Jammu and Kashmir

Jammu

CC/30/2018

SHAM LAL - Complainant(s)

Versus

PRITHVI SINGH - Opp.Party(s)

NARESH KUMAR SHARMA

28 May 2018

ORDER

DISTRICT    CONSUMER     DISPUTES   REDRESSAL  FORUM, JAMMU

                (Constituted under J&K Consumer Protection Act,1987)

                                                         

 Case File  No:                 372/DFJ         

 Date of  Institution   :  22-12-2017

 Date of Decision      :    28-05-2018

 

Sh.Sham Lal,

S/O Late Sh.Gian Chand,

R/O H.No.36,Near Company Bagh,

Canal Road,Jammu.

                                                                                                                        Complainant

        V/S

Sh.Prithvi Singh,

S/O Bachan Singh,

R/O H.No.4 Chaki Wali Gali,

Near Power House,Janipur,Jammu.

                                                                                                                        Opposite party

CORAM:-

                  Khalil Choudhary   (Distt.& Sessions Judge)   President

                  Ms.Vijay Angral                                                       Member

                  Mr.Ghulam Sarwar Chauhan                                Member.

 

In the matter of: Complaint under section 10 of J&K Consumer

                              Protection Act 1987.

 

Mr. Naresh Kumar,Advocate for complainant, present.

 Nemo for OP.

 

                                                            ORDER

               Facts relevant for the disposal of complaint on hand are that the complainant is self-employed and running off-set printing press under the name and style of M/S Durga Emergency Printer for earning his livelihood,he approached the concerned shop of OP i.e.Bharat Engineering Ltd.situated at Shop No.27,Yard No.5 Transport Nagar,Jammu for purchasing a Generator Set for running his offset printing press in the month of October,2014 so that he run his printing press smoothly in case of frequent power failures.According to complainant,OP assured him that a Kirloskar Company Generator Set shall be supplied and the cost of generator was Rs.35,000/-as the cost of said generator was not affordable,as such he availed the loan facility from Grameen Bank,Branch Sangrampur,Jammu and the bank issued the same through cheque for an amount of Rs.35,000/-dated 21-10-2014 and the same was handedover to OP against which the OP issued bill/cash memo bearing No.385,(Copy of bill is annexed as Annexure-A). Allegation of complainant is that the abovesaid cheque stands cleared by said bank in favour of OP on,29-10-2014 vide payment order No.080703 and despite receiving payment till date neither the generator was supplied to him nor the payment was paid back. Allegation of complainant is that he repeatedly approached OP either to deliver the said generator or to make payment, but OP paid no heed to his requests. Constrained by the act of OP complainant served legal notice upon OP,but nothing was done by OP and this act of OP constitutes deficiency in service. Therefore, complainant seeks direction to OP for payment of Rs.35000/-as cost of generator set  and in addition also prays for compensation of Rs.70,000/-,including litigation charges .

                       Notice were sent to the OP alongwith copy of complaint through registered cover with acknowledgment due and as per record the notice was received by the OP, but the OP did not choose to represent the case in this Forum, either to admit the claim of complainant or to deny the same within stipulated period provided under the Act, so the right of OP to file written version was closed, vide order dated,23-02-2018.

            The complainant adduced evidence by way of duly sworn his own affidavit and affidavits of Vinay Kumar and Ankush,respectively.Complainant has also placed on record copy  of bill and copy of legal notice.

                 We have perused the case file and also heard learned counsel for complainant at length.

               Briefly stated facts of the case are that complainant is self-employed and running off-set printing press under the name and style of M/S Durga Emergency Printer for earning his livelihood,he approached the concerned shop of OP i.e.Bharat Engineering Ltd.situated at Shop No.27,Yard No.5 Transport Nagar,Jammu for purchasing a Generator Set for running his offset printing press in the month of October,2014 so that he run his printing press smoothly in case of frequent power failures. According to complainant,OP assured him that a Kirloskar Company Generator Set shall be supplied and the cost of generator was Rs.35,000/-as the cost of said generator was not affordable, as such he availed the loan facility from Grameen Bank,Branch Sangrampur,Jammu and the bank issued the same through cheque for an amount of Rs.35,000/-dated 21-10-2014 and the same was handedover to OP against which the OP issued bill/cash memo bearing No.385. Allegation of complainant is that the abovesaid cheque stands cleared by said bank in favour of OP on,29-10-2014 vide payment order No.080703 and despite receiving payment till date neither the generator was supplied to him nor the payment was paid back. Allegation of complainant is that he repeatedly approached OP either to deliver the said generator or to make payment, but OP paid no heed to his requests.

                        The complainant in his own affidavit and  affidavits of Vinay Kumar and Ankush,respectively,have supported the averments of the complaint. There is no evidence on record produced by other side to rebut the case of complainant. So from perusal of complaint, documentary and other evidence produced by the complainant, it appears that the complainant has succeeded in proving his case as narrated by him in the complaint. The complaint is fully supported by the affidavit of complainant, and affidavits of Vinay  Kumar and Ankush,respectively,so, in the given circumstances of the case, and in view of the evidence on record, there is no reason to disbelieve the averments of complainant in complaint. This is a case of deficiency in service. The OP despite service of notice, sent by the Forum through registered cover has not taken any action to represent the case before this Forum, either to admit the claim of complainant, or to deny it, so there is no reply filed by the OP in this complaint and there is also no evidence in rebuttal. The present case of the complainant is covered by Section 11 2(b) (ii) of the Consumer Protection Act, 1987, which provides that in a case, where the OP omits or fails to take any action to represent the case within the time given by Forum, in that situation, the Forum shall settle the consumer dispute on the basis of evidence brought to its notice by the complainant. Sub-clause (ii) of the Section 11, clearly provides that even where the OP omits or fails to taken any action to represent the case before the Forum, the dispute has still to be decided on the basis of evidence brought to its notice by the complainant.

                  In addition complainant has also supported the averments contained in the complaint by duly sworn his own affidavit and affidavits of Vinay Kumar and Ankush,respectively,which are corroborative of the facts contained in the complaint. Therefore, in the light of unrebutted averments contained in the complaint and documents on record, we are of the opinion that complainant successfully made out a case of deficiency in service by OP.

                      Therefore, in view of aforesaid discussion, the complaint filed by the complainant for redressal of his grievance is allowed and OP is directed to refund Rs.35,000/- to the complainant alongwith interest @ 7% per annum w.e.f.21-10-2014(from the date of receipt of cheque)till its realisaiton. Complainant is also entitled to compensation of Rs.20,000/-for causing unnecessary harassment and mental agony and litigation charges of Rs.10,000/-, respectively. The OP  shall comply the order, within one month, from the date of receipt of this order. Copy of this order be provided to both the parties, as per requirement of the Act. The complaint is accordingly disposed of and file be consigned to records after its due compilation.

Order per President                                                    Khalil Choudhary

                                                                                     (Distt.& Sessions Judge)

                                                                                            President

Announced                                                           District Consumer Forum

    28-05-2018                                                                       Jammu.

 

Agreed by                                                               

                                                                           

Ms.Vijay Angral                                              

 Member     

 

Mr.Ghulam Sarwar Chauhan

Member