DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.333/2017
M/s Gentex Merchants Pvt. Ltd.
22, Dr. A.P. J. Abdul Kalam Road
Near Lok Kalyan Marg Metro Station
New Delhi-110011. .…Complainant
VERSUS
M/s Mechatronics Control
Equipments India Pvt. Ltd.
No.1, Gulam Murthuja Street
Wallajah Road
Chennai-600002
Through its Manging Director ….Opposite Party
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Present: Adv. Santosh Chauriha along with Shri Yogesh AR for complainant.
Present: Adv. Arsh Khan for OP.
ORDER
Date of Institution:18.09.2017
Date of Order : 02.12.2024
President: Ms. Monika A Srivastava
Complainant being a company has filed the present complainant against OP Rs.92,419 being the price of the instrument with accessories, Rs.5,00,000/- for harassment and mental agony and Rs.11,000/- towards legal cost.
- It is stated by the complainant that in December, 2016 complainant contacted the OP as it was in requirement of two DL4 Column of Linak make along with accessories for its use in the office/residence. Complainant made a payment of Rs.92,149/- on 15.02.2017 duly acknowledged by the OP on 23.02.2017 which is annexed as annexure C-1 (colly).
- It is the case of the complainant that from 23.02.2017 to 11.04.2017 complainant regularly followed up with the OP and then received the parcel on 11.04.2017. However, after opening the parcel and installing it was found that one right side DL4 Column was defective and it was causing sound and vibration. It was immediately brought to the notice of the OP vide a video recording. It is further stated by the complainant that OP issued official invoice dated 08.04.2017.
- It is further stated after several follow up, OP arranged the courier to pick up the defective item on 21.04.2017 and it was represented to the complainant that a new column will be arranged. Copy of the communication is annexed as annexure C-2.
- On 06.05.2017, OP informed the complainant that about 15.04.2017 they will lift the material from Denmark and thereafter a week later, material will be received in January and dispatched to the complainant. Copies of the mail exchanged are annexed as annexure C-3 (colly).
- Complainant received the material through courier on 05.06.2017 as OP had agreed to replace the material as it was not repairable. Another invoice dated 31.05.2017 for Rs.32,043/- was sent to the complainant as the price of one unit of DL4 Column.
- As advised by OP, complainant installed the item on its own and to his utter surprise the new item was also creating sound and vibration. Complainant sent the video and pictures of the defective material dated 31.05.2017 which is annexure C-4. It is the case of the complainant that despite contacting the OP on several occasions through mail/phone etc. OP has only blamed the complainant with an intention to cause wrongful gain to themselves. It is further stated that though five months have passed from the date of payment till today, item has not been replaced and there is no concrete communication received from OP forcing the complainant to send a legal notice dated 15.07.2017 annexed as annexure C-5 and the copy of its reply sent by OP denying their responsibility is annexure C-6.
- It is the case of the complainant that OP had indulged in unfair trade practice and his guilty of deficiency in service and poor workmanship and due to the act of the OP of acting in a negligent manner complainant has suffered loss and is entitled to compensation.
- In its reply, OP has stated that the complainant has raised the complaint about purported sound and vibration from the right side DL4 Column. OP got the same examined from technical service engineer and it was found that the sound and vibration was because of mishandling of the said column by the complainant and that there was no manufacturing defect. Though to maintain its goodwill OP sent the DL4 Column from the complainant to Linak, Denmark.
- It is further stated by OP that before dispatching the new column it was examined and found that there were no defects in the said column but the complainant with malafide intention has raised the complaint about the DL4 Column being defective which is entirely false and misleading. It is further denied by the OP that there is any negligence on their part.
- It is stated by the OP that the complainant is not a consumer as per Section 2 (d)(i) of the Consumer Protection Act as the goods were purchased by the complainant for commercial purpose for earning from profits. It is further stated that complainant has himself stated in its complaint that it is engaged in the business of development and construction of residential houses and therefore he has no locus to maintain this complaint. Further OP has stated that this complaint requires adjudication by leading evidence and examining expert witnesses which can only be done in a civil suit and therefore, this Commission is not the correct forum to deal with complicated cases where oral and documentary evidences are required.
- It is further stated by the OP that the allegations made by the complainant are frivolous and that the complainant has not produced even a single document to substantiate the allegations made against the OP. It is further stated by the OP that the DL4 Column which was picked up by the OP was found to be damaged caused by the complainant’s mishandling of the DL4 Column at the time of installation and that the mail dated 12.04.2017 has been purposely hidden by the complainant in order to mislead the Commission.
- It is further stated by the OP that OP has issued the corresponding debit note with the said invoice and there was no demand of price from the complainant for the replaced Column and the complainant is only trying to mislead the Commission by stating wrong facts.
- It is further stated that the new DL4 Column which was dispatched from Linak Denmark was thoroughly examined and there were defects in the said column. In this regard, OP has also placed a letter issued by Linak Denmark dated 24.07.2018 (date to be checked) against invoice dated 16.03.2017 item No……which was issued by OP under invoice No.1876785 dated 23.03.2017
“The item against the above description has been delivered to consignee in good condition. The consignee has returned the item for investigation as some abnormal behaviour has been observed. We, the manufacturer, have investigated and concluded that the item has been exposed to heavy impacts which caused the damage to the item and the same is clearly depicted in the attached pictures as an evidence. As the cause of failure is due to the external reasons, the item cannot be covered under laid warranty clause of the manufacturer.”
- Linak has also placed two pictures along with this letter showing the external impact. It is further stated by the OP that the complainant was asked to send the new DL 4 Column to Linak’s service station where it could be examined but complainant instead of sending the column has filed the present complaint.
- In its rejoinder, complainant has mostly denied the averments made by the OP in their reply. It is stated that equipment was purchased for the complainant and not for commercial purpose. Complainant has merely made the averment.
- Both the parties have filed their respective evidence affidavits as well as written arguments. It is seen that there are back and forth mails between the complainant and the OP. Complainant has filed a pen drive containing video of packing material which does not indicate that it contained the material dispatched by OP in a defective condition.
The Hon’ble Supreme Court in the matter of SGS India Limited vs Dolphin International AIR 2021 SC 4849 has held the following
“The onus of proof that there was deficiency in service is on the complainant. If the complainant is able to discharge its initial onus, the burden would then shift to the Respondent in the complaint.”
It is therefore, upon the complainant to initially discharge its onus to prove that there was deficiency in service on the part of OP. This Commission has gone through the pleadings and documents filed by the complainant and find that complainant has not been able to discharge this onus. Therefore, the present complaint is dismissed being devoid of any merits.
Copy of the order be given to the parties as per rules. File be consigned to the record room. order be uploaded on the website.