Ld. Advocate(s)
For Complainant: Romeet Sil
For OP/OPs : None
Date of filing of the case :03.03.2020
Date of Disposal of the case :20.12.2022
(2)
Final Order / Judgment dtd.20.12.2022
Complainant Himangshu Pal files the present complainant against the aforesaid opposite party under section 12 of the Consumer Protection Act, 1986 alleging deficiency in service and prayed for sum of Rs.39,000.00 (Rupees Thirty Nine thousand) as return of advance money, Rs. 20,000.00 (Rupees Twenty thousand) as cost of the case and compensation amounting to Rs. 1,00,000.00(Rupees One lakh).
It is the allegation of the complainant that he had decided to purchase Modular Kitchen from the OP and gave an amount of Rs.39,000.00( Rupees Thirty Nine thousand) as advance through cheque of his bank account. OP encashed the said cheque. Thereafter OP denied to install Modular Kitchen in favour of the complainant. OP insisted the complainant to take INTROLINK Kitchen from him but complainant is not willing to take the same. OP neither installed the Modular Kitchen nor returned the aforesaid advance amount in favour of the complainant. Hence this case.
After service of notice, OP did not appear in this case. Hence the case fixed for ex-parte hearing vide order no.7 dated 14.12.2020.
Trial
During trial complainant Himangshu Pal filed affidavit in chief of himself. One Manabendra Nath Mondal also filed affidavit in chief in this case.
Documents
Following documents have been produced from the side of complainant:
- Pass Book of IDBI Bank.............(Original)
- Letter issued by OP dated 21.11.2019.........(Original)
- Description of some articles along with value.............(Xerox)
- Photograph of Kitchen...........(Xerox)
- Legal Notice issued by Advocate Romeet Sil dated 14.11.2019..........(Original)
Brief Notes of argument.
Complainant in support of his case not yet filed separate Brief Notes of Argument. He filed a petition stating that written complaint be treated as BNA.
Argument
Complainant argued before this commission that he had decided to purchase Modular Kitchen from the OP and gave an amount of Rs.39,000.00( Rupees Thirty Nine thousand) as advance through cheque of his bank account. OP encashed the said cheque. Thereafter OP denied to install Modular Kitchen in favour of the complainant. OP insisted the complainant to take Introlink Modular Kitchen from
(3)
him but complainant is not willing to take the same. OP neither installed the Modular Kitchen nor returned the aforesaid advance amount in favour of the complainant.
Decision with Reasons
It is the allegation of the complainant that he had decided to purchase Modular Kitchen from the OP and gave an amount of Rs.39,000.00( Rupees Thirty Nine thousand) as advance through cheque of his bank account and OP encashed the said cheque but OP denied to install Modular Kitchen in favour of the complainant. OP insisted the complainant to take INTROLINK Modular Kitchen from him but complainant is not willing to take the same. OP neither installed the Modular Kitchen nor returned the aforesaid advance amount in favour of the complainant.
We have carefully gone through the evidence of PW-1 and PW-2. These evidences are nothing but unchallenged testimony. So we do not find any reason to disbelieve the aforesaid evidences.
Complainant also filed certain documents. He also made reference of this documents in his affidavit in chief. So we do not find any reason to disbelieve those documents.
On perusal of Original Bank Pass Book of the complainant we find that on 04.05.2017 an amount of Rs.39,000.00(Rupees Thirty nine thousand) has transferred in favour of the OP through cheque. This part of evidence corroborates the allegation of the complainant that he paid Rs.39,000.00(Rupees Thirty Nine thousand) in favour of the OP as an advance of Modular Kitchen.
Moreover, on careful perusal of letter of the OP dated 21.11.2019 we find that he admitted that complainant paid Rs. 39,000.00(Rupees Thirty Nine thousand) in his favour.
So it is clear before us that complainant gave an advance amounting to Rs.39,000.00(Rupees Thirty Nine thousand) in favour of the OP.
OP in his letter dated 21.11.2019 alleged that complainant was agreed to take INTROLINK Kitchen and for that purpose he gave Rs.39,000.00(Rupees Thirty nine thousand) as advance. He further alleged that relating to transaction of Introlink Kitchen one contractual document was prepared. He sent Xerox copy of a document with his letter dated 21.11.2019 to the complainant. On perusal of the said document we find that no terms and conditions have been written over the said document. In the said document value of some articles have mentioned only.
Considering the contents of the said document we are of the firm view that this document cannot be treated as contractual document. On the other hand it is clear before us that OP failed to establish that complainant was agreed to purchase INTROLINK Kitchen.
The plea which has been taken by the OP that complainant was agreed to purchase INTROLINK Kitchen at his own choice is not acceptable in the eye of law. OP could not give satisfactory explanation in his reply as to why he will not refund the advance amount.
(4)
Having regard to aforesaid discussion we are of the opinion that aforesaid act of the OP is nothing but deficiency in service and OP should be asked to refund the advance amount i.e Rs.39,000.00(Rupees Thirty Nine thousand) in favour of the complainant.
Having considered the facts and circumstances of this case, evidence on record and documents on record we find that complainant has able to establish that he is entitled to refund the advance amount which was given in favour of the OP.
In the result present case succeeds. Hence,
It is
Ordered
that the present case be and the same is allowed ex-parte against the OP but without any order as to costs.
OP is directed to refund the advance amount which was given by the complainant in his favour through his bank account amounting to Rs. 39,000.00(Rupees Thirty Nine thousand) along with interest @ 9% per annum from the date of payment i.e. from 04.05.2017 to till the date of actual payment failing which complainant shall have liberty to put this order into execution.
OP is further directed to pay Rs.10,000.00(Rupees Ten thousands) to the complainant as compensation for his physical harassment and for his mental pain and agony within one month from this order failing which complainant shall have liberty to put this order into execution.
Let a copy of this order be supplied to the complainant as free of cost.
Let a copy of this order be sent to OP for compliance.
