BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

C.C No. 79/2006 Filed on 14.03.2006

Dated : 30.06.2010

Complainant:

A.K. Abbas, Proprietor & Managing Director, Professional Power Laundry, Dry cleaners, Professional Garden, Vettampally, Nedumangadu.

(By adv. M. Shajudeen)

Opposite party:

Ibrahimkutty, M/s ITR Engineering Company, Adooparambu, Muvattupuzha, Ernakulam District.

(By adv. Sasthamangalam R. Jayakrishnan)

This O.P having been heard on 08.04.2010, the Forum on 30.06.2010 delivered the following:

ORDER

SMT. BEENAKUMARI.A: MEMBER

Brief facts of the case are as follows: Complainant is the Managing Director of Professional Power Laundry, Nedumangadu. Complainant has entered into a sale agreement on 03.03.2005 with the opposite party regarding the delivery of Mahindra generator MILJAN 50 K VA for the inauguration of the above said laundry unit. Complainant had made advance payment for the above said generator as per quotation No. ITR/10G/E/124/05 on 04.03.2005 for an amount of Rs. 1,00,000/- by way of cheque of the Federal Bank Ltd., Peroorkada Branch. As per the terms of agreement the opposite party has agreed to supply the generator on 26.03.2005 and the complainant has fixed the inauguration of the laundry unit on 11.04.2005. But the opposite party has failed to deliver the generator on 26.03.2005 and the opposite party has intimated the complainant that an accident occurred during the way of transit. In the absence of the above said machine complainant was inclined to conduct the inaugural ceremony on the day fixed. All the labourers deputed by the complainant were present, but the complainant was unable to function the said unit without the help of generator. Hence the complainant sustained financial loss and mental agony. By the repeated demands of the complainant the opposite party has delivered the above said machine on 28.04.2005 in a defaulted condition. But the opposite party has promised that he will rectify all the defects within one week but he had failed to do so. Meanwhile the opposite party has received Rs. 1,00,000/- on 24.05.2005 from the complainant on SBT, Peroorkada branch and he closed the entire payment. By the act of the opposite party on 11.01.2006 complainant sent a lawyer's notice to the opposite party dated 05.01.2006 and it was acknowledged by the opposite party. On 17.01.2006 the opposite party sent a reply notice denying all the allegations. Complainant being a consumer the opposite party is liable to pay the compensation which he has agreed to pay and it amounts to deficiency of service. The act of the opposite party is highly illegal, improper and the wilful act of opposite party constitute deficiency of service to the complainant and thereby sustained damages both physical, mental and financial loss. Hence this complaint.

Opposite party filed version contending the allegations levelled against them. Opposite party states that as per the terms of the sale agreement the opposite party despatched the generator with acoustic enclosure and accessories on 10.04.2005 in a vehicle bearing KL-05 A 221 but unfortunately the vehicle met with an accident on the same day at about 9.15 p.m and so there occurred some delay in delivering the generator. The complainant requested the opposite party to adjust Rs. 50,000/- from the total bill amount towards the expense incurred by the complainant for hiring the generator for the inaugural function of the laundry and the period till the installation and functioning of a new generator supplied by the opposite party and the opposite party agreed for the same. While giving the order with the opposite party for the supply of generator the complainant had agreed to pay a total amount of Rs. 3,00,000/- as the price of the generator with acoustic and accessories and the complainant had paid only an amount of Rs. 1,00,000/- as cheque as advance. Now after deducting an amount of Rs. 5,000/- as agreed by the opposite party an amount of Rs. 1,95,000/- is due to the opposite party. Though the opposite party repeatedly demanded the complainant for the payment of balance amount due to the opposite party, complainant has not turned up. The claim of the complainant is baseless and without any legal basis. Hence the opposite party prayed for the dismissal of the complaint.

In this case both parties filed proof affidavits and examined them as PW1 and DW1. From the complainant's side complainant has been examined as PW1 and examined one witness as PW2. Both parties filed documents to prove their contentions.

Points that would arise for consideration are:-

1. Whether there is deficiency in service or unfair trade practice occurred from the side of opposite party?

2. Whether the complainant is entitled to get the reliefs and costs?

3. Whether the complainant in this case is a consumer under Consumer Protection Act?

Points (i) to (iii):- As per the terms of the agreement the opposite party agreed to supply the generator to the complainant on 26.03.2005 and the complainant has fixed the inauguration of the laundry unit on 11.04.2005. But the opposite party has failed to deliver the generator on 26.03.2005 and the opposite party has intimated the complainant that an accident occurred during the way of transit. The case of the complainant is that due to the absence of the generator he was unable to function the said unit. Hence the complainant sustained financial loss and mental agony. The opposite party argued that there was no negligence or wilful default from the side of opposite party to deliver the generator in time. As per the terms of the agreement they despatched the generator on 10.04.2005 in a vehicle, but unfortunately the vehicle met with an accident and so there occurred some delay in delivering the generator. For that delay from their side the opposite party agreed to adjust Rs. 5,000/- from the total bill amount towards the expense incurred by the complainant for hiring the generator for the functioning of the laundry. As per the opposite party the complainant has to pay an amount of Rs. 1,95,000/- as the balance amount of the generator, but the complainant has not turned up to pay the amount. As per the complainant the opposite party has to pay Rs. 1,18,000/- to the complainant as the financial loss due to the non-delivery of the generator within the stipulated time.

To prove his contentions the complainant has filed proof affidavit and examined him as PW1. He has produced 8 documents which were marked as Exts. P1 to P8. Ext. P1 is the cheque dated 04.03.2005 of Federal Bank for an amount of Rs. 1,00,000/- in the name of ITR Engineering Company. Ext. P2 is the cheque dated 24.05.2005 of SBT for an amount of Rs. 1,00,000/- in he name of Ibrahimkutty. Ext. P3 is the copy of advocate notice issued by the complainant to the opposite party on 05.01.2006 demanding Rs. 1,90,000/- as damages for the mental agony and financial loss sustained by him due to the delay in delivering the generator. In this document the complainant clearly stated that he had paid Rs. 1,00,000/- as advance to the generator. Nowhere in this notice he stated that he had paid further an amount of Rs. 1,00,000/- to the opposite party as per the Ext. P2 cheque. As per Ext. P2, the cheque date is 24.05.2005, the date of notice is 05.01.2006. Ext. P4 and P5 are the postal receipts of the Ext. P2 notice. Ext. P6 is the copy of reply notice issued by the opposite party to the complainant. In that reply the opposite party stated that as per the request of the complainant they will adjust Rs. 5,000/- for the total bill amount towards the expenses incurred by the complainant for hiring the generator for the inaugural function of the laundry and the period till the installation and functioning of the new generator supplied by them. Through Ext. P6 reply opposite party demanded the payment of Rs. 1,95,000/- with 12% interest per annum from the date of delivery of the generator. Ext. P7 is the copy of the cheque dated 24.05.2005. In the back side of the cheque it is seen written “Ibrahimkutty dated 25.05.2005.”. In that document name of person has been written as ITR Engineering company and it has been striken out and written as Ibrahimkutty. Ext. P8 is the statement of account of the complainant of SBT. As per this document on 25.05.2005 cash cheque No. 021802 paid to CH. The Bank Manager, SBT, Peroorkada has been examined as PW2. At the time of examination the bank Manager stated that as per Ext. P7 cheque No. 021802 the amount paid to Ibrahimkutty, but the opposite party contended that the opposite party did not get this amount or get this cheque. As per Ext. P7 cheque, the complainant issued that cheque in the name of company and that amount has been received by the opposite party. But the opposite party stated that he did not get the amount of Rs. 1 lakh as per Ext. P7 cheque.

In this case there is no wilful negligence or default or deficiency in service occurred from the side of opposite party. As per the agreement the opposite party has despatched the generator and accessories on 10.04.2005 in the vehicle bearing KL-05 A 221, but the vehicle met with an accident and there has been some delay occurred in delivery of the generator. There is no negligence or wilful fault from the side of opposite party in that incident. To prove that the opposite party has produced the FIR and the FIR was marked as Ext. D1. Ext. D2 is the letter dated 15.08.2005 issued by the complainant to the Malayalam Ltd. Nowhere in the document he has stated that the generator has any defect, the letter was for informing the opposite party to do the service in time.

From the evidences and documents adduced by both parties we conclude that there is no deficiency in service from the side of opposite party. In this case the opposite party has the right to realize the balance amount from the complainant and as per the adjustment of their settlement the complainant has the right to deduct Rs. 5,000/- from the price of generator. And moreover nowhere in the complaint the complainant has stated that he is running this business for his livelihood. He has admitted that there were 30 staffs at the time of filing the complaint. As the complainant started the laundry firm for commercial purpose, the complainant in this case is not a consumer as per the Consumer Protection Act. From the above said discussions and from the evidence we find that the complaint is not maintainable and there is no deficiency in service from the side of opposite party. Hence the complaint is dismissed.

In the result, the complaint is dismissed.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 30^th day of June 2010.

BEENAKUMARI. A : MEMBER

G. SIVAPRASAD : PRESIDENT

S.K. SREELA : MEMBER

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C.C. No. 79/2006

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - A.K. Abbas

PW2 - K. Sasidharan

II COMPLAINANT'S DOCUMENTS :

P1 - Photocopy of cheque dated 04.03.2005 of Federal Bank for an

amount of Rs. 1,00,000/-.

P2 - Photocopy of cheque dated 24.05.2005 of SBT for an

amount of Rs. 1,00,000/-.

P3 - Postal receipt dated 11.01.2006

P4 - Copy of advocate notice issued by the complainant to opposite

party on 05.01.2006

P5 - Acknowledgement card

P6 - Copy of reply notice dated 17.01.2006

P7 - Copy of the cheque dated 24.05.2005

P8 - Copy of statement of account

III OPPOSITE PARTY'S WITNESS :

DW1 - Ibrahimkutty

IV OPPOSITE PARTY'S DOCUMENTS :

D1 - Copy of FIR

D2 - Copy of letter dated 15.08.2005 issued by the complainant.

PRESIDENT