IN  THE  CONSUMER  DISPUTES  REDRESSAL  FORUM,  KOLLAM

            Dated this the     7^th   day of June 2018

Present: -    Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President

        Sri. M.Praveen Kumar,Bsc, LL.B ,Member

       CC.No.362/2005

ORDER

1.Rajasekhara Kurup                                 :         Complainants

S/o Narayana Pillai

Eanisseril Veedu, Kaithakuzhi Cherry,

Adichanalloor village, Kollam

2. Saratchandra Kumar

S/o Rajasekhara Kurup

Eanisseril Veedu, Kaithakuzhi Cherry,

Adichanalloor village, Kollam

[By Adv.S.Riyas]

V/s

1. Mr.baburaj                                        :         Opposite parties

          Proprietor, M/s Venad Computer shoppe

        Housing Board Colony, Chinnakkada,

        Near Q.S Road, Kollam

        [R.Sethunathan Pillai]

2. Manager

         Kerala State Financial Enterprises ltd.

        Main Branch, Chinnakada, Kollam

        [By Adv.A.Shanavaskhan]

Additional Opposite party 3

Sudeep Kumar    

S/o Sasidharan Pillai

Kala Nivas, Perinad, Anchalummood P.O

Kollam

E.M.MUHAMMED IBRAHIM , President

This  is a consumer complaint filed under Section 12(1) of the Consumer Protection Act seeking to direct the 1^st  opposite party to return the excess price and also the value of item not supplied with future interest and costs. 

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The averments in the complaint in short are as follows.

          (2). The 1^st opposite party advertised in Malayala Manorama  daily dated 04.08.2003 for the sale of computer peripherals with 100% finance arranged at low rate of interest and easy documentation.  In response to the above advertisement the 2^nd complainant intended to purchase Scanner-2400 (HP brand), Colour printer Jet-5160(HP brand), laser printer (HP brand) video capturing card(Studio Deluxe Brand of Pinnacle Company) and he placed orders with the 1^st opposite party.  The 2^nd opposite party which is a fully owned Kerala State Company has arranged finance for the purchase of above articles.  The representative of the 1^st opposite party took the 2^nd complainant to the 2^nd opposite party after realizing Rs.1,000/-  towards service charge.  The 1^st opposite party agreed to supply the above articles for a total price of Rs.48,700/.

          (3). The 2^nd complainant agreed to the suggestions put forward by the 1^st opposite party that as the 2^nd complainant is a Government servant the articles shall be booked by and delivered to the 1^st complainant, who is the father of the 2^nd complainant.  The  1^st  opposite  party  also  insisted  that apart from the  2^nd complainant another government servant should also stand as sureties to the loan transaction.   Accordingly  on 15.09.2013 the  1^st complainant applied for a

loan of Rs.54,700/- from the 2^nd opposite party under the Consumer/vehicle loan scheme . The 1^st complainant on 22.09.2003 has also executed necessary documents for an amount of Rs.54,700/- an inflated amount as suggested by the 1^st opposite party to cover the 10% margin money also which ought to have been made  to avail the loan for consumer goods.  The 2^nd opposite party thus offered himself as a party to the above clandestine arrangement to help and promote the business of the 1^st opposite party who had offered to arrange 100%

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finance for the deal.  Thereafter in the presence of the 2^nd opposite party, the 1^st opposite party insisted on putting signature of the 1^st complainant on a blank delivery note on the ground  that the same is  also to be so executed for enabling the 2^nd  opposite party to sanction the loan.  The loan amount under loan No.CVL-392/03 was disbursed by the 2^nd opposite party on 25.09.2003 and received directly by the 1^st opposite party.  It is subsequently revealed that on the production of the above said delivery note filled up to the convenience of the 1^st opposite party, the amount of Rs.48,700/- was so collected by him.  Thereafter on 10.10.2003 the 1^st opposite party chosen to supply against repeated requests, only 3 items out of the  above 4 items barring the Video Capturing Card.  The sale bill was not issued to the complainants despite repeated demands.  Instead when compelled, the 1^st opposite party chosen to hand over a copy of a credit bill showing an amount of rs.54,700/- towards the price of all the above said 4 items.  The details regarding model details, price etc of those items were conspicuously absent in that credit bill also.  Along with this, when the delivery of the Video capturing card, which was promised  to be made within 1 week was being unduly delayed on one pretext or another.  The complainants made enquiry, and  to their dismay, they found out that the 3 items already supplied viz. HP scan Jet-No.1200, HP Colour Jet-5600, HP Laser Jet-1010 were quoted excessively and  that  the  price  quoted  for  the Video capturing card was also exorbitant.  The real price was only Rs.3500/, Rs.5600/- and Rs.10,500/- respectively for those 3  items supplied.  When  the delivery of  the 4^th item was not forthcoming and when the 1^st  opposite party refused to issue the proper sale bill for the items already supplied, the complicity of the 2^nd opposite party in the matter was genuinely suspected as they just mechanically endorsed the fake quotation presented by the 1^st opposite party with no step  taken to ascertain the nature, identity etc of the items to be delivered or their individual prices  with  particular  reference  to  the  models  as  well as the very

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release of the articles to the complainants by the 1^st opposite party.  So a written complaint was made to the 1^st opposite party on 22.10.2003 followed by another on 05.12.03 to the 2^nd opposite party  to intervene in the  matter and ensure the delivery of the remaining  article also after directing  the 1^st opposite party to present the genuine sale bill and directing him to remit the excess amount so collected in the loan account of the  complainants to  reduce their liability.  But the 2^nd opposite party refused even on insisting on a proper sale bill showing the brand  names and details  of the articles delivered or even their prices, with entries made in their records to suit their convenience to illegally help the 1^st opposite party.  The complainants reasonably suspect that the 2^nd opposite party has been in hands and glove with the 1^st opposite party in ensuring wrongful gain to the 1^st opposite party  at the expense of the consumers like the complainants and sharing the booty among themselves.

          (4). The 1^st opposite party has been thereby   guilty of gross deficiency in service resulting in financial loss to the complainants.  The 2^nd opposite party is equally guilty of deficiency in service of much more gravity through their callous indifference/ wilful collusion with the 1^st opposite party in not insisting on the production of a proper quotation,  a  proper  sales  bill and in not deriving    subjective satisfaction of the issue of a proper sale bill showing the brand names and details of the articles delivered or even their prices after disbursing the loan

amount to the 1^st opposite party.  To add insult to injury, the  2^nd opposite party is now initiating legal action against the complainants and the second surety to realize the amount with interest, the lion’s share of which  was illegally allowed to be appropriated by the 1^st opposite party with material benefit to the concerned officials of the 2^nd opposite party who are privy to the above racket along with its accumulated interest.  The details regarding the amount so illegally appropriated and retained by the 1^st opposite party are given hereunder.

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1. Service charge                                             -        Rs.1,000/-
2. Difference in price of items delivered

1. Scanner                                                  -        Rs.1,500/-
2. Colour Printer                                        -        Rs.2,500/-
3. Laser Printer                                          -        Rs.4,500/-

3. Video Capturing  Card not delivered                   -        Rs.20,200/-

Total                              -        Rs.29,700/-

          The complainants are entitled to realize

          The above amount of along with                -        Rs.29,700/-
     4.  Interest at 14% per annum and penal

interest liable to be realized by 2^nd defendant

 for  28,700/- out of the above amount.      -        Rs.6,400/-

                             Total                              -        Rs.36,100/-

 (5). The complainants further pray  to pass an order allowing them to realise an amount of Rs.36,100/- with future interest and costs from the 1^st and 2^nd opposite party jointly and  severally and from their assets.

(6). Originally there were only 2 opposite parties.  But subsequently 3^rd additional opposite party has been got impleaded vide order dated 24.11.2008 passed in IA 316/08.  However no relief is sought against the 3^rd opposite party.  The 1^st and 3^rd opposite parties remain exparte.  The 2^nd opposite party filed a detailed version by raising the following contentions.  The complaint is not maintainable either  in law or on facts.  The very same complainant has filed  earlier complainant as OPQ(363/2004) raising the very same allegations.  In that case the 2^nd  opposite  party  herein entered  appearance  and  filed  a  detailed

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version and on the basis of that version the complaint has been dismissed on 24.07.2005.  There after without any basis or bonafides the 1^st complainant who is an employee of Law department has  filed the present complaint.

(7). However the 2^nd opposite party would admit the following. The 1^st complainant on 15.05.2003 approached the 2^nd opposite party and filed an application to purchase the computer peripherals stated in the complaint.  The 2^nd and 3^rd complainants were sureties of 1^st complainant (In fact there are only 2 complainants).  That on 25.09.03 the complainants entered into an agreement with the 2^nd opposite party  and on the basis of that agreement an amount of Rs.54,900/- was released in the name of the 1^st complainant and as 2^nd and 3^rd complainants as sureties.  In the said agreement it was agreed by the complainants that the amount will be repaid in 36 instalments and in case of default the 2^nd opposite party is entitled to recover the same by way of revenue recovery from the salary of the sureties.  The same was admitted by the complainants and also agreed by the Head of Office of the above sureties.  Now the complainants by concealing  all  materials  facts  colluded  with  1^st  opposite party and with a view to resist the recovery of the above amount from the complainant they have filed earlier as well as the present complaint and obtained exparte temporary injunction restraining the revenue recovery.  But on the basis of the contentions raised by the 2^nd opposite party in its version the temporary injunction was withdrawn.   All the other  averments  and  allegations

in the complaint and affidavit filed in support of the complaint are false and frivolous.  No amount is due to the complainants from the 2^nd opposite party.  The complainants have filed the present complaint by misusing the process of the court.  As the earlier order passed in CC.263/04 has become final  the present complaint will not stand at all.  The 2^nd opposite party further prays to dismiss the complaint with its cost.

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          (8).In view of the above pleadings the point that arise for consideration are:-

1.  Is not the complaint maintainable?
2. Whether the 1^st opposite party delivered all the computer peripherals to the complainants as per the quotation and the sanction letter?
3. Whether there is deficiency in service or any unfair trade practice on the part of the opposite party?
4. Whether the complainants are entitled  to get back the excess price and the price of the non delivered article as claimed in the complaint?
5. Reliefs and costs.

(9).  Evidence  on the side of the complainants consists of the oral evidence of PW1 and Ext.P1 to P12 documents. No oral evidence has been adduced by  contesting 2^nd opposite party.  However got marked 2 documents as Ext.D1 and D2.

Point No.1

(10).  The specific case of the 2^nd opposite party is that the complaint is not maintainable either in law or on facts.  According to the 2^nd opposite party the very same complainant has filed OPQ 363/04 raising the very same allegation .  But it was dismissed on 27.04.05 and therefore the complainant has no lacous-standi to file the present complaint on the very same set of facts.  It is true that the complainant during 2004 filed a complaint raising the very same allegations and very same prayer.  But it was dismissed for default which  is  evident  from  Ext.D1 order itself which is an order passed not on  merit.  It is seen form the records that my learner predecessor in office has restored the complaint dismissed for default without any objection whatsoever on the side of the opposite party as per order in RP No.19/11 dated 22.05.2014.  The opposite parties have not challenged the order in the above  RP and the same has become final.

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(11).   In view of the above materials it is clear  that the present complaint is not a new complaint though the earlier complaint was originally dismissed for default  the same  was restored to file.  As the present case is not based on a new complaint but based  on the very same complaint, the same is perfectly maintainable we find no merit in the contention of the  2^nd opposite party regarding maintainability.  The point answered  accordingly.

Point No.2 to 4

(12). For avoiding repetition of discussion of materials these three points are considered together. The 3 fold grievances of the complainants are:-

Though he placed quotation to purchase 4 items, the 1^st opposite party actually supplied only 3 items and the major item having more value is vedio capturing  card and the same has not been supplied to the complainants. 

The  2^nd allegation is that 1^st opposite party has quoted and charged excess price than the actual price of the articles. 

The  3^rd allegation is that the 1^st opposite party has not issued  proper sale bill indicating the nature, quality, and price of the items supplied.

(13). There is no much dispute regarding the following facts. The complainants on 15.05.2013 approached the 2^nd opposite party and filed Ext.P2 application to purchase computer  system for a loan of Rs.54,700/- in the name of the 1^st complainant.  They have also produced Ext.P4 quotation issued by 1^st opposite party to deliver the following 4 items for Rs.54,700/-.

1. H.P Laser Printer                         -        1
2. H.P Quality colour ink jet printer -        1
3. Scanner                                        -        1
4. Vedio Capturing  Card  Pinacle   -        1

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(14).That the 2^nd complainants and another Government employee are sureties of 1^st complainant. On  25.01.2003 the 1^st complainant entered into Ext.P3 agreement  and on the basis of P3 agreement the 2^nd opposite party released an amount of Rs.54,900/- in the name of the 1^st opposite party who offered to supply the above 4 items.  It is stated in Ext.P3 agreement that the  said amount will be re-paid in  36 monthly instalment and in case  of default the 2^nd opposite party is entitled to recover the same by way of revenue recovery proceedings from the salary of the sureties.  It is also clear from Ext.P5 loan payment note that the 2^nd opposite party has sanctioned a  loan of Rs.54,700/- in the name of the 1^st complainant who applied for the said loan for purchasing computer peripherals.

 (15).  Now the question to be considered is whether the 1^st opposite party has not delivered  all the computer peripherals as per Ext.P4 quotation issued by him.It is also  clear from  the available materials that the 2^nd opposite party has agreed to finance the purchase of above articles shown in Ext.P4 quotation.  The 1^st opposite party who issued Ext.P4 quotation has charged Rs.1000/- from the complainant as service charges and also agreed to supply the same if 2^nd opposite party sanctioned the loan. It is also clear from the  available materials  that on 10.10.2003 three computer peripherals excluding video computing card has been supplied to the 1^st complainant.  In spite of the request of the 1^st complainant video computing card has not been supplied.  Hence he issued  Ext.P11 letter to the  2^nd  opposite  party   intimating  that  the  video  computing card has not been supplied.  But there was no positive response and as the 1^st complainant felt unusual behaviour from the 1^st opposite party  he made  a thorough enquiry and understood that out of the article supplied by the 1^st opposite party HP Scanner  2400 would costs Rs.3500/- Hp Colour  Jet 5200  would  cost  Rs.5000/- and  HP Laser   Jet 1010 costs Rs.10500/-.  Hence  on 05/12/13 the 1^st complainant made a complaint before the KSFE stating that the

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computer peripherals supplied to the complainants is  having lesser value and the  difference in the value should be obtained and adjusted towards the loan amount.  But the 2^nd opposite party has not made any response to the above request and taken an  attitude favourable to the 1^st opposite party.  According to  the 2^nd complainant he came to know that the excess amount obtained from him has been misappropriated by the employees of 2^nd opposite party.  He also came to know that the 1^st opposite party has been functioning illegally  without obtaining any  license or permit.  According to the 2^nd complainant the 2^nd opposite party which is government institution has colluded with 1^st opposite party which has been functioning  illegally and misappropriated a portion of the loan amount  sanctioned in the name of the 1^st complainant  who  is  none  other than his father. In view of the facts and circumstance available on record the above argument cannot be brushed aside.

 (16).    It is argued on behalf of the 2^nd opposite party that the 2^nd opposite party is only a financier and has no connection with the dealer, manufacturer or the customer and hence the complainant has no cause of action against 2^nd opposite party.  We find no force in the above argument. It is clear from the available materials that the 2^nd opposite party has taken every care  illegally  by not indicating the model number, individual price of the materials in schedule A attached to the agreement.  Hence  it is clear that the officials of the 2^nd opposite party colluded with the 1^st  opposite party without observing  rules and regulations which are very important and thereby  they have committed  deficiency in service to the  complainant.

(17).  In view of  Ext.P5 loan repayment  note dated 24.09.2003 obtained as per Right to Information Act,  the 2^nd opposite party has seen issued cheque for Rs.54,700/-.  but  as per Ext.P7 loan  payment  voucher  dated  27.09.03  the advance sum sanctioned was Rs.48,700/- and margin money collected was Rs.6000/.  As per loan voucher agreement balance amount is shown as 54,700/-. 

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But  in the loan  pass book it is seen entered as Rs.48,200/-.  Hence it is clear that by offering to arrange 100% loan with no interest rate, the complainants and guarantees were cheated by the  opposite parties and hence there is deficiency in service and  unfair trade practice on the side of both opposite parties.  It is clear from the available materials that the 1^st opposite party has not delivered all the 4 items ordered and there by the 1^st opposite party has committed deficiency in service and breach of trust.

(18).   It is also clear from the available materials  that though the 2^nd opposite party is aware that only three items  worth Rs.22,000/- have been supplied to the complainant  they have  initiated  recovery  proceedings   to  realise   the  entire

amount.  In spite of  fact that the complainants made complaint of non supply of one of the  major  items  ordered , the  2^nd  opposite party  did  not  even  make a

formal enquiry till date  which itself would indicate collusion between 1^st and 2^nd opposite party with a view to obtain illegal benefits as alleged in the complaint.

(19).   As the 2^nd opposite party has handed over the loan amount directly to the 1^st opposite party without giving the same to the complainant.  They ought to have  enquired about the allegations in Ext.P11 complaint that all the materials were not supplied and the materials supplied is substantially cheaper  than the value of the articles ordered.  Similarly though the complainant has reported to the 2^nd opposite party that one of the computer peripherals has been received by him from the 1^st opposite party  the 2^nd opposite party  has not enquired about the same but taken an attitude in favour of the 1^st opposite party and  not directed to supply the remaining article which is a costly item for which the value has already been received by the 1^st opposite party.  In the circumstance we are of the view that  there is deficiency in service and unfair trade practice on  the  side  of  the 2^nd opposite party.   It  is  also  clear  that   the   computer

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peripherals supplied to the complainant was not as per quotation and sanction letter and there is illegal connivance of the 1^st and 2^nd opposite party in the deal.  In the circumstance the complainant is entitled to get the excess amount charged and also the value of non delivered video capturing card and compensation mental agony and loss sustained by the complainants.  The points answered accordingly. 

Point No.5

In the result the complaint stands allowed in the following terms.

Opposite parties No.1to3 are directed to return Rs.29700/- with interest @9% per annum from 10/10/2003 till realisation.  They are also directed to pay compensation to the tune of Rs.10000/- and also pay Rs.3000/- as costs of the proceedings. 

The opposite parties are directed to comply with direction within 45 days from today failing which Rs.39,700/- will carry interest @ 12% per annum from 10/10/2003 till realisation.

 The complainant is allowed to realise the amount from the opposite party No.1 to 3 jointly and  severally  and  from their assets.

Dictated to the  Confidential Assistant Smt.Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Forum on this the     7^th  day of  June  2018.       

E.M.Muhammed Ibrahim:Sd/-

                                                                                    President

           M.Praveen Kumar:Sd/-

            Member

           Forwarded/by order

          Senior superintendent

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INDEX

Witness Examined for the Complainant

Ext. PW1             :         Saratchandra Kumar

Documents marked for the  complainant

Ext.P1                  :         Copy of paper publication

Ext.P2                  :         Copy of application form

Ext.P3                  :         Copy of agreement

Ext.P4                  :         Copy of quotation

Ext.P5                  :         Copy of loan payment note

Ext.P6                  :         Copy of application submitted by Right to Information Act

Ext.P7                  :         Copy of Consumer/vehicle loan payment voucher

Ext.P8                  :         Copy of pass book

Ext.P9                  :         Copy of receipts

Ext.P10                :         Quotation

Ext.P11 & P12     :         Letter and acknowledgement card

Witness examined for the opposite parties                  -        Nil

Documents marked for the  opposite parties     -        Nil

E.M.Muhammed Ibrahim:Sd/

            M.Praveen Kumar:Sd/-

            Forwarded/by order

            Senior superintendent