshi Imports and Exports (Manufacturers and Exporters) has been conducting business in various names and all the concerns are located in one and the same business premises and the directors or partners of all the concerns are one and the same and that the complainant had transaction with the opposite party represented by its Director/Partner by name Zakhir Hussain. Thus, the respondent prayed for dismissal of the present appeal.
5. The appellant/opposite party has been conducting business in granite tiles and that the respondent/complainant approached the opposite party for purchase of granite tiles. The definite case of the respondent/complainant is that she purchased copper silk granite tiles of the first quality and that the opposite party supplied 2nd quality tiles and so, the complainant is aggrieved by the supply of low quality tiles. It is also the case of the respondent/complainant that the total consideration for the copper silk granite tiles was fixed at Rs.1,49,600/- and she paid a total of Rs.1,43,000/- on various occasions. Thus, the complainant permitted the appellant/opposite party to take back the low quality tiles and requested for refund of Rs.1,43,000/- which she had paid to the opposite party towards sale consideration. The further case of the complainant is that the appellant/opposite party has only returned or refunded Rs.1,15,440/- by retaining Rs.27,560/-. So, the complaint in OP.177/03 was filed for getting refund of the balance of Rs.27,560/- and for compensation of Rs.50,000/- and other financial loss suffered by the complainant amounting to Rs.73,845/-.
6. The appellant/opposite party would contend that the respondent/complainant had only paid a total of Rs.77,007/- and that the appellant refunded Rs.80,000/- and so, no amount is due to the complainant from the opposite party. But the appellant/opposite party could not substantiate its case that the respondent/complainant had only paid Rs.77,007/- towards the sale consideration. Ext.A4 and A5 demand drafts and A6 cheque dated:22/3/2003 would support the case of the respondent/ complainant that the appellant/opposite party refunded Rs.1,15,440/-. The case of the appellant/opposite party that A6 cheque for Rs.35,440/- was issued to the complainant by the sister concern of the appellant/opposite party by way of loan and that the said sum of Rs.35,440/- is due from the complainant to the sister concern, M/s Swadeshi Granites (India Private Limited) cannot be believed or accepted. It is to be noted that the respondent/complainant is a doctor in Homeopathy medicines and she has been working as Professor, government Homeo Medical College, Calicut. No evidence is available on record, to support the case of the appellant/opposite party regarding the alleged borrowel of Rs.35,440/- by the complainant from M/s Swadeshi Granites (India Private Limited)If any such transaction had occurred between the complainant and M/s Swadeshi Granites (India Private Limited), then there will be such an entry in the accounts maintained by the said concerns. But no such document is forthcoming from the side of the appellant/opposite party or from the side of Swadeshi Granite India Private Limited. Ext.A4 to A6 documents would make the case of the complainant more probable and believable.
7. The complainant as PW1 has deposed in support of her case. On a scrutiny of the oral testimony of PW1would make the case of the complainant more acceptable. No sufficient and acceptable reason is stated or forthcoming for issuance of A6 cheque for Rs.35,440/-. The Forum below appreciated the evidence available on record in its correct perspective and came to a just and proper conclusion that a sum of Rs.27,560/- is due to the complainant from the opposite party.
8. The manager of the appellant/opposite party was examined as RW1. A careful scrutiny of the testimony of RW1 would make it abundantly clear that the appellant/opposite party is running the business in granite tiles in the name of M/s Swadeshi Granites (India Private Limited) and Swadeshi Stones. It is come out in evidence that all the above firms or concerns are being run by the same partners by name Zakhir Hussain and Nizar Zakhir. It is also come out in evidence that the aforesaid 3 concerns are situated in one and the same premises having one and the same telephone numbers and fax numbers. It can very safely be concluded that the business is being carried out in 3 names for the purpose of avoiding payment of sale tax and other taxes. It may be correct to say that the said method opted to avoid payment of sale tax (vat) and other taxes by permitted method is legally permitted. But as far as the customers/consumers like the respondent/complainant is concerned, there is naturally one concern doing the business. The complainant had transaction with the opposite party/Swadeshi Imports and Exports and the payments were also effected. So, the complainant can be justified in preferring the complaint against the opposite party, M/s Swadeshi Imports and Exports. It is to be noted that customer like the complainant will be satisfied in getting the amount due to her refunded. In the ordinary course a customer/consumer will be least concerned about the person who issued the cheque(Drawer) for getting refund of the amount due to the customer/consumer. It may be correct to say that the opposite party issued A6 cheque for their convenience. There might be such business practice of issuing cheques in the name of the aforesaid 3 concerns. As far as the customer or consumer is concerned there was only the one concern dealing in granite tiles. The complainant being the customer/consumer entered into transaction with the opposite party and payments were also effected to the opposite party. So, naturally the complainant claimed refund of the amount on cancellation of the sale transaction entered into between the complainant and the opposite party. So, the Forum below is perfectly justified in directing the opposite party to refund the balance sale consideration of Rs.27,560/-.
9. The expert commissioner who submitted Ext.C1 commission report was examined as PW2. The Advocate Commissioner who submitted C3 report was examined as CW1. The evidence of PW2 and CW1 would support the case of the complainant that low quality granite tiles were supplied by the opposite party. The supply of low quality tiles would amount to unfair trade practice and deficiency of service. If that be so, the respondent/complainant is justified in asking the opposite party (appellant) to take back the said low quality tiles and refund the price which the complainant had paid to the opposite party/ dealer. But the opposite party retained Rs.27,560/-. Therefore the Forum below has rightly directed the appellant/ opposite party, dealer to refund the said balance sale consideration of Rs.27,560/-. The Forum below has also awarded Rs.5000/- as compensation for the deficiency of service on the part of the appellant/opposite party. In fact, the Forum below has taken a very lenient view in quantifying the compensation. It is to be noted that no cost was ordered by the Lower Forum. It is also to be noted that the complainant remitted the batta for the commissioners. She also examined the expert commissioner and the Advocate Commissioner in the case. Thus, in all respects the sum of Rs.5000/- ordered by the Forum below as compensation can be treated as very reasonable. There is no ground warranting interference with the impugned order dated:31st August 2006 passed by CDRF, Kozhikkode in OP.177/03. The present appeal deserves nothing but dismissal.
In the result the appeal is dismissed. The impugned order passed by the Forum below in OP.177/03 is confirmed. The parties are directed to suffer their respective costs.
M.V. VISWANATHAN : JUDICIAL MEMBER
VALSALA SARANGADHARAN: MEMBER
M.K. ABDULLA SONA : MEMBER
VL.
