BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT MANGALORE
Dated this the 30th June 2010
COMPLAINT NO.124/2010
(Admitted on 17.4.2010)
PRESENT:
1. Smt. Asha Shetty, President.
2. Smt. Lavanya M. Rai, Member.
BETWEEN:
Mr.Durgadas Acharya,
Aged about 57 years,
Vijayalakshmi,
Near Durgaparameshwari,
Nagakannika Temple,
Derebail, Konchady,
Mangalore 575 008. ……COMPLAINANT
(Advocate for Complainant: Sri K.Ganesh Shenoy)
VERSUS
Ms Paras In,
33 1, Malathali Main Road,
Bangalore 56 0 056,
Represented by Mr.Dilip Rathod. …. OPPOSITE PARTY
(Opposite Party: Exparte)
ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:
1. The facts of the complaint in brief are as follows:
This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Party claiming certain reliefs.
The Complainant submitted that, in pursuant to the advertisement in the stall put up by the Opposite Party in ‘Karavali Utsav” a show run by the local administration near Mangala Stadium, Mangalore, the Complainant has offered to purchase a marble dining table set inclusive of 6 chairs for a total consideration of Rs.13,000/- vide order 035 dated 24.5.2009. The Complainant had paid a sum of Rs.3,000/- as advance to the Opposite Party. The said dining table set was delivered to the Complainant to his residence by the representative of Opposite Party on 11.7.2009 upon receiving the balance consideration of Rs.10,000/-.
It is stated that, within a few days of delivery of the marble table, the Complainant had noticed that, a thick crack at the bottom and sides of the table. When the Complainant informed the Opposite Party about this defect in the table, the Opposite Party has not responded to the Complainant immediately and after many requests and reminders, the Opposite Party has deputed its person to assess the problem on 23.9.2009. The person visited the Complainant’s house and found the table defective. After inspecting the marble top, the aforesaid person assured to replace the same.
It is stated that, the Complainant could not use the said table purchased for dining purpose nor he could purchase another table. The Opposite Party has not replaced it nor he had refunded its price. Hence the Complainant put lot of inconvenience and mental agony. Thereafter the Complainant issued a legal notice 7.1.2010 calling upon the Opposite Party to replace the defective table or to refund its price. The notice sent by the Complainant returned not claimed. Hence the Complainant contended that the dining set purchased from the Opposite Party is defective. Therefore, the above complaint is filed by the Complainant before this Forum under Section 12 and 13 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to replace the defective dining table and on its failure to do so to refund its price of Rs.13,000/- with interest at 12% per annum from the date of the filing of the Complaint till payment and further pay cost of the proceedings.
2. Version notice served to the Opposite Party by R.P.A.D. Despite of serving notice, the Opposite Party neither appeared nor represented the case till this date and hence, we have proceeded exparte as against the Opposite Party. The Postal Acknowledgement marked as Court Document No.1.
3. The points that arise for our consideration in this case are as follows:
- Whether the Complainant proves that Dining Set purchased by the Complainant from the Opposite Party proved to be defective?
- Whether the Complainant proves that the Opposite Party has committed deficiency in service?
- If so, whether the complainants are entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Mr.Durgadas Acharya (CW1) filed his affidavit reiterating what has been stated in the complaint and produced Ex C1 to C6 as listed in the annexure. Opposite Party not led any evidence placed exparte.
We have considered the submission made by the learned counsel and also considered the materials that was placed before the Forum and answered the points are as follows:
Point No.(i): Affirmative.
Point No.(ii): Affirmative.
Point No.(iii) & (iv): As per the final order.
REASONS
5. POINTS NO. (i) to (iv):
In the instant case, the Complainant filed affidavit in order to prove his case and also produced Ex.C1 to C6. The Opposite Party returned the version notice ‘unclaimed’. The unclaimed notices as treated as deemed to be served to the Opposite Party.
We have considered the oral as well as documentary evidence placed before this Forum, wherein, we find that, the receipt No.035 issued by the Opposite Party in favour of the Complainant shows that the Complainant purchased the 1+6 marble-408 i.e. Dining Table with chairs for a sum of Rs.13,000/-. It is also proved that, the amount of Rs.3,000/- received an advance from the Complainant on 24.5.2009. The Ex.C2, C3 and C4 are the E-mails sent by the Complainant to the purchaser calling upon the Opposite Party to see the defect found in the dining table set sold by him and also called upon to replace the dining set purchased by him. The Ex.C5 is the legal notice dated:7.1.2010 along with postal acknowledgement produced before this Forum clearly shows that, the Complainant purchased the above said marble dining table including 6 chairs for a total consideration of Rs.13,000/- from the Opposite Party and found the crack on the table and it is proved to be a defect. We have noticed that, in this case, the Complainant sent E-mail and also issued the above legal notice calling upon the Opposite Party to replace the dining table set or to refund its price. The above correspondences served to the Opposite Party despite of that the Opposite Party not turned up, it shows the service rendered by the Opposite Party after purchase of the goods. We have further noticed that, the attitude of the Opposite Party in this case clearly shows his negligence towards the customer. In the given case, admittedly the dining set purchased on 24.5.2009 and the evidence placed by the Complainant proves beyond doubt that the marble table set was not used by him and entire evidence filed by the Complainant is not controverted nor contradicted by the Opposite Party. Where a party to the Complaint does not appear and state his case and does not offer himself to be contested in the Complaint, the presumption would arise that the case set up by the Complainant is correct. The affidavit of the evidence filed by the Complainant unless controverted or contradicted by the other side as to be acted upon.
In the given case, apart from the affidavit filed by the Complainant, the documents produced by the Complainant clinchingly proves that, the goods purchased by the Complainant from the Opposite Party is defective and the Opposite Party failed to render the service inspite of receiving written Complaint from the Complainant which amounts to deficiency in service other than the goods sold by him is defective one.
In view of the foregoing reasons, we are of the considered opinion that, when the Opposite Party failed to render service in proper manner it is no point in ordering replace of the goods. We hold that, the refund of the money will meet the ends of justice. Hence, in this case, we direct the Opposite Party to refund the amount of Rs.13,000/- to the Complainant along with interest at 12% per annum from the date of filing of this Complaint till the date payment by taking back the defective Dining Table Set. And further Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
6. In the result, we pass the following:
ORDER
The complaint is allowed. The Opposite Party i.e. M/s Paras In, Bangalore represented it authorized person is hereby directed to refund a sum of Rs.13,000/- (Rupees Thirteen thousand only) to the Complainant along with interest at 12% per annum from the date of filing of this Complaint till the date of payment by taking back defective dining table set. And further Rs.1,000/- awarded 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 free of charge and therefore the file be consigned to record.
(Page No.1 to 8 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 30th day of June 2010.)
PRESIDENT MEMBER
ANNEXURE
WITNESSES EXAMINED ON BEHALF OF THE COMPLAINANT:
CW-1 – Mr.Durgadas Acharya – Complainant.
DOCUMENTS PRODUCED ON BEHALF OF THE COMPLAINANT:
Ex C1 – 24.5.2009: Copy of the Receipt No.035 issued by the Opposite Party.
Ex C2 – 21.10.2009: E-mail correspondence Letter issued by
the Complainant
Ex C3 – 29.9.2009: E-mail correspondence Letter issued by
the Complainant.
Ex C4 – 20.9.2009: E-mail correspondence Letter issued by
the Complainant.
Ex C5 – 7.1.2010 : Legal Notice.
Ex C6 – : Returned postal envelope with the endorsement not claimed.
COURT DOCUMENT:
Doc.No.1: Unclaimed postal cover with acknowledgement.
WITNESSES EXAMINED ON BEHALF OF THE OPPOSITE PARTY:
- Nil-
DOCUMENTS PRODUCED ON BEHALF OF THE OPPOSITE PARTY:
- Nil-
Dated: 30.6.2010 PRESIDENT
