BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
BENGALURU (ADDL. BENCH)
DATED THIS THE 30th DAY OF JANUARY 2023
PRESENT
MR. RAVISHANKAR : JUDICIAL MEMBER
MRS. SUNITA CHANNABASAPPA BAGEWADI : MEMBER
APPEAL NO. 180/2015
Sri Rajendra Kishore, Aged about 33 years, S/o Sri A. Krishnamurthy, R/at No.1115, 1st Floor, 9th Cross, Ashoknagar, Banashankari 1st Stage, Bangalore 560 050. (By M/s G.R. Anantharam & Associates) | ……Appellant/s |
V/s
1. | M/s Shivamogga Institute of Medical Sciences, Sagara Road, Shivamogga 577 201, Rep. by its Director. (By Sri S.B. Totad) | ..…Respondent/s |
2. | M/s Info Subscriptions, No.G-17, 2nd Floor, 5th Cross, KSRTC Layout, Uttarahalli Main Road, Bangalore 560 061, Rep. by its Proprietor/ Director Sri D.S. Shankar. (Served absent) | |
ORDER
MR. RAVISHANKAR, JUDICIAL MEMBER
1. The appellant/Opposite Party No.2 has preferred this appeal being aggrieved by the Order dt.30.08.2013 passed in CC.No.42/2013 on the file of District Consumer Disputes Redressal Commission, Shivamogga.
2. The brief facts of the case are as hereunder;
It is the case of the complainant that it is a Government established Institution it is running a medical education both graduation and post-graduation in the field of medical sciences and for want of journals and medical literatures to their library, they invited a tender for supply of journals and other medical literatures for the year 2012 in their website. The said tender was accepted by the Opposite Party No.2 and assured to supply journals and other medical literatures for an amount of Rs.26,92,460/-. The complainant after accepting the said offer has paid an amount of Rs.13,46,236/- through their cheque dt.889688 dt.22.03.2012. The said cheque was encashed by the Opposite Party No.2. After receipt of the said amount, the Opposite Party No.2 had not supplied the journals and other medical literatures to the library of the complainant. Aggrieved by the said the complainant filed a complaint before the District Commission praying refund of the entire amount paid. After admission, the notice was served on both Opposite Parties, but, not represented, hence, placed exparte. After trial, the District Commission allowed the complaint and directed the Opposite Parties to pay the above said amount. Aggrieved by the said Order, the appellant/Opposite Party No.2 is in appeal.
3. In response to the newspaper advertisement, the Respondent No.2/Opposite Party No.1 instructed this appellant to issue quotation of supply of journals and give instructions that he should mention the name of this appellant as proprietor to the Respondent No.2. Accordingly, this appellant gave his house address as the address of Respondent No.2 for easy correspondences since the office of the said proprietor was in transit to shift to some other places. As a temporary measure, this appellant residential address was given and also mentioned him as a proprietor to the Opposite Party No.1 as per the instructions. The said quotation was accepted by Respondent No.1/complainant and in turn agreement was executed between this appellant and Respondent No.1 on 28.01.2012 reflecting this appellant as a Proprietor to the Respondent No.2 and agreed to supply the journals. The fact remain thus, this appellant resigned from the employment of Respondent No.2 and he was relieved from his duties on 06.04.2012. After getting relieve from the employment of Respondent No.2, this appellant herein taking employment at Thieme Medical and Scientific Publishers Private Ltd., Noida as an Assistant Manager-Trade & Sales. He was on travel from place to place for most of the time and whatever mail received addressed to Respondent No.2 at the appellant’s residential address at Bangalore were being redirected to the said Proprietor of Respondent No.2 at the address i.e. No.G1.7, 2nd Floor, 5th Cross, KSRTC, Uttarahalli Main Road, Bangalore 560 061 since he was not a Proprietor to the said Respondent No.2 and he was only an ex-employee. He noticed that the complainant/Respondent No.1 had filed a complaint in CC.No.42/2013 for non-complying the agreement executed between them. The District Commission passed an exparte order dt.30.08.2018 wrongly holding that this appellant is liable to refund the alleged amount though the notice was not been served on the appellant.
4. Aggrieved by the said, the appellant/Opposite Party No.2 is in appeal and submits that it is only on instruction given by the Respondent No.2 that this appellant has given his residential address as an address of Respondent No.2 and he was reflected as a Proprietor to the said firm for easy correspondences, but, he was only working as an employee and he was not at all undertaken to supply of any journals individually. Hence, prays to set aside the Order passed by the District Commission and to dismiss the complaint.
5. On going through the memorandum of appeal, certified copy of the Order and the documents produced before the District Commission, we noticed that it is an admitted fact that there is an invitation for supply of journals and other medical literatures to the library of the complainant/ Respondent No.1 accordingly this appellant had sent a quotation for an amount of Rs.26,92,470/- and entered into an agreement. It is also not in dispute that the Respondent No.1 had paid an amount of Rs.13,46,236/-, but, as per the agreement, the appellant has not supplied the journals to the Respondent No.1. Aggrieved by the said non-supply of the journals, the Respondent No.1 filed a complaint before the District Commission alleging deficiency in service/unfair trade practice. The said complaint was allowed in the absence of this appellant as he was placed exparte. After receipt of the Order, this appellant preferred this appeal after a lapse of 486 days and he explained that the delay is because he was only an employee to the Respondent No.2/ Opposite Party No.1 and as per the instructions given by Respondent No.2 he acted as Proprietor to the Respondent No.2 Company and he given his residential address for the purpose of correspondence only. Thereafter, he resigned the said office and took an appointment in different company which was situated at Noida. When he visited his residence, he came to know that the exparte order was passed against him to pay the above said amount, hence, there is a delay in filing this appeal and prayed to condone the delay.
6. The learned counsel for appellant submits that it is only for the purpose of correspondence the address of the appellant was given and also at the instructions from the Respondent No.2 this appellant was reflected as Proprietor and he was acted as per the instruction of Respondent No.2. The entire transactions was took place between Respondent No.1 and Respondent No.2 only and not with this appellant. The notice infact issued by the District Commission was not served as he was appointed to some other company at Noida and any notice of correspondence served upon the address of the Respondent No.1 was redirected to Respondent No.2 address, hence, he was placed exparte and he could not represent the case, hence, prays to set aside the Order.
7. We noticed here that the appellant had entered into an agreement with Respondent No.1 for supply of medical journals and other medical literatures to the library with a capacity of Proprietor to the Respondent No.2 and he was also acted as a Proprietor to the said Company and received an amount of Rs.13,46,326/-, but, the appellant had not produced any materials before this Commission to show that an amount which was paid towards supply of journals was received by the Respondent No.2. In the absence of said, we cannot believe that the Respondent No.2 had transacted with the Respondent No.1. We believe that it is only this appellant only transacted with Respondent No.1/complainant for the supply of journals and also received the amount. We noticed that in the memorandum of appeal, the appellant says that he was relieved from job and joined another company at Noida etc., but said facts cannot be believed. It appears that appellant had created and concocted said story for the purpose of escaping the liability. It is an admitted fact that an amount was received by the appellant for the supply of medical journals and the same was not supplied. We are of the opinion that when the appellant acted as a Proprietor and reflected his own address for the purpose of agreement and correspondences, it is the bounden duty to supply the said journals and medical literatures. On perusal of the memorandum of appeal, the appellant created a new story that he was an employee and he just acted upon the instructions given by the Respondent No.2. We are of the opinion that it is only a created story to escape the liability. Hence, we found that there are no valid grounds to set aside the Order passed by the District Commission. We noticed that there is abnormal delay of 486 days in preferring this appeal. The appellant has not shown any valid reasons to condone the delay in filing the appeal. On this ground also appellant is liable to be dismissed. We found that there is no error in the Order passed by the District Commission. Hence, the following;
ORDER
The appeal is dismissed as barred by time and also dismissed on merits.
The amount in deposit shall be transmitted to district Commission for disbursement of the same to the complainant/s.
Forward free copies to both parties.
Sd/- Sd/-
MEMBER JUDICIAL MEMBER
KCS*
