State Consumer Disputes Redressal Commission
Desh Bandu Khurana vs Japan Life India, Frontier Trading on 27 August, 2007
IN THE STATE COMMISSION: DELHI IN THE STATE COMMISSION: DELHI (Constituted under section 9 clause (b) of the Consumer Protection Act, 1986.) Date of decision :27.08.2007 Appeal No. A-296/02 (Arising from order dated 20.02.2002 passed by the District Forum (South-Il), in Compliant case No. C-3929/2000 Desh Bandu Khurana, S/o Mr. R.S. D. Khurana, D-389, Defence Colony, New Delhi Appellant Through Sh. Amit Khurana, Advocate Versus 1. JAPAN LIFE INDIA, Frontier Trading, (through its Managing Director) 913, Dalamal Tower, Free Press Journal Road, Nariman Point, Mumbai-400021 2. Japan Life India, Frontier Trading, Transmission House, Maral Co-op. Ind. Area, Andheri (East), Mumbai-400059 3. Ms. Rachna Kholi, Office Manager, Japan Life India, Frontier Trading, Ist Floor, Kamal Cinema Building, Safdarjung Enclave, New Delhi 110029 ..Respondents Through Arvind Misra, Advocate CORAM Justice J.D. Kapoor President Ms. Rumnita Mittal Member1
Whether reporters of local newspapers be allowed to see the Judgement.
2. To be referred to the Reporter or not.
Justice J.D. Kapoor (Oral)
1. Vide impugned order the complaint of the appellant seeking refund of the amount of Rs. 72,225/- paid towards the cost of the magnetic mattress to the respondent was dismissed being devoid of merit as the respondent had delivered the said article at the resident of the appellant hardly with delay of 20 days. Feeling aggrieved, the appellant preferred this appeal.
2. Admittedly the appellant placed an order for supply of magnetic mattress known as Total Sleeping System with the respondent which he wanted to gift to his daughter Mrs. Sweta Garg as she was suffering from backache, gastric troubles and knee pains. The said mattress was supposed to be a cure for such diseases. The appellant had paid a sum of Rs.
72,225/-p to respondent on 18.11.99. According to the appellant the mattress was to be delivered latest by 29.11.99. Respondent no. 3 promised to deliver the mattress at least by 18.12.99. Appellant had told respondent no. 3 that if the mattress was not delivered by 18.12.99 the contract would stand automatically cancelled and respondent no. 3 promised to refund the money with interest if the mattress was not delivered on or before 18.12.99. The mattress was not delivered by that date, the appellant kept waiting for two weeks Ultimately on 29.12.99, he sent his representative to the office of respondent no. 3. The receipt of payment of the amount of Rs. 72m225/- bearing the date of receipt of that payment as 10.11.99 was given to the representative. On the appellants contacting respondent no. 3 she assured te refund of the money to him but when he reached his house in the evening he found that the magnetic mattress was delivered at his house to his servant at about 5 to 5.30 PM. Later on 30/31.12.99, 5.1.2000, 28.1.2000, 22.1.2000 and again on 7.3.2000 he sent fax message to the officers of respondent no. 1 & 2 at Bombay stating that since the mattress was not delivered in time and since time was the essence of the contract, therefore the contract stood cancelled and that therefore the amount paid by him should be refunded to him. He also sent legal notice on 3.7.2000 for the same purpose and finding no response he made this complaint praying for the refund of this amount of Rs. 72,225/- with interest @ 18% per annum from 19.10.2000 till date of realization and also compensation of Rs. 25,000/- and cost of proceedings.
3. In its defence, the respondent took the plea that it was for the complainant to have collected the mattress from their godown as there was no agreement or stipulation that they would supply the mattress at the appellants place. According to them the mattress was supplied to the appellants house immediately after his representative had approached them for the purpose on 29.12.99. The appellant was using he mattress without any complaint since then and had filed the present complaint after the lapse of about 18 months. It was categorically stated that none of them had made any promise to get the mattress delivered at the residence of the complaint on any particular date. The said mattress was available in their stock even on the date when the amount was paid by the complainant i.e. on 18.11.99 and at every time thereafter and since the appellant himself did not collect the mattress they were not at fault at all. The fact that the appellants daughter Mrs. Sweta Garg was suffering from backache, gastric trouble or knee pain was also denied on the basis of the documents at Ex-C-1/C with the affidavit of the appellant, which according to the respondent is the only evidence on the record to show the ailing condition of the daughter of the complaint.
4. As is apparent from the aforesaid facts and rival claim of the parties returned that appellant refused to accept the system mainly because it was delivered late by 20 days. The plea that the delayed delivery of the system had made the article not being used by the person is wholly unacceptable. The nature and purpose of purchasing of such an article and the delayed delivery of the system might have caused some emotional suffering to the appellant by no giving it to her daughter on her birthday as gift, but in any case the appellant was entitled to cancel the contract once having made the payment and the respondent have arranges the same . The appellant has not produced any document to show that the time was essence of the contract or the delivery of the article in December, 1999 shall render into automatic cancellation of the contract between the parties. At the most the appellant could have been compensated for the deficiency of service on behalf of the respondent in not delivering goods by the occasion for which these goods were booked. However, there is no dispute that the said system is lying with the appellant since 1999 and to say that he has never used this system for last 8-9 long years seems against the commonsense. It is not at all a prudent version. Delayed delivery of the system has not lessor the utility of the system and this systems was to cure several diseases and was utility for whole life and not taking the delivery by the appellant demonstrate the malafie of the appellant.
5. Be that as it may the fact remains that the system have been in possession of the appellant for all these years and the limited deficiency on the part of the respondent is not delivering it in time that caused mental agony and harassment to the appellant, we deem a lump sum compensation of Rs. 25,000/- shall met the ends of justice . Respondent shall pay this amount within one months of the receipt of this order.
6. F.D.R./ Bank Guarantee, if any, furnished by the appellant be returned forthwith after completion of due formalities.
7. A copy of this order as per statutory requirements, be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to the record room.
Announced on the 16th August, 2007.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member rk