FINAL ORDER/JUDGEMENT
SHRI REYAZUDDIN KHAN,MEMBER
This is an application U/S..35 of the C.P. Act, 2019.
The case of the complainant in brief is that the complainant had purchased a mobile software product from the OP company M/S Brazil Business centre to sell in the market against commission. To sale of such software the complainant had entered into an agreement on 19.11.2018 with the OP.The complainant stated that as per terms and condition of the said agreement if the said software is not accepted in the market by the customer,the complainant can return the said software and the entire money would be refunded.The complainant further stated that due to difficulties faced in marketing of the product of the OP and non supportive of sales in the market from the OP,the complainant decided to returned the said software for this he send an email on 29.01.2019 stated the entire facts.The OP replied the mail on the same date 29.01.2019 and assured for settlement of account in 60 days as per policy.Since then the complainant did not get any response from the OP.The complainant again send an email dated 30.04.2019 and asked to resolve the issue and refund the entire money.A legal notice was also served on 22.12.2021 through the Ld.Advocate but the OP did not respond the said notice. OP failed and neglected to act in terms of the agreement dated 19.11.2018.There is deficiency of service on the part of the OP.Finding no other option the complainant filed the petition in this commission and prayed for direction to OP to act in accordance with the agreement dated 19.11.2018 for refund of the goods to the tune of Rs,7,50,000,along with compensation of Rs,5,00,000 for mental agony and harassment and litigation cost.
Despite notice through Paper publication dated 20.10.2023 in the ‘Aajkal” OP has not entered appearance and failed to file the WV in the stipulated period and as such the case do proceeded ex-parte against the OP.
Points for Determination
In the light of the above pleadings, the following points necessarily have come up for determination.
1) Whether the OP is deficient in rendering proper service to the Complainant?
2) Whether the OP has indulged in unfair trade practice?
3) Whether the complainant is entitled to get relief or reliefs as prayed for?
Decision with Reasons
Point Nos. 1 to 3 :-
The above mentioned points are taken up together for the sake of convenience and brevity in discussion. We have travelled over the documents placed on record. The complainant has filed his BNA and Evidence supported by affidavit. The complainant had purchased a software from the OP to sell in the market against commission basis.Both the complainant and the OP entered into an agreement on 19.11.2018 and in terms of agreement the complainant is entitled to return the said software of the OP if it is not accepted by the customer in the market and the OP should refund the entire products to the tune of Rs,7.50,000/.
Here it is admitted fact that the product was purchased by the complainant which valued at Rs,7,50,019/ and later complainant returned the said product(software) on 24.06.2019 against receipt.In the email dated 29.01.2019 the OP assured the complainant that they should settle the account in 60days as per policy but failed to their commitment.
Further,as per agreement dated 19.11.2019 Article V of 3 & 5 clearly states the terms and conditions which the OP has completely violated and is a sufficient case of breach of contract.The documents on record shows that the complainant tried his level best to settle the issue but the OP neglected and not responded the genuine grievance of the complainant.
In view of the facts stated above we are of the opinion that the complainant has been able to make out the case against the OP and accordingly deficiency in service and unfair trade practice on the part of the OP have been established.
The complainant was unable to utilise and sale the product for several months only because of non cooperation from OP side which results deficiency in service on the part of OP.The complainant has suffered mental agony, pain and harassment. It is settled principle of law that the compensation should be commensurate with loss of suffered and it should be just, fair and reasonable and not arbitrary. To get relief, the complainant has to wage a long drawn and tedious legal battle.In these circumstances the complainant is entitled to get compensation.
Hence,
Ordered
That the complaint case be and the same is allowed ex parte against the OP.
- OP company M/S Brazil Business Centre is directed to refund the paid amount of Rs,7,50,000 (Rupees Seven Lakh Fifty Thousand)only the value of the product with a litigation cost of Rs,5,000 (Rupees Five Thousand)only to the complainant.
- OP company M/S Brazil Business Centre is directed to pay Rs,20,000 as compensation for mental agony and harassment to the complainant within 60 days from the date of the order.
- Complainant put the order in execution, if the OP transgresses to comply the order according to Consumer Protection Act, 2019 after the expiry of 60 days.
