Punjab

Ludhiana

CC/22/98

Sher Singh - Complainant(s)

Versus

M/s Martech Marketing Solutions - Opp.Party(s)

Sumit Jagga

10 Oct 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No: 98 dated 11.03.2022.                                                Date of decision: 10.10.2023.

Sher Singh aged 47 years son of S. Tarlok Singh, resident of House No.B-33, Rudra Colony, Lohara, Ludhiana-141016, Mobile No.83607-96443, email ID:

                                                Versus

1. M/s. Martech Marketing Solutions, Aay Bee Sales Corporation, Head Office: # 12, Behind Badshahi Gurudwara, Ambala City, through its Proprietor.
2. Akash Bansal (Mobile No.93554-00035, 94160-27035), email ID
3. Gulshan Kumar,
4. Fateh Singh,

All C/o. M/s. Martech Marketing Solutions, Aay Bee Sales Corporation, Head Office: # 12, Behind Badshahi Gurudwara, Ambala City-134003. Email ID: akashbansal@hotmail.com

6. M/s. Aay Bee Sales Corporation, 12, Behind Badshahi Gurudwara, Ambala City-134003, Haryana through its Proprietor/Partner.                                                                                              …..Opposite parties 

Complaint Under Section 35 of the Consumer Protection Act, 2019.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Sumit Kumar, Advocate.

For OPs                          :         Exparte.

ORDER

PER JASWINDER SINGH, MEMBER

1.                Briefly stated, the facts of the complaint are that the complainant deals in manufacturing of engineering parts and surgical instruments to earn his livelihood. As the complainant was in need of Laser Marketing Machine, he visited so see exhibition of machines opposite party No.2 and 3 who advertised their machines at different places in Ludhiana. Opposite party No.1 to 3 while conversation with the complainant told that their firm is expert in manufacturing of best quality Laser Marketing Machines and also preparing the machines as per orders of the consumers. The complainant further stated that believing the representations of opposite party No.2 and 3, the complainant told them to prepare the machine as per his requirements who told the complainant that they will have to manufacture the machine as per requirement of the complainant and will send a quotation of machine. They also told the complainant that opposite party No.1 will provide a demo machine and when the complainant will finalize the machine, their engineers will visit the complainant and will change the parts of machine with final parts. According to the complainant, on 11.04.2019, opposite party No.1 and 2 sent quotation of machine through email by quoting cost of machine as Rs.3,00,000/-, which did not include/clarify certain things. On making discussion by the complainant with opposite party No.3, the complainant was told to make some advance payment for sending the modified/revised quotation. The complainant transferred Rs.40,000/- in account of opposite party No.1 as per instructions of opposite party No.3 with request to send modified/revised quotation and demo machine but opposite party No.2 and 3 started demanding more payment for the said purpose. Further the complainant transferred Rs.90,000/- i.e. Rs.40,000/- and Rs.50,000/- in account of opposite party No.1 i.e. total Rs.1,30,000/- with assurance to receive the quotation and machine within some days. The complainant further stated that on 04.05.2019, opposite party No.2 and 3 sent email to him mentioning that the machine of the complainant has arrived on that day and that the lens 250x250 and body of machine will be replaced on 09.05.2019 and they also confirmed the receipt of advance payment of Rs.1,30,000/- from the complainant. It was further mentioned in the email that the complainant has to pay Rs.20,000/- in cash and security cheques of balance amount to opposite party No.3 Engineer Ashok Sharma at the time of delivery of the machine. However, when the complainant saw the machine, he found that it was a demo machine. On confrontation to opposite party No.3, he told the complainant to talk with opposite party No.2 and the complainant also apprised the situation with opposite party No.2 on telephone call. Opposite party No.1 again sent an email to the complainant confirming that the machine sent to him is demo machine and its lens will be replaced with 250x250 up to 09.05.2019 and Laser Sourse Part (which the most important part of the machine and which runs the entire machine) will be replaced up to Friday i.e. 10.05.2019, which the complainant believed in good faith. On 04.05.2019, the complainant further paid a sum of Rs.20,000/- in cash and security cheques of the balance amount to opposite party No.3. However, on request of the complainant to give the bill, opposite party No.3 told that he told the complainant to provide the bill of machine on his visit on 09.05.2019 for change of lens and on 10.05.2019 for change of Laser Sourse.

                   The complainant further stated that on 09.05.2019 and 10.05.2019, none turned up for opposite party No.2 and 3 to change the parts of the machine and as such, he made phone call to them and told them that he is suffering irreparable loss due to non-working of machine. Then opposite party No.2 told that opposite party No.3 Ashok Kumar will visit the complainant on 15.05.2019 and will change the parts of demo machine. On 15.05.2019, opposite party No.3 visited the factory of complainant and handed over bill No.10047 dated 15.05.2019 of machine and told the complainant to remain in touch with him. However, opposite party No.3 did not install the lens and sourse in the machine as per order/requirement of the complainant. The complainant further stated that when he used the said machine, then it was not working as per his order/requirements, which shows that the parts in machine had not been installed as per order/requirements and as per assurance given by the opposite parties. Rather the parts installed in the machine were of very inferior and poor quality. On raising grievance with opposite party No.2 and 3 regarding poor and substandard quality of machine, they did not pay any heed to his requests rather they started pressurizing the complainant to make balance payment. On 06.09.2019, opposite party No.2 and 3 sent opposite party No.4 in the factory of the complainant and asked the complainant to make balance payment to opposite party No.4. However, when the complainant requested for installing the laser and sourse of machine and to make the machine working, opposite party No.2 and 3 told the complainant that they have ordered the parts of machine from China as the same are not available in India and they will change the parts of machine as soon as the parts will be available. Believing the said assurance, the complainant paid Rs.15,000/- in cash to opposite party No.4 against proper acknowledgement. The complainant kept on calling opposite party No.2 and 3 several times with request to change the parts of the machine but they dilly dallied the matter on one pretext or the other.    On 15.10.2019, opposite party No.2 and 3 sent opposite party No.5 to the complainant to collect some amount out of balance payment and on making call, opposite party No.2 and 3 told the complainant that the part of machine are arriving very soon and same will be changed as soon as possible. The complainant further paid Rs.10,000/- in cash against proper acknowledge to opposite party No.5. Even the parts of machine were not changed by opposite party No.2 and 3 despite several requests made by the complainant. In the month of December 2019, opposite party No.3 and 4 visited the factor of the complainant for checking of machine and made the machine working for temporary basis and took Rs.10,000/-  from the complainant with assurance that the parts of machine will be arriving soon and same will be changed as soon as possible. In the month of February 2020, opposite party along with opposite party No.4 and 5 visited factory of the complainant and told him that parts of the machine have been received from China and same will be replaced within 3-4 days and further demanded Rs.15,000/-, which the complainant paid the same to opposite party No.3 in the presence of opposite party No.4 and 5. The complainant further stated that in the month of March 2020 lockdown/curfew was imposed due to COVID-19 pandemic and all the works were lying stopped by the Govt. of India, which was started in the month of October 2020. The complainant found the machine not functioning so he made call to opposite party No.2 and 3 upon which opposite party No.3 visited his factory and removed various main parts of machine with assurance to install the same within two or three days after checking  by claiming that thereafter, the machine will start working properly. After some days, on making call by the complainant, opposite party No.2 and 3 dilly dallied the matter on lame excuses but till date not installed the removed parts of the machine. Due to deficiency in service and unfair trade practice on the part of the opposite parties the complainant has suffered physical as well as mental pain, agony, harassment etc. besides suffering heavy loss due to non working of the machine for which the opposite parties are liable to pay compensation to the complainant. The complainant served a legal notice dated 12.01.2022 upon the opposite parties through Sh. Sumit Kumar Jagga, Advocate but to no effect. Hence this complaint, whereby the complainant has prayed for issuing direction to the opposite parties to make the machine in working condition or to refund the entire amount received by them and also to pay compensation of Rs.5,00,000/- on account of non-working of machine and Rs.2,00,000/- for harassment etc. besides paying litigation costs of Rs.21,000/-.

2.                Notice sent to opposite party No.1 to 5 received back with report of refusal and as such, assuming the refusal to be a valid service, they were proceeded against exparte vide order dated 04.07.2022.

3.                During pendency of the complaint, the complainant moved an application for impleading M/s. Aay Bee Sales Corporation, 12, Behind Badshahi Gurudwara, Ambala City Haryana as opposite party No.6, which was allowed vide order dated 08.12.2022. However, opposite party No.6 did not choose to contest the complaint despite issuance of the notice through registered post and as such, opposite party No.6 was also proceeded against exparte vide order dated 27.02.2023.

4.                In support of his exparte claim, the complainant tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 is the copy of quotation, Ex. C2 is the copy of invoice No.10047, Ex. C3 is the copy of email dated 11.04.2019, Ex. C4 is the copy of email dated 04.05.2019, Ex. C5 is the copy of receipts of payments, Ex. C6 is the copy of account statement, Ex. C7 is the copy of hand written letter pad, Ex. C8 is the copy of receipt on simple paper, Ex. C9 is the legal notice dated 12.01.2022, Ex. C10 to Ex. C14 are the postal receipts and closed the evidence.

5.                We have heard the exparte arguments of the counsel for the complainant and also gone through the complaint, affidavit and annexed documents produced on record by the complainant.

6.                On the assurance of opposite party No.2 and 3 for providing top quality customized laser marking machine, in April 2019, the complainant entered into negotiations with the representatives of opposite party No.1 and 6 and finally the quotation Ex. C1 was generated settling the price of the machine to be Rs.3,00,000/- and having a warranty of 2 years in full. The warranty clause reads as under:-

                   “Warranty

Equipment is warranted for 24 months from the date of Dispatch against defects, which under proper use arise solely from Faulty materials, manufacturing and workmanship. Such defects, if any, will be rectified by way of repair, rework or replacement of part(s) as may be necessary provided we are notified immediately in writing as soon as a defect is observed and the equipment is not operated till repaired by our Service Engineer to avoid further possible damage to the equipment. Please note all Electrical items like motors, relays, conductors, switches and etc. are not covered by this warranty.”

7.                The opposite parties further assured the complainant that the first demo machine would be installed which would be later on customized as per requirement of the complainant by the qualified engineers of the opposite parties and requisite essential components like laser sourse part and lens would be substituted/replaced. In the process, the complainant partially paid an amount of Rs.1,30,000/- in installment before the installation of machine till04.05.2019 and in all paid Rs.2,25,000/- on different dates till  October 2020. The original bill Ex. C2 was generated on 15.05.2019. The opposite parties insisted for the remaining payment before the components in the demo machine are changed. The complainant was not satisfied with the performance of the machine and it also developed snags and the complainant requested for effecting repairs/rectification, to make the machine fully functional. On 18.11.2020, the opposite parties took internal parts of the machine for effecting repair and promised to return the same after repair. The opposite parties issued a certificate Ex. C7 in this regard. The opposite parties did not return the machine after repair despite repeated requests of the complainant. Even legal notice Ex. C9 dated 12.01.2022 failed to evoke a positive response. From the aforesaid chronology of events, it is crystal clear that even after receiving substantial price out of the total sale consideration of the machine, the opposite parties were deficient in providing services and also adopted unfair trade practice firstly by keeping the matter lingering on, on one pretext or the other  and finally by not returning the machine. Further the exparte evidence lead by the complainant gone unrebutted. Under these circumstances, it would be just and appropriate if opposite party No.1 to 3 and 6 are directed to collect the outer part/remaining part of the machine from the complainant and will refund the amount of Rs.2,25,000/- to the complainant within 30 days from the date of receipt of copy of order, failing which the opposite parties shall pay interest @8% per annum on the said amount from the date of order till its actual payment. The complainant is bound to facilitate the process of collection of the remaining parts of the machine to the opposite parties. Further opposite party No.1 to 3 and 6 are burdened with composite costs of Rs.15,000/- payable to the complainant. However, the complaint as against opposite party No.4 and No.5 is hereby dismissed.

8.                As a result of above discussion, the complaint is partly allowed with direction to opposite party No.1 to 3 and 6 to collect the outer part/remaining part of the machine from the complainant and to refund the amount of Rs.2,25,000/- to the complainant within 30 days from the date of receipt of copy of order, failing which opposite party No.1 to 3 and 6 shall pay interest @8% per annum on the said amount from the date of order till its actual payment. The complainant is bound to facilitate the process of collection of the remaining parts of the machine to the opposite parties. Opposite party No.1 to 3 and 6 shall also pay a composite costs of Rs.15,000/- (Rupees Fifteen Thousand only) to the complainant within 30 days from the date of receipt of copy of order. However, the complaint as against opposite party No.4 and No.5 is hereby dismissed. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.   

9.                Due to huge pendency of cases, the complaint could not be decided within statutory period.

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                          Member                            Member                                      President         

Announced in Open Commission.

Dated:10.10.2023.

Gobind Ram.