KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACADU THIRUVANANTHAPURAM APPEAL NO. 123/2000 & 539/2000 JUDGMENT DATED.10.9.2007 PRESENT SRI.M.V.VISWANATHAN -- JUDICIAL MEMBER SRI.S.CHANDRAMOHAN NAIR -- MEMBER APPEAL NO.123/2000 1. The Kerala Agro Industries Corporation Ltd., Coimbator Road, Palakkad – 678 001 Rep. by its Regional Engineer. -- APPELLANTS 2. The Kerala Agro Industries Corporation Ltd., Kissan Jyothi, Fort, Thiruvananthapuram – 695023 Rep. by its Managing Director. (By Adv.Menon & Pai) Vs. R. Swaminathan, Thekkumpuram House, -- RESPONDENT Thekkumpuram.P.O, Vemballur, Palakkad Dist. APPEAL NO..539/2000 R.Swaminathan, S/0 Rekkandi, -- APPELLANT Thekkumpuram House, Vemballur Post, Palakkad. (By Adv.E.Ramachandran) Vs. The Regional Engineer, The Kerala Agro Industries Corporation Ltd., Coimbatore Road, Palakkad-678001. The Kerala Agro Industries -- RESPONDENTS Corporation Ltd., Kissan Jyothi, Fort, Thiruvananthapuram- 695023 Rep. by its Chairman. COMMON JUDGMENT SRI.M.V.VISWANATHAN,JUDICIAL MEMBER These two appeals are preferred from the order dated15th December 1999 passed by the CDRF, Palakkad in OP.511/98. The complaint in the aforesaid OP.511/98 was filed claiming compensation on the ground of deficiency in service on the part of the opposite parties namely the Kera Agro Industries corporation, Thiruvananthapuram, in the delivery of Tractor, which was purchased the complainant through the opposite parties by making a payment of Rs.268426/- on 17.11.97 by way of a demand daft dated.15.11.97. The Lower forum accepted the case of the complainant regarding deficiency in service on the part of the opposite parties and thereby awarded compensation of Rs.5000/- for the mental agony undergone by the complainant. The lower forum has also directed the opposite parties to pay interest at the rate of 9% per annum on the aforesaid sum of Rs.268426/- from the date of the payment ie. 17.11.97 till the date of delivery of the tractor ie. 11.5.98 with a further direction to refund the excess amount of Rs.7200/- collected by the opposite party from the complainant towards the difference in hike of prize. Aggrieved by the impugned order passed by the lower forum, the opposite parties have come up with the Appeal Number 123/2000. The complainant has also come up with the other appeal number 539/2000 complaining of failure on the part of the lower forum in awarding compensation for unfair trade practice and the failure to award interest at the rate of 18% per annum. The complaint has also requested for awarding cost in the matter. 2. Before the lower forum, the complainant was examined as PW1 and Exts.P1 to P13 documents were marked on his side. From the side of the opposite parties DW1, the Regional Engineer of the Kerala Agro Industries Corporation was examined. Ext.D1 to D3 documents were also produced and marked from the side of the opposite parties. On an evaluation of the aforesaid evidence available on record, the lower forum passed the impugned order. 3. We heard the learned counsel for the appellants in the aforesaid appeals. Both of them vehemently argued on the basis of the grounds urged in the respective memorandum of the appeal. The learned counsel for the opposite parties (Appeal 123/00) argued that there was no deficiency in service on the part of the opposite parties in delivering the tractor which was delivered to the complainant on 11.5.98. It is submitted that there was no stipulation in P1 quotation dated.17.11.97 for payment of interest on the aforesaid sum of Rs.2,68426/-, and there was also no stipulation regarding the date or time of delivery of the vehicle. It is vehemently submitted that in the absence of any such stipulations it was not fair or proper on the part of the lower forum in awarding interest at the rate of 9% on the aforesaid sum of Rs.2,68426/- and also awarding compensation of Rs.5000/- on the ground of mental agony undergone by the complainant. The learned counsel for the opposite parties (appellant in appeal 123/2000) has also relied on the decision rendered by the Hon. Supreme Court in the case of Gazhiyabad Development Authority reported in AIR 2000 S C 2003, and submitted that in the case of commercial contract awarding compensation for mental agony is unwarranted. He also challenged the correctness of the order regarding refund of Rs.7200/-. He relied on the 2nd condition incorporated in P1 invoice. Thus, the opposite parties requested for setting aside the impugned order passed by the lower forum. On the other hand, the learned counsel for the complainant (appellant in A.539/00) supported the findings and conclusions of the lower forum to a greater extent. But, at the same time he requested for awarding interest at the rate of 18% on the aforesaid sum of Rs.268426/-. It is submitted that the complainant availed the loan from Nedungadi Bank, Kakkayur Branch at the rate of 18% per annum and so the lower forum ought to have granted interest at the rate of 18% per annum. It is further pointed out that the complaint herein was preferred in the year 1998, but even after the lapse of 9 years the complainant could not enjoy the award by the lower forum due to the pendency of the appeal before this State Commission. So, he canvassed for the position that the lower forum ought to have awarded interest on the amount ordered to be paid by the opposite parties. It is also submitted that the complainant was also entitled for compensation for the unfair trade practice followed by the opposite parties in the matter of delivering the tractor which was purchased by the complainant through the opposite party Kerala Agro Industries Corporation. Thus, the learned counsel for the complainant (appellant in A.539/00) requested for awarding compensation under the head of unfair trade practice and interest at the rate of 18% with a cost through out. 4. The points that arise for consideration are:- 1. Is there occurred any unfair trade practice amounting to deficiency in service on the part of the opposite parties in delivering the tractor to the complainant? 2. Whether the lower forum can be justified in ordering refund of Rs.7200/- representing the excess amount collected by the opposite parties from the complainant towards the difference in the hike of price of the tractor? 3. Whether the lower forum can be justified in awarding compensation of Rs.5000/- for the mental agony undergone by the complainant in the matter of getting delivery of the tractor which was purchased by him through the opposite party, Kerala Agro Industries Corporation? 4. Whether the interest awarded at the rate of 9% on the sum of Rs.2,68426/- can be upheld? 5. Is there any sustainable ground to interfere with the impugned order dated.15.12.99, passed by the CDRF, Palakkad in OP.511/98? 5. POINTS 1 TO 5 6. We will refer the parties to these first appeals according to their status before the lower forum in OP.No.511/98. 7. There is no dispute regarding the facts of this case. Admittedly, the complainant purchased the tractor through the opposite party, Kerala Agro Industries Corporation. The complainant effected the payment of Rs.268426/- on 17.11.97 by way of a demand draft drawn on 15.11.97. But he could take delivery of the tractor only on 11.5.98. Thereby there occurred delay of about 5 ½ months in getting delivery of the tractor. The definite case of the opposite party, Agro industries Corporation is that they could not deliver the tractor, because of non availability of the tractor with the Corporation. It is the case of the opposite party corporation that they could deliver the tractor only when the same was received from the manufacturer M/s. Mahendra through the head office of the corporation. It is also the case of the opposite parties that the tractors are being allotted to the purchasers/customers/consumers according to the priority which is mentioned in the state wide list maintained by the Kerala Agro Industries Corporation at their headquarters in Thiruvananthapuram. Ext.P1 is the quotation /proforma invoice dated.17.11.97 issued by the first opposite party namely the Regional Engineer, Kerala Agro Industries Corporation, Palakkad in favour of the complainant Mr. R.Swaminathan. A perusal of P1 invoice would make it clear that on 17.11.97, the first opposite party received a sum of Rs.2,68426/- towards the price of the tractor. The conditions stipulated in P1 invoice are as follows:- 1. Price quoted is F.O.R on Palakkad. 2. Price is tentatively fixed and that prevailing at the time of delivery will be applicable. 3. Payment to be made by D.D on any scheduled bank and payable at Palakkad. The aforesaid conditions stipulated in P1 invoice would make it crystal clear that the sale consideration of Rs.2,68426/- is only the tentative price of the tractor as on 17.11.97, but the actual price of the tractor will be fixed on the date of delivery. So, there is nothing wrong on the part of the opposite parties in demanding the difference in the price of the tractor. According to the opposite parties there occurred hike in the price of the tractor on account of the enhancement of excise duty. The opposite parties are justified in demanding excess amount of Rs.7200/- being the difference in price between the date of payment ie. on 17.11.97 and the date of delivery ie. on 11.5.98. The lower forum cannot be justified in directing the opposite parties to make refund of the excess amount of Rs.7200/- which was collected by the opposite parties from the complainant by way of difference in price. The opposite parties are justified in demanding Rs. 7200/- in view of the stipulation in Ext.P1 invoice dated 17.11.97. The aforesaid conditions would make it abundantly clear that the purchaser of the tractor is bound to pay the price of the tractor on the date of its delivery. In the present case, the delivery took place on 11.5.98. The complainant has no case that there was no such hike in price or that the opposite parties un-necessarily and without any basis claimed or collected the excess amount of Rs.7200/-. So, we have no hesitation to interfere with the order passed by the lower forum regarding the direction to refund the excess amount collected from the complainant. The first opposite party was examined as DW1. He categorically admitted the fact that the tractor was available with the corporation for its delivery to the complainant on30.4.98. But there occurred delay of 11 days in giving delivery of the tractor. No acceptable explanation is offered by DW1 or the Kerala Agro Industries Corporation for causing such delay. P5 letter was issued by the complainant on 2.5.98 to the opposite parties 1 and 2. As per P6 letter the first opposite party informed the complainant regarding the availability of the tractor for delivery to the complainant. It was also requested to the complainant to remit a sum of Rs.6200/- towards the balance cost. But it is strange enough to note that on 6.5.98 by virtue of Ext.P7 letter dated 6.5.98, the first opposite party informed the complainant that the tractor is not available for allotment and delivery and that there is the possibility for some delay. The first opposite party has also expressed its regret in causing the delay in making delivery of the tractor. It is to be noted that P7 is the reply to P5 letter issued by the complainant to the opposite parties. So P6 and P7 letters issued by the first opposite party are to be treated totally contradictory and inconsistent. As per P6 letter it is stated that the tractor is available for delivery to the complainant. But as per P7 letter ie. after 5 days it is stated that the tractor is not available for delivery. This circumstance or situation would create genuine doubt about the way in which the opposite parties have dealt with delivery of the tractor. The complainant cannot be found fault with in doubting the genuineness and correctness of the actions on the part of the opposite parties in delivering the tractor. DW1, the first opposite party was confronted with P6 and P7 letters. But he was not in a position to give a reasonable answer or explanation for the aforesaid inconsistent letters issued from the office of the first opposite party. It is to be noted that P6 and P7 letters are sent by the first opposite party as the Regional Engineer, Kerala Agro Industries Corporation, Palakkad. It was incumbent upon the opposite parties being the government owned corporation to explain as to how delay accused in the allotment and delivery of tractor. It is the definite case of the opposite party corporation that the tractors are being allotted and delivered to the customers on the basis of the statewide list maintained at the headquarters of the corporation in Thiruvananthapuram. But the opposite parties did not care to produce the aforesaid statewide list maintained by the corporation with respect to allotment and delivery of tractors. We may say that the officials of the corporation were reluctant in producing the relevant documents before the lower forum. It was their duty to show that their hands are clean and there was no foul play occurred in the matter of allotment and delivery of the tractor to the customers/consumers. But the opposite parties failed to prove their case that the allotment and delivery of the tractors were effected on the basis of the statewide list maintained by the corporation. There can be no doubt that there will be documents properly maintained by the corporation regarding the tractors received by the corporation on such and such dates and also the allotment of those tractors on such and such dates to such and such customers. But no such document is forthcoming from the side of the opposite parties, but at the same time the available materials would make it clear that there occurred some foul play in the allotment and delivery of tractors to the customers. DW1 in his cross examination admitted the acceptance of 3 tractors on 30.4.98 and delivery of those tractor on 8.5.98 he has also deposed that all the tractors were delivered to the customers by 8.5.98. But, at the same time the complainant herein was given delivery of the tractor on 11.5.98. There was nothing on record to show that in between 8.5.98 and 11.5.98 the Kerala Agro Industries Corporation received any tractor from the manufacturer. If that be the position, how could the corporation give delivery of tractor to the complainant on 11.5.98. This is also a strong circumstance that would tell upon the unhealthy way, the allotment of tractors were effected by the corporation. The learned counsel for the complainant has pointed out some discrepancy with respect to D1 list dated 17.11.97 and D3 copy of the delivery register. But no reliance can be placed on the discrepancy pointed out by the learned counsel for the complainant with respect to D1 and D3, Because of the fact that these discrepancies or inconsistencies were not put to DW1, the first opposite party when he was cross examined. Anyhow, the materials available on record would give a clear indication that there occurred some laches, negligence, omissions or lapses on the part of the officials of the Kerala Agro Industries Corporation in the matter of allotment and delivery of the tractors to its customers like the complainant. The opposite parties totally failed in proving their case that they allotted and delivered the tractors only in accordance with the priority list maintained at the headquarters. They have not produced any scrap of paper to prove their case regarding the allotment and delivery of tractors. So, the lower forum is fully justified in holding that there occurred deficiency in service on the part of the opposite parties in the matter of allotment and delivery of the tractor to the complainant. The aforesaid omissions, negligence or laches occurred on the part of the opposite parties can be treated as unfair trade practice tantamounting to deficiency in service. So we have no hesitation to uphold the order passed by the lower forum regarding payment of compensation for the deficiency in service on the part of the opposite parties in causing delay in delivering the tractor to the complainant. The learned counsel for the opposite parties (appellant in A.123/00) much relied on the decision rendered by the Hon. Supreme court in Gazhiyabad Development Authority’s case regarding payment of compensation on the ground of mental agony caused. It is true, that the Hon. Supreme Court has found that awarding compensation on the ground of mental agony with respect to commercial contract is unwarranted and the same cannot be upheld. But the facts and circumstance in the aforesaid reported case cannot be made applicable in the present case. In the present case the complainant as an agriculturist purchased the tactor for agricultural purpose. Even though, as far as the opposite parties are concerned the same is a commercial transaction. But the complainant being an agriculturist, the same cannot be treated as one purchased for commercial purpose. More over, in the present case the opposite parties cannot be treated as a commercial institution doing sale of tractors for profit. The Kerala Agro Industries Corporation is constituted for the upliftment of the agricultural community. The government has offered subsidy for purchase of tractors and agricultural implements for the purpose of promoting agriculture in the state. So, the opposite parties herein cannot be considered as a commercial corporation doing business for profit. So, the principle enunciated in the aforesaid case cannot be made applicable in the present case. More over, Hon. Supreme Court has ordered compensation in a number of cases for deficiency in service on the part of the dealer of goods. While awarding compensation the Consumer Forums, State Commissions Hon. National Commission and Hon. Supreme Court have considered the mental agony, inconvenience and discomforts suffered or sustained by the consumer. So, in the present case the complainant being an agriculturist who approached the opposite parties for purchase of a tractor for agricultural purpose can only be treated as a consumer coming under the purview of Consumer Protection Act 1986. The materials on record would show that the complainant herein suffered a lot on account of the delay caused in giving delivery of the tractor. So, he is to be compensated for the inconvenience, mental agony etc. suffered by him. The lower forum is perfectly justified in awarding compensation to the complainant under the head mental agony. The lower forum has also awarded interest at the rate of 9% on the sum of Rs.2,68426/- which was remitted by the complainant with the first opposite party on 17.11.97 by way of demand draft drawn on 15.11.97. Admittedly, the aforesaid amount represented the total consideration of the tractor. It is true, that the said amount was collected from the complainant representing the price of the tractor on that date namely on 17.11.97. As per P1 invoice, there is a condition stipulated for payment of excess amount, in case the hike in price of the tractor. The complainant could take delivery of the tractor only on 11.5.98. During the period from 17.11.97 to 11.5.98, the aforesaid sum of Rs.2,68426/- was available with the opposite party corporation. During the said period, the opposite parties have not done anything for the benefit of the complainant. At the same time, it can only be treated that the corporation was enjoying the sum of Rs.268426/- from 17.11.97 till 11.5.98. The materials available on record would give the inference that the officials of the opposite party corporation un-necessarily caused delay in effecting delivery of the tractor to the complainant. Thus in all respects, the complainant is entitled to get interest on the aforesaid amount from 17.11.97 to 10.5.98. It is pertinent to note at this juncture that the complainant availed loan from Nedungadi Bank and he has been paying interest from 17.11.97 onwards. According to the complainant he was paying interest at the rate of 8% per annum. But the lower forum has taken a lenient view in the matter of awarding interest and thereby directed the opposite parties to pay interest at the rate of 9% per annum on the said amount of Rs.268426/-. The case of the opposite parties that there is no stipulation for payment of interest on the amount of Rs.268426/- which was received on 17.11.97 cannot be accepted. It is true, that there is no specific stipulation for payment of interest on the said amount. But at the same time, there is no stipulation regarding non payment of interest. In the ordinary course, it would have been specified that the opposite parties will not be liable to pay interest on the said amount. The absence of such a specific clause would make the opposite parties liable to pay interest on the said amount especially in the present case because of the un-necessary delay caused by the opposite parties in giving delivery of the tractor. It can only be considered that the opposite parties were enriched by the said of Rs. 2,68426 by keeping that amount with them without delivering the tractor to the complainant. So, the order passed for payment of interest at the rate of 9% on the said sum of Rs.2,68426/- is to be upheld. Hence we do so. These points are answered accordingly. In the result, the impugned order dated.15.11.99 passed by the lower forum in OP.511/98 is modified to the extent as indicated above. Thereby, the order passed by the lower forum directing to refund the excess amount of Rs.7200/- collected from the complainant is set aside. But the remaining directions given by the lower forum regarding payment of compensation of Rs.5000/- and payment of interest at the rate of 9% per annum on Rs. 2,68426/- are confirmed. The request for the complainant for payment of interest at the rate of 18% is disallowed. The parties are directed to suffer their respective costs throughout. The first appeals Nos.123/00 and 539/200 are disposed of accordingly. | 
