BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the  30^TH March 2015

PRESENT

              SMT. ASHA SHETTY   :  HON’BLE PRESIDENT

               SRI T.C. RAJASHEKAR       :   MEMBER                                         

COMPLAINT NO.98/2014

(Admitted on 21.3.2014)

Mr.Sadashiva Kini,

Aged 76 years,

S/o K.Upendra Kini,

Residing at: 3-T,’Ashirward’,

Kasturi Ranga Apartments,

Barke Road, Mannaguddu,

Mangalore.                               …….. COMPLAINANT

(Advocate for Complainant: Sri M.Vinayak Prabhu)

          VERSUS

Sri Durga Home Nursing, Training & Service ®,

Rep by Kishan Anchan, Shop No.19,

Thaz Towers, Opposite K.S. Hegde Hospital,

Deralakatte, Mangalore-575 018.

And also at Nithyananda Nagar,

Belma Village,

Mangalore 575 018.                   ……OPPOSITE PARTY

(Opposite Party:  Exparte)

ORDER DELIVERED BY HON’BLE PRESIDENT

SMT. ASHA SHETTY:

I.      1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service as against the Opposite Party claiming certain reliefs.

The brief facts of the case are as under:

The complainant stated that, his wife undergone a major operation of Brest cancer and she is a diabetic patient as of this circumstances she needed at most care supervision of nurse who is well worse in taking care of her from time to time.  That being so he has come across the advertisement in Udayavani daily newspaper given by the Opposite Party and the complainant contacted the Opposite Party and the Opposite Party agreed to provide a house nurse by signing an agreement dated 28.12.2013. As per the agreement the Opposite Party agreed to provide house nurse for period of three months  without any fail and had to pay registration charges Rs.2,000/- on the signing of the agreement and also had to pay advance payment of Rs.8,500/-.  The complainant had paid a sum of Rs.8,500/- on 28.12.2013 for service of nurse for January month in 2014 and the Opposite Party had issued a valid receipt.  It is stated that the Opposite Party provided a nurse but she was not looking after the wife of the complainant and nurse was busy over the mobile phone and not bothered about the patient wellbeing.  And also stated that the said nurse not able to inject insulin injections which requests for the patient.  It is stated that end of January 2014 the Opposite Party came to the complainant’s house to receive Rs.8,500/- and thereafter the nurse provided by the Opposite party was left stating that her term is over, but the Opposite Party not provided the nurse nor replied when the complainant was called and it is stated that due to the deficiency of service provided of the Opposite Party the complainant had to engaged other staffs by paying extra amount.  It is stated that contrary to the terms of the agreement the Opposite Party have not turn up to either provide the service of the house nurse nor refunded the advance amount paid by him. Feeling aggrieved by the above, the complainant filed the above complaint under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to refund the amount of Rs.8,500/- paid to the Opposite Party for providing house nurse with interest at the rate of 12% per annum along with compensation and cost of the proceedings.

II.     1. Version notice served to the Opposite Party by R.P.A.D. Opposite Party inspite receiving version notice not appeared nor represented the case till this date. Hence Opposite Party placed exparte and postal acknowledgement marked as Court Doc.No.1.

III.    1.  In support of the complaint, Sri Sadashiv Kini (CW1) – Complainant filed affidavit reiterating what has been stated in the complaint and produced Ex. C1 to C6. Opposite Party placed exparte.

        In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the Complainant proves that the Opposite Party has committed deficiency in service?

2. If so, whether the Complainant is entitled for the reliefs claimed?

3. What order?

                We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:

                                Point No.(i): Affirmative.

                                Points No.(ii) & (iii): As per the final order.      

REASONS

IV.    1.  POINTS NO. (i) TO (iii):

In order to substantiate averments made in the complaint, the complainant filed affidavit in support of documents, wherein, the Ex.C1 is the copy of the duly signed agreement dated: 28.12.2013,  wherein the Opposite party had undertaken to provide house nurse for three months and under the said agreement in case if the Opposite Party does not wish to provide service to the complainant,  in such an event the complainant shall request the Opposite party to provide alternative candidate by paying necessary charges and also received Rs.2,000/- towards service charges and Rs.8,500/- as advance payment per month.  Further the Opposite Party has undertaken with the complainant given 15 days prior notice in writing to the Opposite Party if the complainant does not wish to continue the service of the candidate.  Ex.C2 to C4 are the receipts for payment of Rs.2,000/- dated 28.12.2013 and one more receipt Rs.8,500/- dated 28.12.2013 and again taken one more receipt dated 28.1.2014 i.e. for Rs.8,500/-.  Ex.C5 is the legal notice dated 14.2.2014 issued to the Opposite Party by the complainant along with Postal acknowledgment.  The above documents proved beyond doubt that the Opposite Party had undertaken to provide house nurse to the complainant by receiving in total sum of Rs.21,000/- all together but provided only one month service inspite of agreeing to provide for three months in this case. However, it is the bounden duty of the Opposite Party i.e. Sri Durga Home Nursing, Training and Service, Mangaluru to provide home nurse as agreed by them under the above said agreement. Since the Opposite Party failed to adhered to the terms of the agreement, which amounts to deficiency in service as well as unfair trade practice.

Apart from the above, the Opposite Party inspite of receiving version notice not bothered to appear nor represent the case till this date and the entire material evidence produced by the complainant are not contradicted nor controverted which requires no further proof.

By considering the material evidence available on record, we find that the Opposite Party i.e. Sri Durga Home Nursing, Training and Service center not provided the house nurse as agreed by them   inspite of receiving consideration from the complainant.  Thereby the Opposite Party has committed deficiency in service as well as unfair trade practice.

In view of the aforesaid reasons, the Opposite party i.e. Sri Durga Home Nursing, Training and Service represented by its Authorized Signatory, Kishan Anchan is hereby directed to refund the  amount of Rs.21,000 – 8,500 =  Rs.12,500/-  (8,500 is deducted for one month service) (Rupees Twelve  thousand five hundred only) to the Complainant  and also directed Rs.5,000/- (Rupees Five thousand only)  as harassment and inconvenience caused to the complainant and to pay Rs.3,000/- (Rupees Three thousand only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.

        In the result, we pass the following:-     

ORDER

The complaint is allowed. the Opposite party i.e. Sri Durga Home Nursing, Training and Service represented by its Authorized Signatory - Kishan Anchan shall pay a sum of Rs.12,500/-  (Rupees Twelve thousand five hundred only) to the Complainant and also pay Rs.5,000/- (Rupees Five thousand only) as damages to the complainant and Rs.3,000/- (Rupees Three thousand only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.

In case of failure to pay the above mentioned amount within the stipulated time, the Opposite Party are directed to pay interest at the rate of 12% per annum on the above said total amount from the date of failure till the date of payment.

Copy of this order as per statutory requirements, be forward to the parties and file shall be consigned to record room.

 (Page No.1 to 9 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 30^th  day of March  2015)

                    PRESIDENT                      MEMBER

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 – Mr.Sadashiva Kini – Complainant.

Documents produced on behalf of the Complainant:

Ex C1: 28.12.2013: Complainant’s copy of the signed Agreement.

Ex C2: 28.12.2013:Original acknowledgement of registration fees paid of Rs.2,000/-.

Ex C3: 28.12.2013: Original Acknowledgment of amount paid of Rs.8,500/-.

Ex C4: 28.1.2014: Original Acknowledgment of amount paid Rs.8,500/-.

Ex C5: 14.2.2014: Office copy of the Legal Notice sent to the Opposite Party.

Ex C6: Two Postal Acknowledgments.

COURT DOCUMENT:

Doc No.1: Postal acknowledgment.

Witnesses examined on behalf of the Opposite Party:

- Nil -

Documents produced on behalf of the Opposite Party:       

- Nil -

Dated:30.3.2015                             PRESIDENT