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Colone Ravindran Ramath (Retd) v/s The Branch Head, Southern Investment(SI) Pvt. Ltd. & Another

Company & Directors' Information:- P N INVESTMENT PRIVATE LIMITED [Under Liquidation] CIN = U65910GJ1988PTC010715

    Appeal No. 611 of 2016

    Decided On, 06 November 2017

    At, Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram

    By, MEMBER

    For the Appellant: In person. For the Respondents: ----------

Judgment Text

S.S. Satheesachandran: President

Appeal is filed by the complainant in C.C.455/15 on the file of Consumer Disputes Redressal Forum, Kozhikode for short ‘District Forum’, challenging the Order in I.A.208/16 in the above complaint case holding that the complaint is not maintainable.

2. Notice given. Respondents 1 and 2 have entered appearance through counsel. We heard appellant who appeared in person and also learned counsel appearing for respondents 1 and 2. 3. Appellant hereinafter referred to as complainant moved the above complaint to claim damages/compensation for deficiency of service by respondents 1 and 2 (opposite parties 1 and 2) in the complaint. Opposite parties 1 and 2 are builders and in a construction project commenced by them, complainant advanced amount for allotment of a flat. According to him, over and above the sum agreed upon, during the course of construction additional sum was demanded on the pretext of providing more amenities. He then not being convinced of the demand asked for refund of his amount and later after much protraction and delay causing him mental and physical injury and lot of inconveniences amount paid by him was refunded by way of remittance and closing of his housing loan. According to him the housing loan interest due was not paid by opposite parties 1 and 2 and he had to bear the burden thereof. Narrating the difficulties caused to him alleged by on account of deficiency of service of opposite parties 1 and 2, he filed the complaint setting up a claim of Rs.15 lakhs. Claim was resisted by opposite parties 1 and 2 filing a version jointly contending that there was no deficiency of service and the claim raised by complainant was unfounded.

3. When complainant presented before the Forum for cross examination filing a proof affidavit, according to him, an application was moved by opposite parties 1 and 2 for decision on the maintainability of petition before recording of evidence. The Forum after hearing both sides disposed that I.A holding that the complaint was not maintainable as the disputes presented had to be adjudicated by a civil court. Aggrieved by that Order, complainant has preferred this appeal.

4. After perusing the Order passed by Forum with reference to the submissions made by appellant and also the counsel for opposite parties 1 and 2 we are of the view that the conclusion formed by the Forum that the complaint is not maintainable is not correct. Complainant has imputed deficiency of service against the builder on various grounds and such a complaint definitely falls as a consumer complaint whether or not it is disputed or admitted by opposite parties. The forum relying on a decision of the National Commission has taken the view that no complaint could be filed when it relates to breach of an agreement. That view taken is not correct as the case canvassed by complainant is not founded on breach of agreement as such but on deficiency of service imputed against the opposite parties 1 and 2. May be he has alleged breach of agreement by opposite party in his complaint which needless to point out entitle claim damages under law if established. Order passed by the forum in I.A.208/16 is not sustainable and it is liable to be set aside. We do so.

5. Appellant has expressed some apprehension that he would not get justice if his complaint is considered by the District Forum, Kozhikode. Though we do not find any merit in the apprehension raised, considering the fact that he had raised some complaints by way of a letter sent to this Commission, we are of the view that Complaint can be transferred to another forum, District Forum, Kannur for consideration and disposal. We make it clear that we do not find any substance in the apprehension expressed over the fairness of the District Forum, Kozhikode, but, we order transfer of the complaint

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on the principle that justice must not only be done, but must also appear to have been done. 6. The District Forum, Kozhikode shall transmit the records of the complaint case to District Forum, Kannur and the latter forum receiving the records after giving notice to both sides, shall dispose the case providing reasonable opportunity to both sides to lead evidence. The forum shall dispose the complaint expeditiously.