D.O.F.17.10.08

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  3^rd   day of May  2010

CC.226/2008

C.Ummer,

Cheriyath House,

Valiyannur Amsom Desom,                               Complainant

P.O.Varam.

Moideen,

S/o.Muhammed Haneefa,

Kurunchani House,

P.O.Manappadam,                                           Opposite party

Palakkad Dist.

(Rep. by Adv.M.C.Remeshan)

O R D E R

Smt.M.D.Jessy, Member

            This is a complaint filed under sectin12 of consumer protection act for an order directing the opposite party to reimburse Rs.25, 000/- to the complainant.

            The material averments of the complaint is as follows that the complainant and opposite party are friends and the opposite party engaged in the business of repairing electronics goods at Varam. He is also having the business of buying and selling used electronic goods. In the month of May 2007 the opposite party offered a second hand T.V set for sale to the complainant for a value of Rs.10,000/-. There after the complainant along with his friend gone to the shop of opposite party at Varam for the purchase of the TV set. The set was inspected and while functioning the TV it was found that the picture is not clear and the opposite party agreed to clear the defect with in two or three days. Believing the words of the opposite party the complainant on the same day paid

 Rs.10, 000/- being the purchase price of the TV and the opposite party issued a receipt for the same. But there after the opposite party evaded from handing over the TV set to the complainant and he delayed the matter stating excuses. Meanwhile the opposite party closed his shop at Varam and left the place. The complainant submitted that the opposite party adopted unfair trade practice and hence he is liable to refund Rs.10, 000/- to the complainant. Moreover, the complainant is also entitled to get compensation of Rs.15, 000/- from the opposite party. Hence the above complaint.

            On receiving the complaint notice issued to the opposite party. The opposite party appeared and filed version. The material averments contained in the version is as follows: The complaint is factually and legally not maintainable. The complainant is not a consumer as defined under the consumer protection act. The above complaint is not maintainable before the consumer Disputes redressal Forum and this Forum is having no jurisdiction to adjudicate the above complaint. The opposite party denied the fact that he was conducted an electronic goods repairing shop at Varam. He admitted that he was doing the work repairing electronics goods from the houses and he left the place in the month of December 2005 and there after he has not visited Kannur hence the averment that the opposite party sold a TV set to the complainant in the month of May 2007 and received an amount of Rs.10, 000/- on 21.5.07 is absolutely false. The opposite party never engaged in the business of buying and selling second hand electronic goods. The opposite party never sold a second hand TV set to the complainant nor received Rs.10, 000/- from the complainant. The receipt produced alleged to b e issued by the opposite party which is produced along with he complaint is fake and fabricated one. The fact that even with out handing over the TV set the complainant paid Rs.10,000/- to the opposite party is quite unbelievable and against common pastence . It is made out from the complainant itself that no sale was affected as such the complaint is not maintainable before this Forum. If at all there was any transaction it will come only under the purview of sale of goods Act.  During the period 21.5.07 the complainant had not pay Rs.10, 000/- for the purchase of second hand TV set. he can very well  purchase a new one even for a lesser amount. AS such there is no merit in the contention of the complaint. The demand of Rs.15, 000/- as compensation is also indigestible. No prior notice also issued to the opposite party before filing this complaint before this Forum that too shows lack of confidence on the part of complainant. The complainant was a moneylender and the opposite party happened to borrow Rs.3000/- from the complainant   and even though the said borrowed amount was returned these existed problem related to excess interest as such this complaint is filed only on experimental measures to harass the opposite party. Hence the complaint is liable to be dismissed.     

On the above pleadings the following issues are framed.

1. Whether the complainant is a consumer and the complaint is maintainable?

2. Whether the complainant is entitled to get the refund of Rs.10, 000/- from the opposite party?

3. Relief and cost?

Issue Nos.1 to 3

            The evidence consists of the solitary testimony of the complainant and Ext.A1 marked. Since the opposite party raised objection regarding the maintainability of the complaint and status of the complainant as a consumer the issues numbers 1 and 2 are joi9nlty taken up for consideration. The material allegation of the complaint is that the complainant paid Rs.10, 000/- for the purchase of a second hand RTV set from the opposite party on21.5.07. At the time of paying the amount opposite party agreed that the TV set will be delivered to the complainant after rectifying its defect within 2 or 3 days. There after the opposite party neither delivered the TV set nor returned the amount received by hi. From this averment it is clear that there is only an offer of the sale of a second hand TV set by the opposite party and no sale was actually affected. The case of the complainant is quite unbelievable and untrustworthy on many reasons firstly the complainant agreed to purchase a second hand  Videocon TV set by paying Rs.10,000/- is against normal prudence because the complainant can get a first hand 21” Videocon TV by paying less than that amount at that time. Secondly even after finding that the second hand TV set offered by the opposite party is not working properly the complainant paid Rs.10, 000/- to opposite party for the purchase of the same and that too the set has not been handed over to the complainant. The alleged Ext.A1 receipt is also lacks                  genuiness. Thirdly even after paying Rs.10,000/- to the opposite party on 21.5.07 and the opposite party agreed to handover the set within two or three days the complainant waited for the same for one and half years without making any demand and nor even sending a lawyer notice. He straight away approached before this Forum alleging deficiency of service on the part of opposite party. Ext.A1 receipt does not even contain the specification of the TV set which the complaint proposed to purchase from the opposite party.

            From the above doubtful circumstances it is clear that there is no buyer and seller relationship between the complainant and opposite party and it is only a money lending transaction. Since no sale was actually effected the complainant will not come under the purview of the consumer as defined under section 2(1) (d) of the act if at all the complainant had paid any amount to the opposite party for the purchase of the TV set he can very well get back the amount by approaching before the proper civil court. Hence the complaint is not entitled to get any relief as prayed. The issues No. 1 to 3 answered accordingly.

            In the result, the complaint is dismissed.

                                                Sd/-            Sd/-                  Sd/-

President          Member           Member

            APPENDIX

Exhibits for the complainant

A1.Receipt issued by OP

Exhibits for the opposite party: Nil

Witness examined for the either side: Nil

                                                /forwarded by order/

                                                Senior Superintendent

Consumer Disputes Redressal Forum, Kannur