BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 07/08/2008

Date of Order : 25/08/2012

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 270/2008

Between

And

 

C.C. No. 271/2008

Between

And

 

100. .C. No. 272/2008

     Between

And

Date of filing : 11/08/2008

Date of Order : 28/05/2012

C.C. No. 278/2008

Between

And

C O M M O N O R D E R

A. Rajesh, President.

1. The matter involved in the above cases are similar and the opposite party is the same. The above cases were tried jointly vide order in I.A. No. 09/2010 dated 05-01-2010 treating C.C. No. 270/2008 as the leading case. These complaints are filed by the complainants, who had signed an agreement with the opposite party regarding supply of Compact Florescent Lamp (CFL). Since the questions that arose for consideration are the same, they have been heard together and we are disposing them off by this common order.

2. The case of the complainant in C.C. No. 270/2008 is as follows :

The opposite party published an advertisement in Malayala Manorama daily dated 16-01-2008 regarding supply of machinery for the manufacturing of Compact Florescent Lamp (CFL) manufacturing unit. Attracted by the advertisement, the complainant paid a total sum of Rs. 35,000/- on 19-03-2008 at the instance of the opposite party. The complainant entered into an agreement regarding supply of raw materials and machinery to him for the manufacture of CFL. Accordingly, the opposite party delivered the machinery and the raw materials on 24-03-2008. The complainant found that the machinery is worth only Rs. 3,000/-, immediately the complainant contacted the opposite party and demanded repayment of the entire amount. The raw materials supplied by the opposite party were defective and the same were returned to the opposite party. The machinery supplied by the opposite party are defective and of inferior quality. The opposite party has adopted unfair and deceptive trade practice and there is deficiency in service on the part of the opposite party. Thus, the complainant is before us seeking direction against the opposite party to refund of Rs. 35,000/- with interest and costs of the proceedings.

3. The complainants in C.C. Nos. 271/2008, 272/2008 and 278/2008 raising the similar grounds have sought for the very same reliefs against the opposite party.

4. The version of the opposite party in all the cases are as follows :

This Forum has no territorial jurisdiction to entertain the complaint. The complainants and the opposite party entered into separate agreements at Cherthala in Alleppey District. It was agreed that the opposite party would supply raw materials and machinery for manufacturing CFL and that the opposite party would impart training in manufacturing of CFL and that the complainants after manufacturing the same would deliver it back to the opposite party for sale. The allegation against the opposite party is breach of the above agreement. The complainants ought to have filed civil suits for breach of the agreement, if at all. After getting the experience for manufacturing of CFL the complainants sold the lamps to 3^rd parties. Now, the intention of the complainants are to withdraw from the agreements and to manufacture lamps on their own and to sell the same to 3^rd parties. Thus, the opposite party herein caused to issue a lawyer notice to the complainants demanding Rs. 50,000/- each as penalty charges. On receipt of the notice, the complainants preferred to file the above complaints as an offset to the notices (mentioned as off short in the version). The machineries supplied by the opposite party are superior in quality. The opposite party imparted adequate training to the complainant as agreed in the agreement. The opposite party requests to dismiss the complaint.

5. In C.C. Nos. 270/2008, 271/2008 and 272/2008, the complainants were respectively examined as PW1 and Exts. A1 and A2 were marked on their side. In C.C. 278/2008, the complainant was examined as PW1 and Exts. A1 to A3 were marked on the side of the complainant. Joint trial was allowed vide order in I.A. No. 09/2010 dated 05-01-2010. Consolidated proof affidavit was filed by the opposite party in C.C. No. 270/2008 and he was examined as DW1, his witness was examined as DW2 and Exts. B1 to B11 were marked on his side. At the threshold, this Forum allowed the above complaint vide common order dated 30-11-2010. Against which the opposite party preferred appeal before the Hon'ble Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram. The Hon'ble State Commission vide order dated 13-06-2011 in Appeal Nos. 243/2011,244/2011, 321/2011 and 322/2011 allowed the appeals and directed the Forum to dispose off the matter afresh. Thereafter at the instance of the complainants, an expert commissioner was appointed by this Forum. The expert commissioner was examined as DW3 and his reports were marked as Exts. C1 to C4.

6. The points that emanated for consideration are as follows :-

1. Whether this Forum has territorial jurisdiction to entertain the complaints?

2. Whether the complainants are consumers within the purview of the Consumer Protection Act?

3. Whether the complainants are entitled to get refund of Rs. 35,000/- each from the opposite party?

4. Whether the complainants are entitled to get costs of the proceedings from the opposite party?

7. Point No. i. :- At the outset vide separate preliminary order dated 31-12-2008, this Forum found that this Forum has territorial jurisdiction to entertain the complaints. The above orders have not been challenged by the opposite party. Therefore, the further discussion in this point is not at all warranted.

8. Point No. ii. :- The opposite party contended that there is no consumer-service provider relationship between the complainants and the opposite party. The opposite party maintains that the remedy of the complainants lies before the Civil Court. As per the separate agreements between the complainants and the opposite party, the opposite party agreed to supply raw materials for manufacturing CFL and its accessories for consideration. Accordingly, the complainants paid the consideration agreed between them and collected the raw materials and accessories from the opposite party. In that view of the matter, there is consumer-trader relationship between the complainants and the opposite party. So, the contention of the opposite party is unsustainable in this regard to.

9. Point No. iii. :- Admittedly, the opposite party had received a total sum of Rs. 35,000/- each from the complainants towards pressing die set, testing board, tool kit, 80 PC of raw materials with training. Ext. B1 agreement in all the cases are identical in nature. According to the complainants, they have not undergone any training as offered by the opposite party and the opposite party delivered sub-standard raw materials to the complainants. The counsel for the complainants vehemently contended that Exts. C1 to C4 go to show that the raw materials and the equipments supplied by the opposite party are defective and so the complainants are entitled to get refund of the amounts from the opposite party.

10. The counsel for the opposite party contended as follows :

1. The complainants approached the opposite party at his office at Cherthala and entered into agreement with the opposite party. The opposite party never insisted the complainants to sign an agreement as alleged by the complainants.

2. The machinery was delivered to the complainants at Cherthala and subsequently provided training for the manufacturing of CF lamps as per Ext. B1 series agreements. The complainants had done business for so many months and purchased raw materials usually from the opposite party through the complainant in C.C. No. 278/2008. He acknowledged the same in Ext. B3 ledger book.

3. In violation of the agreement, the complainants sold the finished goods to third parties instead of the complainants. Thus, the opposite party filed O.S. Nos. 126,127,128 and 129/2009 against the complainants for breach of Ext. B1 series agreements.

4. The machinery supplied by the opposite party are in good quality and the complainants already did the work for so many months.

5. As per the Common Judgment of the Hon'ble Kerala State Consumer Disputes Redressal Commission vide order dated 13-06-2011 directed the Forum to consider the evidence and write a proper judgment supported by reasons and if required after hearing the parties. Thereafter, this Forum allowed an expert commission application to report about the machinery. The Forum allowed the petition and reports were filed. The procedure adopted by this Forum is against the intention and sprint of the Judgment of the Hon'ble State Commission.

6. The expert appointed by the Forum is not a competent person, he is qualified in electrical engineering not in mechanical engineering.

    

11. Ext. B1 series (a), (b), (c) and (d) are the agreements entered between the complainants and the opposite party. As per the agreements, the opposite party had agreed to the complainants installation and training for making CFL on payment of trainer fee to the trainer. The opposite party who was examined as DW1 stated that at his instance DW2 had given training to the complainants. The complainants vehemently disputed the same. Apart from the oral testimony of DW2, nothing is on record to substantiate the contention of DW1 that as per the agreements, he had imparted training to the complainants.

12. Both the parties are in consensus with the execution of Ext. B1 series agreements, there is not much force in the argument of the opposite party that he had not insisted on the complainants' singing the agreements. In a situation like this, it is unimaginable that the complainants herein would have voluntarily opted to sign the agreement in the first place without demand of the same. So the fact that the agreements had been entered into is sustainable, especially so, on the 3^rd point raised by the counsel for the opposite party has agreed to the existence of the same.

13. According to DW1 on several occasions, the complainants accepted raw materials for making CFL from him after acknowledging the same in Ext. B3 ledger book. DW1 maintains that since the complainants in violation of the agreements had sold the furnished goods to third parties instead of DW1, DW1 preferred to file Civil Suits against the complainants before the Hon'ble Munsiff Court, Cherthala to get a compensation of Rs. 50,000/- as per the agreement. DW1 further contends that as a ruse to the Civil Suits, the complainants filed these complaints in this Forum. It is to be noted that DW1 has not produced Ext. B3, during the examination of the complainants, he ought to have produced the same and got it confronted with the complainants to substantiate his contention in which he failed. So, the contention of DW1 that he had frequently delivered raw materials to the complainants does not hold water.

14. Exts. B7 to B10 are the copies of the plaints filed by DW1 against the complainants before the Hon'ble Munsiff Court, Cherthala. Ext. B11 is the copy of judgment passed by the Hon'ble Munsiff Court, Cherthala against the complainant in C.C. No. 278/2008. The complainants are before us alleging deficiency in service on the part of the opposite party. The Civil Suits are filed by the opposite party against the complainants to get compensation for the violation of the terms and conditions in Ext. B1 series agreements. Being a service provider the remedy of the opposite party lies before the Civil Court and he is at liberty to proceed with the same, if so advised on that account.

15. The Hon'ble Kerala State Consumer Disputes Redressal Commission vide order in Appeal passed the following order :

“The same is set aside. The Forum is directed to consider the evidence and write a proper judgment supported by reasons and if required after rehearing the parties. The matter stand posted before the Forum on 29-07-2011.” (emphasis supplied)

Which gives this Forum amble room for inferences including the appointment of an expert commissioner.

16. After the remand, the complainants filed I.A. Nos. 578/2011 to 581/2011 seeking appointment of an expert commission to examine and report the condition of the gadgets supplied by the opposite party. At that point of time, the opposite party neither did raise any objection against the petition orally nor put the same in black and white. Thus, the petition was allowed by this Forum in the interest of justice. This Forum specifically directed both the parties to file their respective panel of experts, if any to appoint the most competent among them. The opposite party opted not to file a panel of experts for his own reasons. Thus, the expert commissioner was appointed from the panel of experts submitted by the complainants. Accordingly, the expert commission who was examined in this Forum as DW3 was appointed and his reports were marked as Exts. C1 to C4. Exts. C1 to C4 reports are identical in nature. Ext. C1 is reproduced as under for convenience.

“ Answer to the two points of the complainant :

1) The condition of the machinery and its value?

a) Pressing Die Set (Local made)

• Seen completely rusted and not in working condition

• Value approximately Rs. 1400/-

b) Testing Board (Echo Light)

• Produced with faulty voltmeter

• Value approximately Rs. 150/-

c) Multimater (SAMWA)

• In working conditions

• Value approximately Rs. 150/-

d) De-Soldering Pump (MX-128)

• In working condition

• Value approximately Rs. 75/-

e) Soldering iron (SOLDRON)

• In working condition

• Value approximately Rs. 200/-

f) Wire stripper

• Not used

• Value approximately Rs. 35/-

g) Spanner – 1 No: (size 10-12)

• Not used

• Value approximately Rs. 15/-

Answer to work memo dated 22/09/2011 of Shaji Thankappan, Counsel for the opposite party :

1. Report whether the pressing die set and testing board are available in the public Market? If available what is the cost and which company is producing the same?

 

• These types of pressing die set and testing board are proprietary made locally to suit the requirements of each customer.

2. What is the cost of 80 pieces of CFL raw materials?

 

• The components of CFL lamp are circuit board (Rs.20), holder (Rs. 20) and tube (Rs. 10). The approximate value of these components for a locally made CFL Rs. 50/-. Hence the total value would be 80 x 50 = Rs. 4000/-.

3. Report whether the pressing die set and testing board are in working condition? If not what is the reason? What will be the cost for repairing the same?

 

• Pressing die set is completely rusted and not in working condition.

• Testing board is with a faulty voltmeter.

• Both these equipments are of poor quality.

• Both the equipments are beyond repair.

4. Report whether the ball bearing of the pressing die set is in working condition?

• Not in working condition.

5. Report whether 80 pieces of CFL raw materials are with the petitioner?

• I am informed by N.V. Pradeep Kumar that raw materials were returned to Sri. Michael E.D.

6. Report whether soldering iron is required for manufacturing the CFL?

• In CFL soldering iron is used to solder the connections to the circuit board from the holder.

7. What will be the cost of 25 W Soldron Company's soldering iron, which contains in the tools kit?

• Valued approximately Rs. 200/-.”

17. DW3 was cross-examined at length by the learned counsel for the opposite party. During examination, DW3 unequivocally deposed that the gadgets supplied by the opposite party is not in working condition and made of substandard materials inferior quality and beyond repair. In short, nothing is on record to discard the findings of DW3 in Exts. C1 to C4. For the above detained reasons, the contention of the opposite party that the expert commission is only a mechanical engineer and not an electronics engineer at this juncture does not hold force. In view of the above, we are only to hold that the complainants are entitled to get refund of the amount paid by them to the opposite party with interest.

18. Point No. iv. :- Primary grievance of the complainants having been met squarely and adequately, order as to costs is not called for.

19. In the result, we partly allow the complaints and direct that the opposite party shall pay Rs. 35,000/- to each of the complainants together with interest @ 12% p.a. from the date of receipt of the amount till realisation.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order.

Pronounced in the open Forum on this the 25^th day of August 2012

Forwarded/By Order, Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Senior Superintendent.

A P P E N D I X

In C.C. No. 270/2008 :-

Complainant's Exhibits :

Opposite party's Exhibits :-

In C.C. No. 271/2008 :-

Complainant's Exhibits :

Opposite party's Exhibits :: Nil

In C.C. No. 272/2008 :-

Complainant's Exhibits :

In C.C. No. 278/2008 :-

Complainant's Exhibits :

Opposite party's Exhibits :: Nil

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