DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 31st day of March 2023
Filed on: 06.09.2018
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member Smt.Sreevidhia.T.N Member
C C No. 374/2018
COMPLAINANT
Pradeep K.K. , S/o Krishnan, Kuruppath House, Permanently Residing at SVRA 16, Pazhapura Road, Kakkanadu - 682 030, Eranakulam District Now residing at C-4 Maghna residency, Kannamkulagara, Thrissur-7.
(Branch Manager of LIC, Kattoor) (Thrikkakkara & Nedupuzha Police Station Limits respectively)
(By Adv.Manumon A., IInd Floor, Peace Tower, Opp. North Gate of Collectorate & District Panchayath, Ayyanthole-680 003)
Vs.
OPPOSITE PARTY
Shoba Sunil @ Shoba Francis, D/o Francis Xavier, Managing Partner, Shore Line Holidays, 3 rd Floor, Vee Jey Tower, Salim Rajan Road, Gandhi Nagar, Kadavanthra, Cochin- 682017 Permanently Residing at Thachappilly House, Ponnarimangalam, Mulavukadu (P.O), Cochin- 682504 (Kadavantra & Mulavukadu Police Station Limits respectively)
(o.p rep. by Adv.Priya P.A., Adv.Dhanya Babu, 2nd Floor, Anand Bazar, Ernakulam South, Pin-682 106)
F I N A L O R D E R
D.B.Binu, President.
1) A brief statement of facts of this complaint is as stated below:
The complaint was filed under Section 12 (1) of the Consumer Protection Act,1986. The brief facts, as averred in the complaint, are that the complainant is working as the Branch Manager of LIC Kattur Branch. The complainant along with his friends Mr. P. Jayant and Mr. Jerald Raphel who are also officers of LIC had booked a 'tour package' with the opposite party towards "Andaman" for five days and four nights which was all-inclusive during the Pooja holidays from 29.09.2017 onwards. The opposite party is conducting the business of "tour packages" in the name and style" Shore Line Holidays". The complainant and P. Jayant’s family consist of four adults each, and Mr Jerald Raphel's family consists of three adults. The complainant had transferred Rs. 1,44,000/- to the account of the opposite party, out of which Rs. 1,00,000/- was transferred on 07.09.2017 and Rs.44,000/- was transferred on 16.09.2017 through the Complainant's bank i.e., Bank of Baroda, to the bank where the opposite party holds her account i.e., Bank of Baroda, at Kallur Branch. Among the other two persons, Mr P. Jayant had transferred Rs. 1,44,000/- to the opposite party account and Mr Jerald Raphel the opposite party sent the flight tickets to the complainant and to the other two aforesaid persons. But on 26.09.2017 The opposite party intimated to the complainant and others that the tickets issued were forged and the complainant and two aforesaid persons could not travel with the aforesaid tickets. At that juncture, the opposite party had promised to repay the entire amount received by her to the complainant and to the aforesaid two persons. The total amount spent by the aforesaid two persons and by the complainant is Rs. 3,96,000/-. On 04.10.2017 the complainant and others lodged a petition bearing No. 128074/17 to the Janamythri Police Station Kadavanthra against the opposite party. Thereafter the opposite party begged for a compromise, and accordingly, as per the compromise on 06.10.2017, the opposite party had paid an amount of Rs. 1,03,000/- as the first installment to Mr. Jerald Raphel towards the amount due to all the aforesaid three persons including the complainant. For the balance amount due to the aforesaid persons and to the complainant, the opposite party had sought time for repayment. The opposite party had also promised to give 6% interest for the amount due. The balance amount due to all the aforesaid persons including the complainant had been decided as Rs.2,96,000/- including interest. Towards the balance amount due to all the aforesaid persons, the opposite party had signed and delivered three post-dated cheques on 06-10-2017 of equal amounts to the Federal Bank Ltd, Kathrukadavu Branch. To the Complainant herein, the opposite party had signed, issued, and delivered a handwritten post-dated cheque which was brought by the opposite party bearing No:143337 dated 25-11-2017 for Rs.98667/- of the said Bank through Mr Jerald Raphel. The opposite party had signed in the said cheque in the presence of the Complainant. Other two cheques of identical character regarding amount and date were also issued in favour of Mr. P.Jayanth and Mr.Jerald Raphel respectively. The opposite party had also executed a document on 06.10.2017 in stamp paper admitting the liability and issuance of cheques. When Mr.Jerald Raphel received Rs. 1,03,000/- on 06-10-2017 as mentioned above, Rs.35,000/- each, was given to the Complainant and to Mr P.Jayanth, and Rs.33,000/- was taken by Mr Jerald Raphel. The balance amount due to Mr Jerald Raphel after deducting the first instalment as mentioned above is only Rs.76,000/-. The cheques issued to Mr Jerald Raphel are for an amount of Rs.98,667/-. The balance amount of Rs.22667/-(Rs.98,667-76,000) on realising the amount covered by the said cheque is to be paid to Mr P.Jayanth and to the Complainant equally, by Mr Jerald Raphel. The cheque issued to Mr Jerald Raphel got dishonoured, it is understood that he had filed a complaint u/s 138 & 142 of the NI Act against the opposite party in that account. The complainant had received the cheque from the opposite party believing the words of the opposite party that the cheque will be honoured on presentation. Complainant presented the above said cheque bearing No:143337 dated 25-11-2017 of Rs.98,667/-through Complainant's bank account at Bank of Baroda (the said cheque presented for collection through Bank of Baroda, Irinjalakuda Branch) for collection, as there were insufficient funds in the account of the opposite party to honour the cheque, the same got dishonoured for the reason "funds insufficient" and the same was intimated to the Complainant vide memo dated 29-11-2017. The complainant sent a registered lawyer notice dated 28.12.2017 on the same date to the opposite party, in her office as well as the opposite party’s address demanding the cheque amount. The opposite party received the notice sent to her residential address on 30.12.2017and the notice sent to the office address, was returned, as locked, on 30.12.2017 hence it is unclaimed. But the opposite party neither sent a reply nor made the payment till this date. Thereafter the cheques were dishonoured on presentation hence the complainant herein filed a complaint before JFCM No 3 Muvattupuzha U/S 138 and 142 of the Negotiable Instrument Act, and the said case was compromised by the parties and the accused had given rupees 98,669 to the complainant. The complainant is a consumer. The complainant had paid requisite consideration for availing of the 'tour package' from the opposite party. The above said wrongful acts of the opposite party amount to deficiency of service and unfair trade practice. The dispute between the complainant and the opposite party is a 'Consumer Dispute. The complainant had approached the commission seeking an order directing the opposite party to pay 1,09,000/- (Rs. 1,44,000- Rs.35,000/-) as the cheque issued in favour of the complainant was for Rs. 98,667/-, Rs. 25,000/ towards compensation for the mental agony, financial loss, and hardships suffered by the complainant due to the unexpected expenses incurred like hiring vehicles, lodging, and food expenses and Rs. 15,000/- as the cost of the proceedings.
2). Notice
Notice was issued from the Commission to the opposite party. The opposite party received the notice but did not file their version. Consequently, the opposite party is set ex-parte.
3). Evidence
The complainant had filed a proof affidavit and 12 documents that were marked as Exhibits-A-1- to A-12.
Exhibit A-1: True copy of the Cheque bearing No. 143337 of Federal Bank Ernakulam, Kathrukadavu Branch of Rs.98,667- issued by the opposite party to the complainant (Certified copy)
Exhibit A-2: 27.11.17 Common deposit slip of Bank of Baroda for depositing the above-said cheque for collection (Certified Exhibit A-3: 29.11.17 Dishonour memo issued by Federal Bank Ltd Irinjalakkuda Branch (Certified copy).
Exhibit A-4: Copy of E-receipt (Certified copy).
Exhibit A-5: E-mail sent by shore -line Holidays 15.09.17 (Certified copy).
Exhibit A-6: 26.09.17 E-mail sent by shore -line Holidays (Certified copy).
Exhibit A-7: 28.12.17 Lawyer notice sent by the complainant to the accused (Certified copy)
Exhibit A-8: 28.12.17 Postal receipts for sending the lawyer notice (Certified copy).
Exhibit A-9: 30.12.17 Postal AD for receiving the said notice (Certified copy).
Exhibit A-10: 30.12.17 Postal cover returned unserved (Certified copy)
Exhibit A-11: 09.02.18 Affidavit copy in CC 440/18 filed by the complainant against the opposite party before the Hon'ble JFCM Court, Moovatupuzha copy)
Exhibit A-12: Copy of the agreement executed by the opposite party in favour of the complainant and others (Photostat copy) dated 06.10.17
4) The main points to be analysed in this case are as follows:
i) Whether the complaint is maintainable or not?
ii) Whether there is any deficiency in service or unfair trade practice from the side of the opposite party to the complainant?
iii) If so, whether the complainant is entitled to get any relief from the side of the opposite party?
iv) Costs of the proceedings if any?
5) The issues mentioned above are considered together and are answered as follows:
As per Section 2 1 (d) of the Consumer Protection Act,1986, a consumer is a person who buys any goods or hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment. The complainant produced a true copy of an E-mail sent by the opposite party dated 26.09.17. The complainant had paid requisite consideration for availing of the 'tour package' from the opposite party. (Exhibit A-6). Hence, the complainant is a consumer as defined under the Consumer Protection Act,1986.
The facts of this case involve criminal offences like forgery, cheating and other tortious liability claims and which was or already decided by other courts or still under their consideration requiring detailed evidence. In the light of the Judgment of the Hon’ble Supreme Court of India in Oriental Insurance Co. Ltd. vs. Munimahesh Patel (2006) 7 SCC 655 held that the proceedings before the Commission are essentially summary in nature and the issues which involve disputed factual questions, should not be adjudicated by the Commission we do not find merit in the contentions raised by the complainant. Hence the following orders are issued.
ORDER
Under the circumstances stated above the Commission do not find merit in the contentions raised by the complainant and therefore the complaint is dismissed. No cost.
Pronounced in the Open Commission this 31st day of March 2023.
Sd/-
D.B.Binu President
Sd/- V.Ramachandran Member
Sd/-
Sreevidhia T.N., Member
Forwarded by Order
Assistant Registrar
Assistant Registrar
APPENDIX
Complainant’s Evidence
Exhibit A-1: True copy of the Cheque bearing No. 143337 of Federal Bank Ernakulam, Kathrukadavu Branch of Rs.98,667- issued by the opposite party to the complainant (Certified copy)
Exhibit A-2: 27.11.17 Common deposit slip of Bank of Baroda for depositing the above-said cheque for collection (Certified Exhibit A-3: 29.11.17 Dishonour memo issued by Federal Bank Ltd Irinjalakkuda Branch (Certified copy).
Exhibit A-4: Copy of E-receipt (Certified copy).
Exhibit A-5: E-mail sent by shore -line Holidays 15.09.17 (Certified copy).
Exhibit A-6: 26.09.17 E-mail sent by shore -line Holidays (Certified copy).
Exhibit A-7: 28.12.17 Lawyer notice sent by the complainant to the accused (Certified copy)
Exhibit A-8: 28.12.17 Postal receipts for sending the lawyer notice (Certified copy).
Exhibit A-9: 30.12.17 Postal AD for receiving the said notice (Certified copy).
Exhibit A-10: 30.12.17 Postal cover returned unserved (Certified copy)
Exhibit A-11: 09.02.18 Affidavit copy in CC 440/18 filed by the complainant against the opposite party before the Hon'ble JFCM Court, Moovatupuzha copy)
Exhibit A-12: Copy of the agreement executed by the opposite party in favour of the complainant and others (Photostat copy) dated 06.10.17
C.C. No.374/2018
Order dated 31.03.2023
