JAYASREE R.NAIR vs S.HALEEFATHUDEEN

THESE appeals arise from the order in O.P. No. 1268/93 on the file of the District Forum, Kollam, complainant in the said O.P. is the appellant in Appeal No. 319/98, the first opposite party thereto is the appellant in Appeal No. 334/98 and the second opposite party is the appellant in Appeal No. 356/98. The complainant alleged before the District Forum that herself is an educated unemployee and had undergone Ext. A1 course and wanted to start a self-employment enterprise. After having gone through Ext. A2 brochure she decided to avail the financial facilities offered by the second opposite party. Accordingly on 14.2.1992 she applied for a loan before the second opposite party. According to her she complied with all the requirements, produced documents of immovable property. She had submitted Ext. R1 quotation and the total loan of Rs. 1 lakh was recommended by the first opposite party and the second opposite party sanctioned the same. THESE were sent by 2 cheques to the District Treasury, Kollam to be credited in the account of the complainant. For withdrawing part of the said loan first opposite party demanded for a quotation. Pursuant to the submitting of the quotation they approached the first opposite party for release of the first instalment of Rs. 50,000/- but of that she could get only Rs. 30,000/- whereas the quotation required her Rs. 50,000/- for purchase of the machinery. The loan disbursed being only Rs. 30,000/- she had to raise Rs. 20,000/- from other sources which according to her was at higher interest. Though she purchased the machinery in accordance with the approved list of machinery, according to her the balance loan amount was not disbursed. The complainant informed the first opposite party on 13.12.1993 the aforesaid purchase of the machinery. But the loan amount of Rs. 70,000/- was not released by the first opposite party. That has affected her endeavour to start self-employment project for (sic.) that put her in heavy loss. Consequently she approached the District Forum for a direction to the opposite party for disbursement of the aforesaid balance loan amount of Rs. 70,000/- and also for a direction to extend the period of availing the loan to 6 months; in the alternative she prayed for a compensation of Rs. 2 lakhs.

INITIALLY there was only one opposite party. He filed objections denying the claim made by the complainant and maintaining that she did not utilise even Rs. 30,000/- given to her as per the condition and when an officer of the second opposite party visited for examining the machines it was discovered that 3 items of the machines were not new ones. The District Forum by its order dated 4.2.1995 allowed the prayer of the complainant and made a direction to the first opposite party to pay the balance amount of Rs. 70,000/- and also to pay cost of Rs. 1,000/-. Aggrieved by the said direction opposite party filed an appeal as Appeal No. 510/95 before this Commission. This Commission by order dated 19.6.1995 set aside the order of the District Forum and remitted the matter to the District Forum on condition that the opposite party pays Rs. 750/- as costs to the complainant. The complainant was given liberty to implead additional parties and both the opposite parties were also given liberty to adduce further evidence. Pursuant to the same cost was paid by the opposite party and the matter was restored by the District Forum. After the said restoration complainant took steps to implead the second opposite party. Second opposite party filed its version wherein among other things the second opposite party disputed the status of the complainant as a consumer and also maintained that there is no deficiency of service on their part and sought to maintain that the pays of Rs. 30,000/- was consistent with the (sic.) of Ext. R1 quotation, that the complainant did not utilise even that Rs. 30,000/- consistent with the conditions of grant of loan inasmuch as she made the purchase from different sources. Against Ext. R1 quotation second part of the loan could not be released in view of Ext. R7 report filed by an employee of the 2nd opposite party who was deputed to inspect and verify as to the purchase made by the complainant, but in her report it is pointed out that 3 items of machines were old ones. Of the machines which were claimed to have been purchased, some of them were also not made available for inspection. They maintained that it is on account of the default of the complainant the other part of the loan amount could not be released. According to them there was no deficiency of service and therefore the complaint is liable to be dismissed. Before the District Forum the complainant gave evidence as P.W. 1 and produced Exts. A1 to A18. On the side of the opposite parties R.W. 1 and R.W. 2 were examined. An expert commission was issued and he filed Exts. C1 to C4 reports. On these materials the District Forum came to the conclusion that the complainant is eligible for the main prayer in the complaint and upon that finding the District Forum directed the opposite parties to pay to the complainant Rs. 70,000/- the balance of the loan amount and also to pay Rs. 20,000/- as compensation. It awarded a cost of Rs. 2,000/- also. In the complainant''s appeal the complainant challenges the said order in her appeal by maintaining that the complainant is entitled for a compensation of Rs. 2 lakhs. Opposite parties 1 and 2 in their appeals would maintain that since there is no deficiency of service on their part the complainant is not entitled to any relief.

The learned Counsel for the complainant maintained that since in the context of the finding of the District Forum that the complainant is entitled to the relief regarding the release of balance loan amount, the other part of the case of the complainant that the complainant was put to heavy loss as she could not start the project in time, should have been accepted by the District Forum and her claim for compensation of Rs. 2 lakhs should have been accepted. On the other hand the learned Counsel for the opposite parties 1 and 2 sought to maintain that since even as per Exts. C3 and C4 complainant did not purchase the machines as per the approved list, on that ground itself she was not entitled to the disbursement of the rest of the loan amount. Both the learned Counsel for the opposite parties urged that, though the complainant was eligible only for the release of 1/3rd of the loan amount on submitting the quotation, the opposite parties released Rs. 30,000/- far above the said 1/3rd. It is also pointed out from Ext. A3 series bills that, the purchase was not only from the person who submitted the quotation but also was from others also and that being a violation of the condition of the loan on that ground also complainant was not eligible for disrbursement of the balance loan amount. According to them the defaulter was the complainant and in such a situation the District Forum ought not have made such a direction it has made.

THEN it is pointed out by the learned Counsel for the complainant that the purchase was consistent with Ext. R2 list which was approved by the second opposite party. Therein there is no condition insisting purchase from the person who placed the tender. That being the position, since the quotation has only given estimated value of the machines to be purchased, it is not open for the opposite parties to maintain that the purchase ought to have been only from the person who placed the quotation. We consider the said argument of the learned Counsel for the complainant is forcible inasmuch as no such condition is incorporated in Ext. R2 the list of materials to be purchased which was approved by the opposite parties. It is true, in Ext. R1 quotation 1/3rd of the value of the machinery has to be given in advance and the balance has to be paid at the time of delivery. It should be noted that, there being no dispute that the first instalment of loan amount of Rs. 50,000/- was sanctioned to be released and in fact cheque for the said amount was deposited in the District Treasury Bank in the account of the complainant, what was necessary was the consent and signature of the first opposite party. Since the balance amount towards machinery had to be paid as soon as delivery is effected, for facilitating start of the self-employment project, we are of the view that withholding of Rs. 20,000/- from the first instalment cannot be said to be consistent with the object and intention of the project. As indicated, there was an objection for the opposite party as to the machinery purchased; one of them atleast one item was purchased without authority. Ext. C4 report was relied on in support of the said argument. In Ext. C4 report it is stated that, rack and chisel were physically not available for inspection. It is also stated therein that, the complainant showed some planks of wood stacked on one side of the room in which all the above machinery and tools were kept and that the complainant informed the Commissioner that those were intended for making the racks. THEN two starters and 2 switches were not physically available for inspection. The learned Counsel for the complainant pointed out that, in Exts. C1 and C2 reports filed by the Commissioner at the earlier points of time, these articles were available. In this connection it has to be observed that Exts. C1 and C2 reports first submitted by the Commissioner were set aside since it was without notice to the other side. The two starters and 2 switches were not immediately available for inspection and also the racks and chisel were also not available. Relatively they cannot be said to be as valuable as these already was there at inspection. The fact that the starters and switches were available at the time of C1 and C2 would support the case of the complainant that in fact they were also purchased utilising the loan amount. The next objection was that the complainant had purchased a grinding machine which was not in the approved list. Ext. C4 report mentions that the grinding machine is not included in the list of machines recommended by the Khadi Board. But the Expert Commissioner observes- "But a grinding machine is essential for sharpening cutting blades, drill bits and other tools." In the context of the said observation of the Expert Commissioner it cannot be said that the loan amount was invested for totally irrelevant goods. It should be remembered that this report was not objected to by the contesting parties. The learned Counsel for the second opposite party contended that, the complainant approached the Forum without a clean hand. According to the learned Counsel the officer of the second opposite party was to inspect the project on 17.12.1993, instead of waiting for the same the complainant rushed to the Forum and filed the complaint on 16.12.1993. The learned Counsel for the complainant relied on Exts. A11 to A15 to meet the aforesaid argument and pointed out that these are representations made by the complainant before the concerned Authorities. Ext. A11 dated 23.10.1993, Ext. A12 dated 17.8.1993 and Ext. A14 dated 14.12.1993. Of course, Ext. A15 complaint made before the Secretary was after filing of the complaint; the same is dated 23.12.1993. In the context of Exts. A11, Ext. A12 and Ext. 14 at is not be possible to agree with the learned Counsel when she submitted that, the complainant has filed the complaint without any justification. With due regard to the aforesaid discussion one cannot disagree with the District Forum when it found that, there is deficiency of service. The argument is, that service having been rendered by the second opposite party without receiving any consideration, complaint cannot fall within the definition of consumer under Section 2(1)(d) of the Consumer Protection Act, 1986. Section 2(1)(d), Sub-section (ii) envisages - "(hires or avails of) any services for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any beneficiary of such services other than the person who (hires or avails of) the service for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payments, when such services are availed of with the approval of the first mentioned person."

Admittedly, when the loan amount is remitted in the complainant''s account, the complainant has to pay interest thereon. The argument that the said interest will go only to the Khadi Commission and not to the second opposite party in the circumstances does not appear to be forcible and acceptable because the second opposite party is a subordinate of the Khadi Commission. In the circumstance, it is not feasible or acceptable to hold that, the service was rendered without any consideration so as to hold that the complainant is not a consumer. The said argument is also not acceptable. With due regard to the nature of the argument of the learned Counsels and the aforesaid discussion the finding of the District Forum cannot be called in question. Then with respect to the relief to which the complainant is eligible, as indicated there is divergent arguments whereas the complainant''s Counsel would maintain that the compensation awarded is too low and the complainant has to be awarded a compensation of Rs. 2 lakhs, the opposite parties would maintain that there being no express prayer for compensation, the District Forum was not correct in awarding a compensation of Rs. 20,000/-. A copy of the complaint is placed before us. The main prayer in the complaint is for a direction for releasing Rs. 70,000/- which is the balance loan amount and also to extend the period for release of the same by 6 months. Alternatively it is prayed that, the complainant be awarded a compensation of Rs. 2 lakhs because of the loss incurred by her. The District Forum has made a direction to the opposite parties to pay an amount of Rs. 70,000/- remainder of the loan amount and Rs. 20,000/- as compensation with costs of Rs. 2,000/-. It would be noted that, the District Forum had allowed the first prayer. Even the complainant wanted only Rs. 2 lakhs alternatively if only the first prayer is not allowed. The only question that has to be considered in this connection is whether the award of Rs. 20,000/- as compensation was proper and justifiable. When it comes out from the pleadings and evidence that as a matter of fact the complainant has suffered loss, award of compensation need not be withheld sheerly on the ground that there is no express prayer. We have already indicated that the conclusions reached by the District Forum in our view are unassailable so too is the relief granted by the District Forum. In that view we do not see anything to interfere in the impugned order of the District Forum. The appeals are liable to be dismissed which are accordingly hereby dismissed. However, there will be no order as to costs in these appeals. Appeals dismissed.