ORDER

(Per: Mr. D.K. Tyagi, Member):

This is an appeal under Section 15 of the Consumer Protection Act, 1986, filed by the appellant-opposite party against the order dated 03.12.2011 passed by the District Forum, Udhamsingh Nagar in consumer complaint No. 62 of 2011.  By the impugned order, the District Forum has allowed the consumer complaint and directed the complainant to hand over the engine in question to the opposite party within 15 days and the opposite party make it correct within 15 days and give it to the complainant, failing which the complainant has entitled to get Rs. 13,500/- cost of said engine, Rs. 6,000/- towards mental & financial loss and also Rs. 2,000/- towards litigation expenses.  

2.       Briefly stated the facts of the case, as mentioned in the consumer complaint, are that the complainant–Sh. Mahendra Pal had purchased a Texmo Power Engine No. 0124533 5HP on 08.03.2011 from the opposite party.  That at the time of purchase of the said engine, the opposite party told the complainant that the said engine is very good and one year’s guarantee was given on the said engine. The opposite party had given a receipt of purchase of the engine to the complainant from its firm.  The said engine became defective after a few hours and did not start again.  The complainant informed the opposite party, but all went in vain and the opposite party never took the responsibility for this.  Due to this act of opposite party, the complainant suffered financial loss.  On 21.05.2011, the complainant sent a legal notice to the opposite party, but the same was not replied.   Thus, alleging deficiency in service on the part of the opposite party, the complainant filed a consumer complaint before the District Forum, Udhamsingh Nagar for Rs. 13,500/- cost of engine, Rs. 1,00,000/- for mental & financial loss and Rs. 5,000/- towards costs of litigation.  

3.       The opposite party-M/s Ram Lubhaya Kishan Lal filed a written statement/objections before the District Forum and pleaded that the complainant had sent a photocopy of paper alongwith copy of consumer complaint with the notice to the opposite party, which is not a cash memo/receipt of the purchase of engine, rather it is piece of paper to apprise the cost of engine.  The opposite party had mentioned the cost of engine and proposed warranty, on the paper alongwith card of opposite party.  Texmo company does not manufacture the power engine, rather this company manufactures only motors.  The opposite party has not sold any power engine to the complainant, therefore, there is no responsibility on the opposite party regarding any defective power engine of the complainant.  The opposite party is not responsible for any loss to the crops of the complainant due to any defective power engine. The opposite party has admitted that the complainant came to the opposite party’s firm with intention to purchase engine and obtained a quotation regarding the cost of engine without fan and showing this piece of paper as cash memo/receipt of purchase of engine, filed a consumer complaint with malafide intention. The opposite party provides printed cash memo in the name of opposite party’s firm to the customers with all the details of the property sold.  The said receipt alongwith the consumer complaint filed by the complainant is not a cash memo of the opposite party’s firm. That the document (so called receipt) is having no name of Texmo company as well as engine number.  This shows that the opposite party provided information to the complainant regarding local made engine without fan.  That the Texmo company does not manufacture diesel engine.  It is denied that the opposite party had sold any engine manufactured by Texmo company.  The said receipt is not printed cash memo, rather it is a simple information regarding local made engine without fan.  The complainant has concealed the true facts, therefore, the consumer complaint filed by the complainant is not maintainable.  The complainant has not disclosed in the consumer complaint that why did the complainant keep remain silent upto 12.05.2011, whereas the so called engine was purchased on 08.03.2011. 

4.       The District Forum on an appreciation of the material on record, has allowed the consumer complaint No. 62 of 2011 vide order dated 03.12.2011 in the above manner. Aggrieved by the said order, the opposite party has filed the present appeal.

5.      We have heard learned counsel for the parties and perused the material on record.

6.       There is no dispute regarding the fact that the opposite party-appellant has issued a paper dated 08.03.2011 (Paper No. 18) to the complainant-respondent in the name of   Sh. Mehander S/o Lakh Raj, R/o Rohnia, Baheri.  There is no dispute that the so called paper with a language “1 set without fan engine, 5HP” alongwith warranty and also cost of the engine, i.e. Rs. 14,000/- less Rs. 500/- is equal to Rs. 13,500/-.  It is also not disputed that the opposite party-appellant has provided a printed card of the firm to the complainant-respondent.

7.       Learned counsel for the appellant has submitted before the Commission that the appellant had never sold any Texmo power engine 5HP to the respondent and the respondent has not produced any cash memo of the appellant’s firm. Learned counsel also argued that there is no record of sale and purchase with the appellant’s firm, therefore, the respondent is not a consumer of the appellant’s firm.  Learned counsel submitted that the evidence produced by the respondent, as cash memo, is not a cash memo or receipt of the appellant’s firm, rather it is only a quotation to apprise the cost of power engine without fan. It is not a cash memo or receipt of Texmo power engine 5HP.  The appellant had only provided a quotation to the respondent on 08.03.2011.  If there was any defect in the respondent’s engine, then why did not he produce it to the appellant’s firm upto 12.05.2011, a long gap of two months ?  Learned counsel also submitted that there is no question of warranty for so called engine, which was not sold to the respondent.

8.       Per contra, the learned counsel for the respondent has submitted that the paper No. 18 on the record, is a cash memo/receipt given to the respondent by the appellant at the time of purchase of power engine without fan.  It is not a quotation, rather a cash memo having name of the purchaser, about engine, cost of the engine and also terms and conditions regarding the warranty, which was signed by the representative of the appellant’s firm.  Learned counsel also submitted that the respondent had sent a notice regarding the defect in the engine purchased from the appellant, but it was never replied by the appellant.  This shows that the appellant sold this power engine to the respondent worth Rs. 13,500/- which became defective after a few hours of work. 

9.       The respondent has filed his affidavit in evidence alongwith affidavits of one Sh. Begraj S/o Prasadi and Sh. Pitam Lal S/o Sh. Sohan Lal, who have deposed on oath that the respondent Sh. Mahendra Pal had purchased a Texmo power engine No. 0124533 5HP from the appellant’s firm on 08.03.2011, for which the receipt/cash memo was provided by the appellant’s firm to the respondent.  This engine became defective after a few hours of running. The respondent informed the appellant on 12.05.2011 regarding the defect in the engine purchased by him from the appellant firm.  But no heed was paid on the request of respondent.  Due to defect in the engine, the respondent suffered a loss in his crop of sugarcane.  These affidavits of Sh. Mahendra Pal, Sh. Baigraj and Sh. Pitam Lal were never controverted by the appellant during proceedings before the District Forum.  The notice sent by the respondent to the appellant through counsel and the same was received by the appellant on 20.05.2011, but this notice was never replied by the appellant. The appellant has admitted in its written statement that a notice sent by the respondent was received, but no reply in this regard was given to the respondent or his counsel.  From the perusal of the card of the appellant’s firm, it is clear that the appellant deals with Texmo power engine also.  Paper No. 18 on the record cannot be said to be a quotation of the appellant’s firm, because no word “quotation” is mentioned on the paper supplied by appellant to the respondent. There is a specific mention on this paper (Paper No. 18) about sale of one set engine 5HP without fan and warranty about damage of body, regarding consumption of mobil oil and block.  There is also mention in this receipt that no other guarantee shall be given.  Name of the respondent as well as cost of the engine, which is Rs. 13,500/- (Rs. 14,500-500= Rs. 13,500) is also mentioned in the receipt.  The same is also signed by the representative of the appellant’s firm.  In small towns and villages, it is a practice that shop-keepers did not provide printed cash memo to the illiterate, rustic villagers and farmers.  Therefore, this receipt on record is evident to show that the respondent purchased a 5HP Texmo power engine without fan from the appellant’s firm with certain warranties regarding body, mobil oil and block.  Paper No. 18 on the record is not a quotation rather it is a cash memo, which was given by the appellant to the respondent.

10.     The District Forum has properly considered all the facts and circumstances of the case and passed a reasoned order, which does not call for any interference.  The appeal lacks merit and is liable to be dismissed. 

11.     For the reasons aforesaid, the appeal is dismissed.  The impugned judgment and order dated 03.12.2011 passed by the District Forum, Udhamsingh Nagar in consumer complaint No. 62 of 2011 is hereby confirmed.   No order as to costs. 

(MRS. VEENA SHARMA)                               (D.K. TYAGI)                           (JUSTICE B.C. KANDPAL)