DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA

CC.No.570 of 20-12-2013

Decided on 09-07-2014

Anish Kumar S/o Hawa Singh R/o # 29811, Street No.11, Gopal Nagar, Bathinda, Tehsil & District Bathinda.

........Complainant

Versus

1.Samsung Electronics & Home Appliances Store, 35, Huda Main Market, Sector 31, Gurgaon 122001, Harayana, through its Managing Director.

2.Ambika Enterprises, Backside New Bus Stand, Near Hotel Apricate, Bathinda, through its Owner/Proprietor/Manager.

.......Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986.

QUORUM

Smt.Vikramjit Kaur Soni, President.

Smt.Sukhwinder Kaur, Member.

Sh.Jarnail Singh, Member.

Present:-

For the Complainant: Sh.Amandeep Sharma, counsel for the complainant.

For Opposite parties: Sh.Kuljit Pal Sharma, counsel for the opposite party No.1.

Sh.Sunil Kumar Tripathi, counsel for the opposite party

No.2.

ORDER

VIKRAMJIT KAUR SONI, PRESIDENT:-

1. The instant complaint has been filed by the complainant under section 12 of the Consumer Protection Act, 1986 as amended upto date (Here-in-after referred to as an 'Act'). The brief facts of the complaint are that on 26.11.2013, the complainant in order to purchase the LED approached the opposite party No.2, it disclosed him the price of the LED as Rs.15,700/-. The complainant paid the amount of Rs.7000/- in cash and for the remaining amount he gave the blank signed 7 cheques bearing No.029019 to 029025 drawn on HDFC Bank to the opposite party No.2. The opposite party No.2 tried to deliver the abovesaid LED, but it became 'hang' on its shop, due to this the complainant refused to take the delivery of the abovesaid LED. The opposite party No.2 assured the complainant that the fresh piece would be delivered to him on next morning. Thereafter the opposite party No.2 did not deliver the LED in question to the complainant. The complainant has been approaching the opposite party No.2 to deliver the abovesaid LED, but it has been lingering on the matter on one or the other pretext. On 27.11.2013, the complainant approached the opposite party No.2, but it did not listen to him. The complainant many times approached the opposite party No.1 and requested it to deliver the LED in question, but to no effect. The complainant has got issued a legal notice dated 28.11.2013 to the opposite parties, but no reply has been given by them to the said legal notice. Hence the complainant has filed the present complaint to seek the directions of this Forum to the opposite parties to refund the amount of Rs.7000/-; to return him the blank signed 7 cheques bearing Nos.029019 to 029025 drawn on HDFC bank alongwith cost and compensation or to give him any other additional, alternative and consequential relief for which he may be found entitled to.

2. The opposite party No.1 after appearing before this Forum has filed its separate written statement and denied all the allegations levelled by the complainant for want of knowledge. The opposite party No.1 pleaded that the opposite party No.2 is an independent person and is not its agent or employee, as such the opposite party No.1 is not liable for any alleged act, if any done by the opposite party No.2. The complainant has failed to mention the dates when he approached the opposite party No.1. The legal notice dated 28.11.2013 has never been received by the opposite party No.2. The present complaint against the opposite party No.1 is totally false and frivolous. The complainant is trying to take benefit of his own wrongs by filing this complaint against the opposite party No.1. As per the information provided by the opposite party No.2 the LED has been delivered to the complainant and duly installed by the opposite party No.2.

3. The opposite party No.2 has filed its separate written statement and pleaded that the complainant has purchased the abovesaid LED. The cheques were given by the complainant as a security for repaying the remaining amount of Rs.8700/- out of the total amount of Rs.15,700/- (i.e. total price of the LED). The complainant himself admitted and authorized the opposite party No.2 that when he failed to pay the remaining amount, the opposite party No.2 is competent to encash the cheque and collect the money from the bank. The opposite party No.2 sent the fresh piece of LED to the complainant that has been accepted by him, but thereafter he came to the shop of the opposite party No.2 to return it, whereas there is no defect in it, as such the opposite party No.2 refused to return the abovesaid LED as it was without any defect and the complainant knowingly and intentionally wants to return the same after using it and when the opposite party No.2 refused to return the LED, he took it back and thereafter did not turn up back. Once the LED sold by the opposite party No.2 to the complainant, there remained no question of refunding its price to him.

4. The parties have led their evidence in support of their respective pleadings.

5. Arguments heard. The record alongwith written submissions submitted by the parties perused.

6. Admitted facts of the parties are that the complainant approached the opposite party No.2 to purchase the LED, it disclosed him the price of the LED as Rs.15,700/-. The complainant paid the amount of Rs.7000/- in cash and for the remaining amount he gave 7 blank signed cheques bearing No.029019 to 029025 drawn on HDFC Bank to the opposite party No.2.

7. The disputed facts of the parties are that the complainant averred that the opposite party No.2 tried to deliver the abovesaid LED, but it became 'hang' on its shop, so the complainant refused to take its delivery. The opposite party No.2 assured the complainant that the fresh piece would be delivered to him on the next morning, but thereafter the opposite party No.2 failed to deliver him the LED. On 27.11.2013, the complainant approached the opposite party No.2 and requested it to deliver the LED in question, but to no effect. The complainant has got issued a legal notice dated 28.11.2013 to the opposite parties with the request to return him the price of the LED in question and 7 blank signed cheques bearing No.029019 to 029025.

8. The defence of the opposite party No.2 is that the cheques were given by the complainant as a security for repaying the remaining amount of Rs.8700/- out of the total amount of Rs.15,700/- that is total price of the LED. The complainant has failed to pay the remaining amount. The opposite party No.2 is competent to encash the cheques from the bank. The opposite party No.2 sent the fresh piece of LED to the complainant that has been accepted by him, but thereafter he came to the shop of the opposite party No.2 to return it, whereas there is no defect in it, as such the opposite party No.2 refused to return the abovesaid LED as it was without any defect, thus the complainant took it back and thereafter did not return back. The LED in question has been delivered to the complainant by the opposite party No.2, thus there remained no question of refunding its price to him.

9. The opposite party No.1 submitted that as per the information provided by the opposite party No.2 the LED has been delivered to the complainant and duly installed by the opposite party No.2.

10. The allegations of the complainant are that he has paid the amount of Rs.7000/- to purchase one LED TV out of the total amount of Rs.15,700/- and has given 7 blank signed cheques for the remaining amount. Despite receiving the payment of Rs.7000/- the opposite party No.2 has failed to deliver the abovesaid LED TV to the complainant. Earlier the opposite party No.2 has tried to deliver the dummy LED TV to the complainant that has been displayed by the opposite party No.2 in its shop, but as it became 'hang', the complainant refused to take its delivery and requested it to deliver him the fresh LED TV, but no LED TV has been delivered to him, whereas the opposite party No.2 has submitted that LED TV has been delivered to the complainant that has been duly installed, but he has failed to pay the remaining amount of Rs.8700/- to the opposite parties. To prove this version that LED TV in question was ever deliver to the complainant, the opposite party No.2 has placed nothing on file. No bill or payment receipt issued to the complainant has been placed on file, no delivery challan has been prepared by the opposite party No.2. Moreover there is no affidavit of any of the official of the opposite party No.2 to show that who has handed over the abovesaid LED TV to the complainant or in what transportation it has been taken by the complainant to his house. There is no affidavit of any of the employee of the opposite party No.2 on file to show that the abovesaid LED TV had ever been delivered to the complainant or has been packed by any of the employees of the opposite party No.2, whereas the product like LED TV cannot be delivered as it is i.e. without packing it in a proper manner. There is no affidavit of any of the employee of the opposite party No.2 on file, who has installed the abovesaid LED TV in the premises of the complainant. The opposite party No.2 in its evidence has placed on file the affidavit of Pawan Kumar, Proprietor of Ambika Enterprises, Ex.OP2/1, in his affidavit he has put-forth the entire story mentioned in its written statement. No single word has been mentioned in the written statement as well as affidavit of the opposite party No.2 by whom the delivery of the abovesaid LED TV has been given to the complainant or bill has been issued by so and so person or it has been installed by any of the employee of the opposite party No.2. The other documents placed on file vide Ex.OP2/2 to Ex.OP2/4 are of no help to the opposite party No.2. Ex.OP2/4, is a legal notice issued to the complainant by the opposite parties on 4.6.2014 i.e. much after filing of this complaint, thus issuing of this legal notice to the complainant is an afterthought. On the contrary the complainant has produced the copy of the legal notice, which he has sent to the opposite parties prior to filing of this complaint and payment receipt of Rs.7000/-, Ex.C2; Postal Receipts, Ex.C3; his own affidavit, Ex.C4; Audio Recording CD, Ex.C5 and Ex.C6, the typed version of the CD. The allegation of the complainant is that the LED TV in question has not been delivered to him stands prove as there is no evidence placed on file by the opposite party No.2 to show that the LED TV in question has ever been delivered to the complainant and it has ever been installed by the opposite party No.2. Once the complainant alleges proves his allegation then onus shifts to the opposite party No.2 to disprove the same. Moreover this fact also stands prove that the complainant has paid the amount of Rs.7000/- to the opposite party No.2 and no other amount has been paid by him to the opposite party No.2.

11. Thus keeping in view the facts, circumstances and evidence placed on file we are of the considered opinion that there is unfair trade practice on the part of the opposite party No.2. Hence this complaint is partly accepted with Rs.5000/- as compensation and Rs.3000/- as cost against the opposite party No.2 and dismissed qua the opposite party No.1. The opposite party No.2 is directed to refund the amount of Rs.7000/- and return 7 blank signed cheques bearing No.029019 to 029025 to the complainant.

12. The compliance of this order be done within 45 days from the date of receipt of the copy of this order.

13. In case of non-compliance within the stipulated period, the interest @ 9% per annum will yield on the amount of Rs.7000/- till realization.

14. A copy of this order be sent to the parties concerned free of cost and file be consigned to the record room.

Pronounced in open Forum:-

09-07-2014

(Vikramjit Kaur Soni)

President

(Sukhwinder Kaur)

Member

(Jarnail Singh)

Member