JUDGMENT Per Jagroop Singh Mahal, Member This appeal by opposite party is directed against the order dated 3.8.2010 passed by District Consumer Forum-II, U.T. Chandigarh whereby complaint bearing No.582/2009 of respondents/ complainants was allowed with costs of Rs.5000/- and OP was directed to refund the sum of Rs.20,000/- alongwith compensation of Rs.20,000/-. The aforesaid amounts were directed to be paid to the complainants within 45 days from the date of receipt of certified copy of the order, failing which OP was made liable to pay the interest @ 18% p.a. on the amount of Rs.40,000/- from the date of filing the complaint i.e. 24.4.2009 till actual payment besides costs of Rs.5000/-. 2. In nutshell, the facts as set out in the complaint are that the husband of complainant No.1 and father of complainant No.2 i.e. late Sh.S.C.Kapoor engaged OP for fixation of finished stainless steel gates at his residence. The rate was fixed @Rs.340/- per kg and an advance of Rs.20,000/- was paid to OP for the said work against which he issued a receipt on the back of his visiting card and promised to supply and fix the gate by 20.3.2009 and also promised to issue a regular receipt. However, OP neither issued a regular receipt, nor supplied the gate inspite of several requests in that regard. The architect who had recommended OP for doing the job was also contacted and on his asking OP promised to supply the gate by 20.4.2009 but the same was not supplied. Hence, alleging deficiency in service and unfair trade practice on the part of OP, complainant filed complaint before the District Forum. 3. OP contested the complaint before the District Forum and filed reply inter-alia stating therein that initially Rs.5000/- was paid to him as advance without any receipt for the supply of stainless steel gate as per drawing and design given by the complainant and the rate of Rs.340/- per kg. was decided against the approximate weight of gate to the tune of 200 kg. However, on 12.3.2009 the cost of gate was settled at Rs.70,000/- approximately (without wood, but against actual weight @Rs.340/- per.kg.) excluding masonry job. It was orally decided that the gate would be supplied within six weeks from 12.3.2009 i.e. by 26.4.2009 and on agreeing to this, complainant paid another amount of Rs.15,000/- and for receiving the amount of Rs.20,000/- a ‘kachchi’ receipt was issued. It was pleaded that the gate was ready for delivery by 20.4.2009 and complainant was informed on that very date to come, verify and collect the gate after paying the balance amount for the finished gate as per his design and against actual weight to be weighed in his presence. The complainant insisted to send the gate at his residence but when OP showed his inability to send it without a Proper Bill which includes a VAT of 12.5% extra on the total cost of the gate as per weight, the OP became furious and threatened him. The complainant then in order to pressurize OP and harass him, filed a criminal complaint of cheating and forgery with Police Station Sector 3, Chandigarh where both the parties appeared and statement of OP was recorded but the complainant refused to record his statement before the police and kept on insisting for refund of Rs.20,000/-. Sub-Inspector Sohan Singh personally inspected the factory premises of OP on 7.5.2009 where the gate was lying in a finished condition. He also took photographs of the finished gate and on the basis of enquiry the police found no such case made out against the OP. 4. After going through the evidence and hearing learned counsel for the parties, District Forum allowed the complaint as indicated in the opening part of this judgment. 5. We have heard learned Counsel for the parties and gone through the file carefully. Learned counsel for appellant/OP has argued that the complainant had paid Rs.5000/- as advance on 8.3.2009 and Rs.15,000/- on 12.3.2009 for making a stainless steel gate. According to him, gate was to be supplied by 26.4.2009. All these facts are denied by respondents/complainants. Their contention is that agreement was entered into in February,2009 when payment was made and the gate was to be supplied by 20.3.2009. Annexure R-2 is copy of the entries from the cash book maintained by OP showing that Rs.5000/- were paid on 8.3.2009 and Rs.15,000/- on 12.3.2009. This document therefore cannot be disputed. If the payment was made on 12.3.2009 it appears difficult that the gate would have been prepared by 20.3.2009 within a period of 8 days. This date is contradicted by the complainants themselves because in para-3 of the complaint it is mentioned that the gate was to be supplied and fixed by 20.3.2009 whereas in para-8 of the complaint it is mentioned that the OP promised to supply the gate by 20.4.2009. Similarly in the affidavit submitted by the complainants these two date have been given. As earlier stated the contention of complainants is that in fact the gate was to be supplied by 26.4.2009 but this fact was not accepted by the learned District Forum. When a finding has been recorded by the District Forum which is in favour of the complainant and there is no worthwhile evidence to contradict the same, we would not be inclined to reverse that finding of fact recorded by the learned District Forum. We are, therefore, of the view that the gate was to be supplied by 26.4.2009. 6. Learned counsel for appellant argued that in fact complainants wanted that the gate be sent to their residence without making any further payment but it was very risky for OP as the same could be detected by the Excise & Taxation authorities on the way if it was transported without any bill. The complainants were not willing to make payment and therefore their gate was not sent by OP due to which complainants got offended and complained against him to the police where he was called and threatened. However, when the police realized that there was no fault of OP and the gate was lying ready in his factory premises which complainant was not lifting by paying the remaining amount, they let the OP go and did not take any action against him. 7. It is also argued by the learned counsel for appellant that the gate was to be supplied by 26.4.2009 but even if it is presumed that it was to be supplied by 20.4.2009, respondent did not take delivery of the gate by paying the remaining amount and had rather drafted the complaint on 24.4.2009 just four days of the said date. Learned counsel argued that their intention was clear to harass OP who had already invested huge amount in making the said gate for which he had received only Rs.20,000/- and the same has also been ordered to be refunded alongwith another sum of Rs.20,000/-. Learned Counsel argued that the impugned order is perverse and should not sustain. It is true that the complaint had been drafted in haste within four days of the deadline set out for supply of the gate yet complainant is entitled to the return of the amount as OP had not performed his part of the agreement. 8. It is also argued by the learned counsel for appellant that on one hand a sum of Rs.20,000/- has been ordered to be refunded and on the other hand Rs.20,000/- is ordered to be paid as compensation as well as interest @ 18% p.a. has been imposed on OP which is excessive. Learned counsel for OP has argued that infact he is the sufferer in the entire case because the gate was prepared by him by spending Rs.70,000/- which is now of no use as it cannot be sold in the market because everybody gets gate of his choice prepared on order. Even the amount of Rs.20,000/- which is ordered to be paid as compensation alongwith refund of the amount is excessive. We find merit in his contention. We accordingly modify the order of the learned District Forum and direct the OP/appellant to refund the amount of Rs.20,000/- alongwith interest @ 9% p.a. since the date of its receipt till payment to the complainant. Since interest is being allowed therefore awarding compensation of Rs.20,000/- is not justified. The OP shall also pay Rs.5000/- as litigation costs as awarded by the learned District Forum. The entire amount shall be paid within 30 days from the date of receipt of copy of this order, failing which the OP/appellant would be liable to pay interest @ 12% p.a. with effect from today till payment is made. With this modification, the appeal is dismissed. Parties are to bear their own costs.
| | HON'BLE MR. JAGROOP SINGH MAHAL, MEMBER | HON'BLE MRS. NEENA SANDHU, PRESIDING MEMBER | , | |
