gxBEFORE THE MANDYA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANDYA<br /> <br /> PRESENT: 1. SIDDEGOWDA, B.Sc., LLB., President,<br /> <br /> 2. M.N.MANOHARA, B.A.,LLB., Member,<br /> <br /> ORDER<br /> <br /> Complaint No.MDF/C.C.No.151/2009<br /> Order dated this the 4th day of June 2010<br /> <br /> COMPLAINANT/S Smt.Sunitha W/o Mohan.R, Prop: M/s Choudhary Distributors, #3 Adipampa Road, V.V.Mohalla, Mysore-02. <br /> (By Sri.B.Paneesh Kumar., Advocate)<br /> -Vs-<br /> OPPOSITE PARTY/S Sri Pranesh Nadig, M/s Soft Vat Innovations, #1655, Opposite Police Parade Grounds, Bannur Road, Mandya.<br /> <br /> ALSO AT<br /> <br /> M/s Soft Vat Innovations #99, 2nd Cross, 3rd Phase Banashankari, 3rd Stage, Bangalore-85.<br /> (EXPARTE)<br /> <br /> Date of complaint 07.12.2009<br /> Date of service of notice to<br /> Opposite party EXPARTE<br /> Date of order 04.06.2010<br /> Total Period --<br /> Result The complaint is allowed exparte against the Opposite party, directing the Opposite party to refund Rs.75,816/- with interest at 9% p.a. from 18.04.2009 till payment with cost of Rs.5,000/- to the Complainant.<br /> <br /> Sri.Siddegowda,<br /> President<br /> <br /> 1. This complaint is filed under section 12 of the Consumer Protection Act, 1986 against the Opposite party to refund of Rs.75,816/- with cost and compensation. <br /> 2. The case of the Complainant is that she is a lady entrepreneur and has taken up wholesale distribution of consumer goods like Mysore Sandal Soap, Giva Oil etc. To have better management of stocks i.e., to maintain LIFO FIFO system, batch wise management of stock, the Complainant purchased a computer and was the need of software for the said regulation. For which point of time, the Opposite party who is a software developer approached the Complainant and educated her about their software and its advantages. Based upon the assurances and promises made by the Opposite party, the Complainant made payment of Rs.75,816/- vide cheque No.598830 dated 13.04.2009 drawn on Karnataka Bank, V.V.Mohalla Branch, Mysore and the said cheque was presented to the Opposite party and was cleared. After receipt of the amount, for the reasons best known to the Opposite party, Opposite party failed to install the software. In spite of many phone calls, the Opposite party did not turn up to install the software and gave evasive reply. Thereafter, the Complainant requested the Opposite party to return back her money and the Opposite party never gave any answer and started neglecting the phone calls. Then, the Complainant got issued a legal notice dated 31.10.2009 to refund the amount. But, the Opposite party neither replied to notice nor complied with the demands. Therefore, the present complaint is filed. The act of the Opposite party amounts to deficiency in service and Opposite party has adopted and practiced unfair trade practice. On these grounds, the Complainant has sought for the refund of the amount.<br /> 3. Notice was served to the Opposite party to both the address by registered post. Both were returned as insufficient address. One notice to Mysore address, returned un-served stating, always absent. So, notice by paper publication was taken by the Complainant spending Rs.3,200/- in Vijaya Karnataka and the notice was published on 28.04.2010 directing the Opposite party to appear on 05.05.2010. But, the Opposite party has remained absent and holding sufficient service, the Opposite party has been placed ex-parte. Thereafter, the Complainant has filed affidavit and produced the documents Ex.C.1 to C.5. <br /> 4. We have heard the counsel for the Complainant.<br /> 5. Now the points that arise for our considerations are:-<br /> 1. Whether the Complainant is a Consumer?<br /> 2. Whether the Complainant to avail the service of Opposite party to install software paid Rs.75,816/- by means of cheque to the Opposite party?<br /> 3. Whether the Complainant proves that the Opposite party has failed to install software in the computer of the Complainant and thus committed deficiency in service?<br /> 4. Whether the Complainant is entitled to Rs.75,816/- with interest and compensation? <br /> 6. Our findings and reasons are as here under:-<br /> 7. POINTS NO.1 TO 4:- Apart from oral evidence of the Complainant Ex.C.1 proves the issue of cheque for Rs.75,816/- by the Complainant in favour of Opposite party and Ex.C.2 is the legal notice to the Opposite party, directing the Opposite party to refund the amount on account of failure to give service to the Complainant with regard to the installation of software. The notice has been sent by RPAD and also certificate of posting, the RPAD cover Ex.C.3 returned un-served with insufficient address and certificate of posting is served. Ex.C.5 the bank pass book extract of the Complainant proves the encashment of the cheque for Rs.75,816/- in favour of the Opposite party. The evidence of the Complainant that the Opposite party has received the amount and failed to install software to the computer in the business premises of the Complainant is not at all challenged and established the same. <br /> 8. In the decision reported in III (2003) CPJ 414 in the case of Akhilesh Kumar Misra – Vs – Bhagawati Enterprises, it is held that non-supply of goods for consideration paid, amounts to deficiency in service and complaint is maintainable. The evidence clearly proves that the Opposite party has agreed to provide service of installation of software in the computer of the Complainant, which will assist the Complainant to maintain the details of stock, sales of the Consumer goods. The facts of the Complainant established are sufficient to hold that the Complainant is Consumer of the Opposite party and Opposite party has committed deficiency in service in not providing software to the computer of the Complainant, though he has received Rs.75,816/-. Therefore, the Complainant is entitled to refund of the said amount with interest from the date of receipt and cost. <br /> 9. In the result, we proceed to pass the following order;<br /> ORDER<br /> The complaint is allowed exparte against the Opposite party, directing the Opposite party to refund Rs.75,816/- with interest at 9% p.a. from 18.04.2009 till payment with cost of Rs.5,000/- to the Complainant. <br /> <br /> (Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum this the 4th day of June 2010).<br /> <br /> (PRESIDENT) (MEMBER)<br /> <br /> <br />