BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION : AT HYDERABAD.



FA No.61/2006 against CD.No.926/2004 District Consumer Forum-I,Hyderabad.



Between:

K.Ravi Kumar S/o.Laxmaiah,

Age : 24 years, Occ: Private Employee,

R/o.H.No.23/2, Sainagar Colony,

Lalithanagar, Nagole, R.R.Dist.

…Appellant/Complainant.

And

M/s.Mahalakshmi Enterprises,

Rep. by its Proprietor B. G. Nithin Babu,

S/o.Ganapathi Rao,

Age : 39 years, Occ: Business,

R/o.H.No.2-1-73/1/2, Nallakunta, Hyderabad.

…Respondent/Opp.Party.

Counsel for the Appellant : Mr.R.Prabhakar.

Counsel for the Respondent : M/s.Gopi Rajesh & Associates.



QUORUM: THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT,

SMT.M.SHREESHA, MEMBER.

AND

SRI K.SATYANAND, MEMBER.



WEDNESDAY, THE TWENTY SEVENTH DAY OF MAY,

TWO THOUSAND NINE.



Oral Order (Per Sri K.Satyanand, Hon’ble Member)

*******

1. Not satisfied with the volume of relief granted by the District Forum, the complainant filed the present appeal, obviously for fuller relief in terms of his prayer in the complaint. The facts that led to filing this appeal are briefly as follows:

2. It is the case of the complainant that the opposite party approached the complainant appraising him of a scheme floated by them for household items i.e. Hero Honda vehicle, Carpets, etc. Lured by the said offer, the complainant claimed to have taken membership in the said scheme. As per the terms of the scheme, a monthly instalment of Rs.2,565/- was stipulated to be paid. The complainant claimed to have adopted the said terms in preference to the alternative mode of payment. It was further offered by the opposite party that if the complainant intended to possess a Hero Honda in advance he would have to pay a further amount of Rs.15,000/-. The complainant claimed to have paid the said amount of Rs.15,000/- on 11.10.2000. He further claimed that thereafter he went on paying the instalments at the rate of Rs.2,565/- or more per month from 06.11.2001 onwards. However, he claimed to have paid amounts at times bi- monthly or for more than two months at a time. Thus he claimed to have paid a total amount of Rs.60,560/- as on 09.01.2003. Yet the opposite party did not provide him the Hero Honda vehicle nor refunded the amount. So vexed with the attitude of the opposite party, he claimed to have got issued a legal notice on 13.03.2004 demanding the refund of the amount along with interest. But the opposite party refused to receive the said notice and on the other hand called the complainant on phone and threatened him. As such the complainant filed the complaint for recovery of the said amount along with interest as also damages for mental agony, costs and consequential relief.

3. The said complaint came to be resisted by the opposite party, but averred inter alia that the complainant suppressed a number of facts as his having taken earlier a BPL colour TV by instalments and also borrowing loans to a tune of Rs.30,000/- at one time and Rs.75,000/- at another time and defaulting himself in discharging those debts, etc. He further maintained that though he paid certain amounts towards Hero Honda vehicle in view of his failure to discharge those debts the instalment amounts paid towards Hero Honda have come to be set off or appropriated towards the discharge of the loss, and therefore, at the end, the complainant still turned out to be a debtor with an outstanding debt of more than what he claimed in his complaint.

4. In support of his case, the complainant filed his own affidavit by way of evidence and relied upon documents, marked as Exs.A.1 to A.4. The opposite party, on the other hand, though filed the evidentiary affidavit failed to file documents adverted to in the said affidavit. Thus the opposite party resisted the claim by filing his own affidavit, but without any supportive documents.

5. Ultimately on a consideration of the material on record, the District Forum came to the conclusion that the complainant could establish his claim only to an extent of Rs.11,560/- and therefore passed an order directing the opposite party to pay him the said amount along with costs in a sum of Rs.1,000/-.

6. Aggrieved by the inadequacy of the relief granted to him, the complainant filed the present appeal contending inter alia that the Forum erred in granting the meager amount of Rs.11,560/- and nothing more except costs by failing to appreciate the mass of documentary evidence showing the payments and taking note of the failure of the opposite party to establish its counter claim justifying evasion of the payment of the claim amount.

7. While the appellant filed written arguments, counsel for the respondent addressed oral arguments. In the light of the submissions made by the counsel as also the material on record, the points that arise for consideration are :

i) Whether the relief granted to the complainant by the District Forum is commensurate with the case made out by him?

ii) Whether there are any grounds to modify the order of the District Forum, if so in what respects?

8. Point No.1:

This is a complainant’s appeal. Therefore, the bottom line that can hardly be transgressed by this Commission is the relief already granted to the complainant by the District Forum. In other words, this Commission is not supposed to upset what was already granted though may validly examine the only issue whether the claim of the appellant for further relief over and above the relief already granted by the District Forum is tenable or not. Though the District Forum relied upon the documents marked as Exs.A.1 to A.4, there is a fallacy on the face of it in the matter of computation even in terms of the parameters it set for itself in the matter of quantification of the amount that the complainant is entitled to. The District Forum had come to the conclusion that the complainant was entitled to Rs.11,560/- only relying upon Exs.A.1 to A.6 and Ex.A.8 and A.9 and eschewing the evidence in Ex.A.7 a receipt showing the payment of Rs.9,000/- by the complainant to the opposite party. The said amount of Rs.9,000/- described as for not only Hero Honda vehicle but also for TV was held to be intended to be apportioned only for T.V. Even then if we make a total of the amounts evidenced by Ex.A.1 to A.6 and Ex.A.8 and A.9, it would come to Rs.25,230/-. The amount of Rs.25,.230/- is arrived at without, for the time being, disturbing the finding of the District Forum that the complainant failed to prove the amount of Rs.15,000/- allegedly paid initially and also ascribing the amount of Rs.9,000/- exclusively to the arrears of instalments relating to the T.V. deal which will be dealt with presently in the forthcoming discussion. We are at a loss to understand how the District Forum arrived at a figure of Rs.11,560/- even when the amount is restricted to undisputable receipts. Coming back to the payment disclosed by Exs.A.7 it is clearly maintained that the complainant had paid Rs.9,000/- on 03.10.2002. The payment was described for T.V. and Hero Honda vehicle. As a matter of fact there is no break up of apportionment to T.V. instalment and Hero Honda instalment. It is for the opposite party to come up with best evidence. They did not care to tender any document even after referring to production of such document in the affidavit. Not withstanding the fact that the payment is described as pertaining to T.V. and Hero Honda, in view of the withheld evidence, the payment has to be taken into account as relative in its bulk, to the Hero Honda deal. By this device if the said amount of Rs.9,000/- is added to the above amount of Rs.25,230/- the total amount outstanding due to the complainant from the opposite party would raise to Rs.34,230/-. The District Forum in keeping with its own reasoning and finding ought to have ordered for the payment of an amount of Rs.34,230/- to the complainant by the opposite party. The District Forum ought to have also ordered interest. It denied both interest as well as damages for mental agony. After all a situation in which money becomes unproductive in itself would entail mental agony for a person who parts with money. As we are inclined to grant interest we are not in any way inclined to grant any damages towards mental agony as the direction to pay interest would take care of that aspect also. Now coming to the case of the opposite party, they tried to defeat the entire claim by putting up a story of set off or counter claim but without any evidence whatsoever. Though they had referred to certain documents in their own affidavit they failed to produce the same thereby giving raise to an occasion for drawing adverse inference against such deponent. Be that as it may, this is not an appeal filed by the opposite party, and therefore, the case of the opposite party may not be given any further consideration except to the extent of meeting it in the process of adjudicating the appeal of the complainant. In these circumstances, we are of the firm opinion that the appeal has to be allowed modifying the order of the District Forum.

9. In the result, the order of the District Forum is modified directing the opposite party to pay to the complainant/appellant Rs.34,230/- with interest at 9% per annum from the date of complaint till the date of realization and also an amount of Rs.2,000/- by way of costs of this appeal. Time for compliance six weeks from the date of receipt of this order.

PRESIDENT



MEMBER





MEMBER

Dt:27.05.2009.