BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 7^th February 2017

PRESENT

        SRI. RAVISHANKAR            :  HON’BLE PRESIDENT

        SMT.LAVANYA M. RAI        :  HON’BLE MEMBER                                        

COMPLAINT NO.332/2016

        (Admitted on 24.09.2016)           

Vasanthakrishna,

S/o Ananthakrishna Upadhyaya,

Aged 35 years,

R/at. Laxmi Printers,

Kaniyooy village,

Puttur Taluk, D.K.

                                                            ……… Complainant

(Advocate for Complainant by Sri. SD)         

VERSUS

Mr. Thyagaraja,

Proprietor M/s Benak Agencies,

Uppinakote, Brahmavara,

Udupi Taluk, Udupi Dist.

                                                                ….. Opposite Party

                (Opposite Party: Exparte)

ORDER DELIVERED BY HON’BLE MEMBER

SMT. LAVANYA M. RAI

1. This complaint is filed under section 12 of the Consumer Protection Act alleging deficiency in service as against the opposite party claiming certain reliefs.
2. The brief facts of the case are as under:

          The complainant has placed an order for purchase of a single Colour Ryobi Offest Printing Machine (13.18) 3200 RCD singl phase for a sum of Rs.3,00,000/.  On 28.10.2015 the complainant had paid Rs.75,000/ to the Opposite Party as an advance by receipt dated. 28.10.2015 by cash and subsequently the complainant has paid Rs.2,25,000/ to the Opposite Party on 26.11.2015 towards the price of the machine agreed to be purchased through D.D dated. 26.11.2015 drawn on Vijaya Bank, Kaniyoor Branch.  The complainant has paid the above sum Rs.2,25,000/ by availing loan from the Vijaya Bank, Kaniyoor.  The Opposite Party has assured the complainant that they will supply the new machine before the end of December 2015.  The complainant has paid a total sum of Rs.3,00,000/ to the Opposite Party towards the complete price of the machine.  For running Sri Laxmi Printers at Kaniyoor for his lively hood and for self employment.         The Opposite Party did not supply the machine even after several request therefore complainant has issued regd.  lawyers notice dated. 02.05.2016 to the Opposite Party.  That the Opposite Party has promised the complainant to supply the new printing machine before 31^st of December.  Hence the complainant had paid the sale consideration by availing loan from the Bank.  Due to non availability of the new printing machine the complainant has suffered loss in his business since January 2016.  The complainant could not meet the demands of his customers in time and could not accept more orders since the present machine is an old one.  The complainant estimates that he might have suffered loss to a tune of more that Rs. 1,00,000/ in the last 4 months due to non-availability of the new printing machine.  In addition to the above the complainant is also paying the loan installments with interest which he had availed for purchase of the above said machine.  The complainant has borrowed the above said loan of Rs.2,25,000/ from Vijay Bank only on the basis of the promise made by the Opposite Party.  Now the complainant is repaying the loan installments without any returns. It is submitted that, the complainant availed loan only on the basis of the assurance made by the Opposite Party that they will supply the machine in time.  But the Opposite Party miserably failed to fulfill their promise.  Hence for the last 4 months the complainant is repaying the loan amount without any investment of loan amount for which the Opposite Party is solely responsible.  This act on the part of the Opposite Party amounts to deficiency of service.  Hence the above complaint filed under section 12 of the C.P.Act 1986(here in after referred to as the Act) seeking direction from this Fora to give direction to the Opposite Party to deliver single colour Ryobi offset printing machine(13.18) 3200 RCD single phase or to refund  Rs. 3,00,000/ with 12% interest from 26.11.2015 till payment and also pay compensation and cost of the proceedings.

3. Version Notice served to the opposite party by RPAD, inspite of receiving version notice not appeared nor contested the case before this forum.  Hence we have proceeded Ex parte as against Opposite Party.
4. In support of the complaint One Mr. Vasanthakrishna, (CW1) the complainant filed affidavit reiterating what has been stated in the complaint and produced the document same has marked as Ex C1 to C7.  

In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the complainant proves that  there is a deficiency  of service on the part of the Opposite
2. If so, for what relief and from whom the complainant entitled?
3. What order? 

We have considered the notes/oral arguments submitted by the learned counsel and also considered the materials that was placed before this Forum and answer the points are as follows:.

Point No. (i) to (ii): As per Affirmative

Point No. (iii): As per the final order.

REASONS

5. POINTS No. (i) to (iii):  The complainant in order to substantiate the averments made in the complaint filed affidavit supported by the documents i.e. Ex C1 to C7.  The Ex C1 is the quotation issued by the Opposite Party.  Ex C2 is the Receipt given by the Opposite Party. Ex C3 is the D.D. drawn on vijaya Bank Kaniyoor Branch.  Ex C4 is the letter given by vijaya Bank Kaniyoor Branch.  Ex.C5 is the letter addressed by the Opposite Party.  Ex.C6 is the regd lawyers’ notice.  Ex.C7 is the unserved register post.  Further we noted that the Opposite Party inspite of receiving notice neither appeared nor contested the case till this date.  The entire evidence placed by the complainant not contradicted nor controverted by the Opposite Party which requires no further proof. In view of the above said reason we hold that the Opposite Party shall pay Rs.3,00,000/ along with 12% interest from 22.06.2015 till payment and also pay Rs.5,000/ as cost of the litigation expenses.  Payment shall be made within 30 days from the date of receipt of this order. In the present case interest considered by this Forum itself is compensation therefore no separate amount of compensation is awarded.

 In the result, accordingly we pass the following Order:

ORDER

The complaint allowed. The Opposite Party shall pay Rs. 3,00,000/ (Rupees three lakh only) along with 12% interest from 26.11.2015 till payment and also pay Rs. 5,000/ (Rupees Five thousand only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of receipt of this order.

Copy of this order as per statutory requirements, be forwarded to the parties and therefore the file shall be consigned to record room.

(Page No.1 to 6 directly dictated by Member to computer system to the Stenographer typed by him, revised and pronounced in the open court on this the 7^th day of February 2017)                            

            MEMBER                                              PRESIDENT        

(SMT. LAVANYA M.RAI)                      (SRI. RAVISHANKAR)

D.K. District Consumer Forum                D.K. District Consumer Forum

            Mangalore.                                                Mangalore.

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1: Mr.Vasanthakrishna.

Documents marked on behalf of the Complainant:

Ex.C1: Dated: 04.11.2015: Copy of the quotation issued by the Opposite Party.

Ex.C2: Dated: 28.10.2015: Copy of the receipt given by the Opposite Party.

Ex.C3: Dated: 26.11.2015: Copy of the D.D. drawn on vijaya Bank Kaniyoor Branch.

Ex.C4: Dated: 26.11.2015: Copy of the letter given by vijaya Bank Kaniyoor Branch.                             

Ex.C5: Undated letter addressed by the Opposite Party.

Ex.C6: Dated: 02.05.2016: O/c of the regd lawyer’s notice.

Ex.C7: Dated: 07.05.2016: Unserved register post.

Witnesses examined on behalf of the Opposite Party:

Nil

Documents marked on behalf of the Opposite Party:      

Nil

Dated: 07.02.2017.                                               MEMBER