Verma v CEO, Consumer Council [2010] FJMC 166; Appeal Action 44.2009 (4 November 2010)

IN THE FIRST CLASS MAGISTRATE'S COURT AT SUVA
CENTRAL DIVISION - SMALL CLAIMS TRIBUNAL

SCT CASE NO: 851 of 2008
APPEAL ACTION NO: 44 of 2009

BETWEEN:

SANJAY SINGH VERMA and BABITA KUMAR VERMA
Appellants

AND:

CEO, CONSUMER COUNCIL
Respondent

Appellants: In Person
Respondent: Not Present

JUDGMENT

1. This is an appeal against the order made by the referee of Small Claims Tribunal (SCT) on 10th September 2008 dismissing the claim due to the inability of the appellants to prove the claim.
   
2. Appellants informed the Court that they are relying on appeal grounds they have mentioned in SCT. Respondent were present in Court on 08th April 2010 and this appeal was fixed for hearing with the agreement of both parties. However when this case was called on 27th August 2010 respondents were not present in the Court and appellant requested for a judgment based on his appeal grounds.
   
3. According to the appellant's grounds of appeal, the referee had not given a fair hearing and referee had erred in law and in fact failing to evaluate evidence. One other ground of appeal was that CEO of the Consumer Council was not present for hearing and previous referee had cautioned the appellant not to question the agent of the respondent regarding issues arose during the hearing. Appellant request that this Court consider re-hearing before another referee.
   
4. Appeal Provisions regarding the Small Claim Tribunal matters are laid down under sec. 33 of the Small Claims Tribunal Decree, 1991 and read as follows:

33.- (1) Any party to proceedings before a Tribunal may appeal against an order made by the Tribunal under section 15(6) or section 31(2) on the grounds that:

(a) the proceedings were conducted by the Referee in a manner which was unfair to the appellant and prejudicially affected the result of proceedings; or

(b) the Tribunal exceeded its jurisdiction

5. Claim of the appellants
   
   1. Appellants were sent to see one immigration lawyer to facilitate student visa for the second appellant by one Mahendra Lal.
      
   2. Appellants had been charged $150 for discussion and after the meeting had given one bottle of Black Label to be passed on to one Mahen Lal.
      
   3. Since appellants had not passed that black label bottle as promised, Mahen Lal had called them on the next day.
      
   4. Appellants had refused to give it back until they receive a receipt for their payments.
      
   5. Later appellants were informed that they are not qualified for visa.
      
   6. Later, appellants had received a call from one Ms. Flory from the Consumer Council who promised to refund the money (which said to be in her possession) paid by the appellants and the traveling cost upon returning of the black label bottle. Appellants had been requested to prove the traveling cost.
      
   7. Appellant had finally brought this claim for $300 against respondent which includes, cost of interview $150, traveling cost $105 and running around cost $45.
      
6. Appellants had initiated this claim against the respondent to urge the respondent to honor the promise said to have made over the phone by one Ms. Flory of the Consumer Council. However, appellant do not posses any tangible or independent evidence to prove that Ms. Flory had made such promise to pay the appellants.
   
7. Validity of the claim made against the respondent
   

1. Appellants had made this claim against the respondent to recover the monies they have spent on an interview they had with immigration lawyer for student visa.

2. However, appellant had failed to prove that the interview they had with the immigration lawyer had any connection with the respondent. In fact according to the appellants they had been sent to that immigration lawyer by one Mahendra Lal.

3. Appellants further failed to prove that Mahendra Lal had acted as an agent for the respondent.

4. It is clear that the appellants were holding one bottle of Black Label in ransom for the receipt of their payment and their dispute was in fact with Mahendra Lal.

8. Appellants had met with the immigration lawyer at Nadi on their own free will and they have paid $150 for the interview. There is no evidence to prove that the money they have paid had been taken by using threats or force at anytime and at the time of payment of money appellant had failed to request a receipt.
   
9. If the appellants were so concerned of a receipt for their payment they should have demanded a receipt then and there.
   
10. Apart from that there is no evidence to show that the immigration lawyer had been involved in a fraudulent deal and the Consumer Council had any knowledge of the interviews conducted by the immigration lawyer.
    
11. If there is evidence to show that the immigration lawyer and Mahendra Lal were involved in some fraudulent business, the correct cause of action for the appellant would have been to report the matter to the Police.
    
12. Since, the respondent has no liability to pay damages sustained by individuals by their own actions, it is very clear that the Consumer Council cannot be held responsible in this action.
    
13. Even though the Appellants attempted to involve the Consumer Council to this action based on a purported promises said to have made by one Ms. Flory of the Consumer Council over the phone, the appellants do not have any valid cause of action against the Council.
    
14. According to the above-mention findings I decide that the claim against the Consumer Council is frivolous. Furthermore, when considering the intimidating language used by the appellants in their correspondence between the respondent and the SCT I find this action vexatious as well. This action thereby dismissed.
    
15. Appellants are ordered to pay $500 as Court's cost within 28 days from today.
    
16. 28 days to appeal.
    

On this Thursday the 04th day of November 2010

Kaweendra Nanayakkara
Resident Magistrate