DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PATIALA.

                                        Complaint No. CC/14/259 of  24.09.2014.

                                        Decided on:        13.03.2015.

M/S. N.S. Agro Works, Patiala Road, Nabha through its Prop. Naranjan Singh, through his attorney Sh. Parminder Singh son of Naranjan Singh, R/o. Hira Bagh Colony, Nabha

                                                                            Complainant

                                                Versus

M/S. Jabbal Engg. Works through its Prop. Davinder Singh, Near Railway Overbridge, Moan Ke Road, Guru Har Sahai, Ferozepur.

                                                                            Opposite  party

Complaint under Section 12 of the Consumer Protection Act.

                                      QUORUM

                                      Sh. D.R. Arora, President.

                                      Smt. Neelam Arora, Member.

                                      Smt. Sonia Bansal, Member.

Present:                          Sh. Varinder Gupta proxy counsel on behalf of Sh. Sudhir Kumar counsel for the complainant.

                                       Sh. D.S. Behgal counsel for the opposite party.

ORDER

D.R. ARORA:

1.        It is the case of the complainant that the O.P is running the business of manufacturing the cutting press sheet, bending machine, shearing machine, draw machine, angle flat channel round  etc. at Guru Har Sahai. The complainant on 22.11.2012 placed an order with the O.P for providing C-Type draw machine for the price of Rs.3,70,000/- and paid the advance amount of Rs.50,000/-. The O.P promised to supply C-Type draw machine within one month i.e. on 30.12.2012. It was agreed that the balance price of the machine will be paid at the time of delivery of the same. The order was reduced into writing vide Annexure-C2.

2.       The O.P failed to deliver the machine on 30.12.2012 and therefore, the complainant approached the O.P telephonically for supplying the machine but the O.P always put the matter off under one or the other pretext.

3.       It is further averred that the O.P delivered the machine to the complainant on 23.12.2013 vide invoice no.424 dated 23.12.2013 and received the balance amount along with VAT i.e. Rs.3,92,385/-, copy of the invoice being Annexure-C3 and the copy of the delivery of the machine being Annexure-C4.

4.       It is further the case of the complainant that because of the non-delivery of the machine by the O.P, the complainant had suffered a lot for more than one year as the complainant could not do the work and the complainant used to get the work done by the others and in that way the complainant suffered a loss in a sum of Rs.6 Lacs in one year and for which the O.P is responsible.

5.       It is further the case of the complainant that on the delivery of the machine made by the O.P on 23.12.2013, it was found that the same was not working properly as there appeared the manufacturing defect in that. The machine failed to bend the metal sheet etc. properly. The hydraulic system of the machine was not working properly and the same failed to put pressure for bending the metal sheets. Even the body structure of the machine was not as per the specifications. At the time of placing the order, the complainant had asked for the requirement for bending the metal sheet of 8 mm but surprisingly the machine was unable to bend even 2-3 mm metal sheet. When the machine started working, the mouth of the hydraulic system remained open and no pressure was built up for bending the metal sheets. A number of metal sheets were wasted and in that way the machine is totally useless for the complainant. The complainant is still dependent upon others for getting the work done.

6.       It is further the case of the complainant that the complainant made the complaints with the O.P telephonically many a times but no heed was paid. The complainant got the O.P served with a legal notice on 21.04.2014 through its counsel Sh. Sudhir Kumar, Advocate, Patiala but no reply to the same was given by the O.P. Accordingly, the complainant brought this complaint against the O.P under Section 12 of the Consumer Protection Act, 1986 (for short the Act) for a direction to the O.P to replace the defective machine or to refund the price thereof i.e. Rs.4,00,000/-; to provide the complainant with a sum of Rs.2,00,000/- towards compensation on account of harassment and mental agony experienced by the complainant and further to provide a sum of Rs.2,00,000/- on account of loss suffered by the complainant.

7.       On notice, the O.P appeared and filed the written version having raised certain preliminary objections, interalia, that the complainant is engaged in doing high scale commercial activities and is running the workshop for earning huge profits and therefore, the complainant is not covered under the definition of consumer as provided under the Act; that the Forum has got no jurisdiction to try the complaint in as much as the complainant purchased draw machine from the O.P at Guru Har Sahai, Ferozepur having taken the delivery from it there at Guru Har Sahai, Ferozepur and O.P is running its business at Guru Har Sahai, District Ferozepur; that Davinder Singh is not the proprietor of the O.P and is its manager; that complicated questions of law and facts are involved in the present complaint and the trial of the complaint will require the summoning of the witnesses, their examination and cross examination and therefore, the complaint cannot be tried under the summary procedure under the Act and that the complaint being false and frivolous, same is liable to be dismissed with costs. As regards the facts of the complaint, it is stated that on 22.11.2012, Sh. Parminder Singh Ralhan representing to be the Director of the complainant had approached the O.P and placed an order for manufacturing C-Type draw machine. The material to be used in the machine was specifically mentioned in the order dated 22.11.2012. The price was settled at Rs.3,70,000/- + Rs.22,385/- towards the taxes. The O.P asked for the payment of the machine but the complainant provided a post-dated cheque no.424453 dated 07.12.2012 drawn on State Bank of Patiala for Rs.50,000/- as part payment and that the balance amount had to be paid at the time of taking the delivery of the machine. The date of the delivery was fixed as 30.12.2012. The said cheque presented by the O.P with its bankers namely Punjab National Bank, Guru Har Sahai was dishonoured by the bank of the complainant, as such no advance payment was made by the complainant. However the O.P manufactured the machine as per specifications. The machine was manufactured by the technical staff of the O.P and the same was tested and its working was found to be accurate without any manufacturing defect. Mr. Parminder Singh Ralhan requested to take the delivery of the machine and to make the payment thereof, who was told that the earlier cheque of Rs.50,000/-had been dishonoured. Mr. Parminder Singh Ralhan visited the O.P on 13.12.2013 for taking the delivery of the machine. The machine was checked thoroughly and Mr. Parminder Singh got himself satisfied.  He told that he had not brought the money and therefore, the O.P refused to deliver the machine.  Sh. Parminder Singh made the payment of Rs.3,42,385/- on 21.12.2013 in the account of the O.P. 22.12.2013 was a Sunday. He visited on 23.12.2013 and made the payment of the remaining amount of Rs.50,000/- and took the delivery of the machine and also got back the dishonoured cheque with a memo. The O.P issued the invoice no.424 dated 23.12.2013 and delivered the machine at Guru Har Sahai. It is denied that the O.P had failed to deliver the machine or that the O.P had put the matter off under one or the other pretext. It was the complainant who had taken the delivery of the machine after a long delay although the same was lying ready with the O.P. It is thus denied that the complainant could not do the work in the absence of the machine and he suffered a loss in a sum of Rs.6,00,000/-.

8.       It is also denied by the O.P that the machine had not been working or that there was a manufacturing defect in the machine and that it failed to bend the metal sheet properly and that the hydraulic system of the machine was not working properly or that the same was not putting pressure. The O.P has denied all other allegations made by the complainant in this regard.  The working of the machine was accurate as was checked before the delivery of the same and same was checked by Sh. Parminder Singh. The complainant took the delivery of the machine on 23.12.2013 and since then the complainant had been making a use of the same without any fault and now the complainant has brought this complaint after a lapse of 10 months from the purchase of the machine, which shows the ulterior motive of the complainant in filing the complaint. It is denied that the complainant suffered any loss. After denouncing the other averments of the complaint, going against the O.P, it was prayed to dismiss the complaint.

9.       In support of his complaint, the complainant produced in evidence Ex. CA, the sworn affidavit of Sh. Parminder Singh, who is the special attorney of the complainant through whom the complaint has been brought along with the documents Ex. C1 to Ex. C7 and the evidence of the complainant was closed by order of the forum. On the other hand, on behalf of the O.P, its counsel tendered in evidence Ex. OPA, the sworn affidavit of Sh. Davinder Singh, Manager of the O.P along with the documents Ex. OP1 to Ex. OP4 and closed its evidence.

10.     The parties failed to file written arguments. We have heard the learned proxy counsel for the complainant the learned counsel for the O.P and gone through evidence on record.

11.     First of all, we take up the objection raised by the O.P that this Forum lacks territorial jurisdiction to try the complaint in as much as the O.P is carrying on its business at Guru Har Sahai and that the machine was also delivered to the complainant at Guru Har Sahai and in that way no cause of action had accrued in favour of the complainant within the territorial jurisdiction of this Forum i.e. District Patiala. Ex. C4 is the copy of the order dated 22.11.2012 which is apparently made on the letter head of the O.P at Guru Har Sahai. In the said order there is reference of one post-dated cheque no.424453 dated 07.12.2012 for Rs.50,000/-, which as per the plea taken up by the O.P was dishonoured. It is not the case of the complainant that any online payment was made by the complainant into the account of the O.P at Patiala.

12.     Ex. C5 is the copy of the invoice dated 23.12.2013 issued by the O.P regarding the sale of draw machine for Rs.3,92,385 in favour of the complainant and it is categorically stated that the delivery was made at Guru Har Sahai. Ex. C6 is the copy of the goods receipt issued by The Pindi Mini Truck Operators Union, Mandi Guru Har Sahai, District Ferozepur dated 23.12.2013 regarding the draw machine purchased from the O.P for being sent at Nabha (Patiala) to the purchaser i.e. the complainant and the freight was settled at Rs.8,600/-.

13.     It was submitted by Sh. D.S. Behgal, the learned counsel for the O.P that when the entire payment was made by the complainant to the O.P at Guru Har Sahai and the delivery of the machine was also taken by the complainant at Guru Har Sahai, no cause of action had accrued against the O.P within the territorial jurisdiction of this Forum i.e. District Patiala.

14.     The learned proxy counsel for the complainant failed to state anything to show as to how the cause of action to file the complaint against the O.P accrued within jurisdiction of District Patiala. We are of the considered view that the O.P having delivered the machine to the complainant at Guru Har Sahai vide invoice Ex. C5 of 23.12.2013, the O.P also doing its business at Guru Har Sahai and no cause of action whatsoever having accrued in favour of the complainant, within the jurisdiction of Patiala this forum does not have the territorial jurisdiction to try the complaint. Even touching the complaint on merits, we find that the complainant has failed to lead any evidence that it suffered any loss on account of the late delivery of the machine, which as per order Ex. C4 had to be delivered on 30.12.2012. No evidence has been led by the complainant that in the absence of the C-Type draw machine it had to suffer any loss by way of getting the work done from the others. The complainant was supposed to lead evidence in that regard by way of disclosing as to what type of work was got done by it from others and how it suffered a loss in the matter of getting the work done from the others.

15.     Now coming to the plea taken up by the complainant that there is a manufacturing defect in the machine and that its hydraulic system does not work properly and does not bend the metal sheet of 8 mm, in this regard the complainant has merely produced the photo copy of the certificate Ex. C1 dated 10.02.2014 obtained from Surjit Engineering & Foundary Works, Patiala Road, Nabha. The certificate is issued by the proprietor of the said Surjit Engineering and Foundary Works and the same is in the following terms, “This is certified that I have inspected the DRAW MACHINE at the premises of M/S. N.S. AGRO WORKS on dated 10/2/2014. During my inspection I found that the above said machine is not repairable, it has manufacturing defect. The hydraulic system of the machine does not make pressure as the machine is not bending the steel metal. As per the information given by M/S. N.S. Agro Works the said machine was purchased for Jabbal Engg. Works, Guru Har Sahai. I am having 20 years of experience in this field. Hence according to my opinion, the defect cannot be removed in any condition.”

16.     Nothing is disclosed in the certificate by the author of the same as to what is the manufacturing defect in the machine. It is stated in the certificate by the author of the same that he is having 20 years of experience in this field but nothing is disclosed about his qualifications in the matter of checking C-Type draw machine. Nothing is disclosed as to why the hydraulic system of the machine is not in a position to build pressure so as to bend the steel metal.

17.     It was submitted by Sh. D.S. Behgal, the learned counsel for the O.P that the complainant does not claim any warranty of the product to have been given by the O.P, in the absence of which the O.P is not bound to provide any services at the workshop of the complainant.

18.     On the other hand, it was submitted by Sh. Varinder Gupta, the Ld. proxy counsel for the complainant that on the basis of report Ex. C1, it can be easily said that there is a manufacturing defect in the machine and therefore, the same is liable to be rectified.

19.     We have considered the submissions and are of the considered view that the complainant has failed to establish with the help of the report to have been obtained from an expert having requisite qualifications for checking C-Type draw machine about any manufacturing defect in the machine and that the defect is not repairable. In any case, it is not the case of the complainant that the O.P had provided any warranty in respect of the machine. May that as it be, the Forum lacks territorial jurisdiction to try the complaint as no cause of action accrued in favour of the complainant within the District of Patiala. Under these circumstances, the complaint is hereby dismissed with the observation that the complainant is at liberty to file the fresh complaint against the O.P at Ferozepur and in doing so the complainant shall be entitled to exclude the time spent in pursuing the remedy before this Forum. No order as to costs.

Pronounced.

Dated: 13.03.2015.

                                      Sonia Bansal     Neelam Arora                   D.R. Arora

                                      Member             Member                            President