DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this this 1st day of April, 2023
Filed on: 05/11/2018
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member Smt.Sreevidhia.T.N Member
C.C.NO. 461/2018
COMPLAINANT
Jyothi Upendra Rao,W/o TV Jayan, Thekkemalayil, Perumpilly P.O, Mulanthuruty - 682314.
VS
OPPOSITE PARTIES
1. M/s Manual Industries, 41/3424, 1st Floor Babu Estate, Madhava Pharmacy Jn., Banerji Road, Kacheripady,Cochin-682018.
2. Vinu Antony, Authorized Signatory M/s Manual Industries, 41/3424. 1st Floor, Baby Estate, Madhava Pharamacy Jn., Banerji Road, Kacheripady,Cochin-682018
F I N A L O R D E R
D.B. Binu, President.
1) A brief statement of facts of this complaint is as stated below:
The complaint was filed under Section 12 (1) of the Consumer Protection Act,1986. The brief facts, as averred in the complaint, are that the complaint has availed the services of the opposite party for consideration in respect of the subject matter of the above complaint. The opposite party is a dealer of musical instruments. The complainant purchased 2 nos of pedals for a drum set from the opposite party shop on 20.10.2018 as per Bill dated 20.10.2018 paid an amount of Rs. 1,600/-. At the time of purchase, the opposite party’s staff assured that the instrument was guaranteed and promised that both pedals will be suitable for the drum set and assured that they will replace the pedals if it is not suitable for the complainant’s drum set. The complainant after purchasing the pedals tried to fit the pedals for the drum set. But one pedal is fit for a drum and another one is not suitable for a hi-hat. Thereafter, the complainant returned back to the shop with one pedal which is not matched on 22.10.2018. At that time the opposite party staff told the complainant that, the complainant has to purchase a hi-hat frame with a pedal of Rs. 1,900/- instead of replaced pedal. The complainant is ready to purchase another item instead of the replaced pedal. But the staff told the complainant that he has to wait for 2 days because he can take sanction from his accounts department. The pedal was taken back from the opposite party staff and he promised the complainant that he will inform the complainant when it is cashed back. But waiting for a week, there is no other reply from the opposite party staff, the complainant directly approached the opposite party shop on 29.10.2018. At that time the staff told the complainant to come tomorrow and bring the complainant a hi-hit frame with symbols. The staff assured the complainant that he can surely able to fit the pedal into the complainant’s hi-hat frame. He again told the complainant that if it is matching there is no need for an exchange. Believing these words, the next day the complainant brings the hi-hat frame with symbols in an autorickshaw to the shop and the opposite party staff tried to fix the pedal. At last, he found that the pedal is not matched the complainant’s hi-hat frame. He is willing to give the new hi-hat stand with pedal cost Rs. 1,900/-. the complainant has also agreed to purchase it. But at the time of billing the staff told the complainant that he will deduct Rs. 400/- from the original value of Rs.800/- for the exchanged item. The complainant has surprised to hear about this matter and questioned the staff for the reason for cutting. He answered that his owner compelled him to cut the half amount of the exchanged pedal. The complainant approached the opposite party shop for 3 days for exchanging one pedal. On the third day, the complainant suffered the autorickshaw expenses for bringing her hi-hat frame to the opposite party shop. The complainant has suffered a huge financial loss. The complainant had approached the Commission seeking an order directing the opposite parties to pay an amount of Rs.4,000/- as compensation to the complainant, to direct the opposite parties not to grant other relief.
2. Notices
Notices were issued from the Commission to the opposite parties. The opposite parties received the notice but did not file their versions. Consequently, the opposite parties are set ex-parte.
3) . Evidence
The complainant had produced 1 document that was marked as Exhibits-A-1 .
Exhibit A-1. Copy of the Bill dated 20.10.2018 issued by the opposite party to the complainant.
4) The main points to be analysed in this case are as follows:
i) Whether the complaint is maintainable or not?
ii) Whether there is any deficiency in service or unfair trade practice from the side of the opposite parties to the complainant?
iii) If so, whether the complainant is entitled to get any relief from the side of the opposite parties?
iv) Costs of the proceedings if any?
5) The issues mentioned above are considered together and are answered as follows:
As per Section 2 (1) (d) of the Consumer Protection Act,1986, a consumer is a person who buys any goods or hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment. The complainant had produced a copy of the Bill dated 20.10.2018 issued by the opposite party to the complainant (Exhibit A-1). Hence, the complainant is a consumer as defined under the Consumer Protection Act, 1986 (Point No. i) goes against the opposite parties.
The above case is filed by the complainant for compensation for the deficiency in service of opposite parties in connection with the purchase of pedals for a drum set from the opposite party shop.
The complainant submitted that opposite party by supplying two unmatched pedals and promising that they will surely fit the opposite party’s set, otherwise they will return back, after receiving Rs. 1,600/- and cheated the complainant. That with the deliberate intention to cheat the complainant the opposite party deducted the half amount of the exchanged pedal.
We have also noticed that Notices were issued from the Commission to the opposite parties but did not file their versions. Hence the opposite parties set ex-parte. The complainant had produced 1 document which is marked as Exbt.A-1. But the opposite parties did not make any attempt to appear in the case and participate in the above proceedings before this commission and did not make any attempt to set aside the ex-prate order passed against it. It was further stated that this illegal, arbitrary and unjustified act of the Opposite Parties amounted to deficiency in service, indulgence in unfair trade practice, and caused mental agony and physical harassment to the complainant.
The opposite parties’ conscious failure to file their written version in spite of having received the Commission’s notice to that effect amounts to an admission of the allegations levelled against them. Here, the case of the complainant stands unchallenged by the opposite parties. We have no reason to disbelieve the words of the complainant. The Hon’ble National Commission held a similar stance in its order dated 2017 (4) CPR page 590 (NC).
The Opposite Parties had inadequately performed the service as contracted with the complainant and hence there is a deficiency in service, negligence, and failure on the part of Opposite Parties in failing to provide the Complainant desired service which in turn has caused mental agony and hardship, and financial loss, to the Complainant.
We find the issue Nos. (II), (III) and (IV) are found in favour of the complainant for the serious deficiency in service that happened on the side of the opposite parties. Naturally, the complainant had suffered a lot of inconvenience, mental agony, hardships, financial loss, etc. due to the negligence on the part of the opposite parties.
In view of the above facts and circumstances of the case, we are of the opinion that the opposite parties are liable to compensate the complainant.
Hence the prayer is partly allowed as follows:
i. The Opposite Parties shall refund Rs.400/- (Rupees four hundred only) towards the purchase price of the pedal for drum to the Complainant.
ii. The Opposite Parties shall pay Rs.4,000 as compensation for the mental hurt, loss, agony and hardship caused to the complainant.
iii. The Opposite Parties shall also pay the complainant Rs.2000/- towards the cost of the proceedings.
The opposite parties shall be jointly and severally liable for the payment of amount in the above-mentioned directions which shall be complied with by the Opposite Parties within 30 days from the date of the receipt of a copy of this order. Failing which the amount ordered vide (i) and (ii) above shall attract interest @7.5% from the date of receipt of a copy of this order till the date of realization.
Dictated to the Confidential Assistant Smt. K.P. Liji transcribed and typed by her corrected by me and pronounced in the Open Commission on this the 1st day of April, 2023.
Sd/-
D.B.Binu, President
Sd/-
V. Ramachandran, Member
Sd/-
Sreevidhia.T.N, Member
Forwarded/by Order
Assistant Registrar
APPENDIX
COMPLAINANT’S EVIDENCE
Exhibit A-1. Copy of the Bill dated 20.10.2018 issued by the opposite party to the complainant.
OPPOSITE PARTIES’ EVIDENCE
Nil
Despatch date:
By hand: By post
kp/
CC No. 461/2018
Order Date: 01/04/2023
