P DEEPA Vs. VALLIAMMAI

JUDGEMENT

(1.) We are satisfied that this appeal has to be accepted. The lower Forum has not considered the matter in the proper perspective and had ignored the important aspects in this case. The lower Forum has committed an error in presuming that the complainant had placed orders for more than one computer whereas the correspondence produced would show that orders were placed for only one computer and the said fact was also not controverted. Therefore, the lower Forum, by misconstruing the pleadings, had erred in holding that the complainant having placed orders for four computers did not pay the entire amount due as per the quotation and, therefore, there was no deficiency in service. This has thus resulted in an erroneous approach leading to the grave mistake in the conclusion.

(2.) The next contention that has been accepted by the lower Forum is that it is a condition of the contract that 100% advance has to be made and, therefore, the complainant having failed to comply with the said condition, is not entitled to claim the amount paid by her and the forfeiture of the same was proper. The documents produced in this regard especially Exs. A-8 and B4 only mention 100% of the amount to be paid. It does not mention the period when the amount has to be paid, whether it is before the date of delivery or within a particular time from the date of placing of order. Therefore, it is quite vague. Further, in this case, the complainant has paid more or less the entire amount excepting a sum of Rs.1,000/- which she was admittedly willing and ready to pay at the time of delivery. Therefore, what we find in this case is that the opposite party having received practically the entire amount that was due towards the cost of the computer, has not only failed to supply the computer but has also chosen to forfeit the advance amount which amounts to unfair trade practice besides amounting to deficiency in service. The approach of the lower Forum in this regard is amusing. Merely because the invoice says 100% advance to be paid, it cannot be construed as amounting to a written contract between the parties to hold that the complainant or the person placing order had agreed for the terms and conditions contained therein. Moreover, there is no condition in the invoice stating that if the advance amount is not paid as indicated, the amount paid in part towards the purchase will not be refunded. Therefore, when the invoice is not specific and is vague and when there is no indication as to when the amount has to be paid and when it is silent as to the amount received by the opposite party from the complainant towards the sale price, the lower Forum has erred in concluding that there has been a failure on the part of the complainant to pay the entire amount and, therefore, the forfeiture by the opposite party was justified. Taking into consideration the documents produced by the complainant and the opposite party's documents Exs. B3 and B4, we are of the view that the conclusion arrived at by the lower Forum is lopsided and misses completely the factual background presented before us. Thus there is deficiency in service. The act of the opposite party forfeiting the amount paid by the complainant not only amounts to unfair trade practice but also is an instance of deficiency in service and a breach of trust as well. Therefore, in this view of the matter, the complainant is entitled to the amount of Rs.22,500/- paid by her to the opposite party towards the purchase of computer which was never supplied. The complainant has also quantified a sum of Rs.23,500/- as business loss suffered by her. In view of the documents produced and in the circumstances, we determine the loss under this head in a sum of Rs.15,000/- and accordingly we hold that the complainant will be entitled to a business loss of Rs.15,000/- on account of the non-supply of the computer. The complainant has asked for compensation of Rs.10,000/- towards mental agony which in the circumstances, we would reduce to Rs.5,000/-. Since we have awarded a sum of Rs.15,000/- towards business loss and Rs.5,000/- towards mental agony, we do not propose to award any interest as prayed for.

(3.) Therefore, we hold that the complainant will be entitled to a sum of Rs.22,500/- being the amount refundable to the complainant along with a sum of Rs.15,000/- towards business loss, a sum of Rs.5,000/- towards mental agony and a sum of Rs.1,000/- as costs.