BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  MOGA.

Complaint No.52 of 2014

                                                                   Instituted On: 15.05.2014

Decided On: 16.06.2015 

Namni Raj daughter of Sh. Hans Raj, aged 14 years (minor) through her father Hans Raj son of Shri Ram Saroop, resident of Gali No.7, House No.545, Baggeana Basti, Moga 

………Complainant 

Versus

Prem Kumar son of Nabbu Ram, C/o, Prem Karyana Store, Gali No.3, Baggeana Basti, Moga, District Moga.          

……….Opposite Party

Complaint under Section 12 of the

Consumer Protection Act, 1986.

Coram:       Sh.S.S.Panesar, President

                   Smt. Vinod Bala, Member

Smt Bhupinder Kaur, Member

Present:      Sh Hans Raj Rep. for the complainant.

                   Sh. Kamal Kishore, Advocate, counsel for OP.

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ORDER

(S.S.Panesar, President)

                       Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘Act’) against Prem Kumar son of Nabbu Ram, C/o, Prem Karyana Store, Gali No.3, Baggeana Basti, Moga, District Moga (herein-after referred to as OP)-opposite party directing him to refund the excess amount charged from the complainant, to pay Rs.10,000/-as  compensation for causing mental tension besides costs of litigation.

2.                Brief facts of the complaint are that the complainant purchased one Maaza cold drink from opposite party and the latter charged Rs.12/- instead of print rate Rs.10/- from the complainant. On opposing, opposite party told that he will charge Rs.12/-. When complainant demanded bill of the cold drink, opposite party refused to give the same.  Opposite party has violated the norms of the Consumer Protection Act, which is also unethical. The complainant requested to take action against the opposite party by allowing the present complaint. Due to the negligent act of the opposite parties, the complainant is suffering from mental and physical harassment and economic loss.  Hence the present complaint.

3.                The complainant was heard on the question of admission of the complaint. However, after going through the averments as well as other evidence on record, District Consumer Disputes Redressal Forum, Moga dismissed the complaint in limine vide order dated 19.05.2014. The

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complainant filed an appeal against the order of dismissal before the Hon’ble State Commission, Punjab Chandigarh, which vide order dated 25.02.2015 allowed the appeal and directed the District Consumer Disputes Redressal Forum, Moga to decide the complaint afresh in view of the directions given in the detailed order.

4.                On receipt of the order, the opposite party was summoned to contest the complaint and in response to the notice, the opposite party  appeared through his counsel Sh. Kamal Kishore Advocate and filed written reply contesting the same. In his written reply, opposite party has pleaded that the complainant has failed to mention date of alleged purchase of bottle of cold drinks make Maaza. He further pleaded that he did not sell alleged bottle of cold drink  to the daughter of the complainant. Opposite party further pleaded that  complainant used to purchase various products from his shop on credit basis and complainant promised to pay the cost/price of the products purchased by him. But as and when opposite party demanded balance payment from complainant due against him, he refused to make the payment and threatened to file a false complaint against opposite party, if opposite party insisted for payment of the balance due. Other allegations of the complaint have been denied and a prayer for dismissal of the complaint with cost has been made.

5.                In order to prove his case, the complainant tendered in evidence his affidavit Ex.C-1 along with copy of DVD Ex. C-2, copy of birth
certificate Ex. C-3, copy of rate list Ex. C-4, one empty bottle of Maaza    

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Ex. C-5 and closed his evidence.

6.                To rebut the evidence of the complainant, the opposite party tendered his affidavit Ex.OP-1 and closed his evidence.

7.                We have heard the complainant in person and learned counsel for the opposite party and have also carefully gone through the record.

8.                On the basis of the evidence on record, the complainant has vehemently contended that the complainant has been able to prove the allegations made in the complaint. Namni Raj, daughter of the complainant, purchased soft drink make Maaza from the opposite party, who charged Rs.12/- for one bottle while the print rate of the  bottle was Rs.10/- only. The daughter of the complainant protested for over charging. But the opposite party did not pay any heed to the same and refused to refund the excessive amount, despite repeated requests. The complainant has further contended that the DVD Ex.C-2 on record proves the case of the complainant beyond any shadow of doubt. The DVD was played on his request during the course of arguments and there is conversation between the complainant and Prem Kumar in which Prem Kumar has stated that Rs.2, in excess were being charged as refrigeration charges i.e. service charges. The complainant further referred to copy of rate list Ex.C-4, wherein MRP for maaza bottle measuring 200 mls is Rs.10/- only. The complainant has contended that the opposite party has indulged in unfair trade practice. The complaint is liable to be allowed and the complainant may be paid compensation to the tune of Rs.10,000/- besides litigation

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expenses to be assessed by this Forum.    

9.                However, the learned counsel for the opposite party has vehemently contended that the complainant has miserably failed to prove the allegations made in the complaint. The complaint is without head and tail. No date has been mentioned on which maaza bottle was allegedly purchased by the complainant. Much stress has been laid on the point that DVD has been placed on record for proving the deal. But, however, no sample voice of the opposite party was obtained in the court nor any effort was made to get the voice of the opposite party compared with that in the DVD attributed to him. In such a situation, DVD Ex.C-2 remains unproved on record. Moreover, there is no pleading to the effect that any DVD was prepared at the time of the alleged purchase of the soft drink in dispute. The name of the author of the DVD also does not find mention either  in the complaint or in the affidavit filed in support of the complaint. As such there was absolutely no occasion for the opposite party to rebut the alleged evidence. The evidence adduced by the complainant in the shape of DVD is inadmissible. Once DVD is ignored, there is absolutely no evidence on record to substantiate the allegations made in the complaint. Because oral evidence adduced by the complainant has been fairly rebutted by the opposite party by adducing oral evidence in the shape of affidavit OP/1/

10.              On the basis of the aforesaid contentions, the learned counsel for the opposite  party has vehemently contended that instant complaint is nothing, but an abuse of the process of law. The complaint is false,

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frivolous and vexatious and it is requested that the complaint may be dismissed with costs.  

11.               We have given thoughtful consideration to the rival contentions.

12.              First of all it is to be noticed that the complainant has not mentioned the date on which the soft drink Maaza bottle was allegedly purchased by her from the opposite party. The complaint has not been properly drafted. It does not disclose any cause of action nor it states as to how the complaint  was within limitation. The opposite party need not require to take specific plea of limitation in the written reply rather the complainant is under legal obligation to plead and prove to the satisfaction of the Forum that complaint under Consumer Protection Act was within limitation. Reliance can be had on M/S State India Express (Regd) Versus M/s Ranutrol Limited & others 2014 (1) CLT 8 NC, wherein it has been laid down that nevertheless, the question of limitation being a question of law which can be raised at any stage of pending proceedings, we are of the opinion that in light of the provision in Section 24-A of the Act, it is obligatory on our part to examine the issue irrespective of the fact as to whether such a plea had been raised before the State Commission. Moreover, there is no dispute on facts, material for determination of the question of limitation. Applying the ratio of this judgment to the facts of the present case, it becomes evident that in the absence of mention of specific date of alleged purchase, this Forum cannot reach the conclusion

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that the complaint has been filed within limitation or not. To be successful, it is obligatory on the part of the complainant to plead and prove that the complaint has been filed within limitation. The complaint filed by the complainant is vague and indefinite and the same also does not disclose any cause of action.

13.              Not only that the evidence on record adduced by the complainant is inadmissible in evidence. So called DVD Ex.C-2, which has been pressed into service for proving case of the complainant, is beyond the scope of pleading. Not a single word regarding the same finds mention in the complaint. So much so name of the author of DVD also does not figure either in the complaint or in the affidavit Ex.C-1 adduced on behalf of the complainant. DVD itself is inadmissible in evidence. In the case in hand the voice comparison was necessary. But, however, no voice sample of the opposite party was taken through the indulgence of this Forum and no effort was made to get the voice of the opposite party compared with the voice attributed to the opposite party in the DVD. In such a situation, DVD Ex.C-2 is required to be scored off from the record & no reliance can be placed upon it for deciding the present controversy. 

14.              From the aforesaid discussion, it emerges that the complainant has miserably failed to prove the allegations made in the complaint. The complaint also does not appear to be within limitation. The evidence adduced on record in the shape of oral evidence by the complainant has been fairly rebutted by the opposite party. Consequently the instant

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complaint fails and the same is ordered to be dismissed. Copies of the order be sent to the parties free of cost immediately and thereafter the file be consigned to the record room.

          (Bhupinder  Kaur)                   (Vinod Bala)                   (S.S.Panesar)

                        Member                    Member                         President

Announced in Open Forum.

Dated:16.06.2015