Tamil Nadu

North Chennai

238/2012

M/s.Amman Industry, by its Proprietor, K.Karunanidhi, - Complainant(s)

Versus

A1 Paper Cups, by its Manager, - Opp.Party(s)

S.Natatrajan

29 Dec 2017

ORDER

 

                                                            Complaint presented on:  29.10.2012

                                                                Order pronounced on:  29.12.2017

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

        PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,        PRESIDENT

              THIRU. M.UYIRROLI KANNAN B.B.A., B.L.,      MEMBER - I

 

FRIDAY  THE 29^th DAY OF DECEMBER 2017

 

C.C.NO.238/2012

 

 

M/s.Amman Industry,

By its Proprietor,

K.Karunanidhi,

#:1, Main Road,

Vikaravandi & Post,

Villupuram District 605 652.

                                                                                    ….. Complainant

 

..Vs..

A1 Paper Cups,

By its Manager,

#:38 Easwar Kailash,

Balavinayagar Nagar,

Arumbakkam, Chennai – 106.

.....Opposite Party

Date of complaint                                 : 01.11.2012

Counsel for Complainant                      : Mr.P.Rathanavel

Counsel for Opposite Party                      : M/s. A.Arumugam, C.Meera Arumugam

                                                                    & V.T.Srinivasan         

 

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

          This complaint is filed by the complainant to direct the opposite party to take back the defective machine model EBZ – 12  and to refund the cost of the machine of Rs.5,77,500/- and also to pay compensation for failure to rectify the defective machines  and for mental agony with cost of the complaint u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

The complainant had purchased two numbers of single P.E advanced automatic paper cup machine model #EBZ-12 with 2 sets of die moulds, from the opposite party manufacturer for his self employment and avocation for a total cost of Rs.11,55,000/- on 10.01.2012. After getting full amount, the opposite party had supplied the machinery on 04.02.2012. The said machinery has carried one year warranty and the same was erected on 06.02.2012. Originally the said machinery was agreed to be erected at Asanur, the complainant had shifted the machinery to Vikravandi at his own cost and installed that, through the opposite party on 06.02.2012. But from the date of installment onwards, the machinery was not working properly and the opposite party also had failed to supply the accessories for the smooth functioning of the machineries. Inspite of reporting the same to the opposite party repeatedly, the opposite party was not able to rectify the defect due to the manufacturing defect in the machinery. The said defects are evident from the opposite party’s job card itself. As such, the complainant had sent a letter dated 07.06.2012 asking the opposite party to take back the defective machinery and to pay its cost along with compensation.  

2. WRITTEN VERSION OF THE  OPPOSITE PARTY IN BRIEF:

This Forum has no jurisdiction to entertain the complaint  for the simple reason that the complainant is not a Consumer because of the fact that machines purchased by the complainant is for his commercial and trade activities which excluded from the definition itself and as such that go to the very root of the case. At request of the complainant, the opposite party issued the quotation dated 10.01.2012 to the complainant subject to the terms and conditions stipulated therein. The complainant placed his order to purchase 2 numbers of automatic paper cup machine model – EBZ – 12. The opposite party in receipt of the purchase order issued invoice dated 04.02.2012 for Rs.11,55,000/- which inclusive of VAT @  5% to the complainant . The complainant inspected the machines and satisfied with trail run of said machines made at the opposite party’s factory premises  then only made his payment to the opposite party and taken delivery by him and not as contended by the complainant.

3. The machines were erected on 06.02.2012 at the place of Asanur, Ulundurpet as per the request and demand by the complainant and were effectively running there. The short supply of certain items also subsequently supplied to the complainant. There was no report of any complaints from the complainant as to any defect in functioning of those machines ever from the date of erection till 01.05.2012. Some complaints reported, the opposite party’s technical person has made spot visit and all complaints reported by the complainant was duly attended and resolved to the satisfaction of the complainant.

4. The complainant informed to the opposite party that he had shifted his factory premises from the Asanur, Ulundurpet  and relocated the said factory at Vikravandi, Vippupuram District and those two machines were also transported by themselves to the new place and wanted the opposite party to re-erect there.   There was no prior intimation before shifting the machines and machines were detached deploying 3^rd parties from Asanur to Vikravandi.  At request of the complainant, the opposite party re-erected the machine and however, the complainant failed to pay the re-erection charges as assured by him.  The  complainant in order to avoid the payment of re-erection labour charges wrote letter dated 07.06.2012 and which was suitably replied by the opposite party in their letter dated 28.06.2012. Even after that  the complainant failed to pay the re-erection charges as assured by him.Hence the opposite party has not committed any deficiency in service and prays to dismiss the complaint with costs.

5. POINTS FOR CONSIDERATION:

          1. Whether the complainant is a Consumer?

          2. Whether there is deficiency in service on the part of the opposite party?

          3. Whether the complainant is entitled to any relief? If so to what extent?

6. POINT NO :1 

          The complainant purchased two numbers of single P.E advanced automatic paper cup machine model with two sets of die moulds from the opposite party/Manufacturer for a sum of Rs.11,55,000/- on 04.02.2012.  Ex.A1 is the quotation issued by the opposite party to the complainant for the said machine. Ex.A2 invoice is for the purchase of the machineries issued by the opposite party. The complainant wanted to erect the machinery at Asanur and the opposite party erected the machinery on 06.02.2012 as per Ex.A5. Later the complainant due to lack of three phase electricity, he had shifted the machinery to Vikaravandi at his own cost. At request of complainant the machineries were re-erected by the opposite party at Vikaravandi. The opposite party also issued Ex.A6 invoice/ demand to the complainant for a sum of Rs.20,000/- towards re-erection charges. 

          7.  The opposite party raised an objection that the complainant had purchased machineries for his business purpose and further he had stated in his Ex.A7 notice that he was unable to give work to his employees and these facts proves that the complainant was carrying on business for profit and therefore he cannot be considered as a Consumer. Admittedly the complainant purchased two machines. He is carrying on business only as a proprietary concern. The complainant categorically pleaded in his complaint that he is doing such business for his livelihood. This statement of the complainant establishes that he is doing self employment. Merely because he has stated that he was unable to give employment to his persons does not mean that he is carrying on business for profit. Therefore considering the pleading in the complaint and circumstances of the case we hold that the complaint is a Consumer.

08. POINT NO:2

          The complainant alleged deficiencies against the opposite parties that the machine was not working well as per the job card dated 06.02.2012  issued by the opposite party, heater  is not working, gear oil glass broken, cup counter not working and  generator not working  and accessories were not supplied and the opposite party threatened in his letter  Ex.A6 dated 18.04.2012 that nonpayment will result in cancellation of service warranty forever and the external appearance of machine seems to brand new and however other seems to second hand used machine and due to non working of machine the complainant was put to lot of suffering and hence the machinery is having inherent manufacturing defect.

          09. The allegation of the complainant that the machinery is not working and it is old one and having manufacturing defect and hence the opposite parties have committed deficiency. The machinery is old and having inherent manufacturing defect can be spoken only by the expert evidence. No expert has been examined on behalf of the complainant to establish that the machinery supplied to the complainant is having manufacturing defect and old one. There is no specific allegation that how the machinery is having manufacturing defect. Therefore we hold that the complainant has not proved that the machinery is having manufacturing defect supplied to him.

          10. Admittedly, the machineries first erected at Asanur, Ulundurpet by the opposite party and subsequently at Vikaravandi. The complainant himself dismantled the machineries at Asanur and transported himself to the Vikaravandi. After shifting at request of the complainant, the opposite party re-erected at Vikaravandi and also issued Ex.A6 demand for Rs.20,000/- towards re-erection charges. The complainant would contend that the opposite party has no right to demand charges for erection at Vikaranvandi as per the terms and conditions issued to him. The terms and conditions enclosed with Ex.A1 quotation states that  the opposite party will send technician to the factory for installation, commissioning and training and there is no extra charges for all the service and done at free of cost. The terms and conditions clearly proves that the purchase of machinery made by the complainant entitled for installation once at free of cost. Accordingly the installation was done at Asanur and therefore, naturally the erection of same machineries at Vikkaravandi is an re-erection and therefore as demanded in Ex.A6 by the opposite party the complainant has to pay re-erection charges   to the opposite party. Hence, failure to pay the charges after re-erection the complainant became a defaulter. A defaulter is not entitled to maintain the Consumer complaint. Therefore, from the forgoing discussions, it is held that the complainant has not proved that the opposite party has committed deficiency in service and accordingly this point is answered.

11. POINT NO:3

Since the Opposite Party has not committed any Deficiency in Service, the Complainant is not entitled for any relief and the Complaint is liable to be dismissed.

          In the result the Complaint is dismissed. No costs.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 29^th day of December 2017.

 

MEMBER – I                                                                PRESIDENT

LIST OF DOCUMENT FILED BY THE COMPLAINANT:

Ex.A1 dated 10.01.2012                   Quotation

Ex.A2 dated 04.02.2012                   Invoice

Ex.A3 dated 06.02.2012                   Job Card

Ex.A4 dated 10.03.2012                   Job Card

Ex.A5 dated 01.05.2012                   Job Card

Ex.A6 dated 18.04.2012                   opposite party’s demand

Ex.A7 dated 07.06.2012                   complainant’s letter

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTY :

 

 

Ex.B1 dated 10.01.2012                   Quotation issued to complainant by opposite party

 

Ex.B2 dated 04.02.2012                   Invoice No.59 to the complainant by opposite

                                                       Party

 

Ex.B3 dated 18.04.2012                   Invoice No.71 to the complainant by opposite

                                                       Party

 

Ex.B4 dated 28.06.2012                   Reply Notice to the complainant by opposite party

 

 

 

 

 

MEMBER – I                                                               PRESIDENT