| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BATHINDA C.C.No. 101 of 02.05.2019 Decided on : 31-07-2024 Chinoo Garg, Prop. of M/s Bajrangbali Retreading Zone, Opp. IOCL Petrol Pump, Goniana Road, Bathinda. ........Complainant Versus Luxmi Enterprises, Plot No.4, HSIDC Industrial Area Narwana, Distt. Jind (Haryana), through its Prop./Partner .......Opposite party Complaint under Section 35 of the Consumer Protection Act, 2019 QUORUM Smt.Priti Malhotra, President Smt.Sharda Attri, Member Present : For the complainant : Sh.Rohit Sharma, Advocate. For opposite party : Sh.H.S Dhanoa, Advocate. ORDER Priti Malhotra, President The complainant Chinoo Garg (here-in-after referred to as complainant) has filed this complaint U/s 35 of Consumer Protection Act, 2019 (here-in after referred to as 'Act') before this Commission against Luxmi Enterprises (here-in-after referred to as opposite party). Briefly stated, the case of the complainant is that he is in the business of retreading bias and radial tyres of trucks and buses. He approached opposite party and enquired about 5 Tyres (4+1) Electric Curing Chamber Machine Complete. Opposite Party furnished the quotation and after negotiations, it agreed to supply him 5 Tyres (4+1) Electric Curing for Chamber Machine Complete for a sum of Rs.4,00,000/-. The complainant purchased the said machine for Rs.4,00,000/- alongwith other allied machines i.e. automatic builder machine, cyclone filter, mono rail with attachment, inspection spreader machine and shoulder buffing attachment for a total sum of Rs.8,27,000/- vide invoice No.000123 dated 2.7.2018. Opposite party assured the complainant that the said machine is of best quality and it has been prepared by using A-Class material including temperature meter for the retreading of the tyres at accurate temperature and there is no complaint from any corner regarding its functioning. It is alleged that after purchase of the said machine, the complainant started using it for retreading the tyres of buses and trucks etc. and entered into an agreement with Appolo Tyres Ltd. for retreading the bias and radial tyres on 10.8.2018. The said machine is not according to the specifications disclosed to the complainant by opposite party as its capacity is to take only four tyres instead of five tyres and from the very first day of its delivery, the complainant has been retreading 4 tyres at one time instead of 5 tyres and he suffered huge loss of one tyre every and every time. He complained about the same to opposite party, but earlier opposite party kept putting on the matter off on one or the other false pretext and on his requests, the authorized representative of opposite party visited the premises of the complainant on 23.11.2018 and inspected the said machine. The representative of opposite party tried his level best to insert five tyres, but he failed as the capacity of the machine is to intake only four tyres at one time and in case of forceful administration of the fifth tyre by manhandling with the machine by the authorized representative of opposite party, the door of the machine did not close at all. Ultimately, the authorized representative of opposite party got satisfied that the intake capacity of the machine is only for 4 tyres. As such, opposite party by providing the quotation of five tyres intake machine, supplied 4 tyres machine to the complainant. It amounts to deficiency in services on part of opposite party. It is further alleged that the digital temperature meter installed in the machine is also of substandard quality and showed wrong temperature of 84 degree whereas the manual guage showing 38 degree temperature only and variation in the temperature is around 40 degree. As per the digital temperature meter, the complainant continued curing all the tyres at the standard temperature of 125 degree, but the same was actually being cured at the temperature of 85 to 90 degree due to the fault in the digital temperature meter installed by opposite party in the machine. As a result, about 30/40 tyres got uncured and more than 50 tyres got failed. Due to this, the complainant suffered huge financial loss. It is further allged that the complainant requested opposite party about the defect in the machine, it admitted the defect and assured him to replace the faulty machine with new one by the end of December 2018 and to supply new 5 tyres Curing Chamber Machine, but it failed to replace the machine despite repeated requests. The complainant sent a request through e-mail to opposite party on 7.1.2019, but to no effect, rather on 11.2.2019, opposite party sent him e-mail and informed him that the machine is ready for dispatch after testing, but till date opposite party failed to dispatch the machine and to replace the faulty machine. On this backdrop of facts, the complainant has prayed for directions to opposite party to replace the faultly/defective machine at the earliest with new one or in alternative to refund of its amount and also to pay Rs.2 lakh as compensation and Rs.22,000/- as litigation expenses. Upon notice, opposite party appeared through counsel and contested the complaint by filing written version and raising legal objections that this Forum has no jurisdiction to entertain and decide the complaint. This complaint is legally not maintainable before this Forum and is liable to be dismissed due to lack of jurisdiction as the opposite party is doing its business at Narwana District Jind (Haryana) and machine was also purchased by the complainant from Jind and it is clearly mentioned on the invoice dated 24.2.2018 and 16.5.2018 that the dispute between the complainant and opposite party will be subject to Narwana Jurisdiction. As such, the complaint at Bathinda is not maintainable. The complaint is not maintainable as the complainant is doing commercial business under the name and style M/s Bajrangbali retreading Zone, Bathinda. The complainant and his brother namely Avi Garg are running another business of petrol pump under name and style Bjrangbali Filling Station at Village Balahar Vinju, District Bathinda with Indian Oil Corporation Ltd. and are also running business of Commission agent at Goniana Mandi and doing business being property dealer at Goniana Mandi, District Bathinda. The claim of the complainant filed on the basis of his quotation dated 24.2.2018 is illegal and null and void from the very beginning as it could not become final between the complainant and opposite party due to difference of price of some parts of machines. The complainant has received material/machines on the basis of quotation dated 16.5.2018. It is further pleaded that the complainant has no cause-of-action to file the complaint. As the complainant cancelled first quotation order dated 24.2.2018 himself as the representative of opposite party came on the asking of the complainant at his petrol pump at Balahar Vinju District Bathinda on 24.2.2018 and there he has done deal with opposite party for (1) 4+1 (4 tyre Nylon +1 LCV) Tyre Electric Curing Chamber Machine (2) Automatic buffer machine (3) Shoulder buffing attachment (4) Cyclone Filter (5) Automatic builder machine (6) Expandable RIM20-22.5 @ X2NOS (7) Expandable RIM 17-20' @ X2NOS (8) Expanding RIM 14-17.5' @ X2NOS (9) Curing RIM 22.5x8.5 —x2 (10) Curing RIM 20x7.5-x8 (11) Curing RIM 17.5x7-x2 (12) Curing RIM 16x6-x4 (13) Curing RIM 15x6-x4 (14) Sunner Skivving Motor (15) Tyre stand cross type (16) Cementing and Filling stand-x2 (17) vacuum Pump (18) Inspection spreader Machine (19) Nail hole detector (20) Tread preparation table (21) Monorail (22) Warming Pad-tread cutter(23) curing RIM stand worth Rs.15, 50,000/ only. On the same day, the complainant assured opposite party that he will pay an amount Rs.1,40,000/ only through RTGS on the next day to opposite party, but on the next day, he told opposite party through telephonically that he is negotiating with Apollo Radial Tyres Company as it has been paying some share to install the machine. The complainant did not deposit Rs.1,40,000/ to opposite party. As such, quotation order dated 24.2.2018 could not be confirmed between the parties. It is further pleaded that on 16.5.2018, the complainant approached opposite party and demanded another machines as per his requirement through quotation order dated 16.5.2018 (1) 4 Tyre Chamber machine complete,(2) Automatic Buffer Machine (3) shoulder buffing attachment complete (4) cyclone Filter, (5) Automatic builder machine Complete (6)Expanding RIM 22.5"-X2 NOS (7) Not demanded under quotation 16.5.2018 (8) Expanding RIM 15/16" @ x2 NOS (9) Curing RIM 22.5x8.5 @ x3 (10) Curing Rim 20x7.5 @ x8 (11) Not demanded under quotation 16.5.2018 (12) Curing Rim 16x6-@x2 (13) Curing RIM 15x6-@ x2 (14) Not demanded under quotation 16.5.2018 (15) Tyre stand cross type @ x2 (16) Cementing and filling stand @ x2 (17) Not demanded under quotation 16.5.2018 (18) Inspection spreader machine (19) Not demanded under quotation 16.5.2018 (20) Tread preparation table (21) Monorail (22) Not demanded under quotation 16.5.2018 (23) Curing RIM stand (24) ELGI 10 HP Compressor of worth Rs. 15,04,500/ only. It is further pleaded that the representative of Apollo radial tyre company completed conversation between the complainant and opposite party on 16.5.2018. Thereafter the complainant had done deal through quotation dated 16.5.2018 after changing the material from quotation dated 24.2.2018 with opposite party. As per quotation dated 16.5.2018, the complainant has received machines and parts of machines from opposite party willfully with contently and paid total amount to opposite party. The complainant deposited an amount Rs.3,60,000/ only through RTGS in the Punjab & Sind bank, being advance amount on 16.5.2018 in the account of opposite party and remaining amount also deposited by him through RTGS in the account of opposite party into two installments, firstly on 5.6.2018 and secondly, on 18.6.2018. It is further pleaded that opposite party on the demand of the complainant sent the articles on his address through 'Jai Parkash Transport Company Narwana (HR)' upon the vehicles/trucks bearing No.HR-56A-1703 and HR-61A-4942 on the basis of 'to pay Bill'. The complainant received the articles through invoice Nos.000123 and 000124 dated 2.7.2018 after verifying the whole material from the vehicle/trucks and his representative signed the invoice Nos.000123 and 000124 and other documents that were Bilities of Jai Parkash Transport Com. Narwana (HR). The rent amount of the vehicles/trucks has also been paid by the complainant at his residence. Opposite party paid 'GST' and other tax on the sold goods as per terms and conditions of State Government and Centre Government through 'e-way bill No.311026720172 and 381026723622. The complaint is bad for non-joinder of necessary parties as the complainant entered into an agreement with Apollo radial Tyres Company that was necessary party. The complainant's claim does not fall within the jurisdiction of this Forum as per quotation dated 24.2.2018 (which has been cancelled now) and quotation dated 16.5.2018 Narwana District Jind (HR) court has jurisdiction to entertain and decide the complaint and this fact within the knowledge of the complainant from the very beginning. It is further pleaded that the intricate question of law and facts are involved in this case. The parties have to lead his/its evidence by examining the witnesses. These witnesses are to be cross-examined by the other party. The procedure under 'Act' is summary in nature and complainant, if so, advised, may file civil suit seeking the alleged relief. The complainant is estopped from filing this complaint by his own acts, conduct, omissions and acquiescence. As such, the complaint is liable to be dismissed on this score alone. The complaint is false, frivolous and vexatious in nature and it has been filed in order to cause undue harassment to opposite party. The complainant has attempted to misguide and mislead this Forum. In fact, he suppressed the material facts from this Forum. It is a settled legal preposition that 'one who seeks justice must come to the court with clean hands'. The complainant failed to disclose any legal and valid cause-of-action against opposite party to file the complaint. The complainant created a false and baseless story in his complaint to mislead this Forum by false and frivolous facts and circumstances of the complaint. Neither there is any deficiency in service on the part of opposite party and not opposite party has indulged in unfair trade practice. Opposite party is running business under the name & style M/s Luxmi Enterprises (TM) at Narwana-126116 (Haryana), AN ISO Certified Co. 9001-2008 for manufacturing/Export of Tyre Retreading Machine and Tyre Equipments, accessories parts etc. and all the terms and conditions of the business certified by Crisil-SME. The complaint himself violated the terms and conditions of agreement. On merits, after controverting all other averments of the complainant, opposite party has reiterated its stand as taken in the legal objections and prayed for dismissal of complaint. In support of his complaint, the complainant has tendered into evidence his affidavit dated 3.5.2019, (Ex.C1) and documents, (Ex.C2 to Ex.C14). In order to rebut the evidence of complainant, the opposite party has tendered into evidence affidavit of Satpal dated 29.7.2019, (Ex. OP1/14) and documents, (Ex. OP1/1 to Ex.OP1/13). We have heard learned counsel for the parties and gone through the file carefully. Learned counsel for parties have reiterated their stand as taken in their respective pleadings as detailed above. We have given careful consideration to these submissions. Admittedly, the complainant has purchased Electric Chamber Machine Complete for Rs.4 lakh from opposite party vide invoice, (Ex.C2). As per complainant, the capacity of machine is to take only four tyres instead of five tyres, rather he had purchased 5 Tyres (4+1) Electric Curing Chamber Machine Complete for retreading and digital temperature meter installed in the machine showed wrong temperature of 84 degree whereas the manual guage showing 38 degree temperature only and variation in the temperature is around 40 degree. He continued curing all the tyres at the standard temperature of 125 degree, but the same was actually being cured at the temperature of 85 to 90 degree due to the fault in the digital temperature meter. As a result, about 30/40 tyres got uncured and more than 50 tyres got failed. Due to this, he has suffered huge financial loss. It is proved on record that the complainant has purchased the Chamber Machine in question with capacity of 4 tyres and not of 4+1 (5) tyre as it is clearly specifically mentioned in the invoice dated 2.7.2018, (Ex.C2) that '4 Tyre Electric Chamber Machine Complete'. Thus, the fact regarding capacity of 4 tyres of the Chamber Machine in question was well within the knowledge of the complainant at the time of purchase of the Chamber Machine in question. Moreover on the complaint of the complainant to opposite party regarding faulty Chamber Machine in question vide e-mail dated 7.1.2019, (Ex.C12), opposite party sent e-mail dated 11.2.2019, (Ex.C13) to the complainant regarding replacement of 4 tyre electric chamber machine with new one. The relevant portion of this e-mail is reproduced as under for ready reference:- “As per your request for replacement of 4 tyre electric chamber which is ready for dispatch new electric chamber after testing. Now, you are requested to dispatch old chamber in against we will dispatch it on the same day in a same vehicle with replacement note.” Thus, this e-mail shows that opposite party is ready to replace the Chamber Machine in question with new 4 tyre electric chamber machine. In view of what has been discussed above, present complaint is partly allowed without any order as to cost with the directions to opposite party to replace the Chamber Machine in question with new 4 tyre electric chamber machine and in case, the complainant want to purchase new 4+1(5 tyre) electric chamber machine from opposite party, the complainant has an option to get new 4+1(5 tyre) electric chamber machine after paying the difference amount of the price of 4+1(5 tyre) electric chamber machine minus 4 tyre electric chamber machine and opposite party will accommodate the complainant in this regard on priority basis. At the time of taking delivery of new Chamber Machine, the complainant will handover the old Chamber Machine in question to opposite party. The compliance of this order be made within 45 days from the date of receipt of copy of this order. In case of non-compliance of the order within the stipulated period, thereafter opposite party will be liable to pay cost of Rs.7000/- to the complainant. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record room. Announced 31-07-2024 - (Priti Malhotra)
President (Sharda Attri) Member
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