COMPLAINT FILED: 26.10.2009 <br /> DISPOSED ON: 11.08.2010<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> DATED THIS THE 11TH AUGUST 2010<br /> <br /> PRESENT:- SRI. B.S.REDDY PRESIDENT <br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI.A.MUNIYAPPA MEMBER<br /> <br /> COMPLAINT NO.2478/2009<br /> <br /> <br /> COMPLAINANT <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> Venkatesh Gowda.T.M.<br /> S/o Sri. Muniyappa,<br /> Aged about 49 Years,<br /> No.149, 5th Cross,<br /> Gandhinagar, Bangalore.<br /> Now at: No.25/1, 1st Floor,<br /> 3rd Cross, 6th Main,<br /> Gandhinagar,<br /> Bangalore – 560 009.<br /> <br /> Advocate: Sri. Vijaya Kumar<br /> <br /> <br /> V/s.<br /> <br /> <br /> OPPOSITE PARTY Tata Teleservices Limited <br /> ‘A’ Block, Silicon Terraces,<br /> 30/1, Hosur Main Road,<br /> Koramangala,<br /> Bangalore – 560 095.<br /> Rep. by its Managing Director<br /> <br /> Advocate: <br /> Sri. Krishna Murthy M.R.<br /> <br /> O R D E R<br /> <br /> SRI. B.S.REDDY, PRESIDENT<br /> <br /> The complainant filed this complaint u/s. 12 of the C.P. Act of 1986 seeking direction against Opposite Party (herein after called as OP) to pay an amount of Rs.3,098/- with interest at 2% per month and compensation of Rs.50,000/- towards mental agony on an allegations of deficiency in service on the part of the OP.<br /> <br /> The case of the complainant to be stated in brief is that:-<br /> <br /> 2. The complainant received a call from OP informing that there is a new scheme of the company where in the complainant is to pay down payment of Rs.2,999/- and Rs.100/- for sim card where by the complainant will get a mobile namely Model No.U3C by name Motorazar. Two representatives of OP approached the complainant on 20.09.2007, collected sum of Rs.3,098/- by means of account payee cheque and filled up an application form with regard to the said scheme and took signature of the complainant. The representatives of OP also gave a original proof of delivery. The said representatives of OP told the complainant that within 2 weeks they will deliver the aforesaid mobile Motoraza model and complainant to hand over the said original proof of delivery on receipt of the said mobile phone. The cheque was duly enchased. The complainant waited for 2 weeks none of the representatives of the OP got delivery of the said mobile phone. Complainant made several calls to the office of the OP but there was no response. Then he approached the office of the OP several times, the representatives of OP went on telling that they are enquiring into the matter and thus went on postponing the issue for nearly about 1 ½ years assuring that they will deliver the mobile phone. Till today OP has not delivered the mobile phone. The complainant made a complaint to the OP, the same was registered on 16.05.2009. Subsequently complainant received call from representatives of OP on 19.05.2009 asking the complainant to contact one Mr.Nagaraj. The said Mr.Nagaraj dodged the complainant that he will enquire the matter and get back to the complainant. Complainant got issued legal notice dated 11.06.2009 stating that he is not interested to take delivery of the mobile phone; demanded to refund the amount paid with interest at 12% per month along with compensation of Rs.50,000/- for having caused mental agony to the complainant, as complainant was made to run pillar to post. OP inspite of receipt of notice neither replied the notice nor complied the demand for refund of the amount. OP deliberately went on dragging the matter and committed deficiency in service. Thus complainant filed this complaint seeking the above said relief.<br /> <br /> 3. OP on appearance filed version contending that the complainant himself shown interest in the plan and opted for the same. It is denied that the complainant received a call regarding new scheme from OP. It is admitted that the complainant paid sum of Rs.3,098/- through cheque and filled the application form and put signature. It is denied that he was informed that within 2 weeks the mobile will be delivered to him. The OP informed the complainant that after his application is accepted, the mobile hand set with connection will be provided. It is denied that the complainant approached several times OP and OP went on telling him that they are enquiring into the matter and postponed the issue nearly 1½ years. It is contended that the complainant has given complaint and OP assured they will look into the matter and take steps to refund the amount as his application was not accepted. OP has not received legal notice issued by complainant. It is denied that the OP deliberately went on dragging the matter and committed deficiency in service. OP is not liable to pay compensation of Rs.50,000/-. It is contended that due to technical defect in the application of the complainant was rejected and the same was informed to him telephonically. OP has also offered to take back the amount. The complainant by one or the other reason refused to take back the amount. On 10.12.2007 a cheque bearing No.389255 for a sum of Rs.3,098/- was sent to the complainant through Blue Dart Courier. However the said courier returned back undelivered. The complainant has not made any efforts to claim the amount all these days. Now he has filed the complaint claiming interest at the rate of 2% per month for which he is not entitled as cheque was sent in the month of December’ 2007 and he has not claimed the same. The complainant has filed this complaint to make unlawful gain. Hence it is prayed to dismiss the complaint with exemplary costs.<br /> <br /> 4. In order to substantiate the complaint averments the complainant filed affidavit evidence and produced documents. Manager – legal of the OP filed affidavit evidence in support of defence version and produced documents. Arguments heard on both sides.<br /> <br /> <br /> 5. Points that arise for our consideration are:-<br /> <br /> Point No.1 :- Whether the complainant has Proved <br /> the deficiency in service on the part of <br /> the OP?<br /> <br /> Point No.2 :- If so, whether the complainant is <br /> entitled for the relief’s now claimed?<br /> <br /> Point No.3 :- To what Order?<br /> <br /> <br /> 6. We record our findings on:-<br /> <br /> Point No.1:- Affirmative<br /> Point No.2:- Affirmative in part<br /> Point No.3:- As per final Order.<br /> <br /> R E A S O N S<br /> <br /> 7. At the out set it is not at dispute that the complainant being practicing advocate by profession paid an amount of Rs.2,999/- and Rs.100/- for sim card to the OP to get a mobile namely Model No.U3C by name Motorazar on 20.09.2009 through account payee cheque bearing No.491004 dated 20.09.2007 drawn on the Karnataka Bank Ltd., City Civil Court Extension Counter. The application form required for the said scheme is stated to have been filled up by the representative of OP and obtained the signature of the complainant. The representatives gave a original proof of delivery namely serial No.KR00132541. The representatives assured the complainant that within two weeks they will deliver the aforesaid mobile. OP failed to keep up its promise, the complainant visited the office of the OP, he could not get satisfactory answer. For about 1½ years OP went on assuring that they will deliver the mobile phone. The complainant lodged complaint with OP and the same was registered on 16.05.2009. One Ganesh Rao contacted the complainant on 19.05.2009 asking to contact one Nagaraj. The complainant also contacted the said Nagaraj, he also dodged saying he will enquire into matter and get back to the complainant. The complainant being fed up with OP caused legal notice dated 11.06.2009 stating that he is not interested to take delivery of the mobile; demanding to refund the amount with interest and compensation. OP has not replied for the said notice. Thus the complainant felt deficiency in service on the part of the OP in not refunding the amount or in not delivering the mobile phone as assured. <br /> <br /> 8. The defence of the OP is, the applications submitted by the complainant was not in order, the same was not accepted. Due to technical defect in the application, the same was rejected; the complainant was informed telephonically regarding the same. OP offered to refund the amount, but the complainant by one or other reasons refused to take the refund of the amount. On 10.12.2007 cheque for a sum of Rs.3,098/- was sent to the complainant through Blue Dart Courier, but the said courier returned undelivered. The complainant has not approached the OP to collect the amount. Thus it is contended that there is no deficiency in service on the part of the OP. OP is not liable to pay interest claimed and compensation. <br /> <br /> 9. The complainant produced the copy of the original application form, original proof of delivery copy of the pass book, copy of the legal notice. The postal acknowledgement for having received the notice by OP was not returned. Hence Superintendent of Post office by his letter dated 06.08.2009 informed that RL was delivered on 13.06.2009. Thus it becomes clear that inspite of receipt of legal notice OP has falsely denied the receipt of the notice. OP has not bothered to reply for the said notice. No steps are taken to refund the amount after receipt of the said notice. In case if the application was rejected for any reason, nothing prevented the OP to inform the complainant asking him to get back his amount. There is no material to show that OP has informed the complainant telephonically about the rejection of the application and offered to refund the amount. Though OP has produced Blue Dart Courier receipt with cover, covering letter and cheque dated 10.12.2007 for Rs.3,098/-, but the receipt is not clear to hold that the same was sent to the complainant. In case if the cheque was sent through courier there was no reason for the complainant in not accepting the courier. For the first time in the defence version OP has come up with a plea of sending cheque through courier. Earlier to that the complainant was not informed about the rejection of the application when the complaint was lodged on 16.05.2009 and the legal notice was issued on 11.06.2009. Under these circumstances we are of the view that OP in not fulfilling its obligation of delivering mobile phone within a reasonable time or refunding the amount collected from the complainant amounts to deficiency in service on its part. The complainant was made to suffer for more than two years by dragging the matter and making him to move from pillar to post, as such he has suffered mental agony and physical strain for which a reasonable compensation of an amount of Rs.5,000/- to be awarded. Accordingly we proceed to pass the following:<br /> <br /> O R D E R<br /> <br /> The complaint filed by the complainant is allowed in part. OP is directed to refund an amount of Rs.3,098/- with interest at 12% p.a. from 20.09.2007 till the date of realization and pay compensation of Rs.5,000/- with litigation cost of Rs.2,000/- to the complainant. <br /> <br /> This order is to be complied within four weeks from the date of this order. <br /> <br /> Send copy of this order to both the parties free of costs. <br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 11th day of August 2010.) <br /> <br /> <br /> PRESIDENT<br /> <br /> MEMBER MEMBER <br /> <br /> Snm: <br /> <br /> <br />