Date of Filing : 16.03.2020
Date of Disposal: 30.09.2022
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
THIRUVALLUR
BEFORE TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law) .…. PRESIDENT
THIRU. J.JAYASHANKAR, B.A, B.L. ..… MEMBER-I
THIRU.P.MURUGAN,B.Com. ....MEMBER-II
CC. No.23/2020
THIS FRIDAY, THE 30th DAY OF SEPTEMBER 2022
Mr.N.Vijayakumar,
No.141, West mada Street,
Tiruvottriyur, Chennai -600 019. ……Complainant.
//Vs//
M/s.Never Fails,
Rep.by G.Gopalakrishnan,
No.458-D, Balaraman Street,
Periyathoppu, Manali, Chennai -600 068. …..opposite party.
Counsel for the complainant : Mr.E.Udayachander, Advocate.
Counsel for the opposite party : exparte
This complaint is coming before us on various dates and finally on 30.09.2022 and hearing argument of the Complainant and the opposite party was set exparte and upon perusing the documents and evidences produced by the complainant this Commission delivered the following:
ORDER
PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI, PRESIDENT.
This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986 alleging deficiency in service against the opposite party in not delivering the RWC 3TR Cooled Industrial Chiller seeking direction to direct the opposite party to refund a sum of Rs.55,000/- being the advance amount paid by the complainant and to pay a sum of Rs.2,00,000/- towards compensation for the mental agony caused to the complainant by the opposite party due to the deficiency in service along with cost.
Summary of facts culminating into complaint:-
It is the case of the complainant that on 16.05.2019 the complainant ordered RWC 3TR Cooled Industrial Chiller for Rs.1,06,000/- and paid Rs.55,000/- as advance which works out to more than 30% of the cost of the article. Thereafter whenever the complainant contacted the opposite party for delivering the article the same was not delivered and at one stage the complainant was illtreated by the opposite party. It is submitted by the complainant that only on seeing the advertisement by the opposite party he had ordered for the article and hence the opposite party had committed unfair trade practice in not delivering the article. Thus aggrieved after issuance of a legal notice the present complaint was filed by the complainant for the following reliefs.
Directing the opposite party to pay a sum of Rs.55,000/- being the advance amount paid by the complainant;
To pay a sum of Rs.20,000/- as compensation for the mental agony caused to the complainant due to the unfair trade practice and deficiency in service on the part of the opposite party;
To pay the cost of the complaint to the complainant.
On the side of the complainant proof affidavit was filed and documents were marked as Ex.A1 to A5. The opposite party inspite of sufficient notice remained absent and hence he was called in open court and was set exparte for non appearance and for non filing of written version on 16.10.2020.
Points for consideration:-
Whether the alleged deficiency in service on the part of the opposite party in not delivering the RWC 3TR Cooled Industrial Chiller even after receipt of Rs.55,000/- has been successfully proved by the complainant?
If so to what relief the complainant is entitled?
Point No.1
On the side of the complainant the following documents were filed in support of his allegations;
Invoice copy issued by the opposite party to the complainant dated 16.05.2019 was marked as Ex.A1;
HDFC Bank cheque for Rs.30,000/- dated 21.05.2019 was marked as Ex.A2;
HDFC Bank cheque for Rs.10,000/- dated 28.05.2019 was marked as Ex.A3;
Receipt for cash received by the opposite party was marked as Ex.A4;
Legal notice issued by the complainant to the opposite party with acknowledgement card was marked as Ex.A5;
Heard the learned counsel for complainant. The crux of the oral arguments adduced by the counsel for the complainant was that though the complainant had ordered for the article and had paid more than 30% of the cost of the article after seeing the advertisement and also on the oral assurance of the opposite party that the article would be delivered after payment of 30% of the total cost of Rs.1,06,000/- the article was not delivered. Hence the opposite party in not delivering the article had committed unfair trade practice and deficiency in service and he sought for the complaint to be allowed.
We perused the pleadings and evidences produced by the complainant and came to a conclusion that there is sufficient evidence for the payment of Rs.55,000/- to the opposite party vide Ex.A2, Ex.A3 and Ex.A4 but there is no proof submitted by the complainant for the alleged assurance given by the opposite party for delivery of the RWC 3TR Cooled Industrial Chiller for mere payment of 30% of the total cost. In such circumstances we could not find any unfair trade practice or deficiency in service on the part of the opposite party as this Commission is of the view that the complainant has no right to seek for the delivery of the article without payment of the total cost. Thus we answer the point holding that the complainant had failed to establish the unfair trade practice and deficiency in service on the part of the opposite party. Merely for the absence of opposite party to appear and defend the case the complaint cannot be allowed in the absence of sufficient admissible evidence.
Point No.2:
With regard to the relief to be granted to the complainant, though we have held that there is no deficiency in service and unfair trade practice on the part of the opposite party it is specifically proved by the complainant by admissible evidence that they have paid Rs.55,000/- to the opposite party vide Ex.A2, Ex.A3 and Ex.A4. In such circumstances in the interest of justice and the Consumer Protection Act being a Social Welfare legislation we feel that directing the opposite party to refund the said amount to the complainant would be the appropriate relief in the facts and circumstances of the case. Hence we direct the opposite party to refund the said amount paid by the complainant as advance within six weeks from the date of receipt of copy of this order.
In the result, the complaint is disposed of directing the opposite party to refund a sum of Rs.55,000/- (Rupees fifty five thousand only) to the complainant within six weeks from the date of receipt of copy of this order failing which an interest of 6% will be levied on the said amount from the date of complaint till realization.
Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 30th day of September 2022
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MEMBER-II MEMBER-I PRESIDENT
List of document filed by the complainant:-
Ex.A1 16.05.2019 Invoice by opposite party. Xerox
Ex.A2 21.05.2019 Cheque for Rs.30,000/- Xerox
Ex.A3 28.05.2019 Cheque for Rs.10,000/- Xerox
Ex.A4 ............... Receipt for cash received by the opposite party. Xerox
Ex.A5 14.11.2019 Legal notice issued by the complainant to the opposite party. Xerox
List of documents filed by the opposite party:-
Nil
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MEMBER-II MEMBER-I PRESIDENT
