28/03/16
HON’BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT
This Appeal is directed against the judgment and order passed by Learned District Forum, Kolkata, Unit-I in complaint case no.339 of 2012 allowing the case on contest without cost against OP No.2 and ex parte with cost against OP No.1. OP No.1 was directed to pay the compensation of Rs.20,000/- and litigation cost of Rs.7,000/- to the Complainant within 45 days from the date of communication of the order, in default the interest @ 10% p.a. shall accrue over the said amount till realisation.
The case of the Complainant/Respondent, in short, is that he purchased an A.C. machine on 21/05/12 from the OP at a consideration of Rs.23,000/-. At the time of purchase it was told by the OP No.2 that the machine would be delivered at the residential address of the Complainant and will be installed by OP No.1 taking installation charge. Thereafter on 22/05/12 the Complainant received a telephone call and the caller disclosed his name N. Mallick and identified himself as Service Agent of OP No.1. On 24/05/12 at about 10.30 a.m. two persons came to the residence of the Complainant to install the A.C. machine. The technicians demanded Rs.3,300/- beyond the verbal agreement of Rs.2,000/-. For the exorbitant claim regarding installation the Complainant wrote letters to the OP, but no reply was given by the OP. Under the circumstances, the complaint was filed before the Learned District Forum.
The Learned Counsel for the Appellant has submitted that the Complainant has alleged about verbal agreement by virtue of which the installation charge was Rs.2,000/- and the Complainant allegedly paid Rs.3,300/-. It is contended that there is no document to show that installation charge was Rs.2,000/- and instead Rs.3,300/- was claimed. It is submitted that the case was decided ex parte against the Appellant and the Appellant got no opportunity to contest the case.
The Complainant/Respondent in person submitted that there was verbal agreement for payment of Rs.2,000/- towards installation charge, but the technicians claimed Rs.3,300/- and no receipt was issued by the technicians receiving Rs.3,300/- from him. It is submitted that the present Appellant was served with notice in the complaint case and in spite of that did not contest the case. It is contended that the Complainant wrote letters on 28/05/12 and 18/06/12 to the OP/Appellant, but not reply was given.
The Learned Counsel for the Respondent No.2 has submitted that the Complainant accepted the order passed by the Learned District Forum and no Appeal was preferred. It is contended that as against Respondent No.2 no direction was passed by the Learned District Forum.
We have heard the submission made by both sides. Admittedly, there was no written document for payment of Rs.2,000/- towards installation charges and the alleged payment of Rs.3,300/- by the Complainant. But the fact remains that the Complainant after the installation of the A.C. machine wrote letters dated 28/05/12 and 18/06/12 stating the entire facts, but no reply was given by the OP. It appears that on 16/07/14 the OP No.1 sent a letter to the District Forum authorizing Mr. Ismail Khan, Branch Service In-Charge, Panasonic India Pvt. Ltd., Kolkata to appear before the Forum on behalf of OP No.1. But the OP No.1 did not contest the case. The price of the machine was Rs.23,000/- and the Learned District Forum directed the OP No.1 to pay Rs.20,000/- as compensation and Rs.7,000/- as litigation cost. Having heard the submission made by both sides and on perusal of the papers on record, we are inclined to modify the impugned judgment and order as hereunder.
The Appellant is directed to pay Rs.5,000/- towards compensation and cost to the Respondent/Complainant within 45 days from this date failing which simple interest @ 9% p.a. shall accrue on the said amount from the date of default till realisation. Other directions passed by the Learned District Forum are set aside. The impugned judgment stands modified accordingly.
