KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISION VAZHUTHACADU THIRUVANANTHAPURAM APPEAL.371/06 JUDGMENT DATED.28.11.2007 PRESENT SRI.M.V.VISWANATHAN -- JUDICIAL MEMBER SRI.S.CHANDRAMOHAN NAIR -- MEMBER Sri.C.T.Samuel, Proprietor, Kannitech Cable T.V Nangiarkulangara, Haripad, -- APPELLANT Alappuzha (By Adv.M.R.Sudheendran) Vs. Sri.S.Santhosh Kumar, Seed Analyst, State Seed Testing -- RESPONDENT Laboratory, Alappuzha-3. Residing at Nandanam, Dewaswom Parambu, Komana P.O., Ambatappuzha. JUDGMENT SRI.M.V.VISWANATHAN,JUDICIAL MEMBER The above appeal is preferred from the order dated.13.12.05 passed by the CDRF, Alappuzha in OP.No.A.100/05 which was filed by the respondent herein as complainant against the appellant as opposite party claiming refund of Rs.1500/-. Appellant/opposite party disputed the case of payment of advance amount of Rs.1500/-. Lower forum directed the opposite party to refund the advance amount of Rs.1500/- with interest at the rate of 9% per annum on and also to pay cost of Rs.350/-. Aggrieved by the said order the present appeal is preferred. 2. We heard the counsel for the appellant and also the respondent who appeared in person. The learned counsel for the appellant/opposite party submitted his arguments on the basis of the grounds urged in the memorandum of the present appeal. He submitted that there was no evidence to substantiate the case of the complainant regarding payment of Rs.1500/- as advance amount at the time of providing the Cable T.V connection to the house of the complainant. Thus, the appellant prayed for quashing the impugned order passed by the lower forum. On the other hand, the respondent vehemently supported the findings and conclusions of the lower forum. It is further submitted that the appellant/opposite party was in the habit of not issuing receipts for acceptance of the advance amount. Hence the respondent requested for dismissed of the present appeal. 3. The points that arise for consideration are:- 1. Whether the case of the complainant/respondent regarding payment of Rs.1500/- as advance can be accepted? 2. Is there any legally sustainable ground to interfere with the impugned order passed by the lower forum in OP NO.A.100/05? 4. THE POINTS 1 & 2 We will refer the parties to this appeal according to their status before the lower forum in OP.No.A.100/05. 5. Admittedly the complainant was a subscriber of the opposite party Cable TV operator. The case of the complainant is that he paid Rs.1500/- to the opposite party as advance amount and the said payment was affected at the time of taking the Cable TV connection in the year 2002. It is an admitted fact that subsequently in the year 2005, the complainant/the respondent shifted his residence and so the Cable TV connection was disconnected and requested for refund of the advance amount of Rs.1500/-. The opposite party vehemently disputed the case of payment of advance amount of Rs.1500/- by the complainant. It is contended by the opposite party that there was no practice of acceptance of advance amount for providing Cable TV connection. 6. The complainant produced A1 receipt dated 31.3.05. It would only show that he was a subscriber of the Cable TV connection provided by the opposite party. The complainant as PW1 deposed that he paid advance amount of Rs.1500/- to the opposite party for getting the Cable TV connection and that the opposite party did not issue of receipt for the said sum of Rs.1500/-. There is nothing on record to show that to substantiate that case other than the interested oral testimony of PW1. It is the case of the complainant that the opposite party was of the habit of not issuing receipt for acceptance of advance amount. If that be so, the complainant could have cited as witness any one of the subscribers of the opposite party. But the complainant failed to adduce any such evidence. It is the case of the complainant that he paid the advance amount of Rs.1500/- in the year 2003 and he was repeatedly demanding for receipt for the said amount of Rs.1500/-. But the complainant did not issue any notice evidencing demand of receipt for payment of Rs.1500/- as advance amount. Thus in effect, there is no evidence to substantiate the case of the complainant regarding payment of Rs.1500/- as advance other than the interested testimony of the complainant as PW1. In the absence of any such evidence, it is impossible to accept the case of the complainant regarding payment of Rs.1500/- as advance. 7. The lower forum has omitted to note the fact that the burden is upon the complainant to prove his case of payment of Rs.1500/- as advance amount at the time of taking Cable TV connection. On the other hand, the lower forum cast the burden of proof on the opposite party regarding non-acceptance of advance amount as contended by the opposite party. It is to be noted that it is rather than impossible to prove a negative aspect. It is the definite case of the opposite party that he did not receive any amount by way of advance and so there was no occasion for the opposite party to issue any such receipt. The production of the receipt book by the opposite party would not establish his case regarding payment of advance amount of Rs.1500/- by the complainant. More over, the complainant has not taken any steps to cause production of any document which is in the possession of the opposite party. There is also nothing on record to infer hat the opposite party has suppressed any valuable evidence which is in his possession. In the absence of any such case no adverse inference can be drawn against the opposite party. Thus, the lower forum has gone wrong in finding fault with the opposite party for none production of the receipt book by the opposite party. In effect the complainant has not succeeded in establishing his case regarding payment of advance amount of Rs.1500/- or acceptance of the same by the opposite party. So, the impugned order passed by the lower forum is liable to be set aside. Hence we do so. In the result, appeal is allowed. The impugned order dated.13.12.05 passed by the CDRF, Alappuzha in OP.A.100/05 is set aside. In the circumstance of the case, the parties are directed to suffer their respective costs. SRI.M.V.VISWANATHAN -- JUDICIAL MEMBER SRI.S.CHANDRAMOHAN NAIR -- MEMBER | 
