A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION
HYDERABAD.
F.A 1599/2007 against C.C. 968/2006, Dist. Forum-III, Hyderabad
Between:
1) M/s. Parag Reprographic Equipment
A-21, Giriraj Industrial Estate
Mahakali Caves Road,
Andheri East
Mumbai-400 093.
Rep. by its Proprietor
Nilesh Mistry.
2) Nilesh Mistry, S/o. Dhansukhlal
R/o. Povai, Mumbai, Proprietor
M/s. Parag Reprographic Equipment
A-21, Giriraj Industrial Estate
Mahakali Caves Road,
Andheri East
Mumbai-400 093. *** Appellants/
Ops. .
And
M/s. Dynagrafix Label Pack Systems
(A registered Partnership firm)
Having the office and business at
Premises Plot No. 13/A,
Behind Vishwanath Theatre
Addagutta, Kukatpally
Hyderabad-500 072.
Rep. by its Partner
H.R. Prashanth Sarma
S/o. H.K. Rajagopal Sarma
Age: 35 years,
H.No. 29, Jalvayu Vihar
Air Force Naval Housing Board
Kukatpally, Hyderabad-500 072. *** Respondent/
Complainant
Counsel for the Appellant: M/s. Ananthram J.
Counsel for the Resps: M/s. Nissaruddin Ahmed.
CORAM:
HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT
&
SRI R. L. NARASIMHA RAO, MEMBER
MONDAY, THIS THE FOURTEENTH DAY OF DECEMBER TWO THOUSAND NINE
Oral Order: (Per Hon’ble Justice D. Appa Rao, President)
*****
1) This is an appeal preferred by the opposite parties against the order of the Dist. Forum directing them to refund Rs. 30,000/- together with interest @ 9% p.a., from 15.9.2006 together with damages and costs.
2) The case of the complainant in brief is that first appellant is a proprietary concern and the second appellant representing the first appellant negotiated with them for supply of ‘Roll to Roll Die Cutting Machine’ and also Roll Slitter 26 with Pnumo Hydraulic Web Guide for Rs. 1,33,000/-. Accordingly he has signed two proforma agreements and sent it to their office at Mumbai. The appellants had installed the ‘Roll to Roll Die Cutting Machine’ on 17.4.2006, however it was not functioning. The appellant also supplied Roll Slitter 26” with Pnumo Hydraulic Web Site on 16.8.2006 and installed it on 10.9.2006 and attempted to operate it for demonstration, however it did not also work. He paid an advance of Rs. 30,000/- promising that he would pay balance of Rs. 1,03,000/- as and when the machine works. However, it proved beyond rectification. Despite his repeated requests over telephone, as they did not rectify the machine, he issued registered notice seeking refund of the amount, however they did neither refund nor get the machine repaired. Therefore he filed the complaint for refund of Rs. 30,000/- together with interest @ 12% p.a., Rs. 1 lakh towards compensation for deficiency in service, Rs. 20,000/- towards mental agony, Rs. 7,500/- towards rent for three months and Rs. 5,000/- towards costs.
3) The appellant resisted the case. While denying each and every averment made in the complaint however admitted that it had offered the machinery after sending the die cutting trial papers and after satisfying with the working condition, and also terms and conditions, the complainant placed the order at Mumbai. When it kept the machine in the complainant’s premises for installation, it had informed that it was not possible to install it being a rented premises, and there was no sufficient accommodation . After suggesting some more modifications by the complainant , the opposite party sent its proforma invoice for die cutting machine on 24.11.2005 and Slitter machine by letter Dt. 16.11.2005. The correspondence show that the complainant had been changing his specifications. After testing, the machines were dispatched in three modules. The complainant informed that the goods were received in wet condition due to rains in Hyderabad. It has transported to its own premises. On that it had removed the water from the die cutting machine and cleaned the machine and put it into operation to its satisfaction. When the complainant claimed transit damage repair bill for Rs. 30,000/- it had refused. Balance amount was paid only after satisfying with the working condition. Though some of the points were raised as to the performance of the machinery it had rectified all the defects. So also with the Slitter machine. Before sending the Slitter machine it had taken video film. It dispatched it on 14.8.2006 for Rs. 1,72,380/-. It was received in good condition. The complainant’s objections do not warrant any inference that there were defects in the normal operations of the slitter machine. It did not deviate from the terms and conditions of the proforma invoice. Since the complainant had put oil in the brakes to the slitter machine, it did not provide sufficient braking to the paper for slitting. The complainant was having the advantage of the machine cannot escape the responsibility from paying the amount by raising unnecessary disputes. The slitter machine was in operation. It should have 3 HP motor. When it sent invoice quoting 1 HP motor the complainant requested that it had to provide 2 HP motor without basis. Successful trials were conducted. The complainant placed the order at Mumbai and accepted the terms at Mumbai with a stipulation that it was subject to Mumbai jurisdiction and therefore it had no jurisdiction to adjudicate the complaint. In fact it was entitled to Rs. 5,16,204/- together with ‘C’ Form besides payment of CST @ 12.5%. There was no deficiency of service on its part. Therefore it prayed for dismissal of the complaint with exemplary costs.
4) The complainant in proof of its case filed the affidavit evidence and got Exs. A1 to A8 marked while the opposite party/appellant herein filed the affidavit evidence of OP2 and got Exs. B1 to B23 marked.
5) The Dist. Forum after considering the evidence placed on record opined that the complainant had purchased the machine from the appellant for eking out his livelihood by self-employment. Despite the fact that the complainant had addressed a letter Ex. A3 Dt. 11.9.2006 that there were technical problems, the appellants had failed to rectify the defects which amounts to deficiency in service. It opined that it has jurisdiction to try the case, and therefore directed the appellants to pay Rs. 30,000/- with interest @ 9% p.a., together with damages of Rs. 15,000/- and costs of Rs. 2,000/-.
6) Aggrieved by the said decision, the opposite parties preferred the appeal contending that the Dist. Forum did not appreciate either the facts or law in correct perspective. It ought to have seen that the Dist. Forum had no jurisdiction to try the matter. At any rate there was no deficiency of service on its part and prayed that the appeal be allowed, consequently dismiss the complaint.
7) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciate of facts or law and liable to be set-aside?
8) It is an undisputed fact that the complainant is a partnership firm represented by its Managing Partner. It is not in dispute that the appellant manufactures the ‘Roll to Roll Die Cutting Machine’ and also Roll Slitter 26 and sold to the complainant and received an amount of Rs. 30,000/- towards advance. The appellant installed the machine at Hyderabad in the premises of the complainant on 17.4.2006. The complaint is right from the inception the machinery could not be operated due to defective parts. Thought the appellant sent its technicians, they could not get it corrected. Even at the time of demonstration the Slitter did not work. In fact they informed that it was beyond rectification. When complained, the appellant agreed to refund advance of Rs. 30,000/- but did not refund. It is the case of the complainant that Roll Slitter 26 was purchased to eke out his livelihood, and neither it was purchased for re-sale nor for commercial purpose.
9) Though the appellant denied that there was problem in the machinery supplied by them, evidently the complainant by letter Ex. A3 Dt. 11.9.2006 categorically stated that the proprietor of the appellant visited their factory on 10.9.2006 failed to commission and operate the slitter machine. There was also a mention that the appellant “agreed to take back the slitter machine after paying the amount due to us”. The complainant had admittedly paid Rs. 30,000/- besides freight and unloading charges of Rs. 13,010/-. It is further mentioned that pertaining to Die-cutting machine the repairs were not made etc., amounting to Rs. 35,500/- .Altogether he claimed Rs. 96,010/-.including interest , hand loan etc. It was received by the appellant evidenced under acknowledgement Ex. A5 which evoked no response. The complainant served another letter Ex. A6 Dt. 3. 10. 20006. Belatedly by reply Dt. 24.10.2005 under Ex. A7 the appellant raised the contention that the machine was guaranteed for six months from the date of dispatch and once supplied cannot be taken back. Besides, jurisdiction was confined to Mumbai.
10) We may mention herein that at the time of installation the complainant had complained various damages caused to the machine for which the appellant admitted by stating “ On your urgent request, we deputed our service engineer to visit your factory to put the above subject machine supplied in working order. Our engineer reached on 18.4.2006 reported that original plastic packing was torn away on all packages except un-winder, there was water in all the packing including oil tray etc. Machine body and parts were damaged in transit and needs repair prior to putting it in operation. This is observed from multiple bruises and scratch marks possible during transit.”
11) They have also admitted that they have carried out certain repairs to Roll to Roll Die cutting machine. They observed that since the first engineer could rectify mainly electrical/electronic repairs, and could not rectify several mechanical damages, another engineer was deputed to attend and clean/de-rust/repair precision mechanical parts and assemblies. The complainant has been addressing letter after letter to get the same rectified. Even on 13.9.2006 under Ex. B16 the appellant admitted that they have visited the factory of the complainant, however stated that “you have oiled felt friction disk of unwinder and lower re-winder roll disk due to which tension in paper is not sufficient, required for slitting. You are advised to clean this oil so that sufficient tension is retained during slitting. Fiction disk of our slitter runs dry and do not require oil like your Roto keep paper straight during slitting. If you cannot clean oil from felt, send felt disk to us for re-lining dry felt. We feel that it will be difficult to remove oil from felt just by dabbing solvent.”. It maintained that Die Cutting Machine was damaged due to rain and mishandling during transit, and requested for payment of the amount. The entire correspondence do show that that there was defect in the machinery supplied by the appellant, and the same could not be rectified. Therefore the complainant was entitled to Rs. 30,000/- claimed by it towards defective machinery.
12) Learned counsel for the appellant contended that the Dist. Forum at Hyderabad has jurisdiction to entertain the dispute as the parties agreed that the jurisdiction would be at Mumbai. Learned counsel for the appellant relied a decision in Nailesh H. Doshi Vs. G.P. Pharma reported in 2003 (1) ALD 745 wherein the Andhra Pradesh High Court opined that the cause of action as well as the agreement prescribes that the Courts at Pune had jurisdiction, therefore it was held that courts at Hyderabad had no jurisdiction. The High Court considered Section 20 of CPC. The decision is besides the point, more so, in the light of the fact that the Consumer Protection Act provides filing of a case where part of cause of action arises.
13) A perusal of the record discloses that the appellant had come down and installed the machinery at Hyderabad, and warranty was given up till 17.4.2007, however the machinery did not function right from the day of installation. The amount was collected at Hyderabad. At any rate Section 11(2) (c ) of the Consumer Protection Act confers jurisdiction where the cause of action wholly or in part arises. When the machinery was supplied at Hyderabad, and in the light of Section 11(2) ( c) of the C.P. Act, the contention that the Dist. Forum at Hyderabad had no jurisdiction has no legs to stand. Despite the fact that the appellant unilaterally conferred jurisdiction at Mumbai where it resides, the parties cannot contract out from the provisions of the Act. We have considered the entire material on record, and we are of the opinion that the Dist. Forum did not err either in appreciation of facts or law in this regard. There are no merits in the appeal.
14) In the result the appeal is dismissed with costs computed at Rs. 3,000/-. Time for compliance four weeks.
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
Dt. 14. 12..2009.
*pnr
“UP LOAD – O.K.”
