Date of Filling:      27.04.2017

                                                                                                                       Date of Disposal:  30.07.2018

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.23/2017

MONDAY, THE 30 DAY OF JULY 2018

N.Sree Krishnan,

Proprietor of M/s, Pushpam Engineering,

62, Kalaimagal Nagar, 2^nd Street,

Ashramam Road, Thirumudivakkam,

Chennai 600 044.                                                                    …..Complainant.

                                              //Vs//

1.Premier machine Tools,

   Rep.by its Proprietor Mr. P.G.Selvaraj,

   256, 1^st cross street, Ashok pillerRoad,

   Ambattur Industrial Estate,

   Chennai -600 058.

2.State Bank of India,

   Rep. by its General Manager,

    SME Centre, Ekkattuthangal,

   No.5, Jawaharlal Nehru Road,

   Ekkauthangal, Chennai - 600 032.                           …..Opposite parties.

This complaint is coming upon before us finally on 24.07.2018 in the presence of M/s.M.S.Yoganantham, Counsel for the Complainant and opposite parties filed written version and not filed proof Affidavit and Op1 and Op2 were set Exparte. Upon hearing arguments, having perused the documents, evidences, written and oral arguments of the Complainant, this Forum delivered the following:-

                                                             ORDER

PRONOUNCED BY THIRU.S.PANDIAN, PRESIDENT

This Complaint has been preferred by the Complainant Under section 12 of the Consumer Protection Act,1986 against the Opposite Parties for seeking direction to pay sum of Rs.7,44,103/- with interest and sum of Rs.5,00,000/- towards compensation for mental agony caused by the opposite parties by rendering negligence of service to the complainant  with cost.

2.The brief averments of the complaint as follows:-

The complainant who is present permanently physically disabled person affected by polio attack.  He is having work experience with Gnanam Gear Accessories as a supervisor for the period from April 1994 to October 2013.  The complainant has good and well knowledge on an operating and handling Drilling, Milling and lathe Machine.

3. The Complainant with fond hope in life to come up on his own has decided to establish self employment work place own to earn income to meet out his and his family members day to day life essential needs and expenses by applying and obtaining Bank loan and with the said desirous he has obtained no objection certificate from pazhathandalam panchayat union dated 05.08.2015 to start his proprietary concern establishment in the name and style of  “Pushpam Engineering”

4. That the first opposite party has given quotation dated 7.10.2015 to the complainant for below detailed descriptions of machines for a value of total amount of Rs.7,44,103-50/-. That for the supply of the above said machineries initially the complainant has paid his hard earned money by cash a total sum of Rs.1,90,000/- as advance.

Vide Receipt No.638 dated 28.09.2015 of Rs.75,000/-

Vide Receipt No. 652 dated 07.10.2015 of Rs.75,000/-

Vide Receipt No.777 dated 07.12.2015 of Rs. 40,000/-

5. That to pay the balance amounts the complainant has applied bank loan before the 2^nd opposite party and the 2^nd opposite party sanctioned the loan amount of Rs.5,50,000/- under letter dated 29.01.2016. The 2^nd opposite party informed only orally to the complainant that the sanctioned loan amounts of Rs.5,50,000/-has released and paid to the first opposite party but no details has given to the complainant.

6. The 1^st opposite party instead of supplying the machines quoted in the quotation, the 1^st opposite have supplied only, one second hand Turret Milling machine for a total value of Rs.2,36,350.90/- vide invoice No. 12 dated 11.02.2016 and which is against the specification and model mentioned quotation given by the 1^st opposite party and even the complainant has objected for the same but the 1^st opposite party unload the said machine to the complainant place.

7. That, it is very quite surprise to note that the 2^nd opposite party till today has not ensured and made the 1^st opposite party to supply machines as per quotation for the same, the 2^nd opposite party has paid amounts to the first opposite party and thereby both opposite parties have colluded with each other and committed fraud, misappropriate the loan amounts and breach of trust to the complainant and public money. That in spite of his repeated request and demand and police complaint, the 1^st opposite party has not supplied the machine as per quotation for which a total sum of Rs.7,44,103.50 /- received by the first opposite party.

8. On the other hand, the 1^st opposite party has sent his persons with rowdy elements and assaulted the complainant and threaded him with dare consequences to the complainant life if he ask for supply of machines.  In this connection, the complainant has preferred the police complaint. The 2^nd opposite party has not taken any steps to ensure for the supply, both the opposite parties have committed deficiency in their service to the complainant and caused mental agony, tension, hardship and monetary loss to the complainant.  Then the complainant sent the legal notice through his counsel to the 1^st opposite party on 20.06.2016 for which the 1^st opposite party sent reply through their counsel on 04.07.2016 therein made false and after thought allegations and averments.  In turn the complainant sent suitable re-joinder through his counsel to the 1^st opposite party on 27.08.2016.  Hence this complaint.

9. The contention of written version of the 1^st opposite party is briefly follows:-

The 1^st opposite party denies all allegations and averments made in the complaint save those that are specifically admitted hereunder.  That the machine was specifically imported for this purpose and the total aggregate was Rs.2,36,350/-.  The machine that was supplied to the complainant was exactly in accordance with the specification mention in the quotation, and was new.  The allegations to the contrary are false and are denied. There is no question of collusion with Bank.  The Bank is hardly known to the 1^st opposite party.  The allegations are dishonest and made by the complainant with ulterior motives.

10. The allegation that the 1^st opposite party sent rowdy elements and assaulted the complainant is totally false and the complainant is put to strictly proof of the same.  The statements are wholly illogical and unbelievable.   As the second machine could not be procured the balance amount was repaid to the Bank, the 2^nd opposite party.

11. The 1^st opposite party is not aware of any police complaint. The notice sent by counsel for the complainant 20.06.2016 was replied by the 1^st opposite party through counsel on 04.07.2016 by denying allegations that the complainant did not choose to return the machine supplied and the very fact that the machine is functioning and is being put to its fullest use, only falsifies the case of the complainant.

12. That the complainant filed by the complainant is without any lawful cause of action, as neither there has been any defect in the equipment supplied by the opposite party submits, not there has been any deficiency in service provided by them. As a matter of fact, the complaint has been filed with malafide intentions and ulterior motives.  Hence this complaint is liable to be dismissed.

13. Though the sufficient opportunities given to the 2^nd opposite party, he did not turn up before this Forum even on receipt of notice hence 2^nd opposite party was set Exparte.  After filling of written version by 1^st opposite party, he did not turn up and therefore the 1^st opposite party also was set exparte.

14.  On the side of the complainant, the complainant filed Proof Affidavit as his evidence in order to substantiate his case and Exhibit A1 to A14 were marked on his side.

15. At this Juncture, the points for determination before this forum are as follows:-

1.     Whether there is any deficiency in service on the side of the opposite parties as narrated in the complainant?

2.     Whether the complainant is entitled for any relief as prayed for?

16. Written Arguments filed by the complainant and also the oral Arguments adduced on the side of the complainant.

17. In such circumstances, this Forum decided to conclude this matter fully on merits with available evidence and documents putforth before this Forum, though the Opposite parties 1and 2 are set Exparte.

18.Point No:1:-

According to the averments of the complaint it is stated that on due payment of the  initial amount of Rs.1,90,000/- by the complainant and the remaining amount of Rs.5,54,000/-was credited in the account of 1^st opposite party by the 2^nd opposite party on the sanction of the loan to the complainant.  The 1^st opposite party has failed to supply the proper and prescribed machine as per the quotation and in fact the 1^st opposite party has supplied second hand machine which is not mentioned in the quotation and thereby causing mental agony and monitory loss to the complainant which is clearly leads to the deficiency of service.

19. At the outset, 1^st opposite party contented in the written version that the machine that was supplied to the complainant was exactly in accordance with the specification mentioned in the quotation and it is a new one and there is no question of collusion with Bank and also deny the allegations made in the complaint.  Moreover, it is stated that the complainant did not choose to return the machine supplied and the very fact that the machine is well functioning and therefore there is no deficiency of service.

20. At this juncture, on careful perusal of the rival submissions put forth on either side, it is crystal clear that the initial payment of Rs.1,90,000/-by the complainant as well as the remaining cost of the machine as per the quotation Ex.A4 to the tune of Rs.5,54,000/-is being sanctioned has loan to the complainant by the 2^nd opposite party and the said amount has been credited in the account of the 1^st opposite party are all admitted fact.  Similarly, there is no dispute about the initial amount of Rs.1,90,000/- by the complainant to the 1^st opposite party by means of Ex.A3,Ex.A5 and Ex.A6.  The loan sanctioned letter is marked as Ex.A7. Further, it is learnt from Ex.A1 the complainant is a disabled person and Ex.A2 shown the experience of the complainant in Drilling, Milling and lathe works.

21. It is further seen from the evidence filed through proof Affidavit by the complainant, the 1^st opposite party had supplied Milling machine with accessories through the invoice dated 11.02.2016 which is marked as Ex.A8 for the cost of Rs 2,36,350.90/- in total, including tax 14.5%.  At this point of time, it is clearly seen from the Ex.A8, there is no mentioning about the trade mark of the said machine in Ex.A8 whereas in the Ex.A4, the name of the machine in serial No-1 is mentioned has MICRO-CUT Vertical Turret Milling Machine Model – 4EA and one another machine kishan.  In such circumstances, it is crystal clear that the Milling machine supplied by the 1^st opposite party to the complainant by means of Ex.A8 invoice is not at all on par with the machine mentioned in vide Serial number of in Ex.A4 quotation.  Moreover, it is an admitted fact that through Ex.A8 the cost of machine supplied to the complainant is only to the tune of Rs.2,36,350.90/-. Therefore as rightly averred in the complaint as well as in the proof Affidavit by the complainant that the particular machine supplied by means of Ex.A8 is quite contra against the specification and Model machine quoted in Ex.A4. 

22. It is further noticed from the evidence of the complainant that, immediately on receipt of the said machine supplied by the 1^st opposite party to the complainant, he has informed the 2^nd opposite party supply of second hand machine and in turn the 2^nd opposite party send a notice to the 1^st opposite party is marked as Ex.A12.  Moreover, the complainant has also preferred the police complaint Ex.A9 against the 1^st opposite party and Ex.A10 is the receipt issued for the same by the Commissioner of police.  In spite of Ex.A9, the police complaint the 1^st opposite party has not come forward to fulfill the demand of the complainant.  Therefore, the complainant was compelled to send a legal notice Ex.A11 and the same was received with endorsement no such addressee. Thereafter on 04.07.2016 the 1^st opposite party has sent a notice Ex.A13 to the complainant and for which the complainant has sent the rejoinder Ex.A14 to the 1^st opposite party and the same was received through acknowledgement.

23. From the going among other evidence and documents, it clearly the fact reveals that the 1^st opposite party has supplied only the second hand Milling Machine for the total of Rs.2,36,350.90/-only as per the Ex.A8 instead of the new machine as mentioned in the Ex.A4 quotation.  It is further seen that the 2^nd opposite party is not made any supervision over opposite party -1 for the supply of correct machineries to the complainant, which is the foremost duty of the 2^nd opposite party.  Whereas, the 2^nd opposite party had simply sent Ex.A12 notice to the 1^st opposite party which also not contained correct particulars.  At this point of time, though the averments made in the complaint that there is a collusion between 1^st opposite party and 2^nd opposite party but in fact there is no evidence to show that there is a collusion between the 1^st opposite party and 2^nd opposite party as alleged by the complainant.  Therefore this Forum cannot be considered in this regards.

24. Such being so, though the 1^st opposite party filed written version and issued a notice Ex.A13 to the complainant but the 1^st opposite party has not come forward to prove the averments made in the version as well as the said notice Ex.A13 by means of proper and relevant evidence.  Therefore it is crystal clear that there is no rebuttable evidence against the complainant.

25. In the light of the above other facts and circumstance and evidence, this Forum without any hesitation come to conclusion that there is a deficiency of service on the part of the 1^st opposite party and in respect of 2^nd opposite party as discussed above, there is no evidence adduced by the complainant for the allegation made against the 2^nd opposite party for any deficiency of service.  Thus the point no 1 is answered accordingly.

26. Point No :2:-

 While being so, the act of not supplying the correct machine as mentioned in the Ex.A4 by the 1^st opposite party to the complainant which clearly amounts for the deficiency of service and the same, has been proved by means of concrete and consistent evidence on the side of the complainant.  but, at the same time, there is no evidence to show that as to whether the complainant has paid any EMI till the date of complaint to the 2^nd opposite party Bank in connection with the sanction of loan by the 2^nd opposite party to the complainant and to that effect the sum of Rs.5,54,000/-was  credited in the account of the 1^st opposite party are not at all disputed on either side.  At this point of time, the claim sought for by the complainant to refund the amount of Rs.7,44,103-50/- to him cannot be accepted one.  In fact out of this said amount the complainant has paid directly to the 1^st opposite party is of Rs.1,90,000/- only by means of Ex.A3,ExA5 and Ex.A6.   Therefore, in view of the conclusion arrived in point no.1, the complainant is entitled only for the refund of Rs.1,90,000/-only with reasonable interest with condition to handed over the old machine was supplied by the 1^st opposite party which is in the custody of the complainant till now and also he is entitled for reasonable compensation from the 1^st opposite party and with cost and at the same time the remaining amount of Rs.5,54,103-50/-the 2^nd opposite party Bank  is only entitled for the refund of said amount though Ex-parte.  Thus the point no.2 is answered accordingly. 

In the result, this complaint is allowed in part.  Accordingly, the 1^st opposite party directed to refund the loan amount of sanctioned by 2^nd opposite party in favour of the complainant to the tune of Rs.5,54,103.00/-(Five laksh fifty four thousand  one hundred and three only) with the interest at the rate of 9% per annum to 2^nd opposite party, the State Bank of India, Ekkauthangal, Chennai from the date of credit in the Account of 1^st opposite party till the date of this order (30.07.2018) and to pay a sum of Rs.1,90,000/-(Rupees one lakh ninety thousand only) which was paid by the complainant as an initial amount directly to the 1^st opposite party with interest at the rate of 9% per annum from the date of complaint (27.4.2017) till the date of this order (30.07.2018) on condition to return the defective machine by the complainant which was supplied by the 1^st opposite party through Ex.A8 dated 11.02.2016 to the 1^st opposite party.  Further, it is ordered that the 1^st opposite party is directed to pay a sum of Rs.50,000/- (Rupees Fifty thousand) to the complainant only, towards compensation for causing mental agony and monetary loss due to the deficiency of service committed by the 1^st opposite party and with  cost of Rs.5,000/- (Five thousand only) to the complainant only.  In respect of the 2^nd opposite party this complaint is dismissed.

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% per annum till the date of payment.

This order dictated by the president to the steno-typist, typed by him corrected, signed and pronounced by us in open Forum, today on this 30^th day of July 2018

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            MEMBER                                                                     PRESIDENT

List of document filed by the complainant:-

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MEMBER                                                                                   PRESIDENT