Haryana

Karnal

CC/678/2021

M/s Indodaya Foods Private LImited - Complainant(s)

Versus

M/s Aquaneel Seperation - Opp.Party(s)

Bhagwat Prasad Gupta

29 Aug 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                       Complaint No. 678 of 2021

                                                        Date of instt.03.12.2021

                                                        Date of Decision: 29.08.2022

 

M/s Inodaya foods Pvt. Ltd. having office at 3-4 km, Milestone, Pipli-Ladwa road, Bir Mathana-136131, Kurukshetra, Haryana and also having a branch office at 395, First floor, Mugal Canal, Karnal through its director Shri Naveen Goel, resident of house no.1528, Sector-13, Urban Estate, Karnal.

                                               …….Complainant.

                                              Versus

 

M/s Aquaneel Separation 299-A, Makarpura GIDC, near BANL Telephone Exchange Vadodara 390010 Gujrat through its proprietor.

 

                                                              …..Opposite Party.

 

Complaint Under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

      Dr. Rekha Chaudhary….Member

 

 Argued by: Sh. Bhagwat Prasad, counsel for the complainant.

                    Opposite party exparte.

 

                    (Jaswant Singh President)

ORDER:   

 

                

                The complainant has filed the present complaint Under Section 35 of Consumer Protection Act, 2019 against the opposite party (hereinafter referred to as ‘OP’) on the averments that complainant is a private limited company duly incorporated under the Company Act having its office at Bir Mathana Kurukshetra, also at Pitampura Delhi-110034. The complainant is having its branch at 395, First floor, Mugal Canal, Karnal. Shri Naveen Goel, one of Director of the complainant company, has been authorized by Board of Director to file the present complaint. The facts of the case are that complainant contacted the OP for supply of whey concentration system which is used for concentration and desalting of liquid whey. At that time, it was firmly assured by the OP to the complainant that in case, any defect arises in the machine, then either it will be replaced or the amount will be refunded. On the assurance of the OP, complainant purchased the abovesaid machine on 19.01.2021, vide invoice no.AQN-43/20-21 from the OP worth Rs.25,01,600/- including GST and transportation charges. A sum of Rs.20,01,600/- was paid before the dispatch of machine and two cheques of Rs.2,50,000/- each were given to the OP. It was agreed between the complainant and OP that the said cheques will be presented only after successfully running of machine. However, both the said cheques were presented by the OP through its banker for encashment without the knowledge of the complainant. The complainant was also forced to transfer an amount of Rs.2,50,000/- by the OP by blackmailing that the flanges will  be replaced only on the receipt of minimum amount of Rs.2,50,000/- and this was done by the OP to grab maximum amount from the complainant. It is further averred that the machine was purchased and used by the complainant exclusively for the purpose of earning its livelihood. The abovesaid machine did not work due to the following defects:-

“The heart of the machine is specialized membranes and these membranes are specific for each application so as to give the required results and the membrane installed by the opposite party is for reverse osmosis of water and not meant for whey”.

 

As admitted by the OP in the certificate issued for this machine. Besides this, the machine also carried one year warranty from the date of its purchase. At the time of purchasing the machine, OP assured that the machine will run smoothly but the machine is not working properly as per certificate issued by the OP within warranty period. It is further averred that on opening the machine by another technical person, it was found that machine has been fitted with membrane FILMTEC-BW30-400 and dupont manufacturer of these membranes clearly says that “FILMTEC-BW30-400” element are ideal for reverse osmosis, plant managers and operators dealing with controlled pre-treatment water and seeking high performance, long element life and increased productivity”. The said manufacturer has clearly mentioned that these membranes are meant for reverse osmosis of water and has recommended different series of membranes for treatment (concentration & desalting) of whey. The complainant made regular complaints to the OP via telephone calls, whatsapp on 08.02.2021, 11.02.2021, 12.02.2021, 13.02.2021, 05.03.2021 and also sent emails on 08.02.2021, 12.02.2021, 05.03.2021 etc. regarding the abovesaid defect. But no proper response was given after sending number of reminders/phone call to the OP and OP always gave the assurance that it will send the Manager or Technician for resolving the problem but till date the problem has not been solved. On the regular request of complainant, Mr. Arvind Parmar & Mr. Arpit Parmar of the OP visited the complainant. However, they were not able to run the machine smoothly and said machine needed different type of flanges and they left from the factory assuring that they will send new ones. For the said purpose, the complainant deputed its person to bring flanges in car all the way from Vadodar, but the whey concentration system did not work. The complainant called another technical person for resolving the defect who checked the machine and stated that membrane is not for whey filtration and this membrane is used for filtration of water, not for paneer whey and OP has not given the right quality membrane with this machine for which the OP had committed fraud and charged/grabbed the money from the complainant illegally. The abovesaid product is not upto the mark due to the defect because of which Nano Filtration plant could not manufacture due to right quality of whey powder and the complainant has accumulated 100 bags of whey powder which nowhere meet the standards and due to which the complainant company has suffered monetary loss almost of Rs.20 lakhs in manufacturing of whey powder. The machine produces the following value of CLR, Ash and protein which is 22, 5.68 and 4.64 respectively as assured by OP while the production value of abovementioned content from Nano Filtration plant are of 38-39 (CLR), 5.68 (ash), and 5.2 (protein) respectively which is nowhere close to actual performance. Moreover, total solids (TS) are not in range of 18. The OP assured the complainant that if any defects comes in the machine then the machine will be replaced and this guarantee was given by the OP at the time of purchase of the said machine, but OP has supplied the defective machine with duplicate parts. Due to this act and conduct of OP, complainant has suffered financial loss, mention tension and harassment. Then complainant sent a legal notice dated 05.06.2021 through his counsel calling upon the OP to provide the original machine with original membrane or to refund the amount of Rs.25,01,600/- within seven days from the date of receipt of notice, but this notice also did not yield any result. In this way there is deficiency in service and unfair trade practice on the part of the OP. Hence this complaint.

2.             On notice, OP did not appear and opted to be proceeded against exparte, vide order dated 27.04.2022 of this Commission.

3.             Learned counsel for complainant has tendered into evidence affidavit of Naveen Goel, Director Ex.CW1/A, copy of resolution dated 25.08.2021 Ex.C1, copy of tax invoice dated 21.01.2021, copy of delivery challans Ex.C2, copy of delivery challans dated 21.01.2021 Ex.C3, copy of e-way bill Ex.C4, copy of bill Ex.C5, copy of legal notice Ex.C6, copy of ledger account Ex.C7, copy of emails Ex.C8, copy of certificate of manufacturer Ex.C9, copy of warranty card Ex.C10 and closed the evidence on 13.06.2022 by suffering separate statement.

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

5.             Learned counsel for the complainant, while reiterating the contents of complainant, has vehemently argued that complainant had purchased a whey concentration system from the OP on 19.01.2021 for the amounting of Rs.25,01,600/- with the warranty of one year, exclusively for the purpose of earning its livelihood. The abovesaid machine has not been working properly as per assurance of the OP. The complainant made regular complaints to the OP via telephone calls and whatsapp but no satisfactory response was given by the OP and till date the problem has not been solved. Then complainant called another technical person for resolving the defect who checked the machine and stated that membrane is not for whey filtration and this membrane is used for filtration of water and OP has not given the right quality membrane with this machine. He further argued that at the time of purchase of the abovesaid machine, the OP assured the complainant that if any defect comes in the machine during the warranty period, the machine will be replaced or refunding the bill amount but OP neither has replaced the duplicate machine nor refunded the cost of the said machine. As OP has supplied the defective machine with duplicate parts. Complainant has no faith on the OP and he wants to refund the cost of machine in question alongwith heavy compensation and litigation expenses and the complainant has suffered financial loss of almost Rs.20 lakhs in manufacturing of whey power and lastly prayed for allowing the complaint.

6.             In the present complaint, complainant has sought following relief from the OP:-

1.     To refund the amount of Rs.25,01,600/- alongwith interest @ 18% per annum.

2.     To pay sum of Rs.one lakh as compensation on account of mental agony and pain, deficiency in service and unfair trade practice and also to pay Rs.20,00,000/- on account of loss of business.

3.     to pay a sum of Rs.55,000/- as litigation expenses.

7.             To prove his case, complainant has placed on record his affidavit Ex.CW1/A and documents Ex.C1 to Ex.C10. It is evident from the Tax Invoice Ex.C2 dated 21.01.2021 that the complainant has purchased the machine in question from the OP and has paid the said amount through e-way bill system Ex.C4 dated 21.01.2021. It is also evident from the Ex.C3 dated 21.01.2021 i.e. delivery challan that whey concentration system has been supplied by the OP. It is also evident from emails Ex.C8 dated 08.02.2021, 11.02.2021, 12.02.2021, 13.02.2021, 05.03.2021 that the complainant has made regular complaints to the OP regarding the defects in the machine in question. It is also evident from the email dated 08.02.2021 that by the official of the OP that “Anil Parmar confirmed complaint for visiting with spares as per requirement.  As per email dated 16.02.2021 OP assured that “spare are already sent to you…details also sent to you Manager to track. We will bring other spares with us. Request you to please provide the datasheet of atleast 1 days oeration to understand the issue”. As per email dated 05.03.2021 Anil Parmar Aquaneel had confirmed the complainant for visiting with spares as per requirement. Thus, it is proved from the abovesaid emails that the machine in question was defective one from the very beginning. It is also evident from the certificate of manufacturer Ex.C9 that parts or element FILMTEC-BW30-40 are ideal for reverse osmosis, plant managers and operators dealing with controlled pre-treatment water and seeking high performance, long element life and increased productivity. The technical persons of the OP have also failed to run the machine smoothly. It is proved on record that OP has failed to supply the machine in question as offered by the OP.

8.             Complainant also served the legal notice Ex.C6 dated 05.06.2021 upon the OP mentioning all the facts in the said notice, but the same has also not been replied by the OP reason best known to OP.

9.             Terms of the payment is mentioned in Ex.C10 dated 10.09.2020 of the OP, which is reproduced as under:-

Terms of payment              60% in advance alongwith the purchase order balance 30% including taxes and duties, against Proforma invoice, prior to dispatch, 10% after successfully commissioning of the system.

But in the present case OP has received all the payments prior to commissioning of the system. Hence, it has been proved on the record that from the very beginning the intention of the OP was not fair.

10.           To rebut the evidence produced by the complainant, OP did not appear and opted to be proceeded against exparte. Thus, the evidence produced by the complainant is unchallenged and unrebutted and there is no reason to disbelieve the same. Thus, it is proved on record the machine in question meant for reverse osmosis of water and not for treatment (concentration & desalting) of whey. In view of the above discussion, the act of the OP not only amounts to deficiency in service and unfair trade practice rather has also played foul game to extract the money of the complainant.

11.           As per bill/tax invoice Ex.C2, complainant has purchased the machine in question to the tune of Rs.25,01,600/- and as per invoice Ex.C4 has paid the cost of the machine. Thus, OP is liable to refund the cost of the machine in question alongwith compensation for harassment, mental agony and litigation expenses to the complainant.

9.             In view of the above discussion, we allow the present complaint and direct the OP to refund the amount of Rs.25,01,600/- (Rs.twenty five lakhs one thousand six hundred only) to the complainant with interest @ 9% per annum from the date of making the payment till its realization. We further direct the OP to pay an amount of Rs.25,000/- as compensation for harassment and mental agony and Rs.11,000/-towards litigation expenses to the complainant. Complainant is also directed to handover the machine in question to the OP on receipt of awarded amount.  This order shall be complied with within 45 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:29.08.2022                                                                      

                                                                  President,

                                                       District Consumer Disputes

                                                       Redressal Commission, Karnal.

 

(Vineet Kaushik)          (Dr. Rekha Chaudhary)  

                     Member                        Member