IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Tuesday the 30th day of May, 2018
Filed on 19.12.2015
Present
1. Sri.E.M. Muhammed Ibrahim , BA,LLM (President)
2. Sri. Antony Xavier (Member)
3. Smt. Jasmine D (Member)
in
CC/No.363/2015
Between
Complainant:- Opposite party:-
Sri.Sunny Philip Sajan
Proprieter, Kripa Advertisers, Sunpower Technologies,
Pulayamvazhy Junction West, 49/76,49/76 A1,49/76 A2,
Alappuzha. Mythri Building,
(ByAdv.M.G.Reshu) Perantoor Road,
Ernakulam.P.O.,
Cochin-26.
(By Adv.R.Rajendra Prasad)
ORDER
SRI.E.M. MUHAMMED IBRAHIM.B.A.LLM (PRESIDENT)
This case based on the complainant filed by Mr. Sunny Philip against the opposite party under section 12 of the Consumer Protection Act, 1986. The averments in complaint short are as follows.
2. The complainant has been conducting a printing press by name Kripa Advertisement near Pulayamvazhi which is only source of livelihood of the complainant and his family. For the purpose of the operating printing machine on the above press, the complainant purchased one UPS system and its accessories for a total price of Rs.1,35,000/-. Out of the sale price, the complainant entrusted a cheque for Rs.50,000/- as advance and the balance amount was agreed to be paid within six months. The opposite party also demanded Rs.5,000/- as fitting and transportation charges and also obtained two post dated cheque for Rs.40,000/- and 20,000/- respectively drawn on Bank of Baroda Alappuzha branch towards the balance sale consideration. On 10-03-2014, the UPS system was installed and the complainant paid Rs.5,000/- as cash for transportation and installation charges. The opposite party did not give any warranty or guarantee card of the system. On 10-04-2014 the system was damaged and there by the printing was stopped. As intimated by the complainant, on 12-04-2014, the opposite party repaired the system. In the circumstances the complainant demanded over telephone to the opposite party to issue warranty card before encashing the two cheques. It is also intimated that if warrantee is not issued the complainant will be constrained to issue memo stopping the encashment of two post dated cheques. On hearing the above demand, the opposite party was provoked and used abusive language to the complainant. However 24-05-2014at 1.30 PM the opposite party along with four identifiable persons conspired together and in prosecution of their common object of committing theft of the UPS and other articles installed at the printing press by carrying sword, iron stick, chopper etc came to the press in the Innova car No. KL 07/BZ/7576 trespassed in to the above institution of the complainant and used abusive language against the complainant and thereby caused annoyance and also a committed mischief by dropping two computers which were installed at the institution and caused unlawful loss of Rs.8000/- to the complainant. It is further alleged that the opposite party and his hench men without his permission removed the UPS which was being used for the working of the press and in the same Innova car in which they came. Immediately the complainant approached the South Police Station Alappuzha and given a complaint but under the influence of the opposite party, the Police have not registered any case. Hence the complainant filed a private complaint before the Judicial First-Class Magistrate Court in Alappuzha and got to the same to be forwarded to Police Station and also got registered a case and investing as being conduct. According to the complainant the opposite party has committed unfair trade practice by not delivering the warranty or guaranty and forcefully taken away the UPS and its accessories which was sold to him and also after receiving substantial part of consideration, installation and transportation charges. There is also deficiency in service on the part of the opposite party and due to the above act of the opposite party the complainant could not operate his press for one month and also sustained loss Rs.2000/- per day due to the non working of the press. According to the complainant he has sustained mental agony apart from financial loss and therefore is entitle to get compensation Rs.2, 00,000/- from the opposite party.
3. The opposite party resisted the complaint by filing detailed version raising the following contentions. The complaint is not maintainable either in law or facts. This forum has no jurisdiction to entertain this complaint, because the pleadings are with regards to return of money. No specific averments with regards to deficiency in service on the side of the opposite party on the date of installation of the UPS system. The opposite party has supplied the warranty card of the system to the complainant. No installation charge or transportation charge has been received by the opposite party. However the opposite party would admit the receipt of 2 post dated cheque towards sale consideration. It is also admitted that when the complainant reported that the UPS is not working the opposite party repaired and cured the defect on 10-04-2014. It is also admitted that the opposite party has taken back the UPS due to the non payment of balance amount. The opposite party further prays to dismiss the complaint with his cost.
4. In view of the above pleadings the points that arise for consideration are:-
(i) Whether there is any unfair trade practice or deficiency in service on the side of
the opposite party.
(ii) Whether the complainant is entitle to realise Rs.55,000/- being the advance
payments and installation charges paid to the opposite party and its interest as
claimed in the complainant.
(iii) Whether the complainant is entitle to get Rs.60,000/- being loss caused to
the complainant due to the damage of UPS articles from his press is alleged.
(iv) Whether the complainant is entitle to get compensation as claimed.
(v) Reliefs and cost.
5. Heard both sides and both parties have filed notes of arguments.
6 Point number I to IV:-
For avoiding repetition of discussion of materials these 4 points are considered together. According to the complainant though he purchased UPS and its accessories and installed at the printing press it has become defective within one month and therefore he insisted warranty card but the opposite party has not issued the warranty card, that the opposite party and his hench men has forcefully taken away the UPS and its accessories while it was under operation in the printing press of the complainant and thereby he suffered heavy loss. According to the complainant the above act of the opposite party amounts to deficiency in service and therefore he is entitled to get the reliefs.
7. The following are the admitted facts in this case. The opposite party has sold UPS and its accessories to the complainant on 10-03-2014 as per Ext.A1bill on credit basis and also accepted Rs.50,000/- has part payment of sale consideration from the complainant by way of cheque and the opposite party has also encashed the above cheque for Rs.50,000/- and obtained cash from the bank. The opposite party has also accepted 2 post dated cheques issued by the complainant towards the balance sale consideration. The said 2 post dated cheque were dishonoured by the bank. It has also brought out in evidence that the opposite party while selling the UPS and its peripherals no warranty or bill has been given to the complainant. The case of the complainant is that he has given specific instruction to the bank for non payment of the post dated 2 cheques as the opposite party has not handed over any document of warranty. The contention of the opposite party is that the cheque has been bounced for insufficient fund in the account of the complainant. It is also an admitted case that the opposite party has attended the repair work of the UPS on 12-04-2014 since the same got damaged on 10-04-2014 which is just 1 month of the installation of UPS. Ext.A2 bill issued by the opposite party at the time when UPS system was repaired. It is clear from Ext.A2 bill itself that the system became defective just 1 month of its installation and got it repaired by the opposite party. In view of the oral evidence of PW1 and Ext.P2 it is clear that as the UPS become defective just 1 month, that the complainant demanded warrantee after getting the UPS repaired and there occurred wordy quarrel between the complainant on one side and opposite party and his men on the other side. It is also brought out in evidence that the opposite party came over at the printing press run by the complainant in an innova car and taken away UPS and connected materials installed by him and driven away the vehicle and while forcefully taking away the UPS and its accessories the opposite party has also caused damage to the articles kept at the printing press and hence the complainant has reached at the police station and lodged Ext.A3 complaint at the South Police station. But the Police has not taken any action. Hence the complainant has lodged Ext.A4 private complaint before the Judicial First Class Magistrate Court, Alappuzha and the said Magistrate has forwarded the complaint under section 156(3) Cr.P.C and the police has registered a case and finally the case has been referred against which the complainant filed a protest complaint also.
8. However the case of the opposite party is that the UPS and its accessories were sold on credit basis by accepting initial payment by cheque Rs.50,000/- and it was encashed by the opposite party and the balance amount was agreed to be paid within 2 months for which the opposite party obtain 2 post dated cheques also and when those cheques were presented the complainant issued stop memo and hence these cheques were not encashed and that is why the opposite party came over at the printing press and taken away the UPS and its accessories installed there. According to the opposite party at the time of issuing invoice the opposite party has issued and entrust warranty card but there is nothing on record to substantiate above case of the opposite party. Even though the opposite party would content that he has issued the bill and the warranty card, why he has not produced the copy of the bill and warrantee card before the Forum. However Ext.A2 bill would indicate with the UPS installed was became defective within 1 month and defect has been incurred by the opposite party. Ext.A2 bill A3 & A4 copy of the complaint filed before Police Station and Court would clearly probabalise the case set up by the complainant.
9. According to the opposite party the complainant failed to allege and prove the allegations of unfair trade practice or any deficiency in service. In view of the materials available on record I find no merit in the above contention. The complainant has purchased one UPS from the opposite party after paying part of the sale price, the same was installed at the premises of the complainant and received the transportation and installation charges also from the complainant and also accepted 2 post dated cheques towards balance sale consideration. In the circumstance the opposite party would not have removed the UPS and its accessories forcefully from the printing press and shall not block the operation of the printing press run by the complainant. The above act of the complainant would definitely an unfair trade practice. Even if the post dated cheque was not encashed, the remedy of the opposite party was to intimate the complainant and demand the cheque amount or issue notice demanding the same and if the complainant has not responded positively the opposite party is justified in taking away the UPS and its accessories from the premises of the complainant. Even if there is no manufacturing defect on the product or there is no deficiency in service, the removal of the article purchased by the complainant from the premises without his permission after accepting part of the sale consideration and 2 post dated cheques of the balance sale consideration would definitely come within the perview of unfair trade practice and therefore the complainant is entitled to get back Rs.50,000/- and Rs.5000/- received as transportation and installation charges with interest from the date of cheque forceful removal of the UPS from the premises of the complainant.
10. It is also brought out in evidence through PW1 and Ext.A3 &A4 documents that the opposite party has trespassed in to the printing press of the complainant when it was functioning and forcefully removed the UPS and its accessories which were stalled at the printing press and caused lawful loss to the complainant apart from mental agony and hence the complainant is entitle to get compensation for the same. The complainant has demanded Rs.2000/- per day as loss for 30 days and also demanded Rs.50,000/- as compensation. But the complainant has not adduced any reliable materials to prove the quantum of loss claimed by him. However in view of the facts and circumstances of the case we are of the view that an amount of Rs.25,000/- on the above 2 counts will be reasonable and sufficient to meet the ends of justice. These 4 points answered accordingly.
Point No.5 :-
In the result complaint stands allowed directing the opposite party to return Rs.55,000/- (Rupees fifty five thousand only) received as advance towards sale price of UPS and its accessories and transportation and installation charges received from the complainant along with interest at the rate of 9% per annum from 24-05-2014 till realisation.
The opposite party is also directed to pay Rs.25,000/- (Rupees twenty five thousand only) towards loss of business and compensation to the complainant with interest at the rate of 9% per annum from 24-05-2014 till realisation.
The opposite party is further directed to pay Rs.5000/- as cost of the proceedings to the complainant.
If the opposite party fails to comply with the above direction within 45 days from today the complainant is allowed to realise the same with interest at the rate of 12% per annum from the date of order till realisation from the opposite party and his assets by due process of law.
Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Forum on this the 30th day of May, 2018.
Sd/-Sri.E.M.MuhammedIbrahim (President):
Sd/-Sri. Antony Xavier (Member) :
Sd/-Smt. Jasmine.D. (Member) :
Appendix:-
Evidence of the complainant:-
PW1 - Sunny Philip (Witness)
Ext.A1 - Copy of the Kerala Value Added Tax Rules,2005, Form No.88
Ext.A2 - Copy of the bill, dated 12-04-2014
Ext.A3 - Copy of the complaint filed before Police Station
Ext.A4 - Copy of the complaint filed before Court
Evidence of the opposite parties:-
RW1 - Sajan P.Vasudev (Witness)
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite parties/S.F.
Typed by:- Sa/-
Compared by:-
