COMPLAINT FILED: 26.12.2008<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> 13th FEBRUARY 2009<br /> <br /> PRESENT :- SRI. A.M. BENNUR PRESIDENT<br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI. A. MUNIYAPPA MEMBER <br /> <br /> COMPLAINT NO. 2801/2008<br /> <br /> <br /> COMPLAINANT Smt. Jaya Chopra,<br /> W/o. Prakashchand Chopra,<br /> Aged about 45 years,<br /> R/o No. 55/2, 2nd Cross,<br /> Laxmi Road,<br /> Shanthinagar,<br /> Bangalore – 560 025.<br /> <br /> <br /> Advocate (Vidya Jahagirdar)<br /> <br /> <br /> V/s.<br /> <br /> <br /> OPPOSITE PARTIES 1. Sri. Zubani Irani,<br /> Managing Director,<br /> M/s. Carrier Air Conditioning & Refrigeration Ltd.,<br /> Kherki Doula Post,<br /> Gurgaon – 122 001.<br /> <br /> <br /> 2. Carrier Airconditioning & Refrigeration Ltd.,<br /> V.P. Chambers,<br /> No. 589, 1st Cross, <br /> Service Road,<br /> Koramangala 3rd Block,<br /> V.V. Puram,<br /> Bangalore – 560 034.<br /> <br /> Advocate (Joshva H Samvel)<br /> <br /> O R D E R<br /> <br /> This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction to the Opposite Party (herein after called as O.P) to pay Rs.7,60,000/- and another Rs.1,32,000/- and to replace 20 defective machinery and for such other reliefs on an allegations of deficiency in service. <br /> <br /> The brief averments, as could be seen from the contents of the complaint, are as under:<br /> Complainant is doing the business in supply of air conditioners. She had a contact with OP during the year 2006 and used to place orders to OP to supply the said air conditioners. Complainant who received the air conditioners for the month of April 2007 noticed certain defects in the same, then requested OP to replace the said air conditioners, but it went in futile. Though complainant paid a lump sum amount of Rs.7,60,000/-, OP failed to supply the defect free air conditioners. In addition to that she was forced to pay another Rs.1,32,000/-. The dealings of the OP are not fair, there is an unfair trade practice. Though complainant invested her hard earned money, she is unable to reap the fruits of her investment. Under the circumstances she was forced to issue the legal notice seeking refund of the said amount and replacement of the defective air conditioners, but it went in futile. Hence complainant felt the deficiency in service on the part of the OP. Under the circumstances she is advised to file this complaint and sought for the relief accordingly.<br /> <br /> 2. On appearance, OP filed the version mainly contending that complainant is not a ‘Consumer’, the dispute is of commercial in nature. On the plain reading of the complaint it is as good as suit for recovery of the amount, which will not come under the purview of this Forum. Admittedly complainant is a distributor of the product of OP supplied by OP.2. The approach of the complainant is not fair and honest. The claim of Rs.1,32,000/- is baseless so also that of Rs.7,60,000/-. The entire complaint is devoid of merits. There is no deficiency in service muchless unfair trade practice on the part of the OP. Among these grounds, OP prayed for the dismissal of the complaint.<br /> <br /> 3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced some documents. OP has also filed the affidavit evidence and produced the documents. Then the arguments were heard.<br /> <br /> 4. In view of the above said facts, the points now that arise for our consideration in this complaint are as under:<br /> <br /> Point No. 1 :- Whether the complainant has proved <br /> the deficiency in service on the part of the OP?<br /> <br /> Point No. 2 :- If so, whether the complainant is <br /> entitled for the reliefs now claimed?<br /> <br /> Point No. 3 :- To what Order?<br /> <br /> <br /> 5. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:<br /> <br /> Point No.1:- In Negative<br /> Point No.2:- Negative<br /> Point No.3:- As per final Order.<br /> <br /> <br /> R E A S O N S<br /> <br /> 6. It is contended by the complainant that she used to get the air conditioners from the OP and in turn used to sell the same, hence carrying on the business in that regard may be for the profit also. Under such circumstances we find there is a substance in the defence set out by the OP that the transaction alleged by the complainant is of a commercial in nature. Though complainant says that the air conditioners sent by the OP had more than 13 defects. To substantiate the same she has not got tested the said machinery through the expert in the field. So in absence of the expert’s evidence pertaining to the said allegation, the bare and vague contention of the complainant rather cannot be believed. Of course she has made certain correspondence with the OP seeking for replacement of the defective parts and the machinery. When OP did not heed to her demand, she even got issued the legal notice. The copy of the correspondence and legal notice are produced. It is contended by the complainant that OP is expected to refund Rs.7,60,000/- towards the defective machinery and another Rs.1,32,000/-.<br /> <br /> 7. As against this it is specifically contended by the OP that the claim of the complainant is as good as seeking a relief for recovery of the amount in due, which will not come under the purview of Consumer Forum jurisdiction. Admittedly complainant is a distributor of the product supplied by OP.2. The claim of the complainant that OP is in due of Rs.7,60,000/- does not find any support through the documentary evidence so also with respect to Rs.1,32,000/-. The pleadings and proof in that regard is rather bald. When we go through the documents produced by the litigating parties, they themselves speaks to the fact that the whole dispute is with regard to the recovery of the so called amount in due. There is no specific allegation either regarding unfair trade practice or deficiency in service. It is only a dispute with regard to statement of accounts. <br /> <br /> 8. Under such circumstances it would have been more fair on the part of the complainant to approach the proper Civil Court and seek the remedy, if so advised. Having taken note of the complex question of law, it entailed in the dispute on hand, it would require volumeness evidence for its disposal, which is not possible for this Forum to go into all those details in its summary jurisdiction. <br /> <br /> 9. With these reasons we find the complaint allegations appears to be devoid of merits. As already observed by us, if the complainant is so advised she can file a regular civil suit and recover the amount if she is legally entitled. There is no proof of deficiency in service or unfair trade practice. Hence the complainant is not entitled for the relief claimed. Accordingly we answer point nos.1 and 2 in Negative and proceed to pass the following: <br /> <br /> O R D E R<br /> <br /> The complaint is dismissed. In view of the nature of dispute no order as to costs.<br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 13th day of February 2009.) <br /> <br /> <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br /> p.n.g. <br />