By Sri. MOHANDASAN.K, PRESIDENT
Complaint in short is as follows: -
1. The original complainant herein was the proprietorship firm running glass and hardware business in and around the District of Malappuram and having head office at Nelliparamba in Manjeri. While so, the original complainant died in an accident on 21/03/2021 and subsequently the present complainants, the legal heirs of original complainant impleaded as legal hires as per order in IA 211/2021.
2. The original complainant had impressed by the advertisement published in various Medias by the opposite party. There after the opposite party contacted the complainant in person in the year 2018. The opposite party agreed to supply an all in one straight line ankle round table top glass edge processing machine which according to opposite party have efficacy and capacity to do beveling, polishing, half round polishing and full round polishing etc on various glass with separate components. The opposite party made believe the complainant and thereby canvased for the deal with the complainant for a sum of Rs.7, 90,000/- which was demanded by the opposite party. The complainant paid rupees 7, 90,000/- to the opposite party as consideration towards the purchase. The machine purchased by the complainant was for the purpose of earning his lively hood by doing self-employment. The opposite party was acknowledged the receipt of the payment as per the tax invoice No.1667 dated 26/07/2019.
3. The opposite party also had promised that he would install the machine in the business premises of the complainant with the aid and assistance of some experts’ personalities to be employed by the opposite party. The experts according to the opposite party though come down to the business premises of the complainant so as to do the requisite installation works pertaining to the machine and operate the machine according to the specifications offered, which ultimately was miserably failed in the month of July 2019 and the deputed workers left the work place and joined with the opposite party.
4. Thereafter the complainant attempted to contact the opposite party to settle the dispute and twice the complainant succeeded to meet opposite party and that time the opposite party assured that they would either repair or replace the machine as early as possible. But the opposite party not fulfilled the undertaking but neglected to do the requisite/ repair works. The Machine installed the premises of the complainant standing idle for use unto. The act of the opposite party is unfair trade practice. There is no quality, potency or standard which are required to be maintained by the opposite party as agreed upon based on express and implied contract as is claimed by the opposite party. The opposite party is reluctant to do the repair works or replace the machine or return the price of the machine. Hence the complainant issued notice to the opposite party on 11/11/2019 and the opposite party though received the notice on 27/11/2019, neither replied nor complied the terms of agreement.
5. The complainant further submitted that the opposite party had promised that the machine so purchased would have three separate wheels on motor (1.5xPx3) and would be given extra separate wheels shaper and glass thickens device with changing wheel facility for glass edge polish, pencil edge polish, beveling on all glass edge up to 8-inch size with fixing glass on horizontal table. The opposite party had undertaken to provide digital panel board, water tank with pump and the other required tools for operating the machine un-interrupted during its warranty period. It was also assured that since the machine is having perfect steel body protection then the life would be long and if any alignment problem the readiness of the opposite party and also willingness etc. are exposed through the letter dated 26/12/2018 issued by the opposite party. The complainant alleges there is unfair trade practice from the side of opposite party.
6. The opposite party promised and undertaken various things and thereby received the full and final settlement amount from the complainant but thereafter the opposite party neither repaired the machine nor replaced it with new one or he has not returned the price of the machine. Hence the complainant filed this complaint seeking direction to the opposite party to replace the machine from the premises of the complainants and pay back Rs.7, 90,000/- paid as consideration with interest. The complainant also prayed Rs.25, 000/- towards mental agony and inconveniences caused to the complainant along with cost of Rs.20, 000/-.
7. On admission of the complaint notice was issued to the opposite party and on receipt of notice the opposite party filed preliminary objection to the complaint.
8. The opposite party contended that they have office at Ahmadabad and the complainant had placed order for the goods as per the complaint at Ahmadabad. It is submitted that the complainant approached at Ahmadabad, verified the machine and its function and placed order with the opposite party. The opposite party manufactured the machine according to the specification of the complainant. When the machine was ready for dispatch the opposite party informed the complainant and after the complainants’ instructions, inspection and request the machine was dispatched with two of respondents’ mechanics (on special request) in order to install the machine at the premise of the complainant and to take trial run of the machine. The opposite party persons installed the machine at the premises of the complainant and took trial run and complainant’s persons were trained how the machine is operated. The machine was supplied on the order placed at Ahmadabad and there for the cause of action if any has taken place, it is at Ahmadabad and if any dispute regarding the machine supplied is there it must be raised at a competent forum at Ahmadabad and not at Malappuram. It is further submitted that as per the invoice of the machine it was clearly mentioned that the jurisdiction is at Ahmadabad and the complainant at any point of time, not objected the terms and so the complaint is not maintainable before the consumer Forum Malappuram. According to the opposite party the cause of action has arisen at Ahmadabad as the order was placed at Ahmadabad and the machine was manufactured and inspected, and performance was satisfactory at Ahmadabad and supplied from Ahmadabad.
9. The opposite party further submitted that in response to the notice issued by the complainant the opposite party has sent a reply on 23/12/2019 where in it had mentioned that the opposite party is ready and willing to visit the place of the complainant and attend the machine to put in operation if found faulty provided that the complainant clear the outstanding dues to the opposite party which comes to rupees 1, 0, 6600/- including the advance for visit charge. The complainant filed the present complaint instead of making the payment and it is further submitted that they are ready and willing to attend the machine, correct it is found not functioning provided the opposite party comply the request made to the complainant vide reply to notice dated 23/12/2019.
10. The complainant filed affidavit and documents. The opposite party did not file version and affidavit except the preliminary objection. Hence the opposite party set exparte.
11. The documents on the side of complainant marked as Ext. A1 to A4 and the commission report was marked as Ext. C1.
12. The grievance of the complainant is that impressing the advertisement published by the opposite party ordered to install machinery SKE -3PBOG GLASS EDGING BEVELING HALF ROUNG ECT WITH CHANGING GIVEN WHEELS COMPLETE MACHINE WITH COOL ING , POLISHING , VACCUM SYSTEM PENAL/STANDS/TOOL SEMIAUTO SRTAIGHT &ROUND ALLINI M/C worth Rs,7,90,600. According to the complainant, the opposite party technicians came to the business premises of the complainant so as to do the requisite installation works pertaining the machine and operate machine according to the specifications offered which ultimately miserable failed and the deputed workers left the work place and joined with the opposite party. Thereafter the complainant contacted the opposite party several times and ultimately caused lawyer notice dated 11/11/2019. But there was no positive response from the side of opposite party. It is submitted that the machine purchased by the complainant was for the purpose of earning his livelihood by doing self-employment. The opposite party acknowledged the payment as per tax invoice document No.1667 dated 26/07/2019. Ext. A1 is notarized photocopy of GST Registration certificate bearing No.32AIHPM3163BIZS. Ext. A2 is the tax invoice issued by the opposite party to the complainant. Ext. A3 is the copy of lawyer notice issued by the complainant to the opposite party. Ext. A4 is the postal acknowledgement. The complainant has taken steps to prove the defects of the machine through issuing an expert commissioner. MR. Sameer Babu AP, architect and interior designer, department of urban affairs, government of Kerala was the expert commissioner and he filed his report which is marked as Ext. C1. The report reveals the machine is defective one. Now it can be seen that the case of the complainant stands proved through the affidavit and documents of the complainant.
13. The opposite party did not file version and affidavit. The opposite party filed only preliminary objection regarding the maintainability. The contention of the opposite party is that as per terms of invoice, if there any dispute arises, it is subject to Ahmedabad jurisdiction. It is further contended that the complainant placed order at Ahmadabad, machine was manufactured at Ahmadabad inspected performance from Ahmadabad and supplied from Ahmadabad.Hence, the submission of the opposite party is that there is no cause of action before this Consumer Disputes Redressal Forum.
14. The consumer protection act 1986 and also the Consumer Protection act 2019 clearly states respectively in section 11(2) (c) and 34(2) (c) that the consumer commission has jurisdiction where the cause of action, wholly or in part, arises. It can be seen that the machinery in dispute was installed at the premises of the complainant and that too by two mechanics of the opposite party itself, which is within the jurisdictional limits of this Consumer Disputes Redressal Commission. The parties are not allowed to take away the jurisdiction of the authority through an agreement as stated by the opposite party in the preliminary objection. So we do not find any merit in the preliminary objection of the opposite party.
15. Considering the entire aspects, it appears there is sufficient ground to allow the prayer of the complainants.
1. The opposite party is directed to replace the machinery with a defect free
machinery of the same specification as stated in Ext. A2 or is liable to refund the
cost of Rs.7,90,600/- (Rupees seven lakh ninety thousand six hundred only). In case of refund of the cost of the product, the opposite party is at liberty to take back the machinery from the premises of the complainant at the cost of opposite party.
2. The opposite parties are directed to pay compensation of Rs.25, 000/- (Rupees twenty five thousand only ) to the complainant on account of deficiency in service and unfair trade practice and thereby caused inconvenience and hardship to the complainant.
3. The opposite party is also liable to pay a cost of Rs.10, 000/- (Rupees ten thousand only) to the complainant.
The opposite parties shall comply this order within one month from the date of receipt of copy of this order, failing which the opposite party is liable to pay the entire amount with interest at the rate of 9% per annum from the date of complaint to till date of payment.
Dated this 2nd day of May, 2023.
Mohandasan . K, President
Preethi Sivaraman.C, Member
Mohamed Ismayil.C.V, Member
APPENDIX
Witness examined on the side of the complainant: Nil
Documents marked on the side of the complainant: Ext.A1to A
Ext.A1: Notarized photocopy of GST Registration certificate bearing
No.32AIHPM3163BIZS.
Ext.A2: Tax invoice issued by the opposite party to the complainant.
Ext A3: Copy of lawyer notice issued by the complainant to the opposite party.
Ext A4: Postal acknowledgement.
Witness examined on the side of the opposite party: Nil
Documents marked on the side of the opposite party: Nil
Ext. C1. Commission Report
Mohandasan . K, President
Preethi Sivaraman.C, Member
Mohamed Ismayil.C.V, Member
VPH
