CONSUMER DISPUTES REDRESSAL FORUM – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110 016
Case No.184/2006
LATE SH. JAI SINGH
(THROUGH LEGAL HEIRS)
- MRS. KAMLA DEVI(WIFE)
- MR. SATPAL YADAV (SON)
- MR. RAJ KARAN YADAV (SON)
- MR. AJAY YADAV (SON)
ALL RESIDENT OF:-
RZ-101, GALI NO.2, KAILASH PURI EXTN.
30 FEET ROAD, STREET NO.8,
PALAM COLONY, NEW DELHI-110045
…………. COMPLAINANT
Vs.
JAY CEE ENTERPRISES PVT. LTD.
THROUGH MR. J.C. MALHOTRA,
A-61/1, OKHLA INDUSTRIAL AREA, PHASE-II,
NEW DELHI-110020
…………..RESPONDENT
Date of Order:09.01.2019
O R D E R
A.S. Yadav - President
This complaint under Section 12 of the Consumer Protection has been filed by Shri Jai Singh, the complainant herein, against Jay Cee Enterprises Pvt. Ltd., alleging that the complainant being a semi-literate person did not have any source of income, nor was he having any sufficient funds to start any business. As he was employed in an embroidery factory at a very meager salary, in order to earn his livelihood, he started his own unit under the name of Kamla Craft. He thus came in contact with the OP at an exhibition held at Pragati Maidan New Delhi, and indicated his intention to purchase a Chinese made embroidery machine . It is further stated that the total cost of the said machine was stated to be Rs.7.5 lakhs on the basis of High Seas Sales Agreement and thus no sales tax is applicable on the said cost of the machine. The complainant placed the order for the said machine and paid an advance of Rs.2,00,000/- vide receipt no.15621 and 16076. The price of the said machine was stated to be inclusive of seven sets of frames along with 2% of spare-parts, and two years warranty i.e. one year by the manufacturer and one year by the OP. The machine was agreed to be delivered in 45-60 days. It is stated that the OP failed to deliver the machine within the promised period and was delivered after a lapse of 5-1/2 months instead of two months and thus the complainant had to suffer heavy financial loss on account of interest and rent of the premises. It is further stated that though the price was inclusive of freight charges upto the premises of the complainant and installation as well, but the complainant was charged for that and other miscellaneous charges. The OP was also informed about the short delivery of the goods i.e. seven sets of frames and 2% of the spare parts but the OP failed to make the payment therefor which approximately comes to Rs.1,50,000/-. It is submitted that the OP is not providing the service as per the terms and conditions though the machine is still under warranty period. The complainant thus submits that the OP might be held guilty of unfair trade practice and deficiency in service, and might be directed to pay interest on the amount of Rs.2,00,000/- paid to the OP as advance; rent of three and a half month @ Rs.10,000/- per month, cost of the frames and spare parts amounting to Rs.1,50,000/- along with , compensation of Rs.50,000/- and litigation charges.
The OP in its reply submitted that the complainant is not maintainable because M/s Kamla Craft being run by the complainant, is involved in garment export, and had purchased the machine for commercial purposes, and employed several persons. The machine in question is admittedly a very sophisticated machine and cannot be used for domestic use. It is submitted by the OP that the machine was delivered to the complainant for the reasons beyond the control of the OP. It is submitted that there was undue pressure from the complainant, who despite having been explained that the delay was caused due to force majoure, threatened to kill the M.D. of the respondent. It is submitted that for making payment to the OP, the complainant was running short of funds and took their time to make balance payment which resulted in further delay in clearance of documents and consequent demurrage, the onus of which is on the purchaser/the complainant. The OP denies all the allegations and averments mentioned in the complaint, and submits that there was no deficiency in service on the part of the OP and thus the complaint might be dismissed.
The complainant filed his rejoinder, the complainant denied the averments and contents of the reply/WS, except the ones having been admitted by the OP. It is submitted that the OP has admitted that there was delay of two and a half month in making delivery of the machine. The complainant denied that any of his cheques was dishonoured. The complainant reiterated and reaffirmed the averments and allegations made in the complaint.
The parties filed their respective evidence and deposed on oath their respective versions. Parties have also filed their written submissions apart from addressing oral arguments.
We have gone through the case file carefully.
The OP has tried to explain their failure to deliver the machine in time, by submitting that the machine reached the complainant on 20th October, 2005 because there was heavy congestion at Mumbai port due to heavy rain and flooding, and that the delay is covered under the force majoure. The OP had written a letter to the cargo agency in Delhi on 5th October, 2005 for helping the OP to expedite the railment from Vishakhapatnam and also agreed to pay them extra charges. The OP requested their clearing agent to handle the customs processing on priority and the machine was finally delivered on 20th October, 2005, and the OP immediately arranged the installation and it was put in working order on 23rd October, 2005. The delay was beyond their control, and that is why the OP formally agreed to give additional service for one year after the expiry of the warranty period. The short-shipped frames had also been purchased by the OP from the local market at double their price and supplied the same, and the remaining seven were lying in the stores of the OP and the complainant were informed several times to collect the same but they have not taken the same. It is further submitted by the OP that so far as spare parts are concerned, again these were short shipped by the manufacturers and the OP had made good the same from the stocks lying with them. It is submitted by the OP that the unloading at site, including the crane charges, was the purchaser’s responsibility. It is further submitted that the bill of Cargo services Ltd. amounting to Rs.12,335/- was also settled by the OP and not by the complainant as submitted by the complainant and that the amount of Rs.8900/- paid by the complainant to the Cargo Agency, was also reimbursed to the purchaser/complainant.
During the pendency of the complaint, Mr. Jai Singh, complainant, died and an application was filed for bringing his LRs on record. LRs of late Sh. Jai Singh, complainant, are brought on record.
The first contention raised by OP is that the complainant is not a consumer as he has purchased the embroidery machines for commercial purpose. The complaint has specifically stated that the complainant being a semi-literate person did not have any source of income, nor was he having any sufficient funds to start any business. As he was employed in an embroidery factory at a very meager salary, in order to earn his livelihood, he started his own unit under the name of Kamla Craft. Since the complainant has started the work as a proprietor under the name and style “Kamla Craft” to earn his livelihood, he is definitely a consumer.
It is an admitted fact that order of the embroidery machine was placed on 04.05.2005 and the complainant has paid advance payment of Rs.2 lakhs. It is also admitted fact that alongwith the machine, seven sets of frames and 2% of spare parts were to be supplied. It is also an admitted fact that as per agreement, the machine was to be supplied within a period of 45-60 days. It is also a fact that the machine was supplied on 20.10.2005 after a lapse of more than four months. OP tried to explain this delay on the ground that on account of heavy rain, flood and congestion at Mumbai Port, there was delay in supplying of machine. It is significant to note that the shipment was to be made in June 2005 from China but it was made on 11.08.2005 after a delay of almost two months. The shipment was diverted to Vishakhapatnam as there was heavy rush at Mumbai Port. It would have taken additional period of 10 days and not more than that. On account of that there cannot be delay of four months. OP tried to explain the delay by stating that they have compensated the complainant by extending one year warranty. This is a false plea taken by OP as it is mentioned in the purchase order dated 04.05.2005 itself that there would be two year warranty, one year by the manufacturer and one year by the OP. OP also tried to explain the delay by stating that one of the cheque issued by the complainant bounced. The complainant has denied the same. Onus was on OP to prove that cheque of the complainant bounced. OP has not placed any document on record to show that one of the cheque issued by the complainant bounced.
Admittedly 2% of spare parts were not supplied. They were supplied subsequently after much delay but seven sets of frames were never supplied and OP submitted that he has purchased seven sets as they were not supplied by the supplier at a higher price and a letter was written to the complainant to collect the same but the complainant refused to collect the same.
It is significant to note that other spare parts were sent to the complainant from time to time then what prevented OP to send these seven set of frames. The complainant has specifically stated in replication that these seven frames were not accepted by him as they were locally made. They were not the fames which were manufactured by manufacturing firm. The cost of these seven set of frames at that time was Rs.1,50,000/.-. Obviously the complainant has suffered that and also suffered on account of delay.
The interest of justice will suffice if the complainant is awarded a sum of Rs.1,50,000/- towards these seven set of frames as well as Rs.50,000/- for delay alongwith interest @ 9% p.a. from the date of filing of the complaint. OP is further directed to pay Rs.10,000/- towards compensation. The amount be paid equally to all the LRs of deceased complainant.
Let the order be complied with within one month of the receipt thereof. The complaint stands disposed of accordingly.
Copy of order be sent to the parties, free of cost, and thereafter file be consigned to record room.
(H.C. SURI) (A.S. YADAV)
MEMBER PRESIDENT
