6.11.08<br /> Sri.K.Gopalan, President<br /> <br /> <br /> This is a complaint filed under section 12 of the consumer protection Act for an order directing the opposite parties to pay a sum of Rs.50, 000/- paid as advance with 12% interest and Rs.15, 000/- as compensation with cost of this proceedings.<br /> The case of the complainant in brief is as follow: the 3rd opposite party Praveen Kumar approached the complainant and introduced himself as the agent cum representative of `1st opposite party. 1st opposite party is manufacturing alternator, a power supply device. Believing the words of 3 rd opposite party complainant placed an order for 180 KVA alternators with 3rd opposite party. They have received a sum of Rs.50, 000/- from the complainant towards the advance of the alternator. It was agreed to deliver within 10 days. Opposite party did not deliver despite repeated demand. It was subsequently learnt from 2nd opposite party that the money was not remitted to 1st opposite party. So 1st opposite party withheld the despatching. At last complainant demanded repayment of advance amount. They did not comply the demand. He issued a lawyer notice on 17.9.2003. It was replied on 29.10.2003 saying with lame excuses. 1st opposite party tells that it is the fault of 2nd opposite party and 2nd opposite party access 1st opposite party in that regard. From their conduct it is very well clear that both are colluding in defrauding the complainant. Complainant has no other go except approaching this Forum.<br /> After receiving notice from the Forum 1st opposite party appeared and filed version. 2nd and 3rd opposite parties did not appear and subsequently declared as exparte.<br /> The contentions of 1st opposite party in brief are as follows: The complainant is not a consumer. He has neither purchased any goods nor hired the services of 1st opposite party for consideration. So the complaint is not maintainable as against 1st opposite party. The 180 KVA A/C Generator sought to be purchased was for commercial purposes. Complaint is not maintainable on this reason also. This opposite party carries on business at Bangalore, Karnataka, which is outside the territorial Jurisdiction of this Forum. The 2nd and 3rd opposite parties are not the agent of 1st opposite party. Hence the complaint is not maintainable as against the 1st opposite party and is liable to be dismissed. The complainant has never placed an order to the 1st opposite party and not paid any payment to the 1st opposite party. 1st opposite party is not a necessary party. The 3rd opposite party, Mr. Praveen Kumar is the representative of 2nd opposite party, who is the customer of 1st opposite party for the last many years. Both 2nd and 3rd opposite parties are not the agents of 1st opposite party. 2nd opposite party with its representative 3rd opposite party has been purchasing AC generator from 1st opposite party on regular basis. The 2nd opposite party was placing orders with certain portion as advance payment or even without advance payment to the 1st opposite party. Do this continuous orders and business relations, the 1st opposite party was not insisting on any advance payment, in case the 2nd opposite party do not pay such advance along with orders. In this case even, the order for 180 KVA AC Generator was placed by 2nd opposite party, represented by the 3rd opposite party Mr.Praveenkumar and not Mr.Ummerkutty. Further, it is 2nd opposite party who was sent an advance of Rs.50, 000/- vide DD.No.391432 dt.17.5.2003 in favour of 1st opposite party. From the counter of order placed by opposite party on 19.5.2003 it cannot say who is the end customer. The order does not say that the end customer is the complainant or 3rd customer through 2nd opposite party sends advance. The 2nd opposite party thereafter cancelled the order by a letter-dated 29.5.2003 for the reason that “the party is not paying the balance payment”. Even the said letter does not refer the complainant. On 8.6.2003, the complainant sent a fax mentioning that on being come to know that the 3rd opposite party is not a reliable person he was constrained to cancel the order and requested the 1st opposite party to refund Rs.50, 000/-. But he did not communicate the alleged transaction. However as a professional manufacturer took up the matter and discussed with 3rd opposite party and he assured that the problem will be solved. On 17.9.2003 complainant sent a legal notice. On receiving the said notice, the 1st opposite party contacted the 3rd opposite party and had a meeting on 28.10.2003. As per the minutes of the meeting 3rd opposite party agreed to repay the amount to complainant, and with that; closed the issue there. The transaction taken place between the 2nd and 3rd opposite party. Hence complainant can claims against them only.<br /> Even now 1st opposite party is ready to dispatch the said Generator after getting full amount either from 2nd opposite party or from the complainant as the advance of Rs.50, 000/- (DD.No.3914322 dt.17.5.2003) is adjusted with the subsequent transaction by2nds opposite party represented by 3rd opposite party. <br /> On the above pleadings the following issues have been taken up for consideration:<br /> 1. Whether the complainant is a consumer?<br /> 2. Whether there is any deficiency on the part of opposite parties?<br /> 3. Whether the complainant is entitled for the remedy as prayed in the complaint?<br /> 4. Relief and cost.<br /> The evidence consists of documentary evidences Ext.A1 to A5 on the part of complainant and Exts.B1 to B5 on the part of opposite parties.<br /> Issue No.1<br /> Consumer Protection Act defined consumer under section 2(1)_d (i) Consumer means any person who<br /> (I) Buys any goods for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid and partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not includes a person who obtains such goods for resale or for any commercial purpose; or<br /> (ii) Hires or avails or any services for a consideration which has been paid or promised… The contention of 1st opposite party is that the complainant is not a consumer as he has neither purchased any goods nor hired any service of the 1st opposite party for consideration. Ext. A1 is the copy of the DD. The Demand Draft for Rs.50, 000/- was taken by complainant in favour of 1st opposite party as the advance amount. Complainant stated that he has placed an order for 180KVA Generator through the 3rd opposite party. 1st opposite party is the manufacturer of the 180 KLA A/C Generators (alternator). The specific case of the complainant is that he has booked Generator by giving advance. A Demand Draft for Rs.50, 000/- is taken in favour of the 1st opposite party, the manufacturer of the Generator. This is a clear evidences that complainant is a consumer who paid part payment for the purpose of purchasing generator. 1sty opposite party though explained so much of other things, could not detail the purpose for which the Demand Draft was taken for Rs.50, 000/- in favour of 1st opposite party. What else, other than purchasing Generator is the purpose for which the Demand Draft was taken should have been explained by the 1st opposite party. As per the available evidence on record it can be assumed that complainant’s money Rs.50, 000/- is still with the 1st opposite party. There is no need to explain who the purchase of the Demand Draft is. The very fact of the Demand Draft reads “purchased by: Ummerkutty”. Sri.Ummerkutty is the complainant; Thus there is no doubt complainant is a consumer, who paid part payment to purchase the Generator and there is no evidence to show that Generator is intended to purchase for commercial purpose, though the 1st opposite party raised such contention. Together with other facts Ext.A1 stands as a good evidence to establish that the complainant is a consumer and the complaint is maintainable. Hence the 1st issue is found in favour of complainant.<br /> Issue Nos.2 to 4<br /> The case of the complainant is that the 3rd opposite party approached the complainant and introduced himself as the agent cum representative of 1st opposite party, the manufacturer of Generator. 3rd opposite party assured the complainant to supply the product and he placed an order. Complainant stated in his affidavit that he has given an amount of Rs.50, 000/- to 3rd opposite party. 1st opposite party has admitted that 2nd opposite party represented by 3rd opposite party placed an order for 180 KVA A/C and 2nd opposite party sent an advance of Rs.50, 000/-. His admission proves that the D.D.No.391432 dt.17.5.2003 drawn in favour of 1st opposite party for Rs.50, 000/- was received by the 1st opposite party. Ext.A1 is the copy of the Demand Draft. It can be seen from the fact of the DD Itself that complainant was the purchaser of the D.D. Hence the contention of 1st opposite party that the contents of the order dt.19.5.2003 cannot reveal who the end customer is meaningless since the DD bears the name of the complainant. The mode of transaction undoubtedly proves that Rs.50, 000/- of complainant reached in the hands of 1st opposite party. Complainant sent a letter Ext.A2 requesting to refund the amount on 8.6.2003. 1st opposite party discussed the matter with 2nd opposite party and they came to an agreement and opposite party informed the complainant that 2nd opposite party has agreed to repay the advance taken from the complainant. It is also important to note that they have taken this decision in a meeting held on 28.10.2003. Ext.A3 is the minutes of the meeting. It is a decision that they have taken jointly. If the minutes of such meetings are recorded, that is an indication that 1st and 2nd opposite parties has certain legal relationship with regard to the business transaction. Ext.B4 and A3 are same. It is the legal relationship that enforced 2nd opposite party to agree to pay the amount to complainant especially when the DD is taken in the name of 1st opposite party. What so ever, Ext.B3 legal notice sent to 1st opposite party on 17.9.2003 reveals that the entire facts are placed before 1st opposite party by the complainant? At least thereafter the 1st opposite party cannot pretend ignorance of these facts. Ext.B1 order is seen placed on 19.5.2003 and Ext.B2 cancellation is done on 29.5.2003. Fax message sent by complainant on 7.6.2003 canceling the order and demanding the refund of advance amount was not responded. Hence the close analysis of the facts and evidences quite clearly reveals that 1sat opposite party is fully aware of the transaction and 2nd opposite party and 3rd opposite party acts in accordance with the direction of 1st opposite party. Hence we are of opinion that there is deficiency in service on the part of all the opposite parties. Thus the complainant is entitled to get refund the amount from the opposite parties. The complainant is also entitled for compensation for an amount of Rs.5000/- together with a cost of Rs.1000/-. The opposite parties are liable to refund the amount together with cost and compensation. The issues 2 to 4 are found in favour of complainant. Order passed accordingly.<br /> In the result, the complaint is allowed directing the opposite parties to refund Rs.50, 000/- (Rupees Fifty thousand only) paid as advance with an interest @ 7% from the date of order till date of realisation of the amount together with a compensation of Rs.5000/- (Rupees Five thousand only) and Rs.1000/- (Rupees One thousand only) as cost of this proceedings to the complainant within one month from the date of receipt of this order, failing which the complainant is allowed to execute the order against the opposite parties under the provisions of the consumer protection Act.<br /> <br /> Sd/ Sd/ Sd/-<br /> President Member Member<br /> APPENDIX <br /> Exhibits for the complainant<br /> A1.Copy of the Demand Draft dt.17.5.03<br /> A2.Copy of the fax message dt.8.6.0\3<br /> A3.Copy of the minute’s dt.28.10.03<br /> A4. Letter dt.29.10.03 sent by OP 1<br /> A5.Paper publication<br /> <br /> Exhibits for the opposite parties<br /> <br /> B1. Copy of the letter dt.19.3.03 sent by OP OP2 to OP1<br /> B2. Copy of the letter dt.29.5.03 sent by OP OP2 to OP1<br /> B3. Copy of the lawyer notice dt.17.9.03 sent to OP.<br /> B4. Copy of the minutes of meeting of Ops dt.29.10.0\3,<br /> B5. Copy of the reply notice dt.29.10.03 sent to complainant.<br /> <br /> Witness examined for either side<br /> Nil<br /> /forwarded by order/<br /> <br /> Senior Superintendent<br /> <br /> Consumer Disputes Redressal Forum, Kannur<br /> <br /> <br /> Despatched on<br /> Through Post/hand<br />