DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD
Dated this the 27th day of July 2013
Present : Smt.Seena H, President
: Smt. Preetha.G. Nair, Member
: Smt.Bhanumathi.A.K. Member Date of Filing : 08/02/2013
(C.C.No.32/2013)
Sujithkumar.R
S/o.Rajagopal,
Muralikarthik,
Pallipuram, Pirayiri,
Palakkad – 678 019 - Complainant
(By Adv.B.Ravikumar)
V/s
K.Viswanathan,
S/o.Bhaskara Menon,
Proprietor,
M/s.Vishwal Home Nursing,
Hajees Complex,
Near Mission High School,
English Church Road,
Palakkad – 678 014 - Opposite party
(By Adv.P.M.Ramesan)
O R D E R
By Smt.Bhanumathi.A.K. MEMBER
Case of the complainant in brief:
The complainant had availed the service of a home nurse from the opposite party as per his application dated 13/9/11 for looking after his aged grandfather. An amount of Rs.1500/- was paid as service charge on 13/9/11 for getting the service of a home nurse from 20/9/11 to 6/2/11. As per the terms and conditions of the opposite party the consideration for the service of the home nurse was Rs.7,000/- for one month (26 days deducting 4 holidays). The same is to be paid again for 26 days on the expiry of the initial period of 26 days. Therefore the complainant had paid an amount of Rs.7,000/- on 20/9/11 and started to avail the service of the home nurse from 20/9/11 for the period from 20/9/11 to 15/10/11. On 16/10/11 the complainant had paid an amount of Rs.7,000/- to the opposite party for the service of the home nurse. Thereafter an amount of Rs.7,000/- was again paid to the opposite party for the service of the very same home nurse. But the grandfather of the complainant died on 27/11/11, that fact was informed to the opposite party and the home nurse was entrusted back to the opposite party on 29/11/11, after the burial of the deceased. Since there was no authorized person to receive the home nurse back at the opposite party’s office, she was asked to come on the next day. Hence on 30/11/11 she was entrusted with the opposite party. The opposite party had accepted back the home nurse and assured to close all the accounts and return the excess amount paid by the complainant to the opposite party. So the complainant had availed the service of the home nurse from 20/9/11 to 30/11/11 (71 days) The complainant had paid an amount of Rs.22,500/- to the opposite party towards consideration for availing the service of the home nurse. So an amount of Rs.3,385/- is to be repaid with interest @12% per annum from 30/11/11. The complainant made several demand to repay the amount. But the opposite party had not responded to the same instead the opposite party has filed a suit by another firm at Thrissur before the Hon’ble Munsiff Court, Thrissur as US1810/12. The failure to return the excess amount by the opposite party is deficiency of service and unfair trade practice on their part.
So the complainant seeking an order directing the opposite party to return the following amounts.
a. Amount to be returned as on 30/11/11 : 3385.00
b. Interest @12% per annum on Rs.3385
From 30/11/11/ till 31/1/13 : 473.00
c. Compensation for mental agony and
Sufferings : 5000.00
Total : 8858.00
Opposite party entered appearance and filed version with the following.
Availing the service of home nurse and the payment is admitted by the opposite party. But opposite party denies that the complainant’s grandfather Natarajan died on 27/11/11 and the said fact has been informed to the opposite party by the complainant. No such information was given by the complainant to the opposite party. It is denied by the opposite party that after the burial of Natarajan the home nurse then posted was returned to the opposite party on 29/11/11 and since there was nobody to receive her, She was asked to come on next day and she has been entrusted with the opposite party. The opposite party has not accepted the home nurse on next day. The complainant has not terminated the contract with opposite party as per terms and conditions executed by him on 20/9/11 and he has not handed over the home nurse supplied to him. Since the complainant has defaulted payment of service charge and renewal charge from 7/12/11, the opposite party has issued a letter on 9/12/11 for winding up the contract and return the home nurse supplied within 24 hours. The complainant has not sent any reply to the letter. It is not correct to say that there is an excess payment made by the complainant to the opposite party. The complainant has availed the service of the home nurse supplied by the opposite party and he has violated the terms and conditions in the contract entered with this opposite party and is liable to pay the balance amount to the opposite party. There is no deficiency of service or unfair trade practice on the part of opposite party and complaint is liable to be dismissed with cost of the opposite party.
Both parties filed their respective affidavits. Ext.A1 to A6 marked on the side of the complainant and Ext.B1 marked on the side of the opposite party. Complainant and opposite party cross examined as PW1 and DW1 respectively. Complainant filed argument notes.
Issues to be considered are
1. Whether there is any deficiency in service on the part of opposite party ?
2. If so, what is the relief and cost ?
Issue No1 &2
The complainant has availed the service of Home nurse supplied by the opposite party to look after the grandfather of the complainant. Payment of Rs.22,500/- by the complainant is evident from Ext.A1 to A4. The said amount is the service charge and the cost of availing home nurse for 78 days. That is from 20/9/11 to 6/12/11. Instead of 6/12/11, in the complaint it is written as 6/2/11. It seems to be a clerical error. Ext.A1 shows the same. The consideration for the service of home nurse was Rs.7,000/- for one month (26 days deducting four holidays). According to the complainant, the grandfather of the complainant died on 27/11/11. This fact was informed to the opposite party. After the burial of the deceased person the home nurse was entrusted back to the opposite party on 29/11/11. Since there was no authorized person to receive her back the office of the opposite party asked her to come next day. Accordingly on 30/11/11 the opposite party accepted back the home nurse. So that opposite party is liable to refund the excess amount paid by the complainant.
As per the version of opposite party the complainant had never intimated the death of his grandfather. Further the complainant has not handed over the home nurse supplied to him and not terminated the contract with the opposite party. At the time of cross examination the complainant deposed “grandfather മരിച്ചവിവരം അന്നേദിവസം ഉച്ചയോടെ relative opposite party യെ അറിയിച്ചു. Home nurse നെ തിരികെ ഏല്പ്പിച്ച സമയം service termination document ഞാന് ആവശ്യപ്പെട്ടു opposite party തന്നില്ല. Service termination document Thrissur office ലാണു ഉള്ളത്. 1 month താമസം വരും എന്നു പറഞ്ഞു. Terms and conditions are provided by the opposite party and marked as Ext.B1. At the time of cross examination the complainant denied his signature in the B1 document. On perusing the signature of the complainant in different documents it is true that the signature in the B1 document is differ from that of the others. In the deposition PW1 stated that “agreement പ്രകാരം Patient മരിച്ചാല് മുന്കുരായി അടച്ച പണം തിരികെ കിട്ടാന് അര്ഹതയില്ല എന്നു പറഞ്ഞാല് ശെരിയാണ്. Agreement sign ചെയ്യുന്നസമയത്ത് രോഗി മരിച്ചാല് ബാക്കി ദിവസങ്ങളിലേക്കുള്ള പണം കണക്കാക്കിനോക്കി amount തിരികെ തരാം എന്ന് Opposite party വാക്കാല് പറഞ്ഞിരുന്നു.
While cross examination opposite party deposed that home nurse നെ തിരിച്ചു കൊണ്ടാക്കണം എന്നു പറഞ്ഞ് notice അയച്ചിട്ടുണ്ട്. But no document is produced.
Since the signature of the complainant differs in the Ext.B1 document, the contents of B1 document can’t be considered. The complainant has paid Rs.21,000/- to the opposite party for availing the service of home nurse for 78 days. (20/9/11 to 6/12/11) The home nurse was entrusted back to the opposite party on 30/11/11.
From the above discussions we are of the view that the opposite party is liable to return the amount for 6 days. That would come out as Rs.1615/-.
In the result complaint allowed. Opposite party is directed to pay an amount of Rs.1615/-(One thousand six hundred and fifteen only) to complainant along with Rs.1,000/- (Rupees One thousand only) as compensation and Rs.1,000/- as cost of the proceedings.
Order shall be complied within one month from the date of receipt of order, failing which the complainant is entitled for 9% interest per annum for the whole amount from the date of order, till realization.
Pronounced in the open court on this the 27th day of July 2013.
Sd/-
Seena H
President
Sd/-
Preetha G Nair
Member
Sd/-
Bhanumathi.A.K.
Member
APPENDIX
Exhibits marked on the side of the complainant
Ext.A1 – Receipt No.18 dtd.13/9/11 for Rs.1500/-issued by opposite party to the complainant
Ext.A2 – – Receipt No.25 dtd.20/9/11 for Rs.7000/-issued by opposite party to the complainant
Ext.A3 – Receipt No.34 dtd.16/10/11 for Rs.7000/-issued by opposite party to the complainant
Ext.A4 – Receipt No.38 dtd.11/11/11 for Rs.7000/-issued by opposite party to the complainant
Ext.A5 – Carbon copy of application for nursing service
Ext.A6 – Served copy of Plaint
Ext.A6(a) – Summons in O.S1810/12 of Munsiff’s Court Thrissur.
Exhibits marked on the side of the opposite party
Ext.B1 – Certified copy of Terms & conditions of the Opposite party’s firm
Complainant cross examined
PW1 – P.Sujithkumar
Opposite party cross examined
DW1 – Viswanathan
Cost
Rs.1,000/- allowed as cost of the proceedings.
