Andhra Pradesh

Visakhapatnam-II

CC/198/2011

Manda Venkateswara Siva Rao - Complainant(s)

Versus

The Proprietor - Opp.Party(s)

M. Chandrasekhara Rao

07 Jan 2015

ORDER

Reg.of the Complaint:01-06-2011

 Date of Remand Order:13-06-2012

                                                                                                                                 Date of Order:07-01-2015 BEFORE THE DISTRICT CONSUMERS FORUM-II

AT VISAKHAPATNAM

                   Present:

1.Sri H.ANANDHA RAO, M.A., L.L.B.,

      President

2.Sri C.V.N. RAO, M.A., B.L.,

                                             Male Member

3.Smt.K.SAROJA, M.A., B.L.,

       Lady Member

                                            

 

 

WEDNESDAY, THE 7^TH DAY OF JANUARY, 2015

CONSUMER CASE NO.198/2011

 

BETWEEN:

SRI MANDA VENKATESWARA SIVA RAO

S/O LATE N.V.RAMANAYYA, HINDU,

AGED 62 YEARS, RETD., GOVERNMENT EMPLOYEE,

R/AT D.NO.5-19-25/5, FLAT C-2,

SRI VENKATESWARA RESIDENCY,

N.G.G.O’s COLONY, CHANDRAMPALEM,

P.M.PALEM POST, MADHURAWADA, VISAKHAPATNAM.

                                                                                   …COMPLAINANT

A N D:

THE PROPRIETOR, HERITAGE FURNITURE

PROPRIETORY CONCERN, REP. BY B.VENKATA NAIDU,

S/O NOT KNOWN, AGE NOT KNOWN, R/AT D.NO.9-14-11/1, C.B.M.COMPOUND,  VISAKHAPANTAM.

                                                                                      …OPPOSITE PARTY

 

This case coming on 31-12-2014 for final hearing before this Forum in the presence of Sri.M.Chandrasekhar Rao, Advocate for the Complainant and of Sri.A.Prabhakar Reddy, Advocate for the Opposite Party, and having stood over till this day for consideration, the Forum made the following:

 

O  R  D  E  R

(As per the Honourable President on behalf of the Bench)

1.     The Complainant filed the present complaint against the Opposite Party, directing him to pay balance amount of Rs.24,000/- with accrued interest @ 18% p.a., from the date of order i.e., 10-12-2010 till the date of realization, and to pay a sum of Rs.20,000/- towards compensation and Rs.5,000/- towards litigation.

2.     The case of the complainant in brief is that the Opposite Party is a Private Proprietary Concern represented by its Proprietor doing Furniture Business  and he placed an order of the furniture before OP on 10-12-2010 i.e., 1. Mega Sofa Set worth of Rs.42,000/-, Lotus Dining Table of Rs.24,000/-, Melodi Cot of Rs.26,000/-,  Pradeep Cot of Rs.20,000/-  for a total amount of Rs.1,04,000/- and paid advance amount of Rs.50,000/-kept towards advance and after delivery of the items, the OP has to pay the remaining balance amount. It was further agreed that to deliver the said items on or before 20-12-2010 and subsequently, the OP delivered item no.3 and failed to supply the reaming articles in spite of repeated requests made by him. Therefore, he requested to refund the item from out of the advance. But, he failed to do so. Thereby, he got issued a legal notice for which he received reply and hence this complaint.

3.     The Opposite Party filed counter denying the allegations made in the complaint and contended that the items selected by the complainant are very rare items and very few will select such articles and those were taken on special order and the work will be undertaken only after receipt of the substantial advance amount and that finally the items got ready by 1^st week of January, 2011 which resulted delay of few days and it is to the knowledge of the complainant and when the complainant has not taken delivery subsequent thereto, they approached the complainant for delivery after payment of entire amount. On that the complainant came to their show room and requested them that they will take delivery of the goods on auspicious day and the delivery of item no.3 of the order from after pongal means that he has accepted delay in manufacturing items and it impliedly accepted the delay as such they have committed any breach of contract when the articles were ready, the payment of balance amount does not arise and the story is created and for all these reasons, the complaint is liable to be dismissed.

4.     To prove the case of the complainant, he filed his evidence affidavit and got marked Exhibits A1 to A4. On the other hand, on behalf of the OP, its Proprietor filed his evidence Affidavit but no documents were marked for the OP.

5.     Exhibit A1 is the Original Order Form dated 10-12-2010, Exhibit A2 is the Registered Lawyer’s Notice issued by the complainant’s counsels to the OP dated 06-04-2011, Exhibit A3 is the Postal acknowledgement dated 09-04-2011 and Exhibit A4 is the Reply Legal Notice by the OP to the complainant dated 01-05-2011.

6.     Both parties filed their respective written arguments.

7.     Heard oral arguments of both sides.

8.     In view of the respective contentions raised by either side, the point that would arise for determination in this case is;

Whether there is any deficiency of service on the part of the OPs and the complainants are entitled to any reliefs asked for?

9.     Exhibit A1 is the Order Form dated 10-12-2010 reveals that the OP placed an order of the furniture wherein categorically mentioned the date of delivery is 20-12-2010, subject to receipt of advance amount.

10.    It is the admitted case of both sides that on the date of Exhibit A1, Rs.50,000/- was paid towards advance and that items will be taken subject to satisfactory. Exhibit A2 is the Legal Notice got issued by the complainant dated 6-4-2011. The OP delivered item no.3 only without supplying the remaining articles as agreed under Exhibit A1 within the stipulated date. It is also mentioned since within time they have not delivered the items, they ordered them as they are required for their domestic purpose and requested the OP to refund the balance amount after deducting the cost of item no.3. Thus, it is clear that the OP failed to deliver the articles as agreed under Exhibit A1 within the stipulated time to the complainant.

11.    The case of the OP appears to be is that the items ordered are the special items, as such they were finally got ready by the 1^st week of January, 2011 and on intimation, the complainant has not taken those items, in spite of contact the complainant number of times. According to the OP, the delay is within the knowledge of the complainant, as such, it is implied that he has agreed for the delay. In view of the terms and conditions agreed by both parties vide Exhibit A1, the OPs showing to deliver the items agreed as stipulated in Exhibit A1 but he failed to do so which indicates there is a clear deficiency of service on the part of the OP. If the contention of OP is true, he would have requested the complainant by giving notice but they do not do so. Further, no evidence affidavit of makers of the item are filed evidencing that  the items ordered by the complainant are special items which resulted delay. For these reasons, the complainant is entitled to receive the balance advance amount of Rs.24,000/-.

12.    Now the question that comes up for consideration, at this stage of our discussion what is the rate of interest for which the Complainant is entitled.   The rate of interest claimed by the Complainant is 18% p.a.,  This rate of interest claimed by the Complainant appears to be excessive, of course, it is a fact that the transaction covered by Ex.A1 is in commercial in nature, but that does not and cannot mean to say that the Complainant is licensed to claim interest @ 18% p.a. on from the date of Order dated 10-12-2010 i.e., Ex.A1.     But at the same time, it is imperative on our part to award a reasonable interest.   Having regard to all these facts and circumstances, we sincerely feel having considered the case on hand awarding of interest @ 12% p.a. would better serve the ends of justice.    Consequently, we proposed to fix the rate in question @ 12% p.a. on Ex.A2 Legal Notice dated 06-04-2011 in question.   Accordingly interest is ordered.

13.    Whether the Complainant is entitled for compensation of Rs. 20,000/- is to be considered.   It appears as seen from the evidence of Complainant that the Complainant was compelled to approach the Opposite Party and therefore experienced a lot of physical strain besides mental agony and financial loss.   It is a un-dispute fact that the Opposite Party did not refund the amount subscribed by the Complainant.   Naturally that made have put the Complainant to suffer some mental agony besides physical stress and strain.   In this view of the matter, we sincerely feel that it is a fit case to award compensation.   But that does not and cannot mean to say that the Complainant claim for compensation is acceptable.    Having regard to all these facts and circumstances, we are of the considered opinion, award of compensation of 2,500/- would serve the ends of justice.   We therefore, proposed to award compensation of Rs.2,500 /-,  in the circumstances of the case on hand. Accordingly this point is answered.

14.    Before parting our discussion, it is incumbent and imperative on our part to consider the costs of litigation.    The Complainant ought not have to approach this Forum had his claim for refund of the balance amount of Rs.24,000/- or reliefs sought for have been honored by the Opposite Parties within a reasonable time and in view of the matter, the Complainant’s claim for costs deserves to be allowed.   In our considered and unanimous opinion awarding a sum of Rs.2,500/- as costs would appropriate and reasonable.   Accordingly, costs are awarded.

15.    In the light of our discussion, referred supra, since the balance  amount is lying with the OP, they are liable to return the same to the complainant and further they are also liable to pay the same with interest @ 12% p.a., from the date of issuance of Exhibit A2 notice dated 6-4-2011, a compensation of Rs.2,500/- towards compensation and also costs of Rs.2,500/- to the Complainant.

16.    In the result, the complaint is allowed in part, directing the OPs 1 and 2 to refund a sum of Rs.24,000/- (Rupees Twenty four thousand only) with subsequent interest @12% p.a., from the date of issuance of legal notice dated 06-04-2011, besides compensation of Rs.2,500/- (Rupees two thousand and five hundred only) and costs of Rs.2,500/- (Rupees Two Thousand and Five hundred only) to the Complainant. Time for compliance, one month from the date of this order.

Dictated to the Stenographer, transcribed by him, corrected and pronounced by us in the open Forum, on this the 7^th day of January, 2015.

  Sd/-                                            Sd/-                                          Sd/-

Lady Member                            Male Member                                 President         

 

 

 

APPENDIX OF EVIDENCE

Marked for the Complainant:

Exhibits	Date	Description	Remarks
A-1	10-12-2010	Order Form Exhibit A4 is the Reply Legal Notice by the OP to the complainant dated 01-05-2011.	Original
A-2	06-04-2011	Registered Lawyer’s Notice issued by the complainant’s counsel to the OP	Office Copy
A-3	09-04-2011	Postal acknowledgement	Original
A-4	01-05-2011	Reply Notice	Original

 

 

Exhibits Marked for the OP     -nil-

 

  Sd/-                                            Sd/-                                               Sd/-

L.MEMBER                                        M.MEMBER                                                   PRESIDENT