BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BAGALKOT.

C.C.No.28/2019

Date of filing: 18/02/2019

Date of disposal: 29/06/2019

P R E S E N T :-

- V/S –

JUDGEMENT

By Smt. Sharada. K. President.

1.      This is a Complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (herein after referred to as Act) against the Opposite Party (in short the “OP”) directed to refund Rs.1,60,000/- alongwith interest
@ 12% p.a. from the date of receipts till realization and pay Rs.2,00,000/- towards compensation for loss, harassment and agony and pay to cost of the litigation and any other reliefs etc.,

2.      The facts of the case in brief are that;

          It is case of the complainant that, the complainant is a MBBS D’Ortho & DNB degree holder for his livelihood, he wanted to engage in medical practice by establishing his own new Ortho Hospital, at Mudhol and further the complainant came across the OP which is a private establishment dealing in fabrication and supply of medical/hospital equipments and further as per the inducement offered by the OP, on contacting the complainant through India Mart, on dtd: 03.03.2018, the complainant had discussions with the OP regarding the details of his new hospital equipments requirement. Accordingly, the OP sent his representative one Mr.Shankar to the complainant’s establishment at Mudhol. Thereafter, at the instance of OP, the complainant visited his factory/office at Bengaluru and placed order for 19 items for Rs.4,30,000/- (which is inclusive of GST transportation and installation charges) and as per OP’s requirement, the complainant has paid Rs.50,000/-  as an advance, the OP has confirmed the receipt of the amount by sending mail and there was an understanding that, the OP has to supply of materials within 3 months.    

          It is further contended that, after waiting for 3 months, the complainant did not get any response from OP’s side, he started asking the OP for supply the ordered materials. But, OP insisting the complainant for making payment of another Rs.1,00,000/-, though he was not pay the same, but still keeping hope that, the OP will supply the ordered materials, finally he has sent Rs.1,00,000/- through NEFT on dtd: 26.10.2018 to the OP. Even after the payment, again the OP dragged the supply without any justification last week of November 2018 and ultimately sent a partial consignment consisting 08 items and further on opening the partial consignment the complainant was astonished to see the supplied materials which are mostly in unfinished/non-usable/supportive tools and useless condition. Further many products partial attachments are missing,  thus  while taking

delivery of consignment, the complainant has made a note on OP’s consignment copy to that effect and further the OP did not send anyone for installation of those partial equipments also. So far, they have been kept idle. 

          It is further contended that, as per OP’s instructions, the complainant has paid Rs.10,000/- to Mr.Babu, the driver of goods vehicle through whom the consignment was sent and further the OP is not responding to complainant’s call. In this regard, the complainant has on several occasions tried to contact asking the OP to adhere to the promise, but in view of OP’s indifferent attitude, the complainant has sent some SMS through his friends phone. But, still, until date nothing has been materialized and he has made him to fall prey to his
ill-design in order to grab amount, which is aptly an unfair trade practice and thereby the complainant has suffer huge loss, untold harassment and agony. It is simply not a case of mistake or misrepresentation but a definite case of breach of trust and conspiracy hatched to dupe the innocent buyers. Thus, it is apparent that, OP has not only committed lapses cognizable U/s. 2(1) (g) & 2(1) (r) C.P. Act 1986.      

          Finally, the complainant has got issued a legal notice through his Counsel on dtd: 18.12.2018, calling upon the OP to refund the amount with interest and compensation. However, the RPAD cover was returned with an endorsement that, such Company does not exist. But, a mail OP has given evasively replied to the complainant and further the cause of action arose at Mudhol, when the partial/useless supply of materials to the complainant. Hence, due to the above said unfair attitude on part of OP side, the complainant is put to inconvenience and hardship. Hence, having no alternative, the complainant is constrained to file this complaint.

3.        After issue of notice to the OP, the notice was duly served to the OP, but OP has not appeared before this Forum. Hence, OP is placed Ex-parte.

4.      In support of the claim in the complaint, the complainant has filed his affidavit evidence and produced some documents, which are as under;

5.      Heard the argument of complainant Counsel and perused the documents. Now, on the basis of these facts, the following points that would arise for our consideration:

1. Whether the complainant has proved that, there is deficiency of service on the part of the OP?

2. What order?

6.      Our findings on the above points are as fallows;

1. Point No.1 Partly in the affirmative.    
2. As per final Order.

                          R E A S O N S

7.  POINT NO.1:  Admittedly, the complainant visited the OP factory/office at Bengaluru and placed order for 19 items for Rs.4,30,000/- (which is inclusive of GST transportation and installation charges) and he has paid Rs.50,000/- as an advance and further in this regard, the OP has confirmed the receipt of the amount by sending mail to the complainant which is marked as Ex.P-1 and there was an understanding that, the OP has to supply of materials within 3 months to the complainant.  It is also not in dispute that, after waiting for 3 months, the complainant did not get any response from OP’s side, he started asking the OP for supply the ordered materials. But, OP insisting the complainant for making payment of another Rs.1,00,000/-, though he was not pay the same, but still keeping hope that, the OP will supply the ordered materials, finally he has sent Rs.1,00,000/- on his S.B. account through NEFT on dtd: 26.10.2018 to the OP which is marked as Ex.P-7. Even after the payment, again the OP dragged the supply without any justification and last week of November 2018, ultimately sent a partial consignment consisting 08 items to the complainant and said that, to give Rs.10,000/- to Mr.Babu, the driver of goods vehicle, through whom the consignment was sent, as per instruction of the OP, the complainant has paid Rs.10,000/- to Mr.Babu and opened consignment, it was astonished to see that, supplied materials are mostly in unfinished/non-usable/supportive tools and useless condition and further many products partial attachments are missing and further the OP did not send anyone for installation of those partial equipments. Hence, non-supply of the ordered equipments and supplying partial/non-usable materials, the OP has committed breach of contract, deficiency in service, unfair trade practices to the complainant.

          So, under these circumstances is manifest from the above observation, there is a negligence on the part of OP towards not delivered the ordered equipments to the complainant and it is also necessary to mention here that, the Complainant has got issued a legal notice to the OP on dated: 18.12.2018 calling upon to refund the amount alongwith compensation for the deficiency in service, which is marked as Ex.P-4, but it was returned an endorsement that, such Company does not exist, which is marked as Ex.P-5, but a mail, later OP has given evasive reply to the said notice. Hence, we are of the considered view that, the OP denied the entire case of the Complainant which is unsustainable in law. On the strength of the affidavit of the Complainant coupled with documentary evidence referred above the only irresistible conclusion arises is that, the OP is guilty of deficiency in service of non supply the ordered equipments to the complainant.

      Therefore, the OP cannot be escape its liability to refund the amount and compensation for loss of said equipments and the loss suffered by complainant on account of non supply of the ordered equipments and the OP merely by taking shelter as per adhere to the promise made to the complainant, in this regard, the complainant has already produced some documents to prove his case that, the OP has made deficiency in service and unfair trade practice to the complainant. In order to establish the contention, the Counsel of complainant has relied decision of Hon’ble National Consumer Disputes Redressal Commission, New Delhi III (2003) CPJ 125 (NC) Jai Hind Knitting Machine V/s. Brij Mohan Revision Petition No.1240 of 2003 is aptly applicable to the instant case.

          Here in the instant case it is proved that, the OP has not supplied the ordered equipments to the complainant. Therefore, having regard to the facts and circumstances of the case, taking into consideration that, the OP is refund the amount of Rs.1,60,000/- to the complainant and it would be just and proper to award a compensation of Rs.1,50,000/- regarding negligence on the part of OP for non supply of the ordered equipments to the complainant. Further, we also award litigation expenses of Rs.2,000/-. In the result, we proceed to pass the following:

                                                                //ORDER//

The complaint is allowed in part.

The OP is directed to refund the amount of Rs.1,60,000/- to the complainant with interest @ 9% p.a. from the date of Complaint till realization.

Further, OP is directed to pay Rs.1,50,000/- towards  negligence on the part of OP for non supply of the ordered equipments to the complainant and pay Rs.2,000/- towards costs of the proceedings.

The OP is granted one month time for compliance of this order, failing to which the OP is liable to pay interest @ 12 % p.a. to the entire amount i.e. Rs.3,10,000/- to the complainant from the date of this order till its realization. 

Send the copies of this order to the parties free of cost.

            (This order is dictated to the Stenographer, transcript edited, corrected and then pronounced in the open forum on this 29^th day of June, 2019).