KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No. 77/2016

JUDGMENT DATED: 05.11.2024

(Against the Order in C.C. 101/2012 of DCDRC, Kannur)

PRESENT:

HON’BLE JUSTICE SRI. B. SUDHEENDRA KUMAR             : PRESIDENT

SRI. AJITH KUMAR D.                                                                 : JUDICIAL MEMBER

SRI. RADHAKRISHNAN K.R.                                                     : MEMBER

APPELLANT:

Manager, M/s Vodafone Cellular Ltd., Pallikunnue, Kannur.

(By Adv. Shyam Padman & Adv. S. Reghukumar)

                                                Vs.

RESPONDENTS:

1. Titus, S/o Joseph, Kappil House, Titan Electronics, Vellarikkund P.O., Pin-671 533.

2. Manager, North Malabar Gramin Bank, Pallikkunnu Branch.

(By Adv. K.N. Justin for R2)

JUDGMENT

HON’BLE JUSTICE SRI. B. SUDHEENDRA KUMAR  : PRESIDENT

The appellant is the 1^st opposite party, the 1^st respondent is the complainant and the 2^nd respondent is the 2^ndopposite party in C.C. No. 101/2012 on the files of the District Consumer Disputes Redressal Commission, Kannur (for short “the District Commission”).

2.  The 1^st respondent filed a complaint against the appellant and the 2^nd respondent alleging deficiency in service.  The 1^st respondent is conducting a small shop for his livelihood.  When the 1^st respondent had come to learn that the appellant proposed to give distribution of Vodafone mobile service to third parties in the area of the 1^st respondent, the 1^st respondent approached the appellant.  Then, the appellant informed the 1^st respondent that the 1^strespondent could apply for obtaining the distribution.   Accordingly, the 1^st respondent went to the office of the appellant on 02.07.2008.  After an interview, the 1^st respondent was informed that he would be given the distribution of Vodafone mobile service.  The 1^st respondent was also required to handover a demand draft for Rs. 25,000/- (Rupees Twenty Five Thousand only) to the appellant.  Accordingly, the 1^st respondent had taken a demand draft from the 2^nd respondent and handed it over to the appellant.  Then, the appellant informed the 1^st respondent that the distribution would be given within 15 days.  However, the distribution was not given as promised.  Thereafter, the 1^st respondent came to know that the distribution of Vodafone mobile service was given to some other person. Then the 1^st respondent approached the appellant and requested him to return the demand draft.  However, the appellant informed the 1^st respondent that the demand draft was misplaced.  Thereafter, the 1^st respondent was requested to give a letter for getting back the money in respect of the demand draft from the bank.  The 1^st respondent gave a letter to the 2^nd respondent for the refund of the money.  The 2^nd respondent advised the 1^st respondent to execute a bond by the 1^st respondent and the appellant in favour of the 2^nd respondent in a stamp paper worth Rs. 100/- (Rupees Hundred only). Accordingly, the 1^st respondent signed the bond.  However, the appellant was not prepared to sign the bond.  Therefore, the 2^nd respondent did not give the amount covered by the demand draft to the 1^st respondent.   In view of the above, the 1^st respondent alleged deficiency in service on the part of the appellant and the 2^nd respondent. 

3.  The appellant filed version totally denying the contentions of the 1^st respondent. 

4.  The 2^nd respondent filed version admitting that the 1^st respondent had taken a demand draft for Rs. 25,000/- (Rupees Twenty Five Thousand only) in favour of the appellant.  The 2^nd respondent also admitted that the 1^st respondent was required by the 2^nd respondent to execute a bond as contended by the 1^st respondent.  

5.  The 1^st respondent was examined as PW1 and Exhibits A1 to A5 were marked for the 1^st respondent.  DW1 was examined for the 2^nd respondent.  After evaluating the evidence, the District Commission directed the 2^nd respondent to refund Rs. 25,000/- (Rupees Twenty Five Thousand only) with interest @ 9% per annum from the date of issuance of the demand draft till refund.  The District Commission also directed the appellant to give an amount of Rs. 10,000/- (Rupees Ten Thousand only) as compensation and Rs. 1,500/- (Rupees One Thousand Five Hundred only) as costs.  Aggrieved by the said order, this appeal has been filed. 

6.  Heard.  Perused the records. 

7.  The contention of the 1^st respondent is that he approached the appellant for the purpose of getting the distribution of Vodafone mobile service.  After the interview, the appellant directed the 1^st respondent to hand over a demand draft for Rs. 25,000/- (Rupees Twenty Five Thousand only).  Accordingly, the 1^st respondent had handed over a demand draft for Rs. 25,000/- (Rupees Twenty Five Thousand only) to the appellant.   Thereafter, the appellant told the 1^st respondent that the distribution would be given to him within 15 days.  However, when the 1^st respondent came to know about the giving of the distribution to some other person in the area, he approached the appellant and requested him to return the demand draft.  Then the appellant informed the 1^st respondent that the demand draft was misplaced.  Thereafter, the 1^st respondent had given a letter to the appellant as directed by the appellant. A letter was also given to the 2^nd respondent for the refund of the amount covered by the demand draft. 

8.  DW1 had fully supported the evidence of PW1 that a demand draft for Rs. 25,000/- (Rupees Twenty Five Thousand only) was taken by PW1 from the bank of DW1 in favour of the appellant.  The appellant would contend that the appellant had no dealing with the 1^st respondent and that the appellant did not receive any demand draft from the 1^st respondent.  There is absolutely no material on record, apart from the ipse dixit of PW1, to prove that the 1^st respondent had handed over the demand draft to the appellant.  

9.  It is not disputed that the demand draft was not encashed by the appellant.  The 1^st respondent would contend that the demand draft was misplaced by the appellant.  The validity period of the demand draft was admittedly over by that period.  Therefore, there was also no chance for misusing the said demand draft by anybody.  Even though the demand draft was taken in favour of the appellant, the appellant would contend that the said demand draft might have been lost from the1^st respondent.   Exhibit A2 is the bond wherein the 1^st respondent had signed.  However, the appellant did not sign Exhibit A2 bond.  Exhibit A2 would show that the demand draft was lost in transit.  Since the appellant did not sign Exhibit A2, the appellant cannot be responsible for the recitals in Ext. A2, particularly when the demand draft was not encashed by the appellant.  In view of the above, we are not able to find any deficiency in service on the part of the appellant in this regard.  In the absence of any evidence to prove that the demand draft was handed over to the appellant by the 1^st respondent and the said demand draft was lost from the appellant, the District Commission was not justified in awarding compensation and costs against the appellant.  We do not propose to express any opinion about the direction issued by the District Commission against the 2^nd respondent, as the said direction is not under challenge in this appeal.

10.  Having gone through the relevant inputs as discussed above, we are of the view that the compensation and costs ordered by the District Commission as against the appellant cannot be sustained and consequently we set aside the same. 

In the result, this appeal stands allowed, setting aside the compensation and costs ordered by the District Commission as against the appellant in C.C. No. 101/2012 and the complaint as regards the appellant stands dismissed.  In the circumstances of the case, there is no order as to costs.

The statutory deposit made by the appellant shall be refunded to the appellant, on proper acknowledgment. 

JUSTICE B. SUDHEENDRA KUMAR: PRESIDENT

                                                                  AJITH KUMAR D. : JUDICIAL MEMBER

                                                                        RADHAKRISHNAN K.R.  : MEMBER

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