BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: HYDERABAD
F.A.No.940/2011 against C.C.No.117/2010, Dist.Forum,Vizianagaram.
Between:
Gorla Satyanarayana, S/o.Paoinaidu,
Hindu, aged about 30 years,
Battery work shop,
D.No.2-120, Rajapulova Bhogapuram Mandal,
Vizianagaram District. ...Appellant/
Complainant
And
M/s. A.K.Industries,
Being rep. by its Proprietor,
Storage Load Battery Plates,
Plot No.534, Phase 1 & 2,
Indira Autonagar,Guntur. …Respondent/
Opp.parties
Counsel for the appellant : M/s.Smt. P.Sakuntala
Counsel for the Respondent : M/s. MD.Asifuddin
QUORUM: SMT. M.SHREESHA, HON’BLE INCHARGE PRESIDENT,
AND
SRI S.BHUJANGA RAO, HON’BLE MEMBER.
TUESDAY, THE TWENTY FIFTH DAY OF JUNE,
TWO THOUSAND THIRTEEN .
Oral Order: (Per Sri S.Bhujanga Rao, Hon’ble Member
***
The unsuccessful complainant filed the appeal against the order dt. 29.4.2011 of the District Forum , Vizianagaram made in C.C.No.117/2010 .
The brief case of the complainant as set out in the complaint is as follows:
Being an unemployee, the complainant applied for a loan under P.M.R.Y. Scheme and obtained sanction of loan from Indian Overseas Bank, Rajapulova for establishing Battery Workshop. The complainant placed order, as per the quotation issued by the respondent/ opp.party for supply of battery materials. Though promising to supply, the opp.party has been postponing the same on one pretext or the other and dragged on the matter. The act of the opposite party in not supplying the material to the complainant amounts to deficiency in service. The complainant was put to much loss and hardship and the opposite party is liable to pay compensation for mental agony and physical hardship meted out to the complainant. Hence the complainant filed the complaint, seeking direction to the opposite party to supply the material ordered by the complainant and in default, to return the amount of Rs.1 lakh paid by the complainant by way of DD on 21.5.2008 with interest at 24% p.a. and also to pay Rs.10,000/- towards compensation for mental agony etc. to the complainant.
Resisting the complaint, the opposite party filed written version contending that on 5.6.2008 one person by name Ramzan Khan introduced the complainant to opposite party stating that he wanted to start battery work shop under PMRY Scheme and on that day, the said Ramzan Khan, who is known to the opposite party and the complainant submitted the DD on 21.5.2008 for Rs.1 lakh drawn on Indian Overseas Bank and took away the battery materials worth Rs.1,00,181/- and the opposite party gave two cash bills under invoices on 5.6.2008, in the name of the complainant and on the same day, the complainant and the said Ramzan Khan of Vizianagaram took delivery of the battery materials, as per the invoices and at that time another person Shaik Abdul Khadar Zeelani also present along with the said Ramzan Khan. Since then, there were no further transactions in between opposite party’s firm and the complainant. The complainant mis used the battery materials, purchased from the opposite party, and in order to cheat the bank authorities, the complainant filed this complaint .
The opposite party further contended that non supply of the materials or anything will not come under deficiency in service, as such, the complaint is not maintainable. The complainant is trying to have wrongful gain and to grab the money by illegal means and methods. Therefore, the complaint is liable to be dismissed with costs.
During the course of enquiry, before the District Forum, the complainant filed his evidence affidavit and got marked Exs.A1 to A5. On behalf of the opposite party, its proprietor Abdul Khaleem filed his evidence affidavit and got filed the evidence affidavits of third parties namely Shaik Abdul Khadir Zeelani and Ramzan Khan and filed Ex.B1. Upon hearing the counsel for both the parties and on consideration of the material on record, the District Forum dismissed the complaint directing the complainant to pay Rs.3000/- to the opposite party towards costs.
Aggrieved by the said order, the complainant preferred the above appeal urging that the District Forum ought to have allowed the complaint in toto as prayed for. That the District Forum ought to have seen that the opp.party/respondent did not prove delivery of the goods to the appellant. That the order of the District Forum rests on assumptions and surmises. That the order of the District Forum lacks principles of natural justice. Therefore, the order of the District Forum is liable to be set aside.
We heard the counsel for both the parties and perused the material placed on record .
Now the point for consideration is whether the order of District Forum is vitiated for misappreciation of fact or law?
The facts that the complainant placed order as per Ex.A1 quotation issued by the opposite party, for supply of battery materials and that the complainant paid the cost of the said material by way of demand draft drawn on Indian Overseas Bank dt.21.5.2008 for Rs.1 lakh in favour of the opp.party and the opposite party sent two invoices for the said materials on 5.6.2008, are not in dispute.
The contention of the complainant is that though he gave demand draft for Rs.1 lakh to the opp.party, the opposite party failed to supply the materials to the complainant, inspite of repeated phone calls made by the complainant. On the other hand, the contention of the opposite party is that they received the DD for Rs.1 lakh and delivered the material mentioned in para 2 of the complaint to the complainant in the presence of Ramzan Khan and Shaik Abdul Khadir Zeelani. In support of his contention, that the material was delivered to the complainant, in the month of June,2008 itself after receiving DD, the opposite party filed affidavits of Ramzan Khan (RW.1) and Shaik Abdul Khadir Zeelani ( RW.2) who have stated in their respective affidavits, about the delivery of battery materials to the complainant, soonafter receiving DD for Rs.1 lakh from the complainant. RWs.1 and 2 have stated in their affidavits supporting the case of the opposite party. They are independent witnesses and they belong to Vizianagaram. The complainant is also resident of Vizianagaram. Under these circumstances, the District Forum, rightly relied on the affidavits of RW.1 and 2 in proof of the case of the opposite party.
Admittedly, the complainant purchased the battery material and delivered DD for Rs.1 lakh to the opposite party, in the month of June,2008 and he got issued legal notice vide Ex.A3 to the opposite party on 01.04.2010 i.e. two years after the complainant purchased the material and delivered DD to the opposite party. If the materials are not supplied by the opposite party in time, after receipt of the DD for Rs.1 lakh, the complainant, as a prudent man, would have raised a dispute or reported the matter to the police or given a legal notice to the opposite party in that month itself. But in this case, the complainant gave notice to the opposite party, on 1.4.2010 , after lapse of one year ten months. The silence on the part of the complainant for such a long time, strengthens the contention of the opposite party that the material was delivered to the complainant soon after receipt of the DD. Under these circumstances, we are not inclined to accept the contention of the complainant that though the DD was delivered, the opposite party failed to deliver the battery material.
For the facts and circumstances discussed above, we do not find any deficiency in service, on the part of the opposite party . We do not find irregularity or illegality in the impugned order of the District Forum, to interfere with it. Hence the appeal fails .
In the result, the appeal is dismissed confirming the order of the District Forum, but in the circumstances of the case there shall be no orders as to costs.
INCHARGE PRESIDENT
MEMBER
Pm* Dt. 25.6.2013
