DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD

Dated this the 15^th day of December 2008.

Present : Smt. H. Seena, President

Smt. Preetha.G. Nair, Member

Smt Banumathi.A.K, Member

C.C.No.23/2008

K. Narayanan

Proprietor

S.K.S. Engineering Products

4/1245

Erimayur

Palakkad . - Complainant

(Advocate M.S. Bhavadas)

V/s

A. Mayilswamy

Sree Sabhari Engineering

Avinasi Road, Neelambur

Coimbatore -14. - Opposite party

(Advocate )

O R D E R

Order by Smt. H. Seena, President

1. Complainant is the proprietor of S.K.S. Engineering products dealing with heavy machinery repairing and manufacturing of heavy machine spare parts. With the sole income from the factory, the complainant and his family is meeting their livelihood. On 13/07/2006, complainant entered into an agreement to purchase a crane of 5 tone capacity for Rs.3,23,750/- with its accessories as per the purchase order dated 13/07/2006. The terms and conditions of the agreement is clearly mentioned in the purchase order. Opposite party has not supplied the goods within the agreed time. Further Opposite party failed to demonstrate the working of the crane as well as to convince the complainant regarding the capacity to lift 5 tone capacity by the crane. There after the complainant sent several letters requesting the Opposite party to demonstrate the working condition and to ensure the lifting capacity. Lawyer notices were also issued against the Opposite party for which reply stating untenable contentions was sent by Opposite party. According to the complainant all these

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   actions to deficiency of service on their part. Complainant has suffered a loss of Rs.75,000/- due to the non functioning of the crane. Hence the complaint.

    

2. Opposite party was set ex-parte

    

3. Complainant filed proof affidavit. Exhibits A1 to A8 marked.

    

4. 1. Admittedly complainant is the owner of a factory dealing in manufacturing and repairing of heavy machine spare parts. Purchase of crane for using in his factory can be treated a purchase for commercial purpose which will not come under the purview of the C.P. Act. But in the absence of any contrary evidence, we are constrained to believe the statement of the complainant in his affidavit that from the sole income from the factory Complainant and his family is meeting their livelihood.

2. The grievance of the complainant is that Opposite party has caused delay in erection of the crane and further failed to demonstrate the working condition of the crane and ensure lifting capacity of the crane. Regarding the erection of the crane, as per the conditions in the purchase order, it has to be delivered and erected within 3-5 weeks from 13/07/2006. Crane was erected on 06/12/2006 as evident from Exhibit A7 (lawyer notice). Meanwhile complainant has sent many letters to Opposite party complaining delay. If the goods was not delivered in time, complainant can very well cancel the contract and avail remedies under the contract Act. Instead he has accepted the delayed performance and no steps has been taken for claiming damages. It is also strange to see that a letter dated 08/12/2006 (Exhibit A4) has been sent to Opposite party cancelling the purchase order when the Complainant himself admits that crane has been installed on 06/12/2006.

3. Complainant states that Opposite party failed to demonstrate the working condition of the crane and to ensure the lifting capacity. A series of letters were sent to the Opposite party by the Complainant himself marked as Exhibit A5

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   series. There is no evidence to show that all these letters were received by the Opposite party as it is not supported by any acknowledgement card or postal receipt. Later lawyer notices dated 11/05/2007 and 26/07/2007 were issued by the Complainant (marked as Exhibit A6 and Exhibit A7 series) for which Opposite party replied stating they are ready and willing to demonstrate the working condition of the crane provided the balance payment of Rs.52,850/- be paid. Reply notice is marked as Exhibit A8 . Further as per the terms and conditions attached to the purchase order by Complainant, it has been specifically stated in terms and conditions No.8 Clause © that ' Remaining 10% of the total value will be paid after ensuring successful functioning of the entire system to our best satisfaction'. Complainant has repeatedly stated in the affidavit and as well as Exhibit A5 letter that he has paid the entire amount. If that be so, we can only believe that the amount was paid after fully satisfying himself the successful functioning of the system.

4. In view of the above discussions, we are of the view that Complainant has miserably failed to prove a case in his favour.

5. In the result complaint dismissed. No order as to cost.

Pronounced in the open court on this the 15^th day of December 2008.

President (SD)

Member (SD)

Member (SD)

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APPENDIX

Exhibits marked on the side of the complainant

1. Ext A1 – Purchase order of SKS Engineering Products dated 13/07/2006

    

2. Ext. A2 – Letter of SKS Engineering products addressed to M/s. Shree Sabhari Engineers, Coimbatore, dated 15/09/2006.

    

3. Ext A3 – Letter of SKS Engineering products addressed to M/s. Shree Sabhari Engineers, Coimbatore, dated 29/11/2006.

    

4. Ext A4 - Letter of SKS Engineering products addressed to M/s. Shree Sabhari Engineers, Coimbatore, dated 08/12/2006.

    

5. Ext. A5 series - Letters of SKS Engineering products addressed to M/s. Shree Sabhari Engineers, Coimbatore, dated 05/04/07,21/03/07 & 21/02/07

6. Ext. A6 – Lawyer notice

7. Ext A7 – Lawyer notice of Advocate M.S. Bhavadas.

8. Ext. A8 - Reply notice from Advocate S.S. Vijayakumar.

Exhibits marked on the side of the Opposite party

Nil

Forwarded/By Order

Senior Superintendent