DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS,
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 144
C.C. CASE NO. 30 OF 2019
DATE OF FILING: 28.2.2019 DATE OF JUDGEMENT: 19/06/2019
Present : President : Ananta Kumar Kapri
Member : Jhunu Prasad
COMPLAINANT : Sankar Kumar Pradhan , Proprietor of Astha Restaurant-Cum F.L. Bar, Vill. Bhagatpur, P.S Parthar Pratima, South 24-Parganas, Pin-743371.
O.P/O.Ps : 1. Mr. Shiv Sultania, M/s. East India Spirits & Beer Distribution (PVT) Ltd. Gopalpur, P.O Sarkarpool, P.S Maheshtala, Budge Budge Trunk Road, Kolkata-143.
2. The Managing Director , M/s. East India Spirits & Beer Distribution (PVT) Ltd. at 87, A.J.C Bose Road, P.S Entally, Kolkata-14.
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JUDGMENT
Sri Ananta Kumar Kapri, President
Facts leading to the filing of the instant case by the complainant may be epitomized as follows.
The complainant has a licensed shop for selling foreign liquor and beer under the trade name and style “Astha Restaurant-Cum F.L. Bar”. He placed an order on 16.8.2017 before the O.ps i.e the Distributor of the aforesaid goods for purchasing certain quantity of goods and also made payment of Rs.4,08,760/- from his bank account for the consideration price of those goods. The O.Ps agreed to deliver the goods within 24 hours on placement of order, but no delivery of consignment was made by the O.ps. Even no refund of the consideration price was also made to the complainant by the O.Ps inspite of vigorous persuasions by the complainant. The complainant has ,therefore, prayed for refund of Rs.4,08,760/- and also for compensation etc. hence, this case.
Summons in the case has been served upon the O.P-2 ,but O.P-2 does not appear to contest the case. Therefore, the case proceeds exparte against him.
It is the O.P-1 who has entered into appearance and has also filed written version of the statement to contest herein. Admitting the payment made by the complainant, it is submitted on behalf O.P-1 that the O.P-2 consigned the goods on 17.8.2017 and the complainant also received the said goods at his godown at Maheshtala, Budge Budge through his agent. But formal receipt was not granted by the complainant and the complainant told O.P-1 that he would grant such receipt at his shop at Pathar Pratima. The agent thereafter accompanied the driver of O.P company to his shop at Pathar Pratima. On the way, the goods were looted by the hooligans. FIR was lodged before the police and the police case has also been started. According to the O.P-1, the complaint is frivolous and vexatious one and, therefore, it should be dismissed in limini with cost.
Upon the averments of the parties, the following points are formulated for consideration.
POINT FOR DETERMINATION
- Are the O.Ps guilty of deficiency in service as alleged by the complainant?
- Is the complainant entitled to get relief of reliefs as prayed for?
EVIDENCE OF THE PARTIES
Evidence on affidavit is filed by the complainant. No evidence whatsoever is led by the O.P-1 and, therefore, the case is heard exparte against him also.
DECISION WITH REASONS
Point no.1 & 2 :
Now to see , whether there is any deficiency in service on the part of the O.Ps in so far as the delivery of the goods to the complainant is concerned. It goes undisputed that the complainant placed an order for purchasing the aforesaid goods from the O.Ps. It also goes undisputed that the complainant also made payment of Rs.4,08,760/- to the O.Ps as the price of those goods. What is disputed is that the O.Ps delivered the consignment to the complainant ,whereas the complainant’s version is that no goods was delivered to him.
Coming to the facts of the instant case as transpiring on record, it is found that the goods were looted away by some miscreants on its way to the shop of the complainant. Police case has also been started for such kind of violence.
Regards being had to all these facts ,it stands proved on record that the goods never reached the complainant. The O.Ps have not also produced any document to show that the complainant received the goods by signing any document. Had any such document been produced before the Forum, it would have been held that the delivery of the goods was made to the complainant by the O.Ps. In absence of such vital document, we are the last persons to hold that the goods were ever delivered to the complainant by the O.Ps in terms of the order placed by the complainant.
Be that as it may, it is seen now that the O.Ps have failed to discharge their duty properly in terms of the agreement; they could not ensure a door step delivery of the goods as ordered by the complainant. Inability to ensure such kind of delivery in terms of the order of the complainant is a fault or imperfection in the service of the O.Ps and, therefore, non-delivery of the goods of the complainant is considered to be a deficiency in service on the part of the O.Ps.
Now about the compensation which is sought for by the complainant.
According to the complainant, he has undertaken tremendous mental agony and harassment as the goods have not been delivered to him by the O.Ps. Compensation has, therefore, been prayed for by the complainant. Considering the peculiar facts of the case ,wherein it is found that the O.Ps have been victimized to unexpected violence, we are not inclined to award any kind of compensation to the complainant on the ground of harassment and mental agony suffered by him. However, the complainant is entitled to get interest upon the money paid by him to the O.Ps and the interest is awarded accordingly as hereunder.
Ex-consequenti, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is allowed on contest against O.P-1 and exparte against the O.P-2 with a cost of Rs.5,000/-.
The O.P nos. 1 and 2, who shall remain jointly and severally liable for payment to the complainant, are directed to refund Rs.4,08,760/- to the complainant with simple interest @5% p.a from the date of payment i.e 16.8.2017 till the date of full realization thereof ,within a month of this order, failing which, the complainant is at liberty to execute the award through the process of the Forum.
Registrar-In-Charge of this Forum is directed to send a copy of the judgment free of cost at once to the parties concerned by speed post.
President
I / We agree
Member
Dictated and corrected by me
President
