IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
MURSHIDABAD , AT BERHAMPORE.
CASE No. CC No. 171/2017.
Date of Filing: Date of Admission : Date of Disposal:
12.10.2017 18.10.2017 29.08.2018
Anamika Roy
W/O Prakas Kr. Sarkar
25/65/1 Kshetra Hazra Lanw,
P.O & P.S.- Berhampore
Dist.- Murshidabad
Pin.-742101 …………… Complainant.
-vs-
- The Proprietor/Manager
B.P. Appliances, Ranibagan,
128 Pilkhana Road,
Swarnalata Apartment,
P.O+P.S- Berhampore
Dist.-Murshidabad
Pin.-742101
- Bajoria Appliances Pvt. Ltd.
20, Chinapark, Razarhat, Gopalpur
Kolkata-700157 .(WB) …........... Opposite Parties.
Cont. ……….…. 2
= 2 =
Complainant , In person …….… for Complainant
Sri Sougata Biswas , Advocate .……… for Opposite Party
Present : Sri Asish Kumar Senapati …. ……… President.
Smt. Chandrima Chakraborty …. .…. Member.
J U D G M E N T
Chandrima Chakraborty, Member.
Interference of this Forum has been sought for by the Complainant, contending gross negligence, deficiency and unfair trade practice in rendering service towards the Complainants by the Opposite Parties.
In epitome, the fact stated in the complaint, is that, the Complainant had booked to purchase a Kutchina Chimney in the 1st half in the year 2017, in her flat which was under construction, from the Opposite Party no. 1 on condition that at any time within one year from the date of such Booking the Complainant would install the said Chimney. The total cost of the said Chimney was of Rs. 25,990/- only out of which the Complainant had paid a sum of Rs. 8,000/- only as advance towards the Opposite Party No. 1 by a cheque of UBI Bank. It was agreed that further payment of Rs. 9,900/- only would be made on delivery of the said Chimney and the balance amount would be paid by four equal installments by post dated cheques. The opposite Party No. 1 had cleverly taken the signature of the Complainant in the Customer Order Form without verifying the same.
Cont. ……….…. 3
= 3 =
Thereafter in the last half of the June, 2017, the Opposite Party No. 1 pressurized the Complainant for taking delivery of the said Chimney by payment of balance consideration money on ground of implementation of GST. As the construction works of her flat was not yet completed the Complainant did not agree to take delivery of the same and informed the matter to the Opposite Party No. 1 and also asked for refunding the advance paid amount but the Opposite Party No. 1 did not do the same and further had pressurized to take delivery of the said product what amounts to negligence and deficiency in rendering service by the Opposite Parties towards the Complainant.
The Complainant repeatedly requested for refunding the said amount paid in advance but the Opposite Party No. 1 refused to refund the same for which the Complainant lodged a Complaint before the Director of the Consumer Affair Department, Murshidabad but the Opposite Party No. 1 remain absent on call for mediation for what being victimized and harassed by the Opposite Parties the Complainant has to file the instant case seeking adequate redressal against the Opposite Parties.
Resisting the complaint, the Opposite Party No. 1 filed the Written Version denying the contention made by the Complainant in his complaint and stating inter alia that the case is not maintainable, the Complainant has no cause of action, barred by limitation and the Forum has no jurisdiction to deal the instant matter.
The specific case of the Opposite Party No. 1, in gist, is that, on 18.03.2017, the Complainant had booked a Kutchina Chimney model ARC 3G and issued a cheque of Rs. 8,000/- only dated 19.03.2017 as advance payment out of the total consideration money of Rs. 25,990/- only and agreed to pay another sum of Rs. 1,900/- only on the very next date at the time of installation of the said Chimney.
Cont. ……….…. 4
= 4 =
The Complainant had also issued four post dated cheques of UBI on 18.03.2017 and it was settled between them that the Complainant had to pay a sum of Rs. 85/- only per sq. ft. for duck pipe and after seeing and verifying all terms and conditions the Complainant had signed the Challan and Customer Order Form.
On the very next date when the men and agent of this Opposite Party No. 1 went to the house of the Complainant to install the said Chimney, the Complainant requested them to install the Chimney after few days due to some problems. But thereafter whenever the men and agent of this Opposite Party No. 1 went to install the said Chimney, every time the Complainant had refused to install the same on same plea and all of a sudden after four months the Complainant requested this Opposite Party No. 1 to refund the advance paid money on the ground that the Complainant found the other company with better terms and conditions.
This Opposite Party No. 1 requested the Complainant to install the Chimney as because this Opposite Party had already spent a huge money for carrying the said Chimney and for labour cost to carry the same to the house of the Complainant but the Complainant did not bother to the Opposite Party and insisted to refund the advance paid money. But the Opposite Party also requested the Complainant though as per the Customer Order Form the advance money is not refundable to any customer but this Opposite Party was agree to refund the same after deduction of 25 % but the Complainant did not agree to the same. Thus, the Opposite Party No. 1 denied any deficiency and negligence in rendering service towards the Complainant and prayed for dismissal of this case.
Despite service of the notice on 07.12.2017 (as per Postal A/D), the Opposite Party No. 2 never appeared before the Forum in person and/or through any authorized representative / Ld. Advocate to contest the case by filing Written Version and thus the instant case have been heard ex-parte against the Opposite Party No. 2.
Cont. ……….…. 5
= 5 =
Point for Determination
1. Whether the instant case is maintainable ?
2. Whether the Complainant is a consumer ?
3. Whether there is negligence or deficiency in service on the
part of the O.Ps ?
4. Whether the Complainant is entitled to get the relief as prayed for ?
Decision with Reasons
All the points are taken up together for consideration for the sake of convenience and brevity.
The main dispute between the Complainant and the Opposite Parties is that, whether the Opposite Party are justified to not refunding the advance paid amount and lastly agreed to refund the advance paid money after deduction of 25 % amount to the Customer/Complainant or not.
On overall evaluation of the argument made before us by the Complainant in person and the Ld. Advocate for the Opposite Party No. 1 and critically perusing the material evidences on record, it is evident that admittedly the Complainant is a consumer under the Opposite Parties by booking to purchase a Kutchina Chimney (Model ARC 3G) and had paid a sum of Rs. 8,000/- only by way of issuing a cheque of aforesaid amount dated 19.03.2017 as advance payment out of the total consideration money of Rs. 25,990/- only in favour of the Opposite Party No. 1.
It is further manifestly revealed from the photocopies of the documents (Customer Order Form/Delivery Challan) filed by the Complainant that at the place of ‘Order Date’, it is written as 19/03/17 and at the place of the ‘Delivery Date’ , it is written “1 year (Booking)” , which indicates that the allegation of the Complainant is true.
Cont. ……….…. 6
= 6 =
On the other hand, the statement of the contesting Opposite Party No. 1 in their Written version at Page No. 2 Paragraph No. 14, that “…….. and agreed to pay another sum of Rs. 1,900/- only on the very next date at the time of installation of the said Chimney” is seems to be false as because nowhere in the document (Customer Order Form/Delivery Challan) on which the Opposite Party No. 1 relied upon it is specifically mentioned that the said Chimney in question would be deliverable on the very next date from the date of Booking of the same.
It is further clearly evident that in the said document (Customer Order Form/Delivery Challan), nowhere it is mentioned that the Complainant has issued four post dated cheques in favour of the Opposite Party No. 1 but whereas it is specifically written in the Page No. 2, Paragraph No. 15 of the Written Version filed by the Opposite Party No. 1 that “…….. Complainant had also issued four post dated cheques of UBI on 18.03.2017 and after seeing and verifying all terms and conditions the Complainant had signed the Challan and Customer Order Form”, which represents that the Opposite Party No. 1 utters recline.
Moreover, the contesting Opposite Party No. 1 never filed any such documents what could show that the men and agents of this contesting Opposite Party No. 1 went to the house of the Complainant to install the said Chimney in dispute and the Complainant refused to install the same with a request to install the said Chimney after few days due to some problems on part of the Complainant.
Furthermore, from this statement of the Opposite Party No. 1 proves that the allegation of the Complainant that after agreement to deliver the said Chimney in issue within 1 year from the date of Booking of the same the Opposite Party No. 1 disobeyed such agreement and tried to compel the Complainant to take delivery of the same earlier with some ulterior motive.
Cont. ……….…. 7
= 7 =
The record manifestly reveals that at the time of hearing argument the Ld. Advocate for the Opposite Party No. 1 specifically uttered that the Complainant had definitely issued four post dated cheques in favour of the Opposite Party No. 1 which indicated that the said Chimney in question would assure to be delivered on the very next date from the date of Booking and the Complainant in person strictly denied the said fact and palpably has claimed to be produced the said cheques by the Opposite Parties.
In this situation, on allowing the time by the Forum the Ld. Advocate on behalf of the Opposite Party No. 1 has miserably failed to produce the said cheques and on this day the Ld. Advocate for the Opposite Party No. 1 stated that the Opposite Party No. 1 is ready to refund the said advance payment money of Rs. 8,000/- only towards the Complainant but the Complainant refused to accept the said money at this stage on the ground that this Opposite Party No. 1 has severely harassed and humiliated this Complainant severally when she with her husband repeatedly requested this Opposite Party No. 1 to refund the said advance paid money for which the Complainant claimed the compensation and litigation cost.
Thus, it is crystal clear from the above discussion that the Complainant proved that the Opposite Party no. 1 disobeyed the terms and conditions of the agreement as agreed by and between the parties at the time of Booking to purchase of the said Chimney in question which is definitely the deficient and/or negligent manner of rendering service towards the Complainant.
Furthermore, it is also evident from the photocopies of the documents filed by the Complainant that the Complainant had lodged complaint before the Consumer Affair Department for mediation and the Consumer Affair Department asked the Opposite Party No. 1 for mediation between them but this Opposite Party No. 1 did not bother to present before the Consumer Affair Department for mediation.
Cont. ……….…. 8
= 8 =
So the unanimous decision of the Forum is that the Opposite Party No. 1 is liable to refund the advance paid money amounting to Rs. 8,000/- only to the Complainant along with compensation and litigation cost. But as such no specific allegation was made against the Opposite Party No. 2 the instant case is decided to be dismissed against the Opposite Party No. 2.
Therefore, in the light of the above discussion it is finally and commonly decided by the Forum that the Complainant has successfully proved the case and is entitled to get relief as prayed for, and consequently, the points for determination are decided in affirmative.
In short, the Complainant deserves success.
In the result, we proceed to pass
O R D E R
That the case be and same is allowed on contest against both the Opposite Party No. 1 with cost of Rs. 2,000/- only payable by the Opposite Party No. 1 within one month from the date of this ‘Order’ and is dismissed against the Opposite Party No. 2 without any cost.
That the Opposite Party No. 1 is directed to refund the amount of paid advance money of Rs. 8,000/- only to the Complainant within one month from the date of this ‘Order’.
That the Opposite Party No. 1 is further directed to pay a sum of Rs. 3,000/- only to the Complainant, as compensation for harassment and mental agony within one month from the date of this ‘Order’.
Cont. ……….…. 9
= 9 =
In the event of non compliance of any portion of the order by the Opposite Party No. 1 within a period of one month from the date of this ‘Order’, the Opposite Party No. 1 shall have to pay a sum of Rs. 100/- per day, as punitive damages, from the date of this ‘Order’ till full satisfaction of the decree, which amount shall be deposited by the said default Opposite Party No. 1 towards the Consumer Legal Aid Fund.
Let a plain copy of this order be made available and be supplied free of cost, to each of the parties by hand to the parties and/or to the Ld. Advocate/Agent on record, under proper acknowledgment / be sent forthwith under ordinary post to the concerned parties as per rules, for information and necessary action.
MEMBER PRESIDENT
