Date of Order: Tuesday, 29th Day of September, 2015
The instant Petition of Complaint has been filed u/s. 17 of the Consumer Protection Act, 1986 by one Sri Dipak Ghosh alleging deficiency in service on the part of the above named Opposite Party.
The case of the Complainant, in a nutshell is that in order to purchase a ‘Boiler’ for a rice mill run by him for earning his livelihood by means of self-employment he made contact to the Opposite Party No.4 who handed over him a price schedule containing that price of the model PFX-30 as Rs,13,75,000/- and delivery of the Boiler shall be made within 15(fifteen) days from the purchase order with advance of 40% of the price and accordingly, he placed an order on 15.02.2012 for purchasing the same and paid Rs.10,02,500/- (Rupees Ten Lakhs Two Thousand and Five Hundred)only in pursuance of the Invoice being No.ESIPL/017/ARM/11-12 dated 21.02.2012 issued by the Opposite Party Pvt. Ltd. Company. Subsequently, on 07.03.2012 the Complainant paid the balance amount of consideration and thus made full payment but the Opposite Parties did not deliver the Boiler for which the entire project remained idle for an indefinite period. Facing such inconvenience the Complainant rushed to Bangalore and met the authorities on 25.04.2012 who assured him of despatching the Boiler within ten days i.e. by 05.05.2012. However, in spite of that assurance the Opposite Party authorities have been remaining silent since then. The Complainant has also stated that since he availed the consideration amount towards loan disbursed by United Bank of India, Habibpur Branch the Bank Authorities exerted pressure upon him for repayment of the same and being informed about inaction on the part of the Opposite Parties the Bank Authorities issued a letter dated 16.06.2012 to the Opposite Party No.1 requesting him to take expeditious action for despatching the Boiler to the Complainant. But all were in vain. Having no other alternative the Complainant has filed the petition of complaint praying for direction upon the Opposite Parties to refund the consideration amount of Rs.13,75,000/- with interest at the rate of 18 per cent per annum to be accrued thereon and from 17.02.2012 till realisation, pay Rs.5,00,000/- towards compensation and Rs.1,00,000/- towards cost of litigation to the Complainant.
In spite of service of notices the Opposite Parties did not turn up and hence the Complaint Case has been proceeded ex-parte against them.
In course of hearing of the instant case Ld. Advocate for the Complainant has submitted that the Complainant in order earn his livelihood by self-employment intended to run a rice mill and for the purpose of running the rice mill decided to purchase a Boiler by paying such hefty amount of Rs.13,75,000/- which he obtained by availing loan disbursed by United Bank of India under certain terms and conditions including the mode of repayment of the same. Ld. Advocate for the Complainant has specifically submitted that due to non-delivery of the Boiler by the Opposite Parties he has been suffering from financial loss and, therefore, the Opposite Parties are liable to compensate him by paying Rs.5,00,000/-.
Having heard submission made by the Ld. Advocate for the Complainant and on perusal of the materials on record it appears that the Complainant agreed to the commercial terms framed by the Opposite Party Private Limited Company for purchasing a Boiler for his proposed rice mill. The Complainant claimed to have paid Rs.13,75,000/- to the Opposite Party towards consideration. The Complainant filed receipt of Rs.10,02,000/- issued by the Opposite Party Pvt. Ltd. Company on 07.03.2012. It appears from the terms of payment that balance amount was scheduled to be paid after final inspection prior to dispatch. It also appears from the minutes of meeting held at Bangalore on 25.04.2012 between the parties (M/s. Energex, Bangalore and M/s. Annapurna Rice Mill, West Bengal) that the Opposite Party Company assured the Complainant of dispatching the Boiler within ten days (from that date) i.e. 05.05.2012. Further, it appears from the letter dated 27.06.2012 issued by the Opposite Party No.1 to the Manager, United Bank of India in response to his letter dated 16.06.2012 that the Opposite Party No.1 mentioned that due to serious financial problem it was not possible for them to deliver the Boiler by 05.05.2012 and expressed that they were expecting to deliver the same by 1st week of July, 2012. However, they failed to keep their own word. It also appears from the record that the Complainant served a demand notice upon the Opposite Parties demanding refund of entire consideration amount of the said Boiler including Tax as he paid to the Opposite Parties. However, all these above referred documents clearly show that there is no dispute regarding non-payment of consideration since there is no whispering regarding the same. Further, it is admitted by the Opposite Party No.1 (vide letter dated 27.06.2012 to UBI) that they had agreed to deliver the Boiler by 05.05.2012 but, due to financial problem the could not be delivered. Therefore, it is evident that the balance amount of consideration was paid by the Complainant. The Complainant observing all the formalities paid the entire amount of consideration money for the Boiler for which he was entitled to get the same within the stipulated period. The non-delivery of the Boiler within specified time is a glaring example of deficiency in service on the part of the Opposite Parties.
In view of the above, we are of opinion that the Opposite Parties are liable to refund the deposited amount to the Complainant and to pay compensation for loss of earning due to non-delivery of the Boiler.
In the result, the Complaint Case succeeds.
Hence,
O R D E R E D
that the Complaint Case being CC No.19 of 2013 is allowed in part ex-parte against the Opposite Parties with cost.
The Opposite Parties are directed to refund jointly or severally the amount of Rs.13,75,000/- to the Complainant within 30 days from the date of communication of this order to them. The Opposite Parties are further directed to pay jointly or severally Rs,3,00.000/- towards compensation and Rs.10,000/- towards cost of litigation to the Complainant within 30 days from the date of communication of the order to them.
In the event of default in making payment of the decreetal amount or any part thereof the Opposite Parties shall be liable to pay interest at the rate of 12 per cent per annum on the said amount for period of default till realisation thereof in full.
