BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM<br /> VAZHUTHACAUD, THIRUVANANTHAPURAM.<br /> PRESENT<br /> SRI. G. SIVAPRASAD : PRESIDENT<br /> SMT. BEENAKUMARI. A : MEMBER<br /> SMT. S.K.SREELA : MEMBER<br /> O.P.No. 460/2001 Filed on 07.11.2001<br /> Dated : 31.07.2008<br /> Complainant:<br /> V. Suresh Kumar, Akkevila Veedu, Kizhakkumkara, Kulathoor P.O, Thiruvananthapuram. <br /> (By adv. Eugine Herbert)<br /> Opposite party:<br /> The Manager, M/s M.V. Bros, 39/3452, P.B.No. 2434, Ravipuram, Temple Junction, Ernakulam South, Kochi. <br /> <br /> (By adv. R. Anilkumar) <br /> <br /> This O.P having been heard on 09.07.2008, the Forum on 31.07.2008 delivered the following:<br /> <br /> ORDER<br /> SMT. S.K.SREELA: MEMBER<br /> <br /> The brief facts of the complaint are as follows: The complainant desirous of running a soda making unit under the self employment scheme was approached by the opposite party and issued an invoice for the same. Accordingly the complainant issued a banker's cheque on 20.06.2001 for an amount of Rs. 47350/- to the opposite party of SBI from where the complainant had arranged a loan for the same under the PMRY Scheme. On 28.06.2001 the machinery was delivered by parcel and assured to send the experts for installing the same within two days. On 16.07.2001, when the parcel was opened in the presence of the person from Coimbatore it was found that the parcel contained the machinery of S.S. Industries, Coimbatore instead of the agreed machinery of M.G. Industries. Moreover the motor and gas cylinder for the soda making unit has also not been supplied. When the complainant approached the Thiruvananthapuram office for making a complaint with regard to the same he came to know that it has been shifted to Ernakulam. The complainant tried to contact the opposite party at Ernakulam, but it was in vain. The machineries supplied by the opposite party are of substandard quality and not capable for running soda making unit. The complainant further alleges that excess amount has been collected from him. Since there was no positive response from the opposite party for replacing the machineries even after the receipt of advocate notice this complaint has been filed for redressal of his grievance. <br /> <br /> The opposite party has filed their detailed version contending as follows: It was the complainant who had approached the opposite party's office at Trivandrum to get machineries and obtained invoice and availed a loan. The invoice No. 0113 dated 28.06.2001 for Semi Auto Aerated water filter and Grower valuing Rs. 38750/- and one CO2 Gas cylinder 45 kgs was issued to the complainant. The machineries supplied were received by the complainant in good condition and complainant had endorsed in the invoice. The machineries were supplied as per instructions and there was no offer made by the opposite party to supply machineries of M.G. Industries. No specifications regarding the Semi Auto Aerated water filter was mentioned in the offer/proforma invoice. Though in the proforma invoice the total amount mentioned was Rs. 102053/- the complainant had paid only 50% of the value for which goods were supplied in good condition. In the letter dated 12.04.1999 the opposite party had specifically mentioned that entire goods as per proforma invoice could be supplied only on payment of full amount. Since goods were not taken as per proforma invoice after paying the full payment the unit would not function. It is the fault of the complainant to take delivery of the necessary machineries for the functioning of unit. The machineries supplied were for the amount remitted by the complainant to opposite party. The machineries supplied to the complainant were of good quality. The complainant alone is responsible for the non-functioning of the unit and the consequent non-remittance of amount to the bank. The lawyer's notice sent on 07.09.2001 was not responded since the averments were against truth. The opposite party denies the allegation that the machineries supplied by them is worth only Rs. 30000/-. The opposite party has supplied carbon dioxide cylinder and not carbon monoxide gas cylinder as alleged in the complaint. This opposite party has also suffered due to keeping the accessories for non-payment. Hence the opposite party prays for dismissal of the complaint with costs to the opposite party. <br /> <br /> Complainant has filed affidavit, examined as PW1 and marked Exts. P1 to P6. DW1 has been examined from the opposite party. There are only 3 documents produced by the opposite parties but it has been wrongly marked as D2 to D4 and hence the documents are remarked correctly as Exts. D1 to D3. Expert commissioner has been examined as CW1 and he has filed two reports which are marked as Exts. C1 and C2. <br /> <br /> The issues that would arise for consideration are:<br /> (i)Whether this Forum has jurisdiction to entertain this complaint?<br /> <br /> (ii)Whether the opposite party has supplied the items ordered by the complainant?<br /> <br /> (iii)Whether the machinery supplied are of substandard quality and whether capable for running soda making unit?<br /> <br /> (iv)Reliefs and costs.<br /> <br /> Point (i):- The opposite party has contended that this Forum has no jurisdiction to entertain this complaint as the opposite party is at Ernakulam which is outside the jurisdiction of this Forum. Moreover the opposite party's counsel contended that the opposite party has no branch office at Thiruvananthapuram and the branch office if any ought to have been made a party to the proceedings. The opposite party has no pleadings in the version with regard to the non-maintainability of this complaint before this Forum due to want of territorial jurisdiction. In the version filed by the opposite party, the opposite party has admitted that the complainant had approached the opposite party's office at Thiruvananthapuram to get machineries. Besides this, Ext. P2 shows that the items have been supplied to the complainant at his residence address at Thiruvananthapuram which has not been disputed by the opposite party which goes to show that, part of the cause of action has arisen within the jurisdiction of this Forum and hence it is found that this complaint is maintainable before this Forum and this Forum has jurisdiction to entertain this complaint. <br /> <br /> Point (ii):- According to the complainant, the opposite party has not supplied the machinery that which he had ordered. Exts. P1 and D1 are the copies of the proforma invoice. Ext. P1 is the original and Ext. D2 is the office copy of P1. On a perusal of both documents, though there are no variations in the printed matters, there are some additional writings in both exhibits which are differing. Proforma invoice is for Rs. 102053/-. In Ext. P1 there is an additional entry against column 1 as MGI which is not seen in Ext. D1. But these P1 and D1 are only proforma invoice which is admittedly only an offer. Here the case of the complainant is that he had ordered for M.G. Industries make soda making unit. At this juncture, the invoice has to be looked into. As per Ext. P2 invoice dated 28.06.2001, which is only for Rs. 47350/- it is seen that one Semi Auto Aerated water filter and crowner and one CO2 gas cylinder 45 kg are only purchased and supplied. In Ext. P2, there is no specific mentioning with regard to the make of the equipment. All the items mentioned in proforma invoice are not purchased by the complainant as evident from Ext. P2. The complainant has not paid any further amount. As per the deposition of PW1, he has received the parcel and signed as received in good condition as he was asked to sign. Here the complainant's main allegation is that the machineries supplied are incomplete and substandard. The expert commissioner who inspected the machinery has reported that the present soda making unit is having a shortage of a 1 Horse Power Electric motor and a spare soda gas cylinder. The point to be looked into is what are the items purchased by the complainant. As per invoice, no motor is seen purchased. The opposite party has contended that though the proforma invoice is for Rs. 102053/-, the complainant has paid only 50% of the value for which goods were supplied. The complainant has not produced any record to show as to what is the loan amount sanctioned to him and has not examined any witness from the Bank to substantiate that the loan amount is either for the entire unit mentioned in Ext. P1 or only for the items mentioned in Ext. P2. The commissioner was asked to ascertain among other things, the items to be supplied by the opposite party and its cost, for which CW1 has reported in Ext. C2 point 5 that present price 1 HP electric motor is Rs. 3795/-. We are unable to understand on what basis CW1 has reported the above mentioned since the invoice Ext. P2 does not contain 1 HP electric motor. The commissioner has further reported the present soda making unit is having a shortage of a 1 HP electric motor and a spare soda gas cylinder. As per Ext. P2 the quantity of gas cylinder mentioned is one. There is no payment seen made for spare soda gas cylinder. If at all an additional soda gas cylinder was required that is not seen purchased by the complainant as per Ext. P2. The commissioner has come to the conclusion on the basis of the proforma invoice which is not the invoice. The opposite parties do not have a case that they have supplied the entire equipment for functioning the unit. Ext. P1 proforma invoice is dated 30.12.1998 and the complainant has purchased the items as per Ext. P2 dated 28.06.2001, after a long gap of two and a half years. There is no explanation given for the delay caused. This long gap of two and half years is a sufficient time for the complainant to make enquiries with regard to the equipments of different make and the complainant had the choice to go for another company's products which is not seen done. The complainant has no case that the opposite party had compelled him to purchase their items. In the light of the above, we have no difficulty in holding that the opposite parties have supplied the items mentioned in Ext. P2 invoice to the complainant. <br /> <br /> Point (iii):- The expert commissioner has concluded in his Ext. C2 report that the S.S Industries brand soda making unit is inferior in quality and incomplete so that it is not capable to run in a semi automatic model. The pertinent aspect to be noted is on what basis the commissioner has come to the above said conclusion. According to the commissioner the machine supplied is in incomplete condition which the opposite party also admits. But the commissioner has reported that 'compared the quality of the materials used in the S.S. Industries brand soda making machine with another M.G Industries Brand soda making machine of same kind and found that the SS Industries brand soda making machine is inferior in quality. The opposite party has filed their objection to the commission report stating that the commissioner has not produced or stated any datas regarding the quality of the machinery and he is lacking primary experience in this field. But while cross examination, CW1 has deposed that “ഏത് വിധത്തിലാണ് compare ചെയ്തത് എന്ന് പറയാന്‍ ആവശ്യപ്പെട്ടിട്ടില്ലാത്തതിനാല്‍ പറഞ്ഞില്ല”. The opposite party has not cross examined on this aspect further and has not brought out any thing in evidence to prove otherwise. For the foregoing discussions, and as per the report of expert commissioner, it is found that the machinery supplied to the complainant as per Ext. P2 is of inferior quality.<br /> <br /> The complainant has produced P3 document showing the price of S.S Brand soda water making machine with 1 HP more, as Rs. 42180/- and hence claims that excess amount has been collected from him by the opposite party. Besides the above, another additional document produced by the opposite party which has not been marked is on record wherein the price of SSI make export quality semi automatic soda machine with stainless steel chamber as Rs. 28000/-, price of 1 HP motor as Rs. 6000/- and SSI make ordinary soda making machine semi automatic motor with brass chamber and motor without ISI number as Rs. 30000/-. the above two documents are of the SS Industries, but one is of Coimbatore and the other from Ernakulam. The complainant has not examined any witness to corroborate their contention as to excess amount has been collected from him and the items mentioned in Ext. P2 and Ext. P3 are the same. The commissioner has also stated only as the present market rate of S.S Industries brand soda making unit and not specified whether it is the price of semi automatic soda making unit or not. Hence it is found that the complainant has failed to prove that excess amount has been collected from him. <br /> <br /> Point (iv):- Considering all the above conclusions, we find that the complainant is entitled to get the inferior quality equipments supplied as per Ext. P2 to be replaced with a superior quality one. Complainant is also found entitled for a compensation of Rs. 1000/- and a cost of Rs. 3000/-. Complainant is not entitled to other reliefs since it has not occurred due to the acts of the opposite party. <br /> <br /> In the result, the opposite party is directed to replace the equipments supplied as per Ext. P2 with superior quality equipments within a period of two months failing which the opposite party is directed to repay the amount of Rs. 47350/- with 12% interest till the date of payment and after the compliance of the above order by the opposite party, the complainant shall return the equipments supplied as per Ext. P2 to the opposite party. The opposite party is further ordered to pay Rs. 1000/- towards compensation and Rs. 3000/- towards costs to the complainant within two months. <br /> <br /> 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.<br /> <br /> Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 31st July 2008.<br /> <br /> G. SIVAPRASAD President<br /> <br /> BEENAKUMARI. A : MEMBER<br /> <br /> S.K.SREELA : MEMBER<br /> <br /> <br /> <br /> <br /> <br /> O.P.No. 460/2001<br /> APPENDIX<br /> I COMPLAINANT'S WITNESS : <br /> PW1 - Suresh Kumar<br /> II COMPLAINANT'S DOCUMENTS :<br /> P1 - Original offer/proforma invoice dated 30.12.1998 issued by <br /> the opposite party. <br /> P2 - Photocopy of the invoice dated 28.06.2001 for Rs. 47350/-.<br /> P3 - Original quotation No. 103 dated 08.08.2001.<br /> P4 - Copy of advocate notice issued to the opposite party dated <br /> 07.09.2001.<br /> P5 - Original acknowledgement card and postal receipt dated <br /> 12.09.2001.<br /> P6 - Original electricity bills (31 Nos.) <br /> III OPPOSITE PARTY'S WITNESS :<br /> DW1 - G. Madan Mohan Nair<br /> IV OPPOSITE PARTY'S DOCUMENTS :<br /> D1 - Original duplicate copy of offer/proforma invoice dated 30.12.1998.<br /> D2 - Copy of letter dated 12.04.1999 issued to the complainant by the opposite party. <br /> D3 - Original duplicate copy of invoice dated 28.06.2001 for Rs. 47350/-.<br /> V COURT EXHIBIT<br /> CW1 - Induraj<br /> C1 - Expert commission report <br /> C2 - Expert commission report with conclusion. <br /> PRESIDENT