Date of Filing 25.01.2023

                                                                                                       Date of Disposal: 30.11.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

BEFORE TMT. Dr.S.M. LATHA MAHESWARI, MA. ML, Ph.D (Law),                                    …….PRESIDENT

               THIRU.P.VINODH KUMAR, B.Sc., BL,                                                                           ……MEMBER-I

CC.No.72/2023

THIS THURSDAY, THE 30^th DAY OF NOVEMBER 2023

M/s.Saveetha Dental College and Hospitals,

Rep. by the Purchase Manager,

No.162, Poonamallee High Road,

Velappanchavadi, Chennai 600 077.                                                   ......Complainant.

                                                                                      //Vs//

The Manager,

M/s.Ram Raj Enterprises,

GSTIN:33 ANUPS7331M1Z8,

No.1/340, Medavakkam – Mambakkam Main Road,

Opp to SGR Kalyana Mahal,

Sithalapakkam,

 Chennai 600 126.                                                                                  …..Opposite party.

Counsel for the complainant                           :     Ms.P.Tharagai, Advocate.

Counsel for the opposite party                       :     M/s.S.Muthukumaravel, Advocate.

This complaint coming before us on various dates and finally on 16.11.2023 in the presence of Ms.P.Tharagai, counsel for the complainant and M/s.S.Muthukumaravel, counsel for the opposite party and upon perusing the documents and evidences of both sides this Commission delivered the following:

ORDER

PRONOUNCED BY TMT.Dr.S.M. LATHA MAHESWARI, PRESIDENT

1. This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the opposite party with regard to sale of the Mark Compressor along with a prayer to direct the opposite party to refund the total amount of Rs.11,30,000/- being the cost of Mark compressors and to pay a sum of Rs.5,00,000/- towards compensation for the mental agony and loss sustained by the complainant.

Summary of facts culminating into complaint:-

2. Saveetha Dental College and Hospitals was part of Saveetha Educational Trust and one of the Prime and Multi Speciality Hospital in Chennai.  The complainant approached the opposite party M/s.Ramraj Enterprises to purchase Mark Brand Screw compressors since the opposite party has represented himself as the licensed vendor for Mark Brand compressors in India.  Hence on 11.03.2022 the complainant placed a purchase order for Mark Screw Compressors vide purchase order No.210105677 for an amount of Rs.11,30,000/-.  The complainant paid the entire sale consideration according to the agreed terms and conditions.  Based on the purchase order the opposite party had delivered the compressor on 15.06.2022 but the brand name Mark was nowhere mentioned either in purchase order or in the sale invoice. When the complainant asked for the clarification, the opposite party falsely stated that the brand name would not be mentioned either in the invoice or purchase order wherein the opposite party have shown the steel plate affixed to the compressor in which the brand name of Mark has printed as Sale and Service Mark.  The opposite party also falsely assured that the Mark compressors were entitled for complete warranty and free service for a term of one year from the date of purchase of the machine. After a few months of operation the compressor reported multiple issues and stopped working.  Hence the complainant placed a service request to Mark compressors to rectify the issue.  On 25.11.2022 Service Engineers from Mark compressors inspected the compressor and found that the compressors are not original and not built by Mark and denied service to repair the multiple issues.  When the complainant showed the steel plate affixed with Mark brand they reported it was fake and advised the complainant to initiate legal action against the seller for duplicating the original brand products. The complainant realized that the opposite party has falsely misrepresented the facts and had committed fraud and breach of trust upon the complainant by delivering the duplicate compressors of cheap products and caused the complainant to sustain loss.  The opposite party had committed misrepresentation, mischief, fraud and unfair trade practice against the complainant.  Hence, complainant issued a legal notice to the opposite party on 23.12.2022 and the same was received by the opposite party on 29.12.2022 but they neither come forward to rectify the issue nor return the money paid by the complainant. Thus aggrieved by the act of the opposite party the present complaint was filed to direct the opposite party to refund the total amount of Rs.11,30,000/- being the cost of Mark compressors and to pay a sum of Rs.5,00,000/- towards compensation for the mental agony and loss sustained by the complainant.

The crux of the defence put forth by the opposite party:-

3. The opposite party filed version disputing the complaint allegations that the opposite party had represented themselves as a licensed vendor for the Mark Brand Screw Compressor. But admitted that they had supplied the Screw Compressor to the complainant as per the purchase order dated 11.03.2022. The complainant never requested or ordered the Mark Brand screw compressor. Without ordering a specific brand the complainant could not say that the opposite party had suppressed the brand name. Allegation that the opposite party has assured for warranty and free service for a period of one year was also denied. Delivery was delayed due to the war between the two countries Russia and Ukraine. Since complainant had urgently requested, the opposite party made alternative arrangements by obtaining the Screw Compressor at the rental charges. Since the Mark Brand was visible with open eye. Complainant not being a layman was well aware of the product what he had ordered and what he had received.  The opposite party started to repair the compressors only in order to maintain a customer relationship. Mark Brand compressors cost five lakhs higher price value than the other brand compressor. Hence the complainant could not say that he placed the order for Mark Brand compressor without any document or at least email or whatsapp communication. Complaint not maintainable as the complainant was a commercial entrepreneur and the transactions commercial in nature that, was the reason why the complainant not disclosed whether they are an educational trust or a public trust or private trust which was not reflected in the complaint.  As per the law Trust has no right to file a complaint before this Commission. Thus they prayed to dismiss the complaint.

4. On the side of complainant proof affidavit was filed and documents marked as Ex.A1 to Ex A7 were submitted. On the side of opposite party proof affidavit was filed and documents marked as Ex.B1 & Ex.B2 were submitted.

Points for consideration:-

1) Whether the complaint as filed before this Commission is maintainable on the ground that complainant not a “Consumer” and that the transactions involved is commercial in nature?

2) Whether the complaint allegations as to commission of cheating by the opposite parties in the matter of sale of the Mark Compressor amounts to deficiency in service and whether the same has been successfully proved by the complainant by admissible evidence?

3) If so, to what reliefs the complainant is entitled?

Point No.1:-

The following documents were filed on the side of complainants in support of their contentions;

1. Purchase order dated 11.03.2022 was marked as Ex.A1;
2. Invoice Receipt dated 15.06.2022 was marked as Ex.A2;
3. MARK inspection report dated 25.11.2022 was marked as Ex.A3;
4. Legal notice to the opposite party dated 23.12.2022 was marked as Ex.A4;
5. Acknowledgement card for proof of delivery was marked as Ex.A5;
6. Images of the product was marked as Ex.A6;
7. ID card of the Purchase Manager was marked as Ex.A7;

On the side of opposite party the following documents were filed in proof of their defence;

8. Email sent by the opposite party dated 30.07.2022 was marked as Ex.B1;
9. Email sent by the opposite party dated 09.08.2022 was marked as Ex.B2;

5. The preliminary objection taken by the opposite party is that the complainant being a Trust could not maintain a consumer complaint before this Commission.  Further it is also stated that as the transactions involved in is a commercial purpose, the complaint is not maintainable on the ground of commercial purpose.  Thus this Commission decided to discuss the issue as to maintainability of the complaint before this Commission as preliminary issue.

6. Heard both learned counsels elaborately on the question of maintainability as well as merits of the complaint.

 7.  The complainant had filed the complaint against the opposite party stating that Saveetha Dental College and Hospital is a part of Saveetha Education Trust.  When such is the situation it is to be presumed that the complaint was filed by only the Saveetha Dental College and Hospitals and not by Trust. The precedent as on date that a complaint by trust is not maintainable was covered by the decision rendered by the Supreme Court in Pratibha Pratisthan & Ors Vs The Manager, Canara Bank & Ors in CA.No.3560/2008 decided on 07.03.2017 wherein it has been held that the Trust will not come under the definition of ‘Person’ and hence could not be considered as a consumer and holding that any complaint filed by a Trust before this forums is not maintainable. But in the present case the complainant is not a Trust but a college which is a part of Trust functioning as a Separate unit and hence we cannot hold that the Trust itself is the complainant in the present complaint and thus the objections with regard to the same raised by the opposite party has to be brushed aside.

8.  Further the complainant alleges that he ordered Mark Brand Screw Compressor from the opposite party, but the opposite party had committed fraud on them by delivering a duplicate brand. Whether the product ordered by the complainant is used for raising profit for self purpose by the complainant was not discussed by either of the parties. As the recent Supreme Court decision in Shrikant G Mantri Vs Punjab National Bank   in CA.No.11397/2016 dated 22.02.2022 it has been held that only the transactions involving use of such goods for the purpose of attaining profit, the transaction could be held to be as commercial transaction.  Thus the complaint cannot to be dismissed at the thresh hold on the ground of maintainability on both grounds.  This point answered accordingly.

Point No.2:-

9. Coming to the merits of the complaint it is argued by the learned counsel appearing for the complainant that they ordered for Mark Brand Screw Compressor vide purchase order Ex.A1 dated 11.03.2022 with the opposite party.  The Tax Invoice was filed in proof of payment and delivery of the product. However when the compressor becomes defective and when the complainant requested the Mark Compressor for rectifying the same they were informed that the product supplied by the opposite party is a duplicate one.  Thus alleging fraud, cheating, misrepresentation etc the present complaint was filed.

10. On the other hand the opposite party argued that the complainant knowing well that the Compressor does not belongs to Mark Company had placed orders and hence now they could not allege fraud or cheating upon them.  It is also fairly admitted that being the sellers they had instructed the service personnel to rectify the defects in the compressor sold by them. 

11. On appreciation of the entire pleadings and material evidences produced before us, it is found that in the purchase order Ex.A1 under the caption of description it is mentioned as COMPRESSOR SCREW 30KW/40HP, COMPRESSOR-2NOS 178CRM 20HP, COMPRESSOR-1NO.  However, no where it is mentioned that Mark Brand was ordered by the complainant and the same was delivered by the opposite party to the complainant. The said aspect was also missing in the Tax Invoice produced as Ex.A2, wherein it has been mentioned that only COMPRESSOR SCREW 30KW/40HP, was sold to the complainant.  Further no communication details were produced by the complainant that they offered for only Mark Brand Compressors which was accepted by opposite party. Thus the complainant had utterly failed to produce any document to substantiate that they ordered for Mark Compressor but did not receive Mark Brand Compressor from the opposite party.  In such circumstances the allegations of the complainant that the opposite party had wilfully sold a different product to the complainant misrepresenting themselves as authorized dealers of Mark Compressor and thus had committed fraud and unfair trade practice by selling a duplicate brand could not be accepted.

12. Further the allegations as to fraud could not be adjudicated before this Commission as per the recent Supreme Court Judgment in the Chairman and Managing Direct, City Union Bank Limited and another Vs R.Chandramohan in CA.No.7289/2009 dated27.03.2023.  In such circumstances we hold that the complainant had failed to establish the complaint allegations by any admissible evidence.  Thus this point is answered accordingly against the complainant and in favour of the opposite party.

Point No.3:-

132. As we have held above that the complainant had failed to prove that the opposite party committed deficiency in service and unfair trade practice, they are not entitled to get any relief from the opposite party.  Thus we answer the point accordingly.

In the result, the complaint is dismissed.  No order as to cost.

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this 23^rd day of November 2023.    

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MEMBER-I                                                                                                      PRESIDENT

List of documents filed by the complainant:-

List of documents filed by the opposite party-

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MEMBER-I                                                                                                      PRESIDENT