State Consumer Disputes Redressal Commission
Mariya Jeyakumar,No.126, Powel ... vs Bala Ganesh,74, Sarguna ... on 11 January, 2011
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Thiru.J.Jayaram, M.A., M.L., JUDICIAL MEMBER
Thiru.S.Sambandam, B.Sc., MEMBER II F.A.622/2007 [Against order in C.C.14/2007 on the file of the DCDRF, Nagercoil] DATED THIS THE 11th DAY OF JANUARY 2011 Mariya Jeyakumar, | Appellant /Opposite Party (Contractor, Municipality Cycle Safety Stand), | No.126, Powel Street, Puthukudiyiruppu, | Nagercoil 629 001. | Vs. Bala Ganesh, | Respondent / Complainant 74, Sarguna Veethi, | Nagercoil. | The Respondent / complainant filed a complaint before the District Forum against the opposite party praying for the direction to the opposite party to repay the Rs.1.50, to pay Rs.10,000/- towards severe mental depression, stress, strain, agony and physical sufferings caused by the appellant and to pay the cost. The District Forum allowed the complaint, against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.30.05.2007 in C.C.14/2007.
This appeal coming before us for hearing finally on 04.01.2011, upon hearing the arguments of appellant counsel and perused the documents, as well as the order of the District Forum, this commission made the following order:
Counsel for the Appellant / O.P. : Mr.R.Asokan, Advocate.
For the Respondent / Complainant : Served Absent.
M. THANIKACHALAM J, PRESIDENT
1. The opposite party is the appellant.
2. The respondent/complainant had been to Nagercoil Municipality Cycle Safety Stand, on 22.11.2006, maintained by appellant/opposite party, in order to leave the cycle for safe custody, where the opposite party claimed excess of Rs.1.50, instead of Rs.1/-, thereby committed not only negligence, but also deficiency in service. When questioned, he abused the complainant, causing mental agony. Hence, the complainant is entitled to the excess amount paid namely Rs.1.50 as well as a sum of Rs.10,000/- as compensation.
3. The opposite party, admitting that he is conducting the Cycle Safety Stand of Nagercoil Municipality, as licensee, would contend that as prescribed and approved, he is collecting only Rs.1/- and never demanded or collected excess of Rs.1.50 from the complainant, which is evident from the receipt, that alleging false charges, the complainant, who is a litigant, has filed a false case, based upon frivolous allegations, thereby praying for the dismissal of the complaint.
4. The District Forum, accepting the case of the complainant, as if, the opposite party had demanded Rs.1.50 extra over and above the prescribed fee of Rs.1/-, affixed deficiency upon the opposite party, not only based upon two affidavits filed on behalf of the complainant, but also based upon the previous order in OP.32/2005. In this view, a direction came to be issued to pay a sum of Rs.5,000/- as compensation with cost of Rs.500/-, which is impugned on various grounds, in this appeal.
5. The learned counsel for the appellant urged before us, that the approach of the District Forum based upon the previous order in OP.32/2005 and Writ Order, is erroneous, that too, because of the change of circumstances and that the alleged excess collection by the opposite party when not proved satisfactorily, a presumptive order passed, taking bias, should be upset, which is opposed.
6. The District Forum though recorded a finding in this case, as if, opposite party had collected excess amount, very much relying upon the previous order, as well the High Court Order, in the Writ Petition, we have to see the position of those Orders.
7. The complainant has filed a case before the District Forum, Nagercoil in OP.32/2005, and obtained an exparte order, which was challenged before this Commission in F.A.13/2007, which was not contested or opposed by the complainant, who was the respondent in that appeal. Considering the nature of the Order, and to give an opportunity to the opposite party therein, the Order in CC.32/2005, dated 31.5.2005 was set aside and the matter was remanded back to the District Forum, on 07.10.2010 for fresh disposal according to law. Therefore, on the basis of the previous order, it is not possible to say, that the opposite party was in the habit of collecting excess fare, once again.
8. After the complainant/respondent obtained an order in CC.32/2005, he has filed a Writ Petition before the High Court in W.P.9979/2006, wherein, taking into account, the Order available at that time, a direction has been issued to the second respondent, in the Writ, namely the Commissioner of Municipality to take action against the present appellant, namely Mariya Jeyakumar and that order was based upon the order passed by the District Forum in CC.32/2005, dated 31.05.2005. As said above, that order is no more in existence, and therefore, the second respondent, in the Writ namely the Commissioner, Nagercoil Municipality, cannot take any action, and in this view, the Writ Order will not come to the aid of the complainant, to prove the alleged excess collection of fare. As seen from the Writ Order, a direction was sought for, to cancel the license, since the appellant herein, who was the first respondent in the Writ, had collected parking fee of Rs.2.50, against the approved parking fee of Rs.1/-, which was not accepted, whereas, as said above, based upon the Order passed in OP.32/2005 alone, a direction has been issued, which direction may not be implemented under the change of circumstances. Therefore, the findings of the District Forum, as seen from Paragraphs 5, 6 and 7 may not hold good, under the change of circumstances. Thus, ignoring the above said findings, we have to see, whether the complainant has made out a case, for deficiency or negligence as the case may be.
9. Admittedly, the opposite party/appellant had obtained license, to maintain Cycle Safety Stand within the Municipal limit of Nagercoil Municipality and the fee prescribed per Cycle was Rs.1/-. It is the specific case of the complainant that on 22.11.2006, when he left his bicycle, the opposite party demanded Rs.1.50 extra, though the permitted charge was Rs.1/-. There is no plea that the amount was paid, in the presence of any named person, though it is sought to be labeled as unfair trade practice. If really, as per the affidavits filed by one Sivaraj and Jagan, they were present, at the time of collecting the excess charge, in the ordinary course, the complainant would have mentioned the names also, which he failed. Admittedly, this is the second case. When the opposite party had already suffered an order, before the District Forum, at the instance of the same complainant, it is difficult to believe that the opposite party should have collected or demanded excess amount, for leaving the Cycle for safe custody. In this view, the non-mentioning of the names of the persons, whose affidavits are accepted by the District Forum, takes significance. Therefore, accepting the affidavits of Sivaraj and Jagan it may not be possible and proper and in our considered opinion, that too, when receipt says, opposite party had collected Rs.1/-, to come to the conclusion, that the opposite party had collected, excess amount of Rs.1.50. If really, excess amount had been collected that should have been reported, for which, there is no document. Even the Newspaper cutting also came into existence, after the first case, which cannot be taken as substantive evidence to prove the alleged incident on 22.11.2006.
10. As seen from the affidavits filed by Sivaraj and Jagan, it is not their case that they accompanied the complainant, and they knew that the opposite party had demanded excess fare, from the complainant. The affidavits would read, as if, they had been to the Cycle Stand on 22.11.2006, in order to leave their Cycles and at that time, the opposite party claimed/demanded extra fee, from them, thereby they accusing the licensee, as if, he had committed unfair trade practice, which will not support the case of the complainant. If really, Sivaraj and Jagan were the victims of unfair trade practice committed by the opposite party, they should have filed the case, and it is not so.
Therefore, when the affidavits filed by third parties, have not supported the case of the complainant, namely, that the opposite party had collected excess amount from the complainant, that will not prove either negligence act or deficiency as averred in the complaint. The District Forum, without understanding the scope of the affidavits, mostly relying upon the two affidavits, as well as based upon order passed in OP.32/2005 as well as Writ Order, which we have adverted to above has erroneously concluded, that the case of the complainant has been proved, for which finding, we are unable to give approval. Thus, in our view, the complainant has failed to prove the alleged negligence act, and therefore, the appeal deserves to be allowed.
11. In the result, the appeal is allowed, the order of the District Forum in OP No.14/2007, dt. 30.05.2007 is set aside, and the complaint is dismissed. Considering the facts and circumstances of the case, there will be no order as to cost, throughout.
12. The Registry is directed to handover the Fixed Deposit Receipt, made towards the mandatory deposit, to the appellant/opposite party duly discharged, since appellant succeeded, and there is no need to retain the FDR.
S. SAMBANDAM J.JAYARAM M.THANIKACHALAM MEMBER II JUDICIAL MEMBER PRESIDENT