This complaint is filed by the Complainant u/S 12 of the Consumer Protection Act, 1986 alleging deficiency in service as well as unfair trade practice against the OP-1 and 2 on the ground that the said OPs did not take any step to refund the hiring charges of vehicle along with additional freight charges amounting to Rs.740/- to the Complainant till filing of this complaint.
The brief fact of the case of the Complainant is that the OPs are dealing in Body Building and GYM equipments having one shop at the address of OP-1. On 26.04.2019 the Complainant visited the said shop and purchased one Sit-up bench vide model no. VX-103A from the said shop and paid a sum of Rs.4,250/- towards the total cost price of the product and he was also charged for Rs.250/- for delivery of the said product at his residence mentioned in the challan as ‘Load Charges’. The OPs have acknowledged the payment of the entire amount of Rs.4,500/- through a receipt vide proforma invoice no- CC-01 dated 26.04.2019. At the time of purchase the Complainant was specifically assured that the charged price of Rs.4,500/- includes the load charges which means the delivery and installation of the machine at the residence of the Complainant. It was stipulated that the product shall be delivered within three to four working days. On 30.04.2019 the OP-3 called up the Complainant to inform that the product had reached the office of the OP-3 at Hazra More, Haldia and the Complainant has to pick up the delivery from that place. The Complainant asked the representative of the OP- 3 that the product was scheduled to be delivered at the residence of the Complainant, then the Complainant was told by the said representative of the OP-3 that having no such instructions from the OP-1 and 2, the OP-3 denied delivering the product at the residence of the Complainant. Moreover it was stated by the OP-3 that the delivery/carrying charges is due. From the Complainant’s house to Hazra More, Haldia the distance is about 10 Kilometres and through that way no Riksow Van/local transport is available in the route. The Complainant had expressed his inability and difficulty in picking up the product and requested the OP-3 to deliver the item at his home, but in vain. Thereafter the Complainant contacted with the OP-1, but they have also refused to extend any co-operation to him in delivering the item to his residence and rudely stated that the Complainant has to pick up the product from the office of the OP-3. Thereafter the Complainant has called up the store/ OP-1 to resolve the problem but the concerned person had also refused to provide him any assistance in delivering the product to the residence of the Complainant. The OP-1 has denied the initial promise to deliver and install the product at his residence and it was said by the OP-1 that the product will be handed over to the transport company and thereafter the Complainant has to pick up from there, which is obviously a blatant lie.
The Store Personnel/representative of the OP-1 had promised that the product shall be delivered and installed at his residential address, but inspite of giving such assurance the same was not fulfilled by the OP-1 and 2. Having no other option and being compelled the Complainant had to arrange a Tata Sumo Car from a local car owner on 13.05.2019 and picked up the product from the office of the OP-3. At the time of picking up the product from the office of the OP-3, they again charged the complainant for Rs.240-/ as freight charge and issued a receipt. The Complainant had to incur Rs.500/- for hiring charges for picking up the product from the office of the OP-3. After bringing the product at his residence the Complainant had to install and set up the product himself as the OP-1 refused to provide installation service. Being utterly dissatisfied with the behavior and arrogant attitude of the OPs the Complainant decided to take recourse of legal action against the OPs by filing complaint and accordingly this complaint is initiated. According to the Complainant there is gross deficiency in service and breach of terms of the purchase agreement, assured by the OP-1 and 2 at the time of selling the product to the Complainant. As the OPs have failed and neglected to keep their promise and turned down the repeated request of the Complainant to comply with the same, the Complainant had to face harassment and humiliation along with mental agony on account of aforesaid activities of OP-1 and 2. As the OP-1 and 2 did not take any step to redress his grievance, having no other alternative, the Complainant has approached before the Ld. DCDRF, Barasat (Commission as amended) praying for direction upon the OP-1 and 2 to refund him a sum of Rs.500/- on account of hiring charges of vehicle and additional freight charges claimed by the OP-3 for Rs.240/-, totaling an amount of Rs.740/- to him. The Complainant has also prayed for direction upon the OP-1 and 2 for making payment of compensation to the tune of Rs. 25,000/- due to unnecessary harassment, mental agony and anxiety and litigation cost of Rs. 10,000/- to him.
After admission hearing before the Ld. Barasat Commission, notices were sent to the OPs directing to appear and file written version. On behalf of OP-1 and 2 the Ld. Counsel appeared and filed Written Version. An undertaking was given by the Proforma OP-3 for filing Written version and Vokalatnama on the next date. The OP-3 filed Vokalatnama, but no Written version was forthcoming from the end of the OP-3. At this stage the complaint has been transferred to this Ld. Commission from the Barasat Commission in view of the order passed by the Hon’ble SCDRC dated 16.01.2020. On 17.02.2020 specific order was passed by this Ld. Commission for issuance of notices upon the Complainant and the OPs asking them to appear before this Ld. Commission on 16.03.2020. On 16.03.2020 the office of this Ld. Commission was further directed to issue notices on that context. Thereafter lockdown was started throughout India due to Covid-19 and accordingly this case record was placed before this Ld. Bench on 24.09.2020 wherein order was passed for adducing evidence by the Complainant on 15.10.2020. On 15.10.2020 as the Complainant was not present further date was given to him for adducing evidence on 05.11.2020. On 05.11.2020 due to non-availability of the Complainant further date was given for adducing evidence by the Complainant on 03.12.2020. On 03.12.2020 the OPs were absent on calls. The Complainant filed an application on affidavit for adoption of the petition of complaint as his evidence. Along with the said application the Complainant filed a bunch of document under Firisty. Date was given for filing questionnaire by the OPs on 04.01.2021. As the OP-3 did not file Written version this Ld. Commission was pleased to pass an order that the complaint will run ex-parte against the OP-3, but no questionnaire was forthcoming on behalf of the said OPs and in the meantime 2nd wave of Covid 19 was started. Enough scope was given to the OPs for filing questionnaire in respect of the evidence of the Complainant, but the OPs did not take any step. Hence the evidence of the Complainant remains uncontroverted.
Scope was given to OP-1 and 2 for adducing evidence but the said OPs did not bother to adduce the same. Due to his reason, this Ld. Commission was pleased to fix the complaint for argument in accordance with Law on 17.12.2021.
The Petition of complaint have been contested by the OP-1 and 2 by filing written version contending that admittedly on 26.04.2019 the Complainant purchased one product from their shop by making payment of Rs.4,250/- and accordingly an invoice was issued in his favour along with certain terms and conditions mentioning therein. The Complainant being an outstation customer requested the OPs to book the said product through a transport on “Freight to Pay” basis. For dispatching the product to the transport company the Complainant was charged Rs.250/- as extra. It is the general system of the local transporter to collect Freight upon delivery to customer at destination. The terms and conditions no-9 on the copy of the invoice clearly mention that the ‘installation charges’ are applicable outside Kolkata and have to be paid extra. No such extra charge was paid by the Complainant. Therefore the Ops did not commit any fraud on the Complainant or caused any deficiency in service as alleged by the Complainant. According to the OP-1 and 2 the instant complaint being frivolous one is liable to be dismissed with cost.
We have carefully perused the petition of complaint, written version along with other documents as available in the record and heard argument in full advanced by the Ld. Counsel for the Complainant. It is seen by us that the Complainant purchased one Sit-up Bench vide Model No. VX-103A from the. of the OP 1 and 2 on 26.04.2019 after making payment of Rs.4,250/- towards the total cost price of the product along with delivery charge of the said product for Rs.250/-. It is mentioned in the challan issued by the OP-1 and 2 that delivery will be made at the residence of the Complainant and for such delivery the OP 1 and 2 received a sum of Rs. 250/- as ‘Load Charges’. The OPs have acknowledged the payment of the entire amount of Rs.4,500/- through a receipt dated 26.04.2019. It is stated in the petition of complaint that at the time of purchase the Complainant was specifically assured that the charged price of Rs.4,500/- includes the load charges which means the delivery and installation of the machine at the residence of the complainant.
In this respect we are to say that regarding installation of the machine the OPs did not mention anything in the challan, rather the proforma invoice issued by the OPs in favour of the Complainant dated 26.04.2019 it is mentioned under the head of Terms and Conditions no-7 that installation charges are applicable outside Kolkata and have to be paid extra. The proforma invoice does not reveal that the Complainant paid extra amount for installation charges of the said product at his residence. Moreover the Complainant is residing outside Kolkata. Therefore, as per Terms and conditions of the proforma invoice the Complainant had to pay extra amount for installation of the said product at his residence. Due to want of any cogent evidence in this in this respect we cannot pass any order that the OPs were under the obligation to install the product at the residence of the Complainant without getting any amount from the Complainant. Moreover the load charges for Rs. 250/- does not mean the installation charges of the said product.
On 30.04.2019 the OP-3 called up the Complainant to inform that the product had reached the office of the OP-3 at Hazra More, Haldia and the Complainant has to pick up the delivery from that place. The Complainant asked the representative of the OPs that the product was scheduled to be delivered at the residence of the Complainant.
The Complainant was told by the representative of the OP-3 that having no such instruction from the OP-1 and 2, OP-3 is not under any obligation to deliver the product at the residence of the Complainant. It is stated by the Complainant that the OP-3 told him that the delivery of carrying charges is due. The Complainant has contended that from Harjra More to Complainant’s house the distance is about 10 kms and through that way no Rikshaw Van/no transport is available in the route. Therefore the Complainant had expressed his inability and difficulty to pick up the product and requested the OP-3 to deliver the item at his home. The OP-3 did not pay any heed to his request. Thereafter the Complainant contacted with the OP-1, but they have also refused to extend any co-operation to him in delivery of the item at his residence. For delivery of the product the Complainant had to run from pillar to post but he did not get any cooperation or assistance from the OP-1, 2 and 3. Having no other option and being compelled the Complainant had to arrange a Tata Sumo Car from a local car owner on 13.05.2019 for picking up the product from the office of the OP-3. From the document as adduced by the Complainant during evidence it is revealed to us that the Complainant had to pay Rs.500/- for hiring charges to the car owner on 13.05.2019. At the time of picking up the product the OP-3 again charged from the Complainant for Rs.240/- as freight charge, which the Complainant had to pay to the OP-3 and against such payment the OP-3 issued a receipt in favour of the Complainant, which is available in the record. Therefore, it is crystal clear to us that in spite of making payment of Rs.250/- to the OP 1 and 2 on account of load charges of the product the Complainant had to incur Rs. 740/- further, out of which Rs.240/- was paid to the OP-3 and Rs. 500/- to the car owner from his own pocket. The Tata Sumo Car was hired by him. As per proforma invoice it was the bounden duty of the OP-1 and 2 to deliver the questioned product at the residence of the Complainant, but the OP-1 and 2 have miserably failed to discharge their duties. In our view such inaction of the OP-1 and 2 certainly proves that the service of the OP-1 and 2 suffers from deficiency in service, for which the Complainant is entitled to get compensation from the OP-1 and 2.
After careful perusal of the document it also noticed by us that after making payment of the load charges to the tune of Rs.250/- to the OP-1 for delivery of the said product, The complainant had to pay further Rs.740/- for delivery of the said product at his residence from the office of the OP-3, out of which Rs.500/- was paid to the car owner and Rs.240/- to the OP-3. Due to this reason the OP-1 and 2 are also under the obligation to pay Rs.740/- to the Complainant. Admittedly as the OP-1 and 2 did not take any step for redressal of the grievance of the Complainant before coming to this Ld. Commission and by filing this complaint. The complainant had to incur some expenses; hence, the Complainant is also entitled to get litigation cost from the OP-1 and 2.
Going by the foregoing discussion hence, it is ordered that Consumer Complaint being no-RBT/CC/79/2020 is hereby allowed on contest against OP-1 and 2 with cost and dismissed exparte against the OP-3 without any cost.
The OP-1 and 2 shall pay either jointly or severally to the Complainant a sum of Rs.740/- along with interest at the rate of 12% per annum from the date of making payment i.e. 13.05.2019 till entire realization. The OP-1 and 2 shall pay either jointly and severally compensation to the Complainant on account of deficiency in service, mental agony and harassment for Rs. 10,000/- and litigation cost of Rs. 5,000/-. The entire payment shall be made by the OP-1 and 2 to the Complainant within 45 days from the date of this judgment, failing which the interest component will be 14% per annum instead of 12%, in default the Complainant will be at liberty to put the entire order in execution as per provision of Law.
Let plain copy be given to the parties free of cost as per CPR.
Dictated and corrected by
[HON'BLE MRS. Silpi Majumder]
MEMBER
