Shri Partha Kumar Basu, Hon’ble Member:
The complaint as averred by the complainant is that he purchased a machine namely Oil Expeller (6 volt 4*4) as a self employment measure and for earning livelihood against a total consideration money of Rs. 1,65,200/- as per invoice dated 12.08.2022. The O.P. delivered the machine, setting up of which remained incomplete, pending the installation of the motor. Without the motor, the Oil expeller machine can’t run. Inspite of several reminders, the O.P. kept on deferring the date of supplying the motor for one plea or the other and finally refused to deliver the same. The complainant filed another complaint at local PS on 31.08.2022 but without any fruitful result. Due to such incomplete installation, the complainant suffered financially to run the machine and no refund of money was given by the O.P.
Hence the case.
The complainant files the application without mention of any section or act before this District Commission with a prayer for a direction of the O.P. to return the original purchase amount for Rs. 1,65,200/- along with compensation of Rs. 80,000/- and a cost for Rs. 30,000/-.
The complainant filed copies of exhibits like tax invoice for Rs. 1,65,200/- including CGST & SGST dated 12.08.2022, weigh bill dated 12.08.2022, hand written voucher dated 12.08.2022 issued by the O.P. with a mention ‘motor due’, complaint number GDE 1154/2022 dated 31.08.2022 at local PS in support of his case.
The final hearing was done on 15.01.2024 and today is fixed for delivery of Judgement.
The O.P. contested the case by filing W.V. but filed neither BNA nor attended the final hearing to present his case. Hence, the case is decided on merit.
Evidence adduced by the complainant is found to be a replication of his original complaint petition. In the W/V, the O.P. stated that being situated at Rajarhat, Kolkata 700136 the case does not fall under this District Commission. The O.P. submits that he is only a dealer and not a manufacturer of the machine sold. The O.P. denied all the charges as alleged in the complaint petition. The O.P. categorically submitted that the total price of the machine is Rs. 2,15,000/- out of which only Rs. 15,000/- was advanced by the complainant on 22.07.2022. The complainant put his signature on the invoice dated 22.07.2022 to that effect. The O.P. accepted that the complainant has paid so far an amount of Rs. 1,65,200/- but the same is not the total value of the machine. The O.P. claimed that the said value of Rs. 1,65,200/- is only for the machine, where the cost of motor was not included. For want of payment of the balance consideration amount of Rs. 49,800/- no motor was delivered due to incomplete payment. The O.P. also contended that as per Collins Dictionary the meaning of proforma invoice as follows :-
An invoice issue before an order is placed or before the goods are delivered, giving all the details and the cost of the goods.
O.P. also claimed that as per clause No. 21 of the terms and conditions in the proforma invoice dated 22.07.2022 which the complaint received and signed, it is expressly stated that any product, apart from that which is mentioned in the proforma invoice, will be treated as a separate deal. The O.P. therefore is always ready and willing to deliver and install the said motor to the complainant upon receiving the balance due amount for Rs. 49,800/- which was intimated to complainant many a times but without any result. The O.P. in his support has exhibited the proforma invoice copy dated 22.07.2022 duly issued and stamped with signature by the O.P. that was received and signed by the complainant on 22.07.2022. The O.P. also exhibited the terms and conditions which was supplied along with the proforma invoice duly received and signed by the complainant on 22.07.2022.
We have gone through the records and documents and argument advanced by Ld. Advocate of complainant. The OP is admittedly seller of the goods and issued Tax invoice to that effect. The petitioner’s address falls geographically under this district commission. Hence the complaint is very much maintainable as per Consumer Protection Act ‘2019 including jurisdictional point of view.
It further appears that the proforma invoice dated 22.07.2022 was issued with the product description as “Oil expeller (6 volt)” for Rs. 2,15,000/- (including GST). From the tax invoice dated 12.08.2022 it appears that the description of goods mentioned as “Oil expeller (6 Volt 24 x 4)” is priced at Rs. 1,40,000/- with 9% GST of Rs. 25,200/- totalling to Rs. 1,65,200/-.
The fact that the point no. 21 of the terms and conditions of the proforma invoice stating that any product- apart from which is mentioned in quotation- to be treated as a separate deal, has been challenged by complainant on the ground of his unawareness about existence of such document or subscribing of his signature on the body of that document. But, at the four corners of all the other exhibited documents, nowhere there is any whisper about any drawing or design or handbill or brochure or image etc. that depicts that the said machine ‘Oil expeller’ includes or excludes the motor. Though complainant has annexed a document superscribed as ‘voucher’ dated 12.08.2022 with a mention as ‘motor due’ but the same is very sketchy and no comment or claim in this respect has been averred in his evidence on affidavit or even in the complaint petition by the complainant.
Hence, the complainant could not make out a case convincingly. The onus of proving the case lies with the petitioner as per settled law. There are various types of design of oil expeller which may or may not include the motor. For want of a clear picture in this matter and cogent proof thereof the case fails to succeed.
Hence, it is
ORDERED
That the complaint case is not established by the O.P. and hence, dismissed on contest.
There shall be no order as to cost which shall be borne by the respective parties.
Let a free copy of this order be given to both the parties as per CPR.
That the final order will be available in the following website www.confonet.in.
Dictated and corrected by me.
Member
