Date of Filling: 29.01.2015
Date of Disposal: 24.09.2018
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
THIRUVALLUR-1
PRESENT: THIRU.S.PANDIAN, B.Sc., L.L.M. ….PRESIDENT
THIRU:R.BASKARKUMARAVEL, B.Sc.L.L.M., BPT., PGDCLP., …MEMBER
CONSUMER COMPLAINT No.21/2015
Dated this Monday the 24th day of September 2018
Tmt.Kalpana,
Proprietor of Janani Ice Cream Land,
No.62/D, Poonamallee High Road,
Manavala Nagar,
Thiruvallur Taluk & District. …..Complainant.
//Vs//
1.Tamil Nadu Dairy Foods,
No.73/75, Bangala Road,
Madras Trunk Road, Kannoor Village,
Samayapuram,
Trichi - 621112.
2.Tamil Nadu Dairy Foods,
No.7, Ambathur Estate,
Chennai -58.
3.Mr.Rajenderan,
Marketing Manager,
Tamil Nadu Dairy Foods,
No.7, Ambathur Estate,
Chennai -58. …..Opposite parties.
This Complaint is coming on for final hearing before us on 10.09.2018 in the presence of Thiru.C.Elamaran, counsel for complainant, 3rd opposite party called absent and set ex-parte and M/s.N.Kannan, Counsel for the 1st and 2nd opposite parties and upon hearing arguments having perused the documents and evidences, this Forum delivered the following.
ORDER
PRONOUNCED BY THIRU.S.PANDIYAN, PRESIDENT.
This complaint has been preferred by the complainant Under Section 12 of the consumer protection Act, 1986 against the opposite party seeking direction to pay a sum of Rs.2,00,000/-towards loss of business from the dealership shops and a sum of Rs.2,00,000/- towards compensation for causing mental agony due to the deficiency of service committed by the opposite parties to the complainant with cost.
2. The brief facts of the complaint are as follows:-
The 2nd opposite party issued dealership evaluation form to the complainant and on receiving the from agreed to pay Rs.30,000/- and the same was paid by way of Demand Draft No.836981634 dated 08.04.2013 in favour of opposite parties.
3. The 2nd opposite party, on receiving the demand draft from the complainant entered into an Agreement to supply Udelict Defreeze 500 Ltr.1No.6x3 main Board and side broad with Rs.10,000/- MRP Ice Cream Deposit receipt No.3300 dated 08.04.2013. The 2nd opposite party agreed that the freezer tariff change will bear as per the condition mentioned in the terms of the agreement freezer must save energy. But, the freezer will run nearly 13 units daily. The complainant informed to the 2nd opposite party that the freezer will not save energy as assumed and in turn the 2nd opposite party agreed to pay the difference of tariff. Hence, on the advice of the 2nd and 3rd opposite party the complainant going on running the freezer and sold Ice cream. Thereafter, 2nd and 3rd opposite party advised to the complainant to remove the entire product in the shop except freezer.
4. Then the complainant handed over the key to the 3rd opposite party herein and went to native place and after 3 days the complainant neighbor informed that the 3rd opposite party removed all the things in the shops and taken to their office. After complainant has returned from the native place and seen the activities of 3rd opposite party got very much shocked. Immediately, he contacted 3rd opposite party through mobile on 14.11.2013 at about 9.40 pm, the 3rd opposite party send SMS to the complainant. But there is no response from the 2nd and 3rd opposite party. In spite of repeated demands day by day the opposite parties were giving false assurance instead of sending product of dealership. The opposite party 2and 3 were not acting as per the agreement with the complainant and thereby incurred heavy loss. Then, he issued the legal notice on 13.01.2014 to the 1st opposite party and 2nd opposite party and the same was received by the opposite parties. The 2nd opposite party sent reply on 22.01.2014 to the complainant and the same is not satisfied. Hence, he issued the rejoinder notice on 21.02.2014 to the 1st and 3rd opposite parties. The 1st and 2nd opposite parties received the notice while the 3rd opposite party notice was returned. The 1st and 2nd opposite parties have given assurance to the complainant that they should pay Rs.1,00,000/- to the complainant. Since the opposite parties have not acted upon as per agreement the complainant has suffered much mental agony which leads to the deficiency of service of the opposite parties. Hence this complaint is filed.
5. The contention of written version of the 2nd opposite party and adopted by the 1st opposite party are briefly as follows:-
The complaint is not maintainable either on facts or on law and the complaint is liable to be dismissed in limini. At the outset, 1st and 2nd opposite party denies the entire allegations stated in the complaint save except those that are specifically admitted herein. The 2nd opposite party is the Managing Partner of Tamil Nadu Dairy Foods and is involved in the business of Amirtha brand or ice cream and the address shown in the 1st opposite party is the Tiruchy Depot address of the 2nd opposite party and which has already been closed and the complainant has absolutely no connection with the 1st opposite party. The Marketing Manager one Mr.Kumar and Mr.Govindaraj explained the varuous schemes and offers of the opposite parties are the cooked up story of the complainant.
6. The said Mr.Rajendiran was only a temporary outsourcing commission agent involved in creating dealership point to our company products and who has not created any dealership point for us for nearly two years and the whereabouts of the said Mr.Rajendiran is not known to the 2nd opposite party.
7. The 2nd opposite party submits that the complainant had paid Rs.30,000/- vide Indian Overseas Bank Demand Draft bearing No.698163 dated 08.04.2013 towards Dealership and Freezer Deposit and for which the 2nd opposite party has issued a receipt on the same date bearing No.3300 and so that the 2nd opposite party has not received any Demand Draft as alleged by the complainant and the complainant is strictly to prove the same and the 2nd opposite party has not sold the freezer to the complainant at any point of time and the money received is only a deposit for dealership and for the freezer.
8. That, after receipt of the deposit amount the 2nd opposite party and the complainant Smt.Kalpana Ravichandiran entered into a dealership agreement and the 2nd opposite party supplied a (Eutectic) 500 It freezer along with advertisement board and other materials and ice cream worth of Rs.10,000/- in all amounting to Rs.50,000/- at concessional rate of dealership and freezer deposit of Rs.30,000/-. The 2nd opposite party never sold the Freezer to the complainant which is mentioned as Energy Saving Defreeze in the agreement should be strictly proved by the complainant.
9. That even if assumer for a moment that the complainant has really incurred heavy electricity expenses, the complainant is always at liberty to return the freezer to the 2nd opposite party and could have very well got the refund of the same but the complainant did not come forward to do so for reasons better known to her. The complainant had deliberately and wantonly failed to file the agreement before the Forum which itself would clearly elucidate the true facts and the cunning nature of the complainant.
10. That, in fact the complainant violated the terms and conditions of the business agreement and misused the freezer to her own whims and fancies and the complainant could not give proper business even in spite of the fullest cooperation of the 2nd opposite party. As far as the alleged SMS exchange between the complainant and Mr.Rajendiran the 2nd opposite party has absolutely no role as it is purely the personal matter between them. The 2nd opposite party further questions that why the complainant had handed over the ship key to the said Rajendiran and has the complainant bothered to inform the 2nd opposite party regarding handing over of the shop key?
11. The alleged inspection of the M.D to the complainants shop is not true. The complainant has not filed any documentary evidence to establish her alleged claim. Whereas the act of the 2nd opposite partys company will be strictly in accordance to law and so the claims of the complainant is not true, genuine and bona fide and the 2nd opposite party is not responsible or liable of any of the loss sustained by the complainant.
12. The 2nd opposite party wonders that if the complainant is not really interested in continuing with the dealership of the 2nd opposite party products the complainant could have very well returned the freezer and taken back the deposit rather the complainant is using the 2nd opposite party freezer for a different business and is making money and thereby caused great loss to the 2nd opposite party company and the complainant is liable to pay the balance of Rs.20,000/- towards with accrued interest. There is no cause of action for the complaint. That the complainant ahs not come to this Forum with clean hands and so the complainant is liable to be dismissed.
13. In order to prove the case, on the side of the complainant, the proof Affidavit is filed as his evidence and Exhibit A1to A12 were marked. While so, on the side of the 1st and 2nd opposite parties, the proof Affidavit submitted for his evidence and Exhibit B1and Exhibit B2 are marked.
14. At this juncture, the point for consideration before this Forum is:-
1. Whether there is any deficiency of service on the party of the opposite
parties as alleged in the complaint?
2. To what other reliefs, the complainant is entitled to?
15. Written arguments have been filed on the side of the complainant and
1st and 2nd opposite party and oral arguments adduced by both sides.
Point No:1:-
16. Regarding this point, the complainant is having bounden duty to prove the deficiency of service against the opposite parties as alleged. Therefore, it is the prime duty of this Forum to decide as to whether the complainant has proved the allegations made in the complaint with proper evidence beyond reasonable doubt. First of all, on going through the evidence of the complainant adduced by means of Proof Affidavit and documents, it is learnt that the opposite party has issued dealership evaluation form (Ex.A1) to the complainant and in turn the complainant has given Demand Draft of the Indian over Seas Bank Ex.A2 and for the same the opposite party entered into an agreement to supply Udelict defreeze 500ltr. 1No, main board and side board of Rs.10,000/- on 08.04.2013. It is further stated that as per the terms of the agreement Freezer must save energy but in fact the freezer will not save energy and so that the same was informed by the complainant to the 2nd opposite party and thereafter on advice given by the 1st and 2nd opposite parties the complainant was running the freezer and sold Ice Cream. But after 3days when the complainant handed over the key to the 3rd opposite party and went to native place and after 3days it is informed by the neighbor that the 3rd opposite party removed all the things in the shop and taken to their office and the same was informed to the complainant and for which the complainant got very much shocked.
17. It is further deposed that, since the complainant got chest pain, he was admitted in the Sri Ramachandra Hospital and after discharge when the complainant informed the 3rd opposite party by means of SMS on different date but the 2nd and 3rd opposite party not acting as per the Ex.A5 and therefore the complainant had issued a legal notice Ex.A6 to the opposite party and the acknowledgment for the same are marked as Ex.A7 and Ex.A8 and reply notice Ex.A9 and Rejoinder Notice by the complainant to the opposite party is marked as Ex.A10 and acknowledgement for the same are marked as Ex.A11 and Ex.A12. In spite of Rejoinder Notice to the opposite party has not come forward to comply the demand for causing mental agony and financial loss which is leads deficiency of service on the part of the opposite parties.
18. Whereas, on the side of the opposite parties it is narrated in their evidence, the 2nd opposite party has not received any Demand Draft as alleged by the complainant and the complaint is strictly to prove the same and the 2nd opposite has not sold the freezer to the complainant. Further, it is enlightened that in fact the complainant only violated the terms and conditions of the business agreement and misused the freezer to her own whims and fancies and in respect of the SMS exchange between the complainant and Mr.Rajendiran. The 2nd opposite party has absolutely no role and thereafter, the dealer ship has been cancelled and the said document is marked as Ex.B1(s) and to show that the other dealers have been running the business in well manner and for which Ex.B2(s) is marked. It is further learnt that in fact the complainant only caused financial loss of Rs.20,000/- to the opposite parties and thereby no deficiency of service committed by the opposite parties.
19. At this juncture, on careful perusal of the rival submissions putforth on either side, it is crystal clear that it is an admitted fact that the agreement was executed between the complainant and opposite parties regarding running of the Ice cream bar on supply of Udelict defreeze 500ltr.1No main Board and side Board on 08.04.2013. Further, it is seen as per the terms and agreement, freezer must save energy but actually the freezer will run nearly 13 unites daily, for which Ex.A4 has been marked. When the complainant informed the same to the 2nd opposite party and he agreed to pay the difference of tariff and therefore on the advice of the 2nd and 3rd opposite parties the complainant going on running the freezer and sold Ice cream. In such circumstances the 3rd opposite party had removed all the things of shop and taken to their office in the absence of the complainant and the same was brought to the knowledge of the complainant by his neighbor. Such act of the opposite parties is against the alleged agreement and caused much inconvenience and financial loss to the complainant. In such circumstances after returning from the hospital, the complainant contacted the 1st and 2nd opposite party by way of SMS on different dates but the same has not been responded by the opposite parties. Thereafter, there was an exchange of notices between the parties.
20. At this point of time, the main point to be decided by this Forum as to whether it is true that the complainant had paid Rs.30,000/- to the opposite parties. In order to show that the complainant produced Ex.A2 Demand Draft in favour of the 2nd opposite party this is an admitted fact. Further, it is seen that the 2nd opposite party himself admitted in his written version about the receipt of the Demand Draft and for which 2nd opposite party has issued the receipt. At the same it is a very strange to say that the 2nd opposite party has not received any Demand Draft as alleged and the same to be proved by the complainant. In fact, from his own version, it is crystal clear that the receipt for the Ex.A2 and that to name of the 2nd opposite party is very clear. If it is so, it is not necessary to prove the same as if the admitted fact need not be proved. Therefore such contention raised by the opposite parties hold not good and the same can be rejected.
21. Furthermore, on careful perusal of the written version it is categorically stated that even assured for the moment that the complainant has really incurred heavy electricity expenses, the complainant is always at liberty to return the freezer to the 2nd opposite party but the complainant did not come forward to do so which clearly reveals the fact that there is some heavy electricity expenses have been incurred by the complainant on using the freezer supplied by the opposite parties has to be kept in mind.
22. Such being so, it is pertinent to note that the other contentions raised by the opposite parties in his written version are no way useful to the opposite parties case and thereby the same need not be considered.
23. In the light of the above facts and circumstances, it is crystal clear that without any proper intimation to the complainant, the 3rd opposite party who is the Marketing Manager had removed all the things of the shop and taken to their office with the knowledge of 1st and 2nd opposite party had certainly caused mental agony and financial loss to the complainant which clearly leads to the deficiency of service on the part of the opposite parties and the same has been proved by the complainant through relevant and acceptable evidence. Thus the point No.1 is answered accordingly.
Point No.2:-
24. On the evidence produced by the side of the complainant, there is no dispute in respect of the deposit of Rs.30,000/- by the complainant to the opposite parties as per the agreement was executed between them and during the business period nearly within 3 days the 3rd opposite party has taken all things from the shop of the complainant which certainly caused financial loss and mental agony and the same has to be compensated with reasonable amount is just and proper. Hence, as per the decision taken in point No.1 the complainant is entitled for the refund of deposit amount of Rs.30,000/- with reasonable compensation and with cost. Thus the point No.2 is answered accordingly.
In the result, this complaint is allowed in part. Accordingly, the opposite parties1 to 3 jointly and severally are directed to refund the deposit amount for a sum of Rs.30,000/-(Rupees Thirty thousand only) to the complainant and to pay a sum of Rs.10,000/- (Rupees ten thousand only) towards compensation for causing mental agony and monetary loss due to the deficiency of service committed by opposite parties 1 to 3 and along with cost of Rs. 5,000/-(Rupees Five thousand only) towards litigation expenses. Total Rs.45,000/- (Rupees Forty Five thousand only) to the complainant
The above amount shall be payable within one month from the date of receipt of this copy of the order, failing which, this said amount shall carry interest at the rate of 9% per annum till the date of payment.
Dictated by the president to the steno-typist, transcribed and computerized by him, corrected by the president and pronounced by us in the open Forum on this 24th September 2018.
-Sd- -Sd-
MEMBER PRESIDENT
List of documents filed by the complainant:-
Ex.A1 | 10.04.2013 | Dealer Evaluation form | Xerox |
Ex.A2 | 08.04.2013 | Cheque No. 698163 | Xerox |
Ex.A3 | 25.11.2013 | Hospital discharge summary | Xerox |
Ex.A4 | | EB white card | Xerox |
Ex.A5 | | Amirtha ice cream pamphlet | Xerox |
Ex.A6 | 13.01.2014 | Legal Notice | Xerox |
Ex.A7 | 17.01.2014 | Acknowledgement card | Xerox |
Ex.A8 | 17.01.2014 | Acknowledgement card | Xerox |
Ex.A9 | 22.01.2014 | Reply Notice | Xerox |
Ex.A10 | 21.01.2014 | Rejoinder Notice | Xerox |
Ex.A11 | | Acknowledgement card | Xerox |
Ex.A12 | | Acknowledgement card | Xerox |
List of documents filed by the opposite parties:-
Ex.B1 | | Dealer cancellation settlement | Xerox |
Ex.B2 | | Dealers letter | Xerox |
-Sd- -Sd-
MEMBER PRESIDENT
