KERALA STATE CONSUMER DISPUTERS REDRESSAL COMMISSION VAZHUTHACAD, THIRUVANANTHAPURAM

APPEAL NO.83/2010

JUDGMENT DATED: 31.3.2010

PRESENT

SMT.VALSALA SARANGADHARAN       : MEMBER

SRI.M.V.VISWANATHAN                         : JUDICIAL MEMBER

SRI.S.CHANDRAMOHAN NAIR               : MEMBER

K.V.George,                                                          : APPELLANT

Proprietor,

Karachira Coir Manufacturers,

Avalakkunnu, Aryadu,

Alleppey.

(By Adv.L.Ramesh Babu)

               Vs.

1. E.C.Philip,                                      : RESPONDENTS

    Karilamathadathil House,

    Monippally.P.O.

2. Shaji.S.Kattuvila Vadakkathil,

    Padinjareppura Kampalady,

    Poruvazhi.P.O., Karunagappally,

    Kollam.

JUDGMENT

SRI.M.V.VISWANATHAN      : JUDICIAL MEMBER

The above appeal is preferred from the order dated 2^nd November 2009 passed by CDRF, Kottayam in CC.249/08.  The appellant was the 1^st opposite party and the respondents 1 and 2 were the complainant and 2^nd opposite party in the said complaint in CC.249/08 which was filed alleging deficiency in service on the part of the opposite parties 1 and 2 in effecting sale of rubber mats to the complainant and in laying the said rubber mats.  The opposite parties 1 and 2 entered appearance before the Forum below and filed separate written versions.  First opposite party denied the alleged transaction between the complainant and the 1^st opposite party.  It is further contended that the 2^nd opposite party is not the authorised employee or agent of the 1^st opposite party and that the 1^st opposite party cannot be made liable for the unauthorized actions of the 2^nd opposite party.  On the other hand, the 2^nd opposite party denied the case of the complainant.   He also denied the acceptance of Rs.22,800/- from the complainant.  Thus the 2^nd opposite party prayed for dismissal of the complaint.

2. Before the Forum below, the complainant was examined as PW1 and Ext.A1 copy of  bill issued by the 2^nd opposite party was marked on the side of the complainant.  No evidence was adduced from the side of the opposite parties.  On an appreciation of the facts, circumstance and evidence on record, the Forum below passed impugned order directing the opposite parties to refund Rs.22,800/- collected from the complainant with compensation of Rs.2500/- and cost of Rs.1000/-.  Aggrieved by the said order present appeal is filed by the 1^st opposite party.

3. We heard the learned counsel for the appellant/1^st opposite party and also the 1^st respondent/complainant who appeared in person.  Though notice was served on the 2^nd respondent/2^nd opposite party there was no representation.  He remained absent.

4. The evidence of PW1 stands unchallenged.  Ext.A1 copy of the bill dated 1.9.08 strengthened the case of the complainant that he paid Rs.22,800/- to the 2^nd opposite party(2^nd respondent) for laying rubber mats.  The definite case of the complainant is that the 2^nd opposite party acted as the employee and agent of the 1^st opposite party Karachira Coir Manufacturers, Alleppy  and that the opposite parties 1 and 2 failed to supply rubber mats as agreed.  It is also submitted that rubber mat was laid in a small portion of his house and the same was found defective.  The aforesaid case of the complainant has been spoken to by the complainant as PW1.  Ext.A1 document would also show that the 2^nd opposite party received the said sum of Rs.22,800/- towards the price of the rubber mats and also for laying the rubber mats in the house of the complainant(1^st respondent).

5. The definite case of the appellant/1^st opposite party is that 2^nd opposite party is not an employee or agent and that 2^nd opposite party has cheated the  complainant.  But there is no evidence forthcoming from the side of the appellant/1^stopposite party that the 2^nd opposite party/2^nd respondent is not his employee or agent.  The appellant/1^st opposite party has not produced any document to show the names of the employees employed by the 1^st opposite  party in his concern by name Karachira Coir Manufacturers, Alleppey.  The fact that the appellant/1^st opposite party has been running  such a business concern is not in dispute.  The case of the 1^st opposite party that the 2^nd opposite party was not employed or authorised  to sell the products of the appellant/1^st opposite party  can not be believed.  It is the definite case of the appellant/1^st opposite party that he is having income tax and sale tax registration.  If that be so, the appellant/1^st opposite party will be maintaining current accounts with respect to the  business transactions and also a muster roll evidencing the persons employed in his establishment.  But no such documents are forthcoming from the side of appellant/1^st opposite party to substantiate his case.  The only course which was available  to the Forum below  was to accept the evidence of PW1.

6. The 2^nd respondent/2^nd opposite party has also not adduced any evidence .  The available evidence on record would make it clear that the 2^nd opposite party collected sum of Rs.22,800/- from the complainant(1^st respondent) and failed to supply rubber mats as agreed and assured.  So, the Forum below has rightly passed the impugned order dated 2^nd November 2009 fastening liability on opposite parties 1 and 2 to refund the sum of Rs.22,800/- collected from the complainant with a compensation of Rs.2500/- and cost of Rs.1000/-.  We do not find any irregularity in the impugned order passed by the Forum below.  The present appeal deserves dismissal at the admission stage itself.  Hence we do so.

In the result the appeal is dismissed.  The impugned order passed by the Forum below is confirmed.  The appellant is also made liable to pay cost of Rs.150/- to the 1^st  respondent/complainant.

SRI.M.V.VISWANATHAN                         : JUDICIAL MEMBER

SMT.VALSALA SARANGADHARAN       : MEMBER

SRI.S.CHANDRAMOHAN NAIR               : MEMBER

ps