Date of filing : 26-05-2011
Date of order : 10-12-2012
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.122/2011
Dated this, the 10th day of December 2012
PRESENT
SRI.K.T.SIDHIQ : PRESIDENT
SMT.P.RAMADEVI : MEMBER
SMT. K.G.BEENA : MEMBER
V.Kunhambu Nair, S/o.Late Koran Nair, } Complainant.
“Sreeniketan” Vidyanagar.Po.
Kasaragod Village & Post.
(Adv.B.Raveendran, Kasaragod.)
1. Thresiamma, } Opposite parties
Officer-in-charge,
Rubber Marketing Co-operative Federation,
Ulikal Branch, Iritty, Ulikal.Po. Kannur.Dt.
(Adv.M.Narayanan, Hosdurg)
2. The General Manager,
Kerala State Co-operative Rubber Marketing
Federation Ltd, PB NO.15, Gandhinagar,
Kochi, Ernakulam.
(Adv.K.A.Joy, Hosdurg)
O R D E R
SRI.K.T.SIDHIQ, PRESIDENT
Bereft of unnecessaries the complaint is as follows:
On 02-12-2008 complainant entrusted 1900 Kg of rubber with the Kuttikkol branch officer CJ Mathew of opposite party No.2 Kerala State Co-operative Rubber Marketing Federation Ltd. Mr. Mathew told the complainant that there is a chance of increase in the rate of Rubber and accordingly complainant agreed for keeping his rubber as stock and sell when price increases. On 2-12-2008 Mr.Mathew issued an inter office Memo receipt to the complainant as a proof of entrustment of Rubber. After 2 months though complainant contacted Mr.C.J.Mathew he told that there is chance for further increase in the market price of rubber. Since the complainant was not in urgent need of money he did not ask for the money. Later he came to know that Mr.C.J.Mathew died in an accident on 01-07-2009. Then he met opposite partyNo.1 the wife of deceased C.J. Mathew at that time she stated that the rubber entrusted was sold on the next day of entrustment itself and she promised that she will pay the money at the present rate. But later she withdrawn from her promise. Hence the complaint.
2. Opposite party No.1 filed version denying all the allegations of complainant. According to opposite party No.1 C.J.Mathew her husband died on 2-7-2009 in an accident and thereafter opposite party.No.2 took possession of the branch office of Kuttikol along with assets and liabilities including the stock. After the death of Sri.C.J. Mathew, the 2nd opposite party appointed opposite party No.1 as office-in-charge at Ulikkal branch in Iritty. Since she could not manage the office she resigned that job. While she working in Ulikkal branch she came to know that there is no practice for opposite party No.2 to purchase rubber and stock it till increase in price. Opposite party No.2 is purchasing the rubber from party and paying the amount within 2 weeks and there is no credit system. Husband of opposite party No.1 has never stocked any rubber or made any liability to be paid to any party. The opposite partyNo.2 after conducting physical verification and Audit did not fix any liability in the name of the husband of the first opposite party. She is an unnecessary party to the proceedings. Therefore the complaint is liable to be dismissed.
3. According to opposite party No.2 the complaint is not maintainable since the complainant is not a consumer and the dispute mentioned herein is not a consumer dispute. The opposite party is a society register under the provisions of Kerala Co-operative Societies Act 1969, hence the dispute can be adjudicated and by arbitration U/s 69 of Kerala Co-operative Societies Act and there is implied ouster of jurisdiction of any other authority. The allegation that complainant bought 1900Kgs or rubber on 2-12-2008 and the then Branch Manager has kept it’s stock and has not paid the amount to the complainant is false and misleading. The opposite party No. 2 did not have any scheme like deposit or stock rubber. It is true that 1900 Kgs rubber sheet is purchased by the 2nd opposite party from the complainant. It was on 3-12-2008 and the price shown is 64 Kg and total amount of `1,21,600/- is seen paid by opposite party No.2 and the same is received by the seller i.e. the complainant. Thereafter original purchase bill was also issued to the complainant and the same was duly acknowledged by the complainant as well. The 2nd opposite party is not aware about issues transacted between the complainant and 1st opposite party. Complainant is unnecessarily dragging opposite party No.2 to the case. The complaint is therefore liable to be dismissed.
4. After filing the version complainant filed proof affidavit and Exts A1 to A7 marked and he faced cross-examination by the learned counsel for opposite parties. Witness of opposite party No.2 filed affidavit. Exts.B1 to B6 marked on the side of opposite parties. Both sides heard. Documents perused.
5. The issues to be settled in this case are:
1. Whether the complainant is a consumer and the dispute is maintainable before
the forum?
2. Whether the complainant is entitled for the relief claimed?
3. What is the order as to costs?
6. Issue No.1: Opposite party No.2 has taken a contention that complainant is not a consumer and the dispute mentioned herein is a not a consumer dispute. According to opposite party No.2 complainant is neither purchased any goods from the opposite parties nor hired any service from them. On the contrary the complainant is the seller and the opposite parties are the purchasers. It is his further contention that there is no element of service involved since the opposite parties are not rendering any service. Complainant also could not prove that the opposite parties are traders or service providers to make them liable under the Consumer Protection Act.
7. Therefore we accept the contention of 2nd opposite party and hold that complainant is not a consumer and the dispute mentioned here in is not a consumer dispute.
8. Therefore the issues 2 & 3 are left unanswered.
9. Since it is found that the complaint is not maintainable before the Forum and the dispute involved in this complaint is one of Civil nature we relegate the complainant to civil court for vindicating his grievances.
If the complainant chooses to file a suit for the relief claimed in this proceedings he can do so according to law and in such case he can claim the benefit of Sec 14 of the Limitation Act to exclude the period spent in prosecuting proceedings under Consumer Protection Act while computing the period of limitation prescribed for such a suit as per law.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Exts.
A1.02-12-2008 Inter office memo
A2.30-11-2010 copy of lawyer notice.
A3.30-11-2010 copy of lawyer notice.
A4. 27-11-2010 copy of complaint sent by V.Kunhambu Nair to Omanakuttan.
A5 to A7 postal acknowledgment cards.
B1.03-12-2008 copy of bill for an amount of `1,21,600/-
B2. Copy of Creditors Register at Branches( The Kerala State Co-operative Rubber
Marketing Federation Ltd)
B3. 23-06-2011 Reply notice.
B4. 23-06-2011 Reply notice.
B5. 02-12-2008 copy of bill
B6. copy of the Prediction Register Page No.13, 15,18 and 28.
PW1. Kunhambu Nair
DW1.P.P.George.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Forwarded by Order
SENIOR SUPERINTENDENT
Pj/
