BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 14TH December 2010
PRESENT
SMT. ASHA SHETTY : PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
SRI. ARUN KUMAR.K : MEMBER
COMPLAINT NO.160/2010
(Admitted on 22.5.2010)
Sri.M.Vasudeva Bhat,
S.o M.Narayana Bhat,
Aged 62 years,
Rat Flat No.303, 3 Floor,
Tiara Apartment,
Alvaris Road, Kadri,
Mangalore 575 002. …….. COMPLAINANT
(Advocate for Complainant: Sri.P.Ranjan Rao)
VERSUS
Sri.K.Ramachandra Bhat,
S.o K.Keshava Bhat,
Proprietor Aparna Steel Industries,
Halegatu, Post Sullia,
Dakshina Kannada. ….. OPPOSITE PARTY
(Advocate for Opposite Party: Sri.C.K.Nagesh)
ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:
This complaint is filed under Section 12 of the Consumer Protection Act alleging defective in goods as against the Opposite Party claiming certain reliefs.
The brief facts of the case are as under:
The Complainant submits that, the Opposite Party is the proprietor of the Aparna Steel Industries, situated at Sullia of D.K. District. The Complainant purchased an Arecanut Separator with 1.5 H.P. single-phase motor at a price of Rs.65,000/-. It is stated that, the above machine proved to be ineffective and dysfunctional, the same is brought to the notice of the Opposite Party. Upon notice, the Opposite Party offered to take back the machine and agreed to refund the sale price of Rs.65,000/- to the Complainant. It is stated that, on 15.2.2010, the Complainant returned the said arecanut separator to the Opposite Party. The same has been acknowledged by the Opposite Party and issued an acknowledgement having received the machine. The Opposite Party issued a cheque bearing No.080956 dated 15.3.2010 for Rs.65,000/- drawn on Corporation Bank, Sullia towards the refund of the sale price. The Complainant presented the above cheque in acknowledgement through his banker, the same has been returned with an endorsement dated 25.3.2010 “Insufficient funds” by the Opposite Party’s Banker. Therefore, the Complainant issued legal notice dated:31.3.2010 to the Opposite Party calling him to refund the sale price along with the interest and also incidental expenses, but the Opposite Party has failed to refund the same. Hence, the above complaint filed 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 pay Rs.65,000/- along with interest at 12% per annum and also pay the incidental charges of Rs.2,000/- towards transportation charges and also a sum of Rs.1,500/- towards the cost of the litigation expenses and further to pay to the Complainant a sum of Rs.5,000/- as compensation and cost of the proceedings.
2. Version notice served to the Opposite Party by RPAD. Opposite Party appeared through their counsel filed version admitted that he had supplied areca pealing unit/plant for Rs.65,000/-. It is also admitted that, the Opposite Party issued a cheque for Rs.65,000/- to the Complainant.
It is submitted that, the Opposite Party is having workshop at Sullia, the Complainant requested the Opposite Party to supply one arecanut pealing plant/unit and the same has been supplied to the Complainant. But it is denied that, the plant is ineffective and dysfunctional and stated that the Complainant had given encouragement to the Opposite Party for the invasion of areaca pealing unit in the initial stage and since he wants to return it to the Opposite Party, the Opposite Party issued the cheque for the amount paid after receiving the unit and stated that the Opposite Party is ready to pay the cost of the unit of Rs.65,000/- for which the cheque has been issued and stated that there is no deficiency and prayed for dismissal of the Complaint.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that the Areca Pealing unit/plant purchased by his from the Opposite Party proved to be defective?
- Whether the Complainant proves that Opposite Party committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, the Complainant – Sri Vasudeva Bhat (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C6 are produced as listed in the annexure. One Sri Ramachandra bhat, (RW-1) Proprietor of Opposite Party filed counter affidavit and answered the interrogatories served on him.
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before the Forum and answered the points are as follows:
Point No.(i) : Affirmative
Point No.(ii) to (iv): As per the final order.
REASONS
5. POINTS NO. (i) to (iv):
The facts which are not in dispute is that, the Complainant purchased an Areacanut Pealing Unit/Plant from the Opposite Party by paying Rs.65,000/-. It is also admitted that, the Opposite Party issued a cheque bearing No.080956 dated 15.3.2010 for Rs.65,000/- drawn on Corporation Bank, Sullia towards the refund of the sale price (as per Ex.C2). It is also admitted that, the arecanut pealing unit/plant purchased by the Complainant from the Opposite Party returned to the Opposite Party, the same has been ackwnowledged by the Opposite Party by issuing a acknowledgement for having received the same (as per Ex.C1). It is also admitted that, the cheque issued by the Opposite Party dated 15.3.2010 for sum of Rs.65,000/- has been dishonoured for ‘Insufficient Funds’ as per Ex.C3.
Now the point in dispute before this FORA is that, the Complainant purchased the areacanut pealing unit from the Opposite Party by paying Rs.65,000/- as sale consideration. Since the unit supplied by the Opposite Party is ineffective and dysfunctional, the same has been returned to the Opposite Party, the Opposite Party inturn paid the sale consideration amount of Rs.65,000/- by way of issuing cheque dated 15.3.2010. The same has been dishonoured as ‘insufficient funds’. Hence, it is contended that, the Opposite Party failed to pay the sale consideration till this date despite of taking back the defective machine, which amounts to to deficiency in service. Hence this Complaint.
The Opposite Party interalia denied the defect of the arecanut units sold by him and stated that, he is ready to pay the cost of the unit of Rs.65,000/- for which cheque has been issued and contended that there is no deficiency.
However, the Complainant filed oral evidence by way affidavit and produced Ex C1 to C6. The Opposite Party also filed affidavit and answered the interrogatories served by the Complainant.
On perusal of the oral as well as documentary evidence placed on record, we find that, the Opposite Party in this case categorically admitted that, he had sold the Arecanut Pealing Unit/Plant with 1.5 H.P. single-phase motor at a price of Rs.65,000/- to the Complainant and the same has been received back by the Opposite Party and issued an acknowledgement dated 15.2.2010 for having received the machine. After receiving the above said unit, the Opposite Party issued a cheque bearing No.080596 dated 15.3.2010 for Rs.65,000/- drawn on Corporation Bank, Sullia towards the sale price received by him. But, the cheque has been returned with an endorsement dated 25.3.2010 to the Complainant as there is no insufficient funds in Opposite Party’s account. When that being the case, the Opposite Party now cannot contend that, the machine supplied by him was in working condition or defect free. It is pertinent to note that, no dealer/manufacturer will refund the sale price without there being any defect in the machine. It could be seen that, the Opposite Party acknowledged the machine and issued a cheque for Rs.65,000/- i.e. sale price, if at all, the machine was in working condition the Opposite Party ought not have received the machine or refund the amount. That itself shows that, the machine supplied by the Opposite Party was defective and thereby he refunded the sale price of Rs.65,000/- by way of cheque dated 15.3.2010 drawn on Corporation Bank, Sullia.
We further noticed that, the Opposite Party by filing a version stated that, he is ready to pay the cost of the arecanut unit of Rs.65,000/- for which cheque has been issued. If at all he is ready to pay the amount, the Opposite Party should not have allowed the Complainant to file this Consumer Complaint before this Forum. Because, the consumer complaint came to be filed on 19.5.2010 and the same has been admitted before this FORA on 22.5.2010. Before registering the above complaint, the Complainant issued a legal notice dated: 31.3.2010 to the Opposite Party. Atleast after receipt of the legal notice the Opposite Party should have paid the amount of Rs.65,000/- to the Complainant. But in the instant case, the Opposite Party not paid the above said amount of Rs.65,000/- i.e. sale consideration paid by the Complainant till this date amounts to deficiency in service.
Under that circumstances, we direct the Opposite Party i.e. Aparna Steel Industries, Sullia, D.K. District., Represented by its Proprietor, Sri.K.Ramachandara Bhat is hereby directed to pay Rs.65,000/- along with interest at 10% per annum from the date of cheque till the date of payment to the Complainant.
In the present case, interest considered by this Forum itself is compensation and therefore, no separate amount for compensation is awarded. Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
6. In the result, we pass the following:
ORDER
The complaint is allowed. The Opposite Party i.e. Aparna Steel Industries, Sullia, D.K. District., Represented by its Proprietor, Sri.K.Ramachandara Bhat is hereby directed to pay Rs.65,000/- (Rupees Sixty five thousand only) to the Complainant along with interest at 10% per annum from the date of cheque till the date of payment and Rs.1,000/- (Rupees One thousand only) awarded towards the litigation expenses. Payment shall be made within 30 days from the date of this order.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.
(Page No.1 to 9 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 14th day of December 2010.)
PRESIDENT MEMBER MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Sri Vasudeva Bhat – Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – 15.2.2010: Original letter of the Opposite Party for acknowledging the return of the machine.
Ex C2 – 15.3.2010: Notarised copy of the cheque bearing No.080956 fro Rs.65,000/- of Corporation Bank, Sullia.
Ex C3 – 25.3.2010: Notarised copy of the Memo of dishonour issued by Corporation Bank, Sullia.
Ex C4 –26.3.2010: Notarised copy of the memo issued by Karnataka Bank, Bunder Branch, Mangalore.
Ex C5 – 31.3.2010: Office copy of the registered legal notice issued to the Opposite Party.
Ex C6 –1.4.2010: Notarised copy of the postal acknowledgement.
Witnesses examined on behalf of the Opposite Party:
RW-1: Sri Ramachandra Bhat, Proprietor of the Opposite Party.
Documents produced on behalf of the Opposite Party:
-Nil-
Dated:14.12.2010 PRESIDENT
