DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KANDHAMAL, PHULBANI

                                                                                C.C.NO.47 OF 2017

Present: Sri Rabindranath Mishra            - President.

                 Miss Sudhiralaxmi Pattanaik   -  Member .

Smt Sunanda Panda, aged -47 years.

W/O: Sri Satyanarayan Panda At/PO- Masterpada

PS: Phulbani Town Dist: Kandhamal                                               ……………………….. Complainant.

                                Versus.

 Proprietor,Ankita Group

Plot No- 1258, Room No-4

Unit-9, Bhoisahi, Kharbel Nagar

Bhubaneswar Dist: Khurdha                                                         …………………………….. OPP. Parties.

For the Complainant: Self.

For the OPP. Parties: Sri Basanta Kumar Jena & his Associates.

Date of Order: 28-02-2018

                                                                            O R D E R

                                                The case of the Complainant in brief is that she had executed an agreement with the Opposite party on 25-02-2017 wherein the O.P agreed to supply Fly Ash Bricks Machine within 12 days from date of agreement. Accordingly she has paid Rs. 1, 30,000/- on 03-03-2017 by her financer Alahabad Bank, Phulbani through NPT and Rs. 1, 0000/- from another financer Andhra bank. Subsequently she had paid Rs. 80,000/- in cash to the O.P for transfer of the machine from BBSR to Phulbani. But the O.P failed to supply the said machine to the complainant though he had received Rs. 3,10,000 in total as advance from the Complainant. The rest amount shall be paid by the Complainant at the time of installation of machine as per the condition of the agreement. As the Opposite party failed to supply the machine in time to the Complainant, she demanded the O.P to refund the advance amount. On 22-05-2017 the O.P gave a cheque for Rs. 80,000/- but the said cheque was bounced due to insufficient of funds. So, the Complainant applied in the Consumer Counseling center, Phulbani for relief. The O.P failed to attend the consumer counseling center for which this case was referred to this forum. The Complainant claimed Rs. 3,10,000/- with interest from the O.P along with compensation of Rs. 1,90,000/- due to financial loss.

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                                                The case of the O.P as per his version is that the Agreement is void agreement and not enforceable in the court of law. The O.P never received Rs. 80,000/- from the Complainant towards transportation rather it has been paid towards full and final settlement of the disputes. The Complainant gave advance Rs. 2,30,000/- to the O.P for  purchase of the machine. As the agreement comes within the purview of contract Act, the dispute is purely civil in nature. The O.P had completed his part but the Complainant failed to perform her part. So, the O.P was compelled to sale the machine to a third party with lower cost. Then on repeated demand of the Complainant the O.P returned the advance amount and  issued a cheque for Rs. 80,000/-(Rupees Eighty thousand only) deducting loss of amount which has been acknowledged by the Complainant on a money receipt towards full and final settlement.

                                                The further case of the O.ps is that this Forum has no jurisdiction to entertain the complaint and the Complainant is not a consumer within the meaning of section 2(1) of the C.P Act due to the commercial purpose. Hence, it is submitted by the O.P to reject the complaint with heavy costs.

                                                We have gone through the complaint petition, the version filed by the Opposite party and the written argument submitted by the Advocate of the O.P along with some decisions. We have also gone through the Agreement and other documents filed by both the parties in this case. It is admitted by the O.P that he had received Rs. 2,30,000/- from the complainant towards advance amount to supply one Fly Ash Brick Machine. It is also admitted by the O.P that he had issued the cheque on 22-05-2017 for Rs. 80,000/- and subsequently Rs. 80,000/- in cash on 16-07-2017 against the written cheque bearing No 638871. It is also admitted fact that the O.P had not supplied any machine to the Complainant as per their contract.

                                                On verification of the documents it is seen that the Complainant had started an establishment by obtaining finance from the Allahabad bank of Phulbani being sponsored by the District Industries Center, Phulbani. In view of the above admitted fact it cannot be said that the Complainant is not entitled to get back her money which was received by the Opp. Party. It is well settled that the Consumer Fora is an alternative Forum established under Consumer Protection Act, 1986 to discharge functions of Civil Court. So, we are not agree on the submission of the learned Advocate of the O.P that the dispute is purely civil in nature. It is also well settled that the Consumer Forum is expected to adopt a constructive approach. The Act is a legislation for social benefit, meant to protect the interests of Consumers as decided by the Hon’ble National Commission in the case of Sanjaya Kumar Gupta versus Kebal Kishan Barma & others. (2014(3) CLT 408(NC). So we are not going to reject the complaint on the basis of hyper technicalities on the principle of natural justice.

                                                   Exit -3 is a certificate given by the District Industries Centre, Phulbani. It reveals from the document that the Complainant had completed training under Rural Self Employment Training Institute of the State Bank of India in the year 2016 before starting the said unit. So the Complainant availed service of the Opp. Party for the purpose of earning her livelihood by

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means of self-Employment and became a Consumer under the purview of C.P Act. As far as Exit-B, the Money Receipt dated 16-07-2017 for Rs. 80,000/- is concerned the O.P failed to prove the Receipt and the signature of the Complainant. In the open eye it can not be believed that the half signature reflected in the receipt is the signature of the Complainant. The Complainant also stated that the signature is not belong to her and it is created for the purpose of this case only.

                                              In the above circumstances it is clear that the O.P had received Rs. 3,10,000/- ( Three lakhs ten thousand) only from the Complainant to supply one Fly Ash Bricks Machine . But the O.P neither supplied the said machine nor refund her money which amounts to gross negligence and deficiency in service. Hence the Complainant is entitled to get back her money from the Opp. Party. Accordingly the C.C is allowed. The O.P is directed to refund Rs. 3, 10,000/- ( Rupees Three Lakhs Ten thousand ) only to the Complainant along with 10% interest per annum from the date of payment i.e 03-03-2017 till the date of payment within 30 days from the date of receipt of this order .

                                           The C.C is disposed of. Supply free copy of this order to both the parties at an early date.

                                                                                MEMBER                                                             PRESIDENT