Complaint filed on: 04-08-2016 Disposed on: 25-01-2017
BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM,
OLD DC OFFICE COMPOUND, TUMAKURU-572 101
CC.No.107/2016
DATED THIS THE 25th DAY OF JANUARY 2017
PRESENT
SMT.PRATHIBHA. R.K. BAL, LLM, PRESIDENT
SRI.D.SHIVAMAHADEVAIAH, B.A, LLB, MEMBER
SMT.GIRIJA, B.A., LADY MEMBER
Complainant: -
Sri.Mahadevappa.C,
S/o.P.Chikkanna,
Maruthi road,
Construction Equipments,
No.3E2, Antharasanahalli
Industrial Area, Tumakuru-06
(By Advocate Sri.G.Nagaraj)
V/s
Opposite party:-
M/s. C.N.Engineers,
Plot No.366, Kathwada GIDC,
Near Water Tank, Toad No.8,
Ahmadabad, Gujarath,
Reptd by Sri.Chandrakanth Suthar
(By Advocate Sri.V.P.Patel)
ORDER
SRI.D.SHIVAMAHADEVAIAH, MEMBER
This complaint has filed by this complainant against the Opposite Party, under Section 12 of the Consumer Protection Act. The complainant prays to direct the OP to delivery of Dryer Unit Model No.D.M.50 with capacity of 60 to 90 TPH which includes burner, motor, gear, chain, exhaust assembly with other accessories or in the alternative repayment of Rs.8,50,000=00 with 18% interest per annum and damages of Rs.50,000=00 per month till the delivery of machines and Rs.25,000=00 towards mental agony and Rs.25,000=00 other incidental relief together with interest to till the date of realization together with cost, in the interest of justice and equity.
2. The brief facts of the complaint is as under.
The complainant is the proprietor of Maruthi Road Construction Equipments who is the erection of dryer unit with accessories which will be used for road construction and other allied activities. The OP is the manufacturer and selling of the dryer units with accessories which will be used for road construction and other allied activities.
The complainant further submitted that, the OP had offered to sell Dryer unit Model No.D.M.50 with capacity of 60 to 90 TPH which includes burner, motor, gear, chain, exhaust assembly with other accessories. The price of the above said equipment was quoted at Rs.8,50,000=00. The complainant had accepted the said offer and agreed to purchase the same. The OP had received advance amount of Rs.5,00,000=00 and 3,50,000=00 from the complainant through RTGS on 25-4-2016 and 6-5-2016. In the total the complainant had paid a sum of Rs.8,50,000=00 to the OP and the OP has receive the same though his account.
The complainant further submitted that, he OP has not supplied machineries. As per terms and conditions of the agreement, the delivery time was 90 days from the date of confirmation with advance. The OP has received the entire amount of the machineries but he did not deliver the same. The complainant has contacted the OP number of time over telephone and personally went to the OP on 26-5-2016. The OP had sought for 15 days and thereafter he was postponing the delivery of the said machineries, till today the OP did not deliver the said machineries. Hence the OP has committed deficiency in service and negligence, thus the complainant has suffered heavy loss and damages and suffered mental and physical agony. Hence the present complaint is filed.
3. In response to the forum notice, the OP has appeared through his counsel and filed objections contending interalia as under:
The contents of the complaint are not true and not admitted. The complainant has no right to file this complaint and there is no cause of action to file the present complaint.
The OP further submitted that, the complainant has wrongly brought the matter before this Forum to waste the time, energy and unnecessary burden upon the Forum. The complaint is not in proper format and therefore it is not tenable in law. The complainant has not approached this forum with clean hands and suppressed the material important facts which is the most important in eye of law as well to decide by the Forum primarily that, whether this forum has jurisdiction or not, if the complainant acted in true and perspective manner then the complaint is not tenable in law because, firstly the complainant had not supplied the copies of the documents of the basis on which he came before the Forum. And secondly, in all the retail invoice it is specifically mentioned in condition clause at the bottom that, 1) Subject to Ahmedabad jurisdiction and 2) Interest at 21%. Therefore this forum has no jurisdiction to entertain the complaint. The Hon’ble forum is requested to decide the said question about jurisdiction primarily and then to decide the non-compliance of supplying the set of documents to the OP and completion and decision of the said points, this OP can able to give the proper and reasonable reply to the complaint of complainant. Hence the complaint is liable to be dismissed with cost.
5. In the course of enquiry into the complaint, the complainant and OP have filed their affidavit evidence reproducing what they have stated in their respective complaint and version. The complainant has produced documents along with the complaint which were marked as Ex-P1 to P4. We have heard the arguments of both parties and perused the documents produced by both parties and posted the case for orders.
6. Based on the above materials, the following points will arise for our consideration.
- Whether there was deficiency in service on the part of the OP as alleged by the complainant?
- What Order?
7. Our findings on the above points are;
Point no.1: In the affirmative
Point no.2: As per the final order below.
REASONS
8. The learned counsel appearing for the OP has attacked the case of the complainant on two folds. Firstly, it is contended that, whether this Hon’ble forum has got jurisdiction or not?. Secondly, it is contended that, the complainant had not supplied the copies of the documents of the basis on which, he came before the Hon’ble Forum.
9. Now, coming to the claim of the OP the learned counsel appearing for him as vigorously contended that, in the invoice, it is specifically mentioned in condition clause at the bottom that, “Subject to Ahmedabad Jurisdiction”.
10. Per-contra, the learned counsel appearing for the complainant submitted in his arguments that the payment has been made in Tumakuru by account transfer and the contract is made at Tumakuru, which has been duly acknowledged by the OP in the email.
11. On careful perusal of the said email, it is seen at Ex-P4, the correspondence between the complainant and OP, it is seen that, the amount of Rs.5,00,000=00 has been transferred to the account of OP on 25-4-2016, it is seen at Ex-P1 and amount of Rs.3,50,000=00 has transferred to the OP account through RTGS from the complainant account at Tumakuru on 6-5-2016, to that effect, the complainant got marked the document as Ex-P2 and P3. Further, the learned counsel vehemently argued that, the complainant cannot sign the invoice or delivery challan. To substantiate the same, the complainant relied on citations”
- Shanthi Roadways Vs. New India Assurance Company reported in I (1999) CPJ 615,
“Exclusion of jurisdiction – Goods receipt not signed in token of terms therein having agreed – Exclusion of cannot be inferred- The goods receipt has been issued by the appellant, and it has not been signed in token of its having agreed to the terms mentioned in the gods receipt. Therefore, it cannot be said that, there was a contract between parties for trail of the matter, in case of any dispute having any reason between the parties for trail of Calcutta. Thus, jurisdiction of Bareilly District forum cannot be ousted by this goods receipt. There is one more aspect in this controversy. The goods were not booked either from Calcutta or delivered at Calcutta. The entire transaction took place outside the jurisdiction or Calcutta court. Tehrefore, Calcutta court also cannot have jurisdiction in case of any dispute between the parties. The legal position is that if a part of course of action arises at two places then the parties can agree that the suit shall be filed only at one ofsuch place3s. In the present case, the facts on records will clearly got to shown that no part of cause of action arose within Calcutta. Thus collusion is that Bareilly district forum has jurisdiction to try the case and not the Calcutta District Forum”.
12. Therefore, in the light of the aforesaid decision, we find no force in the contention taken by the learned counsel appearing for the OP. Thus we hold that, this forum is having jurisdiction.
13. The learned counsel appearing for the OP has also taken another contention that, if the complainant acted in true and perspective manner then the complaint of complainant is not tenable in law, because the complainant had not supplied the copies of the documents of the basis on which he come before the Hon’ble Forum.
14. Per-contract, the complainant submitted that, all the relevant documents are produced before the Forum. So on perusal of the said documents produced by the complainant, it seen that, the transaction between the complainant and OP, the amount transfer from the account of complainant to OP it is seen at Ex-C1 to C3 and correspondences made between them, it is seen at Ex-C4. Therefore under the circumstances of the case, we hold that, the OP is committed deficiency of service and liable to compensate.
15. Now, coming to the merits of the case, it is the case of the complainant is that, he intent to purchase of dryer unit and he was approached the OP, then the OP offered to sell the dryer unit model No.DM 50 with capacity of 60 to 90 TPH which includes burner, motor gear chain exhaust assembly with other accessories, the price of the said equipment was quoted at Rs.8,50,000=00, then the complainant accepted the offer and agree to purchase the same.
16. In pursuance of the same, the OP received the advance amount of Rs.5,00,000=00 from the complainant, it has been credited to the OP’s current account No.09582560003525 of HDFC bank, Naroda branch, Ahmadabad through RTGS in UTIBH16116086408 on 25-4-2016. The complainant account at AXIS bank Ltd. at Tumakuru branch from the complainant account No.912020001212107, it seen at Ex-P1. Then the OP has received Rs.3,50,000=00 from the complainant, it has been credited to the OP’s current account No.09582560003525 at HDFC bank, Naroda branch, Ahmadabad through RTGS in UTR No.SRCBH16127078010 on 6-5-2016 from the complainant’s account at Saraswat Co-operative Bank Ltd, Tumakuru from his current account no.407100100000019, it is seen at Ex-P2 and P3. Further the complainant alleged that, in total Rs.8,50,000=00 received by the OP, but the OP did not supply the machineries to him as agreed by the terms and condition of the agreement, the delivery time was 90 days from the date of confirmation with advance. Thereafter, the complainant contacted the OP number of times over telephone and personally went to the OP on 26-5-2016, but the OP has sought for 15 days time, thereafter, the OP was postponing the delivery of the said machinery and he did not deliver the said machine. Hence, the OP has committed negligence and deficiency of service, due to this, the complainant has suffered heavy financial loss and damages.
17. On the other hand, the only objection raised by the OP regarding except jurisdiction and not supplied the documents on which ground filed this complaint and he has not disputed the alleged amount received by him and not specifically denied regarding non-supply of the machineries after receiving the amount and not produced any document to show that, the agreed machineries supplied to eh complainant.
18. So, looking to the oral and documentary evidence of complainant, it is no doubt true that, the material evidence placed by the complainant is more probable trust worthy. The complainant who comes to this forum seeking relief has established his case with convincing material evidence that, the OP did not supply the machinery and the OP did not act as per the terms and condition of the agreement. On account of it, the complainant has suffered financial loss and damages, the OP is totally negligent in not supplying the machinery to the complainant and there is a deficiency of service on the part of the OP, and accordingly, we answer this point in a affirmative.
19. The complainant has claimed delivery of Dryer Unit No.DM 50 with capacity of 60 to 90 with all accessories or repay of Rs.8,50,000=00 along with 18% p.a. and to pay damages of Rs.50,000=00 per month and to pay Rs.25,000=00 towards mental agony and to pay other incidental relief Rs.25,000=00. But there is no proof or documentary evidence for claiming damages of Rs.50,000=00 per month and Rs.25,000=00 towards mental agony and Rs.25,000=00 for other incidental charges. Therefore, the damages and expenses claimed by the complainant is very exorbitant. However, the OP instead of adhering to the terms as he agreed has postponed to install the alleged machineries, without any tenable or legitimate reasons thereby the OP has caused mental agony and harassment to the complainant. Therefore, we feel it is just and proper to award a reasonable amount of compensation under the head of damages and mental agony and harassment. However, under this circumstances of the case, we quantify it at Rs.10,000=00 towards damages and Rs.10,000=00 towards mental agony. Of course, the complainant has approached this Hon’ble Forum for redressal. On the negligent act of the OP, it is just and proper to award litigation cost of Rs.5,000=00 to the complainant and accordingly we answer this point. In the result, for the foregoing reasons, we proceed to pass the following;
ORDER
The complaint is allowed in part.
The OP is directed to deliver the Dryer Unit Model No.D.M.50 with capacity of 60 to 90 TPH with all accessories to the complainant within 30 days, failing which, the OP shall pay Rs.8,50,000=00 to the complainant along with 12% interest per annum from the date of payment to till the date of realization.
The OP is further directed to pay compensation of Rs.10,000=00 and damages of Rs.20,000=00 to the complainant.
The OP is further directed to pay litigation cost of Rs.5,000=00 to the complainant.
This is order is to be complied by the OP within 30 days from the date of this order.
Supply free copy of this order to both parties.
(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the open forum on this, the 25th day of January 2017).
LADYMEMBER MEMBER PRESIDENT
