O R D E R Sri. Santhosh Kesavanath P., President Case of the petitioner filed on 6..6..2008 is as follows: Petitioner is employed in Gulf country. Petitioner while on leave when reached the house of his sister at Kothavara kara Vaikom. He purchased a country boat with vide licence No. 17 BK 2004-05. Petitioner purchased the country boat on the assurance by the opposite party that the country boat is defect free on 12..8..2007 petitioner had given Rs. 35,000/- as sale consideration to the opposite party and executed sale deed . After purchase petitioner brought the country boat near the house of the petitioners sister. Petitioner for the purpose of installing motor engine to the boat put two holes in the “villie” portion of the country boat. While doing so it is noticed that the country boat was in a ruined condition and is not useful for the purpose which is intended. As such for of -2- maintenance petitioner spend an amount of Rs. 8,200/-. Petitioner approached the opposite party and intimated him about the pity condition of the purchased boat. Upon hearing the pity condition opposite party assured the petitioner that he will refund the sale consideration amount including the amount spent by the petitioner for the maintenance of the country boat. Thus as per settlement on 24..8..2007 brother in law of the petitioner brought the country boat to the house of the opposite party. Petitioner on several times demanded refund of the sale consideration along with the maintenance cost of Rs. 8,200/-. But the opposite party had not cared to refund the amount so, hence the petition the petitioner claims for refund of Rs. 35,000/- and Rs. 12,200/- being the maintenance expenses and other expenses with 12% interest from 24..8..2007 till realization. Petitioner claims Rs. 5,000/- as compensation and cost of the proceedings. Opposite party entered appearance and filed version contenting that petition is not maintainable. According to the opposite party he never assured the opposite party for the supply of country boat having “2 tone kave weight” According to the opposite party one day petitioner’s brother in law one Vakkachan, along with one Salim came to the house of the opposite party and demanded purchase of the country boat owned by by the petitioner. Opposite party after inspection and on satisfaction purchased the country boat. Said Vakkachan, or the brother in law of the petitioner, never intimated the petitioner that the country boat was for the use of the petitioner. The sale deed was executed in favour of the petitioner as per the instruction of said Vakkachan. -3- Opposite party denied the allegation of the petitioner with regard to the maintenances conducted by the petitioner. Further opposite party contented that Vakkachan purchased the country boat for the purpose of constructing a house boat. Thus for installing the engine he conducted replacement of the wooden piece. Due to the induction of the holes in the country boat it become useless. According to the opposite party he is not liable for the negligent act of the petitioner’s brother in law and workmen’s under him. At the time of purchase the purchaser has fully satisfied with the country boat. Opposite party never agreed to the petitioner or else anybody that he is ready to refund the sale consideration. Opposite party denied about the averment of the petitioner in the petition that on 24..8..2007 opposite party directed the petitioner to brought the country boat in the petitioners canal . According to the petitioner there is no deficiency in service or unfair trade practice on the part of the petitioner. So, he prays for dismissal of the petition with their costs. Points for determinations are: i) Whether there is deficiency in service on the part of the opposite party? ii) Relief and costs? Evidence in this case consists of the deposition of PW1 to PW3 and DW1 and Ext. A1 to A3 document on the side of the petitioner. -4- Point No. 1 Crux of the case of the petitioner is that the country boat ,which is given by the opposite party, is suffered from the defects and is not useful for the purpose which is intended. Definite case of the petitioner is that, petitioner had gone to the house of the opposite party for the purchase of a country boat and after the purchase while doing some alteration it is found that the country boat is defective and this act of the opposite party amounts to deficiency in service. The power of attorney holder of the petitioner is examined as PW1. PW1 during cross examination deposed that ................................................................................. ........................................................................................................................... ......................................................................................................................... He further deposed that the petitioner for the purpose of installing yamaha engine conducted drilling in the country boat. PW1 further stated that the yamaha in normal cases can only be installed in new country boat. During the re examination PW1 further deposed that the defect of the country boat are caused not due to the drilling works but due to the ruined wood of the country boat. The copy of the petition given by brother in law of the petitioner to the Vaikom Police station is produced the said document is marked as Ext. A3. In Ext. A3 petitioner submitted that ........................................................................................................................................................................................................................................................................ -5- so admittedly as per the case of the petitioner the alleged defects of the country boat were caused during the alteration works done for installing the engine. PW2 is one Salim who is a business man deposed before the Forum that at the time of purchase of the country boat he along with PW1 and Vakkachan gone to the house of the petitioner . Further more after satisfaction of the conditions of the boat agreement was executed. PW2 deposed that the fact of ruined country boat is a hear say one and he had not seen the same. Petitioner has not adduced any expert evidence or had taken any commission to prove the condition of the country boat. The petitioner has no case that the opposite party assured the petitioner that the country boat of the opposite party is useful for using it by installing motor engine. According to the petitioner and the witness they purchased the country boat after inspecting and satisfying the same. Section 2 (i) (g) of the Consumer Protection Act 1986 defines ‘deficiency’ as any fault imperfection, or short coming, or inadequacy in the quality nature and manner of performance which is required to be maintained by or under any law for time being in force or has been undertaken to be perform by a person in pursuance of contract or otherwise in relation to any service . So, in order to prove ‘deficiency’ petitioner should prove that the opposite party had committed some fault which is required to be maintained by law or else the opposite party had performed something in violation in pursuance to a contract. Here the petitioner has no case that the opposite party assured the petitioner that the country boat is having such and such quality and is useful to be used by installing a motor -6- engine. Further more petitioner’s definite case and the deposition of PW1 to 3 shows that the petitioner purchased the country boat by inspecting and satisfying the same. Further more only while doing alteration and during maintenance some defects are noticed. Petitioner has not adduced any expert evidence to prove his case. In our view petitioner failed to prove deficiency in service on the part of the opposite party. So, point No. 1 is found accordingly. Point No. 2 In view of the finding in point No. 1, petition is dismissed. Considering the facts and circumstances of the case no cost is ordered. Dictated by me transcribed by the Confidential Assistant corrected by me and pronounced in the Open Forum on this the 27th day of September, 2010. Sri. Santhosh Kesavanath P. President Sd/- Smt. Bindhu M. Thomas, Member Sd/- Sri. K.N Radhakrishnan, Member Sd/- APPENDIX Witness PW1: Asokan PW2: C.K. Salim PW3: Sukumaran Dw1: K.J Joseph Document for the Petitioner Ext. A1: Power of Attorney executed by the petitioner in favour of PW1. Ext. A2: Sale Deed. Ext. A3: Copy of the petition given to the C.I of Police, Vaikom. By Order,
| | [HONORABLE Bindhu M Thomas] Member[HONORABLE Santhosh Kesava Nath P] PRESIDENT[HONORABLE K.N Radhakrishnan] Member | | 
