BEFORE THE DISTRICT FORUM: KURNOOL
Present: Sri K.V.H.Prasad, B.A., LL.B., President
Smt C.Preethi, M.A., LL.B., Member
Sri R.Ramachandra Reddy, B.Com., LL.B., Member
Tuesday the 13th day the June, 2006.
C.D. No.85/2005
Dr. K. Ramalinga Reddy,
S/o Dr.K. Ankal Reddy,
Aged about 65 years,
Prop: Sri Rama Group of Theatres,
Allagadda, Kurnool District. . . . Complainant
-Vs-
General Manager cum Legal Officer,
M/s Cine Rama (P) Ltd.,
Wester Company Ltd.,
16-A, Industrial Suburd, 2nd Stage,
Yeswanthapura, Tumkur Road,
Bangalore. . . . Opposite party
This complaint coming on this day for Orders in the presence of Sri S.Sivaramakrishna Prasad, Advocate, Kurnool for complainant, Sri Mohammed Ishaq, , Advocate, Kurnool for opposite party, and stood over for consideration till this day, the Forum made the following:-
O R D E R
(As per Sri.K.V.H.Prasad, Hon ble President)
1. This case of the complainant filed under section 12 of C.P. Act, seeking in order against the opposite party to pay to the complainant a sum of Rs.1,09,358/- with 24 percent interest per annum and costs of this case alleging deficiency of service of the opposite party in not refunding of excess amount of Rs.49,538/- collected, Rs.6,500/- installation charges collected without rendering the service of installation, Rs.3,500/- excess amount spent by the complainant for towards installation charges in engaging local engineer for said installation and a compensation of Rs.50,000/- for mental agony suffered at the acts of the opposite party.
2. The brief facts of the complainant s case are that the opposite party gave a quotation for Rs.4,79,300/- to the complainant on 30-6-2004 as to the cost of a 35 mm double projector SAS model and one set zippers change over system and Rs.6,500/- as installation charges as the complainant intended its purchase for installing in his new theatre namely A.R Theatres constructed in Nandyal and in pursuance thereof payment of Rs.1,50,000/- as advance was made by the complainant to one - N.R.Siva Gouda - Representative of the opposite party and there after on 5-8-2004 the complainant sent 9 DDs all worth Rs.4,00,000/- to the opposite party payable at Andhra Bank, Bangalore towards sale consideration of said projector and its accessories and the opposite party even though sent said booked order to Raghavendra Transport vide Lr.No.1830 did neither depute its service engineer for installation of said machine and inspite of collection of Rs.6,500/- for said purpose nor sent the original invoice inspite of several requests as the said invoice is required for income tax return purpose and the opposite party collected Rs.5.5 lakhs in all while the final price was stated in reply dated 10-1-2005 given to the notice dated 13-12-2004 of complainant as Rs.5,00,642/- and so collected an excess amount of Rs.49,358/- and not performed his obligation there is deficiency of service on the part of the opposite parties.
3. In pursuance of the receipt of the notice of this Forum as to this case of the complainant the opposite party has caused its appearance through its counsel and contested the case filing a written version denying any of its liability to the claim of the complainant and seeking dismissal of the case with costs.
4. The written version of the opposite party denies the alleged receipt of any advance of Rs.1.50 lakhs and the other complaint averments as to alleged non cooperative conduct of the opposite party and there by bonafidies in complainant s cause of action even though admit sale of projector to the complainant at Rs.5,00,642/- as against the price quoted in proforma invoice of Rs.5,53,043/- on bargain and said bargain price was received from complainant to the tune of Rs.4.0 lakhs under 9 DDs and Rs.1,00,642/- thorough N.R.Siva Gouda under cash receipt No.342 issued by the opposite parties representative and the said projector was dispatched under two invoices No.059 and 3562 dated 11-8-2004. The complainant did neither paid any amount for lending the services of their service engineer promising its payment at the time of rendering his service and ultimately did not availed the service of the opposite parties service engineer alleging that the theatre was not ready for installation of projector and did not inform there after for services of the opposite parties service engineer. Thus denies as to receipt of any excess from the complainant or any of its deficiency in rendering stipulated services or any delay in supply of machine and any ensual of mental agony to the complainant and any bonafidies in complaint and in the claim and the status of the complainant as consumer as the goods sold are not consumable but an heavy industrial machinery for commercial purpose.
5. In substantiation of the contentions while the complainant side has relied upon the documentary record in Ex.A1 to A9 besides to his sworn affidavit in reiteration of its case and replies to the interrogatories exchanged, the opposite party side has taken reliance on Ex.B1 to B9 besides to his sworn affidavit in reiteration of his defense and a third party affidavit of D.Raja Dura and replies to the interrogatories exchanged.
6. Hence the point for consideration is whether the complainant has made out to alleged deficiency on the part of the opposite party and there by the laters liability to make good of the claim of the complainant.
7. The Ex.A1 is quotation dated 30-6-2004 issued by the opposite party in favour of the complainant. It says the cost of 35mm Westrex Double Projector model SAS with two 100 amp rectifiers, one 3.5 KVA S/D Transformer as Rs.4,71,500/- and one set zippers change over system as Rs.7,800/- and Rs.6,500/-as installation charges and the 33percent of the above quotation as advance and balance before the delivery which may be within two to four weeks from the date of receipt of commercially clear order and the validity of said quotation as 30 days from the date of its issue and the fright to pay at actuals and the cost quotated is subject to excise duty, sales tax, packing and forwarding charges, fright and insurance, entry tax/octorai applicable at the time of delivery. The averments of para No.3 of written version admits the said quotation and hence, the Ex.A1 remains to have proved.
8. The complaint avers in pursuance of the above quotation the complainant has paid Rs.1.5 lakhs as an advance to N.R.Siva Gouda - a representative of the opposite party. The opposite party denies receipt of any said amount of Rs.1.5 lakhs through N.R.Siva Gouda. The complainant except reiterating the said fact in his sworn affidavit and filing Ex.A2 - a scribed receipt alleged to have been issued by N.R. Siva Gouda in token of receipt of Rs.1.5 lakhs from complainant. The sc-ript in said Ex.A2 is not intelligible to construct properly as to what it constitutes and conveys. Nor the complainant has examined the author of said Ex.A2 or caused his affidavit filed to lend assistance to the complaint averments as in Ex.A2. While such is so the cash book abstract in Ex.B1 -certified by Chartered Accountants reflex an amount of Rs.1,00,642/- to the opposite party from the complainant on 25-8-2004 towards the balance amount of invoice No.s 059 dated 11-8-2004 and ID No.3562 dated 11-8-2004. The said invoices appearing in Ex.B5 totals the amount of said invoice to Rs.5,00,642/- (i.e. Rs.4,61,266+Rs.39,376). The receipt in Ex.B2 envisages the receipt of Rs.4.0 lakhs from the complainant and same is reflected in Ex.B1 which the complainant says to have sent to the opposite party under DDs the counter foils of purchase of which DDs is found in Ex.A3. The Ex.B3 is the receipt for Rs.1,00,642/- from the complainant in cash. The complaint and the sworn affidavit of the complainant and legal notice of complainant in Ex.A8 is silent about the said payment of Rs.1,00,642/-. But this payment of Rs.1,00,642/- is reflected in Ex.B1. When these two payments in Ex.B2 and B3 which are reflected in Ex.B1 is taken into consideration, it is agreeing to the total of invoice mentioned in Ex.B5. When there is any invoice showing the cost of said projector as Rs.5,50,000/- there appears any bonafidies in the case of the complainant as to his payment of Rs.5.5 lakhs to the opposite party especially when he failed to substantiate the alleged payment of Rs.1.5 lakhs through N.R.Siva Gouda and when nothing appears to doubt the bonafidies of said invoices price in the light of purchase agreement dated 6-8-2004 the mention of which was taken in Ex.B4 letter of the opposite party and which says the cost of the said projector as 5,00,642/- consistent to opposite parties stand which was reiterated in Ex.A9 reply notice dated 10-1-2005 of the opposite party addressed to the complainant. Nothing much to discredit the bonafidies of invoices price of Rs.5,00,642/- appearing in the replies of the opposite parties side to the interrogatories of complainant side. In short of the above discussion in the absence of any invoice showing the cost of said projector and its accessory as Rs.5.5 lakhs and any substantiating material as to payment of Rs.1.5 lakhs through N.R.Siva Gouda to the opposite party and the payments envisaged in Ex.B2, B3 and purchasing agreement mentioned is enclosures to Ex.B4 and the office copy of invoice of the opposite party dated 11-8-2004 reflected in Ex.B1 as agreeing and consistent to the invoice rates stated by the opposite party s side there appears any circumstances to believe any bonafidies in the alleged excess payment of Rs.49,358/- especially when the complainant is ultimately accepting the invoice rate of Rs.5,00,642/- is claiming the alleged excess payment. Therefore, the said claim of the complainant for excess amount alleged to have been paid being not substantiated there remains any liability of the opposite party to make good of the same to the complainant and hence the complainant s said claim is dismissed.
9. Now as to aspect of deficiency alleged on the part of the opposite party in not furnishing the original invoice as to purchase of said machine, inspite of the reputed requests of the complainant.
10. While the entire payment of the cost of the said machine was completed as per Ex.B3 by 25-8-2004 and delivery of said machine appears have been made to the complainant at his door delivery vide Lr.No.1830 dated 11-8-2004 mentioned in Ex.B5 which says of the enclosure there to the original invoices and original delivery challans the complainant not rebutted the same by examining said Sri Ragahvendra Transport which delivered the said machine to the complainant, nor there appears any reason on complainant s side when the machine was delivered under said Lr. dated 11-8-2004 without original invoices in not agitating for said original invoices till filing of the complaint nor the complainant is able to establish any practice of sending such costly machine which is susceptible to various kinds of taxes, without original invoices for being delivered through a transport which have to cover several states from the point of dispatch to the point of delivery. Nor the complainant has taken any plea in his notice dated 13-12-2004 as to the laters not sending him the original invoices. This allegation of not furnishing of said machine by the opposite party being taken for the first time in the complaint and in his sworn affidavit the said remains of any worth of believing to act upon it and hence it appears to be an eleventh hour plea to have a wrongful claim with an ulterior intention. Hence the complainant s case is dismissed on this aspect also.
11. The complaint alleges the opposite party has not supplied the ordered projector within stipulated time and hence he has sustained loss and it has to be compensated by the opposite party. At the same time he is not clear as to on what date the machine was delivered to him or as to how much time lapsed in between the booking the order and actual delivery. To constitute any delay in delivery ensuing any alleged loss to him. While the order was said to have been placed in pursuance of quotation in Ex.A1 dated 30-6-2004 and the amounts of Rs.4,00,000/- and 1,00,642/- were paid by 25-8-2004, and the Ex.B6 the consigneer s copy of goods consignees note says of booking its freight on 11-8-2004 and the conditions of quotation and purchase agreement stipulates advance payment of 33percent of the value and the balance payment after delivery giving a time of two to four weeks from said payment for delivery - there appears any delay in delivery of the booked machine and its accessory to the complainant and hence there appears any material to constitute any deficiency of the opposite party in that aspect and there by to feel of ensual of any mental agony to the complainant in that regard. Hence the said claim being not substantiated creating any alleged liability on the opposite party the said is dismissed.
12. Now as to the aspect of deficiency of service on the part of the opposite party in providing services of the opposite party service engineer for installing the machine.
13. In the sworn affidavit averments the complainant avers that the opposite party claimed a sum of Rs.6,500/- towards installation charges. The complaint avers that in the quotation dated 30-6-2004 the installation charges were mentioned as Rs.6,500/-. The Ex.A1 alleged quotation dated 30-6-2004 shows an amount of Rs.6,500/- as installation charges in addition to Rs.4,79,300/- i.e. cost of 35mm Westrex Projector and zip change over system mentioned in said quotation. The fact mentioned in Ex.A1 was admitted by the opposite party in para No.3 of its written version. But from further averments of para No.3 of written version the said quotation rates in Ex.A1 was not final and acted upon as on bargain the total price of said projector and its accessory was fixed to Rs.5,00,642/-apart from Rs.6,500/- in addition to that towards installation charges. The complainant is silent as to how he has paid installation charges to the opposite party except averring that the opposite party has collected installation charges and as per terms and conditions the opposite party has to install the projector in the theatre. Nor the complainant filed any cogent material as to said payment of Rs.6,500/- to the opposite party towards installation charges inspite of denial by the opposite party of receipt of any such charges from the complainant. While such is so the written version of the opposite party in its last para of page No.2 as to installation charges alleges that the complainant assured the payment of installation charges at the time of opposite party service engineer takes up installation work and there by means to have not received any amount from the complainant towards installation charges. In the absence of any cogent material evidencing the payment of Rs.6,500/- by the complainant to the opposite party towards installation charges the stand of the opposite party as to the payment of any installation charges to the opposite party appear to bear any bonafidies and true to worth of consideration especially when the Ex.A7 legal notice dated 13-12-2004 caused to the opposite party - which for the first time brings out grievance of complainant to the notice of the opposite party - even doesn t envisage as to when it made such payment of Rs.6,500/- to the opposite party and not at all takes any mention of bargained price and its terms and conditions and doesn t even explain as to how it made the allege payment totaling to Rs.5,50,800/- when it says of Ex.A1 only as quotation acted upon and the Ex.A1 even if including the said additional installation charge of Rs.6,500/- to the cost of machine of Rs.4,79,300/- is amounting only to Rs.4,85,800/- and not to Rs.5,50,800/-. Hence, when there is any cogent material to believe the payment of said installation charges of Rs.6,500/- chargeable in addition to the cost of the machine and accessory, no deficiency of service could be found on the part of the opposite party in not rendering its service engineer for installation as services the non performance of which amounts to deficiency in the scope of Consumer Protection Act in reference to the definition of “Service” envisaged section 2(o) of C.P. Act is a service renderable on valuable consideration and not otherwise as it excludes from its scope a service rendered free of charge or under a contract of personal service and especially when non of the terms and conditions of said contract of sale of said machinery is placed by the complainant obligating the opposite party the rendering of said service of installation of machinery as part of said contract as alleged in complaint irrespective of any payment of said installation. In actuality the terms and conditions of agreement of purchase enclosed to Ex.B4 does not envisage any duty of installation of the machinery on the part of the opposite party and Ex.B5 accounts therein for Rs.5,00,642/- towards the cost of said projector and its accessories only and not covering there by any installation charges. Therefore, the complainant fails in establishing any deficiency of service on the part of the opposite party in its omission to provides its service engineer for installation of said machinery and hence there remains any liability of the opposite party towards Rs.7,000/- claimed by the complainant under Ex.A6 dated 20-8-2004 alleging its payment to its signatory towards installation charges especially when the complaint is not consistent as to the aspect of actual amount spent towards the installation charges as in the complaint at one juncture says without mentioning the particulars of the name and identity of local engineer that the complainant has paid Rs.8,000/- and at another juncture as paid Rs.10,000/- to local engineer which is an excess of Rs.3,500/- to the Rs.6,500/- chargeable by the opposite party. While the Ex.A6 envisages the payment of Rs.7,000/- only to one S. Ibrahim Basha who doesn t disclose there in his professional identity.
14. The complainant claims an amount of Rs.50,000/- towards mental agony suffered by the complainant at the loss occurred to him in delayed supply of the machine. While the Ex.A1 says the time stipulated for delivery of booked order is two to four weeks from the date of receipt of the purchases commercially clear order preceded by payment of 33percent of the ordered value as advance and the balance at the time of delivery - the payment of Rs.4.00 lakhs 9 DDs in reference to Ex.A3 and B2 dates to 6-8-2004 and the balance of Rs.1,00,642/- vide Ex.B3 dates to 25-8-2004 and the invoices in reference to Ex.B5, B6 and invoices dated 11-8-2004 enclosed to Ex.B9 shows the supply of said machinery before to the date of total payment of purchase price itself and the complainant is not specific as to the actual date of delivery of said projector and its accessory - any delay in supply of booked order of projector and its accessories could be inferred and there by ensual any alleged mental agony to the complainant on account of any delayed delivery of the said projector and its accessory. Therefore, the said claim of the complainant bears any merit and force worthy of consideration creating any liability of it on the opposite party and so the said claim is dismissed.
15. As per the above discussion, as there appears any material to believe the bonafidies in the contentions of the complainant and his claim made to the liability of the opposite party, the case of the complainant fails and so it is dismissed with costs.
Dictated to the stenographer, transcribed by him corrected and pronounced by us in the Open Forum this the 13th day of June, 2006.
PRESIDENT
MEMBER MEMBER
APPENDIX OFEVIDENCE
Witnesses Examined
For the complainant: Nil For the opposite party: Nil
List of Exhibits Marked for the complainant:-
Ex.A1 Quotation of Cine Rama (P) Ltd., Dt.30-6-2004.
Ex.A2 Receipt given by N.R.Shive Gouda for Rs.1,50,000/-, Dt.1-7-2004.
Ex.A3 Counter foil of DDs, Dt.5-8-2004 of Andhra Bank, Allagadda Branch, S.No.1 to 9 in numbers.
Ex.A4 Letter, Dt.10-2-2005 from Dr.K.Ramalinga Reddy
Ex.A5 Certificate of posting to Cine Rama (P) Ltd., Bangalore-560 022
Ex.A6 Cash receipt of Rs.7,000/- Dt.20-8-2004.
Ex.A7 Office copy of the Legal notice, Dt.13-12-2004
Ex.A8 Postal receipt, Dt.13-12-2004
Ex.A9 Reply notice, Dt.10-1-2005.
List of Exhibits Marked for the opposite party:-
Ex.B1 Transactions sheet (cash book) Financial year for 1-4-2004 to 31-3-2005
Ex.B2 Receipt of Cine Rama (P) Ltd., for Rs.4,00,000/-
Ex.B3 Receipt of Cine Rama (P) Ltd., for Rs.1,00,642/-
Ex.B4 Letter, Dt.6-8-2004 of opposite party to Manager, Sri Rama A/c Theatre,
Nandyal
Ex.B5 Original invoice, Dt.11-8-2004 (No.59X3562 for Rs.4,61,266+Rs.39,376)
Ex.B6 L.R. Report, Dt.11-8-2004
Ex.B7 Postal receipt, Dt.11-8-2004.
Ex.B8 Postal acknowledgement, Dt.16-8-2004
Ex.B9 Courier letter, Dt.11-8-2004 (with enclosures invoice & delivery
challans, number in 7 pages)
PRESIDENT
MEMBER MEMBER
Copy to:
1. Sri. S. Sivaramakrishna Prasad, Advocate, Kurnool
2.Sri. Mohammed Ishaq, Advocate, Kurnool
Copy was made ready on:
Copy was dispatched on :
Copy delivered to parties:
