For the Complainant:- Sri M.A. Bag, Advocate, Bhawanipatna.
For the O.P No.1:- Set exparte.
For the O.P. No.2:- In person.
For the O.P. No.3:- In person.
ORDER.
The present disputes arises out of the complaint petition filed by the above named complainant alleging deficiency in service against the afore said O.Ps with regard to non payment of hire charges of the Bolero bearing Regd. No.OR-08-E-0961. The brief facts of the case is briefly summarised hereunder.
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The O.P. No.1 hired the Bolero bearing Regd. No.OR-08-E-0961 of the complainant from Dt.1.4.2011 to 30.11.2011 for an agreed monthly hire charges @ Rs.24,000/- per month. The O.P. No.1 engaged the above Bolero for supervision works of O.P. No.2. The O.P. No.3 was Area officer of the O.P. No.2 who supervised the works of the O.P.No.2. The O.P. No.1 was paying the hire charges of the Bolero to the complainant in shape of cheque issued by him. After using the vehicle the O.P. No.1 terminated the agreement on 30th. November, 2011 without settlement of the account and payments made to the complainant. The O.P. No.3 was preparing the traveling account and log book entries of the said Bolero on behalf of the O.P.No.1 & 2. After termination the agreement the complainant approached the O.P. 1 & 3 from time to time for his payment, but in vain. Hence this case filed by the complainant before the forum for redressal of his grievance. The complainant prays the forum direct the O.P No.1 to pay Rs.1,73,000/- outstanding amount towards Bolero hire charges and such other relief as the hon’ble deems fit and proper for the best interest of justice.
On being noticed the O.P. No.1 received the notice from the forum as revealed from the postal statement. The O.P. No. `1 neither appeared nor choose to file written version. We find the O.P. No.1 has no respect to the forum Hence the O.P. set exparte as the statutary period for filing of written version is over . So the case was posted for hearing to close the case within the time frame as per the C.P. Act.
The O.P. No.2 filed Written version through postal service. The O.P. No.2 submitted that we have paid all our dues to the O.P. No.1. Chinu Travels had agreement with us to provide vehicle. The complainant has no way direct link with the O.P. No.2. It is therefore prayed before the forum to dismiss the petition against the O.P.No.2 for the best interest of justice.
The O.P. No.3 filed Written version and submitted that the O.P. No.3 was working as Zonal Area Officer under the control O.P. No.2 and discharged the works of O.P. No.2. Actually Bolero Regd No. OR-08-E-0961 of the complainant had taken on hire basis by the O.P. No.1 from Ist. April, 2011 to 30 November, 2011 for an agreed monthly hire charges. That actually the above Bolero had engaged supervision works of the O.P. No.2. Para-3 to 5 of the complaint petition is correct . The O.P. No.3 is innocent in the above case. There is no deficiency in service on my part & prayed the hon’ble forum to dismiss the above petition against the O.P. No.3 for the best interest of service and the hon’ble forum direct the O.P. No.1 to pay the outstanding amount to the complainant.
During the exparte hearing the complainant examined himself and proved the payment of the money to the O.Ps. The complainant has also produced all the records relating to the above case. The complainant has also produced the Xerox copies of Log book of the above vehicle running in different dates. The complainant also argued due to non payment of outstanding amount the complainant suffered a lot of financial trouble as the complainant brought finance from the bank for his livelihood. The complainant prays the forum as the O.P. No.1 not heard any grievance of the complainant till date so the O.P. No.1 directed to refund the outstanding amount along with bank interest.
In the absence of any denial by way of written version from the side of the O.P. No.1 it is presumed that the allegations leveled against the O.P. No.1 deemed to have been proved. The complainant have produced the log book of the above vehicle running in different dates. Hence it is deemed that the fact is said to be proved, and this forum considering the above aspects tendered in evidence believes it to exist or consider its existence so probable that under the circumstances of particular case to act upon the supposition that the said fact exist. The O.P. No.1 hires the service of the complainant on payment of consideration and the said payment is made for the consideration for the said service. When the O.P No.1 has failed to give such service for which the O.P No.1 had availed service from the complainant. It is deemed that the O.P No.1 is callous to the allegations and it amounts to deficiency of service.
When the O.P No.1 had hired the vehicle Bolero bearing Regd. No. OR-08-E-0961 and even after hired vehicle Bolero availed by the O.P. No.1, non payment of outstanding amount in spite of approaches from time to time by the complainant amounts to breach of contract and further giving false promise with an intention of the extract money and subsequently failed to pay outstanding amount as promised.
When contract has been broken or breached the complainant who suffers from the said breach is entitled to receive hire charges of Bolero with up-to-date bank interest from the O.P No.1 who have broken the contract, Compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things for such breach or which the party knew when they have made the contract ought to considered.
“Deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service. In the instant case the complainant has not filed any agreement towards hires charges of the above bolero. But on perusal of the record we find the O.P. No.1 has issued 2 Nos. of cheque in favour of the complainant vide cheque No. 672230 Dt. 21.9.2011 a sum of Rs.19,400/- another cheque bearing No.672266 a sum of Rs.17,958/- which is marked as Annexure-I. It presumed there is a contract between the parties. Further log books were also maintained towards running of the Bolero for the period from May to September,2011 which is marked as Annexure-II.
Hence this forum found that the complainant is a consumer within the definition of the C.P. Act as per Section 2(g) for breach of contract. We find there is deficiency of service on the part of the O.P. No.1 for non performance of a contract and as such the complainant is entitled to the reliefs claimed in the petition.
We observed the complainant feel the O.P No.1 service is deteriorating and does not follow business ethics. Hence to meet the ends of justice, the following order is passed.
ORDER.
In the result with these observations, findings the complaint petition is allowed in part on exparte against the O.P 1 and dismissed against the O.P. No.2 & 3
The O.P. No.1 is ordered to pay Rs. 1,73,000/- balance outstanding hire charges amount towards Bolero Regd No. OR-08-E-0961 to the complainant.
The O.P. No.1 is further ordered to pay Rs.2,000/- towards litigation expenses.
We therefore issued a “Cease and Desist” order against the O.P. directing him to stop such a practice forthwith and not to repeat in future.
The O.Ps are ordered to comply the above direction within 60 days from the date of receipt of this order failing which the complainant is at liberty to take further proceedings U/S- 25 & 27 of the C.P. Act. Service the copies of the order to the parties.
Dictated and corrected by me
Pronounced on this 24th. day of January, 2017.
MEMBER. PRESIDENT.
Documents relied upon:-
By the complainant.
- Xerox copies of cheques issued by the O.P. in favour of the complainant.
- Log books of the bolero engaged for hire and used by the O.P.No.1.
- Letter correspondence by the complainant to the O.P. No.2
By the O.P No. 2
Payment details to the O.P. No.1
By the O.P No. 3.
PRESIDENT.
