w w w . L a w y e r S e r v i c e s . i n

V. Kunhambu Nair v/s Thresiamma, Officer-in-charge, Rubber Marketing Co-operative Federation, Ulikal Branch, Iritty, Ullikal & Another

    First Appeal No. 08 of 2013 (Arisen out of Order Dated 10/12/2012 in Case No. CC/11/122 of District Kasaragod)

    Decided On, 16 June 2014

    At, Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram

    By, MEMBER

    For the Appellant: B. Raveendran, Advocate. For the Respondent: M. Narayanan, S. Vinod Kumar, M/s. Karukapadath Associates, Advocates.

Judgment Text

A. Radha : Member

This appeal is preferred by the complainant on dismissal of the complaint in C.C.No.122/11 on the file of CDRF, Kasargod.

2. It is the case of the complainant that on 02/12/2008 he entrusted 1900kgs of rubber with 2nd opposite party who is having its branch at Kuttikol and the Branch In-charge was one Mr. C.J. Mathew. It is stated that the Officer-in-charge was residing in the same building along with his wife, Thresiamma and family. Smt. Thressiama, is the present Officer-in-charge of 2nd opposite party’s Branch Office. The complainant used to sell rubber to the 2nd Opposite Party. On 02/02/2008 the husband of the 1st opposite party issued an inter office memo receipt of the total rubber sold. It is the allegation of the complainant that the Officer-in-charge promised to pay increased price as an increase is expected in the price of the rubber. The complainant was not in a hurry for the price of the rubber and it is stated that he had not received the money from the husband of the 1st opposite party who is in charge of Branch. In the meantime the price of the rubber increased from Rs.64/- to Rs.92/- per kg. The complainant came to know that the Officer-in-charge C.J. Mathew died in an accident. It is asserted in the complaint that wife Smt. Thresiama was well aware of the dealings between the complainant and Mr. C.J. Mathew. After the death the price of rubber as agreed was not paid by the opposite parties. The complaint is filed against the wife of the deceased and also against the 2nd opposite party. The complainant alleged deficiency in service on the part of both the opposite parties and claimed Rs.1,79,800/- with interest @ 12% and also compensation of Rs.25,000/- for mental agony.

3. The 1st opposite party denied the allegations made by the complainant. It is contended that the 1st opposite party is not residing in the Branch Office. Further she was not in-charge of the rubber procuring of the 2nd opposite party. The complainant never contacted the 1st opposite party and no promise was made on the part of 1st opposite party to pay the price of the rubber @ Rs.92/- per kg. It is admitted her husband C.J. Mathew died in an accident on 02/07/2009 and after the death of her husband, the 2nd opposite party appointed the 1st opposite party as Officer-in-charge at Olikal Branch, at Iritty on consolidated pay and thereafter as she could not manage the office she resigned the job on 04/05/2011. It is also contended that there is no practice for 2nd opposite party to procure rubber and stock the same till the increase of the price. It is admitted that the 2nd opposite party used to purchase rubber from rubber producers and paid the price of rubber within 2 weeks and there is no credit system at all. The husband of the 1st opposite party had never stocked rubber with the 2nd opposite party. The 2nd opposite party conducted physical verification and audit and no liability was fixed in the name of the husband of the 1st opposite party. The 1st opposite party is a stranger and never been an employee under 2nd opposite party at Kuttikol Branch. The 1st opposite party is included unnecessarily in the party array.

4. In the version filed by 2nd opposite party it is stated that the complainant is not a consumer under the Consumer Protection Act. The complaint is filed on 26/05/2011 whereas the cause of auction alleged in the complaint happened on 02/12/2008. Hence the complaint is barred by limitation under Section 24(A) of the Consumer Protection Act. Further contention is that the 2nd opposite party is an Apex Marketing Society registered as per the provisions of Kerala Co-operative Societies Act 1969 and the dispute arising should be adjudicated or settled by arbitration under Section 69 of the Co-operative Societies Act. Hence there is implied ouster of jurisdiction for the Consumer Fora to entertain the complaint and on that ground also the complaint is liable to be dismissed. The transaction between the complainant and the opposite parties is purely a sale and does not come under the Consumer Dispute. It is admitted that the opposite party purchased 1900 kg of rubber sheet from the complainant as per purchase bill No.43815. The transaction took place on 03/12/2008 and the price shown is Rs.64/- per kg and the total amount of Rs.1,21,600/- is seen paid by the opposite party. The transaction is clear from the creditor’s register of Kuttikol Branch and the receipt of the amount was duly acknowledged by the complainant. The Officer-in-charge one Mr. C.J. Mathew is no more. It is also stated that there had no dealings with the customers by stocking the goods and selling the same at a higher price for the benefit of the customers. The opposite party purchases the rubber only at the prevailing relevant price on the date of purchase and the said price will be paid to the seller. What transpired between the then Officer-in-charge and the complainant is not a matter to be decided in this complaint. The 1st opposite party, the wife of Mr. C.J. Mathew, was appointed only after the death of Mr. C.J. Mathew, at Kuttikol Branch and the 1st opposite party has nothing to do with the transaction of the 2nd opposite party.

5. The evidence consisted of the oral testimony of the complainant as PW1 and documents were marked as Exbts. A1 to A7. DW1 was examined on the side of the opposite party and Exbt. B1 to B6 were marked in evidence. The Forum came to the conclusion that the complaint is not maintainable as it is not a consumer dispute.

6. On hearing both the parties and on going through the documents, we find that the complainant failed to produce any evidence to prove that the 1st opposite party’s husband agreed to pay the increased price of the rubbe

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r in his dealings. He also failed to prove that there exists any consumer dispute in this case. If at all it is to be considered as a consumer dispute, the cause of auction arose on 02/12/2008 and the complaint is filed on 26/05/2011 which was not accompanied by petition to condone the delay in filing the consumer complaint. On that ground also the complaint is barred by limitation. We are of the considered view that the complaint lacks merits. In the result, appeal is dismissed and we uphold the order passed by the Forum Below. The office is directed to send a copy of this order to the Forum below along with LCR.