DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

PATIALA.

                                      Complaint No. CC/15/116 of 5.6.2015

                                      Decided on:        15.12.2015

Lakhbir Singh, agted about 51 years son of Ajit Singh, resident of village Faride Wala Hithar, Post Office Mallanwala, Tehsil and District Ferozepur.

                                                                   …………...Complainant

                                      Versus

1.      M/s New Friends Industry, Patiala Road, Nabha through its Sole Proprietor Jagjit Singh, son of Joginder Singh, resident of Street No.2, Hira Mahal Colony, Near K.K.Batish, Advocate,Nabha, District Patiala.

2.      Jagjit Singh son of Joginder Singh, Sole Proprietor of M/s New Friends Industry,Patiala, resident of Street No.2, Hira Mahal Colony, Near K.K.Batish,Advocate, Nabha, District Patiala.

                                                                   …………….Ops

                                      Complaint under Section 12 of the

                                      Consumer Protection Act.

                                      QUORUM

                                      Sh.D.R.Arora, President

                                      Smt.Neelam Gupta, Member

                                      Smt.Sonia Bansal,Member

Present:

For the complainant:     Sh.Jatinder Singh , Advocate

For Op No.1       :          Sh.Manjit Singh Sidhu,Advocate        

                                         ORDER

D.R.ARORA, PRESIDENT

1. It is the case of the complainant that he alongwith Sakattar Singh s/o Hazara Singh r/o Rure Aasal, Tehsil and District Tarn Taran had purchased jointly a combine harvester make Aman 516 from the Ops on 11.7.2011 for Rs.13,40,000/- having made the payment of Rs.4000/- as advance, the Ops having promised to deliver the combine harvester on 25.11.2011.
2. After the payment of Rs.4000/-, the complainant approached the Ops and on the demand made by the Ops, the complainant paid Rs.one lac more and similarly on a further demand made by the Ops, the complainant paid Rs.7lacs on different dates ,in all the complainant paid Rs.8,04,000/- . The Ops also received a blank signed cheque from the complainant regarding the balance price of the combine harvester. However, when the complainant approached the Ops for taking the delivery of the combine harvester, the ops failed to deliver the same and lingered on the matter under one or the other pretext. The combine harvester was delivered to the complainant on 14.4.2012 after the complainant paid the balance price in cash. The Ops received the balance amount but failed to return the cheque got from the complainant by way of a security with a malafide intention and wanted to play a fraud with the complainant. The complainant requested the Ops to return the cheque but the  Ops failed to return the same.
3. It is further the case of the complainant that after the using of the combine harvester, it was found that there was a manufacturing defect in the same as the same failed to function properly. The complainant approached the Ops and informed about the defect in the combine harvester but the Ops failed to give an ear to the complainant knowing fully well that there was a manufacturing defect in the combine harvester. Because of the defect in the combine harvester, the complainant suffered a loss in the two seasons of Harri 2012 and Sauni 2012 as the complainant could not harvest the crops of the farmers and therefore, the complainant suffered a loss in a sum of Rs.1,50,000/- and Rs.2,00,000/- lacs respectively for the two crops. He also paid a sum of Rs.20,000/- to the foreman, Rs.13000/- to the driver and Rs.7000/- to the helper. Thus, in all the complainant suffered a loss in a sum of Rs.4,30,000/-.
4. The complainant approached the Ops with a request to examine the combine harvester and to rectify the defect and in case it was not possible to replace the same with new one and also to pay him the damages but the Ops put the matter off under one or the other pretext. Accordingly the complainant initially brought this complaint against the Op under Section 12 of the Consumer Protection Act,1986 ( for short the Act) before the District Consumer Disputes Redressal Forum, Ferozepur but the same was dismissed primarily on the ground of territorial jurisdiction. Hence this complaint before this Forum with a direction to the Ops to provide the complainant with a new combine harvester and to pay a sum of Rs.5lac by way of compensation and further to award him the costs of the complaint.
5. The cognizance of the complaint was taken against Op no.1. Virtually Ops no.1&2 are the same entity in as much as Op no.1 is the firm and Op no.2 is the sole proprietor of the same. The Op on appearance filed the written version having raised certain preliminary objections, interalia, that  the complainant is not a consumer as the combine harvester was purchased for a commercial purpose; that the complainant has not approached the Forum with clean hands as he has suppressed  certain true and material facts; that the complaint is barred by limitation; that the complainant is estopped in filing the complaint by his act and conduct; that the Forum lacks jurisdiction to entertain and try the complaint and that the complaint being false, frivolous and vexatious to the knowledge of the complainant the same is liable to be dismissed with special costs. As regards the facts of the complaint, it is denied that the complainant alongwith Sakattar Singh had jointly purchased the combine harvester make Aman 516 on 11.7.2011 for Rs.13,40,000/-. It is also denied that after the payment of Rs.4000/-, the complainant had approached the Op who demanded more payments. In fact, the complainant Lakhvir Singh had approached the Op in the month of July,2011 for purchasing the combine harvester and made the payment of Rs.4000/- in advance at Nabha. It was agreed between the parties that the total value of the combine harvester was Rs.13,40,000/- and the combine harvester will be delivered to the complainant only when the complainant paid Rs.7lacs to the Op and that the balance amount of Rs.6,40,000/- will be paid by the complainant to the Op in three installments. The payment of Rs.7lacs was a condition precedent for the delivery of the combine harvester. However, the complainant alongwith Sakattar Singh had approached the Op and made the payment of Rs.7lacs including the payment of Rs.4000/- made earlier on different dates upto March,2012 and ultimately on 14.4.2012 the combine harvester make Aman 516 model  2012 bearing engine No.ALEL 69871 and chassis No.NF1516D012019 was delivered to the complainant as also said Sakattar Singh vide bill No.20 dated 14.4.2012.Both of them had put their signatures on the bill after getting the delivery of the combine harvester. They promised to make the payment of Rs.6,40,000/- after three months and both of them had issued  post dated cheques for Rs.6,40,000/-each , cheque No.411766 dated 30.7.2012  for Rs.6,40,000/- drawn on account No.55144080790 drawn on State Bank of Patiala branch Ferozepur city in respect of the complainant and cheque No.979053 dated 30.7.2012 for Rs.6,40,000/- drawn on account No.0454000108933959 drawn on Punjab National Bank, Tarntaran in respect of Sakattar Singh  in order to discharge their liability in favor of the Op. However, both of them failed to make the payment. Firstly the cheque issued by Sakattar Singh was dishonoured due to insufficiency of the funds on 30.7.2012. At this the Op approached said Sakattar Singh and apprised him about the said fact. The complainant and Sakattar Singh then requested the Op to present the cheque issued by the complainant but the same was also dishonoured on account of insufficient funds in the account of the drawer on 3.8.2012. The Op issued the notices against the complainant and Sakattar Singh on 23.8.2012 but they failed to reply. The Op has already filed the complaints against the complainant and Sakattar Singh under Section 138 of the Negotiable Instrument Act, which were pending before the court of Sub Divisional Judicial Magistrate, Nabha for 5.8.2015. The complainant and Sakattar Singh appeared in the proceedings of the complaint filed on 4.10.2012 and 7.11.2014 , a fact concealed by the complainant.
6. It is denied by the Op that it had received the blank signed cheque from the complainant towards the balance price of the combine harvester and rather the said cheque was issued by the complainant to discharge his liability to pay the balance sale price. The complainant and Sakattar Singh failed in making the payment of Rs.7lacs for the delivery of the combine harvester within time and therefore, the same was delivered to the complainant on 14.4.2012 when the agreed payment of Rs.7lacs was paid by the complainant and Sakattar Singh . It is denied that the complainant had made the cash payment of the balance amount. There was no question of returning any cheque  because no blank cheque signed by the complainant was received by the Op.
7. It is also denied that there was found any manufacturing defect in the combine  harvester as the same was not functioning properly. Not even a single complaint was made by the complainant as also Sakattar Singh about any defect in the combine harvester up to 7.11.2014 when a false complaint was filed by the complainant before the District Consumer Forum, Ferozepur, which  had also been filed with a malafide intention as a counter blast  to the complaints brought by the Op against the complainant and Sakattar Singh under Section 138 of the Negotiable Instrument Act.
8. It is denied by the Op that because of the not functioning of the combine harvester, the complainant suffered any loss during the seasons of Harri and Sauni,2012 as the complainant could not harvest the crops of the farmers and that the complainant suffered a loss in a sum of Rs.4,30,000/-. After denouncing the other allegations of the complaint, going against the Op, it was prayed to dismiss the complaint.
9. In support of his complaint, the complainant produced in evidence Ex.CA his sworn affidavit alongwith documents Exs.C1 to C10 and his counsel closed the evidence.
10. On the other hand, on behalf of the Op, it’s counsel tendered in evidence Ex.OPA, the sworn affidavit of Sh.Jagjit Singh,Prop of Op no.1 alongwith documents Exs.OP1 to OP20 and closed its evidence.
11. The parties failed to file the written arguments. We have heard the learned counsel for the parties and gone through the evidence on record.
12. At the outset, it may be noted that the Op has raised the objection that the combine harvester was purchased by the complainant for commercial purpose and therefore, the complainant is not covered under the definition of  ‘consumer’. It is admitted by the complainant that he suffered loss of Rs.1,50,000/- and Rs.2,00,000/- for the crops of Harri 2012 and Sauni,2012 as he could not harvest the crops of the farmers meaning thereby that he uses the combine harvester for commercial purposes.”Consumer” , as defined under Section 2(1)(d)(i) of the Act means any person who (i)buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose.

Explanation-For the purposes of this clause, “commercial purpose” does not include use by  a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self employment”

13. Nowhere, it is alleged by the complainant in the complaint or stated as such in his sworn affidavit Ex.CA that he had purchased the combine harvester exclusively for the purpose of earning his livelihood by means of self employment, in the absence of which it has to be held that the complainant  purchased the combine harvester for commercial purpose and therefore, he is not covered under the definition of ‘consumer’ and as a result he could not maintain the complaint.
14. Now we take up the objection raised by the Op that the complaint is barred by limitation. The complainant had purchased the combine harvester vide retail invoice Ex.C2 dated 14.4.2012 but he never brought any defect muchless any manufacturing defect in the combine harvester to the knowledge of the Op within a period of two  years from the date of the purchase of the combine harvester. The complainant had brought the previous complaint i.e.CC No.424 of 2014 Lakhvir Singh Vs. M/s New Friends Industry Patiala and others before the District Consumer Disputes Redressal Forum, Ferozepur on 7.11.2014 i.e. beyond a period of two years from the date of the purchase. The complainant has failed to lead any evidence that the combine harvester had ever suffered from any defect and he ever approached the Op for getting the same rectified within a period of two years from the date of the purchase thereof and therefore, the complaint brought after a period of two years is certainly found barred by limitation.
15. The complainant has brought this complaint against the Op asking for the reliefs i.e. (i) to pay a sum of Rs.5lacs on account of the damages suffered by the complainant and to award the costs of the complaint. The complainant has also alleged that he has suffered the harassment and the mental agony on account of which he has claimed a compensation in a sum of Rs.50,000/-. The detail of the damages has been given in para no.8 of the complaint in which it is alleged that the complainant suffered the loss of Rs.1,50,000/- and Rs.2,00,000/- in the two seasons i.e. Harri,2012 and Sauni ,2012. In addition he had to pay a sum of Rs.20,000.- to the foreman, Rs.13000/- to the driver and Rs.7000/-to the helper, the total amount of which comes to Rs.3,90,000/- and adding the compensation of Rs.50,000/- on account of the harassment and the mental agony, the total amount would come to Rs.4,40,000/-.All these said damages have been claimed by the complainant from the Op because of the manufacturing defect in the combine harvester  but not the least evidence is lead by the complainant to show that the combine harvester had ever suffered from any defect, what to talk of the manufacturing defect. So much so the very manufacturing defect has not been explained either in the pleadings or by the complainant Lakhvir Singh in his sworn affidavit Ex.CA.,
16. Had the complainant encountered any problem in the working of the combine harvester, he was expected either to have taken the combine harvester to the workshop of the Op or to anyother workshop for getting the defect rectified. Nowhere, it is alleged by the complainant that he had ever brought the combine harvester to the workshop of the Op at Nabha or taken to any other mechanical workshop. When the complainant has not disclosed about the said material fact in the complaint, what to talk of the complainant leading any evidence by way of producing the affidavit of the very mechanic of the workshop who detected the defect/manufacturing defect in the combine harvester, it goes to belie the plea taken up by the complainant in this regard.
17. Now coming to the other aspect of the complaint regarding the complainant having made the payment of Rs.6,40,000/- in cash to the Op on 14.4.2012 at the time of the taking delivery of the combine harvester and the Op having not returned the alleged blank cheque obtained from the complainant got signed by him, in this regard least said is better. Ex.C2 is the  retail invoice dated 14.4.2012 vide which the combine harvester model 2012  having engine No.ALEL69871 was sold by the Op in favor of the complainant and Sakattar Singh for Rs.13,40,000/-. It is very much recorded on the retail invoice that a sum of Rs.7lacs were received while there remained a balance of Rs.6,40,000/- and the endorsement made in that regard on the retail invoice is signed by the complainant Lakhvir Singh and Sakattar Singh, a fact not disputed by the complainant. Ex.C7 is the copy of cheque No.411766 dated 30.7.2012 for Rs.6,40,000/- issued by the complainant Lakhvir Singh in favor of the Op drawn upon State Bank of Patiala while Ex.C10 is the copy of the cheque No.979053 dated 30.7.2012 for Rs.6,40,000/- drawn in favor of the Op  by Sakattar Singh upon Punjab National Bank. It is the case of the complainant that when he had come to take the delivery of the combine harvester that he was carrying the cash with him regarding the balance payment and he requested the Op to accept the same and return his cheque and that the Op said that it had no objection and asked the complainant to make the balance payment in cash and get the cheque back as the cheque had been received as a security but there being the malafide intention on the part of the Op and to play fraud with the complainant the Op received the balance amount but failed to hand over the cheque back to him. It is simply alleged by the complainant that the Op had also received blank cheque signed by him towards the balance payment having agreed to deliver the combine harvester by the Op on 25.11.2011. Nothing is disclosed about the cheque to have been obtained by the Op from his co-purchaser namely Sakatter Singh. It is very much averred in Ex.OP1, the certified copy of the complaint No.226 of 4.10.2012 titled as M/s New Friends Industries, Patiala Road, Nabha Vs. Lakhvir Singh under Section 138 of the Negotiable Instrument Act and 420 IPC that the post dated cheque no.411766 dated 30.7.2012 for Rs.6,40,000/- was issued at the time of taking the delivery of the combine harvester. Similarly in Ex.OP11, the certified copy of the complaint No.224 of 4.10.2012 titled as New Friends Industries Patiala Road Nabha Vs. Sakattar Singh under Section 138 of the Negotiable Instrument Act and 420 IPC , it is averred that a post dated cheque No.979053 dated 30.7.2012 for Rs.6,40,000/- was issued by Sakatter Singh after getting the delivery of the combine harvester on 14.4.2012. Had  the  complainant and his co-purchaser Sakatter Singh made the payment of the balance amount of Rs.6,40,000/-  in cash to the Op, there was no need for them to have got the endorsement made on the retail invoice Ex.C2,   showing the balance of Rs.6,40,000/- and rather it goes to probablise  the plea taken up  by the  Op  that the said post dated cheques  were issued by the complainant and his co-purchaser to discharge their liability regarding the balance payment.  It is also important to note that the Op had no malafide intention in getting the two cheques issued from the complainant and his co-purchaser Sakatter Singh. It was by way of abundant caution that they got the  two cheques. Firstly the Op tried to cheque No.411766 dated 30.7.2012 for Rs.6,40,000/- issued by the complainant encahsed but the same was dishonoured vide memo Ex.C8 dated 3.9.2012 because of the funds being insufficient in the account of the drawer and only thereafter the Op had tried to encash the other cheque No.979053 dated 30.7.2012 for Rs.6,40,000/- issued by Sakatter Singh but the same was also dishonoured vide memo dated 30.7.2012 issued by Punjab National Bank main branch Nabha on account of the funds being insufficient, the certified copy of which has been placed on record as Ex.OP15. Therefore, we do find a substance in the plea taken up by the Op that the present complaint has been brought by  the complainant as a counter blast to the two complaints brought by the  Op against the complainant and his co-purchaser Sakatter Singh.  The falsity of the present complaint is also established from the fact that earlier the complainant had brought a similar complaint before the District Consumer Disputes Redressal Forum, Ferozepur vide  CC No.424 of 2014 on 7.11.2014 as would appear from Ex.C1, the copy of the order dated 30.4.2015 vide which the said complaint of the complainant was dismissed for want of territorial jurisdiction. Here, it may be noted that in the said complaint, it was alleged by the complainant that the payment was made at village Faride Wala Hithar, Tehsil and District Ferozepur and the combine harvester was also received by the complainant in the said village but no evidence has been lead by the complainant regarding any payment to have been made by him or his co-purchaser in favor of the Op in village Faride Wala Hithar, Tehsil and District Ferozepur and rather  a perusal of the retail invoice Ex.C2 would go to show that the payment was received by the Op at Nabha and the delivery of the combine harvester was also made at Nabha. Thus, we are of the considered view that the complaint brought by the complainant against the Op is based on false, frivolous and vexatious allegations in order to vindicate his interest against the Op on account of the complaints to have been brought by the Op against him and his co-purchaser Sakatter Singh and therefore, the complaint is hereby dismissed with special costs of Rs.10,000/- under Section 26 of the Act to be paid by the complainant to the Op within one month on receipt of the certified copy of the order.

Pronounced

Dated:15.12.2015

                   Sonia Bansal                Neelam Gupta                        D.R.Arora

          Member                        Member                                  President