By Smt. C.S. Sulekha Beevi, President,

1. It is the say of complainant that he approached opposite party with intention to purchase a

Kirloskar Generating Set with Acoustic Enclosure (Kirloskar Green) and placed order for the following components:-

(a) TA1 Model Kirlosker make Air cooled Electric start 6 Bhp Diesel Engine.

(b) 5 kva Kirlosker make .8 Pf Alternator.

© Base frame, control panel Avm pads Etc.

(d) Exide make battery.

(e) Suitable Acoustic Enclosure for the above Engine and Alternator.

That the consideration agreed and paid was Rs.1,53,000/-. Complainant states that though first opposite party promised to deliver the articles on 26-5-2008 they were delivered with delay only on 06-6-2008. It is his case that the goods supplied were different in price and were of inferior quality with poor performance. That the generating set does not meet the standard of Kirloskar generating (Kirloskar Green) Set offered by authorised dealers, and that the gen set does not correspond in appearance to the gen set advertised through brochure by the manufacturer. Complainant then issued a letter to opposite party to replace the defective set to which opposite party replied stating false contentions. That opposite party has not replaced the gen set even after repeated requests and hence this complaint, alleging unfair trade practice and deficiency in service. Complainant seeks the following reliefs:-

(i) to direct opposite parties to replace the alleged set with a generating set manufactured by third opposite party as offered in the quotation and brochure.

(ii) to direct opposite parties to pay compensation of Rs.50,000/- towards delay in delivery of the product and for inconveniences caused due to inferior quality of gen set.

(iii) to pay litigation costs of Rs.2,000/- and

(iv) any other relief.

2. Version was filed by first opposite party stating that it is not the authorised dealer of second opposite party. According to first opposite party second opposite party is not a manufacturer of Diesel generating Set with acoustic enclosure. It is submitted that Kirloskar Oil Engine Ltd. is the manufacturer and that complaint is bad for non-joinder of the manufacturer. First opposite party states that there was no offer or promise to supply a Kirloskar Generating Set with acoustic enclosure (Kirloskar Green) and first opposite party has not supplied such a product. The promise was to supply the items stated as above in the quotation and that these items were delivered for a total consideration of Rs.1,53,000/-. The goods as per the quotation was supplied for the total price stated in the quotation. The goods supplied are strictly tot he order placed. That there was no promise to deliver the good within a particular date and so there was no delay. That complainant took delivery of the items after clearing payment without any objection on 06-6-2008. Opposite party denies the goods to be of inferior quality or having any defect. On 31-7-2008 complainant approached first opposite party requesting to replace the defective set assembled by him with an original Kirloskar (Kirloskar Green) 5 kva generator with acoustic enclosure. To this opposite party reciprocated that the set could be taken back only after deducting the expenses and loss and the complainant paying additional amount. The goods supplied to complainant have warranty and that complainant ought to have approached with the warranty card in case of any defect. Opposite party issued proper reply to the notice issued by complainant. The allegations are imaginary and concocted. That there is no deficiency in service or unfair trade practice on the part of first opposite party.

3. Second opposite party was deleted from party array as per orders in I.A.144/2009. Supplemental third opposite party was impleaded as per the orders in the petition filed by complainant. Notice was issued to supplemental third opposite party by registered post. The acknowledgement card did not return. Hence it was presumed that the notice was served. Third opposite party was absent and set exparte on 13-5-2009. No version filed by third opposite party.

4. Evidence consists of the affidavit filed by complainant and Exts.A1 to A9 marked for him. Evidence on the side of opposite party consists of the oral evidence of first opposite party who was examined as DW1. Exts.B1 and B2 marked for first opposite party. No evidence adduced for third opposite party.

5. Though vakalath was filed on behalf of the complainant along with the complaint, the case of complainant was conducted by himself. Opposite party was represented by his counsel.

6. The grievances of the complainant as brought out by the pleadings, materials on record and submissions made by him are summarized as follows:

(i) That complainant with a view to purchase Kirloskar Generating set with Acoustic enclosure (Kirloskar Green) placed order with first opposite party as per Ext.A1 quotation for the supply of components as under:

(a) TA1 Model Kirlosker make Air cooled Electric start 6 Bhp Diesel Engine.

(b) 5 kva Kirlosker make .8 Pf Alternator.

© Base frame, control panel Avm pads Etc.

(d) Exide make battery.

(e) Suitable Acoustic Enclosure for the above Engine and Alternator.

(ii) He is aggrieved that the generating set supplied by first opposite party differs in price and quality from that agreed in the quotation. He alleges that the generating set is defective and has poor quality in appearance and performance. It is also his specific case that the generating set does not match the quality in it's performance and appearance with the original (brand) Kirloskar generating set advertised by Kirloskar Company in its' commercial brochure.

(iii) It is his further submission that in Ext.A1 it was stated that first opposites party is the authorised dealer of Kirloskar generating set and so he believed that first opposite party was authorised to sell only original (brand item) Kirloskar Generating set. It is also his case that from the statement in Ext.A1 it cannot be understood that first opposite party was authorised to sell components and other machineries of Kirloskar. It is also submitted that by making the representation in Ext.A1 that first opposite party is authorised dealer of genuine (brand) Kirloskar generating set and thereafter by supplying a non-genuine Kirloskar generating set, first opposite party has cheated the complainant. That this act of first opposite party amounts to unfair trade practice.

(iv) That the goods though offered to be supplied before 26-5-2008, was supplied only on 06-6-2008 and the delay caused inconveniences to him.

7. Refuting the above allegations the contentions on the side of first opposite party are as follows:-

(i) First opposite party admits the offer and promise to supply the items specified in Ext.A1 quotation. It is his case that as per the quotation the offer and agreement was to supply components of a generating set which included Kirloskar Engine and Alternator. It is vehemently and consistently stated by first opposite party that there was no offer/promise to supply original (brand) Kirloskar generating set with acoustic enclosure. The components as quoted in Ext.A1 was supplied and taken delivery by complainant without any objection. That the components were assembled by complainant into a generating set.

(ii) That first opposite party is the authorised dealer of third opposite party (Kirloskar) and that there was no false representation in this regard. That first opposite party deals with supply of original (brand) Kirloskar generating set as well as components and machines of Kirloskar. That complainant had placed order for components of a generating set which was supplied to him strictly as per the quotation. Complainant had paid the agreed price of Rs.1,53,000/- and taken delivery of the items supplied. That first opposite party has not assembled the components. That first opposite party has not supplied any commercial brochure with picture of original generating set along with Ext.A1 quotation. After about two months, on 31-7-2008 complainant approached first opposite party stating the poor quality of the gen set assembled by him and wanted first opposite party to take it back and replace it with a brand Kirloskar generator set. This request was reciprocated by a letter issued to complainant in which opposite party stated that complainant will have to make good the loss and also make additional payment since the price of original (brand) Kirloskar generator 5 kva set is Rs.2,34,000/-. Complainant was not ready for this. That there is no unfair trade practice committed by first opposite party.

(iii) First opposite party has denied the goods to have any defect. The allegation that the goods are of inferior quality is also denied. It is specifically stated that first opposite party has not supplied a Kirloskar generating set but had supplied only components which was assembled by complainant. That as per quotation the total consideration agreed was Rs.1,53,000/- and that first opposite party has collected only this amount and that there is no variation of price.

(iv) That no specific date was fixed for delivery and that there was no delay.

 

8. On perusal of Ext.A1 it is crystal clear that the order placed by complainant was for components of a generating set. It is the case of complainant that Ext.A1 contained the logo of Kirloskar green original generator set and the emblem of the company. This together with the statement in Ext.A1 that first opposite party is the authorised dealer of Kirloskar generating set made him believe that first opposite party would supply Kirloskar (Green) original Generator set. It is true that Ext.A1 contains the logo and emblem of Kirloskar Company and generator. Ext.A1 is a quotation in the letter head of first opposite party. The statement at the bottom of the letter page (Ext.A1) is as under:

“Authorised dealer for Kirloskar Diesel Generating sets – 2 kva – 600 kva.”

 

9. Complainant laid much thrust on this statement. Though not supported by pleadings he contended that this statement amounted to false representation because opposite party did not deliver original Kirloskar Generating (Green) set but components of it. It is also his contention that from this statement a customer would not be able to understand that opposite party had authorisation to sell components of Kirloskar. This contention of the complainant that he believed that first opposite party would supply original Kirloskar (Green) generating set after placing order for supply of components of a generating set does not find favour with us. In our opinion this statement cannot lead anyone to presume that they will be supplied with original brand Kirloskar gen set even if they place order for components. Complainant is not an ordinary lay man. He is the Director/Principal of a reputed school. He has placed order for components of a generating set which included Kirloskar engine, and alternator and accessories. He has taken delivery of these items, cleared the payment and has assembled the components into a generating set. He has no case that opposite party delivered him an assembled generating set. He has no case that opposite party assembled it for him. For these reasons we cannot agree with his submission that the statement in Ext.A1 made him believe or misled him to believe that he would be supplied with original brand Kirloskar (Green) gen set even if he placed order for parts of a generator. Interestingly complainant has challenged first opposite party not to be an authorised dealer of third opposite party while cross examining him. IN page 5 of cross DW1 has stated,

“എനിക്ക് Kirloskar generator set വില്‍ക്കുവാന്‍ അംഗീകാരമില്ലെന്നും authorised dealer ആണെന്നു പറഞ്ഞ് പരാതിക്കാരനെ കബളിപ്പിച്ചുവെന്നും പറഞ്ഞാല്‍ ശരിയല്ല.”

But the admitted case of complainant in his pleadings as well as affidavit is that first opposite party is the authorised dealer of Kirloskar. This contradiction itself would cut the root of the veracity of such contentions put forward by him. Further first opposite party has categorically stated in cross examination that he possesses certificate of dealership of the manufacturer, Kirloskar. In page 2 first opposite party (DW1) states as under:

“ Kirloskar കംപനിയുടെ (OP3) parts വില്‍ക്കാനായി എനിക്ക് കംപനിയില്‍ നിന്നും certificate ഉണ്ട് . ആയത് dealership certificate ആണ്. Generator-ഉം generator- ന്‍െറ accessories-ഉം വില്‍ക്കുവാനുളള license ആണ് അത്.”

10. It is for the customer/complainant to decide whether he intends to purchase an original Kirloskar generator set or parts of the gen set which has to be assembled later. The quotation placed is admittedly for parts and therefore first opposite party is liable to supply only the parts quoted for and not an original generating set. It is common knowledge that brand company products as well as assembled products are available for purchase. The price of a brand product is usually higher than the gen set made by assembling components. Brand products are costliers due to the quality guaranteed by the company. Such products also have after sales service and replacement warranties. When components are assembled by customer usually it is cheaper than the brand product. Such products will have only the quality of the due consideration paid for it.

11. When there is huge price variation, such assembled products cannot be expected to have the finish/appearance or the quality of a brand product. Complainant has placed order for components and taken delivery of the same and has assembled it; he cannot later turn around and say that the assembled product does not match in it's appearance and performance with the brand product advertised in commercial brochure. Complainant has no case that first opposite party had supplied the commercial brochure along with Ext.A1 quotation. It can never be accepted that complainant believed to receive a Kirloskar brand original generator set after placing order for components of a gen set. For the above reasons we are able to conclude that first opposite party has supplied the goods as per quotation, and that there was no misrepresentation. In our view, it is of paramount importance that while adjudicating consumer grievances the traders and service providers also have to dealt justly and fairly. During pendency of the case parties were given opportunity to explore the possibilities of an amicable settlement. But complaint was amenable only to replacement with a 5 kva original Kirloskar gen set at the price on the date of transaction.

12. The second point for analysation is the allegation regarding defect of the goods supplied. Interestingly complainant has not alleged any specific defect to the goods supplied. The allegation is vague. It is his case that gen set is of inferior quality and has poor performance. As already stated the assembled product cannot be expected to match the quality of brand original Generator. No steps have been taken by the complainant to prove the defect if any by inspection and report of an expert. Though complainant filed a petition I.A.28/09 to appoint a commissioner, this petition was dismissed in view of the endorsement made by complainant not pressing the petition. Even while cross examining DW1 the complainant has not alleged any specific defect to the goods. The examination-in-chief made through affidavit by complainant remains unchallenged. But the evidence adduced by this affidavit does not establish any case pointing any particular defect to any item supplied. The allegation is nebulous stating that the assembled produce is of inferior quality in it's performance and appearance. He has no case that the product became defective and needed repair even a single time. For these reasons we are unable to hold that the goods supplied has any defect.

13. Another contention raised by complainant is that the price of the goods supplied varied from it's price stated in the quotation. Complainant relied upon Exts.A2, A3 and A4 which are issued towards purchase of components. The price of each item noted in Ext.A1 quotation does vary. It is also the case of complainant that since there is variation in price, the goods supplied also vary. On behalf of opposite party it was submitted that the agreement was to deliver the goods for a total consideration of Rs.1,53,000/- and that only this amount was collected from complainant though price of each item differed later. It is seen specifically stated in Ext.A1 that the total price agreed by parties is Rs.1,53,000/-. Moreover, complainant has paid this amount without objection and taken delivery of the goods. So we do not consider that the difference in price quoted for each item in quotation is material, because the total consideration agreed has not varied. Further grievance of complainant is regarding delay in delivery of the goods. In Ext.A1 it is stated that goods are to be delivered on 26-5-2008. The goods were delivered only on 06-6-2008. But complainant has not adduced any iota of evidence as to what is the inconvenience or loss incurred by him due to the small delay. Hence the contention is untenable.

14. Complainant has alleged that opposite party did not issue proper sales bill for one of the item supplied, and that this amounted to unfair trade practice. It is seen that Ext.A4 receipt in the letter pad of first opposite party is issued against the sale of one of the item. In cross DW1 stated that proper bill was not issued on the request of the complainant to avoid issuance of bill. This explanation is in no way justifiable or acceptable. Consumers are entitled to receive proper sales bill. We find that the non issuance of proper sales bill amounts to unfair trade practice and that proper direction in this regard has to be issued to first opposite party.

15. From the foregoing discussions we are able to conclude that complainant has failed to establish a case in his favour regarding the goods supplied to him.

16. In the result we dismiss the complaint with direction to first opposite party to stop the unfair trade practice of not issuing proper bill to customers. Parties are directed to suffer their respective costs.

Dated this 16th day of June, 2009.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER

APPENDIX

Witness examined on the side of the complainant : Nil

Documents marked on the side of the complainant : Ext.A1 to A9

Ext.A1 : Quotation dated, 15-5-2008 for the supply of components.

Ext.A2 : Invoice dated, 13-11-2007 from opposite party to complainant.

Ext.A3 : Invoice dated, 13-11-2007 from opposite party to complainant.

Ext.A4 : Quotation dated, 06-6-2008 for the supply of components.

Ext.A5 : Postal acknowledgement card dated. 04-8-2008 received from

opposite party to complainant.

Ext.A6 : Request dated, 31-7-2008 from complainant to opposite party.

Ext.A7 : Quotation dated, 02-9-2008 for the supply of 5 kva Diesel Generating Set.

Ext.A8 : Quotation dated, 02-9-2008 for the supply of 5 kva Diesel Generating Set.

Ext.A9 : Terms of supply.

Witness examined on the side of the opposite parties : DW1

DW1 : Sri. Unnikrishnan P.K., first opposite party.

Documents marked on the side of the opposite parties : Ext.B1 and B2

Ext.B : Invoice dated, 13-11-2007 for Rs.43,398/- from opposite party to complainant.

Ext.B2 : Invoice dated, 13-11-2007 for Rs.21,700/- from opposite party to complainant.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER