D.O.F. 08.11.2005 D.O.O. 29.01.2011 IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR Present: Sri.K.Gopalan : President Smt. K.P.Preethakumari: Member Smt.M.D.Jessy : Member Dated this the 29th day of January, 2011. C.C.No.284/2005 1. K.K. Gopi, S/o. Kunhukuttan, Kalayatholil Veedu, : Complainants Thirikkal, Naduvil P.O.. 2. Ponnamma, W/o. K.K. Gopi, Kalayatholil Veedu, Thirikkal, Naduvil P.O.. Kannur District. (Rep. by T. Manoj kumar) 1. Mariyamma John, W/o. Joy @ Sebastian, Kavunkal Veedu, Uthooru, Naduvil. : Opposite parties 2. Joy @ Sebastian, Kavunkal Veedu, Uthooru, Naduvil. (Rep. by Adv. C.P. Rajeevan) 3. Mariyamma, M/o. Joy @ Sebastian, Uthooru, Naduvil. O R D E R Sri. Smt. K.P. Preethakumari, Member. This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite parties to refund the consideration amount of ` 52,500 with interest ` 1173 as cost incurred by the complainant, ` 25,000 as compensation along with cost of the proceedings. The case of the complainant in brief is as follows. On 25.07.2005, the complainant and the opposite parties entered into an agreement by allowing the complainant for slaughter tapping of 97 rubber trees and cut and remove them from the property which is owned by opposite party 1 and is managing by opposite party 2 by fixing a consideration of ` 1,12,500. At the time of entering into the agreement the opposite parties made the complainant to believe that he would get 7 rubber sheets for single patta and 14 sheets from double patta. Out of the consideration the opposite parties received ` 52,500 on three occasions. The complainant started tapping on 09.08.2005 after fixing rainguard. The complainant started tapping and obtained only below one Kilo rubber. So no considerable amount was obtained by him as promised by the opposite parties. The complainant has availed loan from Credit Union, Kudumbasree etc by pledging his document and gold ornaments. So he was not in a position even to pay the interest of the above amount. So he had stopped the tapping on 08.10.2005. So it is sure that the opposite parties cheated the complainant and this act of the opposite parties caused the complainant both mental as well as physical agony and financial loss. The complainant had incurred an expense of ` 861 for fixing rainguard and lost 36 days job also. So the complainant has taken steps to cancel the lease agreement and to obtain compensation by giving complaints before the Consumer Cell, Naduvil Panchayath. But all are in vein. Later on the complaint amended as per the petition filed by the complainant. Accordingly the complainant contended that the opposite parties made to believe the complainant that he will obtained much benefit from the rubber trees and hence he had entered into the agreement. But actually the rubber trees are useless and unworthy. So the act of the opposite parties were amounts to unfair trade practice and deficiency in service and hence the complainant is entitled to get ` 52,500 along with 12% interest from the date of complaint till realization with cost and compensation. In pursuance to the notice issued by the Forum all opposite parties appeared and filed their version. The opposite parties contended that the complainant is not a consumer and hence the Forum has no jurisdiction to try the case. The name of the opposite party 3 is Thressiamma and that shown as Mariyamma is not correct and she is residing along with her husband in Puravayal. The opposite parties admits that they have given 97 rubber trees for slaughter tapping to the complainant for a consideration of ` 1,12,500. But the opposite party denied the averment that at the time of entering into the agreement the opposite parties made the complainant to believe that he would get 7 rubber sheets for single patta and 14 sheets from double patta. The averment that the complainant had entered into the agreement through an agent P.P. Jose is also not correct. The opposite parties have never made any assurance regarding the number of rubber sheets. The opposite parties admits that the complainant has entered into an agreement with him and given ` 52,500 as first installment. The opposite party further admits that the complainant had started tapping and contended that usually the quantity of latex will be increased during the tapping which was done after an interval. It is not correct to say that the complainant has obtained below one Kilo rubber sheet. The complainant has entered into lease agreement after visiting the rubber plantation. It is also not correct to say that the complainant had stopped tapping on 08.10.2005, due to non-availability of sufficient latex. The opposite party has never done any act which caused the complainant physical, mental and financial difficulties. The opposite party further denied the averment that the complainant has received only ` 2,286 from the slaughter tapping. The opposite party has not liable to pay any amount to the complainant. The opposite party further contended that the complainant has to give ` 30,000 to the opposite party before 30.08.2006 and in order to avoid the liability the complainant had added some more conditions in the agreement without knowledge and consent of opposite party. The complainant had entered into the agreement only for making profit and if he had incurred any loss which is due to his own act, against the terms and conditions of agreement, for which he alone is liable. At the time of agreement the price of rubber per Kg is ` 40 and later on it is increased considerably upto ` 110. The complainant has not collected the latex from the rubber through proper tapping and hence the opposite party has incurred loss of income from the rubber and hence the complaint is liable to be dismissed. Upon the above contentions the following issues have been raised for consideration. 1. Whether the complainant is a consumer? 2. Whether there is any deficiency of service on the part of opposite parties? 3. Whether the complainant is entitled to any relief? 4. Relief and cost. The evidence in the above case consists of the oral testimony of PW1, PW2, DW1 and Ext.A1, A2, B1 to B4 and Ext.X1. Issue No. 1 The opposite parties contended that the complaint is not maintainable before the Forum, since the complainant is not a consumer. The complaint is filed for compensation for unfair trade practice and deficiency in service of opposite parties which was said to be arised from a lease agreement which was executed by opposite party 2 and the complainant for slaughter tapping of rubber trees in the properties which belongs to opposite party 1 and opposite party 2 and for which the complainant has paid ` 52,500 towards consideration. But according to the complainant, the opposite party 2 made him believe that he will get good yield from the rubber trees and hence he had entered into agreement. But from the initial stage of tapping itself he realized that there is no possibility of getting much latex from the old rubber trees and hence the opposite parties made false statements in order to execute the lease agreement. The complainant has proved that he had executed the Ext.A1 lease agreement with opposite party by examining the witness Pachampallil P.P. Joseph as PW2. In that agreement it was specifically written that 7 rubber sheets will be obtained from single patta and 14 sheets will be obtained from double patta. In short the yielding from the rubber sheets are very specifically mentioned. But in experience the complainant has not received that much of latex from the rubber as stated . So the complainant issued a notice to opposite party by resigning from the lease agreement on 31.01.2006. So it is clear that the complainant had executed the agreement by believing the words of the opposite party that he will get good yield from the rubber trees. Moreover rubber trees are still in the rubber plot. So it is clear that the lease agreement is void abinitio and hence has no liability to act as per the terms and conditions of the agreement and hence has filed this complaint for compensation for the mental agony and financial difficulties suffered by him which was caused to suffer him due to a void agreement. The complaint is filed not for specific performance of any of the terms and conditions of lease agreement, but for compensation for unfair trade practice of opposite party. The complainant also admits that the opposite party has filed a suit before the Civil Court. In Uday R.Manenkar Vs. Vasant T. Karode the National Commission held that even if a suit is filed for specific performance, a complainant is maintainable before the Forum which was reported in 2004 CPJ 99 NC. Moreover in Synco Textiles Pvt. Ltd. Vs. Economic Transport Organisation the National Commission held that every transaction may be technically a breach of contract. But merely of that reasons the consumer cannot be denied the benefit of protection conferred by the Act. It was reported in 1991(1)CPJ 40 N.C. So we hold the view that the complainant is a consumer and the Forum has ample jurisdiction to try the case and hence issue No.1 is found in favour of the complainant. So the lease agreement is void abinitio and hence he has no liability to act as per the terms and conditions of the agreement and hence he has filed this complaint for compensation for unfair trade practice and deficiency of service. So according to the complainant the lease agreement is void and hence the complaint. It is seen that the complaint is filed for compensation for unfair trade practice and deficiency of service and not for specific performance of any of the terms and conditions of the lease agreements and hence we hold the view that the complainant is a consumer and the Forum has ample jurisdiction to try the case and hence issue No.1 is found in favour of the complainant. Issues 2 to 4 The further case of the complainant is that he is entitled to get refund the consideration amount given to the opposite parties along with 12% interest with compensation and cost. Since the complainant happened to execute the agreement due to the misrepresentation given by the opposite party 2 that he will obtained 7 sheets rubber from single patta and 14 sheets from double patta and in order to prove his case he had examined PW1 and PW2 and produced documents such as original lease agreement dated 25.07.2005 and certified copy of the deposition given before Munsiff Court, Taliparamba in O.S.190/07 and OS 263/07. In order to disprove the case the opposite party also examined as DW1 and documents such as photocopy of agreement, dated 25.07.2005, lawyer notice, reply notice, certified copy of the judgment of Munsiff Court, Taliparamba and commission report etc were produced. The opposite parties contended that he had never made any assurance to the complainant to the effect that the complainant will get 7 sheets rubber from single patta and 14 sheets rubber from double patta and this can be cleared by verifying the Ext.A1 document with that of Ext.B1. The Ext.B1 is the photocopy of lease agreement dated 25.07.2005 and in that document it is very clearly seen that it has lacking the statement ie “IqSmsX FÃm ac-§-fn \n¶pT {]Xn-Zn-\T tFgpT U_nÄ ]«¡v ]Xn-\m-epT joäp In«p-sa¶v H¶mT \¼-dp-Im-c³ Dd¸p \ÂIp-¶p.” But this statement is included in the A1 agreement. According to opposite party this statement was written in the agreement only for the purpose of the case. But according to the complainant two lease agreement was executed between the parties. But while perusing through the Ext.A1 document it is seen that the above statement is seen written just below, after the writing of “Xmsg ]d-bp¶ km£n-IÄ apJ-Zm-hn t]sc-gpXn H¸n-«p.” But the signature is seen far below this statement. But the complainant contended that the agreement is written by a person not familiar with the law and hence it happened. But any how it is admitted by the opposite parties that they have entered into the agreement with the complainant and received ` 52,500 towards the consideration amount and also admits that the complainant had withdrawn from the agreement. Moreover the agreement is for slaughter tapping and for cut and remove the rubber trees. It is also admitted that the rubber trees are not cut and removed by the complainant. It is also pertinent to note that the complainant has filed the complaint on 08.11.2005 and there after the opposite parties has filed two suits against the complainant before the Munsiff Court, Taliparamba. Above all the PW2 is the witness in the Ext.A1 agreement. He admitted in the deposition before the Forum that the complainant has entered into a contract with opposite party 2 through him. He deposed that “Hä ]«¡v 7 joäpT U_nÄ ]«¡v 14 joäpT In«p-sa¶v tPmbn ]d-ªp. AXnsâ ASn-Øm-\-¯n-emWv agreement Dm-¡n-b-Xv. Agreement \ne-hn h¶ tijT ]m Ipd-hm-sW¶v tKm]n ]d-ªp.” Moreover he further deposed that “2 agreement- Rm³ H¸n-«n-«p-v. 2 AÊ agreement Dm-bn-cp-¶p. Agreement H¸n-Sp-t¼mÄ agreement ]c-kv]-cT ssIam-dn-bn-cp-¶p.” So from the above deposition and by seeing the A1 agreement itself it is seen that the portion which is marked as Ext.A1(a) is written at the time of executing A1 itself. Moreover the opposite party has a case that there will be difference of latex due to the variation of the climate. This contention itself shows that the opposite parties admits themselves that the latex obtained by the complainant is less than that promised by the opposite parties. So we are of the opinion that there is unfair trade practice on the part of opposite party 1 and 2 and for which they are liable to compensate the complainant by refunding ` 52,500 to the complainant along with ` 5,000 as compensation with ` 1,500 as cost of the proceedings to the complainant. The opposite party 3 is exonerated from liability since it is found that she has no role with the subject matter and the order passed accordingly. In the result the complaint is allowed directing the opposite party 1 and 2 to refund ` 52,500 (Rupees Fifty two thousand five hundred only) along with ` 5,000 (Rupees Five thousand only) as compensation with ` 1,500 (Rupees One thousand five hundred only) as cost of the proceedings within one month from the date of receipt of this order. Otherwise the complainant is at liberty to execute the order as per the provisions of Consumer Protection Act. Sd/- Sd/- President Member Dissenting Order rendered by Smt. M.D Jessy, Member : In this case from the pleadings and evidence I am of the view that the findings arrived by my learned colleagues on Issue No.1 and 2 are upon a wrong conception of law and I strongly disagree with the same. I am not repeating the facts of the case here again. From the pleadings I cannot found any sort of unfair trade practice adopted or deficiency of service on the part of opposite party herein. It is a case were the complainant entered in a contract where by the complainant obtained license to slaughter tap the rubber trees and then to cut and remove the same which stands in the property of the opposite parties by fixing consideration. If at all any dispute aroused subsequently regarding the terms of contract it is purely a civil dispute only. The complainant entered in the contract believing that it would be profitable to him. But as per the nature of transaction involved herein there may be profit or loss which depends on many circumstances. No body can assure that through out the season such and such quantity of latex will be obtained from tapping a plot of rubber trees. There may be changes in market price of the rubber sheets that no one can predict. When this sort of agreement is entered, there is always a risk factor and buyer should be ‘beware’ of the same. Once it is found that the deal is not profitable he can not straight away rescind that contract and ask for return of the advance consideration. By the non performance of the contract the other party is also may sustain damage. Here the parties have challenged the dispute in a civil court of law and after evaluation of the evidence it was found that the complainant himself violated the terms of contract. It has been well established that disputes relating to civil matter and breach of contracts are not consumer disputes as such the complainant will not come under the purview of a consumer as defined in the act. So I cannot find any sort of unfair trade practice or deficiency on the part of opposite party in this case. As such the complaint is not maintainable before this forum and only liable to be dismissed. Sd/- Member The complaint is allowed as per the majority opinion and directed the opposite party No.1 & 2 to refund ` 52,000 (Rupees Fifty two thousand only) along with ` 5,000 (Rupees Five thousand only) as compensation with ` 1,500 (Rupees One thousand five hundred only) as cost of this proceedings within one month from the date of receipt of this order, failing which the complainant is at liberty to execute the order in accordance with the provisions of Consumer Protection Act. Sd/- President APPENDIX Exhibits for the Complainant A1. Original Agreement. A2. Evidence adduced by C.M. Sebastian in O.S.Nos.196/07 & 263/07. Exhibits for the opposite party B1. Copy of Agreement B2. Lawyer Notice. B3. Reply notice dated 08.02.2006. B4. Judgement of original Suit Nos.196/07 & 263/07 Exhibits for the Court X1. Commission Report Witness examined for the complainant PW1. 1st Complainant. PW2. Joseph Pazhampallil Witness examined for the opposite party DW1. Sebastian K.A. /forwarded by order/ SENIOR SUPERINTENDENT
| | [HONORABLE PREETHAKUMARI.K.P] Member[HONORABLE MR. GOPALAN.K] PRESIDENT[HONORABLE JESSY.M.D] Member | | 
