BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, KOPPAL

CONSUMER COMPLAINT NO.  49/2017

PRESENT

  Smt. Akatha.H.D. M.A. L.L.M                          ... President

  Smt. Sujatha Akkasali, B.A.L.L.B                ... Lady Member

Dated this 19^th  day of May 2018

Complainant:       Chandrasekhar S/o Mudakappa,

Age: 35 years, Occ: Proprietor,

Kamadhenu Enterprises, Shop No.5, CMC, M.B.No.9-3-278/4, Lions Club Complex, Koppal,

                             Tq: Dist: Koppal.

    (Represented by Sri. K.S.Jampur, Adv. Koppal)

V/s

Opposite Party: 1) Karthik Khollar,

                             Age: Major, Occ: Proprietor,

                             Grande Energy Solutions Pvt. Ltd.,

                             B-18, Ground Floor, Sector-7,

                             NOIDA-Uttar Pradesh.

                                Opponent: (Exparte)

BY SMT. AKATHA.H.D. PRESIDENT,

JUDGEMENT

           The Complainant has filed this complaint U/s 12 of the consumer protection Act 1986 against the OP alleging deficiency in service in not sending the LED Items worth Rs.4,07,626/- to the complainant.   Hence, prays for relief for directing the OP to Send LED Items worth Rs.4,07,626/-           or repay the amount of Rs.4,07,626/- with 18 percent interest p.a., along with Compensation of Rs.80,000/- towards deficiency in service and un-trade practice and Rs.10,000/- towards litigation expenses.

Brief averments of the complaint are:-

2)      The complainant is the proprietor of Kamadhenu Enterprises and he is selling the LED Items like, LED Bulbs, LED TVs and other things.   The OP is a dealer in LED items, so the complainant is purchasing LED Items from the OP, accordingly the complainant has ordered for LED items worth Rs.7,61,000/- from the OP and deposited an amount of Rs.2,00,000/- on 11-01-2016,  Rs.3,20,000/- on 14-01-2016, Rs.8,000/- on 18-01-2016, Rs.83,000/- on 19-01-2016 and Rs.1,50,000/- on 16-03-2016, so the complainant has deposited total amount of Rs.7,61,000/- for the purchasing order of LED Bulbs, Televisions and other items.  The complainant further alleged that he had transferred the above said amount of Rs.7,61,000/- through his account in Karnataka Bank Ltd., Koppal Branch, vide A/c.No.4482000100004501 to the OP.  But the OP has delivered LED Bulbs worth Rs.73,307/- under bill dated: 16-02-2016 under invoice No.33 and on the same day the OP has delivered the LED Televisions worth Rs.2,80,067/- under invoice No.001/032 and in total the OP has delivered the LED items worth Rs.3,53,374/- to the complainant and the OP is till today did not send any items for the amount of Rs.4,07,626/-.  Therefore the Complainant has called the OP through phone and requested to send the LED items worth Rs. 4,07,626/-, but the OP did not sent the same and postponed the matter on one or the other pretext.    Thereafter the complainant personally approached the OP on many times and requested to send the said LED items, but the OP did not send the same.   So the huge amount of complainant is held up with the OP since from 16-03-2016.  Therefore the complainant requested the OP to send the LED items worth Rs.4,07,626/- or repay an amount of Rs. 4,07,626/-, but till today the OP did not repay the same.  This act of the OP amounts to deficiency in service, hence the OP is liable to pay Rs.1,00,000/-towards mental torture, agony and damages.   The complainant got issued legal notice on 07-02-2017 to the OP calling upon them either to send the LED items worth Rs. 4,07,626/- or repay the amount of Rs.4,07,626/-, the OP refused to receive the same.   This itself shows the deficiency in service and unfair trade practice on the part of the OP.      Hence the Complainant prays to direct the OP to send the LED items worth Rs. 4,07,626/- or repay the amount of Rs.4,07,626/-and also prayed for awarding the compensation as prayed above.

 3)   This forum after admitting the complaint a notice was issued to the OP and the OP refused to receive the said notice. Hence it is deemed as the notice served upon the OP.  In spite of service of notice, the OP did not appear before the Forum on the date of appearance, hence he was placed as exparte and the said case was posted for complainant evidence.

4)   On the basis of the above pleadings the following

Points that arise for our consideration are:

1. Whether the complainant proves that, there is a deficiency in service and unfair trade practice by the Opponent in not sending the LED lights as alleged in the complaint?

2. Whether the complainant is entitled for the relief sought           for?

3. What order?

5)        To prove the case of the complainant, the complainant got himself examined as PW-1, got examined another witness as PW-2   and he got marked the documents as per Ex. A-1 to Ex.A-07 and closed their side of evidence and case was posted for arguments.

6) Heard the arguments of the counsel for complainant and perused the records

7)     Our findings on the above points are as under;

Point No. 1:  In the affirmative.

          Point No. 2:  In the affirmative.

        Point No. 3: As per final Order for the following:

REASONS

8)      POINT No. 1 & 2:   As these issues are inter connected each other, hence they are taken together for common discussion to avoid repetition of facts, evidence documents and arguments.

9)   On perusal of the pleadings, evidence coupled with the documents of complainant on record, it is the case of the complainant alleging deficiency in service and unfair trade of practice in not sending the LED lights even after the payment done. There is no dispute that the complainant is the proprietor of Kamadhenu Enterprises and he is dealing in selling the LED items i.e., LED bulbs and LED TVs and other things.  The complainant further averred that he used to purchase the LED items, i.e., bulbs and Television from the OP, who is the dealer of the LED items. 

          The complainant further alleged that since from many years he was purchasing the LED items from the OP and he had ordered for LED items worth as Rs.7,61,000/- and even after the payment of amount, the OP did not send the LED items worth Rs.3,53,374/-, hence the complainant alleging deficiency in service. 

10)  To prove the case of the complainant, the PW-1 has reiterated the complaint averment in his examination in chief and in support of his case, he has produced the Value Added Tax (VAT) Registration certificate and the said certificate is marked as Ex.A.1 and Ex.A2.  The Ex.A-1 and Ex.A-2 clearly reveals that the complainant is a proprietor of Kamadhenu enterprises and the place of business is situated in shop No.5, CMC MB No.9-3-278/4, Lions Club complex, near Ashok circle, Kinnal Road, Koppal has been registered as a dealer.  He has further averred that he was dealing in selling the LED items i.e., LED bulbs and LED TVs and other things he used to purchase these items from the OP, who is dealer of LED items. 

11)    The complainant further averred that  since from many years he was purchasing the LED items from the OP and accordingly the complainant had ordered for LED items of Rs.7,61,000/- and accordingly the complainant has deposited the amount of Rs.2,00,000/- on 11-01-2016 and Rs.3,20,000/- on 14-01-2016 and Rs.83,000/- on 19-01-2016 and Rs.1,50,000/- on 16-03-2016 and in total he has deposited a sum of Rs.7,61,000/-in the account for the purpose of purchasing LED bulbs, Televisions and other items.   The complainant deposited that the said amount of Rs.7,61,000/- was transferred through his account in Karnataka Bank Ltd., Branch, Koppal under  A/c.No.4482000100004501 to the account of the OP and to substantiate the same, the complainant has produced the Xerox copy of the Bank Pass book and the bank statement, which is marked as Ex.A-3 and Ex.A-4.  On perusal of Ex.A-3 and Ex.A-4, it clearly reveals that the complainant had a savings account in his name and through his account he had transferred the amount of Rs.7,61,000/- on various dates with respect to Ex.A-4. 

           The Complainant further deposed that the OP had delivered LED Bulbs worth of Rs.73,307/- under bill dated: 16-02-2016 under invoice No.33 and on the same day the OP has delivered the LED televisions worth Rs.2,80,067/- under invoice No.001/032 and in total the OP has delivered the LED items worth Rs.3,53,374/- to the complainant and the OP till date has not sending items for the amount of Rs.4,07,626/-.  

          The complainant further deposed that he had called the OP through phone and personally approached and requested him to send the LED items worth Rs.4,07,626/-, but he did not send the same and postponed the matter on one or the other pretext and till date he  did not send those LED items.  On being fed up with the attitude of the OP, the complainant got issued the legal notice on 07-02-2017 calling upon the OP either to send the LED items worth Rs.4,07,626/- or to repay the amount of Rs.4,07,626/- and the said notice was refused by the OP, which are marked as Ex.A-5 and Ex.A-6.  Ex.A-5 and Ex.A-6 clearly reveals that the complainant had issued a legal notice and the said notice is rejected by the OP and the said notice was come with an endorsement stating that as refused. 

           On perusal of the pleadings, the complainant contended that he is a businessman and he has admitted that he is the proprietor of the Kamadhenu Enterprises and the address of the shop is clearly mentioned in Ex.A-1 and                      Ex.A-2, The complainant has not even pleaded that services availed by him are exclusively for the purpose of earning his livelihood by means of self employment.  It is necessary to adduce evidence to show that the goods/service was used only for self employment to earn his livelihood without a sense of commercial purpose and the burden is on the complainant to prove the same.

12)    This argument is bereft of merit.   The complainant has produced his Bank Account, where it is clearly mentioned as Savings account where it is clearly mentioned as savings account and through his saving account he has transferred the money with respect Ex.A-3.  It must be borne in mind that the case was filed in the name of the individual and not by the Company.  An individual proprietor can run the business for his own and his family benefits or he can earn his livelihood by transacting any business as per explanation appended to Sec.2 (1) (d) (ii) of C.P. Act, 1986.   There lies no rule, his status as consumer does not stand clouded.   Consequently the present case falls within the form of consumer of Sec.2 (1) (d) of the C.P. Act 1986. 

13)      The Complainant has invited our attention towards the Bank’s transaction showing about on various dates that is from 11-01-2016, 14-01-20165, 18-01-2016, 19-01-2016 and 16-03-2016.  The complainant deposited an amount to the OP and it is also admitted that the OP has sent the LED items worth Rs.3,53,374/- and the remaining of Rs.4,67,626/- LED items is not sent by him.

It should be incumbent on intending the OP to comply with the terms of payment, the company therefore ought to deal with the said complainant in any manner whatsoever at its sole discretion.  Instead of touching the heart of the problem, the OP did not appear before the Forum nor he has refunded the amount nor has he delivered the LED items to the remaining amount, which was in his custody. The complainant applied for the business place in the year 2016 and the installment of the amount were paid in January-2016 on various dates, as the final amount on 16/03/2016 to the total tune of Rs.7,61,000/-. It transpired that only the LED items worth Rs.3,53,374/- has been sent and still there is the remaining balance of Rs.4,07,626/- LED items are pending.  No heed was paid to the notice sent by the complainant on 07-02-2017 for refund of the amount or to send the LED items, and the OP has refused to take the notice.

14)  Moreover the Opponent after taking an amount should have sent the items immediately.  It must be borne in mind that the terms and conditions made between the complainant and the OP is not one way traffic, both the parties are bounded by it.   The OP is not ready to send the items even after expiry of two years as mentioned and till the filing of this complaint. 

          The OP is withholding that amount for the last ten years without malafide intention; an ordinary person can know the value and importance of the money.  This much money would have benefited him otherwise.  The Opponent has utilized his huge amount for the last two years, the Opponents attempt to feather his own nest has succeeded.  All these facts clearly reveals arrogant despotic and coercive manner.  The deficiency in service on opposite party stands proved.

15)    In this case also the amount was simply utilized by the Opponent and the complainant is suffering a loss in as much in the hope of getting LED items. But he is being deprived of the benefits.  Therefore the compensation in this case should necessarily have to be higher.

16)  The OP has not appeared before this Forum to answer any of the allegations made by the complainant and has not shown any reasons for not sending the LED items to the complainant.  Therefore it can be presumed that there is deficiency in service and unfair trade of practice in not sending the LED Items. .

17)    All these reasons, we find that the Opponent has committed deficiency in service and unfair trade practice to the complainant. From the argument submitted by the learned counsel, we are of the opinion that the OP is not supposed to withheld his money with him and not sending the LED items to the complainant because the onus lies on the OP to establish  the reasons for not sending the LED items even after receiving the amount.

18)     On the contrary as per the oral evidence coupled with documentary evidence, the complainant has proved the deficiency in service and unfair trade of practice on part of the opponent in not sending the LED items and the said fact has been clearly discloses in Ex – A3 and Ex – A4, Ex – 5 which are the Bank Account number, bank statement and Legal notice which have been already discussed supra. Hence in the light of above observation the complainant proved the deficiency in service and unfair trade of practice in not sending the LED items after receiving the amount. Hence in the light of above observation we constrained to hold point No. 1 in the Affirmative and   point No. 2 in the Affirmative.

19)    Point No: 3 Hence in the result we proceed to pass the following;

ORDER

1. The complaint filed by the complainant is hereby allowed.
2. The Opponent is here by directed to send the LED items worth of Rs.4,07,626/- to the complainant along with compensation of Rs.20,000/- (Rupees twenty thousand only) towards deficiency in service and unfair trade of practice and Rs. 10,000/-(Rupees ten thousand only) towards Physical and Mental agony and Rs.5000/- (Rupees five thousand  only) towards litigation expenses to the complainant within one month from the date of receipt of this order. The Opponent is also directed to pay fine of Rs. 25,000/- to the Consumer Legal Aid Account.  Failing which, 9 percent p.a. interest will be charged from the date of filing of complaint till realization.

3. Send the free copies of this order to both parties.

(Dictated to the Stenographer, transcribed, typed by him, typescript, corrected by me and then pronounced in the Open Forum on 19^th day of  May- 2018.)      

                  SD/-                                                                                             SD/-

// ANNEXURE //

List of Documents for the Complainant.

List of Documents for the Opponents.         

                  -Nil-                           

                   Witnesses examined for the Complainant

PW-1:     Chandrashekhar S/o Mudakappa,

             Age: 35 years, Occ: Proprietor, Kamadhenu

              Enterprises, Shop No.5, CMC, M.B.No.9-3-278/4,       

               Lions Club Complex, Koppal, Tq: Dist: Koppal.

                   Witnesses examined for the Opponents

                                -Nil-

               SD/-                                                                                                SD/-