Andhra Pradesh

Nellore

CC/85/2014

Nagell Subba Rayudu Son of Subbarayudu - Complainant(s)

Versus

1.Anugraha Enterprises Rep by its proprietor - Opp.Party(s)

MD.Rahim Khan

27 Oct 2015

ORDER

Date of Filing     :26-11-2014

                                                                                                Date of Disposal:27-10-2015

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM:NELLORE

Tuesday, this the  27^th day of   October, 2015

 

PRESENT: Sri M. Subbarayudu Naidu, B.Com.,B.L.,LL.M.,President(FAC) & Member                             

                   Sri N.S. Kumara Swamy, B.Sc.,LL.B., Member.

 

C.C.No.85/2014

Nagella Subba Rayudu, S/o.Subbarayudu,

Aged about 46 years, Residing at D.No.22-158,

Dadivari Street, Big Bazar, Nellore.                                                             ..… Complainant         

                                                                           Vs.

 

1.	Anugraha Enterprises, Represented  by it’s Proprietor, No.204, Vardhaman Dwaraka Dheesh Plaza, Plot No.1, Sec-10, Dwaraka, New Delhi-110075.
2.	Associated Road Carriers Limited, Represented by it’s Manager, James Garden, Nellore-524 003.                                                               ..…Opposite parties

                                                              .  

            This complaint coming on 19-10-2015  before us for hearing in the presence of                Sri Md. Rahim Khan, advocate for the complainant and                                                               opposite parties 1and 2 called absent  and having stood over for consideration till this day and this Forum made the following:

 

ORDER

(ORDER BY  Sri N.S. KUMARA SWAMY, MEMBER)

This complaint is filed under Section-12 of Consumer Protection Act, 1986  and prays to direct the opposite parties to refund Rs.1,99,950/- towards the machine costs, Rs.4,723/- towards cost of paper rolls and Rs.5,800/- towards courier  charges, collected totaling Rs.2,10,473/- with interest thereon at 12% p.a. from 04-08-2014 till realization, damages of Rs.1,00,000/- towards mental agony and costs of this complaint.

            The brief averments of the complaint are that  complainant being an unemployee with a view to get income, he purchased  paper plate  and paper donnies machine  for eakingout his livelihood  for an amount of Rs.1,99,950/- from the 1^st opposite party with a warranty period of two years.  The complainant sent an amount of Rs.1,80,000/-  through his bank  account No.914020018788338 in Axis Bank branch at Nellore to the account of opposite parties  bank by transfer and Rs.19,950/-  by way of cash under receipt No.2749, dated 05-08-2014 towards the entire cost of the machine.  Further the opposite party collected Rs.4,723/- on 04-08-2014 towards the costs of paper rolls.  The opposite party sent  the said paper plate machine by way of courier vide receipt dated 20-08-2014 to the complainant’s residence.  The courier expenditure amount of  Rs.5,800/- also collected from the complainant.  The complainant further averred that the technician of opposite party No.1 installed the said machine in the house of complainant on                   30-08-2014 and after installation, when the technician switched on the  said machine immediately smoke was emitted from the said machine and when questioned the technician stated that there is a problem in the said machine  and also stated that  there is a manufacturing defect in the said machine and the company will replace the defective machine with a new one and went away.  The complainant further stated that when he requested the 1^st opposite party to replace the said machine or to refund the cost of the machine but  he gave evasive reply and postponing the same on some pretext or the other. The complainant further alleged that it is the bounden duty of the opposite parties  to supply good quality of  machine  to the complainant before installation.  But, the opposite party failed to replace the defective machine.  Vexed with the attitude of the opposite parties  1and 2 got issued legal notice, dated 09-10-2014 to both parties and returned the notice  of the 1^st opposite party as unserved  and  though  legal notice served to the 2^nd  opposite party, no reply was issued to the complainant.  Due to that  complainant suffered lot of mental agony, financial loss and inconvenience for which the complainant is entitled  for  the amounts as prayed for in the complaint. 

            2.         Memo  filed by complainant that notice of opposite party  No.2  served  and when opposite party No.2  called he was absent. Notice sent to opposite party No.1 by registered post with acknowledgement returned with “Left”.  Subsequently, substitute service by way of paper publication published in Hindu news paper on 19-08-2015  for his   appearance.  When the opposite party No.1 called on 25-08-2015, he was absent.  No representation on their behalf.  Hence, treated as no defense on the side of opposite parties. 

3.         On the other hand, complainant filed chief affidavit as P.W.1,  marked Exs.A1 to A6 and also filed written arguments of complainant.  Heard, the learned counsel for the complainant and proceeded with as there was no contest on the side of opposite parties.

 

            4.         Perused the material papers on record. 

 

            5.         The point for determination would be:

1.   Whether there is any deficiency in service on the part of opposite

   parties, if so, whether the complainant is entitled for the relief  as    

   prayed for?

2.    To what relief?

 

            6.         POINT No.1:  It is noticed that the complainant had purchased paper plate and paper donnies machine  from the 1^st opposite party for Rs.1,99,950/-.  The said amount was sent by way of two modes which is one by way of transfer  from the account of complainant to the account of opposite party vide Ex.A3 for Rs.1,80,000/- and also another mode of sending the amount of Rs.19,950/- by way of cash, which is Ex.A2.  It is also noticed that  the complainant paid an amount of Rs.5,800/- towards courier charges, which is Ex.A4.

 

            7.         It is also noticed that the machine was installed  by the technician but the said machine was not working and inspite of  several requests made to the opposite parties to replace the said defective machine with a new one but  the opposite parties never cared his representation.  A legal notice also got issued dated 09-10-2014, which is marked as Ex.A6  but  no reply from the opposite parties.  Thus, it is evident from  Exs.A1 to A6, the complainant established  that the said machine  was purchased from the 1^st opposite party and it is also noticed that the machine was an defective  one.  Inspite of repeated demands by the complainant the opposite parties did not respond and comply the defects. Long silence and inaction on the part of opposite parties would certainly amounts to deficiency in service.  Unscrupulous,  traders  after taking the amounts for the supply of machines does not performed its part of obligation should not be spared.

 

 

            8.         Generally, a common man used to  purchase paper plate and paper donnies machine and other goods from  a  manufacturer believing the words of  promises  and assurances by expecting the purpose, for which the goods are purchased will serve the fulfillment of their desires. If there is any defect in the said goods, the very purpose of purchase will be defeated and the customer will be put to  great hardship.  In such  a situation, in the instant case, the opposite parties 1 and 2 cannot escape from their liability without rectifying the problem arose in the said machine.  When once the said machine is received from the manufacturing company, it is  bounden duty of the opposite parties  to see that the said machine is in good and proper working condition to the satisfaction of the complainant at the time of purchasing the machine from the opposite party No.1.  Hence, the opposite parties  1 and 2 are  jointly  and severally liable to rectify the defects of said machine.  Since, they failed to cure it permanently then it amounts to  inherent manufacturing defect.  Hence, the complainant placed  plausible evidence  and  the deficiency of service on the part of opposite parties are proved for their gross negligence and inaction.

 

            9.         Further with regard to the damages, it is to be considered how much compensation is entitled apart from payment of Rs.2,10,473/-  towards the purchase of machine.  The complainant claimed  for a direction to the opposite parties for payment of damages of Rs.1,00,000/- for mental agony, inconvenience and financial loss committed by the opposite parties due to deficiency in service.  In order to obtain a direction for payment of damages of Rs.1,00,000/-, the complainant has to establish the mental  agony and sufferings said to have been caused to him.  Merely because the opposite parties did not choose to contest the claim of the complainant, the complainant could not  automatically entitled to  whatever the amount claimed in the complaint.  The complainant could not be entitled  for payment of  exhorbitant  damages of Rs.1,00,000/- as  claimed.   An amount of Rs.5,000/- appears to be  reasonable amount of  damages besides the  costs of  Rs.2,000/-.  Therefore, the complainant is entitled  to refund of total amount of Rs.2,10,473/- (Rs.1,99,950/-   towards machine costs +  Rs.4,723/- towards the costs of paper rolls  and also Rs.5,800/- towards courier charges) and  Rs.5,000/- towards damages besides the costs of Rs.2,000/- . Point No.1 is answered accordingly.

 

10.       POINT No.2: In the result,  the complaint is allowed  directing the opposite parties 1 and 2 are jointly  and severally liable  to pay the complainant towards the total costs of Rs.2,10,473/- (Rupees  two lakh ten thousand four hundred  and seventy three  only) pertaining to the machine cost , cost of paper rolls and  courier charges with interest at 9% p.a. from the date of complaint  i.e., 26-11-2014 till the date of payment.  The opposite parties are also further directed to pay damages of Rs.5,000/- (Rupees five thousand only) besides the costs of Rs.2,000/- (Rupees two thousand only).  In default of the payment of the above said amounts, the complainant shall be at liberty to take appropriate legal proceedings for recovery of the amounts.  The complainant is directed  to handover the defective machine  etc.,to the opposite parties soon after receipt of ordered amounts.

 

Typed to the dictation to the Stenographer, corrected  and pronounced by us in the open  Forum, this the  27^th day of  October, 2015.

                 Sd/-                                                                                        Sd/-

 

           MEMBER                                                                               PRESIDENT(F.A.C.)

 

           

                                                APPENDIX OF EVIDENCE

 

Witnesses Examined for the complainant

 

P.W.1  -

09-10-2015

Sri Nagella Subba Rayudu, S/o.Subbarayudu, Nellore (Deposition Affidavit filed)

 

Witnesses Examined for the opposite parties

-Nil-

 

                             EXHIBITS MARKED FOR THE COMPLAINANT

 

Ex.A1  -	04-08-2014	Photocopy of  bill in S.No.2746 for Rs.4,725/- in favour of complainant issued by the opposite party No.1.
Ex.A2  -	05-08-2014	Photocopy of  bill in S.No.2749 for Rs.19,950/- in favour of complainant issued by the opposite party No.1.
Ex.A3  -	31-07-2014	Receipt issued State Bank of India, Vedayapalem Branch in favour of complainant  for Rs.1,80,000/-.
Ex.A4  -	20-08-2014	Photocopy of courier receipt No.MM520665
Ex.A5  -	-	Returned registered post cover from opposite party No.1 sent by complainant’s advocate.
Ex.A6  -	09-10-2014	Legal notice from complainant’s advocate to the opposite parties alongwith registered post receipt.

 

                         EXHIBITS MARKED FOR THE OPPOSITE PARTIES

-Nil-

                                                                                                  

                                                                                                        Id/-

                                                                                                         PRESIDENT(F.A.C.)

 

Copies to:

 

1.	Sri Md. Rahimkhan, Advocate, Nellore.
2.	M/s.Anugraha Enterprises, Represented  by it’s Proprietor, No.204, Vardhaman Dwaraka Dheesh Plaza,  Plot No.1, Sec-10, Dwaraka, New Delhi-110075.
3.	M/s.Associated Road Carriers Limited, Represented by it’s Manager, James Garden, Nellore-524 003.

 

Date when free copy was issued: