SRI. SAJEESH.K.P : MEMBER
This is a complaint filed by 1st complainant under Sec.35 of the Consumer Protection Act 2019,for an order directing against the OPs to refund Rs.6,68,500/- towards the price of the articles not supplied to complainant and also pay Rs.1,00,000/- as compensation for mental agony and Rs.20,000/- as litigation expenses to the complainant .
Complaint in brief :-
The 2nd complainant and her husband are dental surgeons by profession and they intended to start a Dental clinic near to their parental house at both 2nd complainant and husband were working at Mumbai. The construction of clinic was completed in the year 2017. The OPs approached 2nd complainant as the former was dealing with dental materials an equipment and also undertake the work of settling up of dental clinic in the name of Malabar Dental clinic, Kannur. After the negotiation over phone 2nd complainant and her husband accepted their quotation for the price of Rs.17,63,000/- and accepted full payment by made of cheque from 15/7/2017 to 19/9/2019. 1st complainant and 1st OP entered into a contract. In the year 2020 1st complainant and her husband returned to native place from Mumbai and to their surprise, the OP partially completed plumbing work, tiles and some furniture work in the year 2019 and not done any work in the year 2020. In 2021, OPs supplied dental equipments such as compressor and auto clave which was a damaged one. Thereafter in 2023 OPs supplied one generator, X-ray machine and some dental materials which the dental materials got expired within a few days. The total service was a failure and OPs extorted a huge amount of money for a quality loss service and complainants constrained to lodge a petition twice before the SHO Dharmadam and the OPs never fulfilled or tried to fulfill the promise for the consideration they received from complainants. Hence this complaint.
After filing the complaint, commission sent notice to both OPs . The OPs are returned notice with an endorsement as “unclaimed”, it is presume that the notice is duly served and the OPs are declared hence set exparte.
Even though, the OPs have remained ex-parte, it is for the complainants to establish the allegation made by them against the OPs. Hence the complainants were called upon to produce evidence in the form of affidavit and documents. Accordingly the 1st complainant has chosen to produce her affidavit along with 4 documents marked as Exts.A1 to A4. Ext.A1 is the quotation for dental equipments and dental clinic dtd.10/6/2017 issued by OPs. Ext.A2 is the acknowledgment issued by SHO Dharmadam dtd.9/8/2021, Ext.A3 is the agreement executed by 1st complainant and 1st OP dtd.4/9/2021, Ext.A4 is the acknowledgment issued by SHO Dharmadam dtd.5/4/2023. 1st The complainant was examined as PW1, so the OPs were remain absent in this case. At the end the commission heard the case on merit.
Let us have a clear glance into the documents in order to find whether there is unfair trade practice and deficiency in service as prayed in the complaint. As the notice was duly served, OPs set exparte. As per Ext.A1, quotation of Dental materials and other works is seen and as per the statement enclosed with Ext.A3, Rs.17,63,000/- paid, is apparent. Moreover, Ext.A3 is an agreement entered between 1st complainant and 1st OP regarding the endorsement of work as per Ext.A1 quotation. The second clause of the said agreement executed on 14/9/2021 specifically stated that the 1st OP (2nd party in the agreement) shall transfer all rights and ownership of the equipments and finish the interior work of Dental clinic as per this quotation dtd.10/6/2017 which was given to 1st complainant on or before 23/10/2021. As per Ext.A2 dtd.9/8/2021 and Ext.A4 dtd.5//4/2023 which was the acknowledgment receipt issued by SHO, Dharmadam is an apparent evidence that the 1st OP is failed to comply the condition of Ext.A3. Moreover, complainant stated that serial number 1,7,9 of Ext.A1 was not provided by OPs and autoclave provided by OPs was a damaged one. Even though there is neither apparent evidence before the commission that the autoclave is damaged nor the products mentioned in Ext.A1 as sl. No.1,7,9 is not provided except Exts.A2&A4. The OPs got fair chance to appear and defend the case but they choose to remain as exparte. Hence the commission came into a conclusion on a presumption that OPs failed to provide the balance equipments and this lead to deficiency in service and by accepting consideration as Ext.A3 statement, OP provided damaged equipment lead to unfair trade practice. To conclude, the complainants are entitled to get the price of materials which was not supplied by OPs and the price of damaged equipment ie Rs.6,68,500/-. The complainants are entitled to get compensation and cost from the OPs.
In the result complaint is allowed in part. The opposite parties are jointly and severally liable to pay Rs.6,68,500/- which was the price of non supplied items and also the price of damaged equipment and also to pay Rs.7,000/- as compensation for mental agony and Rs.3000/- as cost of litigation to the complainants within 30 days of receipt of this order. In default Rs.6,68,500/- carries interest @7% per annum from the date of order till realization. Failing which complainant is at liberty to file execution application against opposite parties as per the provisions of Consumer Protection Act 2019.
Exts:
A1- Quotation for dental equipments and dental clinic
A2&A4- Acknowledgment receipt issued by SHO Dharmadam dtd.9/8/21, 5/4/2023
A3- Agreement executed by 1st complainant and 1st OP.
PW1-K.P.Sarina Hemanth- 1st complainant
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
eva
/Forwarded by Order/
ASSISTANT REGISTRAR
