BEFORE THE DISTT. CONSUMER DISPUTES REDRESSAL FORUM, ROPAR
Consumer Complaint No. : 74 of 10.08.2015
Date of decision : 30.08.2016
Harjit Singh, son of Sukhpal Singh, resident of House No.892, Sector 11, Garden Colony, Kharar, Tehsil Kharar, District Mohali.
......Complainant
Versus
M/s Strong Arms Hydraulic India Railway Road, Morinda, Tehsil Chamkaur Sahib, District Rupnagar, through Prop. Satnam Singh son of Late Darshan Singh.
....Opposite Party
Complaint under Section 12 of the Consumer Protection Act, 1986
QUORUM
MRS. NEENA SANDHU, PRESIDENT
SMT. SHAVINDER KAUR, MEMBER
ARGUED BY
Sh. S.K. Vashishat, Advocate, counsel for the complainant
Sh. Varinder Kumar Dhiman, Advocate, counsel for Opposite Party
ORDER
MRS. NEENA SANDHU, PRESIDENT
Sh. Harjit Singh has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Party (hereinafter referred to as ‘the O.P.’) praying for the following reliefs:-
i) To refund the amount of Rs.2,99,000/- along with interest @ 12 % per annum,
ii) To pay Rs. 1,90,000/- as compensation for mental agony and physical harassment suffered by him,
iii) To pay Rs. 10,000/ as litigation costs,
2. In brief, the case of the complainant is that to earn his livelihood, he planned to start business and for this he came in contact with contractor who was installing electricity poles and he gave him a proposal that if he could arrange machine, then they would give subcontract to him. He on the proposal of the contractor, went to the workshop of O.P. and told it about his requirement. The O.P. agreed and gave quotation on 02.10.2014 and promised to deliver the machine in working condition after a calefactory trial, within 30 days from realization of payment. Vide quotation dated 2.8.2014, the O.P. promised to prepare a (tractor mounted attachment front end hydra type and single post Hole digger back end (tractor driven) within 30 working days. The O.P. has quoted Rs. 3,65,000/- as price + Rs.20075/- + Rs.2007 total price of machine as Rs.3,87,082/-. The O.P. has taken Rs.1,00,000- as advance payment vide receipt dated 2.8.2014 on the same day of issuance of quotation of machine, wherein terms and conditions regarding preparing the machine were mentioned. The O.P. has taken another payment of Rs.1,99,000/- vide receipt dated 28.10.2014. He made the payment to the O.P. after taking the loan. It is further stated that the O.P have delivered the captioned machine after a laps of about four and half months i.e. 17.1.2015 for its trial for twenty days, from 17.1.2015 to 10.2.2015, vide letter dated 17.1.2015, that he and O.P. agreed to pay and receive last and final payment on 11.2.2015 of Rs.41,000/- only, after the successful trial of the machine. He informed the O.P. within three- four days after getting the machine for trial from its workshop that the machine prepared by it is not working properly. He informed the O.P, by visiting its workshop at Railway Road, Morinda, along with defective machine, but it have did nothing to remove the defects of the machine. The machine is lying idle with its defects at his premises, due to which he could not complete the commitments made to his clients and has suffered heavy losses due to non working of machine. Without heeding to and without redressing his complaint, the O.P. vide letter dated 3.3.2015, demanding Rs.62,780/-, which is unfair and unjustified. He sent a legal notice on 13.3.2015 to the O.P. and stating therein that the Tractor mounted attachment front end hydra type and single post hole digger back end (tractor driven) prepared by it is not working properly. After receipt of the reply to the said legal notice, as per the advice of the O.P., he contacted it on 2.4.2015 for removal of defect in the machine. The O.P. took the trial of machine for erection of 9 meter to 11 meter of electric cemented poles, but the said machine failed to erect the same and could dig hole of 5 feet 3 inches only instead of 6 feet. Hence, this complaint.
3. The notice of the complaint was given to O.P. but due to non appearance, the O.P was proceeded against ex-parte vide order dated 12.10.2015. On filing of appeal by the O.P. against the said order, the Hon’ble State Commission, vide order dated 10.12.2015 in FA No. 1138 of 2015 has set aside the order passed by this Forum, subject to payment of costs of Rs.5000/-. In compliance of the order dated 10.12.2015 passed by the Hon’ble State Commission, the O.P. filed written version taking preliminary objections; that the present complaint is not maintainable as the O.P. has already filed civil suit for recovery against the complainant which is pending in the court of Civil Judge (Jr. Divn), Rupnagar, therefore, this Forum has no territorial jurisdiction to adjudicate the matter. The complainant has filed the present complaint only as a counter blast of the civil suit filed by it; that the complainant has not come to the Forum with clean hands; that the complainant has concealed the material facts from this Hon’ble Forum; that the complainant has filed the complaint on false and frivolous facts. Moreover, complainant had procured the false and fabricated documents i.e. Ex.C10 & Ex.C11 only with the motive of grab the amount from the O.P. illegally and just to harass and humiliate the answering OP. The complainant wants to grab the remaining amount of O.P., which is due towards the complainant under the garb the present false and frivolous complaint. On merits, it is stated that complainant contacted the O.P. for fabrication of Tractor mounted attachment and it issued a quotation dated 2.8.2014 and not on 2.10.2014, as alleged by the complainant. All the terms and condition regarding prices, taxes, mode of payment, validity, delivery of machine, transportation, cancellation, improvements, warranty force major caluse and jurisdiction have clearly been mentioned in the quotation dated 2.8.2014. The complainant has failed to make the payment to the O.P as per the terms and conditions, so the complainant is defaulter and is not entitled for any relief from this Hon’ble Forum. It is further stated that as per quotation dated 2.8.2014, the delivery of machine will be given to the complainant after realization of the full and final payment but the amount of Rs.62,780/- is still due towards the complainant and due to this fact the O.P. has filed the suit for recovery of the said amount of Rs.62,780/- in the civil courts much prior to filing the present complaint. It is admitted that the complainant had paid Rs.1,99,000/-. It is further stated that complainant approached the O.P. for on 17.1.2015 for getting the machine but could not pay the remaining amount as as agreed between the parties as per the quotation dated 2.8.2014. The complainant had requested the O.P. to hand over the machine with a promise to pay the balance sale consideration before 11.2.2015 and asked that the original sale invoice may be issued to him after the full and final payment. On his request, it handed over the machine to the complainant, but he did not turn up to pay the balance sale consideration. Whenever, it demanded the said amount he would put off the matter and later on refused to make the payment. Thereafter, the O.P. issued a gentle reminder letter through registered AD post on dated 3.3.2015 but of no use and all these facts have been concealed by the complainant from this Hon’ble Forum and has filed the complaint on false and frivolous facts. The complainant never contacted or visited its shop regarding malfunctioning of machine in question. It rightly issued the letter to him to make the payment of the balance amount but even after the receipt of the said letter, he did not make the payment. The O.P. has every right to recover the hard earn money from the complainant. The complainant issued the legal notice to it. The complainant had issued the legal notice as a counter blast of the gentle reminder dated 3.3.2015 issued by it, to the complainant for making the payment which is due towards him. It is further stated that the documents, which are exhibited Ex.C10 & Ex.C11 are false and fabricated document, which are unattested photocopies and no such type of document are in existence. Rest of the allegations made in the complaint have also been denied and a prayer has been made for dismissal thereof, with heavy costs.
4. On being called upon to do so, the complainant tendered affidavits of the complainant, Ex. CW1/A and Ex.CW1/B, photocopies of documents Ex.C1 to Ex.C13 and closed the evidence. The Proprietor of O.P. tendered his affidavit Ex.OP-1, photocopies of documents Ex.OP-2 to Ex.OP14 and his counsel closed the evidence.
5. We have heard the learned counsel for the parties and gone through the record of the file carefully.
6. From quotation dated 02.08.2014, Ex.C2/OP2, it is apparent that the complainant ordered the O.P to prepare a machine having a digging depth maximum of 6 ft and having a hydra capacity at fixed boom 2 ton, middle boom 1.5 ton & mech. boom 500 kg, for which he had paid Rs.3,19,000/- and agreed to pay Rs.41,000/- only after the successful trial of the machine. But during the trial, it was found that O.P. has not prepared the said machine as per specification mentioned in the quotation. He requested the O.P. either to set up the machine as per the quotation or to refund Rs.2,99,000/-. But the O.P. paid no heed to his request. He further submitted that from the report dated 24.5.2016 furnished and CD placed on record, by the Local Commissioner, who was appointed to conduct the trial of the machine in question by this Hon’ble Forum vide its order dated 16.5.2016. It is, clear that the machine is not working properly as it is neither fit for making holes in the earth nor fit to lift the electric poles (Khambas). Therefore, O.P. be directed to refund the amount of Rs.2,99,000/- along with interest @ 12% per annum. It be also directed to pay compensation on account of mental agony and physical harassment suffered by him along with litigation expenses.
On the contrary, the learned counsel for the O.P. submitted that in the quotation dated 2.8.2014, all the terms and condition regarding price, taxes, mode of payment, validity, delivery of machine, transportation, cancellation, improvements, warranty force-majure clause and jurisdiction have clearly been mentioned. On 17.1.2015, complainant approached and requested the O.P. to hand over the machine and promised to pay the remaining amount of Rs.62,780/- on or before 11.02.2015 and said that after making the full and final payment, he would get the original sale invoice. But when complainant did not pay the said amount even after 11.2.2015 then on 3.3.2015, O.P. issued a gentle reminder Ex.OP5, for making payment of amount of Rs.62,780/-. However, he refused to pay the said amount. Thereafter, on 24.4.2015, O.P. filed a suit for recovery of the said amount, which is still pending before the Hon’ble Civil Court. As a counter blast, the complainant has filed the present complaint just to harass the O.P, which is absolutely devoid of merit. The said machine has been prepared as per the quotation dated 2.8.2014. Had the complainant been not satisfied with the working of the machine, then he could have contacted and could have brought the machine at the workshop of the O.P. for doing the needful, but the complainant never complaint about the malfunctioning of the said machine nor has brought the said machine to its workshop for removal of defect. He further submitted that if there is any defect in the said machine even then the O.P. is still ready to rectify the same free of costs. He further submitted that the Local Commissioner, has not conducted the trial in a fare and proper manner and the O.P. has filed objection to the said report. Neither from the report nor from the VCD placed on record by the Local Commissioner, it is not clear that whether the weight of pole to be erected has been measured by the Local Commissioner. It is also not clear whether the hole dug by the said machine has been measured by the Local Commissioner or not, even it is not clear whether at the time of trial of the machine, the Local Commissioner has checked the sharpness of the blade or not. Therefore, the report furnished by the LC may kindly be ignored while adjudicating the present complaint case.
7. From the quotation dated 2.8.2014, Ex.C2/OP-2, it is apparent that the complainant ordered the O.P. to prepare a machine, having a digging depth of 6 feet and hydra capacity at fixed boom 2 ton and middle boom 1.5 ton and mechanical boom 500 kg. In the minutes of meeting, Ex.C5, it is categorically mentioned that the complainant namely Sh. Harjit Singh has got prepared tractor mounted machine, for a sum of Rs.3,60,000/- and after paying, Rs.3,19,000/- he has taken the delivery from the O.P. for conducting trial for 25 days i.e. 17.1.2015 to 10.2.2015 and remaining amount of Rs.41,000/- would be paid after successful trial of the machine on 11.2.2015. As per complainant, on trial it was found that the said machine dug hole in the earth only upto 5’ 3” instead of 6 ft and failed to erect the cemented pole. In the report dated 24.5.2016, furnished by the Local Commissioner Ex.C12, it is mentioned that the machine in question is not working properly as it is neither fit for making holes in the earth nor fit to lift the electric poles (Khambas). The O.P. has filed the objections to the said report, but it has neither placed on record any document to controvert the said report nor has made any prayer for sending the machine in question to some expert. Thus, we have no reason to brush aside the report furnished by the Local Commissioner and the objections raised by the complainant against the report given by the Local Commissioner is baseless. Hence, rejected. Taking this fact into consideration that O.P. is still ready to remove the defect(s), free of costs and there is nothing on the record to establish that the complainant has ever taken the machine in question to the workshop of the O.P. for removal of the defect (s) and there is nothing on record to show that the machine will not work properly, even after its repair/replacement of the defective parts. In this view of the matter, we are of the opinion that the prayer made by the complainant for refund of Rs.2,99,000/- along with interest, is not tenable. It may be stated that the recovery suit filed by the O.P. is sub- judice before the Ld. Civil Court and as such, no adjudication regarding recovery of balance amount is being made. Consequently, we dispose of the complaint with the direction to the complainant to take the machine in question to the workshop of the O.P. within ten days from the receipt of the certified of the order. The O.P. is also directed to do the needful, so that the machine in question shall work properly as per the specification mentioned in the quotation dated 2.8.2014 and after conducting the successful trial in the presence of the complainant, shall hand over the same to the complainant.
8. The certified copies of this order be supplied to the parties forthwith, free of costs, as permissible under the rules and the file indexed & consigned to the Record Room.
ANNOUNCED (NEENA SANDHU)
Dated .30.08.2016 PRESIDENT
(SHAVINDER KAUR)
MEMBER.
