M.L. Anto Vs. K.M. Antony and Others

SHRI. M.K. ABDULLA SONA : MEMBER

The appellant is the 3^rd opposite party in the O.P. No. 633/00 which filed by the complainant and order passed by the CDRF, Thrissur on 21.3.2001. The respondents are the complainant and other opposite parties respectively.

In short the complainant subscribes to the opposite parties a fridge scheme and the scheme included 30 installments which remitted by Rs. 300/- each. The opposite parties after 20^th installment on 25.2.1998, stopped the scheme. On 22.8.98, the opposite parties given a Soda Maker worth Rs. 950/- to the complainant. The complainant altogether remitted a total amount of Rs. 6,000/- and Rs. 5050/- is with the opposite parties. The complainant is entitled to get amount with interest, cost and compensation from the opposite parties for deficiency in service on their part according to the provisions of C.P. Act. Hence the complaint.

The Forum below issued notice to all the opposite parties , the first opposite party called absent and said ex-parte. Second and 3^rd opposite parties appeared and filed their written versions. The second opposite party contended that he is not a partner and he has no connection with the scheme of the first opposite party The said Sigi Agencies was contended that he was an employee of the first opposite party. After 14.3.96, this opposite party has no connection with the first opposite party firm. He is not liable to pay anything to the petitioner and prayed for the dismissal of the complaint. The forum below prayed following two points:

1)Whether the services of the opposite parties is deficient or not?

2)If so relief and cost?

The evidence consists of document Ext. P1 and P2 for the complainant and produced Ext. R1 and R2 for the side of the second opposite party.

The Forum below heard in detail and taken a view that the second opposite party failed to produce any reliable evidence or the Partnership Deed of the first opposite party firm to show that he is only an employee and not a partner. Therefore his contentions has no merit and he is also liable for deficiency in service the 3^rd opposite party denied all the transactions and failed to deny the transaction specifically. The opposite parties have no case that they have given a Soda Maker worth Rs. 950/- to the complainant as a part of payment, in the transaction having no case that the Exts. P1 and P2 series are not belong to them. In the light of the evidence adduced before the Forum below, the forum below found that the opposite parties are liable for the deficiency in service and also liable to pay the balance amount to the complainant. In the result, the Forum below allowed the complaint and directed the opposite party to pay Rs. 5050/- to the complainant within one month after the receipt of the order.

This appeal prefers from the above order by the appellant/second opposite party. On this day this appeal came before this Commission for final hearing. The counsel for the appellant is present and there is no representation for other opposite party including the complainant. The counsel for the appellant vehemently argued that the order passed by the Forum below is not accordance with the provisions of law and evidence. It is liable to be quashed. The Forum below did not discuss a very important question that the appellant/second opposite party is whether an employee or a partner? The appellant taken a specific contention in the version that he is only a servant of the first opposite party firm and not a firm and his strong argument that he is not any way connected with the transaction and he did not receive any money from the complainant. He acted only as a servant, who appointed by the first opposite party firm.

He cited a decision of this Commission in a similar case. The counsel for the appellant invited our attention that this commission pronounced the detail Judgment in Appeal No. 499, 500, 501 and 502/2000 dtd. 28.5.2002. In the judgment, the Commission discussed that the only question to be gone into is whether the first opposite party/appellant is a partner of the business to that himself could be made liable for the claim of the respective complainant. The district forum has relied on ext. P1 and R2 to R5 to hold that all the opposite parties are severally and jointly liable for the claim. Ext. P1 Pass Book does not mention the first opposite party as partner. Ext. R2 the Telephone Directory has only shows that the Telephone numberis only a concern of the second opposite party . This Commissionthen taken a view that thus the aforesaid Exts. Can not support a conclusion that the first opposite party is involved in the transaction as a partner.

This Commission heard in detail and perused the evidence adduced by both sides and we gone through the judgment of the same Commission pronounced in 2002 and found that the complainant is a consumer who accepted an offer given by the opposite party and pay installment amount to them directly. It is an admitted fact by both parties. Hear a question is that whether the opposite parties found of Firm or not including whether the appellant/second opposite party is a partner or a servant. This is a compound question of law. The appellant taken contentions both before the Forum and this Commission that he is only an employee. Normally a consumer can not possible to get the partner ship Deed of the opposite party or Article of Memorandum of the company or the bye law of the Society etc. At the very same time the Partnership Deed is available with the opposite parties. They are the custodian of the document. It is very cruel to ask the poor complainant to produce partnership deed of the opposite parties eventhough opposite parties are parties in suit. In other words the second opposite party is contenting that he is only an employee of the opposite party scheme. What is his harm to produce any document either from his employer or from a local body or from the Asst. Labour Officer concerned? A mere denial of allegation is nothing but “an arrow against the moon”. We are not considering any way this contention without sufficient evidence. But at the very same time we are seeing that except this appellant /second opposite party; Other respondents/opposite parties are absent both in the O.P. and in this appeal. In the circumstances they are liable to pay the ordered amount severally or jointly in first. The respondent/complainant is also have the right to proceed against the 2^nd, and 4^th respondent/opposite parties in this appeal initially. But even though the appellant/second opposite party is also liable for deficiency in service, along with other opposite parties. He pleaded that he is an employee. Then also he is coming under the purview of the Consumer Protection Act as per the provisions of tortuous liability. But he is appearing in both Forum below and before this Commission. The respondent/complainant shall move against the other opposite parties even though they did not contest both in O.P. and in the appeal. The judgment of this Commission produced by the appellant is discussed a question of law involved whether the appellant/second opposite party is liable or not? This settled position is overruled by somany judgments of this Commission and other judgments of the apex courts. It is a very old view of this Commission.

In the result, this appeal is dismissed and confirmed the order passed by the Forum below Both parties are directed to suffer their own respective dhasti. The points of the appeal answered one by one accordingly.