Haryana

Panchkula

CC/113/2018

SHAYAM SUNDER SHARMA - Complainant(s)

Versus

MANJEET ARGO INDUSTRIES - Opp.Party(s)

KARUNA SHARMA

15 May 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.

                                                       

Consumer Complaint No	:	113 of 2018
Date of Institution	:	12.06.2018
Date of Decision	:	15.05.2019

 

Shyam Sunder Sharma, aged about 52 years, S/o Sh. Jagdish Prasad Sharma R/o # 1610/C, Abdullapur, Pragti Vihar, Pinjore, Distt. Panchkula, Haryana 134102.

                                                                                ….Complainant

Versus

Manjeet Agro Industries through its Proprietor Satnam Singh, Nabha Road, Chaswal, Distt. Patiala, Punjab.                                                                  

….Opposite Party

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Before:              Mr.Satpal, President.

Dr. Pawan Kumar Saini, Member.

Dr. Sushma Garg, Member.

For the Parties:   Complainant in person. 

                        OP already ex-parte vide order dated 30.10.2018.

                       

ORDER

(Satpal, President)

1.     The brief facts of the present complaint as alleged are that the complainant started a small business in form of self employment of sand supply in Pinjore and the OP was carrying on business of manufacturing the sand loader machine. Under the influence of deceitful description about the loader machine the complainant agreed to purchase a sand loader machine for Rs.1,45,000/- and on demand of the OP, on 25.05.2016, the complainant paid Rs.20,000/- in cash as advance and got a receipt of the same. After two three days, OP demanded payment of half of the balance purchase money and after insisted, complainant accept the payment of Rs.45,000/- to the OP and leave the balance amount in round figure of Rs.80,000/-, which will be later paid in four equal installments. On 30.05.2016, the complainant made the payment of Rs.45,000/- to the OP through a bank transaction. Remaining amount of the purchase money was paid in four installment of Rs.20,000/-. After receiving the whole amount of Rs.1,45,000/- the said loader machine was delivered by OP No.1 on 18.06.2016 at the shop of the complainant in Pinjore and the bill of only Rs.1,00,000/- was given by the OP to the complainant and no satisfactory reason was explained by OP in this regard. When the complainant tried to use the machine he came across certain manufacturing defects because of which machine was not working in a required manner from the very first day and instead of loading the same, it started to throw sand again on the ground. Maximum parts of the machine were second hand but were painted in such a manner that apparently they appeared to be new, the machine is not in conformity with the required safety norms and also its dangerous parts are not covered by safety covers. The complainant intimated the OP about the defects and kept on calling OP for around a month, and after one month, two unskilled persons were sent by the OP, who tried to repair the defect but the machine could not get repaired and they returned without repairing with the commitment to come back with new parts, but no one came. Complainant again started calling the OP, but OP did not turn up and avoided all the phone calls of the complainant. Complainant having no other resort, himself hired mechanic for repair and spent Rs.24,000/- out of his own pocket, which was in addition to Rs.1,45,000/-; this act and conduct of the OP amounts to deficiency in service on its part; hence, this complaint.

2.     Notice was issued to the OP through registered post on 29.09.2018 vide registered post No.RH351326150IN which was not received back either served or unserved despite the expiry of 30 days from the issuance of notice to OP; hence, it was deemed to be served and thus, due to non appearance of Op, he was proceeded ex-parte by this Forum vide its order dated 30.10.2018.

3.     To prove the case, the ld. counsel for the complainant has tendered affidavit as Annexure CA along with documents Annexure C-1 to C-11 in evidence and closed the evidence by making a separate statement.

4.     We have heard the ld. counsel for the complainant and gone through the entire record available on the file minutely and carefully.

        It is evident that the complainant purchased a loader machine from the OP, for which an amount of Rs.20,000/- was paid in advance on 25.05.2016 to the OP. We find the details of payment amounting to Rs.1,45,000/- as mentioned in Para No.5 of the complaint. The relevant part of Para No.5 of the complaint is reproduced as under:-

Date	Description	Amount
25.05.2016	Cash as advance	20,000/-
30.05.2016	Transferred in PNB A/C No.29850001001815 of Mr. Satnam Singh	45,000/-
01.06.2016	Paid in cash	20,000/-
05.06.2016	Paid in cash	20,000/-
10.06.2016	Paid in cash	20,000/-
16.06.2016	Paid in cash	20,000/-
	Total Amount	1,45,000/-

        It is also evident that said loader machine was delivered by the OP on 18.06.2016 at the shop of the complainant in Pinjore, Panchkula as pleaded by the complainant in Para No.6 of the complaint. Since the loader machine was delivered at Pinjore and a part payment of an amount of Rs.45,000/- was transferred in the account of the Mr. Satnam Singh, Proprietor of M/s Manjeet Agro Industries (OP) on 30.05.2016 from Pinjore, so we have no doubt about the territorial jurisdiction of this Forum. The grievances of the complainant are that the said loader machine did not function/work in the required manner as it had some manufacturing defect in it. In this regard, we find that the complainant issued a notice to the OP dated 02.06.2017 Annexure C-9 and further notice dated 17.08.2016 Annexure C-8 asking him to look into the manufacturing defect in the said loader machine; but no response was received from the OP. Feeling aggrieved, the complainant has filed this complaint but the OP did not bother to appear during the hearing to contest the present complaint.

5.     As the manufacturing defect can ascertained and established by an expert only, hence, this Forum vide order dated 20.12.2018 directed the Director/Incharge of PEC University of Technology to depute the technical engineer for inspection of the loader machine and submit the report. Further, we find that an amount of Rs.30,000/- was demanded by the mechanical engineering department of PEC for carrying out the inspection which in our opinion was very excessive and exorbitantly in view of the total price of the machine i.e. Rs.1,45,000/-; so, this Forum permitted the complainant vide order dated 20.12.2018 to tender the report of an expert who is skilled and have an adequate knowledge of the subject. The complainant has got inspected the loader machine from a private expert, namely, Sh. Mam Chand, who vide his report Annexure C-11 has found that containers of the machine are wrongly designed and not proper by attached to the conveyer belt. The relevant part of the report of said expert is reproduced as under:-

“The entire working of this machinery is based upon the containers and the conveyer belt which are not designed perfectly and therefore does not work in the desired manner which consequently renders machine a redundant structure of iron. The final conclusion that I reached upon is that the defects of this wrongly manufactured Sand Loader machine cannot be rectified in any manner.”

6.     During arguments the complainant reiterated the facts and version as contained in the complaint, affidavit Annexure CA and document Annexure C-1 to C-11 and prayed for acceptance of the complaint.

7.     The OP did not appear to contest the claim of the complainant and preferred to be proceeded ex-parte, for which adverse inference is liable to be drawn against him. The non-appearance of the OP despite notice shows that he has nothing to say in its defence or against the allegations made by the complainant. Therefore, the assertions made by the complainant go unrebutted and uncontroverted.

8.     In the present case, the complainant has well proved that he has made a payment of Rs.14500/- to the OP vide Annexure C-1 to C-7 whereas, the OP has issued a bill of Rs.1 lac. whereas he had received the payment of Rs.1,45,000/- from the complainant. Regarding the manufacturing defect in the machine, we are completely satisfied with the observations made by said expert, namely, Sh. Mam Chand that said machine had basic manufacturing defect to which the same had failed to serve the purpose for which it was purchase by the complainant.  

        The version of the complainant is fully supported and corroborated by his affidavit Annexure CA, along with documents Annexure C-1 to C-11.  

9.     In view of the fact that the OP has neither responded to the notices nor has he opted to controvert the precise cognizable averments made by the complainant having a very relevant bearing upon the adjudication of the grievance, the only distilled view is that the complainant has been able to prove the genuineness of the grievance that the OP had committed deficiency in service, the manner whereof has been detailed in the complaint, as also the affidavit in support thereof. Thus, we hold that the OP is liable for the deficiency and unfair trade practice.  Hence, the complainant is entitled to relief.

10.    As a sequel to the above discussion, we partly allow the present complaint with the following directions to the OP:-

1. That the Op will refund the amount of Rs.1,45,000/- to the complainant along with interest @ 9% per annum from the date of filing of complaint till realization.

 

2. The Op shall pay an amount of Rs.15,000 /- on account of mental agony and harassment and further to pay Rs.5,000/- as cost of litigation charges.

11.    The OP shall comply with the directions/order within a period of 30 days from the date of communication of copy of this order to OP failing which the complainant shall be at liberty to approach this Forum for initiation of proceedings under Section 25 and 27 of CP Act, against the OP. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.  

 

 

Announced

15.05.2019      Dr.Sushma Garg   Dr. Pawan Kumar Saini         Satpal

                            Member              Member                              President

 

Note: Each and every page of this order has been duly signed by me.

 

                                         Satpal

                                         President