Gura Singh, Complainant (here-in-after referred to as complainant) has filed this complaint under section 12 of the Consumer Protection Act, (here-in-after referred to as 'Act') against G.S. Mechanical Works (here-in-after referred to as 'opposite party).
2. Briefly stated, the case of the complainant is that he wanted to arrange self-employment to his unemployed son. Opposite party is a manufacturer of Machinery. That on 03.01.2018 the complainant approached the opposite party and ordered a lathe machine to be supplied to him. The opposite party demanded total-sum of Rs.1,25,000/- as its cost and Complainant paid Rs.50,000/- as advance payment for the lathe machine to the opposite party. The balance amount of total-sum of Rs.75,000/- was to be paid at the time of delivery of machine. It is alleged that the opposite party had promised to provide lathe machine having dimension 10 feet, band size 16", center 14' and bore 5-6 with dock cock 16' in a week i.e. up to 11.01.2018, but the opposite party failed to deliver the lathe machine in time. After that the complainant visited the opposite party in February-March 2018 and requested the opposite party to expedite delivery of lathe machine so that the son of the complainant may start his work at his village. It is further alleged that the opposite party told to complainant that the lathe machine could not be delivered, as there were some labour problems and as these have since been resolved the machine shall be supplied in the third week of March 2018. But even the third week of March 2018 passed, and the opposite party failed to deliver the said machine. The complainant contacted and reminded opposite party on phone many times but here was no sign of lathe machine. It is further alleged that unfortunately son of the complainant who was to start his work with the lathe machine met serious road accident in the month of April 2018 resulting into serious multiple injuries all over the body including head injury and as result, he remained admitted in various hospitals at Bathinda and Ludhiana and opposite party was informed about this accident and about the condition of complainant’s son and was asked not to undertake manufacture/assembly of lathe machine till further orders by the complainant. It was intimated by opposite party that manufacturing/assembly of lathe machine had not commenced till then. It is further alleged that as a result of the injuries sustained in the above said road accident, complainant’s son was rendered incapacitated and was not in the position to operate lathe machine. After that the complainant besides informing the opposite party on phone about the accident and condition of his son, even personally visited the place of work of opposite party in the month of May 2018 and apprised the opposite party about the condition of his son and cancelled the order for lathe machine and requested opposite party to return the amount of Rs.50,000/- paid to opposite party as advance at the time of booking of machine. The opposite party promised to return the advance money of Rs.50,000/-. It is further alleged that the opposite party did not return the advance money till now, despite repeated requests by the complainant and kept on putting of the matter on one or the other excuse. Due to this illegal act and conduct of the opposite party, the complainant has suffered great loss and also suffered mental agony and physical harassment and inconvenience. So, there is a clear cut deficiency in service on the part of the opposite party.
On this backdrop of facts, the complainant has alleged deficiency in service and unfair trade practice on the part of the opposite party and prayed that the necessary directions may kindly be issued to the opposite party to return the amount of Rs.50,000/- along with 18% P.A. interest from 03.01.2018 up to date and to pay Rs.50,000/- as compensation to the complainant in the interest of justice.
3. Upon notice, opposite party appeared through counsel and filed their written reply by taking preliminary objections that the complaint of the complainant is not maintainable, that the complainant has got no locus standi to file the present complaint, that the complainant has not come to the court with clean hands and is the guilty of suppression of material and real facts from the Hon'ble court. It is pleaded that the real facts are that on 03.1.2018, the complainant came in the office/premises of the opposite party and placed an order for the preparation/manufacture of one Lathe Machine 10 ft. etc. amounting to Rs.1,25,000/- . At that time, the complainant paid a sum of Rs.50,000/- as advance out of the total amount of Rs.1,25,000/- to the opposite party. At that time, it was agreed between the parties that the complainant will pay the balance amount of Rs.75000/- at the time of delivery of the machine. It is further pleaded that thereafter the opposite party prepared/ manufactured the machine as per the terms and conditions of the order within the stipulated time and the opposite party started to do phone to the complainant to get the delivery of said machine against the balance amount of Rs.75,000/-. The complainant started to linger on the matter one pretext or the other. The opposite party made a number of phone calls to the complainant and asked the complainant to come at Batala and to check the machine and took the delivery of the said machine against the balance amount of Rs.75,000/- but the complainant had not came in the premises of the opposite party. It is further pleaded that ultimately on 21.9.2018, the complainant came in the premises of the opposite party at Batala and told the opposite party that his son had met with serious road accident in the month of April 2018 and also told that he had suffered serious multiple injuries all over the body including head injury. Thereafter the complainant requested the opposite party that he does not want to take the delivery/ purchase the said machine due to the accident of his son from the opposite party. At that time, the complainant also requested the opposite party to refund the amount of Rs.50,000/- which was paid by the complainant to the opposite party at the time of placing of order of the said machine. After listening about the condition of the son of the complainant, the opposite party accepted the request of the complainant. It is further pleaded that at that time, on the request of the complainant, the opposite party transferred a sum of Rs.25,000/- in the bank account in three times i.e. on 21.9.2018, 28.9.2018,04.10.2018 which was given by the complainant and the opposite party also paid a sum of Rs.10,000/- in cash to the complainant on 9.12.2018. It is further pleaded that when the complainant again came in the premises of the opposite party. In this way, the complainant had received a sum of Rs.35,000/- from the opposite party and the said fact was also admitted by the complainant himself vide receipt dated 9.12.2018. Due to the accident of the son of the complainant, the opposite party was and is ready to pay the balance amount of Rs.15,000/- to the complainant but the complainant has filed the present complaint on the basis of wrong and false facts in order to grab the amount from the opposite party. It is further pleaded that the opposite party has already suffered huge loss as the opposite party had prepared the machine as per the specific terms and conditions of the complainant and due to non-delivery by the complainant and the said machine was sold by the opposite party at the scrap rate. Hence the complainant has not come to the court with clean hands.
On merits, the opposite party have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.
4. Learned counsel for the complainant has tendered into evidence affidavit of Gura Singh, (Complainant) as Ex.CW-1 along with other documents as Ex.C-1 to Ex.C-11.
5. Learned counsel for the opposite party has tendered into evidence affidavit of Gurdeep Singh (Sole Proprietor of M/s G.S. Mechanical Works, Batala) as Ex.OPW-1/A along with other documents as Ex.OP-1 to Ex.OP-5.
6. Rejoinder filed by the complainant.
7. Written arguments filed by both the parties.
8. The counsel for the complainant has argued that complainant wanted to arrange self-employment of his unemployed son and Opposite party is a manufacturer of Machinery and on 03.01.2018 the complainant approached the opposite party and ordered a lathe machine to be supplied to him. It is further argued that the opposite party demanded total-sum of Rs.1,25,000/- as its cost and Complainant paid Rs.50,000/- as advance payment for the lathe machine to the opposite party. The balance amount of total-sum of Rs.75,000/- was to be paid at the time of delivery of machine. It is further argued that the machine was not supplied in time and in the mean while son of the complainant met with an accident, and complainant demanded the advance amount back but opposite party has refused to pay the same.
9. On the other hand counsel for the opposite party has argued that on 03.1.2018, the complainant came to the opposite party and placed an order for the preparation/manufacture of one Lathe Machine 10 ft. etc. amounting to Rs.1,25,000/- and complainant paid a sum of Rs.50,000/- as advance out of the total amount of Rs.1,25,000/- to the opposite party. It is further argued that at that time, it was agreed between the parties that the complainant will pay the balance amount of Rs.75000/- at the time of delivery of the machine. It is further argued that thereafter the opposite party prepared/ manufactured the machine as per the terms and conditions of the order within the stipulated time and the opposite party contacted the complainant to get the delivery of said machine against the balance amount of Rs.75,000/- but the complainant started to delaying the matter by one pretext or the other and the complainant had not came in the premises of the opposite party. It is further argued that ultimately on 21.9.2018, the complainant came to the opposite party at Batala and told the opposite party that his son had met with serious road accident in the month of April 2018 and the complainant requested the opposite party that he does not want to take the delivery/ purchase the said machine due to the accident of his son from the opposite party and the complainant requested the opposite party to refund the amount of Rs.50,000/- and after listening about the condition of the son of the complainant, the opposite party accepted the request of the complainant and the opposite party transferred a sum of Rs.25,000/- in the bank account three times i.e. on 21.9.2018, 28.9.2018,04.10.2018 which was given by the complainant and the opposite party also paid a sum of Rs.10,000/- in cash to the complainant on 9.12.2018. It is further argued in this way, the complainant had received a sum of Rs.35,000/- from the opposite party and the said fact was also admitted by the complainant himself vide receipt dated 9.12.2018 copy of which is Ex Op 1. It is further argued that the opposite party has already suffered huge loss as the opposite party had prepared the machine as per the specific terms and conditions of the complainant and due to non-delivery by the complainant and the said machine was sold by the opposite party at the scrap rate.
10. We have heard the counsel for both the parties and gone through the facts of the case.
11. It is admitted fact that the opposite party had received amount of Rs. 50,000/- as advance to manufacturer lathe machine for the complainant, it is further admitted fact that son of the complainant for whom the machine was going to be purchased met with an accident. It is further admitted fact complainant has demanded refund of advance amount. Only question for adjudication before this commission is regarding refund of the amount of Rs.50,000/- received by the opposite party from the complainant. To prove his case complainant has placed on record copy of receipt Ex C1 as per which opposite party has received amount of Rs.50,000/- from the complainant and as per treatment record Ex C2 son of the complainant met with an accident on 6-4-2018 and complainant also got served legal notice Ex C3. on the other hand opposite party has placed on record receipt Ex OP 1 which is signed by the complainant in Punjabi language regarding receipt of Rs.35,000/- from opposite party and record of online payment Ex OP 3 to Ex Op5 as per which amount of Rs.25,000/- has been transferred in the account of one Gurdeep Singh.
12. From the documents on record it is proved that opposite party has refunded the amount of Rs.35,000/- to the complainant from 21.9.2018 to 4.10.2018 but the opposite party has offered to pay balance amount of Rs.15,000/- but has paid the same till pronouncement of this order, the plea of the opposite party that opposite party suffered loss and had to sell the machine in scrap, but opposite party had not placed on record any document to prove this fact that opposite party had in fact manufactured the machine on the date of cancellation of order or that in fact the machine was sold in scrap and at what price, which shows that fasle plea has been taken by the opposite party just to avoid payment of balance amount of Rs.15,000/-.
13. From the documents on record it is fully proved that opposite party has with held the amount of Rs.15,000/- out of total amount of Rs.50,000/- which was required to be refunded to the complainant and more over amount of Rs.35,000/- has been paid finally on 04.10.2018 after delay of 10 months, which definitely amounts to deficiency in service, as such the present complaint is partly allowed and opposite party is directed to refund the balance amount of Rs.15,000/- to the complainant alongwith interest @ 9 % per annum w.e.f 03.01.2018 till realization and to pay further interest @ 9% per annum on the amount of Rs.35,000/- w.e.f 03.01.2018 to 04.10.2018.
14. The complainant is also held entitled receive Rs.3,000/- as compensation from the opposite party for mental tension, harassment and cost of litigation.
15. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
16. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.
(Lalit Mohan Dogra)
President
Announced: (B.S.Matharu)
Sept. 01, 2023 Member
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