Mr. SARAT CHANDRA PANDA, MEMBER
The Complainant, being an educated Ex-Army service man and law abiding citizen of India has filed this case alleging deficiency-in-service by the O.Ps, where O.P No.1 is the Owner of Pahadi (Pahari) Enterprises situated at Chandaneswar, Balasore and authorized Dealer/ Distributor of O.P No.2 and O.P No.2 is the Digital wall tiles sunfield company Situated At- Old Ghuntu Road, Morbi, Gujrat-363642.
The conspectus case of the Petitioner succinctly may be stated here that the Complainant had purchased Sunfield Digital wall tiles from O.P No.1 on 12.11.2014 vide Cash Memo No.1386. The TIN No. of O.P No.1 is 21103800743. Total purchase was for Rs.14,206/- (Rupees Fourteen thousand two hundred six) only, out of which wall tiles (Atom 2070L) for 22 boxes and wall tiles (Sun Field) for 14 boxes @ Rs.398/- and Rs.325/- per box respectively, as against the M.R.P (Maximum Retail Price) of Rs.280/- and Rs.220/- per box as shown on cover page of respective wall tile box/ packet. The O.P No.1 forcibly demanded the payment as per the cash memo; which was much higher than the M.R.P, getting no other way the Complainant paid the amount, but opposed to it. Therefore, the Complainant informed the same matter in the nearest Police Station (Chandaneswar Outpost) in writing and obtained Station diary No. GDE No.143, dt.12.11.2014. The A.S.I of the said Police Station checked the items and bills and noted in his diary and advised the Complainant to take shelter before this Forum. Thus, the O.P No.1 has taken excess amount of Rs.4,066/- (Rupees Four thousand sixty six) only than that of actual M.R.P for the above said items, from the Complainant. For completion of his construction work, the Complainant had approached the O.P No.1 for supply the same tiles in its M.R.P price, but the O.P No.1 refused to deliver the same. Due to non-availability of the said design tile, the Complainant was compelled to finish his construction work by another design tile, for which he has sustained loss towards his mental certification. The Complainant did not get any relief from the O.Ps, even after several approaches/ rigorous follow-ups made by the Complainant in the matter. The above noted action of the O.P No.1 is not only a sheer negligence in service/ deficiency-in-service but also a complete and absolute unfair Trade practice on his part within the meaning and definition of the C.P Act. Due to above noted negligence in service/ deficiency-in-service/ unfair trade practice on the part of O.P No.1, the Complainant was/is undergoing much mental agony and harassment.
Prayer for refund of Rs.4,066/- (Rupees Four thousand sixty six) only with interest and compensation for mental agony and cost of litigation.
On perusal of documents filed by the Complainant, it is noticed that:-
1. The Complainant has filed copy of station diary report dt.12.11.2014 informing the above said matter to the A.S.I of Police, Chandaneswar Outpost, the day the Complainant purchased the above said items from O.P No.1.
2. The E-mail message copies on dt.14.11.2014, 19.11.2014 and 30.11.2014 filed by the Complainant revealed that the Complainant had intimidated the matter to O.P No.2, Commercial and Sales Tax Officer, Balasore and the Collector and District Magistrate, Balasore.
3. Three copies of photo taken by the Complainant from cover of tile boxes / packets and filed thereof it is revealed that the M.R.P is Rs.280/- for Atom-2070L and Rs.220/- for Sun field 116L and Rs.116 HL respectively, as claimed by the Complainant in his complaint filed.
4. Cash memo No.1386, dt.12.11.2014 issued by O.P No.1 is ascertained regarding the purchase of the said wall tiles by the Complainant.
The O.P No.2 neither have presented personally nor have represented through their Advocates in the case, hence the O.P No.2 is set ex-parte on 20.04.2015.
Written version filed by the O.P No.1 through his Advocate, where they have denied regarding the maintainability, jurisdiction, deficiency-in-service as well as its cause of action.
However, the factual matrix of the present case is that the O.P No.1 has a Hardware and sanitary fittings shop at Chandaneswar of Dist- Balasore. As per demand of its Customer, the O.P No.1 used to sell ceramic glazed tiles of different Companies, make, designs, size and colours to its different Customers.
Other good many retail and wholesale Counter/ shops also used to sell ceramic glazed tiles of different make, designs, size and colours of different Companies including of "Sun field" company to their respective Customers in the same locality/ district.
That it will be apposite and appropriate to note here that at no point of time, the O.P No.1 used to collect/ take any higher amount, than the M.R.P in respect of any goods sold, from any Customer/ Complainant.
In most of the times, the O.P No.1 having been engaged for some other work/ assignment entrust/ engage his employees to manage his business and thereby such employees used to provide money receipts/ cash memos etc. to the different Customers, who has/ had absolutely no basic and fundamental ideas about the purchase price and M.R.P of any goods/ commodities, being sold to different Customers. The O.P No.1 has instructed/ directed to his employees to verify/ handle the matter carefully in as much as to peruse the connected documents, but occasionally due to the bonfide mistake much pressure of work/ busy schedule in as much as for other ancillary reasons, the same was/is being overlooked by them.
In the absence of copy of cash memo, being destroyed by white ants and rats, the O.P No.1 is not in a position to give the appropriate reply thereof.
Information to the local police by the Complainant is being emphatically denied by the present O.P, as the same was not within the knowledge of O.P.
At no point of time, the Complainant has brought the matter-in-dispute to the notice of this O.P.
There is absolutely neither any deficiency of service nor any unfair Trade practice on the part of the O.P, therefore the present case as against the O.P may kindly be dismissed with cost U/s.26 of C.P Act.
Through factual matrix of the written version filed by the O.P No.1, where he has admitted that:-
1. The O.P No.1 used to sell ceramic glazed tiles of different Companies including different hardware and sanitary fittings, for which it is observed that "Sun field ceramic glazed tile" is one among them.
2. There are also other good many establishment in the locality/ district, who also used to deal with ceramic glazed tiles including "Sun field" company. But, in the instant case, the cash memo No.1386, dt.12.11.2014 for Rs.14,206/- (Rupees Fourteen thousand two hundred six) only pertains to O.P No.1 as filed by the Complainant.
3. The O.P No.1 has not taken/ collected any higher amount than the M.R.P, but the O.P No.1 has taken/ collected much higher amount from the Complainant as per above said cash memo filed by the Complainant.
4. The O.P No.1 used to remain absent not only from his sale counter/shop but also from his station as per his busy schedule. He entrusts his entire above said business to the employees engaged in his establishment. Moreover, these employees have absolutely no basic and fundamental ideas about the purchase price and M.R.P of any goods/ commodities, being sold to different Customers. But, from this, it is also not ascertained that on which basis these employees sell different items from this establishment to their Customers in general and at what price in particular.
5. The copy of original bill is misplaced in the voluminous records and some of them are destroyed by white ants and rats. But in the instant case, date of cash memo is 12.11.2014 and the O.P No.1 has signed in the vakalatnama on 11.03.2015, that means, the O.P No.1 was in the knowledge of filing of this case prior to 11.03.2015. It is also not convinced that how the present O.P did not take much care for preservation of this record for 3 to 4 months time. It is also pertinent to mention here that TIN Number is allotted to the O.P No.1 by the concerned Sales Tax Department and the present records are not preserved by him with regard to Sales Tax return as required by the concerned department.
6. The knowledge about information to the local police by the Complainant is denied by the present O.P. But copy of station diary report dt. 12.11.2014 reveals that the Complainant has informed the matter in writing to Local Police Officials being harassed by the O.P No.1 and caused mental agony to the Complainant.
7. At no point of time, the Complainant has brought the matter to the knowledge of the present O.P. As per prayer clause made by the Complainant, where he has prayed for refund of excess amount of Rs.4,066/- from O.Ps. As per complaint filed by the Complainant and the O.P No.1 has taken excess amount from this Complainant, how/ why the Complainant will knock the door of others leaving the O.P No.1. This portion of written version filed by O.P No.1 is also not convinced.
8. Though not concluded, alternatively, it is being pleaded that, had it been brought to the knowledge and notice of this O.P, at appropriate time, the same could have been redressed, in its true perspectives. Thus, it is observed that there is some sort of lacuna with the O.P No.1.
Thus from the observations as narrated above, it is concluded that there is deficiency-in-service and unfair trade practice rendered by O.P No.1 to the Complainant and the Complainant is also harassed, caused mental agony by the O.P No.1 also. Hence, the Order:-
O R D E R
Having regards to our judgment reflected above, the complaint is allowed with direction to the O.P No.1 to refund the excess amount taken by him of Rs.4,066/- (Rupees Four thousand sixty six) only to the Complainant within 30 days of communication of this order. Further, the O.P No.1 is also directed to pay a sum of Rs.5,000/- (Rupees Five thousand) only to the Complainant, being the amount towards compensation for mental agony and harassment and cost of litigation within the above said period.
Pronounced in the Open Forum on this day i.e. the 27th day of September, 2016 given under my Signature & Seal of the Forum.
