BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM RAICHUR.
COMPLAINT NO. (DCFR) CC. 28/11.
THIS THE 23rd DAY OF DECEMBER 2011.
P R E S E N T
1. Sri. Pampapathi B.sc.B.Lib. LLB PRESIDENT.
2. Sri. Gururaj, B.com.LLB. (Spl) MEMBER.
*****
COMPLAINANT :- Rustum Ali S/o. Dharesh Ali, Age: 49 years, Occ:
Business, R/o. H.No. 5-8-11/3-1, Johny Mohalla, Raichur.
//VERSUS//
OPPOSITE PARTIES :- 1. M/. Srishaila Mallikarjuna Enterprises, Plot No. 21/9-
160, New Mydarwadi, Siya Talab, Raichur- Represented by its Partners:-
a) Mallikarjuna S/o. Mareppa, Age: 30 years, R/o. Opp:
Siyatalab Government School, Raichur.
b) Bheemarayya S/o. Thimapa, aged about 40 years, R/o. Near Haseena Hotel, Mydarwadi, Raichur.
c) Basavaraj S/o. Taylor Ramanna, age about 44 years, R/o. Askihal village,
d) Nagesh S/o. Krishnaji, aged about 45 years, R/o. Near Haseena Hotel, Mydarwadi, Raichur.
CLAIM :- For to direct opposites to pay a sum of Rs. 27,000/-
plus compensation amount of Rs. 20,000/- and along with interest.
Date of institution :- 29-04-11.
Notice served :- 19-05-11.
Date of disposal :- 23-12-11.
Complainant represented by Sri. C.Keshava Rao, Advocate.
Opposite No- 1, to 3 & 5 represented by Sri. S.K. Joshi, Advocate.
Opposite No- 4 Ex-parte.
This case coming for final disposal before us, the Forum on considering the entire material and evidence placed on record by the parties passed the following.
JUDGEMENT
By Sri. Pampapathi, President:-
This is a complaint filed by the complainant against Opposite Nos.1 (a) to (d) U/sec. 12 of Consumer Protection Act, for to direct the opposites to pay a sum of Rs. 27,800/- plus compensation amount of Rs. 20,000/- along with interest.
2. The brief facts of the complainant’s case are that, opposite Nos.1 (a) to (d) are the partners of opposite No-1, they started Splendor Plus Lucky Scheme on the baais of payment by installments for a period of (30) months consisting of installment of Rs. 1600/-. The complainant became the member of the said scheme and paid Rs. 1600/- per month from 13-08-09 to 15-03-09. He also paid an amount of Rs. 15,000/- as an advance. The amount was collected by one Santosh of the partner of opposite No-1 and he was authorized to issue receipts. Opposites went on postponing the delivery of the motor cycle, even though it collected amount from him. Hence this complaint is filed for recovery of total amount of Rs. 27,800/- with other reliefs as noted in his complaint.
3. Opposite No-4 placed Ex-parte. Opposite Nos- 1 to 3 & 5 appeared in this case filed written version by denying all the allegations made against them. As per the scheme, firm has delivered Mahindra Duro Vehicle to the complainant on 15-12-10 with his acknowledgement through Santosh. The said Santosh died in the month of April-2010. The complainant taking un-due advantage of death of one of the partner Santosh, he became defaulter in paying further installments. After taking delivery, he not paid any single installments, the claim of the complainant is false, this complaint is filed with an intention to get ill-legal monetary benefit out of the firm. Hence they prayed for to dismiss the complaint among other grounds.
4. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that:
1. Whether the complainant proves that, he paid total amount of Rs. 27,800/- as installments and advance amount for delivery of Hero Honda Splendor Motor Cycle under the scheme of Splendor Plus Lucky Scheme run by the opposites. But opposites shown their negligence in delivering motor cycle to him and thereby all opposites found guilty under deficiency in their services.?
2. Whether complainant is entitled for the reliefs as prayed in his complaint.?
3. What order?
5. Our findings on the above points are as under:-
(1) In Negative.
(2) In Negative.
(3) In-view of the findings on Point Nos. 1 & 2, we proceed
to pass the final order for the following :
REASONS
POINT NO.1 & 2:-
6. To prove the facts involved in these two points, affidavit-evidence of complainant was filed, he was noted as PW-1. Documents Ex.P-1 to Ex.P-11 are marked. Opposites not filed any affidavit-evidence.
7. Keeping in view of the facts, now let us examine the case of complainant along with his affidavit-evidence and documentary evidences to see as to whether, he proved the alleged deficiency in service by the opposites.
8. As per the contents of Para- 1 to 3 of the complaint and affidavit-evidence of PW-1, it is very much clear that, opposites are running Lucky Winner Scheme by name Splendor Plus Lucky Scheme. As per the pleadings of the complainant every member has to pay Rs. 1600/- per month till Lucky Dip Drawn or otherwise a lumpsum amount of Rs. 40,000/- will be given after payment of all installments. As per the lucky scheme complainant being the member and paid Rs. 1600/- per month from 13-08-09 to 15-03-09 with advance amount of Rs. 15,000/-. He produced documents Ex.P-1 to Ex.P-10 to substantiate his case, in written version opposites also not denied the receipts, their contentions in the written version is that, complainant took delivery of one motor cycle under the scheme in the month of April 2010 itself through its partner Santosh who is no more now. Complainant took advantage of the death of Santosh, he filed this complaint against all these partners to get illegal monetary benefit without disclosing the fact of receipt of motor cycle.
9. Keeping in view of the nature of the transactions in between the complainant and opposites as narrated by the complainant himself. It is a lucky scheme, it is not a sale for specific consideration to the complainant, winner in the lucky scheme will get either Hero Honda Plus Motor Cycle or Rs. 40,000/- in cash.
10. These facts clearly goes to show that, the alleged transaction is not a transaction pertaining to purchase of the motor cycle by the complainant on specific consideration. No service is required to be done by the complainant within the meaning of service as defined U/sec. 2(1)(O) of C.P. Act. In this case, the complainant is not coming under the meaning and definition of consumer as defined U/sec. 2(1)(d) of C.P. Act. He cannot raise consumer dispute as required U/sec. 2(1)(b) & 2(1)(c) of the C.P. Act. The alleged deficiency in service against the opposites is not attracting the provision of section 2(1)(g) of the said Act. Complainant paid some amount to the opposites, mere payment of that amount will not sufficient to say that, he is a consumer as defined under the Act. He cannot made use of the provisions of C.P. Act for recovery of such amount from the opposites. He can choose other Forum for recovery of that amount, but not before this Forum.
11. Complainant intended to take the benefit of the order passed by this court in C.C. No. 103/10 by producing the certified copy of the order sheet of it, as it will help to him, as it was a similar case to his case.
12. In the light of the fact noted above, we have referred certified copy of the order sheet in C.C. No. 103/10 which is on record and more particularly the order passed by this Forum dt. 10-02-11.
13. The facts noted in CC.No. 103/10 may be a similar to this case of complainant but C.C. No. 103/10 was not decided by the court on its merits. Complainant of that case filed memo to dismiss his complaint, as it was settled out of the court. In view of the submissions and in view of the memo filed in CC.No.103/10 that was dismissed as settled out of the court. This being the circumstances of that case, we are unable to accept that, in view of the said order present complaint is to be allowed.
14. No other material grounds out coming to say that, there was a deficiency in service on the part of the opposites, accordingly this complaint is not maintainable and thereby we answered Point No-1
15. In view of our finding on Point No-1, the complainant is not entitled for any one of the reliefs as prayed in this complaint, accordingly, we answered Point Nos. 1 & 2 in negative.
POINT NO.3:-
16. In view of our findings on Point No- 1 & 2, we proceed to pass the following order:
ORDER
This complaint filed by the complainant against opposites is dismissed.
Intimate the parties accordingly.
(Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 23-12-11)
Sri. Gururaj Sri. Pampapathi,
Member. President,
Dist.Forum-Raichur. Dist-Forum-Raichur.
