KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No.84/2021

JUDGEMENT DATED: 03.02.2022

(Against the Order in C.C.No.124/2018 of CDRC, Palakkad)

PRESENT:

APPELLANT:

(by Adv. Baby P. Antony)

Vs.

RESPONDENTS:

JUDGEMENT

HON’BLE JUSTICE SRI. K. SURENDRA MOHAN : PRESIDENT

          The 2^nd opposite party in C.C.No.124/2018 of the Consumer Disputes Redressal Commission, Palakkad (District Commission for short) is in appeal challenging the final order dated 06.03.2019, allowing the complaint.  The 1^st respondent herein is the complainant.  Respondents 2 and 3 are the other opposite parties in the complaint. 

          2.       As per the order appealed against, the opposite parties have been directed to pay an amount of Rs.8,00,000/-(Rupees Eight Lakhs) to the 1^st respondent/complainant with interest thereon @8% per annum from 18.05.2018.  A further amount of Rs.10,000/-(Rupees Ten Thousand) as compensation for the mental agony suffered by the complainant and an amount of Rs.2,000/-(Rupees Two Thousand) as costs have also been ordered.  The amounts have been ordered to be recovered from the opposite parties who are jointly and severally made liable.  The parties are referred to herein according to their status before the District Commission.

          3.       The short facts of the case are summarised as under:  The complainant is a retired Major General from the Indian Army and a Cancer Surgeon practicing at Palakkad.  He had planned to visit USA for a holiday and also to attend the marriage of his nephew’s son at Houston.  One Dr. Sreekumar Menon, a Neurologist from Thrissur contacted the opposite parties and instructed them to book tickets for the complainant’s travel.  The 1^st opposite party is the owner of the 3^rd opposite party Travel Agency and the 2^nd opposite party is the Manager of the Travel Agency.  The opposite parties offered to book tickets for the travel of the complainant to USA.  He had planned to travel from Mumbai to Detroit (via) Frankfurt and from there to Raleigh and then to Houston where the proposed marriage was scheduled.  His return journey was planned from Houston to Mumbai (via) London and from there to Coimbatore.  On the basis of the offer, the complainant transferred Rs.8,00,000/-(Rupees Eight Lakhs) from his account in the Sultanpet Branch of Canara Bank on 18.05.2018 to the account of the 3^rd opposite party.  After the transfer of the amount, the 2^nd opposite party confirmed the receipt thereof and promised to book tickets.  Though the complainant was following up the matter over telephone with the 2^nd opposite party, the tickets were not booked.  Later on, the complainant was informed that the tickets were not been booked because the 1^st opposite party had not released the necessary funds.  It was informed that he was in Dubai.  The complainant contacted the 1^st opposite party through WhatsApp messages.  He pleaded for time to repay the amount.  Left with no other alternative, the complainant requested to cancel the tickets and to refund the amount paid by him.  However, the amount was not returned.  Therefore he filed the complaint before the District Commission.

          4.       The complaint was admitted by the District Commission and notices were issued to the opposite parties.  The notices were returned with the endorsement “Door Closed”.  Therefore, the District Commission proceeded to consider the complaint on the presumption that notices were served.

          5.       The complainant filed chief affidavit.  Exhibits A1, A2 and A3 series were marked on their side.  He was also heard.  The District Commission found that the complainant had proved his case on the basis of the evidence on record.  Therefore, the complaint was allowed.  The said order is under challenge in this appeal.

          6.       According to the counsel for the appellant, the 2^nd opposite party was only an employee of the 3^rd opposite party.  He had resigned his job on 10.06.2018.  The travel agency had also been stopped.  He is residing in his house at Thrissur and no notice in the complaint was even alleged to have been served on him at his residential address.  Consequently, he never got an opportunity to defend himself.  He therefore seeks to be provided with such an opportunity, after setting aside the order appealed against.

          7.       The counsel for the 1^st respondent opposed the contentions of the appellant pointing out that he was the person who was actually conducting the business of the Travel Agency.  It is contended that all the opposite parties had been acting in collusion with each other to cheat him.  It was as a result of a concerted efforts of all the three opposite parties that the 1^st respondent was cheated of the amount of Rs.8,00,000/-(Rupees Eight Lakhs) as stated above.  The present attempt is only intended to somehow wriggle out of the liability cast on the opposite parties by the District Commission.  Therefore, it is contended that this appeal is only to be dismissed.

          8.       Heard.  It is not in dispute that, all the opposite parties were part of the concern M/s Skylink Tours & Travels owned by the 1^st opposite party.  The 2^nd opposite party was its Manager and the person with whom the complainant had been dealing.  He had offered to book tickets for the travel of the complainant to USA and had obtained transfer of an amount of Rs.8,00,000/-(Rupees Eight Lakhs) to the bank account of the 1^st opposite party.  Transfer of the amount is proved by Exhibit A1.  It is not in dispute that the air tickets were not booked by the opposite parties because the 1^st opposite party had not released the funds.  The scenario therefore is that the complainant was persuaded to part with an amount of Rs.8,00,000/-(Rupees Eight Lakhs) offering to book tickets for his travel to USA.  After obtaining the money, the opposite parties have stopped their travel business.   Notices could be issued to them only at their business addresses.  If they had actually stopped their business as contended it was necessary for them to have made some arrangements for the notices coming in their concern to be re-directed to their proper addresses.  No such arrangements were made.  Therefore, this is a case where the opposite parties had actually left the scene after pocketing the money of the complainant.  Though it is contended by the appellant that he was only an employee of the concern, it is clear that he was the person running the show, since the 1^st opposite party was in Dubai.  It was the appellant who persuaded the complainant to deposit the amount into the bank account of the 1^st opposite party.  There is no reason why he could not have received the money and purchased the tickets by himself.  Having been actively involved in extracting money from the 1^st respondent, the appellant cannot be let off, even if he had been only an employee of the concern.  Notices have been served in the address of the appellant at the concern of which he was the Manager.  The said service is sufficient and cannot be impeached on any account.  A three Judge Bench of the Apex Court as in Alavi Haji vs. Muhammed (2007) (3) KLT 77 (SC) has explained the meaning of service by post, in the following words:

“14.        S.27  gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post.  In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice.  Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business.  This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement-refused-or-not available in the house-or-house locked-or-shop closed-or-addressee not in station-, due service has to be presumed.  (Vide Jagdish Singh v..Natthu Singh, State of M.P. v. Hiralal & Ors. & V. Raja Kumari v. P. Subbarama Naidu & Anr.).  It is, therefore, manifest that in view of the presumption available under S.27 of the Act, it is not necessary to aver in the complaint under S.138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved”.

Though the above decision was rendered in the context of proceedings under Section 138 of the Negotiable Instruments Act, the dictum applies with equal force to the fact situation in the present case also.  We do not find any force in the contention that the appellant had resigned from his job on 10.06.2018 for the reason that, it was only on 11.06.2018 that the appellant had informed the complainant about his inability to purchase the tickets as agreed and it was on 13.06.2018 that the 1^st respondent had sought for refund of the money paid by him.  The appellant was very much there at that time.  A resignation letter can be fabricated by anyone at anytime and no circumstance to support its genuineness is available in these proceedings.  Therefore, we find no grounds to set aside the judgement of the District Commission, as sought for.

          In the result this appeal fails and is dismissed.  No costs.

          The 1^st respondent in this appeal shall be entitled to claim disbursement of the statutory deposit of Rs.25,000/-(Rupees Twenty Five Thousand) made by the appellant herein on proper acknowledgement.  The amount of Rs.4,00,000/-(Rupees Four Lakhs) deposited before the District Commission as condition for grant of the interim order of stay in this case shall also be paid to the 1^st respondent herein.  The said amounts shall be adjusted towards the amount to which he has been found entitled to by the order of the District Commission.

SL