This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite party to pay `22,600 as balance amount with 18% interest from 06.05.2011 and an amount of `10,000 as compensation together with the cost of these proceedings.

The case of the complainant in brief is as follows :  Complainant placed an order for 2400 litre closet cleaning liquid soap through telephone.  Opposite party asked to send `27,000 (Rupees Twenty Seven Thousand) and promised to give 500 Litre liquid soap in a week.  Accordingly opposite party sent `27,000 to opposite party’s account 67070798112 of State Bank of Travancore.  After receiving the amount deviating from the offer opposite party sent only 400 Ltr liquid soap on 20.06.2011.  Opposite party also sent 056 invoice.  Thereafter complainant demanded to send the balance quantity of liquid soap but he failed to send it.  Opposite party failed to supply the goods as agreed after paying the entire amount by the complainant.  Complainant contacted opposite party several times. But no use.  Hence legal notice was send on 03.11.2011 calling upon to refund the balance amount after deducting `4,400 the price of the article already supplied.  Opposite party did not respond yet.  Hence this complaint.

          Pursuant to the notice opposite party entered appearance and filed version denying the main allegations of complainant.  The contentions of opposite party in brief are as follows :  Complainant has been contacting the opposite party for the last 2 years in connection with the business.  All the time the opposite party asked him to come directly.  But he could not see him personally.  Even then opposite party supplied samples.  Complainant promised that after examining the same he will undertake the supply in Kannur District.  After that he demand 5000 Litre liquid soap at the price of rupees ten per unit in order to supply to Hotel and hospitals etc.  He also deposited in the account of opposite party `27,000 on 06.05.2011.  As per the order 5000 Ltr Liquid soap was prepared and asked complainant to send the balance amount before sending the article. But without depositing the amount he asked opposite party to send 400 Ltrs of Liquid soap and told him it is enough to send the balance after sending the balance amount. Though the complainant made enquiry several times with respect to sending the article and of balance amount, he was not ready to send the balance amount.  But complainant insisted to send the article on credit since it was highly necessitated.  Article was delayed to be sent since money has not been obtained.  Neverthless 2000 Ltrs liquid soap for the balance amount of complainant was send on 01.11.2011 by the vehicle No.E/8248 for which `2000 towards transport expense was also paid by the complainant.   This complaint is only because of the reason of not sending the article on credit.  There is no deficiency in service on the part of opposite party. Hence to dismiss the complaint. 

          On the above pleadings the following issues have been taken for consideration.

1.           Whether there is any deficiency in service on the part of opposite party?

2.           Whether the complainant is entitled to get relief as prayed for?

3.           Relief and cost.

The evidence consists of oral testimony of PW1, DW1, DW2, A1 to A4 and B1 to B4.

Issues No.1 to 3:

          Admittedly complainant deposited `27,000 in the account of opposite party and ordered for Liquid Soap @ `10 for unit.  Complainant alleges that he had given order for 2400 Ltr.  Opposite party contended that complaint ordered for 5000 Ltr and the said amount depositd on 06.05.11.  The case of the complainant is that after receiving the amount opposite party send only 400 Ltrs of Liquid Soap on 20.06.2011. Opposite party did not send the balance quantity of liquid even after repeatedly demanded.  Opposite party on the other hand contended that he had prepared 5000 Ltr Liquid Soap as per complainants demand but complainant did not send full amount before the delivery.  Even then, on the demand of complainant to send 400 Ltr by Sheraton Travels keeping the rest of the quantity after full payment, opposite party sent 400 Ltrs. But thereafter complainant has not sent the balance amount.  Opposite party further contended that even though balance amount has not been paid opposite party sent 2000 Ltr Liquid for the balance amount already deposited by complainant on 01.11.2011 as bill number 0162 and the complainant paid the transporting charge `2000 to opposite party.

          Ext.A1 receipt issued by SBI shows that `27,000 deposited in the account of Rajeevan on 06.05.2011.  Ext.A2 dated 20.01.2011 proves the delivery of 400 Ltr Liquid Soap @ `10 per unit for a price of `4500 including tax. Complainant adduced evidence by way of chief affidavit stated that though opposite party agreed to sent 500 Ltr Liquid soap every week opposite party altogether send only 400 Litres and then stopped.  Complainant further stated that opposite party’s contention that they had sent `2000 Ltr liquid soap is false.  PW1 denied it in the cross examination also.  Opposite party adduced evidence by way of affidavit that complainant demanded for 5000 Ltr Liquid Soap and thus the sample was sent.  Complainant received it with satisfaction and fixed price @ of `10 per unit.  Afterwards 400 Litre Liquid was send to complainant on 20/06/2011.  Thereafter opposite party made enquiry about balance amount and of sending of balance quantity liquid.   Opposite party further contented that he could not send the balance quantity of 4600 Ltr since complainant failed to send the balance amount and on realizing the fact that it would be delayed opposite party send 2000 Ltr liquid soap for his balance amount deposited on 01.11.2011.  He stated that it was send through his driver and `2000 was given by complainant towards transport charge.  Opposite party also stated that this complaint was filed since it was denied by opposite party to send balance 2600 Ltr liquid upon credit base.

          It is an admitted fact that complainant has deposited `27,000 and opposite party delivered 400 Ltr liquid soap @ `10.   DW1/opposite party deposed in cross examination that “Jithin sImSp¯t¸mÄ km[\w In«n F¶v t]scgpXn H¸n«v hm§n¨n«nÃ.”  That means that there is no endorsement for the delivery of 2000 Ltr Liquid soap as contended by opposite party.  DW1 again deposed that “Delivery \S¶Xmbn ImWp¶ bmsXmcp tcJbpw R§Ä kq£n¡mdnÃ.”  Opposite party could not produce any document to show that he had delivered 2000 Ltr Liquid soap to complainant.  DW2/ Jithin, who is claimed to be the driver of the opposite party adduced evidence that he had delivered 2000 Ltr liquid to complainant.  But he did not obtained any endorsement to show that complainant received such an article.  In usual course a company will deliver article only on such endorsement.  Moreover, it is also a question whether DW2 is the driver of the company or not?  What he has deposed in cross examination is that “Rm³ ss{UhÀ BsW¶pw I¼\nbpsS Poh\¡mc\msW¶pw ImWn¡p¶ tcJ I¼\nbnep­v.” But he has not produced any such document.  The document should have been produced since he was questioned on that aspect.   Moreover, opposite party did not stated this fact in version that 2000 Ltr Liquid Soap was send by Jithin.  The alleged delivery in the most important aspect to be proved.  Even the person by whom the delivery was done is not proved to be the employee of the company.  No endorsement was obtained from complainant to show that he has received the article.  Opposite party contended that he had prepared 5000 Ltr as per the order of the complainant.  There is nothing to show that such an order was placed by complainant.  But in the light of preparation of a bulk quantity if it was delayed to take as agreed, opposite party could have been sent a legal notice to take delivery of the article.  In the case in hand complainant send a lawyer notice stating the above said facts and calling upon to refund the balance amount.  Opposite party did not respond to the notice. Ext.A3 is the lawyer notice and A4 is the receipt and 4(a) acknowledgment.  Non reply of the legal notice has its implication that opposite party intentionally kept a diplomatic silence to be free from answering and explaining the true state of affair with respect to the subject matter under discussion.  Hence non reply of lawyer notice itself has to be considered as a deficiency in service on the part of opposite party.  There is no evidence to show that opposite party has delivered liquid soap more than 400 Ltr. It is not safe to conclude that opposite party has send 2000 Ltr liquid soap depending on the interested testimony of DW1 and DW2.  If it was delivered opposite party could have send reply to Ext.A3 legal notice send by complainant.

          However the available evidence goes to show that opposite party has sent only 400 Ltr liquid soap receiving `27,000. Hence we are of opinion that opposite party is liable to refund the amount after deducting price of 400 Ltr liquid.  Ext.A2 proves the price of 400 Ltr is `4500.  Hence opposite party is liable to refund `22,500 to complainant.  Complainant is also entitled to get an amount of `2000 as compensation and `1000 as cost of this proceedings.  Hence the issues No.1 to 3 are found in favour of complainant and order passed accordingly. 

          In the result, the complaint is allowed directing the opposite party to refund `22,500 (Rupees Twenty two thousand and five hundred only) together with `2000 (Rupees Two Thousand only) as compensation and `1000 (Rupees One Thousand only) as cost of this proceedings failing which opposite party is also liable to pay 10% interest for the amount of refund from the date of complaint till realization of the amount.   The complainant is at liberty to execute the order after the expiry of 30 days as per the Consumer Protection Act.

          Dated this the 3^rd day of November, 2012.

                   Sd/-                      Sd/-               Sd/-

               President               Member          Member

APPENDIX

Exhibits for the Complainant

A1. Receipt dated 06.05.2011.

A2.  Invoice dated 20.06.2011.

A3.  Copy of lawyer notice dated 03.11.11.

A4.  Postal receipt.

A4(a).  Acknowledgment card.

Exhibits for the opposite parties

B1.  Tax invoice from 2011 to 2012.

B2.  Tax invoice.

B3.  Copies of VAT return submitted by the Tax Department-2011-12.

B4.  Sales bills from 2011 to 2012.

Witness examined for the complainant

PW1.  Complainant

Witness examined for opposite party

DW1.  T.T. Joy

DW2.  Jithin P.V.

                                                                        /forwarded by order/

                                                                     SENIOR SUPERINTENDENT