IN THE CONSUMER DISPUTES REDRESSAL  COMMISSION, KOLLAM

Dated this the   31^st  Day of  January  2022

  Present: -  Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President

      Smt.S.Sandhya Rani, Bsc, L.L.B,Member

                                                    CC.215/17

Mrs.Ambili.S                                     :         Complainant

Ambily’s Friendly Beauty World

Near Vallikeezhu temple, Vallikeezhu

Kavanadu P.O, Kollam-691003.

[By Adv.Benoy Bal]

V/s

Mr.Ananthu Selvan

Proprietor

King Power Solutions,

Seminary Junction, Chingavanam,

Kottayam-686004.

[By Adv.Prakash Pampady]

FINAL   ORDER

E.M.MUHAMMED IBRAHIM , B.A, LL.M, President

          1. This is a case based on a consumer complaint filed u/s 12 of the Consumer Protection Act 1986.

          2. The averments in the complaint in short are as follows:-

          The complainant is a beautician by profession and she is the proprietress of Ambily’s Friendly Beauty World.  The said firm is being run by the complainant as her livelihood and the said business is the main source of income of her family.  The opposite party is a dealer in Ashok Leyland Generator.  As canvassed by the representatives of the opposite party, the complainant  booked a 20KV generator on 04.03.2017 by paying an advance amount of  Rs.50,000/- in cash and the opposite party issued Receipt No.0110 dated 04.03.2017 in favor of the complainant by receiving advance amount.  Later the complainant paid Rs.2,25,000/- in the account of the opposite party by way of RTGS transfer from her bank account.  Out of the said amount Rs.2,15,000/- was towards the balance sale consideration of the generator and Rs.10,000/- was towards the advance for installation and fee for processing the sanction from KSEB.  The opposite party delivered the generator on 04.05.2017 and on that date the complainant issued a signed blank cheque as security for the balance installation charges.  After installation of the generator it came to the notice of the complainant that the opposite party has cheated her by supplying  15 KV Three phase generator instead of 20 KV three phase generator as assured.  Since the opposite party has acted in contravention to the assurance given, the complainant informed the opposite party that she is not interested in entrusting the installation work to the opposite party.  She has also demanded to repay the installation charge of  Rs.10,000/- paid in advance and also requested to return the security cheque.  She has also requested the opposite party to hand over the Original Manufacture Test Report(OMTR) of the generator and warranty papers.  But the opposite party materially altered the signed blank cheque issued by the complainant and presented it before the bank and got it dishonored and issued a notice under Section 138 of the Negotiable Instruments Act for which the complainant issued a reply stating the facts.  The above acts of the complainant in supplying a generator without the correct specification as assured, over non handling OMTR of the generator and warranty papers and also the act of not returning Rs.10,000/- received as advance of installation charges and fee for processing the sanction from KSEB amounts to unfair trade practice and deficiency in service.  The above acts of the opposite party has caused much mental agony apart from financial loss to the complainant.  Therefore the opposite party is liable to compensate  the loss sustained by the complainant.  Hence the complaint.

          3. The opposite party resisted the complaint by filing a detailed written version raising the following contentions.  The complaint is not maintainable either in law or on facts.  The complainant is not a consumer since she is a lady engages in several businesses.  The opposite party firm is the authorized dealer of Ashok Leyland generator  Ananthu Rajan is the Managing Partner of the opposite party firm.  However the opposite party would admit that the complainant has booked one 20 KV generator. At the time of booking the generator the opposite party has handed over a quotation containing the specification of the generator, payment details and warranty details.  The original price of the generator is  Rs.2,65,000/-.  But the opposite party has issued a quotation for Rs.3,00,000/-.  The bank has sanctioned Rs.2,65,000/- and the remaining amount has to be collected by the complainant. For the purpose of sanctioning the loan the complainant has obtained a receipt from the opposite party indicating that she has paid Rs.60,000/- as  advance towards the payment of consideration of  the generator inorder to produce the same before the bank.  However the complainant has made RTGS transfer of Rs.2,25,000/- from her bank to the account of the opposite party and issued a cheque for Rs.40,000/- towards the balance sale consideration.  The said cheque bounced when it was presented, though the opposite party demanded to  repay the cheque amount the complainant failed to do so.  Hence he filed a criminal complaint before the Judicial Magistrate Court, Changanassery.  Inorder to wriggle out from the above criminal case she has filed a false complaint before this Forum/Commission.  The allegation that she has paid Rs.2,75,000/- out of which Rs.10,000/- is installation charges is incorrect.  The further allegation that she issued a blank cheque as security for the installation charges is also incorrect.  Opposite party is engaged in supplying generator and they have not undertaken to carry out the installation work of the generator which has been done by others deputed by the complainant and her husband.  If the complainant has undertaken to carry out the installation work the fact would have find a place in the invoice  or other record issued by the opposite party.  The allegation that the opposite party has supplied 15 KV generator is incorrect.  The opposite party has supplied 20 KV generator and the allegation to the contrary is incorrect.  As the complainant has not paid the full consideration OMTR has not been issued.  In case the complainant pays the balance amount of Rs.40,000/- the opposite party is ready to hand over OMTR.  As the opposite party has travelled several times from Kottayam to Kollam for demanding the amount he has sustained much mental agony and financial loss.  The complainant has no cause of action and hence the complaint is not maintainable.

          4. In view of the above pleadings the points that arise for consideration are:-

1. Whether the complainant has paid Rs.10,000/- to the opposite party towards advance of installation charges of the generator purchased from the opposite party?
2. Whether the complainant has handed over one signed blank cheque to the opposite party as security towards balance of installation charge and processing fee of KSEB as claimed?
3. Whether the complainant is entitled to get back Rs.10,000/- and the security cheque from the opposite party as claimed?
4. Whether the complainant is entitled to get the OMTR and warranty papers of the generator purchased from the opposite party?
5. Whether there is any deficiency in service and any unfair trade practice on the part of the opposite party?
6. Whether the complainant is entitled to get compensation and costs as claimed?
7. Reliefs and costs.

Point No.1to 4

6. For avoiding repetition of discussion of materials these 4 points are considered together. Following are the admitted rather undisputed facts in this case.  The complainant purchased one Ashok Leyland 3 phase generator from the opposite party on 04.05.17 vide Ext.P1 retail invoice.  The complainant paid Rs.2,25,000/- through RTGS transfer into the account of the opposite party which is evident from Ext.P3 statement of accounts. 

7. The main allegation of the complainant is that she has placed order for 20KVA capacity generator and paid the price of the same.  But the opposite party supplied one 15KVA capacity generator.  The opposite party has totally denied the above allegations.  According to the opposite party  the total price of the 20 KV generator is Rs.2,65,000/- out of which the complainant has paid only Rs.2,25,000/- through RTGS transfer from her Bank A/c and no amount has been paid as advance though the complainant has obtained Ext.P2 receipt indicating the payment of Rs.50,000/- as margin money  to convince the bank that she has paid margin money to obtain the loan.   Ext.P2 receipt issued by the opposite party in favor of the complainant would indicate the receipt of  advance amount of Rs.50,000/- on 04.03.2017.  According to the complainant the said payment was towards the advance of the price of a new Ashok Leyland DG set(20KVA 3PHS) Generator.  In view of the oral evidence of PW1 and PW2 coupled with Ext.P2 receipt, P5 lawyer notice and Ext.D3 order acceptance it is crystal clear that the complainant intended to purchase 20KV 3 phase generator from the opposite party for which she paid Rs.50,000/- as advance.

8.   However in Ext.P1/Ext.D4 retail invoice No.14 dated 04.05.17 issued by the opposite party,  the description of the commodity is mentioned as 15/20KVA Ashok Leyland 3 PHS.  If the generator supplied is 20KVA then that fact would have been written in Ext.P1 instead of stating 15/20 KVA Ashok Leyland 3 PHS.  The opposite party has no case that even though he  has stated as 15KVA what is supplied was 20KVA or he was  erroneously shown as 15KVA. 

9.  It is to be pointed out that Ext.D3 produced and got marked by the opposite party would clearly indicate that as per the quotation dated 02.03.2017 issued by the opposite party she accepted to purchase one Ashok Leyland 20KVA 3 Phase generator for a price of Rs.2,60,000/- and also agreed mechanical erection and electrical works are “extra”.  The opposite party has no consistant case regarding the specification of the generator supplied by him.  In the written version the opposite party would admit that “ lÀPn-¡mcn 20KV P\-td-äÀ _p¡v sNbvXn-cp¶p F¶v ]d-bp-¶Xv icn-bmWv ”.  In paragraph 4 of the written version the opposite party would contend that 15 KV P\-td-äÀ Aà lÀPn-¡m-cn¡v \ÂIn-bXv, 20KV P\-td-äÀ Xs¶-bmWv \ÂIn-b-Xv.  But in paragraph 2 of the proof affidavit filed by DW1/Op  it is stated that _m¦n \n¶pw XpI A\p-h-Zn-¨-Xn-\p-tijw B hne-¡pÅ P\-td-äÀ th­ F¶pw  AXn Ipdª hne-¡pÅ 3 t^kv P\-td-äÀ aXn-sb¶pw t^mWn-eqsS Ft¶mSv Bh-i-y-s¸-«p.  IqSp-X XpI _m¦n \n¶pw hm§n-sb-Sp-¡p-¶-Xn-\p-th-­n-bmWv  IqSp-X hne-bv¡pÅ Iz-t«-j³ F¶n \n¶pw hm§n-b-sX¶pw lÀPn-¡mcn Ft¶mSv ]dªp.  However the opposite Op/DW1 has no such case in his written version.  It is brought out in evidence during cross examination of PW1(page 4) that AhÀ sIm­p-h-¶Xv 15KV bptS-Xm-Wv.  15KV bptS-Xm-Wv P\-td-äÀ \ÂIn-bXv .  The opposite party has not challenged nor denied the above evidence of PW1 which brought out during cross examination of PW1. 

10. It is pertinent to point out that the learned counsel for the opposite party has put a question when PW1 asserted in cross examination that the generator supplied is of 15 KV “I½o-js\ shbv¡m³ X¿m-dpt­m(Q)” PW1 readly answered “ D­v”.  In fact as per Section 106 of the Indian Evidence Act the burden of proof is on the side of the opposite party as he has supplied the generator and he is the best person to prove that the generator supplied is having specification as stated in Ext.D3 order accepting the quotation.  The opposite party has also not produced the Original Manufacture Test Report(OMTR) which would contain the detailed specifications including whether the said generator is 15KV or 20 KV.  The non production of such a vital document before this Commission is much fatal to the opposite party’s case and the Forum is entitled to draw adverse inference against the opposite party u/s 114(g) of the Indian Evidence Act that if the OMTR is produced it would disprove the case of the opposite party in this regard.  According to DW1 opposite party has supplied generator  having lesser quality as the complainant has requested over phone the opposite party to supply 3 phase generator having lesser price.  The above admission itself would indicate that the opposite party has not supplied  20KVA generator but supplied only lesser specification having 3 phase.  The above version of opposite party that he had supplied generator having lesser specification as requested by the complainant after obtaining bank loan is a new contention which is not seen stated in the written version. 

11. According to the complainant the total price of the generator was Rs.2,65,000/- and she paid Rs.50,000/- as advance on 04.03.2017 as per Ext.P2 receipt.  The further allegation of  the complainant is that out of the total amount of Rs.2,25,000/- paid as RTGS transfer Rs.10,000/- was towards advance of installation charges.  Opposite party denied the above claim and would content that the agreed price for the generator was Rs.2,65,000/- out of which Rs.2,25,000/- alone was paid by RTGS transfer and for payment of the balance consideration the complainant has issued original of Ext.D1 cheque.  The specific allegation of the complainant is that the complainant would deny the above claim of the opposite party and would allege in the complaint as well as in Ext.P5 reply notice that the complainant has paid Rs.50,000/- in cash towards advance payment of the agreed price of the 20KV 3 phase generator and she paid the balance amount  of Rs.2,25,000/- by way of RTGS transfer from her bank account.  The said amount includes Rs.10,000/- towards advance payment of electrical installation and when the generator was supplied she entrusted a blank cheque for the balance of the installation charges including civil work.

12. According to the opposite party Ext.P2 is a receipt issued as requested by the complainant for production before the bank authorities to convince them that she has  paid margin money on the basis of Ext.D1A quotation so as to enable  the bank to grant maximum loan to purchase the generator.  In view of the materials available on record including the oral evidence of PW1&2 and Ext.P3 document we find no merit in the above contention of the opposite party.  In paragraph 2 of the proof affidavit the complainant has sworn that  on 04.03.2017 she has paid Rs.50,000/- in cash as advance towards the price of the 20KV Ashok Leyland 3 phase generator.  During cross examination PW1 would admit that for the purpose  of starting beauty parlor she has availed a loan of Rs.29,00,000/- from Vijaya Bank for which she has not obtained any quotation from the bank.  She has not availed any loan for the purpose of purchasing any generator and the loan has been sanctioned 2 months prior to the date of entering into the deal  with opposite party.  The opposite party has issued Ext.P2 receipt when she paid advance amount for supplying 20KV generator.  According to PW2 who is the manager of Vijaya Bank, Kollam branch the complainant has availed a loan to the tune of Rs.18,00,000/- from Vijaya Bank and the generator purchased by the complainant is a part of the above loan and out of the loan amount Rs.2,25,000/- has been given to the complainant for purchasing the generator.  It is further to be pointed out that Ext.P3 is the extract of the loan account standing in the name of Ambily’s Friendly Beauty World belongs to the complainant, starting from 07.03.2017 to 13.06.2017.  Drawing power as per the statement of account is Rs.17,00,000/-.  On perusal of Ext.P3 it is clear that the complainant has availed overdraft facility from the said Bank for Rs.17,00,000/- on 07.03.2017 and from the above O/D account several amount has been released by way of  RTGS transfer to several agencies including Rs.2,25,000/- to the opposite party.  In view of the oral evidence of PW1&2 coupled with Ext.P2,P3,P5 documents it is crystal clear that the complainant has paid Rs.50,000/- as advance towards the price of the 20KV generator and remaining amount of Rs.2,25,000/- has been transferred from her loan account by way of RTGS transfer. 

13. The oral evidence of PW1, Ext.P5 lawyer notice and Ext.D3 order acceptance dated 22.03.2017 would clearly indicate that the agreed price of Rs.2,65,000/- excluding erection/installation charges and electrical works.  Therefore the chance of issuing the original of Ext.D1cheque as a security for the installation/erection charges, electrical works cannot be ruled out in the absence of contra evidence.  According to the complainant she has entrusted a blank cheque as security for the amount while purchasing the 20KV generator.  PW1 has sworn towards the end of paragraph 2 of the proof affidavit that the opposite party has supplied the generator on 04.05.2017 and on the same day she handed over a blank  cheque bearing No.550422 as a security for the balance of installation charges.  But as she found that the generator supplied was not 20KV generator as per her specification which was informed by Ashok Leyland service centre itself and therefore she has decided not to install the generator by availing service of the opposite party.  It is also brought out in evidence that the opposite party has demanded more service charges than others demanded for installation  and electrical work which also persuaded her not to avail the service of the opposite party for installation.  Therefore she demanded to return the installation charge of Rs.10,000/- paid as advance and also demanded to return the cheque and also requested to hand over the Original Manufacture Test Report(OMTR) and original warranty paper.  But in the mean time the opposite party presented the cheque by falsely filing it up and got it bounced.

          14. It is argued on behalf of  the opposite party that on the request of the complainant the opposite party has  issued Ext.P2 receipt for Rs.50,000/- on 04.03.2017 for producing before the Bank to show that the complainant has invested the margin money to sanction the loan without receiving the amount from the complainant.  Subsequently the complainant requested another quotation of lesser amount.  Hence the opposite party issued Ext.D2 quotation for Rs.2,65,000/- that the complainant admitted that quotation and has given Ext.D3 order to supply the generator and also transferred Rs.2,25,000/- on the same day into the account of the opposite party from her bank account maintained with Vijaya Bank, Kollam branch and on 04.05.2021 the opposite party supplied the generator to the complainant at her beauty parlor.  Thereafter she issued a cheque for Rs.40,000/- in favour of the opposite party’s firm  for the balance amount(2,65,000-2,25,000).  Thereupon the opposite party issued Ext.D4 cash bill/invoice for Rs.2,65,000/-.  Though the opposite party presented the cheque at the bank which was returned unpaid due to insufficiency of funds in the account of the complainant.  Hence the opposite party filed Ext.D5 criminal complaint u/s 138  before the Judicial Magistrate Court, Changanassery.  After getting summons in the above criminal case the opposite party foisted this case to harass and wreak vengeance against the opposite party and this is a vexatious case which is not maintainable at all.  The complainant has totally denied the above allegations and would allege that the cheque involved in the criminal case has been issued as security for installation of the generator and not issued towards the payment of  Rs.40,000/- as claimed  by the opposite party.

15. Ext.D1 is a copy of the cheque obtained from the Magistrate court  concerned were the opposite party has lodged a complaint alleging offence u/s 138 of the Negotiable Instrument Act.  There is no chance of issuing a cheque on the date it bears which is 08.05.2017.   According to the complainant she entrusted the cheque on 04.05.2017 on the date when the opposite party supplied the generator.  But as per Ext.P4 lawyer notice and D5 complaint filed u/s 142 of the Negotiable Instrument Act the cheque was prepared and signed on 08.05.2017.  There is no chance of issuing original  of D1 cheque as no transaction has taken place on 08.05.2017 and admittedly generator was supplied on 04.05.2017 and thereafter there is no chance of opposite party approaching the complainant at Kollam for obtaining D1 cheque and that the opposite party has no such case also.  In the circumstances the claim of the complainant that she had entrusted only a blank signed cheque on 04.05.2017 as security for installation and fee for processing sanction from KSEB is more probable, possible and acceptable. 

          16. Yet another contention of the opposite party is that they have not agreed to install the generator nor collected any installation charges.  However it is brought out in evidence during cross examination of  PW2 that Ext.P11 quotation  C³Ì-te-j³ NmÀPn-s\-¡p-dn¨v H¶pw ]d-bp-¶n-ÃtÃm?  ]d-bp-¶p-­v.  Cd-£³ NmÀPv include sNbvXmWv hne-Im-Wn-¨n-cn-¡p-¶-Xv.(The D.G Price of the Generator shown in Ext.P11 is Rs.3,00,000/-) .  The above evidence of PW2 has not been denied by the opposite party which would indicate that  the opposite party has  received Rs.10,000/- extra out of Rs.2,75,000/- collected from the complainant as advance of installation charges and the price of the generator is Rs.2,65,000/- only.  In view of the materials discussed above it is crystal clear that the opposite party has assured the complainant that he will deliver generator with 20KVA specification but supplied a generator of 15KVA specification and has also collected Rs.10,000/- towards installation charges from the total amount of Rs.2,75,000/- received from the complainant.

          17. According to the learned counsel for the opposite party Ext.D2&D3 documents would not prove that the opposite party has  received any installation charges.  We find no merit in the above contention.  What is stated in Ext.D3 is that mechanical erection work and electrical works are extra work which would indicate that if such extra work has to be done additional payment has to be given to the opposite party.  In short installation of the generator is extra work and hence the complainant has to pay for extra work.  The customer scope under D2 and P11 documents also would not  rule out the possibility of payment of charges for installation.  Admittedly the opposite party has not carried out any installation work or including any electrical work for installing the generator nor obtained any sanction from KSEB.  In the circumstances the complainant  is entitled to get back the amount of Rs.10,000/- obtained from the complainant as advance towards installation charges and also entitled  to get back the cheque bearing 550422 drawn on Vijaya Bank, Kollam branch received as security for the balance of installation charges.  Points answered accordingly.

Point No.5&6

          18. The learned counsel for the opposite party has argued that the complainant has no case that the generator supplied by the opposite party is a defective one and therefore there is no deficiency in service or any unfair trade practice on the part of the opposite party.  But it is brought out in evidence that the generator supplied by the opposite party to the complainant is not as per specification but having lesser specification which amounts to deficiency in service and unfair trade practice.  On evaluating the entire materials available on record we come to the conclusion that there is misfeasance, malfeasance and nonfeasance on the part of the opposite party in not supplying 20KV generator as ordered in Ext.P3 order acceptance even though the opposite party would admit that they have not installed the generator nor obtained any electrical sanction,  he has not returned the amount of Rs.10,000/- received as advance for the said purpose nor returned the original of D1 cheque issued as security for payment of balance amount of installation charge.  Hence there is deficiency in service on the part of the opposite party.  It is also brought out in evidence that the opposite party has not supplied OMTR and warranty papers to the complainant when the generator was supplied by receiving the balance price of Rs.2,25,000/- by RTGS transfer.  Therefore there is also unfair trade practice on the part of the opposite party. 

          19. It is clear from the available materials that the complainant has sustained much mental agony apart from financial loss due to the above misfeasance, malfeasance and nonfeasance  of the opposite party.  Therefore the complainant is entitled to get compensation.  However  the compensation claimed by the complainant to the tune of Rs.50,000/- is highly excessive and exorbitant.  In view of the facts and circumstances of the case we are of the view that the complainant is entitled to get Rs.25,000/- as compensation and also entitled to get Rs.10,000/- as costs of the proceedings.  The points answered accordingly.

Point No.7

          In the result complaint stands allowed in the following terms.

1. Opposite party is directed to refund Rs.10,000/- being the advance of installation charges collected from the complainant with interest @ 6% p.a from the date of complaint till realization.
2. The opposite party is also directed to pay Rs.25,000/- as compensation with interest @ 6% p.a from the date of complaint till realization.
3. The opposite party is further directed to return the security cheque bearing No.550422 drawn  on Vijaya Bank, Kollam branch.
4. The opposite party is also  directed to hand over original OMTR and original warranty papers to the complainant.
5. The opposite party is also directed to pay Rs.10,000/- as costs of the proceedings.

Opposite party is directed to comply with the above directions within 45 days from today failing which the complainant  is entitled to recover Rs.45000/- (25000+10000+10000)  with interest @ 9% p.a except for costs from the opposite party and from the assets of King Power Solutions, Chingavanam, Kottayam.

Dictated to the Confidential Assistant  Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Commission this the 31^st day of  January  2022.

E.M.Muhammed Ibrahim:Sd/-

           S.Sandhya Rani:Sd/-

          Forwarded/by Order

          Senior Superintendent

INDEX  

Witnesses Examined for the Complainant:-

PW1  :         Ambili

PW2  :         Gopakumar Pillai

Documents marked for the  complainant

Ext P1 :  True copy of retail invoice dated 04.05.2017.

Ext P2:  True copy of receipt dated 04.03.2017 for Rs.50,000/-.

Ext.P3 :  True copy of statement of account from 07.03.2017 to 13.06.17.

Ext.P4:   Lawyer notice dated 01.06.2017.

Ext.P5:   Reply notice dated 17.06.2017.

Ext.P6 :   Postal receipts

Ext.P7 :   Acknowledgment card.

Ext.P8:   Invoice/bill Asianet satellite communications Ltd.(2 Nos)

Ext.P9  : Copy of  Newspaper   cutting.

Ext.P10: Attested copy of  Ext.P2 receipt dated 04.03.2017.

Ext.P11: Attested copy of quotation dated 01.03.2017.

Witnesses Examined for the opposite party:-

DW1 :    Ananthu Rajan.

Documents marked for opposite party:-

Ext.D1: Copy of cheque dated 08.05.2017.

Ext.D1A:    Quotation dated 01.03.2017 for Rs.3,00,000/-

Ext.D2:       Quotation dated 21.03.2017 for Rs.2,65,000/-

Ext.D3:       True copy of Order acceptance dated 22.03.2017.

Ext.D4:       True copy of  Invoice dated 04.05.2017.

Ext.D5:       True copy of  complaint filed before JFCM Changanassery.

                                                                        E.M.Muhammed Ibrahim:Sd/-

S.Sandhya Rani:Sd/-

Forwarded/by Order

Senior Superintendent