Date of Filing:13.11.2008<br /> Date of Order:02.01.2009<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> Dated: 02ND DAY OF JANUARY 2009<br /> PRESENT<br /> <br /> <br /> <br /> Sri S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> <br /> <br /> COMPLAINT NO: 2450 OF 2008<br /> <br /> <br /> Chandrakant Bombalekar<br /> S/o. Kashinath<br /> R/o. Halepeth, Near Badi Masjid<br /> Bagalkot 587 101 Complainant<br /> <br /> V/S<br /> Sams Net Concept Marketears <br /> (India) Limited<br /> No. 808/40, 2nd Floor, 14th Main<br /> 50th Cross, 3rd Block, Rajajinagar<br /> Bangalore 560 010<br /> Rept. by its CEO/ Director Opposite Party<br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> <br /> This is a complaint filed under section 12 of the Consumer Protection Act 1986. <br /> The facts of the case are as follows:<br /> The opposite party claiming itself to be Public Limited Company, registered under the Companies Act, 1956, gave wide publication, by publication in news papers and also by distribution of pamplets, inviting attention of public at large, about their company. In the said advertisement they called for from the public to enter into a contract, whereby if the customer agrees by the terms and conditions as per the advertisement, the opposite party is going to purchase Web Space on the World Wide Web with different capacity of space such as 400 MB, 800 MB, 1 GB, 1.4 GB, 1.8 GB and 10 GB. It is stated in the said advertisement that the opposite party is going to purchase the Web Space in the World Wide Web if any customer pays the amount required to purchase the Web Space, on behalf of the customer. It is further stated in the advertisement that the opposite party after the same is purchased is going to provide customers of lease of the web space and that it is also mentioned in the said advertisement that total return the customer will get within 40 months from the date of entered into the contract nearly double the investment. The complainant being highly influenced by the said advertisement corresponded with the opposite party and the opposite party in turn sent the Application Forms for the said purpose. The copies of pamplets and a Model Application Form are produced along with the complaint. After having discussion with the opposite party both agreed to enter into the contract as per the advertisement given by opposite party. Both the parties entered a contract, by executing on a non judicial stamp paper on 3 different dates, i.e., on 03.09.2005, 29.08.2005 and 15.05.2006. By virtue of first agreement dated 03.09.2005, both the parties entered into agreement to purchase Web Site of 200 MB space. By the second agreement dated 29.08.2005 and also by 3rd agreement dated 15.05.2006 both the parties entered into a contract whereby the complainant agreed to purchase Web Space of 400 MB each. With regard to first agreement dated 03.09.2005 the complainant paid an amount of Rs. 9,000/- to the opposite party by passing a receipt as acknowledgement of receipt of amount of Rs. 9,000/-, which was sent through DD by the complainant. Original copy of agreement entered into between both the parties on 03.09.2005, along with the schedule half payment and also the original receipt are produced herein. Similarly lease agreement entered into between both the parties on 29.08.2005 and on 15.05.2006, along with schedule and receipts for having paid 18,000/- each in respect of the two agreements are produced herein along with the complaint. Thus, totally an amount of Rs. 9,000/- + 18,000/- + 18,000/-, totally amounting to Rs. 45,000/- has been received by the opposite party. As mentioned above, it was promised that at the end of 40 months, totally the complainant would be receiving double the amount of investment made by the complainant. It was further promised in the said agreements that along with the monthly payment, a portion towards the cost of the web space will be paid to the complainant. As per the agreements entered into between both the parties, as per the schedule annexed with the agreement, the opposite party is required to make monthly payments along with the cost of Web Space purchased by the opposite party on behalf of the complainant, which amount has been paid by the complainant. As per the schedule of payment the opposite party made few payments by virtue of cheques issued in favour of the complainant. The total amount received by the complainant in this regard is Rs. 16,012/-. The payment by the cheque dated 30.09.2006 drawn on HDFC is the last payment received by the complainant. The complainant submits that after he received the cheque dated 30.09.2006, the opposite party stopped payment as per the schedule, though as opposite party was required to make payment from month to month. The opposite party also sent 3 cheques bearing Nos. 571356, 571447, 571408 dated 10.10.2006, 10.11.2006, 30.10.2006, amounting to Rs. 584/-, 584/- and 1052/- respectively to the complainant. When these cheques were presented for encashment through his Bank namely Karnataka Bank Limited, Bagalkot, the said cheques were returned without encashment with endorsement “insufficient funds”. The said cheques with Bank endorsements are produced here with. The complainant got issued legal notice. Opposite party has not replied to the legal notice. Complainant is entitled for refund of the amount which matures at the end of 40 months in respect of each of the agreements. The complainant has claimed Rs. 73,988/- + Rs. 1,00,000/- towards mental agony and Rs. 5,000/- towards costs of litigation.<br /> 2. Notice was issued to opposite party through RPAD. Notice was served. Inspite of service of notice the opposite party has not appeared before this forum and even the opposite party has not sent defence version by post. Therefore, opposite party was placed ex-parte on 26.12.2008. <br /> 3. The complainant has filed affidavit evidence. Arguments for learned advocate for complainant heard.<br /> 4. I have perused the complaint and several documents produced by the complainant.<br /> 5. The complainant has produced the advertisement brochure issued by the opposite party. The complainant has produced receipt dated 03.09.2005 for Rs. 9,000/- and another receipt dated 29.08.2005 for Rs. 18,000/- and receipt dated 15.05.2006 for Rs. 18,000/-. All these receipts have been issued by the opposite party for having received the amount from the complainant. The complainant has proved beyond doubt the payments of total amount of Rs. 45,000/- to the opposite party. The complainant has produced Web Space Lease Agreements. As per the lease agreement for 200 MB Web Space the opposite party has agreed to pay net amount of Rs. 350/- p.m. after TDS. The total period of payment as per the agreement is 40 months. As per the payment schedule total amount comes to Rs. 14,040/-. For 400 MB Web Space payment schedule is Rs. 360/- towards lease rent and Rs. 360/- cost of Web Space minus TDS Rs. 19/-, Net amount Rs. 701/- p.m. and for 40 months. The amount works out to be Rs. 28,040/-. Since, the complainant has purchased 400 MB Web Space twice by paying Rs. 18,000/- each total amount for this web space towards rental and cost comes to Rs. 56,080/-. For 200 MB Web Space the amount was Rs. 14,040/-. In this way the total amount payable to complainant by the opposite party comes to Rs. 70,120/-. As per the complainant’s statement and affidavit he has received Rs. 16,012/- on different dates from the opposite party. After deducting this amount the net amount due from opposite party is Rs. 54,108/-. The opposite party is liable to pay this amount as per the web space lease agreement entered into between the complainant and opposite party. The opposite party had issued three cheques to the complainant on different dates. These 3 cheques have been dishonoured due to insufficient funds. It is very unfortunate on the part of the opposite party that it has failed to maintain the commitment and to pay the amount as agreed. The complainant has invested the amount with a hope that he will get the monthly return for his investment, but unfortunately, the opposite party committed default in paying the rental and cost of web space. Therefore, it is definitely a deficiency in service. The complainant is entitled for an order in his favour along with cost of litigation. The complainant has claimed Rs. 1,00,000/- towards mental agony. On the facts of the case it is not just and reasonable to grant compensation for mental agony. The complainant is getting his investment with lease rental amount. Therefore, no compensation is awarded to the complainant. The case made out by the complainant has gone unchallenged. The opposite party though served with notice has not appeared before this forum. It appears the opposite party has no defence to make. That is why the opposite party has remained absent. There is absolutely no reason to disbelieve the facts stated by the complainant. The affidavit evidence filed by the complainant has gone unchallenged. Therefore, there is no legal hurdle to accept the case put up by the complainant and to pass an order directing the opposite party to pay Rs. 54,108/- to the complainant forthwith. In the result I proceed to pass the following:<br /> ORDER<br /> <br /> 6. The Complaint is allowed. The opposite party is directed to pay Rs. 54,108/- to the complainant within 30 days from the date of this order. In the event of non-compliance of the order within 30 days the above amount carries interest at 12% p.a. from the date of this order till realization / payment. <br /> 7. Complainant is also entitled for Rs. 5,000/- towards costs of the present litigation from the opposite party.<br /> 8. Send the copy of this Order to both the parties free of costs immediately. <br /> 9. Pronounced in the Open Forum on this 02ND DAY OF JANUARY 2009. <br /> Order accordingly,<br /> <br /> <br /> PRESIDENT<br /> We concur the above findings.<br /> <br /> <br /> MEMBER MEMBER<br /> <br />