KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM F.A. 32/2010 JUDGMENT DATED:11.03.2010 PRESENT:- JUSTICE SHRI.K.R.UDAYABHANU : PRESIDENT SHRI.M.K.ABDULLA SONA : MEMBER Shaji.S., Kattuvila Vadakkathil, : APPELLANT Padinjarepura , Kampalady, Poruvazhy.P.O., Karunagapally, Kollam. (By Adv.Sri.K.K.Rajeev Punnapuram) Vs 1. E.C.Philip, Karilamthadathil Home, : RESPONDENTS Monippally.P.O. 2. The Field Manager, Karachira Coir Manufactures, Alappuzha, Avalakunnu.P.O., Aaryadu, Alappuzha. JUDGMENT SHRI.M.K.ABDULLA SONA : MEMBER This appeal prefers from this order passed by the CDRF, Kottayam, in the file of C.C.No.249/2008 dated 22.11.2009. The appellant is the 2nd opposite party who prefers this appeal from the above order passed by the Forum below. In short, the complaint filed by the complainant for getting a refund of amount collected from him with cost and compensation. According to the complainant the 2nd opposite party approached to the complainant in his house and agreed to fix rubber mats to his house. The opposite party received Rs.22,800/- from the complainant. The opposite party had fixed the rubber mats to one bed room, one verandah only. Thereafter the 2nd opposite party has not turned up. The complainant made several enquires about the opposite parties. But all the enquiries were in vain. The complainant alleged that the fixing of the rubber mats even also became defective so he sustained heavy loss and hardship due to the deficiency of service committed by the opposite party. Hence the complaint. The Forum below issued notice to both parties for their appearance. They appeared before the Forum below and filed separate versions. The 1st opposite party contended that the complainant had mis-lead by somebody by using forged bill in the 1st opposite party i.e, “Karachira Manufacturers”. The 1st opposite party has remitted the income tax, sales tax properly to the authority without any default. The 1st opposite party has not made any deficiency in service or unfair trade practice on their part. Hence the 1st opposite party submitted that he may be exhonerated from the party array. For the 2nd opposite party taken another view that complaint itself is not maintainable. The 2nd opposite party has not alleging the complaint. The 2nd opposite party has not issued any receipt to the complainant or anybody. The 2nd opposite party has not received any amount as alleged by the complainant. The alleged bill which was issued by the 2nd opposite party. The Mobile No.9745036139 was mentioned in the bill which belongs to 2nd opposite party. The alleged mobile number was using the complainant with ulterior motive against the 2nd opposite party. The 2nd opposite party has not offer any service to the complainant for consideration. Hence the opposite party has exhonerated from the party array. The complainant who examined as PW1 and he produced one document and it is marked as Ext.A1. Ext.A1 is a copy of the bill dated 01.09.2008. The Forum below found that there was clear deficiency in service on the part of the opposite parties. Hence allowed the complaint. The Forum below direct the opposite party to refund Rs.22,800/- to the complainant and there would be pay Rs.2500 as compensation inconvenience and pay Rs.1,000/- as cost of this proceedings. The appeal prefers this appeal from the above impugned order passed by the Forum below. On this day this appeal came before this Commission for final hearing the counsel for the appellant and the 1st respondent is also present. The 1st respondent is a senior citizen and he appeared in person. The counsel for the appellant argued that the order passed by the Forum below is not accordance with the law and evidence. The Forum below found that there is nothing more the Forum below found that there is nothing material more record to show that the appellant/2nd opposite party has received any amount in the complainant and thereby business the complainant. He pointed out that mobile number of this appellant was written by somebody in the Ext.A1 receipt with ulterior motive. He further argued that Ext.A1 bill was issued by the opposite party No.1 and not by the appellant/opposite party and hence if it of there any amount due from the opposite party to the complainant that has to be directed to the 1st opposite party and appellant shall be exhonerated in the prayer of the appellant and to set aside the impugned order passed by the Forum below. There is no representation for 2nd respondent in the appeal. The appellants approach towards this case is nothing but an attempt to escape from his entirely legal liability of this case. The 1st respondent/complainant appeared in person who submitted that after receiving the amount on Rs.22,800/-, the respondent has left the premises and not done the agreed work (fixing of rubber mat) more than the opposite party has fix the minor portion of the work that to become defective. He pointed out that according to Ext.A1 bill it is clearly seen that the opposite party has received Rs.22,800/-. At the same time the appellant as per his case that the CSTNo in Ext.A1 was not the original of 1st opposite party. It is also the duty of the appellant/2nd opposite party to prove the genuinely of the documents. As per the stand taken by the appellant that somebody should fabricated the Ext.A1 document. At the same time he has not taken any steps to prove such an attempt taken by him. He cannot have a reason to exhonerate the appellant from the entire liability of the payment of the amount of Rs.22,800/-. A mere denial is not a substantiate reason to exhonerate him from the burden of his liability. In this type of case he is bound to explain that why 1st opposite party fabricated his cell number and CST number in ext.A1 document. This commission is seeing that the Forum below rightly and correctly answered all the points arised in the dispute for consideration. The argument of the appellant is not fully acceptable. It is his burden to explain about his mobile No appeared on Ext.A1 bill. The simple denial from his part is not sufficient. This circumstance are incriminating that the 1st opposite party should committed every activities as per knowledge of the 2nd opposite party. This commission taken a view that the order passed by the Forum below is legally sustainable and we have up hold that decision. In the result this appeal is allowed in part. This appeal disposed of according to the following modifications. The 1st opposite party is directed to refund Rs.22,800/- to the complainant and pay Rs.2500/- as compensation for inconvenience and pay Rs.1,000/- as cost of the proceedings of the cost. If the complainant/ 1st respondent is not in a position to realize to recover this amount from the 2nd respondent/1st opposite party. The appellant/2nd opposite party is liable to pay Rs.22,800/- to the complainant/1st respondent. The 1st respondent/complainant is having the liberty to proceed against 1st opposite parties first then only against 2nd opposite parties. as per this modified order of this commission. This appeal is disposed accordingly. Both parties are directed to suffer their own respective cost. All the points are answered accordingly. M.K.ABDULLA SONA : MEMBER JUSTICE K.R.UDAYABHANU : PRESIDENT Kb. | 
