BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 30TH March 2015
PRESENT
SMT. ASHA SHETTY : HON’BLE PRESIDENT
SRI T.C. RAJASHEKAR : MEMBER
COMPLAINT NO.156/2014
(Admitted on 16.5.2014)
Mr. Shivananda Acharya,
S/o Ramesh Acharya,
Residing at “Mathrushri House”,
Kandavara Post and Village,
Mangalore Taluk. …….. COMPLAINANT
(Advocate for Complainant: Sri Suraj Lal Shetty)
VERSUS
Mrs. Haseena,
W/o Ismail,
Aged about 42 years,
Present Address: Bava Palace,
Mulihithlu,
Near Mangaladevi Temple,
Mangalore. ……OPPOSITE PARTY
(Opposite Party: Exparte)
ORDER DELIVERED BY HON’BLE PRESIDENT
SMT. ASHA SHETTY:
I. 1. This complaint is filed under Section 12 of the Consumer Protection Act alleging defective in goods as against the Opposite Party claiming certain reliefs.
The brief facts of the case are as under:
The complainant stated that, the complainant is doing gold and silver work under the name and style of Vajradehi Gold and Silver works. As believing the Opposite Party No.1 intended to purchase silver and gold melting machine by availing a loan of Rs.19,00,000/- from Vijaya Bank on 3.4.2013. After paying the entire payment the Opposite party has failed to supply the said machine within the stipulated time. But the Opposite Party postponing the assurance that he is supplying the machine and thereafter the complainant constrained to issue a legal notice, but the Opposite party changed the address and evading the supply the machine. All the efforts made by the complainant is went in vain and complainant suffered monetary loss. Hence, the complainant filed the above complaint under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to refund the amount of Rs.19,00,000/- price of the machine with an interest of 18% p.a. till the date of realization along with compensation and cost of the proceedings.
II. 1. Version notice issued by R.P.A.D but it has been returned as ‘unclaimed’. Thereafter the Complainant has taken version notice by way of paper publication in Udayavani newspaper dated 4.7.2014. In spite of that the Opposite Party not appeared nor represented the case till this date. Hence Opposite Party placed exparte and postal acknowledgement marked as Court Doc.No.1.
III. 1. In support of the complaint, Mr. Shivananda Acharya (CW1) – Complainant filed affidavit reiterating what has been stated in the complaint and produced Ex. C1 to C15. Opposite Party placed exparte.
In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that the Opposite Party has committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i): Affirmative.
Points No.(ii) & (iii): As per the final order.
REASONS
IV. 1. POINTS NO. (i) TO (iii):
In order to substantiate the averments made in the complaint, the complainant filed affidavit by way of chief examination and produced documents i.e. Ex.C1 to C15. On perusal of the documents supported by affidavit clearly reveals that the complainant obtained a bank loan from Vijaya Bank as per Ex. C1 and paid Rs. 17,52,940/- through D.D. dated 3.4.2013 to the Opposite Party and the Opposite Party inturn issued a receipt dated 3.4.2013 in proof of receiving the above said amount as per Ex. C2 and C3. The Ex.C4 reveals that the Complainant paid another payment of Rs.1,47,060.40 by way of DD to the Opposite Party. The Ex.C9 and C10 is the Pass books in the name of the Complainant issued by the Vijaya Bank Kaikamba Branch and Ex.C11 is a letter written by District Khadi Gramodhyoga Adhikari Mangaluru to the Manager Vijaya Bank wherein, the Complainant undergone training and further Ex.C12 is the FIR dated 22.7.2014 lodged by the Complainant against the Opposite Party before the jurisdictional P.S., Mangaluru and again the Ex.C13 is the one more FIR dated 9.7.2014 lodged by the one Vijaya latha Nair against the O.P. in proof of similar case and Ex.C14 and 15 are the news report published in Udayavani Kannada daily and Agni Weekly Kannada newspaper and Ex.C5 to C7 are the legal notice dated 25.10.2013 along with postal receipts and returned envelop. The above documents clearly reveals that the Opposite Party after receipt of so much of amount i.e. in total Rs.19,00,000/- from the Complainant and assured that he will supply the machine as desired by the Complainant but failed to supply the said machine inspite of taking the aforesaid amount till this date amounts to deficiency in service as well as unfair trade practice.
Apart from the above, the Opposite party inspite of receiving the version notice by way of paper publication not appeared nor represented the case. The entire material evidence produced by the complainant is not controverted/contradicted, the entire evidence remained unchallenged which requires no further proof. Further the documents produced by the Complainant proved beyond doubt that the Opposite Party has cheated and mislead the Complainant and not supplied the promised machine as mentioned in the complaint.
However, we are of the opinion that is a clear case of deficiency of service as well as unfair trade practice and complainant put to untold hardship. Therefore, the Opposite Party is hereby directed to refund the entire amount i.e. Rs.19,00,000/- along with interest at 12% p.a. from the date of payment till the date of realization to the complainant and also pay Rs.3,000/- (Rupees Three thousand only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
In the present case, interest considered by this Forum itself is compensation and therefore, no separate amount for compensation is awarded.
In the result, we pass the following:-
ORDER
The complaint is allowed. The Opposite Party shall pay Rs.19,00,000/- (Rupees Nineteen lakhs only) along with interest at the rate of 12% per annum from the date of payment till the date of realization to the complainant. And also pay Rs.3,000/- (Rupees Three thousand only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
The copy of this order as per the statutory requirements be forwarded to the parties and therefore the file be consigned to record.
(Page No.1 to 9 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 30th day of March 2015)
PRESIDENT MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Mr. Shivananda Acharya – Complainant.
Documents produced on behalf of the Complainant:
Ex C1: 3.1.2013: True copy of the receipt issued by O.P. to the complainant.
Ex C2: The loan application with details in proof of loan obtained by the complainant before the Vijaya Bank.
Ex C3:3.4.2013: Copy of the DD in proof of payment of 17,52,940/- to the O.P.
Ex C4: 3.4.2013: Copy of the receipt issued by the O.p. in proof of receiving the above said amount.
Ex C5: Copy of the D.D. in proof of payment of Rs.1,47,060.40 by the complainant to the O.P.
Ex C6:25.10.2013: Office copy of the advocate notice.
Ex C7:Postal receipt.
Ex C8: 25.10.2013: Returned envelop in respect of notice.
Ex C9: Passbook in the name of the complainant.
Ex C10: Passbook in the name of complainant.
Ex C11: 12.7.2013: Letter issued by District Officer Mangalore.
Ex C12: 22.7.2014: FIR lodged by the complainant.
Ex C13: 9.7.2014: FIR lodged by the complainant.
Ex C14: 4.7.2014: Report published in Udayavani Kannada daily news paper –
Ex C15: 9.7.2014: Report published in Agni weekly Kannada news paper.
Court Document:
Doc.No.1: Postal Acknowledgment.
Witnesses examined on behalf of the Opposite Party:
- Nil -
Documents produced on behalf of the Opposite Party:
- Nil -
Dated:30.3.2015 PRESIDENT
