Sikkim

East

cc/05/2020

Kamala Pradhan - Complainant(s)

Versus

Greaves cotton Limited - Opp.Party(s)

19 May 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, GANGTOK, SIKKIM

 

 DATED: 19.05.2023

 

                          CONSUMER CASE NO. 5 OF 2020

 

Smt. Kamala Pradhan,

Through her constituted attorney, Smt. Divyani Pradhan, 

Wife of Vivek Rai,

Resident of Hotel Yavachi, Church road, Arithang,

Gangtok, Sikkim.                               …              COMPLAINANT.

 

Versus 

 

1.     Greaves Cotton Limited,

    Through the Managing Director, 

    Unit no. 701, 7th floor, 

    Tower 3, Equinox Business Park, 

    L.B.S Marg, Kurla West, Mumbai – 400070.    

 

2.     Dee Power Corporation,

    Through the Managing Director, 

    22 C.R Avenue,  

    Kolkata – 700070, West Bengal.          …      RESPONDENTS.

 

For the complainant: Mr. Saurav Singh, Learned Counsel.   

For Respondent No.1: Mr. Sushant Subba, Learned Counsel.  

For Respondent No.2: Mr. Ranjit Prasad, Learned Counsel.

 

CORAM:

1. K.W.Bhutia, President

2. Anita Shilal, Member

3. Rohit Kumar Pradhan, Member

 

Per: K.W.Bhutia, President

 

O R D E R

    This is to decide a complaint filed by the complainant through her constituted attorney under Section 35 of the Consumer Protection Act, 2019 in relation to Greaves Powered 62.5 KVA diesel generator, which the respondents had agreed to sell and deliver. 

2.    The case of the complainant is that she owns a laundry business at Namli and her daughter (constituted attorney) looks after the daily affair of the business. As the complainant was in requirement of electricity back-up for the running washer and drying machines of the establishment, she decided to purchase a diesel generator (Greaves powered 62.5 KVA). In pursuance thereof, in February 2019, the constituted attorney for the complainant made telephonic enquiry with respondent no.1 about the price and procedure for making the said purchases. On 21.02.2019, she received an email from respondent no.2 informing about the credentials of their company (being distributor of respondent no.1). On 25.01.2019, she received an email from respondent no.1 with the revised quotation for Greaves powered 62.5 KVA diesel generator. 

3.    It is the case of the complainant that she was asked by a staff of respondent no.1 (through WhatsApp conversation between 01.05.2019 and 02.05.2019) to deposit advance of ₹ 1,53,000 into the account of respondent no.2. Accordingly, the advance amount of ₹ 1,53,000 was deposited by the constituted attorney vide cheque no. 000006 from her Bank account no. 11401000001263 (Punjab and Sind Bank) into the Bank account no. 03822560007580 (HDFC Bank Ltd. 31GC Avenue, Kolkata) of respondent no.2. The second payment of ₹ 3,57,000 was made by the constituted attorney on 01.06.2019 into the same account of respondent no.2, through RTGS. She was assured by respondent no.2 that the generator set would be delivered at Ranipool within 3-4 working days. When the consignment was not delivered even after the lapse of 15 days, she contacted both the respondents on 19.06.2023. She was assured that it would be delivered soon but the actual delivery was never made despite full payment for the DG set.

4.    It is further the complainant's case that on 20.06.2019, she sent an email to both the respondents asking for refund of her money and cancellation of the order but to no avail. She also communicated to the respondents the difficulties being faced by her and the loss of her business due to electricity failure. When she did not get any response, legal notices were also sent to the respondents but the grievance of the complainant remained unresolved. Hence, prays for the following reliefs:-

(i)    Refund of the total payment of ₹ 5,10,000;

(ii)    Pendente lite interest @ 15% per annum;

(iii)    monthly loss of ₹ 1,92,000 due to lack of electricity back-up;

(iv)    ₹ 1,00,000 as compensation for harassment and deficiency of     service; and

(v)    ₹ 30,000 as lawyers fees and cost of proceedings.

5.    Respondent no. 1, filed their written objection disputing the complainant’s claim. It was stated that though there is dealer sales and service agreement between respondent no.1 and 2, the respondent no.2 has exceeded its authority and has been involved in fraudulent activities. FIR no. 28 dated 22.01.2022 has also been filed by respondent no.1 against respondent no.2 at Bowbazar Police Station, Kolkata. Further, a bank guarantee of ₹ 9 crores has been imposed upon respondent no.2 in arbitration case before the Hon’ble Bombay High Court. That respondent no.1 has not received any payment from the complainant. 

6.    Respondent no.2 on the other hand filed their response stating in the circumstances under which they were chosen as the distributor for the State of West Bengal. That after respondent no.1 received an order for the said DG set from the complainant, a request was made by respondent no.1 to respondent no.2 that the payment would be routed to the Company through the distributor (respondent no.2). After receiving the advance payment from the complainant, respondent no.1 kept assuring that the DG set would be delivered and subsequently told them that M/s United Diesel of Siliguri had been identified by the Company to deliver the DG set to the complainant. Accordingly, on 24.05.2019 respondent no.2 transferred the advance of ₹ 1,50,000 received from the complain to M/s United Diesel of Siliguri.

7.    ISSUE FRAMED:

(1)    Whether the complaint is maintainable?

(2)    Whether the respondents deliberately and/or negligently failed to deliver the concerned 62.5 KVA diesel generator set to the complainant?

(3)    Whether the complainant has any cause of action against respondent no.2?

(4)    Whether there has been any deficiency in service on the part of the respondents?

(5)    Whether the complainant is entitled to the reliefs prayed for by her?

8.    The vital question which arise in this case is posed at issue no.(2) i.e. whether the respondents deliberately and/or negligently failed to deliver the concerned 62.5 KVA diesel generator set to the complainant? 

9.    On this issue, Learned Counsel for the complainant would submit that the constituted attorney of the complainant has filed the relevant documents (Exhibit-8 to 13) and has also deposed about the communication which had occurred between her daughter and the respondents. That these evidence would clearly show that even after payment of the entire amount for the DG set, yet it remained undelivered. On the contrary, Learned Counsel for the respondents would contend (individually) that there is no correspondence made by the complainant with any one them. 

10.    It would be relevant to note that apart from blaming each other for the mistake, the respondents have not actually denied receipt of intent from the constituted attorney for the complainant for purchase of 62.5 KVA diesel generator set. This is palpable from the respective written objections filed by the respondents. It would be seen from the letter dated 25.01.2019 (Exhibit-6) that respondent no.1 had sent certain terms and conditions for making purchase of the DG set. We have noticed from the email dated 21.02.2019 (Exhibit-4) and 25.02.2019 (Exhibit-5) that respondent no.1 had offered the quotation for the said DG set. The communication (WhatsApp) between constituted attorney of the complainant and the agent of respondent no.2 (Exhibit-7) would show that respondent no.2 had sent the Bank account details to the constituted attorney seeking advance of ₹ 1,53,000 for the said DG set. It would be seen that on 04.05.2019 (Exhibit-8), the constituted attorney had deposited a sum of ₹ 1,50,000 as advance payment vide cheque no. 000006 drawn from her Bank account no. 11401000001263 in favour of respondent no.2.

11.    It is seen from the NEFT receipt dated 01.06.2019 (Exhibit-9) that an additional sum of ₹ 3,57,000 was deposited in the Bank account of respondent no.2 by the constituted attorney. WhatsApp communication between the constituted attorney and the agent of respondent no.2 (Exhibit-11) would also show that respondent no.2 had assured that the DG set would reach the complainant within a few days. It would be discernable from these communication that the constituted attorney of the complainant was venting out her disappointment for not receiving the product, despite payment of the full amount.

12.    We have noticed that on 20.06.2019 (Exhibit-12) and 29.09.2019 (Exhibit-13) the constituted attorney had informed both the respondents about non-delivery of DG set, despite full payment. Further, the legal notices dated 04.10.2019 (Exhibit-14) and 06.02.2020 (Exhibit-16 and 19) would show that respondent no.1 was clearly informed about this matter. Yet, there was no response from the respondents. The constituted attorney of the complainant has confirmed these facts in her evidence (Exhibit-22). 

13.    The admission made by the witness for respondent no. 1 would reveal that Shri Avishek Paul was the Assistant Manager (Sales and Marketing) and that the email address appearing in Exhibit-4 and 5 belongs to him. Further, the admission made by the witness for respondent no. 2 would reveal thus: “It is true that Divyani Pradhan, daughter of the complainant had deposited a sum of ₹ 1,53,000 on 04.05.2019 and ₹ 3,57,000 on 01.06.2019 totaling to ₹ 5,10,000 in the bank account of my firm..”

14.    The above evidence would establish that respondent no.2 had indeed received a total sum of ₹ 5,10,000 from the constituted attorney of the complainant, for delivery of Greaves powered 62.5 KVA diesel generator set. What has transpired between the respondents for non-delivery of the product to the complainant despite receiving full payment is not known since there is no evidence or documents on record to substantiate their claims. Hence, the question whether the respondents deliberately and/or negligently failed to deliver the concerned 62.5 KVA diesel generator set to the complainant is answered in affirmative. 

15.    It is clear from the evidence discussed above that the complainant has not received the product despite making full payment. Financial loss and mental agony undergone by the complainant and her constituted attorney could be gauge from the communications made by her constituted attorney. In the light of the findings in issue no.(2), issue no. (4) – i.e. whether there has been any deficiency in service on the part of the respondents is answered in affirmative. 

16.    Issue no. (1) and (3) will be taken up together since the questions involved in both the issues are similar. Learned Counsel for the complainant, basing his argument on the definition of the term ‘consumer’ defined under Section 2 (7) of the Act, would contend that the complainant is a consumer within the meaning of this Act. On this point, reliance was placed in decision of this Commission passed in Mr. Anand Thirani v. Gati Kintetsu Express Pvt. Ltd. and Another, Consumer Case No. 5 of 2019. 

17.    Learned Counsel for the complainant would also contend that the constituted attorney of the complainant is entitled to file the present complainant on behalf of her mother. In this regard, reliance was placed in the case of Jagannath Mutreja v. Uttar Pradesh Awas Evam Vikas Parishad and Another, Revision Petition No. 4516 of 2014 (National Consumer Disputes Redressal Commission) and Shri Subhash Ramprakash Khanna v. The New India Assurance Co. Ltd., First Appeal No. A/11/944 (State Consumer Disputes Redressal Commission, Mumbai).  

18.    Learned Counsel for respondent no.1 would contend that the constituted attorney is not a ‘consumer’ within the meaning of the Act. Learned Counsel for respondent no.2, on the other hand  would contend that there is no communication between them and the complainant to make them liable for the fault of respondent no.1. That the constituted attorney has admitted under cross-examination that there is nothing on record to show that the complainant had availed any services from respondent no.2. Further, there was no deficiency of services on the part of respondent no.2. Reliance was placed in the case of SGS India Ltd. v. Dolphin International Ltd., (1994) 4 SCC 225. 

19.    In this regard, we do not find any force in the contention of the respondents that the complaint would not lie simply because it has been filed by the constituted attorney. On the contrary, it would be seen from the general power of attorney (Exhibit-1) executed by the complainant that she has authorized her daughter (constituted attorney) to run the business and represent her in any Courts/tribunals/. This was done so due to her old age and the fact that she cannot personally run the laundry business as she lives in Legship. It is well settled that by the power of attorney, the principal empowers an agent to do some act on behalf of the principal which otherwise could only be done by the principal. The authorized attorney is therefore, entitled to file and pursue the present complainant. In fact, the attorney will step into the shoes of the complainant and the complainant will be maintainable. The legal position is clear from re: Jagannath Mutreja  relied by the complainant (supra). 

20.    Further, only because there is no written communication between the constituted attorney and respondent no.2 will not absolve them from the liability. As discussed at paragraph 13 (above), the witness for respondent no. 2has clearly admitted that the daughter of the complainant (constituted attorney) had deposited a sum of ₹ 1,53,000 on 04.05.2019 and ₹ 3,57,000 on 01.06.2019 totaling to ₹ 5,10,000 in the bank account of their firm. Therefore, issue no. (1) and (3) are answered in affirmative. 

RELIEF:

21.    In view of our findings above, the complainant is entitled to the reliefs as under:-

(i)    Respondent no.2 shall refund to the complainant the entire amount of ₹ 5,10,000 (Rupees Five Lakhs Ten Thousand only);

(ii)    Respondent no.1 and 2 will jointly pay a sum of ₹ 1,50,000 (Rupees One Lakh Fifty Thousand only) to the complainant as compensation for deficiency of services/harassment and loss of business; and

(iii)    Respondent no.1 and 2 will jointly pay a sum of ₹ 30,000 (Rupees Thirty Thousand only) to the complainant as cost/lawyers fees.

(iv)    The above-mentioned amount shall be paid with interest @ 10% per annum from the date of filing of this complaint (i.e. 24.11.2020) until full realization. Order accordingly.

 

      (Anita Shilal)               (Rohit Kumar Pradhan)                     (K.W.Bhutia)             

         Member                                    Member                          President

 

         

WITNESSES EXAMINED BY THE COMPLAINANT:

1.    Divyani Pradhan              -    CW-1.

WITNESSES EXAMINED BY RESPONDENT NO.1:

1.    Debojit Mondal            -    R1/1.

WITNESSES EXAMINED BY RESPONDENT NO.2:

1.    Soumik Ghose            -    R2/1.

DOCUMENTS EXHIBITED BY THE COMPLAINANT:

1.    Exhibit 1        -     Original power of attorney

2.    Exhibit 2        -    Original trade licence

3.    Exhibit 3       -    Original registration of firm

4.    Exhibit 4        -    Print-out of email

5.    Exhibit 5      -    Print-out of email

6.    Exhibit 6      -    Print-out of quotation

7.    Exhibit 7        -           Print-outs of WhatsApp conversations

8.    Exhibit 8       -    Copy of cheque and deposit slip

9.    Exhibit 9        -    Original bank RTGS slip

10.    Exhibit 10         -    Copy of accounts statements

11.    Exhibit 11      -    Print-outs of WhatsApp conversations

12.    Exhibit 12      -    Print-out of email dated 20.06.2019

13.    Exhibit 13      -    Print-out of email dated 27.06.2019

14.    Exhibit 14      -    Copies of legal notice dated 04.10.2019

15.    Exhibit 15      -    Original postal receipt

16.    Exhibit 16      -    Copy of legal notice dated 06.05.2020

17.    Exhibit 17      -    Original postal receipt

18.    Exhibit 18      -    Copy of postal tracking/delivery report

19.    Exhibit 19      -    Copy of legal notice dated 06.02.2020

20.    Exhibit 20      -    Postal receipt

21.    Exhibit 21      -    Copy of postal tracking/delivery report

22.    Exhibit 22      -    Certificate-affidavit u/s 65B of IE Act, 1872

23.    Exhibit 23      -    Evidence-on-affidavit of CW-1

 

DOCUMENTS EXHIBITED BY RESPONDENT NO. 1:

1.    Exhibit A      -    Attested copy of dealer sales and service                 agreement

 

2.    Exhibit B      -    Attested copy of FIR

3.    Exhibit C      -    Attested copy of order/judgment dated                 29.01.2020

 

4.    Exhibit D      -    Evidence-on-affidavit of R1/1

DOCUMENTS EXHIBITED BY RESPONDENT NO. 2:

1.    Exhibit R2/1      -    Evidence-on-affidavit of respondent no.2.

 

(Anita Shilal)                 (Rohit Kumar Pradhan)               (K.W.Bhutia)             

      Member                                    Member                       President