Complainant through Lrd. Adv. Santosh Pohare
Opponents absent
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Per : Smt. Geeta S. Ghatge Place : PUNE
// J U D G M E N T //
(11/12/2013)
This complaint is filed by the complainant against the opponents. The brief facts of the complaint are as follows;
1] The complainant is a Pharmacy college governed by Shree Chhatrapati Sambhaji Shikshan Sanstha at village Shirur, which is registered under Societies Registration Act, 1960.
2] For the purpose of academic utilization, the college required the following instruments,
[A] Agilent 1220 Series consisting of Gradient Pump, Manual
Injector, Variable Wavelength Detector with flowcell, EZChrome
Elite Compact Software abd one start-up C18 Column
(hereinaftrer ‘HPCL’)
[B] Agilent Fouier Transfor Infrared Spectrometer (FTIR) 640-IR
System with Horizontal Attended Reflectance Attachment
(hatr) (hereinafter referred as ‘FTIR’)
3] The opponent no. 1 company engaged in a business of contract research, analytical services and instrumentation. After perusal of the quotation given by the opponent no.1 company for HPLC and FITR instruments, the college purchased these instruments, for total quotation amount of Rs. 17,58,750/-. The entire amount was paid in advance. Before depositing the purchase amount, the complainant placed the purchase order for both instruments to the opponents, in which it was specifically mentioned that, “complainant keep his right reserve for the cancellation of the order at any stage during execution period or so on. If the full amount of advance paid, it shall be refunded by the opponents with the 18% interest p.a.” Both the purchase orders are accepted by opponent no. 4 on behalf of opponent no. 1 company.
4] It is further contended by the complainant that to purchase the FITR, the college has obtained the loan of Rs. 13,00,000/- with 15% interest p.a. from Janata Sahakari Bank Ltd., Pune.
5] It is the complaint of the college that in spite of full payment of agreed purchase amount of instrument, the opponents failed to deliver the instruments in time and with full components, required for its installation. After repeated requests, the opponent company send its service manager to install and demonstrate the instruments. But due to short shifting/missing of required components for installation of instrument, he could not installation successfully for two times. This fact was mentioned in both service reports signed by the service manager. This fact was informed by the college to the opponent company, but even after several requests through e-mails and phone calls, the opponents never took cognizance of such requests. As a result of which college can not use HPLC and FITR instruments, but paying the installments of loan and the interest thereupon. And further it is alleged by the college that, in spite of full payment of installments in advance, the opponents company provided instruments with short shifted components and even after receiving the information about it, opponents never took cognizance and by this opponents provide deficient service to the college. Hence the complainant compelled to file the complaint application. And hence the college prayed for Rs. 18,98,750/- as a compensation and also asked for to provide all remaining parts and complete installments of HPCL and FITR instrument and 18% interest p.a. on total amount of compensation from the date of filing the complaint till the realization of the amount. In support of the complaint the college filed affidavit and required documents.
6] Even after proper service of notice of forum, the opponent no. 4 remained absent, hence ‘ex-parte’ order was passed against opponent no.4. After service of the notice of the Forum, opponent no. 1 to 3 appeared through counsel before the Forum, but they failed to submit their written say, hence, No-say order was passed against the opponent no. 1 to 3.
7] After considering the pleadings of the complaint, scrutinizing the documentary evidence, affidavit, written argument and hearing the argument of the counsel of the complainant - college, following points arise for determination. The points, findings and the reasons thereon are as follows,
Sr.No. | POINTS | FINDINGS |
1. | Whether opponent no. 1 to 4 are held liable for the deficient service? | Opponent no. 1 and 2 are liable |
2. | What order? | Complaint is partly allowed |
REASONS AS TO THE POINT NOs. 1 & 2 :-
8] It is the contention of the college that, the college purchased HPLC and FTIR instrument from the opponent no. 1 company by depositing total quotation amount of Rs. 17,58,750/- for both the instruments. To prove this contention the college submitted on record the invoice and challan issued by the opponent no. 1 company. According to the invoice and challan the price of HPLC is Rs. 8,66,250/- and the price of FTIR is Rs. 8,92,500/- i.e. total amount of both the instruments is Rs. 17,58,750/-. Further the college submitted the cheque of Rs. 3,51,750/- dtd. 30/3/2011 and two D.D. of Rs. 10,00,000/- and Rs. 4,07,000/- both dated 20/5/2011. And also submitted the receipts issued by the opponent no. 1 against such cheque and D.D. From the above evidences, it is clear before the Forum that the college paid total amount of the instruments and the opponent no. 1 received this amount.
9] It is the complaint of the college that, in spite of full payment of purchase amount, opponent company delivered both the instruments with missing components as per purchase order and even after several requests made through e-mail and telephone, the opponent company never took cognizance of it. An in a result, college can not use both the instruments for their academic purpose. To prove this complaint, college submitted on record two service reports dtd. 24/8/2011 and 20/9/2011 signed by the service engineer of the opponent no. 1, in which it is specifically mentioned that, the components of FTIR and HPLC instruments are missing/short shifted, hence he could not done installation successfully. From these two service reports; it is crystal clear before the Forum that, instruments provided by the opponent are with missing components, required for installation. And after perusal of several copies of e-mails sent to the opponent no. 1, by the college with request to provide the missing components. It is also clear before the Forum that, the opponent no.1 company very well aware about the fact of the missing components but they failed to take cognizance of it and provide the deficient service to the college.
10] After considering the letter filed on record by the college, which is issued by the senior officer, loan department of Janata Sahakari Bank Ltd., Pune to the Br. Managr, Janata Sahakari Bank Ltd., branch Ghodnadi, it is pointed out by the Forum that the college obtained loan to purchase the instrument and due to failure of the opponent no. 1 to provide the missing components, the instruments could not installed and can not be used by the college. But college is paying installments. This behaviour of the opponent no. 1 compelled the college to come before the Forum for justice.
11] On the contrary even opponent nos. 1 to 3 are present before the Forum through their counsel, they failed to file their written say and failed to resist the entire contentions and allegations made against them by the college. And even after proper service of notices, of the Forum, opponent no. 4 is also failed to present before the Forum and to defend himself.
12] From the documentary evidence on record and the circumstances in the case, it is the conclusion of the Forum that college has proved its complaint strongly. And also it is proved that in spite of payment of purchase amount in advance, the opponent company delivered HPLC and FITR instruments with missing components required for installation and even after several requests made by the college, failed to provide the missing components till today. Due to which the college can not use the instruments and mere paying the installments with interest of 15% p.a. of the loan obtained for the instrument. And by this deficient service provided by the opponent, the college suffers from the mental harassment and economical loss.
13] The opponent no. 3 and 4 are the employees of the opponent no. 1 company, hence according to the opinion of the Forum, it is improper and illegal to hold them liable for deficient service. Hence, Forum can not pass any orders against them. But opponent no. 1 is a company and opponent no. 2 is the Director of the opponent no. 1, hence the Forum held opponent no. 1 and 2 liable for deficient service.
14] From the above discussion and conclusion, it is proved that the opponent no. 1 and 2 failed to provide missing components of the instruments till today. Hence, it is the opinion of the Forum that it is just and proper to refund the purchase amount of Rs. 17,58,750/- of the instruments with interest @ 15% p.a. from the date of filing the complaint till the realization of the amount. While allowing the rate of interest, the rate of interest of the loan obtained by the college is taken into consideration. Simultaneously, the opponents are at liberty to take the possession of HPLC and FTIR instruments at their cost. The Forum also allow Rs. 25,000/- as a compensation for mental harassment.
Hence, the Forum answers the points accordingly and pass the following order.
** ORDER **
1. Complaint is partly allowed.
2. The opponent no. 1 and 2 are hereby directed
to pay jointly and severally an amount of
Rs. 17,58,750/- (Rs. Seventeen Lac Fifty Eight
Thousand Seven Hundred and Fifty only) to
the complainant along with interest @ 15% p.a.
from 30/05/2012 till realization of the total
amount within 6 weeks from the date of receipt
of copy of the order.
3. The opponent no. 1 and 2 are further directed
to pay jointly and severally an amount of
Rs. 25,000/- (Rs. Twenty Five Thousand
only) to the complainant towards compensation
for mental harassment within 6 weeks from
the date of receipt of copy of the order.
4. Opponent no. 1 and 2 are at liberty to
take the possession of HPLC and FTIR
at their own cost.
5. Complaint stands dismissed against the
the opponent no. 3 and 4.
6. Copies of this order be furnished to the
parties free of cost.
7. Parties are directed to collect the sets,
which were provided for Members within
one month from the date of order, otherwise
those will be destroyed.
Place – Pune
Date- 11/12/2013
