L. Manoharan, President:
1. The opposite party in O.P. 90/95 on the file of the Consumer Disputes Redressal Forum, Kollam is the appellant. The complainant alleged before the District Forum that he applied for a loan from the District Co-operative Bank, Aleppey for purchase of household goods. The invoice for the goods given by the opposite party was furnished to the Bank. Thereafter the Bank issued a DD for Rs. 37,979/- drawn in the name of the opposite party which DD though was handed over to the opposite party, the opposite party did not deliver the goods at his residence as agreed, thus the opposite party has committed deficiency of service. The complainant wanted return of the said price with compensation. In the version by the opposite party though he
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dmitted to his having received the DD maintained that the DD was handed over by one Vijikumar (D.W. 2) and he collected goods (certain electronic goods) for the balance he received a cheque issued by the opposite party. He maintained that there is no consumer dispute. Vijikumar has misused the cheque and filed a complaint against the opposite party under Section 138 of the Negotiable instruments Act before the Court of the Judicial Magistrate of First Class, Kayamkulam, therefore, the opposite party wanted dismissal of the complaint. Before the District Forum the complainant gave evidence as P. W. 1, the opposite party was examined as D.W. 1 and the aforesaid Vijikumar was examined as D.W. 2. On a consideration of the said material the District Forum made a direction to the opposite party to return the amount of Rs. 37,979/- with 18% interest from the date of the DD till realisation and compensation with costs Rs. 2,000/-. The said direction is challenged by the appellant. The learned Counsel urged that the fact disclosed since reveals transaction of only sale of goods the same cannot constitute consumer dispute so that there could be a case of deficiency of service. The learned Counsel referred us to the decision of the National Commission in Dr. G.S. Anandan v. E.N. Dileep, I (1997) CPJ 59 (NC)=1997 (1) CPR 99, and the decision of the Tamil Nadu State Commission in Sahul Hameed v. G.S. Sales Corporation & Ors., I (1999) CPJ 309, in support of this said submission. The learned Counsel also urged that D.W. 2 actually had delivered the DD to the opposite party and he collected certain electronic goods from the opposite party. For the balance amount, he had accepted a cheque also. According to the learned Counsel in view of the evidence, it could be seen, that the transaction pleaded by the complainant as such is not true as Vijikumar who is a relative of the complainant himself has obtained goods and for the balance amount in the DD he has obtained cheque also. Even assuming there was any consumer relationship, in such circumstance according to the learned Counsel, there could be no deficiency of service he, therefore, wanted reversal of the order of the District Forum. On the other hand the learned Counsel for the respondent contended that it is not sale of goods simplicitor. The transaction though involves the consideration of the goods being paid, has got another part of the delivery of the goods at the residence of the complainant. The said part of the contract since would amount to service and since that part of the service even-though separate consideration was not paid as the consideration paid was for the goods as well as the said service, that would constitute deficiency of service and the petitioner/ complainant is entitled to redressal. The learned Counsel made reliance of the decision of the Supreme Court in Mohinder Pratap v. Modern Automobiles & Anr., (1995) 3 SCC 581, and also the decision of the Supreme Court in Punjab Water Supply and Sewage Board v. M/s. Udaipur Cement Works & Anr., I (1996) CPJ 7 (SC), in support of the said argument.2. With due regard to the aforesaid arguments the first question to be considered is whether the complainant can be treated as a consumer, in other words whether the transaction can be said to be a consumer dispute. The fact that the DD was drawn by the complainant and the same was delivered to the opposite party is not in dispute. But according to the opposite party the DD was handed over by the D.W. 2, not by the complainant and on behalf of the complainant D.W. 2 collected certain electronic goods and for the balance price he received a cheque from the opposite party. Whether the complainant is a consumer in the context of the decision of the Supreme Court in Mohinder Pratap Dass case (supra), will depend upon the question whether there was an agreement to deliver the goods at the residence of the complainant. The Counsel for the respondent placed before us copy of the complaint and the learned Counsel for the appellant placed before us the copy of the version by the opposite party. In para 3 of the complaint the complainant alleges that the goods would be delivered at the expense of the opposite party to the residence of the complainant. Except there is a contention in para 3 of the version that there is no consumer dispute between the complainant and the opposite party, there is no denial of the case of the complainant alleged in para 3 to the effect that the goods would be delivered at his residence. Apart from the same it is pointed out by the learned Counsel for the complainant/respondent that though the complainant has sworn in his chief examination as to the delivery of the goods at the residence when the DD was handed over, there is no challenge in the cross-examination. The decisions relied on by the learned Counsel for the appellant in Dr. Anandan’s case (supra), and Sahul Hameed’s case by the Tamilnadu State Consumer Disputes Redressal Commission (supra), are distinguishable inasmuch as in those cases there was no agreement to deliver the goods. In Mahindra Pratap Dass case (supra), also the allegation was that despite the deposit of the full purchase price of the car, the respondents therein intentionally did not deliver the vehicle within one month’s time. The decision here also is similar, the price of the goods were accepted by DD but the same were not delivered as agreed. That case of the complainant though is alleged in the complaint is not denied and though P.W. 1 was sworn to the same, there is no cross-examination also. The DD in such circumstance is towards the value of goods and the delivery of the same at the residence of the complainant. Having regard to the said features it has to be found that the complainant is a consumer.3. The other question for consideration is whether the case pleaded by the opposite party that the DD was delivered infact by D.W. 2 and that he collected electronic goods on behalf of the complainant and for the balance amount he accepted a cheque from the opposite party is proved. Having regard to the nature of the case pleaded by the opposite party the burden of proof is on him. In an endeavour to prove the same apart from getting himself examined D.W. 1, he examined Vijikumar as D.W. 2. But D.W. 2 did not support the complainant. There was no corroboration for the evidence of D.W. 1. In such situation the view taken by the District Forum that opposite party was not successful in establishing the case pleaded by him cannot be said to be in any way faulty. In view of the fact that the complainant is a consumer and the opposite party was not able to prove his case that Vijikumar D.W. 2 had delivered the DD and obtained electronic goods and for the balance he received a cheque, the case of the complainant has to be accepted and in that view the conclusion reached by the District Forum has to be upheld. The appeal is liable to be dismissed. In the result, the appeal fails and the same is dismissed.
"2001 (2) CPJ 398,"