D.o.F:24/05/07<br /> D.o.O:05/08/08<br /> IN THE CONSUMER DISPUTES REDRESSAL FORUM KASARAGOD<br /> CC.NO.39/07 <br /> Dated this, the 5th day of August 2008 <br /> PRESENT;<br /> SRI.K.T.SIDHIQ : PRESIDENT<br /> SMT.P.RAMADEVI : MEMBER<br /> SMT.P.P.SHYMALADEVI : MEMBER<br /> <br /> Sibi Mathew,<br /> S/o T.c.Mathew,<br /> Subaida manzil, Guttu road, : complainant<br /> Adkathbail,kasaragod.<br /> <br /> <br /> <br /> Jayaprakash,<br /> Prop: Indian Home Appliances,<br /> Near C.T.M Petrol Pump, M.G.Road, : Opposite party<br /> Kasaragod. <br /> <br /> ORDER<br /> SRI.K.T.SIDHIQ : PRESIDENT <br /> <br /> The complaint of Sibi Mathew is that on 29/4/06 he purchased a Nokia 1100 J Black model mobile phone for Rs.2150/- from Indian Home Appliances, Kasaragod. It was offered one year warranty. The mobile became functionless within the warranty period and he entrusted the same for service to with opposite party on 28/3/07 and at that time Jayaprakash assured him that the same will be returned within 15 days. But the cell phone was not returned as stipulated even though he visited Indian Home Appliance several times. Finally on 18/5/07 when he asked for the mobile phone the shop owner behaved him indecently. Hence the complaint.<br /> 2. Notice to opposite party sent by post in the address as shown in the cause title and it was delivered. On the date fixed for appearance of opposite party, the manager of Indian Home Appliances filed apetition stating that their owner is on tour and hence unable to attend on that day and prayed for some time for presenting their case. The case then posted for appearance of opposite party to 31/5/08 on that day the counsel enterd appearance for Jayaprakash and sought time for version. On 16/6/08 Jayaprakash filed his version and contended that he is not the owner of Indian Home Appliance and he has no any connection with Indian Home Appliances and he has not sold any mobile phone to Sibi Mathew and there is no privity of contract with Sibi Mathew and Jayaprakash.<br /> <br /> 3. Sibi Mathew filed affidavit in support of his case and produced Exts.A1 to A4. He faced cross-examination by counsel for Jayaprakash. Jayaprakash filed affidavit in support of his contention.<br /> <br /> 4. Both sides argued and the documents perused carefully.<br /> <br /> 5. The point arise for consideration is that whether Jayaprakash is liable for the unfair trade practice as alleged by Sibi Mathew ?<br /> <br /> 6. In response to the version Sibi Mathew filed affidavit asserting that Jayaprakash is the person who sold the mobile phone and received consideration for the same and Jayaprakash is the person who obtained the mobile phone for repair and behaved him indecently and Jayaprakash has received the notice issued from the Forum in his name and the technical contentions are raised only to harass him. Sibi Mathew cross examined by counsel for Jayaprakash. In cross examination he stated that he entrusted the mobile phone for repair with Sunil who is a worker in the shop and it was Jayaprakash who behaved him in indecent manner and told that the mobile phone will not be returned back. <br /> <br /> 7. Ext.A1 is the delivery note dtd.28/3/07 issued from Indian Home Appliances to Sibi Mathew evidencing the receipt of Nokia Model 1100 for service. This receipt is seen issued by Sunil who according to Sibi Mathew is the worker of Indian Home Appliances. Ext.A2 is the Nokia users guide. Ext.A3 is the photocopy of the bill dtd.29/4/06 evidencing the purchase of Nokia 1100 for Rs.2150/- . Ext.A4 is a visiting card printed on both sides. On one side the address of Indian Home Appliances is printed. On the reverse side the address of one ‘Prakash Borewells’ is seen printed with a land line phone number 04994222919. During cross-examination Jayaprakash deposed that the said telephone number may be his or his wife’s name . Ext.A4 is also a pointer to indicate that Jayaprakash has attached with Indian Home Appliancs, otherwise he would not have printed his firm’s name Prakash Borewells on the reverse side of the visiting card of Indian Home Appliances. On a comparison of the handwriting of Ext.A2 and the petition filed before the Form seeking adjournment filed by the manager of Indian Home Appliances on 12/5/08 it is seen that both the handwritings belongs to one and same person. So had it been the contention of Jayaprakash that he is not the proprietor of Indian Home appliances then the owner of Indian Home appliances should not have sent his manager to represent and seek adjournment. So the argument of Sibi Mathew appears to be acceptable that Mr. Jayaprakash is the proprietor of Indian Home appliances.<br /> <br /> 8. The case of Mr.Jayaprakash is not believable for a many reasons. It is his case that he has no any connection with Indian Home appliances and at the same time the notice sent in his name to Indian Home appliances as proprietor is served to him. So in the affidavit filed he took a somersault and contented that he used to sit in Indian Home appliances as and when he came to Kasaragod. If that be so the manager of Indian Home Appliances would not have prayed time by filing a petition on 12/5/08 particularly when the notice is in the name of Jayaprakash who has no connection with the affairs of Indian Home appliances,. Further case of Jayaprakash is that it is one Krishnan Naik is the owner of the Indian Home Appliances. But no attempt is seen made by Jayapraksh to prove his contentions that Krishna Naik is the proprietor of the firm eventhough he contended that it is the duty of the complainant to prove the ownership. But the complainant in his affidavit asserted that it is Jayaprakash who sold him the mobile phone from Indian Home appliances and it is he who behaved him indecently when approached for collecting the mobile phone after service. Hence the burden to disprove the case of Sibi Mathew shifts to Jayaprakash. But he did not take any step to disprove it.<br /> <br /> 9. For the foregoing reasons we find that Sri.Jayaprakash has committed grave unfair trade practice and he is the person responsible for the losses and sufferings caused to Sibi Mathew.<br /> <br /> 10. Reliefs and costs:<br /> <br /> This case is one of the best examples for the grossest unfair trade practice committed by a trader against his customer. Sibi Mathew not only deprived after sales service from Indian Home appliances but lost his mobile phone subjected to indecent behaviour. Moreover when the dispute came before the Forum Shri Jayaprakash has made efforts to take all the possible defenses by engaging a senior counsel Shri.A.C.Sukumaran to escape from the liability like every trader is accustomed to do in our country whose father of nation wrote against ‘ commerce without morality’. That apart Jayaprakash even expressed the audacity to disown the ownership of the firm.<br /> At this juncture it is worth while to hearken to the wisdom of our father of nation Mahatma Gandhi. <br /> “ A customer is the most important visitor on our premises. He is not dependent on us. We are dependent on him. He is not an interruption in our work . He is the purpose of it. He is not an outsider on our business. He is a part of it. We are not doing him a favour by serving him. He is doing a favour by giving an opportunity to do so.”<br /> <br /> <br /> 11. Considering the facts and circumstances of this case we think this is a fit case to impose punitive cost on Jayaprakash. Siby Mathew not only deprived after sales service but lost his mobile set worth Rs.2150/- which entrusted for service with Indian Home appliance and subjected to indecent behaviour. Definitely Jayaprakash is liable to compensate for them adequately. As settled by our apex court it is not only recompensing the consumer his loss and damages but also to bring about the qualitative change in the attitude and behaviour of the opposite parties, that the compensation has to be awarded.<br /> <br /> <br /> In the result, the complaint is allowed and Jayaprakash is directed to refund the sum of Rs.2150/- being the purchase value of the mobile phone Nokia 1100 model along with a punitive compensation of Rs.10,000/- to Siby Mathew. Jayaprakash further directed to pay Rs.2000/- towards the cost of these proceedings . Time for compliance is 30 days from the date of receipt of copy of the order.<br /> <br /> MEMBER MEMBER PRESIDENT<br /> eva/ <br />