Punjab

Faridkot

CC/16/331

Gobind Ram Mittla - Complainant(s)

Versus

M/s G.I Engineering Hi-Tech Fabricators - Opp.Party(s)

Atul Gupta

10 Jul 2017

ORDER

DISTRICT  CONSUMER  DISPUTES  REDRESSAL  FORUM,  FARIDKOT

 

Complaint No. :         331

Date of Institution :    8.11.2016

Date of Decision :     10.07.2017

 

Gobind Ram Mittal aged 68 years, s/o Umrao Singh Mittal r/o Old Grain market, Kotkapura, Tehsil Kotkapura District Faridkot.

   .....Complainant

Versus

1. M/s G I Engineering HI- Tech Fabricators, through its Partners.
2. M/s G I Engineering HI- Tech Fabricators, through its Partner Gurcharan Singh.
3. M/s G I Engineering HI- Tech Fabricators, through its Partner Inderjeet Sharma.

All c/o M/s M/s G I Engineering HI- Tech Fabricators, Jalaleana road, Opposite Kataria Kanda, Kotkapura, Tehsil Kotkapura, District Faridkot.

......Ops

Complaint under Section 12 of the

Consumer Protection Act, 1986.

 

Quorum:     Sh. Ajit Aggarwal, President.

Sh P Singla, Member.

 

Present:       Sh Atul Gupta, Ld Counsel for complainant,

 Sh Ravinder Kumar Singla, Ld Counsel for OPs.

 

ORDER

(Ajit Aggarwal , President)

                                             Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against Ops seeking directions to Ops to refund the amount of Rs.7,68,862/- with interest and for also directing Ops to pay Rs.5,00,000/- as compensation for mental agony and harassment etc and litigation expenses of Rs.25,000/-.

2                                             Briefly stated, the case of the complainant is that complainant is the proprietor of Gobind Industries and he planned to manufacture water storage tanks known as Roto Moulding Units of different capacities and for doing this, he also availed loan from State Bank of India, Kotkapura. It is submitted that for running the manufacturing plant, complainant initially started with commercial gas, but in February, 2014 OPs approached him and apprised him for Biomass Gassifier for Roto Moulding unit and asserted that they are expert in manufacturing and installation of same and also took him to confidence that gas used by complainant would be very less and then, they issued rate quotation to the tune of Rs.15,05,910/-dt 13.03.2014 and complainant supplied the same to his banker for availing loan. OPs also issued a booklet under the name and style of G I Engineering HI- Tech Fabricators showing different equipments being prepared by them including gassifier. Complainant paid Rs. 1,00,000/- on 19.03.2014 and Rs.5,00,000/-on 4.09.2014 to OPs through cheque and on receiving this amount of Rs.6,00,000/-, OPs assured to installation of gassifier within a period of week, but they did not install the same. On 12.08.2015 on receipt of further payment of Rs.1,68,862/-from complainant, OPs despatched some instruments for installation in factory premises. Gassifier unit was also installed to some extent, but till date its functioning could not be started as OPs did not have knowledge of installing and manufacturing of same and due to this, business of complainant stands still. Though complainant also served legal notice to OPs and have also made payment of Rs.7,68,862/-to OPs, but all in vain. Complainant has suffered great harassment and mental tension due to this act of OPs, which amounts to deficiency in service and trade mal practice on the part of OPs and due to this complainant has prayed for seeking direction to Ops to refund the amount of Rs.7,68,862/- with interest and for also directing Ops to pay Rs.5,00,000/- as compensation for mental agony and harassment etc and litigation expenses of Rs.25,000/-. Hence, the complaint.

3                                             The Counsel for complainant was heard with regard to admission of the complaint and vide order dated 15.11.2016, complaint was admitted and notice was ordered to be issued to the opposite party.

 4                                                On receipt of the notice, OPs filed reply taking preliminary objection that complaint is a commercial concern having yearly turnover of about Rs.1 crore and said concern got fitted the biomass gassifier from OPs for manufacturing water storage tanks and thus, transaction is commercial in nature and as such, complaint is liable to be dismissed on this ground. It involves complicated questions of law and facts requiring heavy evidence that is not possible in summary proceedings and this Forum has no jurisdiction to hear and try the present complaint and even complaint is bad for mis joinder of necessary parties and complainant has no locus standi to file the present case. However, on merits, OPs have denied all the allegations levelled by complainant being wrong and incorrect, and reiterated that there is no deficiency in service on the part of OPs. It is admitted by Ops that they issued booklets and rate quotations dt 13.03.2014 to complainant. It is also admitted by OPs that complainant paid an amount of Rs.one lac on 19.03.2014 and Rs. Five lacs after a period of six months on 4.09.2014 but it is denied that they assured complainant of ISI approved mark of all items. It is asserted that if biomass gassifier and material is to be fixed of ISI mark, then its cost would have been upto Rs35 lacs or more and they totally denied that they agreed to provide biomass gassier of ISI mark for Rs.7,68,862/-. They further averred that complainant has not paid the entire amount within time. Further averred that on 12.08.2015, OPs sent all parts in complete for the affixation of gassifier through canter and total amount recoverable was Rs.7,68,862/-, but complainant did not pay the Rs1,68,862/-to OPs despite repeated requests by OPs and after installation of biomass gassifier after one month of 12.08.2015, the same is running satisfactorily and complainant is levelling false allegations of its non working. Ops further asserted that amount of Rs1,68,862/- is still due and recoverable from complainant. Moreover, complainant has also availed subsidy of 50% on said plant and even complainant has imported a Chinese machine from China for manufacturing plastic water tanks and that machinery is automatic and biomass gassifier supplied by OPs is now useless for complainant and that is why he has filed complaint to grab money from them. All the other allegations and allegation with regard to relief sought too are refuted being wrong and incorrect and prayed for dismissal of complaint.

5                                                           Parties were given proper opportunities to lead evidence to prove their respective pleadings. The complainant tendered in evidence his affidavit Ex.C-1 and documents Ex C-2 to 19 and then, closed the evidence.

6                                     The OPs tendered in evidence affidavits Ex.OP-1 and 2, documents Ex OP-3 to OP-5 and then, closed the evidence on behalf of OPs.

7                                         We have heard the ld counsel for parties and have carefully gone through the evidence and documents placed on record by respective parties.

8                                      The ld Counsel for complainant argued that complainant is the proprietor of Gobind Industries and he planned to manufacture water storage tanks known as Roto Moulding Units of different capacities and for doing this, he also availed loan from State Bank of India, Kotkapura. It is submitted that for running the manufacturing plant, complainant initially started with commercial gas, but in February, 2014 OPs approached him and apprised him for Biomass Gassifier for Roto Moulding unit and asserted that they are expert in manufacturing and installation of same and also took him to confidence that gas used by complainant would be very less and then, they issued rate quotation to the tune of Rs.15,05,910/-dt 13.03.2014 and complainant supplied the same to his banker for availing loan. OPs also issued a booklet under the name and style of G I Engineering HI- Tech Fabricators showing different equipments being prepared by them including gassifier. Complainant paid Rs. 1,00,000/- on 19.03.2014 and Rs.5,00,000/-on 4.09.2014 to OPs through cheque and on receiving this amount of Rs.6,00,000/-, OPs assured to installation of gassifier within a period of week, but they did not install the same. On 12.08.2015 on receipt of further payment of Rs.1,68,862/-from complainant, OPs despatched some instruments for installation in factory premises. Gassifier unit was also installed to some extent, but till date its functioning could not be started as OPs did not have knowledge of installing and manufacturing of same and due to this, business of complainant stands still. Though complainant also served legal notice to OPs and have also made payment of Rs.7,68,862/-to OPs, but all in vain. Complainant has suffered great harassment and mental tension due to this act of OPs, which amounts to deficiency in service and trade mal practice on the part of OPs and due to this complainant has prayed for compensation and litigation expenses besides the main relief.

9                                 To controvert the allegations of complainant, ld counsel for OPs argued that complaint is a commercial concern having yearly turnover of about Rs.1 crore and said concern got fitted the biomass gassifier from OPs for manufacturing water storage tanks and thus, transaction is commercial in nature and as such, complaint is liable to be dismissed on this ground. It involves complicated questions of law and facts requiring heavy evidence that is not possible in summary proceedings and this Forum has no jurisdiction to hear and try the present complaint and even complaint is bad for mis joinder of necessary parties and complainant has no locus standi to file the present case. However, on merits, OPs have denied all the allegations levelled by complainant being wrong and incorrect, and reiterated that there is no deficiency in service on the part of OPs. It is admitted by Ops that they issued booklets and rate quotations dt 13.03.2014 to complainant. It is also admitted by OPs that complainant paid an amount of Rs.one lac on 19.03.2014 and Rs. Five lacs after a period of six months on 4.09.2014 but it is denied that they assured complainant of ISI approved mark of all items. It is asserted that if biomass gassifier and material is to be fixed of ISI mark, then its cost would have been upto Rs35 lacs or more and they totally denied that they agreed to provide biomass gassier of ISI mark for Rs.7,68,862/-. They further averred that complainant has not paid the entire amount within time. Further averred that on 12.08.2015, OPs sent all parts in complete for the affixation of gassifier through canter and total amount recoverable was Rs.7,68,862/-, but complainant did not pay the Rs1,68,862/-to OPs despite repeated requests by OPs and after installation of biomass gassifier after one month of 12.08.2015, the same is running satisfactorily and complainant is levelling false allegations of its non working. Ops further asserted that amount of Rs1,68,862/- is still due and recoverable from complainant. Moreover, complainant has also availed subsidy of 50% on said plant and even complainant has imported a Chinese machine from China for manufacturing plastic water tanks and that machinery is automatic and biomass gassifier supplied by OPs is now useless for complainant and that is why he has filed complaint to grab money from them. All the other allegations and allegation with regard to relief sought too are refuted being wrong and incorrect and prayed for dismissal of complaint.

10                                     After careful observation of the record placed on file and evidence led by parties, it is observed that case of the complainant is that he was planning to start a unit to manufacture water storage tanks known as Roto Moulding Units. For running the manufacturing plant, OPs approached him and apprised him for Biomass Gassifier for Roto Moulding unit and asserted that they are expert in manufacturing and installation of same. They issued rate quotation to the tune of Rs.15,05,910/-dt 13.03.2014 and complainant paid Rs. 1,00,000/- on 19.03.2014 and Rs.5,00,000/-on 4.09.2014 to OPs through cheque. OPs assured to installation of gassifier within a period of one week, but they did not install the same. On 12.08.2015 on receipt of payment of Rs.1,68,862/- more, OPs despatched some instruments for installation in factory premises, but till date gassifier is not installed and started. Due to this act of OPs, business of complainant stands still and he has suffered great harassment and mental tension. On the contrary OPs argued that complaint is running business on large scale and it is a commercial concern having yearly turnover of about Rs.1 crore and they got fitted the biomass gassifier from OPs for manufacturing water storage tanks and it is commercial transaction and as such, complainant does not fall under the definition of consumer under Consumer Protection Act and present complaint is liable to be dismissed on this ground. However, it is admitted by Ops that complainant contacted them for purchase of biomass gassifier and they gave rate quotations dt 13.03.2014 for Rs.15,05,910/-. They further admitted that complainant paid an amount of Rs.one lac on 19.03.2014 and Rs. 5,00,000/- on 4.09.2014, but complainant did not pay the entire amount to OPs as agreed. Ld counsel for Ops argued that on 12.08.2015, OPs sent all parts in complete for the affixation of gassifier and total amount recoverable was Rs.7,68,862/-, but complainant did not pay the balance amount of Rs1,68,862/-to OPs despite repeated requests. OPs installed the gassifier, which is running satisfactorily and the complainant has levelled false allegations of its non working. The complainant has levelled false and frivolous allegations against them. Now, it is admitted case of the parties that complainant ordered OPs for purchase of Biomass Gassifier and Ops issued rate quotations dated 13.03.2014 for Rs.15,05,910/-. It is further admitted that complainant gave Rs. 6,00,000/- to OPs vide cheque dated 19.03.2014 and 4.09.2014 and Ops supplied some parts of gassifier to complainant on 12.08.2015 worth Rs.7,68,862/-. Now, the first objection of OPs is that complainant is running a business of manufacturing water storage tanks at a very large scale and complainant purchased the gassifier to run his business and as such, transaction between parties are of commercial nature and complainant does not fall under the definition of consumer under Consumer Protection Act and present complaint may be dismissed on this ground. On the other hand, ld counsel for complainant argued that complainant is running this business for his livelihood and falls under the  definition of consumer. Moreover, even if it is presumed that complainant dealing between the parties is of commercial nature then in that case also, the complainant can file present complaint before this Forum. In support of his pleadings, he has placed reliance on citation  2015 (2) CLT (1) titled as M/s Pressweld Engineers Vs Jayram Reddy wherein in our Hon’ble Nation Commission, New Delhi has observed that Consumer Protection act, 1986, Section 2 (1) (d) – Commercial purpose – Defective machine – Plea of OP that the transaction of purchase being Commercial in nature, the complainant is not a consumer under the Act – Held – Not tenable – Even if machine purchased for commercial purpose – The complainant is competent to invoke jurisdiction under the provisions of Consumer Protection Act, 1986. He has further placed reliance on citation (February) 2009 CPJ 152 (NC) wherein our Hon’ble National Commission observed that Consumer Protection act, 1986 – Section 2 (1) (f) – Plant and Machinery – Defective- defects continued beyond warranty period – Dealer and manufacturer failed to rectify defects – Complaint allowed – Manufacturer directed to refund the entire cost of machine. Section 2(1) (d)-Consumer- Commercial purpose – Machine defective – Defects started within warranty – Purchaser will be consumer, even if machinery sold for commercial purpose. As such, in the light of earlier decision of our Hon’ble National Commission, the complainant falls under the definition of consumer.

11                                            Now, allegation of complainant is that Ops did not install the gassifier as agreed by them and the functioning of the same is not started till date and due to this business of complainant stands still. On this OPs alleged that they have dispatched the parts of gassifier on 12.08.2015 for total Rs.7,68,862/- and installed the gassifier within one month from 12.08.2015 and the same is running satisfactorily, but OPs have failed to prove that they have installed the gassifier on the spot. The complainant produced on record copy of envoice dated 12.08.2015 for Rs.7,68,862/- vide which some parts of gassifier were delivered to them but they also attached photographs of those parts as Ex C-15 to 19 showing that these parts were still lying useless without being installed. Moreover, admittedly, the total price of gassifier alongwith erection and installation were Rs.15,05,990/- and how the OPs can say by only issuing the bill of parts of gassifier to the tune of Rs.7,68,862/- that they started the gassifier and parts of gassifier and even installed in only in half price than agreed.

12                                    From the above discussion and case law produced by parties, this Forum is of considered opinion that OPs have failed to deliver the complete parts of gassifier machinery in dispute and also failed to install the same, which amounts to deficiency in service and trade mal practice on their parts. However, the complainant alleges that he has paid Rs.7,68,862/-to OPs, but he has succeeded only to prove the payment of Rs.6,00,000/-which were paid by him to OPs vide cheques dated 19.03.2014 and 4.09.2014 and has failed to prove the payment of Rs.1,68,862/- alleged to be paid on 12.08.2015. Hence, the present complaint in hand is hereby allowed to this extent. The OPs are directed to refund the amount of Rs.6,00,000/-alongwith interest at the rate of 9% per anum from the date of payment of amount by complainant to OPs within one month of receipt of copy of this order. OPs are further directed to pay Rs.3,000/-to complainant as compensation for litigation expenses. Compliance of this order be made in prescribed time failing which complainant shall be entitled to proceed under Section 25 and 27 of the Consumer Protection Act. Copy of the order be supplied to parties free of cost as per law. File be consigned to the record room.

Announced in open Forum:

Dated: 10.07.2017                                

Member                     President

          (P Singla)                 (Ajit Aggarwal)