10.11.2008 Sri.K.Gopalan, President This is a complaint filed under section 12 of consumer protection Act for an order directing the opposite parties to pay an amount of Rs.1, 30,000/- as compensation. The case of the complainant in brief is as follows: Complainant placed an order for supplying machineries for his sawmill. He paid an advance of Rs.10, 000/-. Opposite parties assured that the machineries will be delivered on 15.3.1997. Complainant approached the opposite party with balance amount for taking delivery on the day. But the opposite party sought time for delivery of the machineries. So complainant sent notice to deliver the machineries. But opposite party neither delivered nor sent any reply. So complainant again approached him personally asking for delivery of the machine. Opposite parties then demanded Rs.25, 000/- for the delivery of the machines. Thus complainant paid Rs.15, 000/- on 3.3.1998 and Rs.10, 000/- on 2.5.1995 and the opposite party assured to deliver the same on 30.7.1998. Complainant approached the opposite party to take delivery on 30.7.1998, but opposite party did not deliver machineries. The building leased out by the complainant on a monthly rent of Rs.4000/- has taken vacant possession on 15.3.1997 from the tenant only toinstall the machineries. Since the machineries could not be installed complainant sustained a loss of Rs.90, 000/- as rent. More over, the complainant has spent a sum of Rs.5, 000/- as traveling expenses for getting the machineries. Hence the complainant is entitled to get Rs.35, 000/- paid as advance amount, and Rs.90, 000/- loss sustained by the complainant from bu8ilding rent and Rs.5000/- as compensation for the mental agony and sufferings. Altogether opposite parties are liable for an amount of Rs.1, 30,000/-. Pursuant to the notice 1st opposite party filed version. Opposite party contended as follows: The complainant has not imp leaded the real owner as a party so the complaint is bad for non-jointer of necessary parties. The complaint is thus not maintainable. On 17.1.1997, the complainant placed an order for supplying of certain machineries worth Rs.1, 00,000/- and paid a sum of Rs.10, 000/- as advance. Complainant promised to pay the balance amount by availing a loan from the bank. Unless the complainant pays ½ of the value of the machine as advance the opposite party could not supply the machines. But the complainant though promised did not pay the balance amount in time. When he insisted to make payment the complainant paid Rs.15, 000/- on 3.3.1998. The opposite party did not undertake to deliver the machineries on 30.7.1998 as alleged by the complainant. Complainant could not take delivery due to scarcity of money. This opposite party does not know anything about the loss alleged to have been sustained by the complainant by way of rent and traveling expenses. The mental agony suffered by the complainant is only an imaginary one. Hence prays to dismiss the complaint. The matter was once decided and order pronounced. But the order was challenged by the 2nd opposite party. The appeal was disallowed setaside the impugned order and remanded back for giving opportunity to 2nd opposite party to file version. Thus the OP was reopened and version filed by 2nd opposite party denying all the material allegations in the complaint. The contentions of 2nd opposite party in brief are as follows: - The complaint is not maintainable. Complainant is not a consumer. The 2nd opposite party is the proprietor of the firm Techno Craft Industrial Estate. The complainant has placed an order for food machine with accessories on 17.1.1999. The cost of the machine was fixed, as Rs.1 lakhs and taxes and other things have to be paid extra. At the time of placing the order, the complainant has paid only Rs.10, 000/- as advances. Even at the time of receiving the advance and placing the order, this opposite party informed the complainant that the minimum advance required to pay is half of the total amount to get the validity of the order. The complainant assured that the balance amount would be paid within ten days by raising a loan. Believing the words of the complainant this opposite party kept the order of the complainant alive. Thereafter nothing was heard from the complainants side. When the opposite party pressed for payment complainant paid an amount of Rs.15, 000/- on 3.3.1998. It was not sufficient to cover the 1/3rd advances. Though the complainant promised to pay the balance of 1/3 advance amount nothing was heard from the complainants side. Even without paying the 1/3 advance amount the opposite party has manufactured the machine, but complainant was not ready to take delivery of the machine, since he was not having sufficient money. The 2nd opposite party denied the allegation of the complainant that the complainant approached the opposite party with balance amount of Rs.65, 000/- on 30.7.1998 for taking delivery of the machine. The complainant never came to take the machineries with the balance amount of Rs.65, 000/-, taxes and other allied charges. When 2nd opposite party enquired complainant expressed his inability to pay the amount at a stretch due to the financial stringency and requested the opposite party for some more time. This opposite party is not at all aware of the mental agony undergone by the complainant. The complainant placed order for running an Industry and hence it is a commercial purpose this complaint does not come under the definition of consumer and this complaint is not maintainable. Hence prayed for dismissing the complaint. On the above pleadings the following issues have been taken for consideration. 1.Whether there is any deficiency on the part of opposite parties? 2.Whether the complainant is entitled for the remedy as prayed in the complaint? 3.Relief and cost. The evidence consists of oral evidence adduced by PW1 and Ext.P1 toP4. Opposite party has not produced any document or adduced oral evidence. Issue Nos.1 to 3 The complainant placed an order for supplying machineries for his sawmill paying Rs.10, 000/- as advance. Opposite party has contended that since the complainant placed the order of machineries for running an industry that comes under commercial purpose, the complaint is not maintainable and the complainant is not a consumer. It is absolutely a wrong conception. The machinery is ordered for establishing his industry but not for resale. That is meant to use only for running the industry. Commercial purpose does not include use by a person of goods brought and used by him. Had it beenintended for resale or commercialise thing would have been different. Hence undoubtedly complaint is maintainable and the complainant is a consumer. The complainant paid Rs.35, 000/- as advance believing the assurance given by the opposite parties that they will deliver the machineries within the promised time. But the opposite parties did not deliver the machineries as per the assurance. Ext.P1 is the order Form dated 17.1.1997. Ext.P1 shows that Rs.10, 000/- has been paid as advance. Ext.P2 is the cash receipt issued on 3.3.1990 showing payment of Rs.15; 000/- and Ext.P3 receipt issued on 2.5.1998 shows payment t of another amount of Rs.10, 000/-. Ext.P4 is the letter issued by opposite party assuring the delivery on 30.7.1998. These documents together with the evidences adduced by the PW1 have proved the case of the complainant. Ext.P1 to P3 proves that opposite party has received Rs.35, 000/- towards the payment of machineries as advance. The opposite parties have not delivered the machinery as promised by them. 1st and 2nd opposite parties admitted the payment. The Non-delivery of machineries after appropriating Rs.35, 000/- as advance is clear deficiency on the part of opposite parties. Opposite parties is liable to return the advance amount. The complainant deposed that he has suffered great mental and physical pain and financial loss. Though complainant alleged he has suffered a loss of Rs.90, 000/- as income from the rent of the building that he has taken vacant possession from the tenant for the purpose of installing the machineries. But complainant could prove these pleadings by giving adequate evidence. N o document produced by the complainant to prove this loss. Hence we are of opinion that the complainant is entitled for only Rs.5, 000/- as compensation. However complainant is entitled for Rs.1500/- as cost of these proceedings. Hence we find that the complainant is entitled to get an order directing the opposite parties to refund Rs.35, 000/- being the advance amount with interest @ 6% per annum from 2.5.1998 till payment and to pay a sum of Rs.5, 000/- as compensation for deficiency in service together with Rs.1540/- as cost of this proceedings. Thus issues 1 to 3 are found in favour of complainant and order passed accordingly. In the result, the complaint is allowed directing the opposite parties to refund Rs.35, 000/- (Rupees Thirty five thousand only) being the advance amount with interest @ 6%per annum from 2.5.1998 till payment and to pay Rs.5000/- (Rupees Five thousand only) as compensation for deficiency in service together with a sum of Rs.1500/- (Rupees One thousand Five hundred only) as cost of this proceedings to the complainant within one month from the date of receipt of this order, failing which the complainant is allowed to execute the order against the opposite parties under the provisions of the consumer protection Act. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the complainant P1.Copy of the order form issued by OP P2Copy of the receipt dt.3.3.98 issued by OP P3.Copy of the cash receipt dt.2.5.98 issued by OP P4.Copy of the letter dt.14.7.98 issued by OP. Exhibits for the opposite parties Nil Witness examined for the complainant PW1.Complainant Witness examined for the opposite parties Nil /forwarded by order/ Senior Superintendent Consumer Disputes Redressal Forum, Kannur Despatched on Through Post/hand
