This complaint is filed under section 12 of the consumer Protection Act for an order directing the opposite party to repay the advance amount of Rs.35,000/- and to pay an amount of Rs.5,000/- for mental agony and physical discomfort with interest and cost. The facts of the case in brief are as follows- The complainant Annakuty Chacko approached the opposite party for purchasing a new vehicle on 1.11.2005. The complainant had selected 2016 Jumbo lorry among the displayed models. On the Information that the vehicle would be delivered to her on 15.11.2005 if the booking was done on that day by paying Rs.35,000/- as advance amount, the complainant had paid Rs.35,000/- to the opposite party and booked the vehicle. At the time of booking the vehicle the opposite party has stated that one Biju had booked a lorry by paying Rs.5,000/- as advance amount and later he cancelled the same. B y the compulsion of the opposite party complainant agreed to adjust the said booking in the complainants order. Thus a receipt of Rs.30,000/- and booking order of the above Biju for Rs.5,000/- were issued to the complainant. Though specifically agreed to deliver the vehicle on 15.11.2005 the opposite party failed to delivery the vehicle as promised. The complainant waited up to 30.11.2005. But in vain. There after she had intimated the opposite party through her son in a letter informing that she had cancelled the order because of non -delivery of lorry. Complainant in due course contacted the opposite party to get back the booking amount but the opposite party declined to return the amount which is a deficiency of service on the part of the opposite party. Complainant issued notice to opposite party with a demand to return the advance amount. Though the complainant has sent a lawyer notice, no reply was issued by the opposite party. Hence this complaint. After receiving notice from the Forum opposite party was not entered appearance. Subsequently opposite party was called absent and set exparte. The main question tobe decided is whether there is any deficiency in service on the part of the opposite party and whether the complainant is entitled for the relief as prayed in the complaint. The evidence in this case consists of chief affidavit filed by the complainant and documentary evidence Exts.A1 to A3 on the part of the complainant. The Chief affidavit supported by the documentary evidence Exts, .A1 and A2 issued by the opposite party reveals that the complainant had booked a vehicle. The complainantissued a lawyer notice to opposite party( Ext.A3). But opposite party reluctant to issue reply. So also the opposite party received notice from the Forum, but did not entered appearance before the Forum . Non issuance of reply to lawyer notice and non appearance before the Forum can only be considered as indirect admission of the case of the complainant. Opposite party is undoubtedly liable to return the advance amount. The lawyer notice sent by the complainant clearly mentioned that the complainant entered into booking only on the basis of the assurance given by the opposite party that the vehicle would be delivered to her on 15.11.2005. That shows the opposite party has been informed by the complainant the reason why booking was cancelled and called upon to refund the amount. The silence of opposite party in any manner cannot be justified. There is no reason for non-delivery of vehicle inaccordance with the promise made by the opposite party. Thus we are of the opinion that there is deficiency in service on the part of the opposite party and opposite party is liable to return the receipted amount ofRs.35,000/- with an interest @ 9% per annum. Since the amount was tide up for such a long time not because of the fault of complainant she deserves for compensation for a sum of Rs.2,000/- also in consideration of the mental agony and physical discomfortthat shehad suffered. The complainant is also entitled for a cost of Rs.500. So these issues are answered in favour of the complainant. In the result, the complaint is allowed partly directing the opposite party to refund the advance amount of Rs.35,000/- with interest @ 9% per annum from the date of filing of this complaint ie. on7.10.2006 and Rs.2000/- as compensation with Rs.500/- as cost of this proceedings to the complainant within one month from the date of receipt of this order, failing which the complainant is allowed to execute the order against the opposite party under the provisions of the consumer Protection Act. Dated this, the 5th day of April 2008 Sd/- sd/- sd/- President Member Member APPENDIX EXHIBITS FORTHE COMPLAINANT A1.Receipt dt.1.11.05 issued by OP A2.Quotation and advance payment receipt issued by7 OP 17.6.05. A3.Copy of lawyer notice dt.9.3.06 Exhibits for the opposite party: Nil Witness examined for either side: Nil /forwarded by order/ Senior Superintendent Consumer Disputes Redressal Forum,Kannur
