By. Sri. Jose. V. Thannikode, President:
The complaint is filed under section 12 of the Consumer Protection Act against the opposite party to deliver the magazine and to pay cost and compensation due to the non delivery of the magazine within stipulated time.
2. Brief of the complaint:- Complainant is an Educational Institution Run by Malabar Hotel Management And Catering Promotion Trust affiliated to University of Calicut and approved by AICTE. The complainant is represented by its present Principal and Director Mr. K.C. Robbins, S/o Chandy aged 45 years, Valley View, Lakkidi Post. The Opposite Party had given a quotation for the printing and delivery of 1000 College Magazines to the complainant for a total consideration amount of Rs.80,000/- including Pre press, Print Press and Shipping etc as per quotation dated 04.02.2015 and by accepting the terms of quotation a contract of appointment was executed between the complainant and opposite party on 05.02.2015. As per the term of contract of appointment complainant paid an advance of Rs.25,000/- out of the total amount Rs.80,000/-[15,000+10,000]. It is agreed by the opposite party as per the terms of contract of appointment that he will deliver the finished College Magazines [Euphoria] at the premises of the institution by 01.04.2015 and balance amount Rs.55,000/- shall be payable by complainant only after the delivery of magazines. By agreeing the terms of contract the opposite party utterly failed to deliver the college magazines within the time stipulation as per the contract referred above without any lawful excuses by violating the contract of appointment referred above and sent a letter requesting time for delivery of college magazines till 06.04.2015 without assigning any lawful reasons. As per the request of opposite party complainant paid Rs.22,000/- in addition to the advance amount referred above and Rs.2,500/- to Vector Creative Idea. Thus Complainant paid total Rs.49,500/- out of Rs.80,000/- to the opposite party. Facts being so opposite party failed to deliver the College magazines. Thus the complainant caused to be sent a registered lawyer notice dated 24.04.2015 and same was received by the opposite party on 29.04.2015. Even after that the opposite party failed to deliver the magazines and thereby complainant suffered huge loss as the magazines could not be supplied to the students before the closing of this academic year especially to the final year out going students. It happened only due to the deficiency in service and unfair trade practice on the part of opposite party and thus opposite party is legally liable to compensate the complainant which is estimated as Rs.50,000/-. It is learnt that the magazines are ready in the press and opposite party willfully failed to deliver the same. The complainant is ever ready to pay the balance amount of Rs.30,000/- or to deposit before the Honorable Forum. The complainant further stated that the opposite party is also liable to pay the penalty of Rs.2,500/- per day from 01.04.2015 till today that is Rs.1,10,000/- for the delay in of delivery of magazines as per the terms of contract of appointment referred above. Hence prayed before the Forum to pass an order directing the opposite party to deliver the 1000 magazines and to pay cost and compensation.
3. Notice were served to opposite party and opposite party filed version stating that the above complaint is neither maintainable in law nor on the true facts and circumstances of the case and liable to be dismissed in limine. This opposite party hereby clearly rebut and rebuff all the material averments arraignments, assertions and allegations contained in the complaint save those expressly admitted hereunder if any. This complaint is infructous as the magazine has been delivered to the complainant. As averred in the complaint, it is true, the opposite party has undertaken the Designing & printing of the 100 page College Magazine and deliver of 1000 college magazine to the complainant for a total consideration amount of Rs.80,000/-. The complainant had approached the opposite party entrust the printing work of the magazine. At the time of entrustment the terms & condition was that payment 50% advance amount at the time of entrustment and 50% at the time of shipping. The entrustment was on 05.02.2015 and the delivery was fixed to 01.04.2015. But against the covenant between the two parties, the complainant had not paid the advance amount on 05.02.2015 that is on the order confirmation date, but they had paid a sum of Rs.15,000/- only on 10.02.2015. which also forms the violation of the terms and condition between the parties. Thereafter on 06.03.2015, another Rs.10,000/- was paid. It was only due to the courtesy of the opposite party he has accepted the meager amount and started the work. Though the work was finished on 01.04.2015 the complainant was not good enough to pay even the advance amount. Though the opposite party requested the complainant to pay the balance amount to take off the magazine, on 06.04.2015 the complainant paid only an amount of Rs.22,000/- which does not form even the advance amount. For the above act of the complainant, the explanation given was that they have not received the collection from the students.
4. While so outgoing students demanded magazine from the complainant. In order to save the face and to convince the students, the complainant had filed the vexatious complaint and numbered CC.129/15 against the opposite party . The opposite party is ever ready and willing to perform his part. After filing the complaint they have paid the balance consideration on 30.06.2015 and the product was delivered to them. The complainant had produced a receipt of money for the sum of Rs.2,500/- dated 25.03.2015, and about the same the opposite party is not at all aware. The complainant herein had violated the terms & conditions. There is no deficiency of service or unfair trade practice happened from the part of the opposite party. The complaint is frivolous& vexatious. The reason which forms the basis of the complaint is known only to the complainant. It is clear that in order to hide the negligence happened from the side of the complainant, they have filed a vexatious complaint only to save face in front of students. For the same reason, the opposite party is entitled to get a cost of Rs.10,000/- as contemplated U/S 26 of the Act. In the forgoing premises, it is most respectfully prayed that this Honorable Forum may be graciously pleased to dismiss the frivolous and vexatious complaint with appropriate cost of Rs.10,000/- and such other relieves as this Honorable Forum deems fit to grand thus rendering justice.
5. The complainant filed proof affidavit and stated as stated in the complaint and he is examined as PW1 and Ext.A1 to A12 documents were marked. Ext.A1 is the letter given by the opposite party to the complainant dated 02.04.2015. This is given after the date of execution of the agreement. Hence the document cannot be considered at all. Ext.A2 is the Quotation for printing the magazine dated 05.02.2015 it is signed by both parties and opposite party also admitted the same. Wherein it is stated that:- MIRDIA Sun Printers KINFRA Kalpetta shall deliver the finished product at the institution premises by April 1st 2015 at their own expenses, MIRDIA Sun printers KINFRA, Kalpetta must be responsible for interrupted power supply during the making of the magazine and shall prevent loss of man hours, A penalty of Rs.2,500/- per day shall be deducted from the total quoted amount in case of delay by MIRDIA Sun Printers KINFRA, Kalpetta. Ext.A3 is the letter given to the opposite party by the complainant in which it is stated that already paid Rs.15,000/- on 10.02.2015 and Rs.10,000/- on 06.03.2015 and also stated that the balance payment will be made at the time of delivery of Magazine on 01.04.2015 at our campus. Ext.A4 is the Receipt for Rs.15,000/- given by opposite party to complainant dated 10.02.2015. Ext.A5 is also the Receipt for Rs.10,000/- given by opposite party to complainant dated 06.03.2015. Ext.A6 is also the Receipt for Rs.22,000/- given by opposite party to complainant dated 06.04.2015. Ext.A7 is the Receipt issued by the Vector creative idea to complainant for Rs.2,500/- dated 25.03.2015 but it is not admitted by opposite party. Ext.A8 is the Apology letter given by the opposite party to the complainant dated 26.03.2015. Ext.A9 is the Lawyer notice and Ext.A10 is the Acknowledgment Card. Ext.A11 is the Authorization letter. Ext.A12 is the Receipt issued by the opposite party to the complainant for Rs.30,500/- dated 30.06.2015. Opposite party also filed proof affidavit and stated as stated in the version and he is examined as OPW1.
6. On perusal of complaint, version and documents the Forum raised the following points for consideration:-
1. Whether there is any deficiency of service from the part of opposite party?
2. Relief and Cost.
7. Point No.1:- The cause of action arose alleging the non delivery of magazines within the prescribed time mentioned in the Ext.A2 quotation. In the quotation it is specifically stated that “MIRDIA Sun Printers KINFRA Kalpetta shall deliver the finished product at the institution premises by April 1st 2015 at their own expenses, MIRDIA Sun printers KINFRA, Kalpetta must be responsible for interrupted power supply during the making of the magazine and shall prevent loss of man hours, A penalty of Rs.2,500/- per day shall be deducted from the total quoted amount in case of delay by MIRDIA Sun Printers KINFRA, Kalpetta. Please sign the document as a token of acceptance of the terms and conditions mentioned herewith”. Which is not denied by the opposite party. So it is proved that the magazine should be delivered to the complainant with 01.04.2015 and as far as advance is concerned. It is stated that the opposite party shall deliver the finished product at the institution premises by 01.04.2015 at their own expenses. So the complainant need not pay any amount prior to the delivery, but even then complainant paid Rs.47,000/- within 06.04.2015 in three installments. Ext.A7 Receipt is objected by opposite party. Opposite party contents that as per Ext.A1 50% advance for order confirmation time and balance 50% before shipping product (magazine). This contention and this document cannot be consider since this document is given only after completion of the date fixed for the delivery of the magazine, the Ext.A2 document is admitted by opposite party. As per Ext.A2, the product should be delivered within 01.04.2015. So the Ext.A1 dated 02.04.2015 cannot be considered at all.
8. More over it is pertinent to note that the Ext.A8 given by the opposite party to the complainant dated 26.03.2015 is an apologizing for the delay caused for the delivery of magazine for 5 days and also assure that he will deliver the magazine any way within 06.04.2015 and further states that for the delay of five days compensation cannot be given and opposite party No.1 deposed before the Forum that on 1st April 2015 I have given the Ext.A8 letter. It is an admission that thereafter he is entitled to pay the compensation as per the terms of the Quotation ie Ext.A2. Anyway the complainant stated that he has paid Rs.80,000/- to the opposite party. Opposite party admitted the receipt of Rs.77,500/-. The delivery of the product 'magazine' is effected only on 30.06.2015 ie after 90 days of prescribed time, it is admitted by the opposite party in his deposition. On overall evaluation of the evidence, we found that there was a gross deficiency of service and unfair trade practice from the side of opposite party. Hence the Point No.1 is found accordingly.
9. Point No.2:- Since the Point No.1 is found against the opposite party. Opposite party is liable to pay cost and compensation due to the non delivery of the magazine with the prescribed time as per Ext.A2.
In the result, the complaint is partly allowed and the opposite party is directed to pay (45 days x Rs.250) = Rs.22,500/- (Rupees Twenty Two Thousand and Five Hundred) as compensation as agreed by the opposite party in Ext.A2 and also directed to pay Rs.5,000/- (Rupees Five Thousand) as cost of the proceedings to the complainant within one month from the date of receipt of this Order, failing which the complainant is entitled for an interest at the rate of 12% per annum for the whole amount.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 10th day of February 2016.
Date of Filing:14.05.2015.
PRESIDENT :Sd/-
MEMBER :Sd/-
MEMBER :Sd/-
/True Copy/
Sd/-
PRESIDENT, CDRF, WAYANAD.
APPENDIX.
Witness for the complainant:-
PW1. Johnson Paul. Assistant Professor, Oriental School of
Hotel Management.
Witness for the Opposite Parties:-
OPW1. Rajesh. Business.
Exhibits for the complainant:
A1. Letter. Dt:02.04.2015.
A2. Quotation. Dt:05.02.2015.
A3. Letter. Dt:06.03.2015.
A4. Receipt for Rs.15,000/-. Dt:10.02.2015.
A5. Receipt for Rs.10,000/-. Dt:06.03.2015.
A6. Copy of Receipt for Rs.22,000/-. Dt:06.04.2015.
A7. Copy of Receipt. Dt:25.03.2015.
A8. Letter. Dt:26.03.2015.
A9. Lawyer Notice. Dt:24.04.2015.
A10. Acknowledgment Card.
A11. Authorization Letter. Dt:05.08.2015.
A12. Receipt. Dt:30.06.2015.
Exhibits for the opposite parties:-
Nil.
Sd/-
PRESIDENT, CDRF, WAYANAD.
a/-
