Kerala

Idukki

CC/269/2016

Albin - Complainant(s)

Versus

Sulficar - Opp.Party(s)

Adv.K B Selvam

11 Jan 2023

ORDER

DATE OF FILING : 27.9.2016

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the  11^th  day of January, 2023

Present :

SRI. C. SURESHKUMAR                   PRESIDENT

SMT. ASAMOL P.                             MEMBER

SRI. AMPADY K.S.                           MEMBER

CC NO.269/2016

Between

Complainant                                           :     Albin, S/o. Sebastian,

                                                                   Vattakavumkal House,

                                                                   Thopramkudy P.O.,

                                                                   Idukki – 685 609.

          (By Adv: K.B. Selvam)

And

Opposite Parties                                     : 1.Sulfickar, S/o. Ashraf,

                                                                    Pattuvilakam House,

                                                                   Madanvilakara, Perumanthara P.O.,

                                                                   Thiruvananthapuram – 695 303

      2. Teena Jijo,            

                                                                   Ayalattil House,

                                                                   Udumbanchola, Nedumkandam,

                                                                   Pin :  685 553.

 (By Adv: Babichen V. George)

 

O R D E R

 

SRI. C. SURESHKUMAR, PRESIDENT

 

1. This is a complaint filed under section 12 of the Consumer Protection Act of 1986 (the Act, for short).  Complaint averments are briefly discussed hereunder :

 

          Opposite parties 1 and 2 had made the complainant believe that they are owners of a consultancy situated abroad and promised him that they will secure a job visa for him in a bar hotel in Bahrain for which he will get a monthly salary of Rs.270 Bahrain Dinars. Believing opposite parties, complainant had given Rs.20,000/- to them as advance for meeting initial expenses.  Subsequently, 2^nd opposite party had asked him to remit balance amount and accordingly he had paid Rs.60,000/- to her at Nedumkandam.  Upon receiving payment, 1^st opposite party had made him believe that his job application will be accepted within 30 days and he can join in his new work place within the said time in Bahrain.  Complainant had then made preparations for going abroad.  He had raised funds by selling two of  his milch cows and  had spent Rs.33,000/- for travelling and other expenses.  However, to the dismay of complainant, opposite parties had  not  arranged for his job visa, even after lapse  of  many  months.   Owing  to  this,                                                                                                              (cont…2)

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complainant had undergone severe mental agony.  When he had approached 2^nd opposite party to get back the money paid by him, she had lodged a complaint against 1^st opposite party with Shanthanpara Police Station regarding  the incident.  However, complainant did not get back his money.  Complainant has recorded his phone conversations with opposite parties and is prepared to produce recorded sound tracks as evidence.  Complainant submits that he has sufficient evidence and witnesses to prove his case.  He alleges that there is deficiency in service on the part of opposite parties for which he is entitled to be compensated.  Complainant prays for return of Rs.80,000/- paid to opposite parties and also reimbursement of expenditure incurred amounting to Rs.33,000/- with 12% interest, from opposite parties.  He also prays for compensation of Rs.2 lakhs for deficiency in service and an award of Rs.5,000/- as litigation costs from them. 

 

          2. First opposite party had not appeared despite service of notice.  2^nd opposite party had appeared and filed  written version.   Her contentions are briefly discussed hereunder :

 

          According to 2^nd opposite party, complaint is not maintainable in law or upon facts.  2^nd opposite party had not made any promise for securing a job visa for complainant as alleged in the complaint.  She does not own a consultancy or agency as mentioned therein.  It is incorrect to say that she was in receipt of Rs.20,000/- as initial expenses and further a sum of Rs.60,000/- from complainant, for securing a job visa for him.  If at all any such assurances were given by 1^st opposite party, 2^nd opposite party has no knowledge or direct involvement in the said transaction.  It is idle to contend that complainant had sold his milch cows and had expended Rs.33,000/- for meeting his travel expenses.  2^nd opposite party is not responsible for not securing a job for complainant abroad.  However, she had filed a complaint before Shanthanpara Police against 1^st opposite party for having cheated the complainant.  He is residing near to the ancestral house of 2^nd opposite party in Thopramkudy.  1^st opposite party is an agent who is engaged in securing job visas abroad.  2^nd opposite party is a house wife.  She had, by the help of 1^st opposite party, managed to secure a job visa for her brother to work in Saudi Arabia.  When complainant had come to know about this, 2^nd opposite party, upon his request, given him phone number and address of 1^st opposite party.  Thereafter complainant had directly approached 1^st opposite party and had continued his dealings with him.  2^nd opposite party has no involvement in the said transaction.  There is no principal-agent relationship between 1^st and 2^nd opposite parties.  2^nd opposite party has also given Rs.1,25,000/- to 1^st opposite party for arranging a job visa abroad for her husband.  When 1^st opposite party had failed to secure working visa for her husband, 2^nd opposite party had demanded back the money given to him for the said purpose.  When cheques issued by 1^st opposite party in discharge of the said liability were returned dishonoured, 2^nd opposite party had sent a lawyer notice to him.  Off late, she had come to know that 1^st opposite party has been nabbed by police and is presently in jail in                                                                                                                              (cont….3)

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connection with similar cases.  Since relatives of 1^st opposite party had promised to repay the money, 2^nd opposite party had not proceeded further against him.  Complainant has no cause of action against 2^nd opposite party.  When 1^st opposite party was arrested in other matters, complainant had initiated proceedings against 2^nd opposite party so as to pressurize her to pay the money paid by him to 1^st opposite party.  2^nd opposite party has not promised any service or taken any money for service to be rendered to complainant.  There is no deficiency in service on her part.  Claim is not maintainable against 2^nd opposite party.  Hence complaint is to be dismissed against her with costs. 

 

3. Case was then posted for evidence after giving sufficient opportunity to both sides for taking steps.  On the side of complainant, he himself was examined as PW1 along with another witness, one Arunkumar as PW2.  Exts.P1 to P3 were marked on his side.  On the side of 2^nd opposite party, her husband was examined as DW1.  Evidence was thereafter closed and case was posted for hearing.  2^nd opposite party had, at this time, filed IA 1/2022 for reopening evidence.  Though repeated opportunities were given for adducing further evidence, no further evidence was tendered by 2^nd opposite party.  Hence evidence was closed and both sides heard.  Now the point which arise for consideration are :

1)  Whether 1^st and 2^nd opposite parties are service providers as contended in the complaint ?

2)  Whether 1^st and 2^nd opposite parties had promised to secure a job visa for complainant and had, after accepting consideration for the same, failed to do so ?

3)  Whether there is deficiency in service on their part ?

4)  Whether complainant is entitled for the reliefs prayed for ?

5)  Final order and costs ?

 

4.  Point Nos.1 to 4 are considered together :

 

          2^nd opposite party alone is contesting the matter.  1^st opposite party had not appeared despite service of registered notice.  On the side of complainant, apart from himself, one Arunkumar.  P, was examined as witness on his side.  Exts.P1 to P3 were marked.  Ext.P1 is an agreement executed upon a stamp paper of Rs.100/- dated 24.7.2015.  Ext.P2 is photocopy of a complaint lodged by 2^nd opposite party against 1^st opposite party in connection with the alleged transaction in this case.  Ext.P3 is a computer print out of account statement for the period from 17.3.2015 to 3.11.2015 of PW2 maintained with Federal Bank.  It was contended by learned counsel for complainant amongst other matters that PW2 was also swindled by opposite parties 1 and 2 in a similar manner.  When he had demanded return of initial amount, 2^nd opposite party had paid him Rs.15,000/- and Ext.P3 is proof of this fact.

 

                                                                                                                 (cont…4)

 

 

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          Learned counsel for complainant had also reiterated the complaint averments and submitted that his case stands proved by evidence of  PWs1 and 2and Exts.P1 to P3.

 

          In  reply, counsel for 2^nd opposite party would submit that she is not a service provider as such.  No specific allegations are leveled against 2^nd opposite party for having received money from complainant.   That apart, Ext.P1 agreement itself would go to show that money was taken by 1^st opposite party and not by 2^nd opposite party.  Counsel would also point out that Ext.P1 was not produced along with complaint.  It was subsequently forged and produced at the time of evidence.  Therefore no reliance can be placed upon it.  Evidence of PWs1 and 2 is not at all believable as name of PW2 is not seen mentioned in the complaint.  There are no averments to the effect that 2^nd opposite party had taken money from PW2.  Learned counsel submitted that there is no evidence to prove that 2^nd opposite party is a service provider or that she had promised to secure the job visa for complainant as alleged in the complaint.  There is no deficiency in service and cause of action alleged as such is not maintainable.  Complaint is therefore to be dismissed, able counsel contends.

 

          Specific averments in the complaint are to the effect that opposite parties had made the complainant believe that they have a consultancy abroad and that they had promised to secure a job visa for him to work in Bahrain for a monthly salary of 270 Bahrain Dinars.  That upon believing this promise, he had made payments totaling to Rs.80,000/- to 2^nd opposite party.  In fact, pleadings are specific only to the extent of Rs.60,000/- being paid directly to 2^nd opposite party.  As far as initial payment is concerned, there is no specific allegation that 2^nd opposite party had taken the money from complainant.  It is also pertinent to note that the dates on which payments were made, purportedly, are not mentioned in the complaint.  Having said so, in view of contentions advanced regarding maintainability, We shall come  to the merits of the case subsequently.  Presently, we are considering whether there are any evidence to the effect that opposite parties were service providers, so that the complaint can be sustained under section 12 of the Act against them for alleged deficiency in service.  As mentioned earlier, complaint averments are only to the effect that complainant was made to believe by opposite parties that they were owning a consultancy abroad.  It is not clear from the complaint, what was the nature of the consultancy allegedly owned by opposite parties.  It is pertinent to note that official address of this consultancy is not given in the complaint.  Opposite parties are not shown as managers or proprietors or partners of any office.  Complainant only contains their residential address. Even in the chief examination affidavit, affirmation is only to the effect that opposite parties had made the complaint believe that they are operating consultancy abroad which is engaged in recruiting labourers.  Complainant has no case that, opposite parties are maintaining any consultancy or labour agency abroad or in India.  In the absence of specific case that opposite parties are service providers, the complaint cannot be maintained.  Allegations that opposite parties had made complainant believe that they are service providers and                                                                                                                  (cont…5)

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evidence in support of such allegations would only prove, if found to be true that complainant was swindled by opposite parties who pretended that they were service providers.  Allegations in the complaint and proof affidavit are only to the effect that complainant was allegedly cheated by opposite parties who had made misrepresented that they are service providers and had taken money from him.  Evidence on these lines by complainant only proves criminal offences of misrepresentation and cheating. There is no consumer - service provider relationship as such between complainant and opposite parties as per the complaint averments and chief examination affidavit filed by complainant. As there is  no service agreement, there is no consumer service provider relationship between parties and hence the complaint which is against cheating will not lie before this commission. Complaint is not maintainable.

 

          Coming to the allegation, we find that no case is made out with regard to the alleged cheating as against 2^nd opposite party.  Ext.P1 is the only document produced to prove that money had changed hands from complainant to opposite parties in connection with the alleged visa transaction.  As per Ext.P1, if presumed to be duly executed, 2^nd opposite party is  only describe as a witness in it.  It is seen mentioned in Ext.P1 that one Albin, S/o. Sebastian and PW2 on one side had entered into an agreement with 1^st opposite party on 23.7.2015 whereby both were promised a job visa to work as bar man in a hotel in Bahrain for a monthly salary of 270 Bahrain Dinars and an advance of Rs.20,000/- was obtained of the total expenses involved which would come to Rs.80,000/-.  1^st opposite party is seen to have also promised to return the money if visa is not secured for which he and his property will reliable.  There is no whisper in Ext.P1 that 2^nd opposite party had taken any money from complainant or PW2.  Even the name of PW2 is not mentioned in the complaint.  There are no averments in the complaint with regard to the transaction mentioned in Ext.P1 agreement.  Opposite party No.2 has denied Ext.P1.  Signature therein has been denied.  We also notice that the agreement which is dated 23.7.2015 is seen to have been executed and written upon a stamp paper which was purchased on 24.7.2015.  It is obvious that there was no agreement as such on 23.7.2015.  However, we also notice that this anomaly was not pointed out to PW1 during his cross examination or to PW2.   Whatever it may be, for the reasons mentioned above, we are not inclined to rely upon Ext.P1.   Moreover, the document itself goes against the case of complainant that money was in fact taken by 2^nd opposite party and his further case that she was along with 1^st opposite party running a job consultancy / recruitment agency abroad.  We also notice that PW2 had not been cross examined.  However, even his name is not mentioned in the complaint.  He comes into the picture only after production of Ext.P1 agreement, the genuineness of which itself is highly doubtful.  His evidence is not at all reliable and so is of PW1.

 

          To sum up, we find that complainant has not proved that opposite parties 1 and 2 are service providers.  He has also not proved that money was taken by opposite party 2 for providing job visa to him for working abroad as mentioned in the complaint.  He has                                                                                                                 (cont…6)

• 6  -

also not succeeded in proving that opposite parties 1 and 2 have acted together or that both were agents of each other.  To sum up, we are of the view that, complaint is liable to be dismissed as not maintainable.  For the very same reasons, we also find that no reliefs can be granted to complainant.  Point Nos. 1 to 4 are answered accordingly. 

 

5.  Point No.5 :

 

          In the result, this complaint is dismissed, considering the circumstances, without costs.  Parties shall take back extra copies submitted, without delay.

 

                            Pronounced by this Commission on this the 11^th  day of January, 2023

 

                                                                                           Sd/-                

       SRI. C. SURESHKUMAR, PRESIDENT

                                  Sd/-                          

     SMT. ASAMOL P., MEMBER

                       Sd/-                       

    SRI. AMPADY K.S., MEMBER

 

 

APPENDIX

Depositions :

On the side of the Complainant :

PW1         -  Albin Sebastian.

PW2         -  Arunkumar. P.

On the side of the Opposite Party :

DW1        -  Jijo.

Exhibits :

On the side of the Complainant :

Ext.P1      -   Agreement dated 23.7.2015.

Ext.P2      -   Copy of police complaint filed by 2^nd opposite party.

Ext.P3      -   Copy of statement of account of PW2 from Federal Bank.

On the side of the Opposite Party :

Nil.

 

 

 

                                                                                  Forwarded by Order,

 

 

 

                                                                            ASSISTANT REGISTRAR