DOF.12.11.2010

DOO.30.3. 2011

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR

                 Present: Sri.K.Gopalan                 :  President

  Smt.K.P.Preethakumari   :  Member

  Smt.M.D.Jessy                : Member

Dated this, the 30^th day of March     2011

CC.269/2010

 Nikesh.T.,

 S/o.P.Kunhappa,

 Thunoli House,

 Cheratt,

 P.O.Edatt,

Payyannur.                                               Complainant

1.Secretary,

   Pyyannur Municipality,

   Payyannur.

2.K.T.Aboobacker,

   Contractor,

   Kulangarathoppu paramba

   Idiyangara,
   Kozhikode.                                              Opposite parties                                                         

O R D E R

Sri.K.Gopalan, President

          This is a complaint filed under sectin12 of consumer protection Act for an order directing the opposite parties to pay `2,000 as compensation and cost of this proceeding.

          The case of the complainant in brief is as follows: The complainant is a resident of Payyannur locality. Complainant and his co workers have been using the comfort station in Payyannur bus stand for the last many years. The contractor collected an increased rate of charge over and above fixed by municipality from the users of comfort station and thus complainant and his co-workers had also been compelled to pay excess charges. As per Municipal contract urination charge is 25 paisa and for latrine  ` 1, but the contractor is exploiting the customers charging up to `2 and up to `5 for using  urination and latrine. The employees are misbehaving to those consumers who are questioning the charging of excess amount. Hence this complaint praying for an order to discontinued this unfair trade practice together with refund of excess charging with compensation.

          Forum sent notice to the opposite parties, 1^st opposite party; Payyannur Municipality entered appearance on the 1st posting date and remained absent thereafter. 1^st opposite party subsequently called absent and set exparte. Notice of 2^nd opposite party returned and on production of  publication 2nd opposite party also called absent and declared exparte.

Exparte evidence was taken. Complainant field chief affidavit and Exts.A1 to A5 marked.  PW2 to PW4 examined.

          Whether  the  2^nd opposite party has been indulging in unfair trade practice charging excess amount over and above what is fixed by contract with Municipality for using toilet and whether the applicant has suffered any loss or damages as  consequences of the alleged unfair trade practice  is the relevant question to be decided in this matter.

          In the affidavit filed by the complainant he averred in terms of the allegation contained in the complaint. The oral evidence that has been tendered by PW2, PW4 has also been substantially supported the case of the complainant. The main case of the complainant is that 2^nd opposite party has taken excess charge from the consumers including the complainant. He has also alleged that complainant and his friends were insulted  by the employees of 2^nd opposite party. Complainant also adduced evidence by way of chief affidavit that he has lodged  a complaint before  the municipality but they did not take care to attend the complaint. In other words even after lodging the complaint before the Municipality there was no change in the state of affairs in the matter of maintenance of municipality comfort station.

          PW1 deposed in his oral evidence that 2nd opposite party has been charging an amount of Rs.1 for urination though the fixed charge is only 25 paisa. He has also deposed that when it was complained the employees there get  angry and quarreled with the consumers. PW3 Mr. Prasad also deposed so. PW4 Mr.V.Shaji deposed that he was understood that 25 paisa was the fixed charge for urination and  `1 for using latrine. But the employees of the comfort station collected `1 for urination instead of 25 paisa. He has also deposed that complaint was lodged before Municipality number of times but no action has been taken by them.

          The evidence of PWs 1 to 4 make it clear that  2^nd opposite party charged excess  amount than fixed by the municipality as per the agreement which shown  in Ext.A2.  The available evidence goes to show that the attitude of 1^st opposite party is not at all positive to settle the issue. There is nothing before the forum to understand what 1^st opposite party has done when the issue has been taken before them. The manner of conducting of this case by the 1^st opposite party is also an indication to assume the way in which they were taking up of the issue faced by the users of comfort station. 1^st opposite party also entered appearance by Revenue Superintendent authorized by the Secretary of the Municipality. But after filing the authorization letter he did not turned up and remained absent  through out.  So also 2^nd opposite party did not turn up. 2^nd opposite party is the person who has been conducting the comfort station on the basis of the agreement with the municipality on public auction. He is   having continuous contact with the   municipality hence it is quite natural that subject matter of this complaint is known to 2^nd opposite party and it is quite understandable that the 2^nd opposite party is purposefully  avoiding this complaint. 1^st opposite party, municipality who appeared once did not even file the version. This itself shows that 1^st opposite arty is least bothered with respect to the conducting of this case. The negligence of municipality is quite clearly revealed in the manner in which they have conducted the case. The available evidence on record undoubtedly makes it clear that there is deficiency in service on the part of opposite parties.

          The most relevant aspect in the above matter is not that of the amount but whether the amount fixed legally is taken as actual charge from the users of the comfort station or not. The users should not be compelled to pay an excess amount over and above fixed by the municipality whatever may be the amount less or high. In this case the users of the comfort station are compelled to pay more than the charge what is fixed and announced, hence this act amounts to unfair trade practice. Municipality is also answerable for this since the principal of -Qui facit per alium facit per se-which means he does anything through another is deemed to have done it himself- is applicable to municipality. Hence both parties are liable to take necessary steps to stop this existing practice of extracting excess amount from the users and to reinstate the amount fixed which is based on the agreement as is shown in Ext.A2. They are also liable to give compensation to complainant which, we feel an amount of  `250 as compensation and an amount of `1000 as cost will meet the end  of justice.

          In the result, the complaint is allowed directing the 1^st opposite party/Payyannur Municipality to make assure that the amount of charge collected from the users of comfort station is only the fixed charge based on the agreement. It is also directed both opposite parties to pay complainant `250 (Rupees Two hundred and fifty only) as compensation and  ` 1,000 (Rupees One thousand only) as cost of this proceedings within one month from the date of receipt of this order. The liability is joint and several. Complainant is at liberty to execute the order after the expiry of one month from the date of receipt of this order.

                          Sd/-                      Sd/-                      Sd/-                                             President                   Member               Member

APPENDIX

Exhibits for the complainant

A1 & 2. Copy of  the Information given by OP 1 dt.7.6.10.

A3. Copy of the letter dt.12.8.10 issued by OP1.

A4. Auction/Tender Notice published by OP1

A5. CD

Exhibits for the opposite parties: Nil

Witness examined for the complainant

PW1.Complainant/Affidavit

PW2.Subash.K

PW3.Prasad.K

PW4.V.Shaji

Witness examined for the opposite party: Nil

                           /forwarded by order/

                     Senior Superintendent

Consumer Dispute  Redressal Forum, Kannur.