BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

12^TH DAY OF FEBRUARY 2016

O R D E R

SMT. M. YASHODHAMMA, MEMBER

This is a complaint filed by the complainant under section 12 of the Consumer Protection Act, 1986 seeking direction against Opposite Parties (herein after referred as OPs) to refund Rs.17,000/- along with damages of Rs.1,00,000/- and interest at the rate of 18% per annum from the date of complaint till realization and cost of Rs.10,000/- on the allegations of deficiency in service.

2.  The brief averments made in the complaint are as follows:

The complainant is a permanent resident of Gokak Town and he is a medical practitioner and running a nursing home in the name and style Shanta Nursing and Maternity Home, Opposite to Hotel Prashanth, Hospeth Galli, Gokak. The complainant purchased Alpha Logic 100 Ultra Sound Machine from OP-1 which being serviced by OP-1, since from the purchase at Gokak.  OP-1 is carrying out the business of supplying medical equipments and service of equipments to the doctors/hospitals etc.   On 28.02.2014 the representative of OP-1, Mr.Rohit from Hubli visited the complainant’s nursing home and inspected the above said equipment and advised the complainant to replace the keyboard (Track ball) of the said equipment. So complainant as per the advice of the representative of OP-1 agreed to replace the keyboard. The complainant issued a cheque drawn on Central Bank of India, Gokak Branch for a sum of Rs.17,000/- towards full payment of the consideration/service amount in advance.  The representative of OP-1 agreed to replace the keyboard within 15 days.  Thereafter OP-1 issued the receipt dated 11.03.2014 stating that balance amount of Rs.17,000/- is due from the complainant towards all equipments and service billing and requested the complainant to expedite the payment of the same and then the said amount due i.e., Rs.17,000/- was encashed by OP-1 on 13.03.2014.  Thereafter neither OP-1 nor his any of the representative turned up to replace the keyboard (Track ball) of the equipment and service it.  On several occasions complainant called the representative of OP-1, but there was no response from them.  Complainant was constrained to write a letter dated 05.12.2014 to replace the keyboard immediately and give an apology letter from OP-1 for the delay and inconvenience caused to the complainant otherwise they will take legal action against OP-1.  After the receipt of the said letter one Mr.Balachandra.C. i.e., OP-2, sales manager of OP-1 through his mobile No.9980157202 sent SMS to complainant on 17.12.2014 stating he has received the said letter on service issue and will revert back to the complainant at the earliest as he had taken the issue with the service head.  On 18.12.2014 to the surprise of the complainant the said OP-2 sent an SMS stating “Sir, service will refund the amount with apology letter regards” i.e., OPs will not replace the keyboard (Track ball) will refund the amount with apology letter.  Thereafter neither OPs nor their representative refunded the amount nor replaced the keyboard as agreed.  When the OPs did not turn up with their promise done by OP-2, complainant sent a SMS stating he would be constrained to initiate further action. Then again OP-2 replied by SMS stating that “sorry Sir, I thought it is already refunded, let me check and revert back tomorrow.  But again till today neither reply nor refund has been made by the OPs.  So complainant sent an SMS stating he waited up enough, OPs lack responsibility and he will wait upto 24.03.2015 and will initiate legal proceedings against OPs.  Thus the conduct of OPs clearly shows the deficiency, lack of service and responsibility towards the complainant.  Their ill intention by way of inducing the complainant to make payment, thereby cheated and caused wrongful loss to the complainant.  Hence, complainant got issued a legal notice dated 29.05.2015 calling upon OP-1 to pay Rs.17,000/- which was taken with ill-intention and Rs.1,00,000/- towards damages  within 15 days failing which he will initiate legal proceedings against OP-1 for costs and consequences thereof and  redressal of the same.   OP-1 instead of making the payment, got issued  reply letter through their counsel stating falsely that OP Company has already refunded the amount of Rs.17,000/- through a cheque dated 11.05.2015 drawn on HSBC Bank through a covering letter dated 12.05.2015.  As per their record which they understood that the complainant has already received the payment. Further the OP Company went to the extent of sending a Xerox copy of the alleged letter and the copy of the alleged cheque which was created only to misguide and harass the complainant.  Further OP-1 also stated that inspite of its bonafide efforts it would not procure the part (Track Ball) due to unavailability of the part globally.  After the receipt of the said letter the complainant through his counsel got issued a letter dated 10.07.2015 calling upon OPs to send a fresh cheque for a sum of Rs.17,000/- along with interest at 18% per annum from the date of receipt of the amount by OP Company along with cost and damages within one week from the date of receipt of the letter, otherwise complainant will be constrained to initiate legal proceedings against the OP for the cost and consequences for which OP will be held liable.  The said letter was duly served to OPs counsel as well as the OP Company.  Inspite of receipt of the said letter till today OPs have not responded.  Hence, complainant felt deficiency in service on the part of the OPs.  Under the circumstances, he is advised to file this complaint against OPs for appropriate relief.

3.  After registration of the complaint, notice was issued to OPs 1 & 2.  Inspite of service of notice OPs 1 & 2 remained absent without any sufficient reason or cause.  Hence OPs were placed exparte and posted the case for filing affidavit of the complainant.

4. So as to prove his case, Dr.Ashoka B.Kopp, who being the complainant filed his affidavit evidence in support of his complaint reiterating the complaint averments and produced documents.

5. The above said assertions of the complainant have remained unchallenged. OP neither filed version nor denied the sworn testimony of the complainant.  So under the circumstances, we have no reasons to disbelieve the sworn testimony of the complainant.

6.  Let us have a cursory glance at the documents produced by the complainant.  Document No.1 is copy of the money receipt dated 11.03.2014 issued by the OP-1 to its customer Shanta Nursing Home for having received a sum of Rs.17,000/- towards SVC_US_OEP_DUES.  Document No.2 is copy of the letter of the complainant dated 05.12.2014 stating that complainant has given a cheque for Rs.17,000/- to representative of OP, Mr.Rohit, Hubli, in March-2014 and the OP Company has encashed the said amount on 13.03.2014.  The said cheque was given for replacement of keyboard or USG.  Mr.Rohit the representative of OP assured the complainant and took the cheque stating that within 15 days keyboard will be replaced and complainant tried to contact Mr.Rohit, Santosh and Manjunath and they are not answering, further requested OP to replace the keyboard and to send apology letter for the delay and inconvenience caused to the complainant failing which complainant will forced to take legal action against OP Company.  Document No.3 is the copy of the legal notice dated 29.05.2015 calling upon OP to pay Rs.17,000/- along with damages of Rs.1,00,000/- within 15 days from the date of receipt of the notice, failing which complainant will be constrained to proceed against OP for the cost and consequences arising thereof for which OP will be held liable and responsible.  Document No.4 is the postal served acknowledgement card and receipt.  Document No.5 is the copy of the reply letter of OP-1 dated 02.07.2015 addressing to the counsel of complainant stating OP has already refunded amount of Rs.17,000/- through a cheque dated 11.05.2015 drawn on HSBC Bank through a covering letter dated 12.05.2015 to an address available as per record which OP understood that the complainant has already received the copy of the letter dated 12.05.2015 as attached for the ready reference.  Despite this bonafide facts the OP could not procure the part due to unavailability of the part globally.  Further OP denied all the allegations made in the legal notice.  The copy of the cheque issued by OP-1 in the name of the complainant dated 11.05.2015 in a sum of Rs.17,000/- cheque to be drawn on HSBC Bank Ltd., M.G.Road, Bangalore. Document No.6 is the copy of the letter of the OP addressed to complainant dated 12.05.2015 thanking the complainant for his continued support and association with OP Company, OP has received a purchase order from the complainant for parts of Logiq 100 ultrasound equipment.   Further regret to inform that despite their bonafide effort they could not procure the parts as they are not available anywhere globally.  As a result, OP cancelled the purchase order and refunded the advance amount of Rs.17,000/- in this regard.  Further enclosed a cheque bearing No.492432 dated 11.05.2015 drawn on HSBC Bank Bangalore for Rs.17,000/- as full and final refund/settlement  of complainant’s account with OP company.  Further asked to apologize for inconvenience caused.   Document No.7 is the copy of the         re-joinder notice dated 10.07.2015 issued by counsel on behalf of the complainant to Senior Legal counsel of OP-1, requesting OP Company to send fresh cheque for a sum of Rs.17,000/- along with interest at 18% per annum from the date of receipt of the amount by OP-1 along with cost and damages within one week from the date of the receipt of the said re-joinder notice failing which complainant will be constrained to take legal action against OPs and for inconvenience arising there off OP will be liable and responsible.  Document No.8 is served postal acknowledgment card and receipt.  Document No.9 postal track stating the article delivered on 13.07.2015 at Whitefield. 

7. On perusal of oral and documentary evidence of the complainant, it is made crystal clear that the complainant, is permanent resident of Gokak town and he is running a nursing home by name Shanta Nursing and Maternity Home at Gokok.  Complainant had purchased Alpha Logic 100 Ultra Sound Machine from OP-1 (USG) which being serviced by OP-1 since from the date of purchase at Gokak.  OP-1 has carried out business of supplying medical equipments and services of equipments to the doctors /hospitals.  On 28.02.2014 the representative of OP-1 Mr.Rohit from Hubli, visited the complainant’s nursing home and inspected the said equipment and advised the complainant to replace the keyboard (Track Ball).  As per his advice, complainant agreed to replace the keyboard (Track Ball) and issued a cheque for Rs.17,000/- drawn on Central Bank of India Gokak Branch, towards entire payment of the consideration/service amount in advance. Though the representative of OP-1 has agreed that he will replace the keyboard within 15 days has failed to replace the same.  Hence, complainant called the representative of OP-1 several times but there was no response.  Complainant wrote a letter dated 05.12.2014 as per document No.2.  Inspite of receipt of the said letter the sales manager of OP-1 Company namely, Sri.C.Balachandra Sent an SMS to the complainant on 17.12.2014 stating they will revert back to the complainant at the earliest, but failed to turn up.  When the OP did not turn up with their promise then complainant sent a legal notice dated 29.05.2015 calling upon OP-1 to pay a sum of Rs.17,000/- along with damages within 15 days.  OP vide its reply letter dated 11.05.2015 stated that OP has already refunded a sum of Rs.17,000/- by way of cheque dated 11.05.2015 drawn on HSBC Bank along with covering letter dated 12.05.2015 towards the address available as per their record which they understood that complainant had already received the said cheque as per Document No.5 & 6.  OP has failed to produce any document to show that said cheque amount of Rs.17,000/- has been deducted from its bank account.  Again complainant got issued rejoinder notice dated 10.07.2015 calling upon OP-2 to issue a fresh cheque for a sum of Rs.17,000/- along with interest, cost and damages within one week from the date of receipt of the letter, requesting OP either to send cheque to the complainant’s address or to his counsel address as per Document No.7.  The said letter served on OP on 14.07.2015 as per document No.8.  Inspite of receipt of the said letter there was no response from the OP.  Hence, this complaint. 

8.  From the available materials on record, OP has acknowledged receipt of Rs.17,000/- from the complainant on 11.03.2014 towards replacement of keyboard (Track ball) of the ultra sound machine as per Document No.1 receipt issued by OP.  OP has failed to supply the said part as per its letter dated 02.07.2015 as per Document No.5 due to its non-availability and globally the part is not supplied any more.  Further OP has not produced any document to show that an amount of Rs.17,000/- has been deducted from its bank account in favour of the complainant.  Hence in the absence of any material evidence we are unable to understand that OP has refunded Rs.17,000/- to the complainant.  Inspite of service of letter re-joinder notice dated 10.07.2015 as per Document No.7 and 8 OP has failed to issue fresh cheque or to give any reply to the complainant.  This act of OP made the complainant to approach this Forum by wasting his valuable time money and energy.  Hence we are of the considered view that OP has failed to refund Rs.17,000/- to the complainant since more than 1 year 11 months.  This act of OPs in neither replacing the key board (track ball) nor refunding the amount to the complainant inspite of service of legal notice, amounts to deficiency in service on their part.  We are satisfied that complainant proved deficiency in service against OPs.  Under the circumstances OPs are liable to refund Rs.17,000/- to the complainant along with interest at 12% per annum from 11.03.2014 till realization along with compensation of Rs.5,000/- towards deficiency in service and inconvenience caused to the complainant along with litigation cost of Rs.3,000/- to the complainant.    Accordingly, we proceed to pass the following:

                                  O R D E R

1. The complaint filed by complainant is allowed in part. 

2. OPs are jointly and severally directed to refund Rs.17,000/- to the complainant along with interest at the rate of 12% per annum from 11.03.2014 till the date of realization along with compensation of Rs.5,000/- towards deficiency in service and inconvenience caused to the complainant.

3. Further OPs are also directed to pay litigation cost of Rs.3,000/- to the complainant.

4. This order shall be complied within 30 days from the date of receipt of this order.

5. Supply free copy of this order to both the parties.

(Dictated to the Stenographer and typed in the computer and transcribed by her, verified and corrected, and then pronounced in the Open Forum by us on this the 12^th  day of February 2016)

 MEMBER                          MEMBER                        PRESIDENT

NRS* 

CC.No.1518/2015

Witnesses examined on behalf of the complainant dated 15.12.2015. 1) Dr.Ashok B. Kopp

Witnesses examined on behalf of the OP – Absent

List of documents produced by the OP – Nil

MEMBER                           MEMBER                           PRESIDENT