| Final Order / Judgement | - The fact of the case of complainant is that exclusively for earning his livelihood, he started a hardware business dealing with paints and on the motivation of O.P. No. 1 he placed an order for purchasing of wall putty of 20 kg of 50 bags, Decorative white cement of 25 kg of 25 bags, Decorative white cement of 40 kg of 25 bags and wall putty of 40 kg of 225 bags and paid Rs. 30,000/- on 16.10.2017 and Rs.2,70,000/- on 08.11.2017 to the O.P. No. 2 after getting an assurance of freight charges to be borne by the O.P. No. 2.It is alleged that he received an invoice vide no. PWL/2017-18-0227 dated 21.12.2017 from the O.P. No. 2 mentioning the freight charges of Rs. 93,500/- and at the time of delivery of the products, the O.P. No. 2 demanded an amount of Rs. 93,600/- towards freight charges from him through their transporter M/s J.P. Road Carrier vide their CNS Note No. 20552 dated 21.12.2017.While the complainant demanded Rs. 93,500/- to the O.P.No.2 as assured by the O.P. No. 1, towards his freight charges, the O.Ps paid deaf ears, thus alleging deficiency in service and unfair trade practice on the part of the O.Ps, he filed this case claiming to refund Rs. 93,500/- with 12% interest alongwith Rs. 50,000/- and Rs. 20,000/- towards compensation and costs of litigation to him.
- After receipt the notice, the O.P.No. 1 appeared in this case, filed his counter version admitting the service rendered out by the O.Ps to the complainant and also contended that being an agent of O.P. No. 2 he acts as per their instruction but strictly denied the allegations of complainant contending that the freight charges, if charged to the complainant, is not in his knowledge and also contended that it is the O.P. No. 2 who is the concerned person to answer the allegations of complainant, thus showing his no liability, he prayed to dismiss the case against him.
- On the other hand, the O.P. No.2, though received the notice on 08.02.2018, which was sent through Regd. Post vide R.L. No. RO 539042190IN dated 01.02.2018, but did not choose to appear in this case and neither filed their counter version nor participated in the hearing also, inspite of several opportunities and adjournments were given to them for their appearance and submissions, but they became silent over the case, as such we proceeded the hearing on exparte against the O.P. No. 2. Further, non appearance of the O.P. No. 2 made the versions of complainant strong and vital.
- Complainant filed certain documents like (1) copy of application form for distributorship issued by O.P. No. 2, (2) copy of Tax Invoice vide no. PWL/2017-18/0227 dated 21.12.2017 issued by O.P. No. 2, (3) copy of bank statement and (4) copy of CNS Note No. 20552 dated 21.12.2017 issued by J.P. Road Carrier in support of his submissions and (5) computer printout of postal status in respect of the notice sent to O.P.No.2 vide consignment no. RO539042190IN dated 01.02.2018. Whereas the O.Ps did not choose to file any documents in support of their contentions. Heard from the parties present at length and perused the material documents available in the record.
- It is an admitted fact that the complainant for earning his livelihood, placed an order for purchasing wall putty of 20 kg of 50 bags, Decorative white cement of 25 kg of 25 bags, Decorative white cement of 40 kg of 25 bags and wall putty of 40 kg of 225 bags and paid Rs. 30,000/- on 16.10.2017 and Rs.2,70,000/- on 08.11.2017 to the O.P. No. 2. Complainant has filed certain documents to that effect. The allegations of complainant is that he was assured by the O.P.No.1 to get benefits of freight charges from the O.P. No.2, but the O.P. No.2 demanded freight charges of Rs. 93,500/- vide invoice no. PWL/2017-18-0227 dated 21.12.2017 and at the time of delivery of the products, the O.P. No. 2 demanded an amount of Rs. 93,600/- towards freight charges from him through their transporter M/s J.P. Road Carrier vide their CNS Note No. 20552 dated 21.12.2017. Complainant also filed documents to that effect. It is also alleged that while the complainant demanded Rs. 93,500/- to the O.P.No.2 as assured by the O.P. No. 1, they paid deaf ears. Whereas the O.P. No. 1 has contended that being an agent of O.P. No. 2, he does the marketing activity as per the instruction of the O.P. No. 2 and is not aware of the contract made between the complainant and the O.P.No.2 and also contended that being an agent of O.P. No. 2, he has no liability for any violation of contract made between the complainant and the O.P.No.2.Further non appearance of the O.P.No. 2 in the present proceeding, the allegations of complainant and submissions of the O.P.No.1 remained unchallenged from the side of O.P.No.2.
- It is observed that though the O.P.No.2 has received the notice from this Fora on 08.0.2018 did not choose to appear in this case nor they filed their counter nor participated in the hearing also, as such we lost every opportunities to hear from them regarding the allegations of the complainant, as such the whole allegations of complainant became unrebuttal and stong and vital from the side of O.P.No.2. In this connection, we have fortified with the verdicts Hon’ble National Commission in the case between Urban Improvement Trust, Bikaner, Rajasthan Vrs Babu Lal and Another, wherein it is held that that “Unrebutted averments shall be deemed to be admitted.”
- Further it is also observed that though the O.P. No.1 has challenged the allegations of complainant to the effect that he is now aware of the contract made between the complainant and the O.P.No.2, but to make contradiction, he could not filed any cogent evidence, as he himself admitted that he is the agent of the O.P.No.2. As such the versions of O.P.No.1 cannot be accepted at this moment. Hence the allegations of complainant also remained rebuttal from the side of the O.P.No.1.
- Now coming to point regarding freight charges, it is observed that O.P. No. 2 issued an invoice vide no. PWL/2017-18-0227 dated 21.12.2017 mentioning the freight charges of Rs. 93,500/- and at the time of delivery of the products, the O.P. No. 2 also demanded an amount of Rs. 93,600/- towards freight charges from the complainant through their transporter M/s J.P. Road Carrier vide their CNS Note No. 20552 dated 21.12.2017, which is a matter of surprise and it is well settled law that for one purpose, demand of charges for two times is not legal and justified.Further at the time of hearing, the complainant submitted that he has not paid any freight charges to M/s J.P. Road Carrier but he has already paid the said charges to the O.P.No.2 earlier at the time of deposit of purchase amount of Rs. 3,00,000/- and against which he is to receive the freight charges of Rs. 93,500/-.The said submissions of complainant also remained unchallenged from the side of O.P.No.2, as they received the notice from the Fora and the said fact is well within the knowledge of the O.P.No.2.Hence the versions of complainant is accepted.Further it is observed from the submissions of the complainant that definitely he must have suffered from mental agony and financial loss as well as physical harassment, which compelled him to file this case.Hence this order.
ORDER
The complaint petition is allowed in part. The O.P.No.2 being manufacturer, is herewith directed to refund the freight charges of Rs. 93,500/- with interest @ 6% per annum from the date of they received the whole amount i.e. from 08.11.2017 and also to pay Rs. 10,000/- towards compensation and Rs. 2,000/- towards costs of litigation, within 30 days from the receipt of this order, failing which, the freight amount of Rs. 93,500/- shall carry interest 10% per annum from 08.11.2017 to till the date of payment.
Pronounced in the open Forum on this the 5th day of November, 2018. Issue free copy to the parties concerned.
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