Punjab

Faridkot

CC/18/22

Gagan Arora - Complainant(s)

Versus

M/S Kashyap Engineering - Opp.Party(s)

Vipan Kumar Tayal

20 May 2019

ORDER

  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT

 

C. C. No. :                 22 of 2018

Date of Institution :    16.02.2018

Date of Decision :        20.05.2019

1. Gagan Arora s/o Joginder Singh partner of M/s A & D Pharma situated at Kothe warring Opposite Godown, Muktsar Road, Kotkapura Tehsil Kotkapura, District Faridkot.
2. M/s A & D Pharma situated at Kothe warring Opposite Godown, Muktsar Road, Kotkapura Tehsil Kotkapura, District Faridkot through its partner Gagan Arora s/o Joginder Singh

.....Complainant

Versus

M/s Kashyap Engineering (Manufactures of Sheetametal, Fabrication & Pharmaceutical Equipments) situated at Plot No.485-486/A-33, G I D C, Makarpura, Vadodara 390010 Gujrat through its Proprietor Nitin Panchal.

......OPs

 

Complaint under Section 12 of the

Consumer Protection Act, 1986.

 

Quorum: Sh. Ajit Aggarwal, President,

                Smt Param Pal Kaur, Member,

              

Present:  Sh Vipan Tayal, Ld Counsel for Complainant,

    Sh Ashu Mittal, Ld Counsel for OP.

   

ORDER

(Ajit Aggarwal, President)

                                          Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against OPs seeking directions to them to replace the defective Automatic Volumetric Liquid Filling Machine and Turn Table-36 or to refund the amount of Rs.2,50,000/- alongwith interest and

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transportation charges paid by complainant and for further directing OPs to pay Rs.1 lac as compensation for harassment and mental agony suffered by him besides Rs.20,000/- for litigation expenses.

2                                             Briefly stated, the case of the complainant is that for the purpose of earning his livelihood and self employment, complainant placed an order to OP for purchasing Automatic Volumetric Liquid Filling Machine worth Rs.2,45,000/-and Turn Table-36 of Rs.55,000/-. OP sent the Automatic Volumetric Liquid Filling Machine and Turn Table-36 to complainant on 12.06.2017 for Rs.3,06,000/- which included 2% CST and installation charges vide envoice no.91, challan no.81 dated 12.06.2017. Complainant paid Rs. One lac to OP through cheque dated 5.05.2017 and Rs.1,50,000/-vide cheque dated 12.06.2017 and thus, he paid sum of  Rs.2,50,00/-to OP. It is submitted that at the time of placing the order and purchase, Op assured of best quality of said machine and also gave one year guarantee for the same. Complainant received the said Automatic Volumetric Liquid Filling Machine and Turn Table-36 in 3^rd week of June, 2017 through transport and paid Rs.7,500/-as freight. In July, employee of OP came to install the machine, but he found some manufacturing defect in machine. Liquid was spilling out and evacuation was improper from pumps and sensor was not properly working. There was no spillage tray and therefore, he went back without installing the machine. On 13.09.2017 two employees of OP visited to check and install the machine. They checked and found the defect  and took 4 pumps and 3 nozzles worth Rs.60,000/-from the machine and promised to come back with replaced parts and to install the machine, but they neither came back nor returned the said parts to complainant. Complainant complained about this to OP through e-mails dated 3.10.2017, 20.11.2017 and 29.11.2017 and made requests to OP to properly install

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the machine and make it correct, but OP paid no heed to genuine requests of complainant, which amounts to deficiency in service and trade mal practice. Complainant has prayed for granting him compensation of Rs.1,00,000/- for harassment and mental agony suffered by him alongwith Rs 20,000/- as litigation expenses besides the main relief.  Hence, the present complaint.

3                                               Ld counsel for complainant was heard with regard to admission of the complaint and vide order dated 27.02.2018, complaint was admitted and notice was ordered to be issued to the opposite parties.

4                                                   On receipt of the notice, the OP filed reply taking preliminary objections that this Forum has no jurisdiction to hear and try the present complaint as complainant was using the said machine for commercial purpose. It is averred that complainant sent an e-mail for quotation for Fully Automatic Volumetric Liquid Filling Machine and OP sent the same to complainant alongwith price and features of machine through e mail. As per terms, 50% price of machine was to be paid in advance and remaining 50% was to be paid against successful trial at factory of OP. Complainant paid Rs. 1 lac in advance and after successful trial at factory of OP, complainant paid Rs.1,50,000/- more to them and when OP demanded remaining amount of Rs.56,000/-, complainant put off the matter saying it would be paid at the time of installation at Kotkapura. Complainant also demanded spillage tray and header from OP and believing the complainant, OP sent the spillage tray and header to complainant at the time of installing the machine, but when employee of OP demanded the remaining amount of machine and price of spillage tray and header which costs Rs.9000/-, complainant putt off the matter and said that he would pay the

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remaining amount after some days. On 13.09.2017, employee of OP again approached complainant to receive the due amount, complainant made him wait for two hours and did not make payment of remaining dues. Complainant did not pay the balance price of machine and price of spillage tray and header and at least employee of OP took 4 pumps and 3 nozzles from the machine and went back. Op is ready to return the parts of machine if complainant pay the remaining amount of machine and price of spillage tray. However, on merits, OP have denied all the allegations of complainant being wrong and incorrect and asserted that there is no defect in said machine as when employee of OP went to install the machine, he noticed that sensor in said machine was damaged, which might be damaged during transportation and except sensor there was no other problem. Sensor was replaced by employee of OP and machine was perfectly installed and it was in running condition. It is further averred that when his employee demanded payment for spillage tray and remaining payment for machine, complainant refused to pay the same. OP told complainant that price of spillage tray and header was Rs.4500/-each and on this he became ready to pay for both, but till date, he neither made payment of spillage and header, nor have made payment of balance amount of machine. There is no deficiency in service on the part of OP and complainant is liable to make payment of remaining due amount. All the allegations of complainant are denied being wrong and incorrect and prayer for dismissal of complaint is made.

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 C-8 and then, closed the evidence.

 

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6                                             In order to rebut the evidence of the complainant, Counsel for OP-1 tendered in evidence affidavit of Nitin Panchal Ex OP-1 and documents Ex OP-2 to 5 and then, evidence on behalf of OP.

7                                           Ld Counsel for complainant argued that by placing an order, complainant purchased one Automatic Volumetric Liquid Filling Machine worth Rs.2,45,000/-and Turn Table-36 of Rs.55,000/- from OP on 12.06.2017 and OP charged for Rs.3,06,000/- which included 2% CST and installation charges against envoice no.91, challan no.81 dated 12.06.2017. Complainant paid Rs.2,50,00/-to OP i.e Rs. One lac through cheque dated 5.05.2017 and Rs.1,50,000/- cheque dated 12.06.2017. Complainant received the said Automatic Volumetric Liquid Filling Machine and Turn Table-36 in 3^rd week of June, 2017 through transport and paid Rs.7,500/-as freight. In July, employee of OP came to install the machine, but he found some manufacturing defect in machine as liquid was spilling out and evacuation was improper from pumps and sensor was also not properly working. There was no spillage tray and therefore, he went back without installing the machine. On 13.09.2017 two employees of OP visited to check and install the machine and after checking, they took 4 pumps and 3 nozzles worth Rs.60,000/-from the machine and promised to come back with replaced parts but they neither came back with said parts to install the machine. Through e-mails dated 3.10.2017, 20.11.2017 and 29.11.2017, complainant made requests to OP to properly install the machine and make it worthy to work, but OP paid no heed to genuine requests of complainant, which amounts to deficiency in service and trade mal practice. He has prayed for accepting the present complaint and stressed on documents Ex C-1 to Ex C-8.

 

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8                                               To controvert the arguments of complainant, ld counsel for OP argued that when  despite repeated requests, complainant did not pay the balance price of machine, spillage tray and header, then employee of OP took 4 pumps and 3 nozzles from the machine and he is ready to return the same, if complainant pays the remaining amount of machine and price of spillage tray. All the other allegations of complainant are denied being wrong and incorrect and asserted that there is no defect in said machine except sensor that might have damaged during transportation and  damaged sensor was replaced by employee of OP and machine was perfectly installed and it was in running condition. There is no deficiency in service on the part of OP and prayed for dismissal of same.

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

10                                         Grievance of complainant is that Automatic Volumetric Liquid Filling Machine purchased by complainant has some manufacturing defect and it is not worthy to work. OP did not install the same and have even took out some parts from this machine and despite repeated requests, they have not replaced the said defective machine and have caused harassment to him. Complainant purchased the machine for the purpose of earning his livelihood, but due to deficiency in service on the part of OP in not replacing the defective machine, he has suffered huge harassment and financial hardship. He has prayed for accepting the present complaint. In reply, OP stressed mainly on the point that complainant did not pay the entire amount of machine and cost price of spillage

                                             

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tray and due to this their employee removed some parts from the machine and they are ready to return the same, if complainant clears the amount outstanding towards him. They have already replaced the sensor and there is no defect in said machine.

11                                                 To prove his pleadings, ld counsel for complainant brought our attention to purchase order dated 5.05.2017 Ex C-4 that shows that complainant placed an order for purchasing the machine in question. Ex C-5 is copy of bank receipt that further proves that complainant paid Rs.one lac to OP through cheque for the purpose of purchasing said machine on same date i.e when he placed order for purchasing the same. He has placed on record documents Ex C-7 copies of e-mails transferred between complainant and OP that prove the non working of machine and deficiency in service on the part of OP. These depict that complainant made several requests to OP to remove the manufacturing defect from machine and to install the machine, but all in the vain.

12                                                    From the above discussion and arguments led by the parties and  evidence produced by the complainant, we are of the considered opinion that complainant suffered a lot due to deficiency in service on the part of OP. OP have themselves admitted in complaint that sensor of the machine was damaged and they have replaced the same. It is also admitted by OP in their written version that their employee took out some parts from the machine so that it may not work and he did not install the machine intentionally. All this amounts to trade mal practice and deficiency in service. Therefore, complaint in hand is hereby allowed. OP is directed to install the machine properly and make it worthy to work subject to payment of remaining amount which is outstanding against the

 

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price of machine and spillage tray by complainant within one month of receipt of the copy of the order and OP is directed to make compliance of this order within one month of receipt of dues from complainant.  Opposite Party is further directed to pay Rs.5000/-to complainant as consolidated compensation for harassment and mental agony suffered by him as well as for litigation expenses incurred by him. Compliance be made within prescribed period, 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 the parties free of costs. File be consigned to record room.

Announced in open Forum:

Dated: 20.05.2019

(Parampal Kaur)                  (Ajit Aggarwal)

Member                                 President