This case has been filed U/s.12 of the Consumer Protection Act, 1986 filed by the complainant, Smt. Sabita Ghosh.

The case of the complainant’s in short is that the complainant on 21.2.2016 went to the opposite party showroom for purchasing a Hitachi A.C. Machine being Model No.RAU3141DJD and paid Rs.11,000/- as advance money.  The opposite party agreed to take balance amount by EMI from the complainant.  After getting advance money the opposite party told the complainant that he will deliver the A.C. Machine to the house of the complainant within 3/4 days.  But the opposite party did not supply the A.C. Machine.  Thereafter, the complainant on several times requested the opposite party to deliver the A.C. Machine but the opposite party did not do the same.

Thereafter, the complainant on 7.3.2016 visited the office of the opposite party and requested them to install the A.C. Machine in her house immediately as her mother is seriously ill.  In reply one Mr. Tarak Babu (Salesman) of the shop told that as soon as they received the A.C. Machine they would supply the same to her house.  Being hopeless the complainant asked them to refund the advance money but the staff of the opposite party told that it is not possible for them to refund the advance money and wrote in the back side of the bill that within 15.3.2016 they would deliver the A.C. machine to the house of the complainant.

On 15.3.2016 the opposite party informed the complainant by telephone that they are unable to deliver the Hitachi A.C. Machine and instead of same they wanted to delivery A.C. Machine of other company.  In reply the complainant asked them to refund the advance money but the opposite party did not refund the advance money.  Finding no other alternative the complainant filed this case before this Forum for relief with a prayer to direct the opposite party to refund Rs.11,000/- as advance money, to refund the EMI as deducted from the complainant’s bank account, to pay Rs.25,000/- as compensation for harassment and mental agony and to pay litigation cost of Rs.10,000/-.

The opposite party contested the case by filing written version denying inter-alia all the material allegation as leveled against it.  The opposite party submits that complainant visited their showroom for purchasing one Hitachi make Air Conditioner on 21.2.2016.  The complainant paid advance money of Rs.11,000/- vide invoice number SR/0643/15-16.  As per demand the Hitachi A.C. Machine is very high and the same could not be delivered on the same date.  However, after one week when the stock was available from the marker of the machine the complainant was contacted and the machine was sent to the registered address of the complainant.  But complainant refused to take delivery of the said Air Conditioner and the delivery person had to return with the machine to the dealer, opposite party.

Finding no other alternative this opposite party cancelled the invoice and kept the advance money for refund as and when the complainant demanded the same.  The opposite party contacted the complainant and requested to come to the showroom and accept her advance money but the complainant had never turned up and waited for more than a year and lodged this false and vexatious case against opposite party with malafide intention.  Hence, the case.

The complainant filed photocopies of tax invoice cum challan, bank statement, letter to the opposite party dated 25.4.2016, 30.6.2016 and 9.12.2016, evidence in chief and brief notes of argument.  The opposite party also filed photocopies of letter addressed to the complainant dated 14.4.2017 & 13.5.2017 and brief notes of argument.

POINTS FOR CONSIDERATION

1). Whether the Complainants are the ‘Consumers’ of the opposite party?

2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

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

DECISION WITH REASONS

All the points are taken up together for convenience and brevity of discussion.

From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. The complainant herein is the consumer of the opposite party, as the complainant being the intending purchaser paid advance money for Hitachi A.C. Machine.  So, he is entitled to get service from the opposite party as consumer.

  Both the complainant and opposite party are residents/having office address within the district of Hooghly. The complaint valued Rs.46,000/- for loss sustained by the complainant and as compensation for mental agony and other expenses ad-valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.

The complainant has filed evidence in chief wherein she has stated her case that on 21.2.2016 she went to opposite party for purchasing one Hitachi A.C. Machine being Model No.RAU3141WD and paid Rs.11,000/- as advance to the opposite party and also agreed to pay balance amount by EMI.  After getting advance money the opposite party assured the complainant that they deliver the machine to the house of the complainant within 3/4 days.  But the opposite party did not send the same within due date.  On 7.3.2016 the complainant visited to the office of the opposite party and requested them to supply the machine as early as possible as her mother is suffering from illness.  In reply the opposite party stated that the said machine is out of stock and when they received the machine they would deliver the same to the complainant.  Thereafter, the complainant requested them to refund advance money.  Then opposite party stated that it is not possible for them to refund the advance money and they wrote on the back side of the bill voucher that within 15.3.2016 they would deliver the A.C. Machine.  On 15.3.2016 the opposite party contacted the complainant and stated that they are unable to deliver the Hitachi A.C. Machine and requested the complainant to take another A.C. Machine of another company.  But complainant refused the request of the opposite party and asked them to refund the advance money.  But opposite party did not do the same.

At the time of argument the complainant argued that she repeatedly request to the opposite party to deliver the A.C. machine as her mother is suffering from illness but the opposite party did not pay heed.  Finding no other alternative she further requested them to refund the advance money which she paid on 21.2.2016.  But opposite party did not agree with the complainant and requested to take another A.C. Machine of another company.  Complainant rejected the advice of the opposite party and demanded to refund the advance money.  But there is/was no fruitful result.

The opposite party argued that the demand of A.C. Machine was very high, the same could not be delivered on the same date.  However, after one week when the stock was available from the maker of the machine this opposite party contacted to the complainant and the machine was sent to the registered address of the complainant.  The opposite party further argued that when the delivery team reached the address of the complainant, the complainant had refused to take delivery of the said A.C. Machine.  The delivery person returns the machine to the dealer/opposite party.  Thereafter on several times the opposite party contacted to the complainant over phone and also representative was sent to the address of the complainant but complainant did not response anything.  Thereafter the opposite party finding no other alternative cancelled the invoice on 31.3.2016 and also prepared a cheque dated 5.4.2016 for return of the advance payment.  The opposite party communicated to the complainant and requested to take it from the shop room of the opposite party but complainant never collected the cheque from the opposite party.  More than one year later the complainant filed this false and fabricated case with malafide intention.

After deliberation over the dispute between the parties we are abstaining ourselves from lengthy discussion of both side case wherein the case is very clear from the evidence on affidavit of complainant and the letter dated 25.4.2016, 30.6.2016 and 9.12.2016 issued by the complainant addressing to the Raipur Electronics Pvt. Ltd. i.e. opposite party.  The complainant repeatedly requested to the opposite parties to return back the advance money but the opposite party did not pay any heed to the request of the complainant though the complainant paid advance money of Rs.11,000/- for Hitachi A.C. machine.  The Opposite party admitted the fact of the case stating that the complainant deposited Rs.11,000/- as advance money for Hitachi A.C. machine and on the said period the Hitachi A.C. Machine was out of stock.  The complainant was requested by the opposite party that they deliver the machine when it was available in the market and after available the A.C. Machine was sent to the complainant for delivery but complainant did not receive the same.    

The complainant in support of her case filed tax in voice, bank statement and some letters.  On perusal the tax invoice it transpires that price value of the Hitachi A.C. Machine is Rs.33,000/-and complainant paid Rs.11,000/- through cheque being No.181155 dated 21.2.2016 for purchasing one Hitachi A.C. Machine being model NoRAU3141WD.   The complainant was also agreed to pay rest amount by EMI.  In the bank statement of the complainant it is also transpire that on 25.2.2016 Rs.11,000/- was transferred to Raipur Electronics Pvt. Ltd.  

The opposite party in support of the case has filed two letters to the complainant on 14.4.2017 and 13.5.2017 stating that “You had purchased a Hitachi A.C. Machine from us on 21.2.2016 vide invoice No.SR/0643/15-16 and at the time of delivery  you had refused to take the delivery of the A.C. Machine to the delivery boy, and accordingly we had cancelled your above invoice on 31.3.2016 and kept your advance money of Rs.11,000/- as deposit with us and till date you never turned up to take refund of your money or to get it adjusted with some other product………………we are request you to please collect your credit balance or get it adjusted with some other product”.  But it is shown that abovementioned letters was written after filing this case i.e. after 23.2.2017.  These letters was written after receiving the notice of this Forum.  The opposite party get enough time to refund the advance money to the complainant.  The complainant has compelled to file this case against the opposite party for return back of her earnest money.  She repeatedly knocked the door of the opposite party but opposite party remain silent.

In the prayer portion of the complaint in point No.B the complainant prayed that to refund the EMI as deducted from the bank account of the petitioner.  In this respect the complainant did not supply any document i.e. agreement paper of EMI.  Though in the bank statement it transpires that on 2.4.2016 and 2.5.2016 Rs.2,750/- &  Rs.2,750/-was debited from complainant’s bank account to DD Bajaj Auto (Transfer to cash management produc). 

Accordingly, after circumspection pegged by the complainant submitting different papers and evidence has succeeds to prove the case of negligence and deficiency on service coupled with unfair trade practice on the part of the opposite party as they neither supply the A.C. Machine of Hitachi as per their commitment nor refund the advance money received from the complainant.  Hence, the opposite party is liable to pay advance money along with interest. So, after considering the record and conduct of both sides relying on their statement on oath we are of opinion that the complainant’s case succeeds.   Hence, it is

Ordered

 that the complaint case being No.66 of 2017 be and the same is allowed on contest against the opposite party with a litigation cost of Rs.5000/- .

The opposite party is directed to refund Rs.11,000/- which is paid by the complainant to the opposite party on 21.2.2016 along with interest @ 10% from 21.2.2016 till realization. The opposite party is further directed to comply the above direction within 45 days from this date of order, failing which the complainant is at liberty to execute the same in accordance with law.

    At the event of failure to comply with the order the Opposite Party  shall pay cost @ Rs.50/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the  Consumer legal Aid Account.

    Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information & necessary action.