BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 31TH OCTOBER 2015
PRESENT
SMT. ASHA SHETTY : HON’BLE PRESIDENT
SMT.LAVANYA M. RAI : HON’BLE MEMBER
COMPLAINT NO. 213/2015
(Admitted on 17.07.2015)
BETWEEN:
Mr. George Monteiro
S/o Abraham Monteiro
Aged 51 years,
Proprietor: M/s S.K. Transports,
D’Souza Towers Kuloor
Mangalore 575 013 …….. COMPLAINANT
(Advocate for Complainant: Sri K.P. K.P.Bindusara Shetty,)
VERSUS
1. M/s Wilworth Earthmovers Pvt Ltd.,
Bhomanahalli Village,
Manchanayakana Halli,
Khameshwar #43, Bidadi Hobli,
Ramanagara Taluk,
Ramanagar Dist,
Bangalore-562 109.
2. M/s. Wilworth Earthmovers Pvt Ltd.,
Opp : 1st Cross, Near Happay Day Bakery,
Shivbagh, Kankanady Main Road,
Mangalore-575 002.
3. Sri Praveen Shetty,
Area Manager,
M/s. Wilworth Earthmovers Pvt Ltd.,
Shivbagh,
Mangalore -575 002. ……OPPOSITE PARTIES
(Opposite Party No. 1 to 3 Ex-parte)
ORDER DELIVERED BY HON’BLE PRESIDENT
SMT. ASHA SHETTY:
I. 1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service as against the Opposite Party claiming certain reliefs.
The brief facts of the case are as under:
The complainant stated that, he has placed an purchase order for purchasing Volvo Crawler Escalator with an advance payment of Rs. 15,55,600/- by cheque dated 16.07.2014 with the opposite party No. 1. Subsequently, the complainant has cancelled the said purchase order for supply of machinery and claimed the refund of advance amount of Rs. 15,55,600/- paid by way of advance amount. After repeated demands on 19.09.2014 the opposite parties have paid a total sum of Rs. 8,00,000/- keeping a balance of Rs. 7,55,600/- to be paid to the complainant. Even thereafter the opposite parties have neglected to pay the balance amount due to the complainant. Feeling aggrieved by the above complainant issued a lawyer’s notice dated 05.11.2014 to the opposite parties demanding payment of balance amount of Rs. 7,55,600/- with interest at 15 percent per annum from 16.07.2014 and also Rs. 3,000/- towards costs of the notice. The opposite parties who received the said notice have made a further payment of Rs. 4,55,600/- on 14.11.2014 and in the reply to legal notice, dated 15.11.2014 sent by the chief Administration Officer (HR and Legal) admitted the balance amount due to the complainant and promised to pay the balance of Rs. 3,00,000/- shortly.
2. The opposite parties have agreed to pay shortly the balance sum of Rs. 3,00,000/- in their reply to legal notice, since they have failed to pay the same, the complainant once again issued legal notice dated 14.01.2015 demanding balance amount and also interest as claimed in the notice dated 05.11.2014. The said notice has been served on the opposite parties without demur.
3. The complainant stated that, the opposite parties are bound to repay the entire amount collected by them as advance for the supply of machinery on cancellation of the supply order with interest. Though the opposite parties have admitted their liability to refund the advance amount received have failed to pay the amount in time after several demands has caused the complainant monetary loss and hardship.
It is further stated that the opposite parties are bound to repay the deposit amount on demand with interest. The nonpayment of deposit amount is amounts to deficiency of service as well as unfair trade practice. Feeling aggrieved by the above, the complainant filed the above complaint under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties to pay a total sum of Rs. 3,00,000/- as Deposit receipt along with interest at 15% quarterly rests from due date till this date along with compensation and cost of the proceedings.
II. 1. Version notice served to the Opposite Parties by paper publication inspite of receiving notice not appeared nor represented the case till this date. Hence Opposite Party No.1 to 3 placed ex-parte and postal acknowledgement marked as Court Doc.No. 1 to 3.
III. 1. In support of the complaint, Mr George Monterio (CW1) – Complainant filed affidavit reiterating what has been stated in the complaint and produced Ex. C1 to C12. Opposite Parties placed exparte.
In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that the Opposite Parties has committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:-
Point No.(i): Affirmative.
Points No.(ii) & (iii): As per the final order.
REASONS
IV. 1. POINTS NO. (i) TO (iii):
In order to substantiate assertion made in the complaint, the complainant filed affidavit in support with documents, wherein, the Ex.C1 is the copy of the purchase order. Ex.C-2 is the Xerox copy of cheque No. 232232 of Canara Bank, Panambur issued in the name of M/s Wilworth Earth movers Pvt. Ltd., for Rs. 15,55,600/- by complainant. Ex C-3 is the copy of letter cancelling the purchase order addressed to opposite parties and request for refund of amount paid. Ex C-4 is the copy of email addressed to complainant regarding advance refund sent by opposite parties. Ex C-5 is the copy of letter addressed to the opposite parties by the complainant. Ex C-6 is the office copy of lawyer’s notice to opposite party to opposite parties. Ex C-7 is the postal acknowledgment of opposite parties No. 1. Ex C-8 is the postal acknowledgment of opposite party No. 2. Ex C-9 is the office copy of the lawyer’s notice sent to opposite parties. Ex C-10 is the postal acknowledgment of opposite party No. 1. Ex C-11 is the postal acknowledgment of opposite party No. 2. Ex C-12 is the reply notice sent by opposite party No. 1 addressed to complainant’s advocate.
The above documents depict the complainant placed purchase order to by Volvo Crawler Escalator by paying advance amount of Rs. 15,55,600/-. It is seen on record that, after repeated demands the opposite parties paid Rs. 8,00,000/- by keeping balance of Rs. 7,55,600/- and again on 14.11.2014 made payment of Rs. 4,55,600/ the remaining balance of Rs. 3,00,000/- is due. Since the opposite parties failed to pay the remaining balance till this date amounts to deficiency in service as well as un trade practice. Apart from the above we noted that, the opposite party inspite of serving notice by paper publication not appeared nor contested the case till this date. The entire evidence is not contradicted nor controverted, hence it requires no further proof.
Under the above circumstance, we hold that, the opposite parties liable to refund Rs. 3,00,000/- per annum from the date of complaint till the date of payment. And also pay Rs. 3,000/- as litigation expenses. Payment shall be made within 30 days from the date of this order.
In the result, we pass the following:-
ORDER
The complaint is allowed. The Opposite Party No.1 to 3 shall refund a sum of Rs. 3,00,000/- (Rupees Three lakhs only) along with interest @ 12% per annum from the date of the complainant till the date and also pay Rs.3,000/- (Rupees Three thousand only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
The F.D.R. if any deposited by the Complainant be returned fourth with by substituting the certified.
Copy of this order as per statutory requirements, be forward to the parties and file shall be consigned to record room.
(Page No.1 to 10 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 31st day of OCTOBER 2015)
PRESIDENT MEMBER
(SMT. ASHA SHETTY) (SMT. LAVANYA M.RAI)
D.K. District Consumer Forum D.K. District Consumer Forum
Mangalore. Mangalore.
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Mr. George Monteiro. – Complainant.
Documents produced on behalf of the Complainant:
1. 10.07.2014 Copy of Purchase order issued by complainant.
2. 16.07.2014 Xerox copy of cheque No. 232232 of Canara Bank, Panambur issued in the name of M/s Wilworth Earth movers Pvt., Ltd, for Rs. 15,55,600/- by complainant.
3. Copy of letter cancelling the Purchase order addressed to opposite parties and request for refund of amount paid.
4. 19.09.2014 Copy of email addressed to complainant regarding advance refund sent by opposite parties.
5. 28.10.2014 Copy of letter addressed to the opposite parties by the complainant.
6. 05.11.2014 Office copy of lawyer’s notice to opposite party to opposite parties.
7. 11.11.2014 Postal acknowledgment of opposite parties No. 1.
8. 08.11.2014 Postal acknowledgment of opposite parties No. 2.
9. 14.01.2014 Office copy of lawyer’s notice sent to opposite parties.
10.19.01.2015 Postal acknowledgment of opposite party No. 1.
11.16.01.2015 Postal acknowledgment of opposite party No 2.
12.15.11.2014 Reply Notice sent by opposite party No. 1 addressed to complainant’s advocate.
Court Documents:
Doc.No.1 and 2: Unserved Postal cover along with Acknowledgements.
Witnesses examined on behalf of the Opposite Parties:
- Nil -
Documents produced on behalf of the Opposite Parties:
- Nil -
Dated:31.10.2015 PRESIDENT
ORDER
The complaint is allowed. The Opposite Party No.1 to 3 shall refund a sum of Rs. 3,00,000/- (Rupees Three lakhs only) along with interest @ 12% per annum from the date of the complainant till the date and also pay Rs.3,000/- (Rupees Three thousand only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
The F.D.R. if any deposited by the Complainant be returned fourth with by substituting the certified.
Copy of this order as per statutory requirements, be forward to the parties and file shall be consigned to record room.
(Page No.1 to 10 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 31st day of OCTOBER 2015)
PRESIDENT MEMBER
(SMT. ASHA SHETTY) (SMT. LAVANYA M.RAI)
D.K. District Consumer Forum D.K. District Consumer Forum
Mangalore. Mangalore.
