BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION.
KAMRUP
C.C.No.45/2020
Present: I) Shri A.F.A.Bora, M.Sc.,L.L.B.,A.J.S(Rtd.) -President
II) Smti Archana Deka Lahkar,B.Sc.,L.L.B. -Member
III) Shri Tutumoni Deva Goswami, B.A.L.L.B. - Member
M/S Ecoplasta Enterprise - Complainant
D/O Late Sapna Devi Jain
-vs-
1) Anwara Machine Tools India - Opposite parties
SB Lane, 16 No. Airport, Kolkata-7-81
West Bengal.
2) Mr.Kausar Ali
Authorized Representative /Proprietor
Anwara Machine Tools India
SB Lane, 16 No. Airport, Kolkata-7-81
West Bengal.
Appearance
For the complainant Sri Debajit Baruah Learned advocate .
Date of filing written argument:- 29.10.21
Date of oral exparte argument:- 21.12.21
Date of judgment: - 7.1.22
EXPARTE JUDGMENT
1) This is a complaint filed under Section 12 of the Consumer Protection Act, 1986 by M/S Ecoplasta Enterprise against Mr. Kausar Ali, proprietor of Anwara Machine Tools India. The complainant is a partnership firm and deals in the business of Grinding and supply of Pet Bottle Flakes and its represented by Shri Samarjit Basumatary , one of the partner of partnership firm. The complainant states that the partners of the firm to earn their livelihood by means of self employment jointly started the instant business at Paschim Boragaon in the District Kamrup metro, Assam.
2) The complainant with a view to carrying on the business they approached the opp.party on 29.6.19 at his office and opp.party had made an estimate of the materials and handed over a handwritten slip of Rs.2,66,000/- (Rupees two lakhs sixty six thousand)only to the complainant after discount of an amount of Rs.10,000/- (Rupees ten thousand)only for supply of a 19”/22” Machine of 15 hp along with transportation charge of Rs.20,000/- (Rupees twenty thousand) only where the price of the panels was not included. On that very day the complainant paid an amount of Rs.45,000/- (Rupees forty five thousand)only as advance. Apart from the aforementioned payments on different dates another amount of Rs.1,26,700/- (Rupees one lakh twenty six thousand seven hundred )only was paid to the op.aprty towards the machine tools as part payment.
3) The complainant thereafter again an amount of Rs.60,000/- (Rupees sixty thousand)only was paid to the opp.party through NEFT which the opp.party duly received and issued an money receipt on 10.8.2019 acknowledging the receipt of the same . Out of the said amount of Rs.60,000/- (Rupees sixty thousand)only Rs.20,000/- (Rupees twenty thousand) was paid as transportation charge and Rs.40,000/- (Rupees forty thousand)only was paid for 2 no.s of panel and 1 no. of dual star single phase preventer and Hi Amphere Local Carry System, over load Relay star Delta Panel as per the quotation dated 6.11.19 which the opp.party provided and Rs.1,300/- (Rupees one thousand three hundred )only was paid in cash against the said quatation.
4) That after payment of the amounts as aforesaid to the opp.party the complainant applied for a loan at Vijaya Bank, now bank of Boroda, Maligaon Branch to purchase the said machine and other materials by paying a margin money of Rs.43,250/- (Rupees forty three thousand two hundred fifty )only . The concerned bank sanctioned an amount of Rs. Rs.3,53,000/- (Rupees three lakhs fifty three thousand)only and issued a demand draft to that effect vide D.D.No.372513 dtd. 19.10.2019 and intimated the matter to the complainant as well as the opp.party.
5) On receipt of the said demand draft of Rs.3,53,000/- (Rupees three lakhs fifty three thousand)only the opp.party entered into a formal sales Agreement on 23.10.2019 with the complainant for sale of a (1) pet Scrap Grinder Machine with 22” blade high Carbon along with (2) a vacuum system (3) a meter 15 hp and (4) a het wash system of 300 kg capacity. In the “Term” column of the said agreement it is clearly mentioned that –(i) “ machine production capacity 200 kg above per hour
(ii) warranty of one year all kind spear
(iii) free installation within service provide at his native place.”
The rate of all items including GST and transport was fixed at Rs.2,66,000/- (Rupees two lakhs sixty six thousand)only as per the sale agreement.
6) That after financial transaction was completed the opp.party installed a machine at Paschim Boragaon Head office of the Firm on 16.11.2019 without vacuum system, for which an amount of Rs.12,000/- (Rupees twelve thousand)only was charged by the opp.party and the same was duly paid by the complainant . The very day of installation of the machine it started malfunctioning and one of the labour was severally injured .
7) According of the complaint on each and every day some parts of the machine used to get damaged. The complainant informed the opp.party over phone about the malfunctioning of the machine and also informed that they could hardly produce less than 100 kg of flakes per hour. On their appraisal the authorized representative of the opp.party came over to Guwahati on 29.1.2020 and he physically noticed the deficiency in the items supplied by the opp.party, but surprisingly he could not find out any solution to the problem caused by the newly installed machine and assured for and on behalf of the opp.party that they would take steps for replacement of the same. Since the machine started malfunctioning and production was less than the assured, the other items have been kept idle in their business premises as the same became useless.
8) That even since the visit of the authorized representative of the opp.party. The complainant have been trying their best to convey the message that the item supplied by the opp.party are of low quality and as such the same should be replaced . But the opp.party has not responded to their call. They had sent mail on 19.2.2020 asking the opp.party to take back the machine. But the op.party did not respond to their mail . Then they sent two letters through registered post on 20.2.20 and 11.3.20. But this time also , the op.party did not respond despite receipt of the leters. Having no other options, they sent a legal notice through their lawyer on 6.5.20 demanding refund of Rs.3,34,000/- (Rupees three lakhs thirty four thousand)only that was received by the opp.party against the machine and other items along with interest @24% per annum and compensation of Rs. 1,00,000/- (Rupees one lakh thousand) only for loss of business, harassment , suffering, mental trauma, agony and pain meted out to them within 15 days from the date of receipt of the said notice. But surprisingly even after receipt of the notice the opp.party did not turn up and the complainant have been constrained to file this petition before this Forum/commission for redressal of their lawful grievance.
9) In support of the complaint petition the complainant files and exhibit the following documents.
i) Exhibit- 1 is the copy of the partnership deed dtd. 13.8.19 vide registered deed No. 6600, serial No. 11402.
ii) Exhibit - 2 is the copy of the hand written estimate dtd., 29.6.19.
iii) Exhibit- 3 and Exhibit- 4 are the money receipt dtd. 10.8.19 and quotation dtd. 6.11.19 respectively.
iv) Exhibit- 5 and Exhibit- 6 are the copy of the forwarding letter, both dated 10.8.19 respectfully.
v) Exhibit- 7 is the copy of the formal sales Agreement dated 23.10.2019
vi) Exhibit -8 is the copy of the mail dtd. 19.2.20.
vii) Exhibit-9 is the registered letter dtd. 20.2.20.
Exhibit-9 (i) is the postal receipt dtd.20.2.20
viii) Exhibit-10 is the registered letter dtd. 11.3.20
Exhibit-10 (i) is the postal receipt dtd. 11.3.20.
ix) Exhibit-11 is the legal notice dtd. 6.5.2020
Exhibit-11 (i) is the postal receipt dtd. 6.5.2020.
10) We have gone through all the documents as annexed with the record and perused. The complaiannt have taken steps and notices were delivered , but opp.party never filed written statement nor contested the proceeding and matter was heard exparte on 22.3.2021.
11) We have considered the evidence of the complainant made in this affidavit. He had made his statement testifying all the annexures as exhibit 1 to 9,9(i) , 10, 10(i), 11, 11(1). The said documents are sufficient to establish his claim for compensation. The opp.party had not responded properly and have failed to presented his grievancs against the complaint if any. There is no denial of aforeoosaid money paid by the complainant supported by documents placed on record . Hence, we are of opinion that the product sale by the op.party is defective and service has not provided by the opp.party. The complainant is entitled for return of money with compensaiton etc. The suit is decreed in favour of the complainant and the opp.party is directed to make the following paymen to the complainant .
ORDER
The complaint petition has merit on it and it is ordered that opp.party No. 2 representing opp.party No. 1 will replace the machine and in failure to do the same will return back the price money amounting to Rs. 3,34,000/- (Rupees three lakhs thirty four thousand)only to the complainant along with interest @5% per annum from the date of filing the complaint till the date of payment. Further the opp.party will have to pay the cost of the proceeding amounting to Rs.5,000/- (Rupees five thousand)only and also a compensation for harassment and mental agony amounting to Rs.20,000/- (Rupees twenty thousand)only . On failure of the opp.party to make the payment within 45 days of passing this order , he will have to pay an interest @12% per annum on the entire decreetal amount from the date of judgment till realisation. On return back the money the opp.party will be entitle for received back the mechinery installed by them.
Given under our hand and seal of the District Commission, Kamrup, this the 7th day of January /2021.
Shri A.F.A.Bora
President,
District Consumer Commission, Kamrup
Smti Archana Deka Lahkar
Member
District Consumer Commission, Kamrup
Shri Tutumoni Deva Goswami
Member
District Consumer Commission, Kamrup
Dictated and corrected by me
Shri A.F.A.Bora
President,
District Consumer Commission, Kamrup.
Typed by me
Smt Juna Borah
Stenographer,
District Consumer Commission, Kamrup.
