For the Complainant:- Sri N.R.Mishra and associates, Bhawanipatna.
For the O.Ps : - None Exparte
ORDER.
The present dispute arises out of the complaint petition filed by the above named complainant alleging deficiency in service against the afore said O.Ps for non refund of deposited amount a sum of Rs.50,000/- . The brief facts of the case is briefly summarised hereunder.
1. The O.P. No. 2 is the authorized dealer of the Mahindra Centero two wheeler Motor cycle at Jeypore. It was seen from the advertisement of Samaj New paper Dt. 29.10.2013 , Dt. 9.1.12014 that the O.P No.2 & O.P. No.1 was the authorized dealer of the Mahindra Centuro two wheeler motor cycle to attach the customers in their business both the O.Ps used to make advertisement in the News paper that the O.P. No.1 was the authorized dealer in sale and service of the Mahindra Centero two Wheeler motor cycle. Believing the advertisement the complainant went to the O.P. No.1 show room. The O.P. No.1 agreed to supply the Motor cycle to the complainant and told him that the cost of the Motor cycle along with the cost of accessories would be Rs.50,000/-. The complainant has to make initial payment of Rs.15,000/- towards the booking charge and advised the complainant to deposit Rs.15,000/- in the account No. 070702000001248 of Royal Motors in the Indian Overseas Bank as the O.P. No.1 having and operating that account in the I.O.B. On 23.1.2014 the complainant deposited a sum of Rs.15,000/- towards the booking charge of the two wheeler in the I.O.B, Dharmagarh Branch in the above account of O.P. No.1. After the amount deposited in the I.O.B also confirmed about the payment of above sum through SMS message from his mobile No. 8895593939. On Dt. 24.1.2014 the O.P. No.1 intimated the complainant over mobile that his bike would be delivered to him very shortly and advised him to further deposit the rest Rs.35,000/- in his account and thereafter he would come and take delivery of the Motor cycle. In turn the complainant deposited Rs.35,000/- in the I.O.B, Dharmagarh Branch in the account No.07072000001248 of the O.P. No. 1 in the same date i.e. on Dt. 24.1.2014. The O.P. No.1 is not the authorized dealer of the Mahindra Centuro two wheeler. In order to strengthen the business of the O.P. No.2 in Kalahandi was supplying the Mahindra Centuro two wheeler to the O.P. No.1 for sale and service of it and the O.P. No.1 was selling the motor cycle to the customers being supplied by the O.P. No.2 and it was falsely advertised in the daily News paper SAMAJ on dt. 29.10.2013 and Dt. 9.1.2014 that the O.P. No.1 is also the dealer on Mahindra Centuro Two wheeler. The complainant also contacted with the O.P. No.2 on the issue and it was assured to the complainant that he would get the Motor cycle soon being supplied to the complainant by the O.P. No.2. The O.P. No.2 had not supplied the Motor cycle till date. Hence this case filed before the forum for redressal of his grievance . The complainant prays the forum to direct the O.Ps to refund deposited amount Rs.50,000/- along with interest 9% from 23.1.2014 till realization, damages and such other relief as the hon’ble forum deems fit and proper for the interest of justice.
The Notice served on the O.P. No.1 by Registered post but unserved on the O.P. No. 1 with a postal remark on the postal cover i.e. Addressee left without intimation hence sent to the sender. Hence the O.P. No.1 was set exparte.
The Notice served on the O.P. No.2 by the Registered post. On being noticed the O.P. No.2 received the notice from the forum as revealed from the postal statement. The O.P. No. `2 neither appeared nor choose to file written version. We find the O.P. No.2 has no respect to the forum. Hence the O.P. set exparte as the statutary period for filing of written version is over . So the case was posted for hearing to close the case within the time frame as per the C.P. Act.
During the exparte hearing the complainant examined himself and proved the payment of the money to the O.Ps. The complainant has also produced the Daily news paper cutting “Samaj” which was advertised by the O.Ps on Dt.10.2.2014. The complainant has also produced bank statement where the complainant credited the amount in the account of the O.Ps. The complainant also argued due to non supply of the above vehicle the complainant suffered a lot of financial trouble as the complainant brought finance from the bank for his livelihood. The complainant prays the forum as the O.Ps. not heard any grievance of the complainant till date so the O.Ps. are directed to refund the amount along with bank interest.
In the absence of any denial by way of written version from the side of the O.Ps. it is presumed that the allegations leveled against the O.Ps deemed to have been proved. The complainant has produced the bank statement where the complainant credited the amount in the account of the O.Ps.. Hence it is deemed that the fact is said to be proved, and this forum considering the above aspects tendered in evidence believes it to exist or consider its existence so probable that under the circumstances of particular case to act upon the supposition that the said fact exist. The complainant had paid the amount for the good service as per advertisement in daily news paper which intended with the O.P and the said payment is made for the consideration for the said service. When the O.P has failed to give such service as per advertisement for which the O.Ps had received the amount. It is deemed that the O.Ps are callous to the allegations and it amounts to deficiency of service.
When the O.Ps had advertised in daily news paper “Samaj” on Dt.10.2.2014 that the O.P No.2 & O.P. No.1 was the authorized dealer of the Mahindra Centuro two wheeler motor cycle to attach the customers in their business both the O.Ps used to make advertisement in the News paper that the O.P. No.1 was the authorized dealer in sale and service of the Mahindra Centero two Wheeler motor cycle for a valuable consideration and even after receipt of the said consideration in advance, non performance of the same in spite of approaches from time to time by the complainant amounts to breach of the said warranty and further giving false promise with an intention of the extract money and subsequently failed in giving the service as promised.
When contract has been broken or breached the complainant who suffers from the said breach is entitled to receive the full amount which was paid by the complainant to the O.Ps with up-to-date bank interest from the O.Ps who have broken the contract, Compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things for such breach or which the party knew when they have made the contract ought to considered.
On perusal of the papers filed by the complainant it is revealed that the actions of the O.Ps are unfair trade practice in order to grab the money of the complainant, which amounts of cheating and as such the OPs diserves punishment. The complainant unnecessarily put to undue harassment, mental agony, heavy loss and the OPs are liable to pay compensation for damages to the complainant. Undoubtedly such whimsical act of the O.Ps are within the ambit of Section 2(1)(4)(1)(v) and 2(1)(r) (3)(b) of the C.P. Act which is related to unfair trade practice and which is corresponding to section 36 A of the Monopoly Restricted Trade Practice M.R.T.P. act of 1969 under part- A of Chapter-III of the said act.
Hence this forum found that the complainant is a consumer within the definition of the C.P. Act, the breach of contract even after receipt of the consideration in advance for the same on the part of the O.Ps are deficiency of service and as such the complainant is entitled to the reliefs claimed in the petition.
We observed the complainant feel the O.Ps service are deteriorating and does not follow business ethics. This is undoubtedly speaking of the unfair trade practice resorted to by the O.P No.1 with a view to hoodwinking gullible consumers. That due to delay, negligence and deficiency in service by the O.Ps the complainant sustained mental agony, damages etc hence the O.Ps are liable to pay compensation under circumstances of the case.
Hence to meet the ends of justice, the following order is passed.
ORDER.
In the result with these observations, findings the complaint petition is allowed in part on exparte against the O.Ps.
The O.Ps. are ordered to refund sum of Rs. 50,000.00 along with bank interest @ Rs. 9% per annum from Dt. 24.1..2014 till realization.
The O.Ps. are further ordered to pay Rs.2,000/- towards litigation expenses.
We therefore issued a “Cease and Desist” order against the O.Ps. directing him to stop such a practice forthwith and not to repeat in future.
The O.Ps are ordered to comply the above direction within 60 days from the date of receipt of this order failing which the complainant is at liberty to take further proceedings U/S- 25 & 27 of the C.P. Act. Service the copies of the order to the parties.
Dictated and corrected by me
Pronounced on this 21st. day of January, 2017.
MEMBER. PRESIDENT.
Documents relied upon:-
By the complainant.
- Xerox copies of the counter foil of Indian Overseas Bank=2 Nos.
- Adtertisement in Samaj in different dates = 3 sheets.
By the O.Ps
Nil
PRESIDENT.
21.1.2017
The order pronounced in the open forum in presence of parties. The complaint petition is allowed in part on exparte against the O.Ps.
The O.Ps. are ordered to refund sum of Rs. 50,000.00 along with bank interest @ Rs. 9% per annum from Dt. 24.1..2014 till realization.
The O.Ps. are further ordered to pay Rs.2,000/- towards litigation expenses.
We therefore issued a “Cease and Desist” order against the O.Ps. directing him to stop such a practice forthwith and not to repeat in future.
The O.Ps are ordered to comply the above direction within 60 days from the date of receipt of this order failing which the complainant is at liberty to take further proceedings U/S- 25 & 27 of the C.P. Act. Service the copies of the order to the parties.
MEMBER. PRESIDENT.
