DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No.298/2011
Jagdish Kumar
R/o II-A-97/B, Lajpat Nagar,
New Delhi ….Complainant
Versus
1. Manoj Gupta
Prop. of M/s Gupta Bros
H-15, Old Double Story,
Lajpat Nagar-IV, New Delhi
2. Mother Dairy ] (Given up)
through Chairman/Director ]
Patpar Ganj, Delhi ] ……Opposite Parties
Date of Institution : 25.08.11 Date of Order : 24.09.16
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
O R D E R
Briefly stated, the case of the Complainant is that in the month of February 2010, he approached OP No.1 and booked Ice-cream i.e. Gallan Vanila/str No.17, cutter 2 and cups for serving for a family function (reception function of his nephew) to be held on 11.02.2010 and paid Rs.4205/- towards the entire consideration for the Ice-cream. It is stated that the OP No.1 promised that the Ice cream will be delivered upto 8 p.m. but OP No.1 failed to do so nor did he attend the calls made by the complainant. As a result, he had to purchase the Ice-cream for the function at double price i.e. Rs.13,500/-. Para 5 of the complaint reads as under:
“That the Complainant, his family members suffered mental agony, inconvenience and hardship due to the conduct of the Opposite Party No. 1 and Opposite Party No. 1 & 2 are guilty of deficiencies in their service, unfair trade practice and also committed the offence of cheating, criminal breach of trust etc. The complainant reserves his right to file criminal complaint against Opposite Party No. 1.”
He approached OP No.1 several times and requested to return the amount but to no avail. Hence, pleading deficiency in service on the part of OPs, the complaint has been filed with the following reliefs:-
- Direct the OPs to pay to the Complainant an amount of Rs.4205/- alongwith interest @ 18% p.m.
- Direct the OPs to pay to the Complainant Rs.13,500/- which has been incurred by the Complainant for purchasing the Ice-cream
- Direct the OPs to pay to the Complainant an amount of Rs.25,000/- as damages and compensation.
OP No.1 in the written statement has denied the averments made in the complaint in toto. OP No.1 has prayed for dismissal of the complaint.
Complainant has filed rejoinder to the written statement of OP No.1 reiterating the averments made in the complaint.
OP-2 has been given up on 20.12.2013.
Complainant has filed his own affidavit in evidence while OP No.1 has filed his own affidavit in evidence.
Written arguments have been filed on behalf of the OP No.1.
We have heard the arguments on behalf of the Complainant and have also gone through the file very carefully.
Parties have failed to mark Exhibit Nos. or annexure nos. on their respective documents.
According to the Complainant, he had booked Ice-cream i.e. Gallan Vanila/str No.17, cutter 2 and cups with the OP-1 for serving in a reception function of his nephew to be held on 11.02.2010 and paid total sum of Rs.4205/- to the OP No.1 (for the purpose of identification we mark the original Order/Estimate dated 11.02.10 issued by OP No.1 to the complainant as Annexure-A); that however, OP No.1 failed to deliver the Ice cream and Complainant had to purchase Ice-cream for the function at double price i.e. Rs.13,500/-. We must say at once that the complainant has not filed copy of bill or delivery order for Rs. 13,500/-. It is correct that OP No.1 in the written statement has denied that the Complainant ever booked Ice-cream i.e. Gallon Vanila/Str No.17, Cutter 2 and Cups for serving in reception function of his nephew to be held on 11.02.2010 and paid Rs.4205/- and OP No.1 has deposed in his affidavit that the estimate/order filed by the Complainant was neither issued nor signed by the OP No.1 and the same is false and fictitious and, therefore, question of sending the Ice-cream for the function did not arise.
However, in his affidavit, OP-1 has stated himself to be the Proprietor of M/s Gupta Bros., H-15, Old Double Story, Lajpat Nagar-IV, New Delhi. The same address has been mentioned in original order/estimate (Annex. A). Therefore, in the absence of any cogent evidence led on behalf of OP-1 to the contrary, we are not inclined to believe that the OP-1 had not booked the Ice cream or did not issue any such order/estimate or did not receive Rs. 4205/- from the complainant. Total denial of the averments made by the OP-1 in the written statement goes a long way to prove that OP-1 has not come to the forum with clean hands and has rather tried to mislead this forum as well. We are inclined to believe that the Ice cream had been booked by the complainant for reception function of his nephew but the OP-1 did not supply the Ice cream nor did he respond to the calls made by the complainant. We may draw a presumption that the complainant must have purchased the Ice cream from other vendor/dealer from a nearby area and spent some amount on it. However, by not supplying Ice cream to the complainant on the stipulated date and time OP-1 certainly committed grave deficiency in service. Therefore, we hold OP-1 guilty of grave deficiency in service.
In view of the above discussion, we allow the complaint and direct the OP-1 to pay Rs. 4205/- along with interest @ 6% p.a. from 11.2.2010 till the date of realization and also Rs. 25,000/- as damages for suffering mental pain and agony by the complainant within one month from the date of receipt of copy of this order failing which the OP-1 shall become liable to pay interest @ 9% p.a. on Rs. 4205/- from 11.2.2010 till the date of realization.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 24.09.16
Case No. 298/11
24.09.2016
Present – None.
Vide our separate order of even date pronounced, the complaint is allowed. OP-1 is directed to pay Rs. 4205/- along with interest @ 6% p.a. from 11.2.2010 till the date of realization and also Rs. 25,000/- as damages for suffering mental pain and agony by the complainant within one month from the date of receipt of copy of this order failing which the OP-1 shall become liable to pay interest @ 9% p.a. on Rs. 4205/- from 11.2.2010 till the date of realization. Let the file be consigned to record room.
