DISTRICT CONSUMER DISPUTES REDRESSAL FORUM  PALAKKAD

Dated this the 30^h day of October 2018

Present   : Smt.Shiny.P.R. President

              : Smt.Suma.K.P. Member                           Date of filing:  15/06/2016

              : Sri.V.P.Anantha Narayanan, Member

CC/82/2016

Anwar Sadick,

S/o M.A.Abdhul Khader,

Meerlava House,

Thachanodi,

Puthucode, Palakkad

PIN – 678 687.                                                       -  Complainant       

(By Advs.C.G.Hari & Archana Narayanan.R)

                                                            Vs

Cristal Plaza, Cherthala,

Director Sales,

Cristal Plaza, Cherthala,

     (Opp.party 1 & 2 Adv.Azad.N.N)

                                                          O R D E R

By Smt.Suma.K.P. Member

          The complainant purchased a laundry machine QUT No-1020 and an IPSO-home style dryer DD10 from the opposite party.  The complainant enquired over phone to the 2^nd opposite party and apart from the terms and condition mentioned by her, the complainant deposited the full amount of Rs.1,83,200/- to the account number of the company on 07.09.2015.  The transaction took place at Palakkad.  After enquiry with other companies the complainant came to know that the machines ordered by him are of inferior quality.  Hence he requested the company to cancel both machine from the purchase order and refund the amount to his account and mailed the same to the company on 10/09/2015 and 26/09/2015.  The opposite party has refunded only an amount of Rs.1,25,000/- stating that the company is deducting the order cancellation charge and transporting cost as per their terms and conditions.  Hence he has filed this complaint for the refund of the balance amount of Rs.58,200/- and also to grant Rs.5,000/- towards the mental agony and distress caused to him. 

          Opposite parties entered appearance upon notice from the Forum and filed their version contending the following. 

          Opposite parties admits that the complainant had ordered an IPSO-Topload washer and IPSO-tumble dryer and had deposited an amount of Rs.1,83,200/- towards the account maintained at HDFC bank, Pallichanda, Cherthala Taluk, Alappuzha District.  But the complainant had refused to purchase those machines as per the order.  No part of the transaction had taken place at Palakkad and the opposite parties does not conduct any business at Palakkad or does not have any branch office at Palakkad District.  Hence the above complaint lacks territorial jurisdiction.  The opposite party denies the allegations that the complainant has cancelled the order on the basis of the enquiry regarding the substandard quality of the product.  They had refunded Rs.1,25,000/- towards the complainant’s account accepting the cancellation after deducting the applicable amount as per the terms and condition.  As per the terms and condition, if any purchase order is cancelled opposite party had the authority to deduct Rs.45,800/- being 25% of the cancellation charge and Rs.12,400/- towards transportation charges.  So a total amount of Rs.58,200/- was deducted from the purchase amount.  The opposite party submits that before receiving the cancellation order the shipment has been sent from Delhi and hence they had to pay the to &  fro transportation charges to the manufacturing company and the opposite parties has the right to deduct it from the complainant’s paid cost.   The opposite parties are not bound to compensate the complainant for the loss occurred to him due to the cancellation.  They had also submitted that, the complainant is not a consumer as per the Consumer Protection Act since he had cancelled the order and had not purchased the machine from them.  Hence there is no deficiency of service on their part.  The above complaint is filed without any basis so as to harass the opposite parties.  The opposite party is not liable to pay any amount as compensation to the complainant and hence the complaint had to be dismissed. 

          Complainant filed chief affidavit.  Opposite party filed IA/459/16 seeking permission to cross examine complainant.  Application was allowed and complainant was cross examined as PW1.  Ext.A1 series (7 in numbers) was marked from the side of the complainant.  Opposite party also filed the chief affidavit.  Complainant filed application to cross examine the opposite party.  Application was allowed and opposite party 2 was cross examined as DW1.  Opposite party filed witness list.  But no affidavit was filed by the witnesses.  Hence the evidence was closed and the matter was heard. 

The following issues that arise for consideration are.

1. Whether there is any deficiency of service from the part of opposite parties?
2. If so, what are the relief and cost?

Issues 1& 2

We have perused the complaint, affidavits and version along with documents produced before the Forum.  It is viewed that the complainant avail a service from opposite party by payment of money to the opposite party and hence the case of the opposite party that the complainant is not a consumer cannot be entertained.  The order made by the complainant to the opposite party and the amount deposited by the complainant to the opposite party's account are admitted by the opposite party in their version.  Since the amount was transferred from the complainant’s account at Palakkad, the part of the cause of action for this complaint had taken place within the jurisdiction of this Forum and hence the complaint is maintainable.  From the bare reading of the oral testimony of the complainant it can be seen that the version of the complainant is to the effect that he urged for a transaction which is not subject to the terms and conditions of the opposite party and telephonic conversation with the concerned persons of the opposite party was also done to that effect and that opposite party admitted for such a transaction after which he had made the order.  The relevant mail id dated September 7, 2015 Monday at 4.57 pm in Ext.A1 series probabilise this contention.  “Apart for the terms and condition that you had mention and telephonic conversation that I had with your Managing Director………..” probabilise the case of the complainant.  If there exist no such terms and condition the deduction of Rs.45,800/- towards the loss and Rs.12,400/- as transportation is unjustifiable and the opposite party is not entitled to retain that amount with them.  The opposite party has not produced any documents before the Forum in support of the transpiration from Delhi to Kerala and Kerala to Delhi.  As per the oral testimony of DW1, the entire documents in connection with their order for shipping the disputed consignment are with them, but no such documents were produced in connection with that.  She has also stated that though the custodian of the said document is the Managing Director, she had seen all the documents but has no further knowledge about the said consignment.  According to her oral testimony, the cancellation fee @ 25% of the total amount is fixed, anticipating all the losses which would incur to the opposite party, in case of cancellation.  If that be so, the deduction of Rs.12,400/- as shipping fee is unjustifiable and the opposite party is not entitled to retain that amount with them.  No documents are produced before the Forum to show the losses occurred in connection with the cancellation and also to show that the cancellation was later to the shipment of the disputed consignment.  It is also observed that immediately after the placement order the complainant had informed the opposite party regarding cancellation. 

          On perusal of the pleadings and the oral testimony of the parties it can be seen that the act of the opposite party is not as undertaken to be performed by a person in pursuance of a contract or otherwise in relation.  Hence it can be viewed that there is clear deficiency of service on the part of the opposite parties. 

Hence the complaint is allowed and we direct the opposite parties to refund an amount of Rs.58,200/- (Rupee fifty eight thousand two hundred only) to the complainant alongwith Rs.5,000/- (Rupees five thousand only) as compensation towards mental agony suffered by him.  We also direct the opposite parties to pay Rs.3,000/- (Rupees three thousand only) as cost of this proceedings. 

The aforesaid amount shall be paid within one month from the date of receipt of this order; failing which the complainant is entitled to realize 9% interest p.a from the opposite party on the total amount due to him from the date of this order till realization.

          Pronounced in the open court on this the 30^th day of October 2018.

               Sd/-

                   Shiny.P.R

                   President 

                        Sd/-       

                   Suma.K.P

                    Member

           Sd/-

    V.P.Anantha Narayanan

                   Member

Appendix

Exhibits marked on the side of complainant

Ext.A1 seires -  Copy of communication made in between the complainant and

                      opposite party through Electronic Mail on different occasion

                       (7 pages)

Exhibits marked on the side of Opposite parties

Nil

Witness examined on the side of complainant

PW1   -  Anwar Sadick

Witness examined on the side of opposite parties

DW1   -  Safna Joby

Cost

          Rs.3,000/-