BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 30^{th SEPTEMBER} 2015

PRESENT

        SMT. ASHA SHETTY           :  HON’BLE PRESIDENT

        SMT.LAVANYA M. RAI        :   HON’BLE MEMBER                                        

                                                                                      COMPLAINT NO. 68/2015

(Admitted on 13.02.2015)

Mr. Ayaz Mukthar

S/o. K.M. Mohammad,

Aged about 45 years,

R/a. Bawa Manzil, K.S.R. Nagar,

Mulki, Mangalore Taluk.          …….. COMPLAINANT

(Advocate for Complainant: Sri K.B. Arasa.)

VERSUS

The  Manager,

P.S.N. Automotive Marketing

Pvt.,Ltd., No. 263/5, Emmirence

11^th cross, Wilson Garden,

Bangalore-560 027.                 ……OPPOSITE PARTY

(Opposite Party : Ex-parte)

ORDER DELIVERED BY HON’BLE PRESIDENT  

SMT. ASHA SHETTY

1. This complaint is filed under section 12 of the Consumer Protection Act alleging repayment in advance as against the opposite party claiming certain reliefs.

The brief facts of the case are as under:

The complainant is a businessman and he was doing transport work at Bangalore. The opposite party given assurance that they will deliver the goods vehicle with in one week.  On the assurance given by the opposite party the complainant booked a new EICHER Goods vehicle on 10.05.2014. The opposite party received a sum of Rs. 31,000/- as cash and in this regard the opposite party issued receipt of Rs. 31,000/-.

 The opposite party not kept up their promise and not delivered the goods vehicle within one week and the complainant waited till end of May 2014. Even then, the opposite party not delivered the goods vehicle.  Due to non-delivery of the goods vehicle by the opposite party within time, the complainant lost his contract work at Bangalore.

That, due to the non-delivery of the vehicle by the opposite party in time the complainant lost his transport contract work and the complainant not refunded the advance amount paid by the complainant to the opposite party. Hence   the above complaint filed U/sec 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 a sum of Rs. 31,000/- along with interest at 18% per annum from the date of payment till the realization to the complainant along with compensation and cost of the proceedings.

II.      1. Version notice served to the opposite party by R.P.A.D, even after receiving version notice neither appeared nor contested the case before this For a till this date. Hence we have proceeded ex-parte as against the opposite party.  The acknowledgment marked as court Document No. 1.

III.   1. In support of the complaint, Mr. Ayaz Mukthar. (CW1) the Complainant filed affidavit reiterating what has been stated in the complaint and produced Ex. C1 to C3. Opposite Party ex-parte.

          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 repayment of advance from the opposite party have committed deficiency in service?
2. Whether the complainant proves that the opposite parties have committed deficiency in service?
3. If so, whether the complainant is entitled for the reliefs claimed?
4. What order?

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

Point No. (i) and (ii): Affirmative

Point No. (iii) and (iv). As per the final order.

REASONS

IV. 1. POINTS NO. (i) to (iv): The complainant in order to substantiate the averments made in the complaint filed affidavit supported by documents i.e. Ex C-1 to C-3, wherein the Ex C1 is the receipt date 10.05.2014 for having been paid Rs. 31,000/- toward advance amount.  The Ex C-2 is the legal notice shows that the opposite parties inspite of taking advance amount to deliver a new EICHER goods vehicle on 10.05.2014, but failed to deliver the vehicle to the complainant.   It shows gross negligence on the part of the opposite party and also the service rendered by the opposite party amounts to deficiency in service as well as unfair trade practice.  Therefore, the opposite party is liable to either refund the advance amount received from the complainant.  

  Further, the opposite party in-spite of receiving version notice not appeared nor contested the case till this date. That the entire evidence placed by the complainant not contradicted nor controverted by the opposite party. That, the unrebutted evidence requires no further proof. Therefore the opposite party are liable to refund the entire amount paid by the complainant and also pay adequate damages for the inconvenience caused to complainant.  Further we also noted that, the opposite party inspite of receiving legal notice not attempted to refund the amount nor replied to the legal notice.  Therefore, we hold that, the opposite party is liable to refund the amount along with damages. By considering the inconvenience we hereby directed the opposite party to pay Rs. 5,000/- as damages.

 In view of the aforesaid discussion, we hold that, the Opposite Party shall refund Rs. 31,000/- and also pay Rs. 5,000/- as a damages and further pay Rs. 3,000/- as litigation expenses. Payment shall be made within 30 days from the date of receipt of this order.

In the result, we pass the following:

ORDER

The complaint is allowed. The opposite party  shall refund  ₹ 31,000/ and also pay Rs. 5,000/- as a damages and further pay Rs. 3,000/- as litigation expenses. Payment shall be made within 30 days from the date of receipt of this order.

In case of failure to pay the above mentioned amount within the stipulated time, the Opposite Party is 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 7 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 30^th day of SEPTEMBER 2015)

PRESIDENT                                      MEMBER

 (SMT. ASHA SHETTY)                     (SMT. LAVANYA M.RAI)

D.K. District Consumer Forum                      D.K. District Consumer Forum

               Mangalore.                                                   Mangalore.

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW-1  :       Mr. Ayaz Mukthar                  – Complainant.

Documents produced on behalf of the Complainant:

Ex. C1 :      10.05.2014         :         The Receipt

Ex. C2 :      09.08.2014         :         The office copy of the

lawyers notice.

Ex. C3 :      14.08.2014         :         The Postal acknowledgment

                                                          of the above.

 Witnesses examined on behalf of the Opposite Party:

- Nil -

Documents produced on behalf of the Opposite Party:      

- Nil -

Dated: 30.09.2015.                                 PRESIDENT

ORDER

The complaint is allowed. The opposite party shall refund ₹ 31,000/ and also pay Rs. 5,000/- as a damages and further pay Rs. 3,000/- as litigation expenses. Payment shall be made within 30 days from the date of receipt of this order.

In case of failure to pay the above mentioned amount within the stipulated time, the Opposite Party No. 1 to 3 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 7 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 30^th day of SEPTEMBER 2015)

        PRESIDENT                   MEMBER