Date of Filling:     10.09.2015

                                                                                                                       Date of Disposal:  25.06.2018

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

THIRUVALLUR-1

PRESENT:   THIRU.S.PANDIAN, B.Sc., L.L.M.                                 ….PRESIDENT

THIRU:R.BASKARKUMARAVEL, B.Sc.L.L.M., BPT., PGDCLP.,      …MEMBER

CONSUMER COMPLAINT No.47/2015

MONDAY, THE 25 DAY OF JUNE 2018

VelTech Dr.RR & Dr.S.R.Technical University,

Represented by its Legal Officer

No.42, VelTech Road, Avadi,

Chennai - 600 062.                                                                 ……Complainant

                                               //Versus//

M/s.Precious Minerals Processing Systems Pvt. Ltd.,

(Formerly known as precious Fab Cast Pvt.Ltd.)

No.4809, Phase IV, GIDC,

Nr.Water Tank, Vatva, Ahmadabad,

India - 382 445.

Mr.Prawin Agarwal,

Managing Director,

M/s.Precious minerals Processing Systems Pvt.Ltd.,

No.4809, Phase IV,GIDV,

Nr.Water Tank, Vatva, Ahmadabad,

India - 382 445.                                                                   ……….Opposite parties.

The complaint is coming upon before us finally on 08.06.2018 in the presence of  Thiru.A.R.Poovannan, counsel for Complainant, M/s. Satish, Counsel for the opposite parties and upon hearing arguments, and having perused the documents and evidence on both the sides, this Forum delivered the following:

ORDER

PRONOUNCED BY THIRU.S.PANDIAN, PRESIDENT.

This complaint is filed by the complainant U/S 12 of Consumer Protection Act.1986 to direct the opposite parties to repay a sum of Rs.2,46,087/-with 10percent interest till realization towards the  balance in the advance paid and to pay Rs.3,00,000/- towards compensation for mental agony and deficiency in service.

2.The Brief averment of the complaint as follows:-

The Complainant is a reputed educational institution recognized as VELTECH GROUP OF EDUCATION INSTITUTION situating at Avadi, Chennai having various institution and colleges. The second opposite party Mr.Prawin Agarwal, Managing director of M/s Precious mineral processing ltd., Ahmadabad approached the complainant on 1.1.2012 and represented that the  first opposite party is a manufacture of plant based on pulverisers, Crushers, Mixers and material Conveying Equipments for various industries.  The second opposite party came for campaigning of the machines like Electro static separator, Cabinet Shredder, Hard disc shredder, magnetic separator, Eddy current Separator etc.  The complainant shown interests in purchasing the equipments as it were useful for their research projects.  The complainant is having a separate research wing and were in need of Electro static separator for separating the metals from waste electronic materials.  They trusted the advertisement and presentations at their end by the opposite party-2 and ordered Electro static separator for an amount of Rs.9,50,000/-

3. That after many discussions and e-mail communications, the complainant agreed to pay 40 percent of the total cost of machine at the time of the purchase order of the equipment and the balance amount at the time delivery.  Further as per the instruction of the second opposite party, the complainant had given purchase order No.10 dated 06.12.2012 and paid an amount of Rs.3,96,087/- the 40 percent of the total cost of the machine to the opposite parties.  The opposite parties had not supplied the machine and on 15.12.2013 sent a e-mail information that there was a steep increase in Material items of the machine and thus the complainant will have to pay an increased amount of Rs. 2,00,000/- of the machine.  The complainant initially refused to accept to increased price, but subsequently looking to the project requirements, they negotiated and the supplier agreed to deliver the machine with increase in price by one lakhs rupees only.  Thus the total cost of the machine was increased from its original price as Rs.10,50,000/- with the outstanding terms and conditions of the earlier.

4. The complainant made several requests to the opposite parties for complying the purchase order by delivering the machine.  The opposite parties failed to deliver and had sent a e-mail stating that we are not getting success to make machine and do not want to invest any more money or time on it.           The opposite parties stated that they tried to outsource the same, but could not get any “Reliable” as the opposite parties could not found a good manufacturer whose machine are working to their customers site successfully.  Thus, the opposite parties declined to execute the same as per the purchase order.  The complainant was shocked by the reply by the opposite parties and the opposite parties further informed that they are ready to return the 40% cash i.e Rs.3,96,087/-  The complainant submits that though the opposite parties assured to repay the advance paid to them,  in spite of many requests they have paid only a sum of Rs.50,000/- as first installment through cheque on 29.04.2014.  The second installment of Rs.1,00,000/- made through cheque on 24.05.2014.  The complainant submits that the opposite parties will have to repay the balance sum of Rs.2,46,087/-. Though the complainant sent many e-mails and finally on 07.01.2015  but there was no responses from the opposite parties end.        

5. The complainant is provided with funds from the Government for the research programmes and they are purchasing the Electro static separator for a project funded by Dept of sciences and Technology Government of India.  The complainant will have to follow certain terms and conditions adhered by the Government of India.  If the complainant is not in a position to complete the project, the grants should be returned to the Government with Interest.

6. Now the opposite party has not supplied the machine and the complainant is answerable to the Government.  Hence the complainant is left no option except to cause a legal notice to the opposite parties calling upon them to repay the balance from the advance paid by the complainant with interest.  The complainant suffered very inconvenience and they are not able to complete the signed project and thus complainant had much inconvenience, mental agony, hardship and strain and loss of reputation caused to the complainant.  The act of the opposite in non-supplying the machine as agreed and even non- refunding the balance of the advance amount to gross deficiency in service.  Therefore, on 19.02.2015 issued a legal notice to the opposite parties and they in spite of the notice, have not responded, but had replied on 05.03.2015 to adjust with their loss.  The first and second opposite parties are jointly and severally liable to pay and compensate the complainant.  Hence this complaint.           

7.The contention of the written version of the opposite parties has brief as follows:-

The opposite parties deny all the allegations, averments and claims of the complaint except those that are specifically admitted herein or are matter of on record.                       

8. The complainant is not a Consumer as per the definition of section 2(1) (d) of the Consumer protection Act, 1986.  The complainant specifically admits that it has placed the orders to purchase the Electro Static Separator& other equipments for the research projects being carried on by it.  A person who obtains the goods or who avails the services for any commercial purpose is specifically excluded from the definition of the word “Consumer” as per section 2(1)(d) of the Consumer Protection Act, 1986.  Therefore, it is established beyond doubt that the complainant is not a consumer as per the provisions of the Consumer Protection Act, 1986.  The complaint therefore is liable to be dismissed in limine with cost.

9. The complaint is also liable to be dismissed on the ground of misjoinder and non-joinder of necessary parties.  The complainant ought not to have included the 2^nd opposite party.  The complainant is entirely directed against the 1^st opposite party which is a separate legal entity.  Therefore, the inclusion of 2^nd opposite party is redundant and the same has been done by the complainant only to harass the 2^nd opposite party.  The complainant ought to have included the department of science & Technology, Government of India from whom the complainant claims to have received funds for purchasing the equipments.

10. That the claim for damages sought by the complainant towards damages and compensation for deficiency in service is false and unsubstantiated.  There was no deficiency in service rendered by the opposite parties.  The contract was for supply of goods.  Advance paid by the complainant has been refunded by the 1^st opposite party after deducting the amount payable by the complainant towards its contribution & other charges.

11. The opposite parties submits that had the intention of the opposite parties been otherwise, it would not have refunded an amount of Rs.1,50,000/- to the complainant.  The 1^st opposite party had refunded the amount which it is lawfully obligated to refund to the complainant after deducting the amount payable by the complainant towards its contribution & other charges.  Therefore this complaint is liable to be dismissed.

12. In order to prove the case of the complaint, the complainant filed his proof affidavit as his evidence and Exhibit A1to A18 are marked on the side of the complainant. While so, the opposite parties filed their proof affidavit as their evidence but no documents filed by the opposite parties 1and2         

13.At this juncture, the point for consideration before this Forum is:-

1. Whether there is any deficiency of service on the part of the opposite parties 1and2 as alleged in the complaint?

2. To what other reliefs, the complainant is entitled to?

14. Written arguments were filed and oral arguments also adduced by both sides.

15.Point No:1:-

According to the averments of the complainant, it is stated that the complainant has given the purchase order on 06.02.2012 and paid sum of Rs.3,96,087/-for the purchase of ELECTRO STATIC SEPARATOR for a project funded  by Department of science and Technology, Government of India for research project but the opposite parties 1 and2 in spite of repeated demands have not supplied the machine as per the purchase order dated 06.02.2012 and not come forward to return the balance amount in the advance paid by the complainant and thereby the complainant has compelled  to file this complaint.

16.On the other hand, it is stated by the opposite parties 1and2 in  the written version that the complainant is not a Consumer as per section 2(1)(d)of the Consumer Protection Act 1986 and the opposite party has refunded the amount which it is lawfully obligated to refund to the complainant after deducting the amount payable by the complainant towards its contribution and other charges and therefore there is no deficiency of service on the part of the opposite parties.  Moreover, the complaint of the complainant is excessive and false.

17.At the outset, It goes without saying that the foremost duty of the complainant to prove the allegations made in the complaint against the opposite party by means of relevant and consistent evidence.  First of all, on careful perusal of the proof Affidavit of the complainant, it is learnt that the complainant was approached by the opposite party2 and represented that opposite party 1 is a manufacture plant based on pulverisers, Crushers, Mixers and Material Conveying Equipments for various industries and on belief over to the opposite party 2, the complainant had given the purchase order dated06.02.2012 and paid a sum of Rs.3,96,087/- being the 40 percent of the total cost of the machine to the opposite parties  which is marked as Ex.A1.  It is further narrated that as per promise of the opposite parties, they had not supplied the machine on 15.12.2013 and sent a e-mail information that there was a steep increase in Material items of the machine and thus the complainant will have to pay an increased amount of Rs.2,00,000/- and initially same was refused by the complainant, but subsequently they negotiated and the supplier agreed to deliver the machine with increase in price by Rs.1,00,000/- only.

18.Further, it is deposed that in spite of the complainant made several requests to the opposite parties, they have failed to deliver and had sent a e-mail stating that there are not getting success to make machine and do not want to invest any more money or time on it and therefore the complainant sent legal notice Ex.A2 dated 28.03.2013 and thereafter there were several e-mail interactions between the complainant and the opposite parties which are marked asEx.A7 to Ex.A15 and eventhen the opposite parties have not come forward to return the balance amount in the advance paid.  Then,  the complainant sent another legal notice Ex.A3 dated 19.02.2015 and Acknowledgement slip for the same was marked as Ex.A4 for which, the reply notice to the opposite parties dated 05.03.2015 is marked as Ex.A5 and the rejoinder by the complainant is marked as Ex.A6.  It is further learnt that there after  the letter dated 23.12.2015 from opposite party 2 stating that they agreed for returning the money in two installments is marked as Ex.A16 and e-main interactions between the opposite parties and the complainant for settling the same mutually are marked as Ex.A17and Ex.A18.

19. While being so, on going through the evidence of the opposite parties 1and 2 there is no deficiency of service on the part of the opposite parties and further the opposite party informed that after deducting the amount payable by the complainant towards its contribution and other charges has refunded the amount paid by the complainant and further the claim of the complainant is excessive and false.  Further, it is contented that the complainant is not a Consumer and the complainant is not maintainable solely on the ground of mis-joinder and non-joinder of necessary parties.

20. At this juncture, on careful perusal of the evidences adduced on both sides, it is crystal clear that the purchase order made by the complainant through Ex.A1 on payment of Rs.3,96,087/- being the 40 percent of the total cost of the alleged machine  and subsequently inability of the opposite parties to supply the alleged machine as per the purchase order Ex.A1 to the complainant are all admitted facts.  Similarly, it is admitted that several e-mail interactions between the complainant and the opposite parties.  Furthermore, it is an admitted fact that after several requests made by the complainant, the opposite parties had paid a sum of Rs.50,000/-as first installment through cheque dated 29.04.2014 and the second installment of Rs.1,00,000/-was paid through cheque dated 24.05.2014 against the advance amount paid of Rs.3,96,087/- and thereby the balance amount paid by the opposite parties comes only is of Rs.2,06,087/-.  In such circumstances, it is seen, though the complainant as claimed in the complaint for repayment of balance of Rs.2,46,087/- through Ex.A6 his own document.  The complainant is categorically admitted that they are ready to adjust the invoice PMPS/010/13-14 dated 20.12.2013 of Rs.40,000/-and they are not responsible to adjust other amounts.  Further, it is categorically stated in Ex.A6 that kindly repay the amount of Rs.2,06,087/- and settle the matter for the actual balance amount as per the above said fact is only of Rs.2,06,087/- instead of Rs.2,46,087/- which is claimed in the complaint.

21. At the outset, from Ex.A7to Ex.A15 there are several transactions between the complainant and the opposite parties regarding the facts of non supply of alleged machine to the complainant and also in respect of the refund of the advance amount.  Moreover, it is seen from Ex.A17 and Ex.A18, through the opposite parties conformed the complainant for settle the issue mutually that is the filing of this complaint.  From above facts, it is crystal clear that till the filing of the complaint though the complainant made several request to the opposite parties they have not come forward to settle the balance amount which certainly caused mental agony, hardship and loss of reputation to the complainant.

22. In the light of the above other facts and circumstances, it is crystal clear that there is a balance of Rs.2,06,087/- in advance paid by the complainant to the opposite parties for supply of same machineries to supply the project and research department of the complainant institution. 

23. At the outset, in the written version as well as in the Proof Affidavit, the opposite parties has raised some legal facts and the same on consideration, they are devoid of merits.  Similarly, the opposite parties raised certain other contention that some other amount, also to be deducted in the advance amount. But in order to prove the same no relevant documents have been produced before this Forum and thereby, the contention lost its relevancy and merits and therefore the above said version raised on the side of the opposite parties cannot be accepted.  At the same time, it is crystal clear that the act of failure of opposite parties  to repay the balance amount of Rs.2,06,087/- in advance amount paid by the complainant within the stipulated time which clearly  shows that  the deficiency of service of the opposite parties and certainly caused mental agony, hardship, and loss of reputation as averred in  the complaint.

24. From the foregoing among other facts and circumstances, this Forum has concluded that there is deficiency of service on the part of the opposite parties1and 2 and thereby, caused mental agony hardship, strain and loss of reputation to the complainant.  Thus, the point No.1 is answered accordingly.

25. Point No:2:-

The complainant has claimed Rs.2,46,087/- as balance amount to be repaid by the opposite parties in the complaint. But as already pointed out in the previous paragraphs that as per the Ex.A6 it is clearly admitted by the complainant that they are willing to adjust Rs.40,000/- as per invoice PMPS/010/13-14 dated,20.12.2013 and requested for repayment the amount Rs.2,06,087/- only.  Hence, the actual balance amount is arrived as Rs.2,06,087/- only.  In such circumstances in view of the conclusion arrived in point No.1, the complainant is entitled for the Rs.2,06,087/- only against the advance amount paid by the complainant with interest at the rate of 9% from the date of complaint till the date of this order and also for reasonable compensation with cost.  Thus, the point No.2 is answered accordingly.

In the result, this complaint is allowed in part.  Accordingly, the opposite parties1 and 2  are jointly and severally  directed  to  pay   sum of Rs.2,06,087/- Two laksh six thousand and eighty seven only)  with interest at the rate of 9 percent per annum from the date of the complaint i.e. (19.02.2015) till the date of this order (25.06.2018) towards the balance amount in the advance paid by the complainant and also sum of Rs.20,000/- towards the damages and compensation  for causing  inconvenience,  mental agony,  hardship, strain and loss of reputation due to the deficiency of service of the opposite parties 1and 2 to the complainant and Rs.5,000/-(Five Thousand only) towards the cost of  the litigation to the complainant.

The above amount shall be payable within one month from the date of receipt of the copy of the order, failing which, this said amount shall carry interest at the rate of 9 percent per annum till the date of payment.

This order was dictated by the President to the Stent-typist, typed by his, corrected, signed and pronounced by us in open Forum, today on this 25^th day of June 2018.

    -Sd-                                                                                        -Sd-

            MEMBER                                                                         PRESIDENT

List of documents filed by the complainant:-

List of documents filed by the 1and2 opposite parties:-

Nil

   -Sd-                                                                                           -Sd-

MEMBER                                                                               PRESIDENT