IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR

Present: Sri.K.Gopalan:  President

Smt.K.P.Prethakumari:  Member

Smt.M.D.Jessy:               Member

Dated this, the   9^th  day of   November  2009

OP.453/1997

Ancy Thomas,

D/o.T.T.Kurian,

Thekkel House,

Kottiyoor Amsom,                                                        Complainant

Chungakunnu.

1.Fr.T.M.Samuvel,

  Manging Director,

  Air Media tours & Travaels,

  St.Marry’s Building,

   Ulloor,

  Thiruvananthapuram.                                       Opposite parties

2. T.V.Sailendrakumar,

   S/o.Venugopalan Nair,

  Idamalloor House,

  Sasthamangalam,

  P.O.Jawahar Nagar,

  Thiruvannthapuram.

O R D E R

Sri.K.Gopalan, President

            This is a complaint filed under section 12 of consumer protection act for an order directing the opposite parties to pay a sum of Rs.1, 00,000/- as compensation.

            The case of the complaint in brief is as follows: the complainant was a tailor who conducted the proprietary concern by name ‘Kumari Tailors’. During that period she was attracted by an advertisement in the Malayala Manorama daily inviting applications for employment for Lady Tailors that ‘Lady Tailors are required in Kuwait’. Date of interview has also published. Complainant with her younger brother proceeded to the office of the 1^st opposite party at Trivandrum and met the second opposite party and entrusted the duly filled application form issued by the 2^nd opposite party. Having gone through the application form and other testimonials the opposite parties assured employment to the complainant in a ready made company at Kuwait. Thereafter the first opposite party interviewed her and offered employment on payment of a sum of

Rs.10, 000/- as service charge for arranging visa. The opposite party then told her that since there are many applicants from Malabar area for the said post the 2^nd opposite party will visit Malabar and will meet complainant in her residence for collecting the balance amount. When she is about to leave the office, the 2^nd opposite party offered visa within 3 weeks and directed the complainant to be ready for taking the employment. Complainant returned back and waited for the information from the opposite parties. While so she received communication from the 1^st opposite party stating that the 2^nd opposite party will visit the complainant’s house on 9.12.1995. Thereafter the oppoisite parties have informed to the complainant that the opposite parties have received a fax message stating the arrangement of visa to the complainant. The complainant contracting her brother at Pala raised money by availing temporary loan.  2^nd opposite party visited the house of the complainant and received Rs.30, 000/- from complainant. Second opposite party issued receipt for Rs.30, 000/- as consideration for arranging visa and air ticket. Opposite party then informed that she will be provided employment visa within10 days and advised to discharge all her liabilities prior to her departure. Believing the words of 2^nd opposite party complainant prepared power of attorney infavour of her husband for managing her properly and then proceeded to Kunhali’s Hospital at Ernakulam and obtained necessary certificates for making air travel. Complainant entrusted all the documents required by opposite parties for arranging visa and closed her establishment for joining duty at Kuwait. Though opposite parties promised visa in between the period from 25.9.1995 and 25.12.1995 the opposite partite have not arranged visa within the above said period. But on enquiry it is informed by the opposite parties that due to the bad luck of the complainant the opposite parties have not yet obtained the visa of the complainant. Then only complainant could realize the falsity of the interview and promise given by the opposite parties. Hence the complainant forced the opposite parties to return the passport and the amount. Though they returned passport they have not returned the amount received from the complainant. Since the money has not been returned complainant filed a private complaint before the criminal court, Kuthuparamba as CC.364/96. On enquiry it is also understood that petitions against 1^st opposite party are pending at Thiruvannathapuram and Uloor police stations. The complainant has suffered a loss of Rs.1, 00,000/- out of the above said deficient service on the part of opposite parties. Hence this complaint.

            After receiving the complaint forum sent separate notices to the opposite parties. It was returned but sent fresh notices again. Those notices have also returned unserved. Hence the complainant published notice in news paper having circulation in Thiruvananthapuram and produced. Since both the opposite parties served by publication the names of the opposite parties were called in open Forum and found absent, consequent to which, both of them set exparte. The complainant was examined as PW1 and exts.A1 to A3 marked. Order pronounced allowing the complaint making liable both the opposite parties to pay a sum of Rs.30,000/- with interest at 12% and sum of Rs.50,000/- as compensation and Rs.250/- as cost.

            2^nd opposite party thereafter filed appeal and the Hon’ble State Commission pleased to set aside the above order in the complaint. Considering the fact that the appellant had no opportunity to contest the mater before the forum, and directed to permit the parties to adduce evidence if they so desire. The existing E.P 78/2001 closed reopening OP.453/97 on file. Notice sent to both complainant and 2^nd opposite party. Both sides made appearance and 2nd opposite party filed version.

            The contentions of opposite party in nutshell are as follows. The complainant is a total stranger to him. He neither accepted any amount from her not offered to provide any visa. He was working as a manager in Air Media Tours and Travels situates at Thiruvannathapuram. This opposite party is ignorant of the advertisement in Manorama Daily and complainant had an occasion to see the said advertisement. The opposite party denied all the transactions narrated in the complaint except the fact that he was working as a Manger under 1^st opposite party. He never went to Kottiyoor and received any amount from the complainant. There is no privity of contract existed in between the complainant and 2^nd opposite party. If at all allegation narrated in the complaint is true that is with 1^st opposite party. Complainant has filed a protest complaint before Judicial 1^st class Magistrate, Kuthupramba as C.C.364/1996. The matter was  contested and the Hon’ble Magistrate was pleased acquit this OP. The complainant has not preferred any appeal. The complainant is not entitled to get any compensation. There is no deficiency in service on his part. Opposite party employed several staffs under him. The opposite party has no control over the management of the Air Media Tours & Travels which was absolutely belonged 1^st  opposite party. This opposite party was only a salaried employee under 1^st opposite party. The complainant somehow obtained the visiting cards of the opposite party, which was published in the address of the Air Media Tours & Travels and is trying to link this opposite party to the transaction. He is not liable to pay any amount. This opposite party has been unnecessarily dragged before this Hon’ble Forum. Hence to dismiss the complaint with cost.

            On the above pleadings the following issues have been taken for consideration.

1. Whether there is any deficiency on the part of opposite parties?

2. Whether the complainant is entitled to get the relief as prayed?

3. Relief and cost.

            The evidence consists of oral testimony  of  PW1, PW2 and exts.A1 to A15.

Issue Nos. 1 to 3

            The complainant pleaded that seeing a newspaper advertisement, she approached the opposite parties and opposite parties offered to arrange a visa for her for employment abroad. The further case is that Rs.30, 000/- was collected from her. But the complainant did not get the visa or job as promised and the amount received from her was also not repaid.

            Complainant has filed chief affidavit and also documents so as to prove her case. Ext.A1 to A3 filed in the initial stage itself and subsequently Exts.A4 to A15. Ext., A1 is the publication and A2 is the translation of visa. Ext.A3 is the receipt issued by 2^nd opposite party to the complainant at the time receiving Rs.30, 000/-. 2nd opposite party contended that complainant is a total stranger to him, though complainant’s specific case is that the receipt is issued by 2^nd opposite party. She has clearly given evidence by affidavit in lieu of chief examination thus’”  Fsâ kvz-´T I¿n C{X-bpT XpI H¶n-s¨-Sp-¡m³ CÃm-Xn-cp-¶-Xn-\m  ktlm-Z-cs\ hnh-cT Adn-bn-¡p-I-bpT  1995 HIvtSm-_À 8\p ]mem-bn \n¶p XpI-bp-ambn ktlm-Z-c³ F¯p-I-bpT sNbvXp. Rm\pT ktlm-Z-c-\pT Fsâ `À¯m-hpT Df-f-t¸m-gmWv amt\-PÀ ho«n-se-¯n-b-Xp. XpI ssite-{µ³ hm§p-T-t]mÄ hnk-bpsS ^mIvkv tIm¸n-bp-T- hn-k-¡pT ÌmT-]n-§n-\pT FbÀSn-¡-än-\p-ambn XpI ssI¸-än-b-Xnsâ tcJ- H-¸n«v  FbÀ aoUnb {SmhÂknsâ koepT sh¨v R§Ä¡v \ÂIn.    In the cross examination for 2^nd opposite party complainant deposed that “2nd opposite partys Fsâ \m«n h¶p 30000 cq] hm§p-I-bpT sNbvXn-cp¶p “Complainant adduced evidence in tune with her pleadings. 2^nd opposite party even after getting opportunity to adduce evidence did not come forward to give oral or documentary evidence. 2^nd opposite party failed to give evidence in support of his pleadings. The available evidence on record makes it clear that the opposite parties have neither arranged visa nor repaid the amount. 2^nd opposite party received the amount Rs.30, 000/- from the complainant in front of her brother and husband from her house. Opposite party did not come to box in order to say that it is not true. What prevented him from adducing evidence is very material in the light of the fact that he obtained the opportunity to set-aside the exparte order to defend his case much more strongly.  Non examination of 2^nd opposite party weakened the case of 2^nd opposite party. The mode of operation of the opposite parties reveals that both the Managing Director and Manger are all in all in conducting the business of Air Media Tours & Travels. 2^nd opposite party has a case that he is only an employee among several others under 1^st opposite party. But no evidence given to that affect. If that is true any one of the other employees ought to have been examined to prove that he is only an employee there. If anyone of the employees has been examined that would have been the best possible evidences to weigh entire facts to come in to a more strengthy conclusion free from all sorts of clouds. 2^nd opposite party failed to utilize the opportunity to disprove the case of the complainant and to defend his side successfully. There is deficiency of service on the side of both the opposite parties alike.

            In the light of above discussion, we are of opening that both opposite parties are jointly and severally liable for the loss sustained by the complainant and they are bound to refund Rs.30,000/- with interest at the rate of 10% per annum from the date of this order together with Rs.50,000/- as compensation for deficiency in service. The complainant is also entitled to get Rs.1000/- as cost of this proceedings.

            In the result, the complaint is allowed directing the opposite parties to refund Rs.30,000/- (Rupees Thirty thousand only) with interest at the rate of 10% per annum from the date of this order together with a sum of Rs.50,000/- (Rupees Fifty thousand only) as compensation for deficiency in service to the complainant. Opposite parties  further  directed to pay Rs.1000/-( Rupees One thousand only) as cost of these proceedings  to the complainant and to comply the order within one month from the date of receiving this order, failing which the complainant is allowed to execute the order against the opposite parties.

                                    Sd/-                             Sd/-                             Sd/-

President                      Member                       Member

APPENDIX

Exhibits for the complainant

A1.Copy of press cutting in Malayala Manorama

A2.copy of the entry permit dt.16.10/.95.

A3.Copy of cash receipt issued by the O P(A1 to A3 not in the EP file)

A4.Brochure of Air media

A5.Visiting card

A6.Paper dt.28.6.06

A7. Paper dt.11.8.04.

A8.Intimation card by Intelligence dt.28.6.06

A9.Reply of law reforms commission dt.27.2.08

A10. Reply of Women’s commission dt.13.2.08

A11.Certificate from PCFSJ

A12.Copy of the lawyer notice dt.12.11.04

A13.Copy of the order of HC

A14 & 15..Copy pf the letter sent to Sri.Kodiyeri Balakrishnan & Postal AD

Exhibits for the opposite parties: Nil

Witness examined for the complainant

PW1.Complainant

PW2.T.J.Thomas

Witness examined for the opposite parties: Nil

                                                            /forwarded by order/

                                                            Senior Superintendent

Consumer Disputes Redressal Forum, Kannur.