ORDER
Complaint under Sec.12 of the CPA 1986 as amended upto date
Ms. Nipur Chandna, Member
Complainant had purchased from the OP the following three survey equipments as described below:-
S. No. | Description | Units | Qty. | Unit Price (INR) | Amount (INR) |
1. | Digital Level EL 302A (FOIF Make) Electronic Measurement + 0.7 mm, Range-2 105 m, Measurement-Single, Average, Tracking, Clear Objective Aperture-45 mm Shortest Focus Distance 1.0 m, With all Accessories-Fiber, Bar coded staff, battery, Tripod, Plum Bob, User Manual | 3 | 3 | 79047.62 | 237142.86 |
2. | Spare Bar Code | 3 | 3 | 4761.90 | 14285.71 |
TOTAL INCLUDING OTHER CHARGES | | | | | 264000.00 |
It is alleged by the complainant hat while selling the aforesaid equipment, the OP company had also given a warranty of two years on the equipment and had assured that it will provide training to the staff of the complainant after delivery of the equipment.
It is further alleged by the complainant that the OP delivered only one machine on 30.12.2013 and the remaining two digital levels were delivered on 16.1.2014. It is further alleged by the complainant that none of the above said machines worked satisfactorily since beginning and it has the following major problems:-
- Instruments suppose to meet accuracy around 0.7 mm per KM but the results are too high.
- The instruments are working very slow and hanging frequently.
- Data not downloading from the equipment.
It is alleged by the complainant that on his request the engineer of the OP company visited on 28.12.2013 and 23.1.2014 but failed to remove the above referred problems.
It is alleged by the complainant that despite various requests, reminders and mails nothing has been done on the part of OP to make the above machines functional.
It is alleged by the complainant that as the OP did not respond to his requests, he sent one digital equipment through courier on 10.2.2014 to the OP, but OP failed to take any action.
It is further alleged by the complainant that when the OP did not respond to his mails, reminder etc. then he sent a legal notice to the OP on 17.4.2014, but all in vain.
The complainant therefore approached this Forum for the redressal of his grievance.
Notice of the complaint was sent to the OP through registered AD post dated 18.3.2015. The OP had put in its appearance on 13.5.2015 but did not take any further part in the proceedings and was therefore ordered to be proceeded exparte.
Complainant has filed his evidence by way of affidavits, wherein he has corroborated the contents of the complaint.
We have heard arguments advanced at bar and have perused the record.
The complainant has placed on record copy of purchase order dated 19.12.2013. Copy of certificate of warranty dated 26.12.2013, copy of Delivery challan dated 26.12.2013, copies of e-mails sent by the complainant to the OP. He has also placed on record the copy of legal notice dated 17.4.2014, which he had sent to the OP . The OP had failed to comply with or refute the allegations levelled in the notice. In number of cases courts have held that where serious allegations are made against a noticee in a notice and the allegations are not refuted and the notice is simply ignored, a presumption may be drawn that the allegations made in the notice are true. (See Kalu ram v/s Sita Ram 1980 RLR ( Note 44) and metro Polis travels v/s Sumit Kalra & Another 98 (2002) DLT 573 (DB).
The present case is one where a presumption needs to be drawn in favour of the complainant . Even otherwise there is no reason to disbelieve the affidavit filed on record by the complainant.
From the un-rebutted testimony of the complainant as well as the document placed a record, we are convinced that the story put forth by the complainant is true, that the OP company had delivered the defective equipments to the complainant which were defective in nature and had not worked properly from the beginning.
In another case title Col. Ravinder Pal Brar v/s Asian Motors, FA 73/06 decided on 28.9.2007 the Hon’ble Stte Commission held:-
The dispute between the Consumer and the service providers and trader should be ended once for all by calling upon the trader and manufacturer to refund the cost of goods with adequate compensation as the possibility of the new goods also being defective and not being up to the satisfaction of the consumer cannot be ruled out and in that case parties will be relegated to square one and will suffer another fact of litigation.
In the light of the above said judgment we hold OP guilty of deficiency in service and direct it as under:
- To pay to the complainant a sum of Rs.2,64,000/- ( Rupees Two Sixty Four Thousand only ) as a cost of equipment alongwith interest @ 9% from the date of filing of complainant i.e. 11.11.2014 till payment.
- To pay to the complainant a sum of Rs.20,000/-(Rupees Twenty Thousand only) for pain and mental agony suffered by him.
- Pay to the complainant a sum of Rs.5,000/- (Rupees Five Thousand only) as a cost of litigation.
The OP shall pay this amount within a period of 30 days from the date of this order failing which they shall be liable to pay interest on the entire awarded amount @ 10% per annum. If the OP fails to comply with this order, the complainant may approach this Forum for execution of the order under Section 25/27 of the Consumer Protection Act.
Copy of the order be made available to the parties as per rule.
File be consigned to record room.
Announced in open sitting of the Forum on.....................
