1. THIS is appeal under Section 15 of the Consumer Protection Act (hereinafter called the ''Act'') against the judgment and order dated 7.5.2002 passed by District Forum, Bulandshahr in Complaint Case No. 55 of 2002. Also there is another appeal bearing No. 1561/2002 against the impugned order where enhancement in the award has been prayed.
2. INITIALLY a complaint was preferred alleging that the complainant placed an order for an offset printing machine vide order dated 27.3.2001 on the opposite party and that the machine was to be displayed by G S Printing Graphic Machinery, Faridabad in the office of the complainant situated in Bulandshahr. The said machine was booked for installation and demonstration in Bulandshahr and the complainant paid a sum of Rs. 1,72,500/-. It was agreed between the parties through written agreement dated 27.3.2001 that in case the machine is not installed by 25.4.2001, the deposited money will be returned along with penalty at the rate of Rs. 50/-per day. Consequently when the opposite party was contacted, the money was not returned. Consequently after serving notice, the present complaint has been filed.
Appeal No. 1561/2002 has been filed by the complainant/respondent. Whereas Appeal No. 2197/2002 has been filed by the opposite party. Since the matters involved in both the appeals are same, parties'' Counsel are also one and the same, it is appropriate that both the appeals be decided by a common judgment.
The first argument of Mr. Sarvesh Kumar Sharma has been that a proper opportunity for hearing before the learned District Forum was not granted to the opposite party/appellant and ex parte proceedings in collaboration with the complainant were initiated. Then a recall application was moved which was dismissed by the learned District Forum. Mr. S. K. Sharma, learned Counsel for the respondent/complainant submitted that such argument on the face of it does not survive. After several opportunities and giving due notice to the opposite party the complaint was ordered to proceed ex parte. Even if for the sake of argument the argument of Mr. Sarvesh Kumar Sharma is accepted that no proper notice was serviced, the matter does not survive.
3. IT is deemed proper to dispose of the matter on the facts as well as on law.
The next argument of Sri Sushil Kumar Sharma is that there was an alleged agreement on which it has placed reliance wherein it was stipulated that in case supply of machine is not made within the time allowed, the complainant would be entitled to get a sum of Rs. 1,72,500/-alongwith penalty of Rs. 50/- per day. The learned Counsel for the appellant Mr. Sarvesh Kumar Sharma submitted that the appellant had never entered into any contract and the same is fabricated, false and self-prepared and it has no binding. It is true that only a photocopy of the agreement has been filed by Mr. S K Sharma in support of his contention. Furnishing a photocopy of the agreement cannot be deemed to be non-admissible. There is a specific plea in the complaint which mentions about the agreement on which reliance has been placed by the learned Counsel for the respondent. The agreement mentions that in case by 14.10.2001 the supply of the machine is not made, the complainant would be entitled to reimbursement of the paid sum along with penalty as stated above. In the instant case the factum of money deposited has not been denied by the appellant/opposite party and even the details so furnished in the complaint with regard to the payment of money in four instalments by the complainant has been accepted. The last instalment in the instant case was paid on 4.10.2001 whereas the complaint in question has been filed on 22.1.2002. Obviously the supply was not made by 14.10.2001. That makes the complainant entitled for the refund of the money so deposited along with interest.
4. THE argument of learned Counsel for the appellant that the supply of the machine in question could not be effected as the full payment was not made and the required forms were also not submitted will not carry further so as to deny the refund of the money which is lying blocked with the appellant. THE fact remains that the contract could not be fulfilled and the supply of offset printing machine for which the aforesaid payment has been made has not been effected.
The next question which was argued was that in any case the interest awarded by the learned District Forum at the rate of 12% was uncalled for in view of the facts and circumstances and sufficient materials have not been disclosed for justifying such right of interest. On the other hand, learned Counsel for the respondent banked upon the terms and conditions in the agreement with regard to the payment of penalty of Rs. 50/-per day and even the rate of interest awarded by the learned District Forum was tried to be supported. The penalty to be paid at the rate of Rs. 50/- per day, as done in the agreement, is not sustainable in the eyes of law. What is the entitlement of the complainant is to get refund of the money along with proper interest. Taking the totality of the facts into consideration, in our considered view proper rate of interest which should have been awarded by the learned District Forum should have been 8% per annum from the date of filing of the complaint. Even the finding of compensation of Rs. 25000/- awarded by the District Forum has been a serious matter of criticism. We are of the view that compensation for mental pain is not possible as it can well be compensated while getting the interest. The appeal is liable to be allowed in part. ORDER The Appeal No. 2197/SC/2002 is allowed in part. The complainant is entitled for reimbursement of the sum of Rs. 1,72,500/- along with interest at the rate of 8% from the date of filing of the complaint till the date of payment. Compensation of Rs. 25000/- awarded by the District Forum is struck off. Appeal No. 1561/2002 is dismissed. No order as to the costs. Let original copy of the judgment and order be kept on the records of appeal No. 2197/SC/2002 and a certified copy thereof be kept in the records of appeal No.1561/2002 which shall also be governed by this judgment. Ordered accordingly.
