Punjab

Ludhiana

CC/13/925

Vijay Kumar - Complainant(s)

Versus

Eureka Forbes Limited - Opp.Party(s)

15 Dec 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 925 of 17.12.2013

Date of Decision            :   15.12.2015 

 

Vijay Kumar Jain, Proprietor of M/s V.P.Oswal Hosiery Factory, Grewal Colony, Noorwala Road, Ludhiana.

….. Complainant

                                                         Versus

1.Eureka Forbes Limited, Corporate Office, Konkan Cooperative Housing Society Ltd., Konkan Nagar Hall, Ground Floor, Plot No.123, Late P.K.Marg, Mumbai through its Managing Director.

IInd Address Branch Office Dholewal Chowk, Near Gulzar Petrol Pump, Ludhiana through its Branch Manager.

2.Gurpreet Singh, representative of Eureka Forbes Limited, Branch Office Dholewal Chowk, Near Gulzar Petrol Pump, Ludhiana.

…Opposite parties

 

             (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.SAT PAUL GARG, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant                      :        Sh.Ajay Chawla, Advocate.

For OP1                         :        Sh.M.S.Sethi, Advocate

For OP2                         :         Sh.S.P.Singh, Advocate

 

PER G.K.DHIR, PRESIDENT

 

1.           Complaint under Section 12 of Consumer Protection Act, 1986(hereinafter in short referred to as ‘Act’) filed by complainant Sh.Vijay Kumar Jain against Ops by claiming that Op2 Sh.Gurpreet Singh, representative of OP1, approached him on 02.03.2012 for installation of security system in his house at the cost of Rs.2,62,525/-. Op2 delivered the quotation in this regard and received a sum of Rs.1,50,000/- from the complainant on 02.03.2012 itself. Security system was assured to be installed within 15 days, but Ops failed to install the same despite assurance. Complainant approached OP2 on telephone, but he went on procrastinated the matter. Numerous visits made by the complainant to the branch office of OP2 did not entail any result. Thereafter, vide email dated 9.8.2013, Ops were requested to refund the amount of Rs.1,50,000/-, but to no effect. Deficiency in service on the part of OPs pleaded by praying for refund of Rs.1,50,000/- along with interest @18% p.a. from 02.03.2012 till payment. Compensation of Rs.50,000/- on account of mental pain and suffering and litigation expenses of Rs.15,500/- also claimed.

2.                In written statement filed by branch office of OP1, it is claimed that no cause of action has accrued to the complainant against branch office (OP1). It is further claimed that as head office of Eureka Forbes Limited, Mumbai has been impleaded as OP1, but no notice served on that party and as such, complaint against branch office in the present form is not maintainable. Complainant has not availed any services for consideration from branch office of OP1. Besides, it is claimed that the complainant has not approached this Forum with clean hands because he has deliberately concealed the facts. In fact the complainant himself represented in the present complaint in individual capacity without disclosing that he is proprietor of V.P.Oswal Hosiery Factory. Quotation relied upon by the complainant relates to one M/s V.P.Oswal and even email dated 9.8.2012 was written by V.P.Oswal Hosiery Factory. Despite that it is not mentioned in the complaint that M/s V.K.Oswal Hosiery Factory or M/s V.P.Oswal is the complainant. Even the cheque No.299611 dated 2.3.2012 was issued by M/s V.P.Oswal Hosiery Factory and encashed by Eureka Forbes Limited, Mumbai. OP2, the representative of OP1 approached the complainant for installation of security system in his house at the cost of Rs.2,62,525/- as per the contents of the complainant and there is no pleading qua residential address of the complainant. Rather, payment of Rs.1,50,000/- was made from the commercial establishment of V.P.Oswal Hosiery Factory by furnishing the address of that factory. Complainant has not availed any services in his individual capacity and transaction involved is commercial one, due to which, this Forum has no jurisdiction because the complainant is not a consumer as per the provision of Section 2(d) of the Act. Elaborate evidence required and as such, the complaint cannot be treated as consumer complaint, due to which, the matter needs to be referred to the Civil Court for proper adjudication. Branch office of OP1 collected information from head office at Mumbai, who acknowledged that OP2 in the capacity of territorial head was called by V.P.Oswal Hosiery Factory, Grewal Colony, Noorwala Road Ludhiana and thereafter, contract entered as per which, cheque of Rs.1,50,000/- referred above was issued in the name of OP1. That cheque of Rs.1,50,000/- was 50% of the total cost of Rs.3,12,530/-. Balance 40% i.e.1,23,000/-was required to be   paid by M/s V.P.Oswal Hosiery at the time of delivery. OP1 delivered and installed the material worth of Rs.60,000/- well before balance 40% of the amount, but party concerned refused to pay balance 40% of the amount at the time of delivery of the material as per commitment. On refusal by the complainant to pay the balance amount of Rs.40%, the delivery material was taken back. It is claimed that head office is ready to comply with the agreement if the concerned party paid the amount as per contract, otherwise head office is ready to refund the amount after deducting Rs.60,000/- against the installed material without claiming labour or other charges. Each and every other averment of the complaint denied specifically by praying for dismissal of the complaint.

3.                In separate written statement filed by OP2, it is claimed interalia as if the complaint is not maintainable; complainant has not approached this Forum with clean hands; Op2 had already been transferred from Ludhiana to Patiala on 1.4.2013 and thereafter, he has left the job on 15.5.2014. It is claimed that OPs are not sued properly and as such, complaint deserves to be dismissed. However, contents of para no.1 of the complaint admitted for acknowledging that security system was to be installed in the house of the complainant, due to which, cheque of Rs.1,50,000/- was issued by him. Each and every other averment of the complaint denied specifically by praying for dismissal of the complaint.

4.                Counsel for the complainant tendered in evidence affidavit Ex.CA of complainant along with documents Ex. C1 to Ex. C4 and thereafter, closed the evidence.

5.                On the other hand, counsel for branch office of OP1 Sh.M.S.Sethi, Advocate tendered in evidence affidavit Ex.RA1 of Sh.Mahesh Chander and then closed evidence.

6.                Op2 tendered in evidence his affidavit Ex.RA2 and then closed evidence.

7.                Written arguments have not been submitted by any of the parties, but only oral arguments were addressed and heard. Records gone through carefully.

8.                 Claim of the complainant qua entering into contract for installation of security system at the instance of OP2 as representative of Eureka Forbes Limited along with that of receipt of cheque of Rs.1,50,000/- has been admitted by OP2 in the written statement. There is no allegation in the complaint that branch office of Eureka Forbes Limited was ever contacted and as such, certainly submission advanced by Sh.M.S.Sethi, Advocate has force that branch office of Eureka Forbes Limited has been unnecessarily impleaded as party. As contract was not entered by the complainant with the branch office of Eureka Forbes Limited at Ludhiana and as such, services were not availed by the complainant from branch office of Eureka Forbes Limited at Ludhiana at all. So, certainly,branch office of OP1 cannot be held liable for deficiency in service for want of privity of contract between him and the complainant.

9.                It has been admitted by branch office of Eureka Forbes Limited in the written statement and also by OP2 in his written statement that cheque of Rs.1,50,000/-(copy of which is produced on record as Ex.C3) was issued from the account of V.P.Oswal Hosiery Factory under signature of complainant and the said cheque was got encashed by OP2 for head office of Eureka Forbes Limited through Saving bank account of V.P.Oswal Hosiery Factory, Sh.Vijay Kumar Jain( copy of which is produced on record as Ex.C2). So, this admission suffered by OPs in their written statement along with contents of Ex.C2 enough to establish that amount of Rs.1,50,000/- has been received through cheque by the head office of Eureka Forbes Limited through its territorial representative namely OP2. However, installation of the security system has not taken place, albeit it is pleaded that material supplied was taken back on account of non-payment of 40% of the agreed amount by the complainant. Date of delivery and installation of the material has not been mentioned in the written statement by branch office, but the head office of Eureka Forbes Limited at Mumbai has not appeared despite sending notice through registered post and as such, it is obvious that vague and general allegation levelled qua delivery and installation of the material. If really the material would have been supplied or installed as alleged in the written statement of OP1, then the name of the person through whom, the said installation took place would have been disclosed and even the date of such delivery and installation would have been mentioned, but that is not the position as disclosed by the pleadings of OPs and in submitted affidavits Ex.RA1 and Ex.RA2. As and when pleadings remain vague, then allegations in that respect can be accepted.So in view of non mentioning of the   date of delivery and installation or taking back of the material as well as in view of the non disclosure of the name of the labourer or the person, who delivered or installed the supplied material, it has to be held that pleading and proof is vague. It is well settled that as and when pleading and proof is vague, then case of the party concerned cannot be accepted as correct. So, case of the OPs is not believable that actually material was supplied or installed and thereafter, it was taken back. Even no notice served by OPs  on complainant before taking back the alleged    delivered material. The head of the company always to act through its representatives by maintaining record, so non service of notice qua non payment of the balance 40% amount, also leads to the inference that actually delivery and installation of the material did not took place at any time.

10.              Copy of quotation Ex.C1 has been produced by the complainant himself for showing that cost of the security system to be installed was Rs.2,62,525/- after deduction of 16% from the total quoted price of Rs.3,12,530/-. So allegations levelled in the complaint are correct that cost of the security system to be installed was Rs.2,62,525/-. As receipt of Rs.1,50,000/- by OP2 for head office of Eureka Forbes Limited is admitted and as such, complainant able to prove his case in that respect.

11.              After taking us through Ex.C1 to Ex.C4, it is vehemently contended by Sh.M.S.Sethi, Advocate that as the quotation was in the name of M/s V.P.Oswal, Ludhiana and account was also of M/s V.P.Oswal Hosiery Factory and even cheque issued by the authorized signatory for V.P.Oswal Hosiery Factory and further email correspondence Ex.C4 dated 9.8.2013 is in the name of V.P.Oswal Hosiery Factory and as such, virtually the installation of the security system was in commercial premises, due to which, complainant is not a consumer. Even if perusal of above referred documents reveals that contract was with M/s V.P.Oswal Hosiery Factory, despite that copy of saving bank account of M/s V.P.Oswal Hosiery Factory shows the name of Sh.Vijay Kumar Jain also in Ex.C2 and as such, it is obvious that Sh.Vijay Kumar Jain in fact representing V.P.Oswal Hosiery Factory in the entire contract proceedings with the head office of Eureka Forbes Limited through OP2.

12.              Contents of para no.1 of the complaint specifically admitted by OP2 in the corresponding para of written statement that security system was to be installed at the house of the complainant and as such, these admitted facts enough to establish that security system in question was purchased not for commercial purpose, but for installation at house of complainant,  even though the    transactions were entered by Sh.Vijay Kumar Jain, Proprietor of M/s V.P.Oswal Hosiery Factory. As use of the security system was to be made at house and as such submission advanced by counsel for OP1 has no force that transaction in question was for commercial purpose. Being so benefit of ratio of case titled as Jatinder Paul Singh vs. Toyota Kirloskar Motor Limited and others, bearing First Appeal No.85 of 2013, decided on 09.03.2015 by the Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh cannot be availed by the OPs. Perusal of para no.8 of this cited authority reveals that car was purchased by the firm M/s G.S.Enterprises for use by the firm and that is why the same was reflected in the tax invoice Ex.C5 and even all the documents were in the name of the firm. In the case before us, it is specific case of the complainant that security system was to be installed at his house and that fact has been admitted by OP2 in the written statement and as such, now OPs estopped from claiming that transaction in question was entered for commercial purpose. As installation of security system has not taken place despite receipt of Rs.1,50,000/- and as such, deficiency in service certainly is there on the part of head office of Eureka Forbes Limited at Mumbai as well as OP2 only. The said amount of Rs.1,50,000/- has been used by the head office of Eureka Forbes Limited, Mumbai and as such, complainant is entitled to refund of that amount of Rs.1,50,000/- with interest @7% p.a. w.e.f.1.4.2012 till recovery. Besides, complainant has been harassed mentally due to non compliance of the terms of contract and as such, he is entitled for compensation for mental pain and suffering along with litigation expenses  from head office of Eureka Forbes Limited and OP2, whose liability will be joint and several.

13.              Therefore, as a sequel to the above discussion, complaint allowed with direction to head office of Eureka Forbes at Mumbai as well as OP2 to refund the amount of  Rs.1,50,000/- to the complainant along with interest @7% p.a. from 1.4.2012 till payment. Compensation, for mental pain, agony and sufferance, of amount of Rs.10,000/- and litigation expenses of Rs.3000/- allowed in favour of complainant and against head office of Eureka Forbes at Mumbai as well as OP2, whose liability held as joint and several. Compliance qua above said directions be made within 30 days from the date of receipt of copies of order. Copies of this order be supplied to parties free of costs as per rules.

14.                        File be indexed and consigned to record room.

 

                   (Sat Paul Garg)                         (G.K. Dhir)

            Member                                   President

Announced in Open Forum

Dated:15.12.2015

Gurpreet Sharma.