BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

C.C.No.4 / 2017

Dated this the 27^th day of April 2017

(Date of Institution: 01.02.2017)

Mehaboubunnissa, wife of Gilbert @ Saleem

40, Saint John Britto Street, Third Cross,

Colas Nagar, Pondicherry – 605 001.

                                                ….     Complainant

Vs.

Eureka Forbes Limited    

Rep. by its Authorised Signatory         

No.2, 'B' Lane, V.V.P. Nagar,          

Thattanchavadi, Puducherry – 605 009.

                                                          ….     Opposite Party

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Thiru V.V. STEEPHEN, B.A., LL.B.,

           MEMBER

FOR THE COMPLAINANT            :  Thiru N. Baptiste Augustin, Advocate

FOR THE OPPOSITE PARTY          :  Exparte

                                                       O R  D  E  R

(By Thiru. A. ASOKAN, President)

This is a complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986 praying to direct the opposite party to pay a sum of Rs.4,465.50 being the amount deducted towards cheque returning charges with subsequent interest at the rate of 12% per annum from 16.09.2015 being the date of presenting the cheque till the date of realisation; directing the opposite party to return the two cheque leafs 000122 and 000123 of Karur Vysya Bank Limited, J.N. Street, Puducherry;  directing the opposite parties to pay a sum of Rs.1,00,000/- towards compensation for the loss and mental agony suffered by the complainant due to the negligence and deficiency in service on the part of the opposite party; directing the opposite party to discontinue the Unfair Trade Practice practiced on the complainant and to pay a sum of Rs.25,000/- towards cost of this litigation.

2.  The case of the complainant is as follows:

          The complainant purchased an Aquaguard Water Purifier under the name "ENHANCE" for a sum of Rs.18,000/-  from the opposite party on 27.01.2015.  The complainant  paid a sum of Rs.1000/-  on the date of purchase as she has intended to purchase on instalments for which the opposite have also agreed.  The opposite party received two cheque leafs 000122 and 000123 of Karur Vysya Bank Limited, Puducherry from the complainant at the time of purchase.  The complainant instructed the opposite party to present the cheques after 20^th of every month which the opposite party agreed but every time the opposite party presented the cheque prior to that time.  The instalment amount in the cheque mentioned is Rs.1,719/-.  The opposite party instead of presenting the cheque after 20^th of March 2015, has presented the same on 16.03.2015 due to which the cheque was dishonoured.  The complainant deposited an amount of Rs.2000/- in cash in her bank account and the cheque was honoured.   The complainant further stated that at the time of purchase of the water filter, the opposite party stated that the filter will be changed once in three years but to the contra, it has been changed every year.  The complainant also stated that while there was a balance of Rs.8,529/-, she intended to foreclose by paying the balance amount.  Therefore, on 09.09.2015 the complainant approached the opposite party and paid the balance amount of Rs.8,529/- by cash and thus the entire amount was paid in full and final settlement.  After payment of entire amount, the complainant asked for return of the unused cheque in the custody of the opposite party, but instead of return the cheque, the opposite party has presented the cheque on 16.09.2015, 01.10.2015, 15.10.2.15, 03.12.2015 and 10.12.2015 and that every time the cheque was presented by the opposite party, the cheque return charges were imposed by the Karur Vysya Bank Limited, Puducherry.   Further, on 16.09.2015 the opposite party has withdrawn an amount of Rs.1,719/- towards EMI and an amount of Rs.78.13 was deducted towards cheque return charges; on 01.10.2015 an amount of Rs.263.87 was deducted towards cheque return charges,  on 15.10.2015 an amount of Rs.45.15 was deducted towards cheque return charges, on 18.11.2015 an amount of Rs.1719/- was withdrawn by the opposite party towards EMI, on 03.12.2015 an amount of Rs.296.85 was deducted towards cheque return charges, on 10.12.2015 an amount of Rs.343.50 was deducted from the account of the complainant towards cheque return charges by Karur Vysya Bank Limited, Puducherry.  Totally, a sum of Rs.4,465.50  was withdrawn / deducted by the opposite party by misusing the cheques of the complainant.  The opposite party wantonly and willfully with criminal intention presented the cheques and extracted money from the account of the complainant and therefore the opposite party has practiced Unfair Trade Practice.  The complainant further stated that every time when the personnel from the opposite party come for service of the water purifier, they are getting money and they are giving a paper called as Service Request Activity Report and in it, it is mentioned that "This is not a bill.  Don't pay against this report".  In this paper the opposite party are getting the signature of the complainant and the opposite party is not giving any bill for the service done and amount received from the complainant for the service rendered by the opposite party.   The complainant further stated that in the name of service, the opposite party is trying to extract money from the complainant and therefore, there is a deficiency of service on the part of the opposite party.  Further, due to presenting of the cheque again and again by the opposite party, there is unnecessary withdrawal of amount by the bank in the name of cheque clearing charges and the complainant was made to run from pillar to post and she was helpless and has to seek her grievance accordingly to law and therefore, the complainant seeks compensation of Rs.1,00,000/- for the loss and mental agony caused to her.  The complainant issued a legal notice on 25.01.2016 to the opposite party calling upon them to come forward in paying the amount deducted by the Karur Vysya Bank, Puducherry towards the cheque clearing charges and also to quit the Unfair Trade Practice and to pay the compensation for loss and mental agony.  The said notice was received by the opposite party on 30.01.2016 but failed to pay the amount not in giving the reply for the said notice.  Further stated that only after receipt of the Advocate notice, the opposite party has not deposited the cheques.  Hence, this complaint. 

3.       The opposite party remained absent and  set exparte.

4.       On the side of the complainant, the complainant herself was examined as CW1 and Exs. C1 to C11 were marked. 

   5.        Points for determination are:

1. Whether the complainant is the consumer?
2. Whether the opposite parties attributed any deficiency in service and unfair trade practice?
3. To what relief the complainant is entitled for?

6.  Point No.1:

          The complainant has purchased one Aquaguard Enhance RO + UV water purifier on 27.01.2015 vide invoice Ex.C11 from the opposite party for Rs.16,990/-on instalment basis  and paid in initial advance payment of Rs.999/- vide Ex.C2.     Hence, the complainant is the consumer.

7.       Point No.2:

          The complainant was examined as CW1 and marked Exs.C1 to C11.  The Opposite Party was served, but called absent and set ex parte.  The complainant submitted that she had purchased an Aquaguard Water Purifier from the opposite party on 27.01.2015.  The value of the said product is Rs. 16,990/- vide Ex.C11.  The complainant purchased the said product from the opposite party on instalment basis and initially paid a sum of Rs.999/- as advance vide Ex.C2.   The subsequent payments were made through bank by presenting cheque given to the opposite party and on 20.03.2015 the complainant paid Rs.1,719/- by cash vide Ex.C3.  While being so, on 9.9.2015 the complainant has paid a sum of Rs.8,529/- by cash vide Ex.C4 as full and final settlement for the balance EMI amounts to be paid by the complainant.  The complainant alleged that after settlement of all dues vide Ex.C4, she had asked the opposite party to return the two cheques bearing Nos. 000122 and 000123 of Karur Vysya Bank Ltd., Puducherry retained by the opposite party.  Instead of returning the same, the opposite party has presented a cheque on 16.09.2015 and withdrawn a sum of Rs.1,719/- towards EMI and also on 18.11.2015 the opposite party has withdrawn another sum of Rs.1,719/- towards EMI from the account of the complainant while the full and final settlement was made on 09.09.2015 which is unjust leading to Unfair Trade Practice. 

          8. Moreover, the opposite party having received all the dues in one time settlement on 09.09.2015, they have presented the retained cheques by them on various dates such as, 01.10.2015, 15.10.2015, 03.12.2015 and 10.12.2015 and the same was returned as insufficient funds and the complainant's banker has collected the cheque return charges every time to a tune of Rs.1,027.50 from the complainant's account vide Ex.C5 the statement of accounts issued by the Karur Vysya Bank Ltd., Puducherry.  Exs.C6 to C8 are the service reports which establish that the water purifier was periodically serviced by the opposite party.  Since the opposite party has presented the cheques time to time even after paid all the dues by the complainant, the complainant issued a legal notice dated 25.01.2016 vide Ex.C9.  The said notice was acknowledged by the opposite party vide Ex.C10, however, no reply was given. 

9.       From the above facts and evidence adduced by the complainant, it is clear from Ex.C11 that the complainant had purchased an Aqua Guard Water Purifier from the opposite party on 27.01.2015 for a total sum of Rs.16,990/-.  Further on perusal of Ex.C4, the complainant paid Rs.8,529/- towards full and final settlement of the dues.  From the statement of  accounts Ex.C5 issued by the Karur Vysya Bank Limited, Puducherry, this Forum observed that after the payment of Rs.8,529/- being the full and final settlement of the dues, the opposite party has presented the post dated cheques given by the complainant at the time of purchase and encashed  Rs.1,719/- in two occasions i.e. on 16.09.2015 and 18.11.2015 respectively.  Further, the opposite party instead of returning the cheques to the complainant, they have presented the cheques on various dates knowingly that all the dues had been paid by the complainant.  Since the complainant paid all the dues with the opposite party, she did not maintain the account with sufficient balance, the cheques presented by the opposite party were returned and return charges were imposed and deducted by the complainant's banker. 

 10.     To refute the allegations of the complainant, the Opposite Party did not appear before this Forum to let in evidence even after received the summons from this Forum.  Since the evidence brought on record by the complainant was not rebutted, the opposite party having knowledge that the complainant has paid entire dues, the opposite parte has not returned the post dated cheques given by the complainant, on contra, the opposite party has presented the cheques.  The above act of the Opposite Party clearly established the complainant's case and  the Complainant has proved the deficiency of service and unfair trade practice of the Opposite Party.   Hence, this Forum has come to the conclusion that the opposite party attributed deficiency of service and Unfair Trade Practice and caused loss and injury to the complainant.  Thus, the complainant is entitled to claim compensation from the opposite party for loss of money and mental agony and the Opposite Party is liable for their deficiency of service and unfair trade practice. 

11.     Point No.3:

          In view of the decision taken in point No.2, this complaint is hereby allowed and the opposite party is hereby directed:   

1. to repay the sum of Rs.3,438/- being the two instalment amounts withdrawn by them.
2. to repay the sum of Rs.1027.50 being the cheque return charges collected from the complainant by Karur Vysya Bank Limited, Puducherry.
3. to return the  two cheque leafs 000122 and 000123 of Karur Vysya Bank Limited, Puducherry.    
4. to pay a sum of Rs.15,000/-  as compensation to the complainant for the deficiency of service and unfair trade practice.  
5. to pay a sum of Rs.5000/- as cost of the proceedings.

Dated this the 27^th day of April 2017.

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

MEMBER

COMPLAINANTS' WITNESS:  

CW1           15.03.2017           Mehaboubunnisa

OPPOSITE PARTY'S WITNESS:  Nil

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTY'S EXHIBITS: Nil

LIST OF MATERIAL OBJECTS:  NIL

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

     MEMBER