IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 19thday of July, 2022
Present: Sri. Manulal V.S. President
Smt. Bindhu R. Member
Sri. K.M. Anto, Member
C C No. 93/2020 (filed on 17-07-2020)
Petitioner : Biju Varghese,
S/o. Varghese,
Thekkenedumplakkal House,
Mallappally West P.O.
Pathanamthitta.
(Adv. Avaneesh V.N.)
Vs.
Opposite Party : Shaji P. Thomas,
Proprietor,
Madona Marbles and Granites,
Pakkil P.O, Kottayam.
(Adv. Kuruvilla Varghese)
O R D E R
Sri. Manulal V.S. President
Case of the complainant is as follows:
Being attracted by the advertisement made by the opposite party, complainant purchased tiles for his newly constructed house for Rs.73,700/- on 14-9-2018 . At that time, the opposite party intimated that he will accept the balance tiles from the complainant after laying. After that as per the direction of the opposite party on 19-9-2018 the complainant transferred Rs.1,00,000/- as NEFT, to the account of the concern. On that day itself, the petitioner purchased articles worth Rs.43,600/- and Rs.720/- on 2-10-2018. At that time the balance amount payable to the complainant was Rs.55,680/-. On 2-10-2018 and 31-10-2018 the complainant returned the balance tiles to the shop of the opposite party. The respondent deducted tax amount at the time of return, from the actual amount in the invoice and calculated the value of the articles as Rs.14,200/- and Rs.5844/- respectively. According to the complainant an amount of Rs.57,724/- was due towards the complainant including the balance amount dues towards the payment of Rs.1,00,000/- as advance amount. The petitioner approached the opposite party to get back the amount. But it was denied by the opposite party by saying that he will provide the materials for the same and cannot refund the amount in cash. Though the lawyers notice issued by the complainant was received by the opposite party the opposite party denied the demand of the complainant through a reply notice. Withholding the balance amount of the petitioner amounts to deficiency in service and unfair trade practice. Hence this complaint is filed by the complainant praying for an order to direct he opposite party to refund Rs.75,724/- along with interest.
Upon notice opposite party appeared before the commission and filed version contending as follows:
Opposite party admitted that the complainant had purchased goods worth Rs.73,700/- on 14-9-2018. The averments in the complaint that the complainant purchased goods worth Rs.43,600/- on 19-9-2018 and Rs.720/- on 2-10-2018 by paying Rs.1,00,000/-is false. The complainant placed an order for goods worth Rs.1,72,270/- on 19-9-2018 and purchased articles worth Rs.1,00,000/- on that day and made payment of Rs.1,00,000 against the purchased goods on that day. After six months, the complainant approached the opposite party with returned unused materials worth Rs.75,724/-. The opposite party accepted those materials and informed the complainant that he would accept those unused materials against replacement of goods only and no refund would be allowed. The complainant returned the materials fully accepting the said condition. The opposite party is always ready to replace the goods from the value of returned goods. In violation of the condition after two years the complainant approached the opposite party and demanded money instead of replacement of goods. The opposite party is not liable to pay any amount to the complainant. There is no deficiency in service or unfair trade practice on the part of the opposite party.
Evidence of this case consists of deposition of Pw1 and DW1 and exhibit A1 to A8 .
On evaluation of complaint version and affidavit on record we would like to consider the following points.
(1)Whether there is any deficiency in service or unfair trade practice on the part of the opposite party?
(2) If so what are the reliefs and costs?
Point number 1 and 2
There is no dispute of the fact that the complainant had purchased tiles for his newly constructed house for Rs.73,700/- on 14-9-2018 from the opposite party. Exhibit A1 is the bill issued by the opposite party in the name of the complainant for an amount of Rs.73,700/- . It is proved by exhibit A2 which is the statement of account issued by the South Indian Bank that the complainant had transferred an amount of Rs.73,700/- to the opposite party on 14-9-2018 itself. Pw1 would depose before the commission that as per the direction of the opposite party on 19-9-2018 the complainant transferred Rs.1,00,000/- via NEFT, to the account of the concern. Exhibit A3 which is the statement of account issued by the Union Bank of India that the complainant had transferred an amount of Rs.1,00,000/- to the account of the opposite party on 19-9-2018. On that day the complainant had purchased articles worth Rs.43,600/- vide exhibit A4 bill issued by the opposite party. Thereafter, the complainant had purchased articles worth Rs.720 on 2-10-2018 vide exhibit A5 bill issued by the opposite party. Pw1 who is the complainant deposed before the commission that when he approached the opposite party with the unused tiles for the refund of the amount the opposite party refused to refund the money. According to the Pw1 though the opposite party accepted the balance tiles and issued exhibitA6, the opposite party was ready to supply the goods. On perusal of exhibit A6 we can see that it was recorded in A6 that “Cannot refundable supply materials only. 75700/” Exhibit A6 bears the signature and the seal of the opposite party.
Dw1 who is the proprietor of the opposite party concern admits the issuance of Exhibit A6. Dw1 deposed that the complainant had returned the articles worth Rs.5844/- on 31-10-2018 vide exhibit A6. The specific contention of the opposite party that at time of the initial purchase onwards they informed the complainant that he would accept those unused materials against replacement of goods only and no refund would be allowed. On perusal of Exhibit A1, A4 and A5 we can see that the complainant had made a purchase of articles worth Rs.1,18,020/- from the opposite party. As discussed above exhibits A2 and A3 proves that complainant had paid Rs.73,700/- and Rs.1,00,000/- to the opposite party . Thus, it is evident from the records that the opposite party had received Rs.55,680/- excess than the actual price of the articles purchased by the complainant. Admittedly, the complainant returned articles worth Rs.5844/- on 31-10-2018 to the shop of the opposite party. Though the complainant pleaded that he had returned articles worth Rs.14,200/- on 2-10-2018 he did not adduced any evidence to prove the same. However on perusal of exhibit A6, we can see that the opposite party had admitted that they were ready to supply the materials worth Rs.75,700/- to the complainant instead of the refund of the said amount. Thus we cannot rule out the case of the complainant that he had returned the article worth Rs.14,200/-. As discussed above we already found that the opposite party had received Rs.55,680/- excess than the actual price of the articles purchased by the complainant. Then the contention of the opposite party to the effect that on 31-10-2018 the complainant approached the opposite party with unused articles worth Rs.75,700/- is not sustainable. On perusal of exhibits A1 ,A4 and A5 it was recorded as point number 1in terms and conditions that “Once goods sold cannot be taken back”. But in point number 4 it was recorded as” Tiles will not be taken back in lose boxes” Thus it is clear that the opposite party will take back the tiles if it is not in lose boxes or opened boxes. It curtails the root of opposite party’s contention that they had sold the tiles with condition that they would not take back the items once sold to the customer.
On the basis of the above discussed evidence we are of the opinion that the opposite party had committed unfair trade practice by receiving excess amount than the actual price of the articles and not refunding the amount of the returned articles.
In the circumstances we allow the complaint and pass the following order.
- We hereby direct the opposite party to pay Rs.75,700/- to the complainant together with 9% interest from 31-10-218 till realization.
- We hereby direct the opposite party to pay Rs.2500/- as compensation to the complainant for the mental agony caused to him due to the deficiency in service and unfair trade practice by the opposite party.
Order shall be complied within 30 days from the date of receipt of this order.
Pronounced in the Open Commission on this the 19th day of July, 2022.
Sri. Manulal V.S. President Sd/-
Smt. Bindhu R. Member Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Sworn statement from the side of complainant
Pw1 – Biju Varghese
Sworn statement from the side of opposite party
Dw1 – Shaji P. Thomas
Exhibits marked from the side of complainant
A1 – Tax invoice dtd.14-09-2018 issued by opposite party
A2 – Bank account statement for the period of 01-09-18 to 27-09-18 issued by
South Indian Bank to the petitioner
A3 - Bank account statement for the period of 04-09-18 to 27-09-18 issued by
South Indian Bank to the petitioner
A4 – Tax invoice dtd.19-09-18 issued by opposite party to the petitioner
A5 - Tax invoice dtd.02-10-18 issued by opposite party to the petitioner
A6 – statement of account dtd.31-10-18 issued by opposite party
A7- Copy of lawyers notice dtd.13-06-2020 by Adv. Shaji George
A8 – Copy of lawyers notice dtd.23-06-2020 by Adv. Kuruvilla Varghese
Exhibits marked from the side of opposite party
Nil
By Order
Assistant Registrar
