IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Friday, the 29th day of July, 2011
Filed on 01/03/2011
Present
1. Sri. Jimmy Korah (President)
2. Sri. K.Anirudhan (Member)
3. Smt. N. Shajitha Beevi (Member)
in
CC/No. 68/2011
between
Complainant:- Opposite parties:-
Sri. Kenny. S. 1. Sri. Tom K. Mani, Proprietor
28/01, 414 AFS. Abhaya Enterprises, Vallyara
Yelahanka, Bangalore Buildings, Opposite KSRTC
(By Adv. T.S. Suresh) Kottayam
2. Sri. Josekutty V.C. Valiakorattiyil House
Champakkulam P.O.
Alappuzha Dt.
O R D E R
SRI. K. ANIRUDHAN (MEMBER)
Sri. Kenny has filed this complaint through his Power of Attorney Holder, Sri. Thomas Thomas on 1.3.2011 alleging deficiency in service on the part of the opposite parties. The allegations are as follows:- As per the information and introduction given by the 2nd opposite party, he approached the first opposite party for a Home Nurse for the service at his residence, and that the first opposite party made believe him that the first opposite party will supply a Home Nurse namely Smt.Revathy Nair. For the said matter the first opposite party accepted a sum of Rs.10,000/- (Rupees ten thousand only) from him on 29.5.2010 towards the one month advance salary and service charge ie. (Rs.5500/- + Rs.4500/-) and first opposite party had issued receipt for the said amounts. But the first opposite party had not arranged the Home Nurse as agreed and not returned the amount, even though several requests from him. He sent advocate notice vide dt. 5.1.2011, requesting to return the amount. But the opposite parties have not turned up and he had not obtained any relief. Hence this complaint.
2. Notice was sent to the opposite parties. But they have not appeared before this Forum. Considering their absence the opposite parties were set exparte, on 7.6.2011, and proceeded the matter for a fair adjudication.
3. Considering the allegations of the complaint, this Forum raised the following issues for consideration:-
1) Whether there is any deficiency in service on the side of the opposite parties?
2) Whether the complainant is entitled to get compensation and costs from the
opposite parties?
4. Issues 1 and 2:- Complainant has filed proof affidavit in support of his case and filed documents in evidence – Exts.A1 to A4 marked – Ext.A1 is the original receipt dt. 29.5.2010 issued by the first opposite party at the time of accepting the amount of Rs.10,000/- from the complainant. The amount was for the one monthly salary and advance amount (Rs.5500/- + Rs.4500/-). The receipt shows the name of the institution – M/s.Abhaya Enterprises – The receipt was also signed by the promoter. Ext.A2 is the postal receipt. Ext.A3 is the advocate dt. 5.1.2011 issued by the complainant to the first opposite party regarding to return the amount of Rs.11,000/- towards the accepted amount by the 1st opposite party and expenses in connection with the amount spend for telephone and notice. Ext.A4 is the Power of Attorney deed and authorizing Sri. Thomas Thomas to conduct the case of the complainant.
5. We have fully verified the entire matter of this case and perused the documents filed by the complainant in evidence. Ext.A1 shows that the first opposite party had accepted a total sum of Rs.10,000/- from the complainant for providing Home Nurse. The amount was for one month salary and advance amount. But the first opposite party had not provided the Home Nurse as agreed. Complainant contacted the first opposite party for getting the Home Nurse through the introduction given by the second opposite party. But the opposite parties have not taken any positive steps to provide the Home Nurse to the complainant or returned the amount accepted by the first opposite party for the said matter. The first opposite party is not entitled to get the amount even though he has not provided the Home Nurse to the complainant as agreed. It will come within the purview of cheating and that the whole action taken by the first opposite party shows that there is deficiency in service, negligence and unfair trade practice. The complainant is fully entitled to get back the amount of Rs.10,000/- collected by the first opposite party. Since he has not obtained the service of the first opposite party. Since there is latches on the part of the first opposite party to provide Home Nurse to the complainant in time, the first opposite party is bound to return the full amount to the complainant. There is no justification on the part of the first opposite party to retain the amount without repayment. There was no response on the side of the first opposite party regarding the Advocate notice sent by the complainant. The whole action taken by the first opposite party in this matter shows that there is unfair trade practice and cheating. The second opposite party cannot escape from the liability, since the complainant approach the first opposite party for getting the said service on the basis of the information and introduction given by the second opposite party. The action of the opposite parties are highly illegal and arbitrary. It is to be further noticed that even though the opposite parties have accepted the notice of this Forum, they have not entered appearance before the Forum. This shows their irresponsible attitude towards this issue. After considering the whole aspects of this matter, we are of the view that there is grossest deficiency in service, culpable negligence, cheating and unfair trade practice on the side of the opposite parties by way of not providing Home nurse to the complainant in time, even though the first opposite party ha accepted a sum of Rs.10,000/- in advance from the complainant. So considering facts and circumstances of this case, we are of the view that the allegations raised by the complainant against the opposite parties are to be treated as genuine. So the complaint is to be allowed as prayed for. All the issues are found in favour of the complainant.
In the result, we hereby direct the first opposite party to return the amount of Rs.10,000/- (Rupees ten thousand only) to the complainant with 12% per annum from the date of accepting the said amount by the first opposite party from the complainant, ie. on 29.5.2010, till the date of realization of the amount, and further pay an amount of Rs.10,000/- (Rupees ten thousand only) for the mental agony, pain, sufferings, physical strain inconvenience and financial loss of the complainant, due to the grossest deficiency in service, culpable negligence, cheating and unfair trade practice of the 1st opposite party by way of purposeful negligence to provide Home Nurse to the complainant in time and acted in an irresponsible way, even though the advance amount and salary for one month had collected from the complainant by first opposite party. Considering the whole facts and circumstance of this case, we are of the further view that the first opposite party is liable to pay punitive damages to the complainant. So we further direct the first opposite party to pay a sum of Rs.1000/- (Rupees one thousand only) to the complainant as punitive damages and first opposite party shall further pay an amount of Rs.1000/- (Rupees one thousand only) as costs of this proceedings. We further ordered that the complainant is free to proceed against the assets of the first opposite party for the realization of the said amounts, in case any default to get the amount from the firs opposite party. We direct the first opposite party to comply with this order, within 20 days from the date of receipt of this order.
Complaint allowed.
Pronounced in open Forum on this the 29th day of July, 2011.
Sd/- Sri. K. Anirudhan:
Sd/- Sri. Jimmy Korah:
Sd/- Smt. N. Shajitha Beevi:
Appendix:-
Evidence of the complainant:-
Ext.A1 - Original receipt dtd. 29.5.2010
Ext.A2 - Postal receipt
Ext.A3 - Advocate notice dated 5.1.2011
Ext.A4 - Special Power of Attorney
Evidence of the opposite parties:- Nil
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite parties/S.F.
Typed by:-pr/-
Compared by:-
