KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL NO:286/2007
ORDER DATED: 29-09-2011
PRESENT:
SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER
Mrs. Elsy Jos, W/o Jos,
Manachery House,
Madakkathara Desom,
Madakkathara Village, : APPELLANT
Thrissur Thaluk, Former Owner,
Kerala (P) Agricultural Farm,
Mannuthy Post.
(By Adv:Sri.George Cheriyan Karippaparambil)
Vs.
Mr.Jalal.M.N, S/o Narayanan,
Maliakkal House, Kadavoor Post, : RESPONDENT
Ernakulam District, PIN-680 671.
(By Adv:Sri.Jacob George)
ORDER
SHRI.M.V. VISWANATHAN : JUDICIAL MEMBER
Appellant is the opposite party and respondent is the complainant in OP.261/03 on the file of CDRF, Thrissur. The complaint therein was filed alleging deficiency of service on the part of the opposite party in effecting sale of 300 gms of Kanivellari seeds on 10.3.2002. It was alleged that the aforesaid seeds sold by the opposite party (appellant) was not that of kanivellari as assured; but it was the seeds of some other variety and this fact could be realized only at the time of harvesting the crops. It was further alleged that the complainant could not effect sale of the said crops in Thodupuzha and Changanassery markets and thereby the aforesaid total crops of 60. Metric tons were damaged and thereby the complainant suffered loss of Rs.3,lakhs and other financial loss. Thus, the complainant claimed compensation of Rs.4,20,000/- with cost.
2. The opposite party (appellant) entered appearance before the Forum below and filed written version denying the alleged deficiency in service. The opposite party disputed the genuineness and correctness of the bill dated:10.3.2002 said to have been issued by her. It was also contended that the opposite party had no occasion to sell kanivellari seeds to the complainant and there was no such transaction as alleged. It was further contended that the complainant fabricated documents for making unlawful enrichment. Thus, the opposite party prayed for dismissal of the complaint.
3. The complaint in OP.261/03 was filed at the 1st instance before the CDRF, Ernakulam against the Manager, Kerala (P) Agricultural Farm, Mannuthy, P.O.Thrissur. Subsequently, the Proprietor, Kerala (P) Agricultural Farm, Mannuthy was shown as the opposite party. But the said complaint filed before the CDRF, Ernakulam was dismissed as not pressed with liberty to file another complaint before the CDRF, Thrissur. It is thereafter, the present complaint in OP.261/03 has been filed before the CDRF, Thrissur. Subsequent to the filing of the complaint before the CDRF, Thrissur, the name of the proprietor was included and thereby the complaint was amended for incorporating the necessary impleadment vide order on I.A.Nos.977/04 and 978/04. By the said amendment, Elsy Jose, W/o Jose, Menachery house, Madakkathara Desom, Madakkathara Village, as proprietor of Kerala (P) Agricultural Farm, Mannuthy, P.O,Thrissur was shown as the opposite party.
4. Before the Forum below, Exts.P1 to P7 documents were produced and marked on the side of the complainant. Ext.C1 series of signatures of the opposite party, Elsy Jose was also marked by the Forum below as Court Exhibit. On an appreciation of the evidence on record, the Forum below passed the impugned order dated:26th April 2007 allowing the complaint and directing the opposite party to pay to the complainant Rs.60,000/- as loss sustained by the complainant. Rs.2000/- was also awarded as compensation with cost of Rs.2000/-. The opposite party was directed to pay the decreed amounts within one month, failing which the opposite party will be liable to pay interest at the rate of 12% per annum on Rs.60,000/-. Aggrieved by the said order, the present appeal is filed.
5. When this appeal was taken up for final hearing, there was no representation for the respondent/ complainant. This commission was pleased to hear the learned counsel for the appellant. He submitted his arguments based on the grounds urged in the memorandum of the present appeal. He vehemently argued for the position that the Forum below did not permit the opposite party to adduce evidence in support of her contentions in the written version. It is further submitted that the opposite party filed I.A.632/06 and the Forum below failed to send the disputed hand writing and signature in Ext.P1 purchase bill to an expert. It is also submitted that the Forum below has gone wrong in comparing the disputed hand writing and signature in P1 bill with the admitted signatures of the opposite party in Ext.C1 series of signatures. He also challenged the correctness of the impugned order passed by the Forum below by stating that the said order is passed without any supporting evidence. Thus, the appellant/opposite party requested for remanding the matter to the Forum below to afford opportunity to adduce evidence in support of her contentions and also to send the disputed document to a hand writing expert for expert opinion. Thereby, the appellant prayed for setting aside the impugned order passed by the Forum below.
6. There is no dispute that the appellant/opposite party vehemently disputed the genuineness of P1 cash bill dated:10.3.2002. It is the definite case of the appellant/opposite party that P1 bill was not issued by her or from her Kerala (P) Agricultural Farm, Mannuthy, P.O.Thrissur. She has also got a case that she conducted the aforesaid business of selling seeds only for some time and thereafter she stopped her business as the local authority (Corporation of Thrissur) removed her establishment which was on the way side. The opposite party has also disputed the signature in P1 bill dated:10.3.2002. She has got a case that the word ‘*7U’ is written in a different hand writing. She vehemently disputed the signature in P1 bill.
7. Ext.C1 series are the admitted signatures and handwriting of the opposite party Elsy Jose. The aforesaid handwritings and signatures were obtained by the Forum below by directing the opposite party to appear in person. The Forum below made comparison of the disputed signature and handwriting with theadmitted signature and handwriting in Ext.C1 series. Thereby, the Forum below acted as handwriting expert. The Forum below was not expected to take the role of a handwriting expert.
8. It is pertinent to note at this juncture that the opposite party filed a petition as I.A.632/06 for sending the disputed P1 bill for the opinion of hand writing expert. But instead of sending the disputed hand writing and signature with the admitted signatures and handwriting to an expert, the Forum itself has done the work of a handwriting expert. The aforesaid method and procedure adopted by the Forum below cannot be appreciated or encouraged.
9. The pleadings of the parties to the complaint in OP.261/03 would make it clear that the dispute is with respect to the issuance of P1 bill said to have been issued by the opposite party to the complainant for the alleged purchase of kanivellari seeds on 10.3.2002. The definite case of the opposite party is that she never issued P1 bill dated:10.3.2002. She vehemently contended that P1 bill is a fabricated document and the handwriting and signature in P1 are not that of the opposite party. In the nature of the contentions raised by the opposite party, it was incumbent upon the Forum below to send the disputed document for opinion of an expert. The Forum below could have obtained the assistance of an experienced expert in order to arrive on a just and proper finding and conclusion. It may be correct to say that the Court is the expert of experts. But as far as this field of handwriting expertise is concerned, the Forum below can be treated as a layman. It is true that the Forum below could have come to a just and proper conclusion with the assistance of an expert. So, the decision taken by the Forum below by making a comparative study of the disputed signature with the admitted signature cannot be accepted as such; especially in the light of the petition filed by the opposite party as I.A.632/06 for getting opinion of an expert. So, on this ground alone the impugned order passed by the Forum below can be set aside and the matter remanded to the Forum below for fresh disposal of the same on merits.
10. The Forum below has also relied on Ext.P4 copy of the certificate said to have been issued by the agricultural officer, Krishi Bhavan, Pallarimangalam and has come to the conclusion that the crops developed by the complainant by doing the agriculture operation were destroyed and the complainant suffered financial loss. It is to be noted that the original of P4 certificate was not available for the scrutiny of the Forum below. The concerned agricultural officer who said to have been issued P4 certificate has not been examined before the Forum below. It is the case of the complainant that the crops were high breed variety; but those facts could not be ascertained without any cogent evidence. So, the Forum below cannot be justified in arriving at the conclusion that the complainant suffered financial loss of Rs.60,000/-.
11. The complainant has not been examined in this case. The appellant/opposite party did not get an opportunity to cross-examine the complainant with respect to the averments in his affidavit. In effect, there was no sufficient material to make the opposite party liable to pay compensation of Rs.60,000/- to the complainant.
12. A perusal of the proceedings of the Forum below in the said OP.261/03 would make it clear that the Forum below failed to give opportunity to the opposite party to adduce evidence in support of her contentions. It is to be noted that Ext.P1 to P6 documents were marked on the side of the complainant. It was on 21.7.2005. Thereafter, the case was adjourned to 19.9.2005 for further evidence and steps. Thereafter the matter being adjourned upto 4.12.2006 and on that day specimen signatures and handwriting of the opposite party were taken for verification and the case was adjourned to 11.4.2007. On 11.4.2007, the court verified the aforesaid disputed signature and handwriting in P1 bill with that of the admitted signatures and handwriting in Ext.C1 series and the matter posted for orders. It could be seen that the opposite party was not given an opportunity to adduce evidence in support of her contentions. On 25.4.2007 the matter was again adjourned to 26.4.2007 for Orders and the impugned order was pronounced on 26.4.2007. Thus, the proceedings of the Forum below in OP.261/03 would make it abundantly clear that the appellant/opposite party was not given opportunity for adducing evidence before the Forum below. The aforesaid procedure adopted by the Forum below cannot be upheld. Thus, in all respects, the impugned order dated:26.4.2007 passed by CDRF, Thrissur in OP.261/03 is legally unsustainable and the same is liable to be setaside. Hence we do so.
In the result, the appeal is allowed. The impugned order dated:26.4.2007 of the CDRF, Thrissur in OP.261/03 is set aside and the matter is remanded to the Forum below for fresh disposal of the same on merits, after giving sufficient opportunity to the appellant/opposite party to adduce evidence in support of her contentions. It is made clear that the Forum below has to pass an order on I.A.632/06 which was filed for sending the disputed handwriting and signature to a handwriting expert to get an expert opinion. The respondent/complainant will also get further opportunity to adduce further evidence if he chooses to do so. The parties to this appeal are directed to suffer their respective costs.
Forum below is also directed to array the parties as ‘Complainant and Opposite Party’ instead of as ‘Complainant and Respondent. The parties are directed to appear before the Forum below on 29.10.2011.
M.V. VISWANATHAN : JUDICIAL MEMBER
VL.
