HYDERABAD
F.A.No.1747/2005 against C.D.No.158/2004 , Dist.Forum, Mahabubnagar .
Between
K.Radha Devi , W/o.Murali Krishna,
Aged about 43 years, Occ:Household,
R/o.H.No.7-4-5/1, Venkateshwara Colony,
Mahabubnagar . …Appellant/
Complainant
And
M/s.Vijaya Traders,
Mahaboobnagar, rep. by its Proprietor ,
Syed Masood Ahmed, S/o. Mahamood,
Aged about 43 years,
D.No.8-3-13-3, IInd floor, Mettugadda,
Mahabubnagar, R/o.H.No.8-3-53/9,
Teachers Colony , Mahaboobnagar. … Respondent/
Opp.party
Counsel for the appellant : M/s. Gowrisankara Rao
Counsel for the respondent : M/s.K.Venkatesh Guptha
CORAM :THE HON’BLE JUSTICE SRI D.APPA RAO , PRESIDENT,
SMT.M.SHREESHA, HON’BLE MEMBER,
AND
SRI G.BHOOPATHI REDDY , HON’BLE MEMBER.
THURSDAY, THE TWENTY EIGHTH DAY OF AUGUST,
TWO THOUSAND EIGHT.
Oral Order : (Per Sri G.Bhoopathi Reddy, Hon’ble Member)
******
This is an appeal filed by the appellant/complainant under Section 15 of the Consumer Protection Act,1986 to set aside the dismissal order passed by the District Forum, Mahabubnagar in C.D.No. 158/2004 dt. 7.10.2005.
The appellant herein is the complainant before the District Forum. She filed complaint under Section 12 of the Consumer Protection Act,1986 to direct the opp.party to pay Rs.2,84,700/- with interest at 24% p.a. from 15.1.2001 i.e last date of payment till the date of realisation , to pay Rs.50,000/- as compensation for causing mental agony and facing financial problems and to pay Rs.1000/- towards the costs of the complaint .
The case of the complainant is as follows:
The complainant joined in a plots scheme started by the opp.party and the duration of the scheme is 50 months commencing from 15th September,1999 to 15th October,2003. The cost of each plot is Rs.29,000/- and a member has to pay Rs.300/- p.m. for 50 months and at the time of reservation of the plot he has to pay Rs.7000/- and at the time of registration of the plot he has to pay balance of Rs.7000/-. The monthly draw will be held on 15 th of every month at 5.30 p.m. and the winner at the draw need not pay further instalments and there will be bumper prizes at the 5th , 10th , 15th , 20th , 25th , 30th , 35th , 40th , 45th and 50th draws . The complainant joined as a member of the scheme in respect of 50 plots and she was allotted membership nos. 151 to 200 and she has paid Rs.15000/- as first instlament on 15.9.99 and she has also paid Rs.15000/- as second instalment on 9.10.99 . At the second monthly draw the complainant became winner of one plot The complainant paid the third monthly instalment of Rs.14,700/- after deducting Rs.300/- and continued to pay Rs.14,700/- per month upto 12th instalment. At the 12th monthly draw she became winner in respect of another plot. After deducting Rs.300/- she paid Rs.14,400/- towards 13th instalment . At the 13th monthly draw she again became winner of another plot and she paid Rs.14,100/- towards 14th instalment after deducting Rs.300/- . The complainant requested the opp.party to register the three plots in respect of which she became winner at the 2nd , 12th & 13th monthly draws but the opp.party has not registered the plots in her name. The complainant paid instalments regularly upto 17th instalment . The opp.party closed the scheme without any information to her or without payment of any amount. The complainant approached the opp.party personally and requested to register the plots and also pay the amount paid by her in respect of other plots as instalments. But the opp.party postponed the same on one pretext or the other. The complainant got issued a legal notice on 31.3.2003 for which the opp.party did not give reply . Alleging deficiency in service the complainant approached the District Forum to direct the opp.party to pay Rs.2,84,700/- with interest at 24% p.a. from 15.1.2001 i.e last date of payment till the date of realisation , to pay Rs.50,000/- as compensation for causing mental agony and facing financial problems and to pay Rs.1000/- cost of the complaint .
The opp.party filed counter contending that the complainant is not a member of the plots scheme floated by them in respect of membership nos. 151 to 200. The complainant is only an agent in respect of the said membership numbers on commission basis. She has enrolled 50 members in the scheme . The complainant used to collect monthly instalments and pay the same to opp.party for which he has issued receipt in her name after receiving the consolidated amount. Every month opp.party used to pay commission of Rs.100/- per member .After receiving the commission she used to issue voucher in favour of opp.party. The complainant has suppressed the said fact in her complaint. The complainant was not a winner at the draws and the members enrolled by her namely Mohd. Ahmed ,(Membership no.172, 2nd monthly draw), Syed Khaled Hussain, (Membership no.167, 12th monthly draw ) and Khaja Moinuddin (Membership no.192 ,13th monthly draw ) were the winners and they are liable to pay the balance amount of plot cost of Rs.14,000/- in two instalments and then only they are entitled for registration as per the terms of the scheme. The opp.party is ready to register the said plots to the winners but not to the complainant The complainant has collected the amounts only upto 17th instalment from the members and after that she was involved in financial problems in respect of the chits conducted by her and the chit members lodged complaint against her with the police and the complainant and her husband were in judicial remand for several months and as such the complainant could not collect the instalments from the scheme members enrolled by her and became a defaulter . As per clause no.13(b) of the terms and conditions of the scheme the members who commit default in payment of monthly instalments are not entitled for any relief and if the members pay the balance instalments the opp.party is ready to register the plots in their names. There is no consumer relationship between the complainant and opp.party and the relationship between the opp.party and the complainant is that of master and agent. As an agent she is entitled to commission only which was already paid by the opp.party as such the complaint is not maintainable against the opp.party. There is no deficiency in service on the part of the opp.party and the complaint is barred by limitation. The opp.party prayed for dismissal of the complaint with costs .
The complainant filed evidence affidavit and documents Exs.A1 to A23. The opp.party filed evidence affidavit and documents Exs.B1 to B28. The District Forum based on the evidence adduced and pleadings, dismissed the complaint without costs.
Aggrieved by the dismissal order of the District Forum the appellant/ complainant preferred this appeal contending that the District Forum did not appreciate Exs.A1 to A17 receipts filed by her and also failed to see that if the complainant is only an agent, opp.party ought to have issued receipt in favour of the 50 plot purchasers . The appellant also contended that the District Forum ought not to have taken the third party affidavits of Mr.Syed Khalid Hussain, Mr.Khaja Moinuddin and Mr.T.Venkatesh Goud into consideration. The District Forum failed to see that Ex.A25 does not contain any terms and conditions of the appointment and the opposite party obtained signatures on blank vouchers of the complainant at one single instance stating that they would pass on the agent commission to herself since she booked the plots in lumpsum and subsequently opp.party filled the same to suit the convenience of the opp.party. The appellant prayed to set aside order passed by the District Forum and allow the appeal.
The points for determination arises are1. Whether there was any deficiency in service on the part of the opp.parties? and 2.Whether the appellant is entitled to any relief?
The appellant contended that the dispute raised by her is a consumer dispute and the District Forum has not properly appreciated the documentary evidence Ex.A1 to A17. The submission made by the appellant is concerned we have gone through the Exs.A1 to A17 receipts issued by the opp.party. The said receipts are issued in the name of complainant stating that the amounts received from the complainant in respect of the membership numbers 151 to 200. The appellant has not filed any documentary evidence to show that she has taken the membership with the opp.party in respect of the said plots under the membership numbers 151 to 200. On the other hand the opposite party has filed a copy of the appointment order dt. 12.8.99 appointing the complainant as agent in respect of the real estate plots scheme of M/s. Vijay Enclave. The documentary evidence filed by the opp.party i.e. Exs. B3 to B7 , Ex.B11, B18 and B19 are the vouchers showing the payment of agent’s commission and the said vouchers are signed by the complainant.
The appellant contended that the opp.party has obtained signatures on the blank vouchers of the complainant and the said receipts were concocted documents which cannot be relied . The submission made by the appellant is not sustainable. .The appellant has not lead any evidence to show that the opp.party has obtained signatures on the blank vouchers
The appellant further submits that the District Forum ought not to have relied on the third party affidavits of Mr.Syed Khalid Hussain, Mr.Khaja Moinuddin and Mr.T.Venkatesh Goud . We have gone through the third party affidavits in which it is stated that they have also worked as agents under the opp.party and the opp.party has paid commission and the complainant also worked as an agent and she was also paid commission for booking plots. The complainant has not taken steps to cross examine the said third parties. Apart from this Syed Masood Ahmed, proprietor of opp.party company was examined as RW.1 . This witness was also cross examined by the complainant. In the cross examination also it is admitted that he was a sole proprietor of S.M..Property Consultants and he has issued receipts Ex.A1 to A17 and it was also clarified that the complainant has collected the amounts from the members in her capacity as an agent and paid the amounts to Vijaya Traders in respect of the sites in Vijaya Enclave Scheme and the sites relating to Vijaya Enclaves scheme are situated in Yenugonda village limits in sy.no.20. He also clarified that the complainant took membership nos. 151 to 200 and paid the instalments for 17 months and in 17 months period she was a prize winner on 3 occasions i.e. 1st draw (membership no.172 Mohd. Ahmed) ,12th draw (Membership no.167 Syed Khaled Hussain) and 13th draw (Membership no.192 Khaja Moinuddin). Exs.B1 and B2 registers also disclose the names of the members of the scheme.
The respondent submits that as per the Section 2(1)(d) of C.P.Act the complainant is neither the purchaser of the goods for consideration nor availed any services for consideration and she was only an agent enrolling the members in the plots scheme by receiving the commission. The documentary evidence filed by the opposite party disclose that the complainant was an agent on behalf of the opp.party for collecting monthly instalments from the members enrolled through her and paying the consolidated amount to the opp.party. Ex.B3 to B19 are the vouchers showing payment of agents commission in respect of membership nos. 151 to 200. The said vouchers were also singed by the complainant . The dispute raised by the complainant is not a consumer dispute. The District Forum has properly appreciated all the documentary evidence and given finding. The respondent contended that as per Ex.B25 the complainant was appointed as their agent . We have gone through the document Ex.B25 letter of appointment issued by Syed Masood Ahmed dt. 12.8.99 which disclosed that Smt K.Radha Devi was appointed as an agent in the real estate plot scheme of Vijay Enclave . As per the documentary evidence filed by the opposite party goes to show that the complainant was appointed as an agent . The dispute raised by the complainant is not a consumer dispute . The District Forum has elaborately discussed all the documentary evidence on record and given finding that the dispute itself is not a consumer dispute. There are no reasonable grounds to interfere with the order passed by the District Forum.
In the result appeal is dismissed in the circumstances without costs.
PRESIDENT LADY MEMBER MALE MEMBER
Pm* Dt.28.8.2008
