Complainant Raman Kumar has filed the present complaint against the opposite parties U/S 12 of the Consumer Protection Act (for short, C.P.Act.) seeking necessary directions to the opposite parties to either send the New Machines or to return the amount deposited by him in advance for the purchase of Knitting Machines alongwith interest on Rs.11,29,277/- and other relief   for which he is entitled to be passed. Opposite parties be also directed to pay Rs.50,000/- for mental harassment to him, in the interest of justice.

2.       The case of the complainant in brief is that he is having no source of income and he was unemployed and he being jobless, in order to earn livelihood for himself and for his family members by way of self employed, has availed loan through PMRY (Prime Minister Rozgar Yogna) for starting the business of manufacturing of Woolen garments. The opposite parties deal in the knitting machines and he has ordered Four Power Flat Knitting Machines and two Winder Machines to the opposite parties and deposited Rs.11,29,277/- for the purchase of abovesaid machines in the month of December, 2015. The opposite party no.3 is working as sale representative and was dealing the business of opposite parties no.1 and 2. He has further pleaded that on 2.2.2015, the opposite parties had sent two machines covered with polythene i.e. Power Flat Knitting Machines, then he has requested them to send the remaining ordered machines, but to his utter surprise, the opposite parties have sent the bill dated 4.1.2016 amounting to Rs.3,21,332/- without any machine. Thereafter, he has requested the opposite parties many times about the reason behind non sending of the remaining ordered machines but the opposite parties lingering the matter on one pretext or the other and have not sent the remaining ordered machine. In the month of September, 2016, the opposite parties sent a Power Flat Machine and two winder machines, but later on he was surprised to know that out of 3 Power Flat Machines and other two were second hand Machines with manufacturing defects, whereas he has paid the opposite parties for the purchase of Brand New Power Flat and Winder Machines. As the season of woolen garment starts on the month of August and September. He opened all machines in the month of September. He has made many requests to the opposite parties to either replace 3 Power Flat Machines with new machines and also to send the 4^th Power Flat Machine. However, he is continuously paying the bank installment from where he has taken the amount for giving the same to the opposite parties. He had also issued a legal notice dated 29.11.2016 through his counsel. The opposite parties has deliberately and intentionally refused to send the balance knitting thread and to return the amount deposited by him in advance for the purchase of knitting thread which is clear cut deficiency in service on the part of the opposite parties. Hence this complaint.

3.       Notice of the complaint issued to the opposite parties but they could not appear before this Forum, therefore, they were proceeded against exparte vide order dated 28.6.2017 and 18.12.2017.

4.       Complainant tendered into evidence his own affidavit Ex.CW1/A, alongwith other documents Ex.C1 to Ex.C11 and closed the evidence. 

5.      We have carefully examined all the documents/ evidence as made available on the complaint records (as duly put forth by the participating litigant) along with the scope of the adverse inference that may be judicially but discretionarily drawn on account of the intentional non-participation of the prime OP Vendor along with the others and instead preferring ex-parte proceedings, in the very back-drop of arguments as put forth by the learned counsel for the litigating complainant.

6.       We find that the complainant had on record purchased (affidavit Ex.Cw1/A) 3 nos. of Power Flat Knitting M/cs and 2 nos. of Winding M/cs vide 2 nos. of Invoices Nos. 284 dated 02.12.2015 for Rs.5,36,613/- and  No. 288 dated 04.01.2016 for Rs.3,21,332/- (Ex.C4 and Ex.C3) from the OP1 Vendor per 6 nos. of photographs (Ex.C5 to Ex.C10). Further, the complainant’s Bank A/c Statement shows RTGS transfers of Rs.5,63,183/- & Rs.5,63,182/- to the OP1 vendor on 01.12.2015 and 16.12.2015 whereas the machinery supplied vide Ex.C3 and Ex.C4 are for lesser amounts besides the physical receipt of only three nos. of Power Flats including the two used second-hand and one Dummy M/c whereas the payment was for the fresh new machinery. Further, the received knitting machinery (in question) as installed at the Purchaser’s place has malfunctioned and when the complainant approached the titled OPs at Ludhiana he was assured of replacement of short supply and defective machines with new fresh ones but to no avail since no fresh replacements did reach the complainant’s site till the filing of the present complaint. 

7.       We find that the present complainant has successfully proved all his complaint-contented allegations vide his affidavit Ex.C1 and other evidentiary documents Ex.C2 to Ex.C11; and we further find that the (OP1 vendor, the OP2 MD and OP3 representative) have preferred to be proceeded against ex-parte (by absenting-out present proceedings) and have thus further strengthened the trite judicial presumption that an intentional absentee/ ex-parte litigant has no legs to stand in the witness box to plead his defense since he has no cogent and acceptable defense to plead. However, we (in line with the settled law) are inclined to subject the ‘award’ to the restrictions of ‘moderation’ so as not to cause undue enrichments to the ‘awardee’ and/ or to cast undue excessive ‘distresses’ to the delinquent party.            

8.       In the light of the all above, we find the hue of actionable statutory merit in the present complaint and thus partly allow the complaint and ORDER the OP1 Vendor to replace the presently supplied second hand/ demo machinery with brand new/fresh machinery to be in conformity with that ordered in quality and quantity or in the alternative non-availability refund the full receipted amount form the complainant besides to pay him a sum of Rs 25,000/- as cost and compensation within 30 days of the receipt of the copy of these orders otherwise the awarded amount shall attract interest @ 9% PA from the date of filing of present complaint till actual payment.

9.       Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to records.

              (Naveen Puri)

                                                                              President

ANNOUNCED:                                                      (Jagdeep Kaur)                      

May 09,2018.                                                           Member                                       

*MK*