IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.
Present: HON’BLE THIRU. JUSTICE. R. SUBBIAH , PRESIDENT
TMT. S.M. LATHA MAHESWARI, MEMBER
F.A.No.187/2014
(Against the order passed in C.C.No.40/2013, dated 26.08.2012 on the file of the District Commission, Coimbatore)
TUESDAY, THE 14th DAY OF SEPTEMBER 2021.
V. Tamilvanan,
Proprietor of M/s. SKV Polymers,
Srinivasa Rice Mill,
Nelli Village, Paliyagram Post,
Maduranthakam Taluk,
Kancheepuram District. Appellant/Complainant
- Vs –
M/s. Deepam Industries,
Represented by its
Managing Director, Mr. Sivakumar,
No.1/171, Sundarapuram to Madukkarai Road,
Near Railway Gate, Industrial Estate, (PO)
Coimbatore – 641 023. Respondent/Opposite Party
Counsel for the Appellant/complainant : M/s. G. Bhaskar, Advocate.
Counsel for the Respondent/Opposite Party : M/s. A. Thirumaran, Advocate.
This appeal coming before us for final hearing on 01.09.2021 and on hearing the arguments of both sides and on perusing the material records, this Commission made the following;-
ORDER
HON’BLE THIRU. JUSTICE R. SUBBIAH, PRESIDENT.
1. This appeal has been filed by the appellant/complainant under section 15 read with section 17(1) (a) (ii) of the Consumer Protection Act, 1986 against the order of the Learned District Commission, Coimbatore made in C.C.No.40/2013, dated 26.08.2013 dismissing the complaint.
2. For the sake of convenience and brevity, the parties are referred to here as they stood arrayed in the learned District Consumer Disputes Redressal Commission, Coimbatore.
3. The brief facts which are necessary to decide this appeal is as follows;-
The complainant, being a businessman in the field of Pet Bottle Grinding in a small scale industry, intended to purchase apt machine for his business and accordingly he searched the website of “Trade India” and during search he found the address of the opposite party and subsequently the complainant contacted the opposite party over phone and explained in detail about his requirements. The opposite party replied that they were manufacturing a new model of machinery which was working with two shafts and the said machine would be suitable for the complainant’s requirements. The opposite party assured that the machinery would consume lesser electricity and produce more output when compared to the old model. The opposite party has also informed that they would depute one Mr. Nandakumar to explain about the new model in detail. After the oral conversation held between them on 22.05.2012, the opposite party gave their price quotation with terms and conditions for a new machinery along with one sample video about the new machinery through their email address to the complainant. On perusal of the email quotation, the complainant requested the opposite party to send one formal quotation with a letter in order to place the purchase order for the said machinery. In turn, the said staff Mr. Nandakumar replied that it was not necessary for any formalities to place the purchase order. Further, the opposite party informed the complainant that total cost of machinery was Rs.1,54,575/- which consists Rs.1,35,000/- only towards the cost of machinery and Rs.19,575/- towards VAT charges @ 14.5% and also demanded the complainant to deposit 50% of machinery cost initially in order to supply the machinery. Having a good faith and believing their words, the complainant had sent a demand draft bearing No.835660 dated 14.06.2012 for a sum of Rs.67,500/- in favour of the opposite party’s company, “ M/s. Deepam Industries” and the opposite party replied in writing that the machinery would be delivered within 30 days from the date of first payment but failed to do so. Hence, the complainant contacted the opposite party over phone in order to ascertain the arrangement in respect of delivery of the machine and the opposite party informed the complainant that the construction of the machinery had not been completed and asked the complainant to wait for 3 days. Further on 08.08.2012, the staff of the opposite party, Mr. Nandakumar, contacted the complainant over phone and requested to come over to Coimbatore along with one vehicle for taking delivery of the machinery and on reaching the place of the opposite party he found that assembling of the machinery was not at all started. The complainant was terribly upset due to the opposite party’s deficiency in service as well as their gross negligence in not supplying the machinery and hence he demanded the opposite party to refund the advance amount of Rs.67,500/-. But, the opposite party refused to return the amount and informed that they would supply the machinery within short time. Thereafter, the complainant asked them to give a specific date for delivery of the machinery. As per the demand, staff of the opposite party by name Mr. Raghu executed one agreement in favour of the complainant assuring him in writing to deliver the said machinery on 17.08.2012 without any further delay. Thereafter, on 16.08.2012, the said Nandakumar contacted the complainant over phone and requested to come over Coimbatore on 18.07.2012 instead of 17.08.2012 in order to take delivery of the machinery. Hence, again the complainant visited the opposite party’s factory on 18.07.2012 to take delivery of the machinery but the complainant waited up to 6.00 p.m. to take delivery of the machinery. In the meanwhile, the opposite party demanded the complainant to bring 50 Kgs of plastic bottles in order to test the machinery’s running function. The complainant informed that he could not collect the said plastic bottles since he was new to the area. Finally, 5 kgs pet bottles were brought and the machinery was tested for running and thereafter the complainant paid the balance of cost of the machinery through Demand Draft. After receipt of Demand Draft along with written original assurance agreement at about 10.00 p.m. on 18.08.2012 the opposite party delivered the machinery. Thereafter the complainant reached his place on the next day and installed the machinery on 20.08.2012 in his place. The complainant shocked very much and vexed due to the fact that the machinery grinded only 40 kgs of plastic bottles instead of 150 kgs bottles per hour and the same was informed to the opposite party. The complainant suffered great mental agony due to gross negligence as well as deficiency in service committed by the opposite party. Finally, the complainant issued a legal notice dated 06.09.2012 to the opposite party demanding a new machinery in place of the defective machinery as per the model mentioned in the quotation and compensation of Rs.50,000/-for mental agony and deficiency in service. On receipt of the said notice, staff of the opposite party, by name, Mr. Nandakumar and Raghu visited the complainant’s place and inspected the defective machinery and assured the complainant that they would come within three days along with some spare parts and rectify the defects found in the machinery but they never turned up till date. Hence, the complainant filed a consumer complaint before the District Commission claiming replacement of the defective machinery with a new one as mentioned in the quotation, dated 22.05.2012 and for compensation of Rs.1,50,000/- towards financial loss and another sum of Rs.1,50,000/- for mental agony and sufferings with cost of Rs.10,000/-.
4. Denying the allegations, the opposite party has filed their written version by contending inter alia that the complainant had purchased the plastic shredder machine to run his business for commercial purpose. The complainant is running Rice Mill in the name and style of “Srinivasa” in the very same address by engaging several employees. In fact, the complainant had not placed any specific order for exclusive pet bottle grinding machine. He placed orders for plastic shredder machine which is quite different from pet bottle grinding machine. By suppressing the above fact, the complainant has wrongly mentioned that he placed orders for pet bottles grinding machine. The complainant purchased the machine on 18.08.2012 only after satisfying himself regarding the functioning of the machine. On 04.09.2012, the complainant informed the opposite party over phone that the machine was not functioning properly and requested the opposite party to repair the machine on complainant’s own cost and hence the opposite party agreed to repair the machine. In the meantime, the complainant contacted the opposite party over phone and informed that the staff of the opposite party need not to come over to the complainant’s working place since he had repaired the machine with the help of local mechanics. Hence, the opposite party’s staff did not go to the complainant’s working place. Thereafter, contrary to the above statement, the complainant issued a legal notice with false allegations and on receipt of notice when the complainant was contacted, he told that the notice was mistakenly sent and the same may be ignored. Therefore, absolutely, there was no deficiency in service on the side of the opposite party and hence sought for dismissal of the complaint.
5. Before the District Commission, both parties have filed their respective proof affidavit in support of their case. Exhibits A1 to A13 were marked on the side of the complainant and Exhibits B1 was marked on the side of the opposite party.
6. Based on the above submissions and on perusing the evidences adduced by them, the learned District Commission dismissed the complaint holding that the complainant has miserably failed to prove his case of deficiency in service and unfair trade practice by selling defective machinery on the side of the opposite party with expert evidence. Aggrieved over the order of the District Commission, the complainant has preferred this appal before this Commission.
7. Heard both sides and perused the materials on record. Keeping in mind the submissions made on either side, we have carefully considered the same. Since we have discussed the facts in detail above, we refrain from reiterating the same any further in this appeal and only the facts which are germane are discussed hereunder.
8. The learned counsel for the appellant submits that the opposite party had sold and delivered plastic scrap grinder machine instead of Plastic Shredder to the complainant and the machine was also found to be defective which was not functioning properly from the date of installation. Therefore, there is unfair trade practice followed by deficiency in service on the side of the opposite party. Per contra, the learned counsel for the opposite party would contend that the complainant has not placed order for pet bottle grinding machine but for the plastic shredder machine which was properly delivered to the complainant. Further, the complainant purchased the particular machine after satisfying himself that the machine was functioning properly and was in good condition.
9. Both sides’ submissions were considered and perused the materials available on records. On perusal of records, we find that the main dispute in the complaint is whether the opposite party had supplied defective machinery to the complainant. This question can be answered only by examining an expert witness before the Commission whereas in the instant case such evidence is not available on record. It is well-settled proposition of law that mere pleading is not an evidence unless it is proved in the manner known to law. In the instant case, the complainant has not chosen to produce any expert evidence with regard to technical aspects. Merely by accepting the statement made in the complaint, compensation cannot be awarded. Therefore, we do not find any error or infirmity in the order of the District Commission.
10. In the result, the appeal is dismissed by confirming the order of the District Commission, Coimbatore made in C.C.No.40/2013 dated 26.08.2013. There shall be no order as to costs in this appeal.
S.M. LATHA MAHESWARI, R. SUBBIAH,
MEMBER. PRESIDENT.
