BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD, THIRUVANANTHAPURAM. PRESENT SRI. G. SIVAPRASAD : PRESIDENT SMT. BEENAKUMARI. A : MEMBER SMT. S.K.SREELA : MEMBER
C.C. No. 268/2008 Filed on 11.11.2008 Dated : 30.07.2009
Complainants:
Jilla Upabhokthru Samithi, Reg. No. 893/89, North Nada, Fort P.O, Thiruvananthapuram represented by its Secretary D. Venugopal. Joymon. S, Quarters No. G 23 A, S.A.P Quarters, Peroorkada, Thiruvananthapuram.
(By adv. V. Jyothi)
Opposite parties:
M/s Asia Trade Developments, T.C 17/1881, Mudavanmugal Road, Poojappura, Thiruvananthapuram – 12 represented by its Proprietor. Ashok, Proprietor, M/s Asia Trade Developments, T.C 17/1881, Mudavanmugal Road, Poojappura, Thiruvananthapuram – 12
(By adv. M. Raghavan Pillai)
This O.P having been heard on 20.06.2009, the Forum on 30.07.2009 delivered the following:
ORDER SMT. BEENAKUMARI.A: MEMBER Facts of the case are as follows: The 1st complainant in this case is the Jilla Upabhokthru Samithi and 2nd complainant is a police man. The 1st opposite party M/s Asia Trade Developments is doing business of home appliances. The 2nd opposite party is its proprietor. The 2nd complainant had purchased an “EFFPEE Food Processor” on 08.08.2008 as per purchase agreement Sl. No. 213 for an amount of Rs. 6,000/-. He purchased the product by exchanging his old Maharaja mixer with the food processor. The exchanged net price of the food processor is Rs. 5,000/-. The opposite party offered instalment purchase to the 2nd complainant and he agreed to purchase the food processor in two instalments. Out of the two instalments he paid Rs. 2,700/- in cash, i.e,. Rs. 200/- as advance given at the time of purchase agreement and Rs. 2,500/- as the first instalment. As per the understanding between the 2nd complainant and the opposite parties, the balance amount of Rs. 2,300/- should be paid on the next month of purchase. Thus the 2nd opposite party delivered the EFFPEE Food Processor on 08.08.2008 to the 2nd complainant. On the date of delivery the opposite party insisted the 2nd complainant to issue a signed blank cheque as security to the second instalment. They also assured that the security cheque will be returned to the complainant when he pays the balance amount. Being satisfied and impressed by the opposite party's representation and manner of service the 2nd complainant purchased the food processor and issued a signed blank cheque bearing No. 494652 of Centurion Bank of Punjab Ltd. The complainant states that the food processor makes loud noise while it works, from the very same day of purchase. It produces different types of sound from the part of its motor. Neither the 2nd complainant nor any of his family members had used the said food processor without any fear. From 12.08.2008 onwards the 2nd complainant made complaints to the opposite parties. But the 2nd opposite party has not even cared to go through the complainant's grievances. The 2nd complainant collected the phone number of the opposite party's service centre from the instruction manual cum warranty card given by the 2nd opposite party at the time of purchase of the food processor. But such a phone number is not in service. Moreover, there is no such service business in the address as mentioned by the opposite parties. The opposite parties gave 5 years replacement guarantee through the service centre. Since the service centre itself is not working the 5 year replacement guarantee also became infructuous. The food processor did not have any other service centre or sale showroom in Kerala. Thus the complainant issued a registered letter on 25.08.2008 demanded back the cash paid Rs. 2700/- and the security cheque issued for balance amount of Rs. 2,300/- and the exchanged Maharaja mixer and requested the opposite party to take back the food processor. But the opposite party has not even cared to sent any reply for that letter. Thereafter the 2nd complainant entrusted the 1st complainant to do an amenable settlement with the opposite party so as to avoid litigation. But the opposite party was not ready for a settlement. Meanwhile the opposite parties presented the cheque issued by the complainant and the cheque was dishonoured by the complainant's bank. Thereafter the 1st opposite party sent a legal notice dated 20.10.2008 to the 2nd complainant. As per the complainant, the opposite parties' unfair trade practice and deficient service made untold sufferings and hardships and financial loss to the complainant. Hence he filed this complaint before this Forum for the redressal of his grievances. In this case the opposite parties accepted notice from this Forum and filed vakalath and thereafter they did not turn up to contest the case. Hence the opposite parties remain exparte. The 2nd complainant in this case filed proof affidavit and he has produced 4 documents. The documents were marked as Exts. P1 to P4. The affidavit filed by the complainant stands unchallenged. Points that would arise for consideration are:- Whether there has been unfair trade practice and deficiency in service occurred from the side of opposite parties? Whether the complainant is entitled to get the reliefs and costs?
Points (i) & (ii):- To prove his contentions the complainant has filed proof affidavit and produced 4 documents before this Forum. The document marked as Ext. P1 is the letter issued by the postal department to the complainant informing that the registered letter was delivered to the addressee on 27.08.2008. Ext. P2 is the legal notice issued by the opposite parties to the complainant under Sec. 138 of N.I. Act dated 20.10.2008. Ext. P3 is the purchase agreement dated 08.08.2008. As per this agreement the price of the food processor is Rs. 6,000/-, Exchange amount Rs. 1,000/-, net price is seen Rs. 5,000/- advance amount Rs. 200/- and balance amount to be paid is seen Rs. 4,800/-. The two instalment amounts as Rs. 2500/- + Rs. 2300/-. This document is the ample evidence for the entire transaction. Ext. P4 is the instruction manual-cum warranty card issued by the opposite party to the 2nd complainant at the time of purchase of the food processor. As per this document the opposite parties have given 5 years replacement guarantee to the 2nd complainant on the food processor. The 2nd complainant purchased the food processor from the opposite parties with great expectations to use the machine for his domestic purpose by investing a huge amount. As per the complainant Rs. 6,000/- is very huge. For that reason he had purchased the food processor in instalment condition. He had exchanged his Maharaja mixer with the opposite parties for Rs. 1,000/-. The complainant paid Rs. 2,700/- as cash to the opposite parties. Thus the complainant had totally paid Rs. 3,700/- to the opposite parties. The balance amount to be paid is Rs. 2,300/-. For that amount he issued a cheque. But the food processor which he had purchased from the opposite party was defective and hence the complainant and his family members could not use the food processor. At the time of starting the machine it makes loud noise. Hence it has become useless and the purpose for which the complainant had purchased it has not been served. The complainant informed the matter to the opposite parties, but the opposite parties never turned up to repair it or replace it. At the very beginning of the transaction the opposite parties has fully exploited the complainant by giving false information regarding service centre of the food processor. But the complainant has proved that there is no such service centre in Kerala. As per the agreement and warranty issued by the opposite parties, the complainant is entitled to replace the defective machine with new one. But the opposite parties did not do their part accordingly. There is no fault from the side of the complainant in not paying the balance amount to the opposite parties because the food processor is in defective condition. Hence it is quite natural not to pay the balance amount unless the same is rectified in time. As per Sec. 13(1) (d) of the Consumer Protection Act expert opinion is necessary to decide this type of cases. But in this case the opposite parties never turned up to contest the case. This Forum has given ample opportunities to the opposite parties to file their version and contest this case. But they never turned up to do that. And also the affidavit filed by the complainant stands unchallenged. Hence we have concluded the case on the basis of affidavit and documents furnished by the complainant. From the available materials on record we find that the complainant has succeeded to prove his case. There is unfair trade practice and deficiency in service from the side of opposite parties. Hence this complaint is allowed. In the result, the opposite parties are directed to pay Rs. 3,700/- with 12% interest from 08.08.2008 to the 2nd complainant which has been paid by the 2nd complainant to the opposite parties for the purchase of the food processor. The opposite parties are directed to pay Rs. 1,000/- as compensation and costs Rs. 1,500/- to the complainant. And the opposite parties shall return the cheque No. 494652 of Centurian Bank of Punjab Ltd., P.M.G, Thiruvananthapuram issued to the opposite parties as security by the complainant. After compliance of the above order by the opposite parties, the 2nd complainant shall return the food processor to the opposite parties. Time for compliance one month from the date of receipt of the order. Thereafter the entire amount shall carry 12% annual interest till the date of realization.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 30th day of July 2009.
BEENAKUMARI. A : MEMBER
G. SIVAPRASAD : PRESIDENT S.K. SREELA : MEMBER
C.C. No. 268/2008 APPENDIX
I COMPLAINANT'S WITNESS : NIL II COMPLAINANT'S DOCUMENTS : P1 - Original letter dated 02.12.2008 issued by Superintendent of Posts to the 2nd complainant. P2 - Legal notice dated 20.10.2008 issued to the 2nd complainant. P3 - Original purchase agreement dated 06.08.2008. P4 - Recipe Book with warranty card.
III OPPOSITE PARTY'S WITNESS : NIL IV OPPOSITE PARTY'S DOCUMENTS : NIL
PRESIDENT
......................Smt. Beena Kumari. A
......................Smt. S.K.Sreela
......................Sri G. Sivaprasad | | 
