DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JHARSUGUDA
CONSUMER COMPLAINT CASE NO.67 OF 2017
Dinesh Kumar ( 70 Years.),
S/O- Devendra Mahto,
RO: Chowkipada, Jharsuguda,
PS/ Dist: Jharsuguda, Odisha………………………………………………Complainant.
Versus
- M/s Tribeni Engineer,
Plot No.1184/ 2182, 2nd Floor, Juga-Janhabi Plaza,
Bomikhal, Bhubaneswar, Dist: Khorda (Odisha),
- The Branch Manager,
Oriental Insurance Co. Ltd.,
Corporate Business Unit, 7, Red Cross Place,
1st Floor, Kolkata-Pin-700 001(West Bengal).………....….……...Opp. Parties.
Counsel for the Parties:-
For the Complainant H.S. Agrawal, Adv.& Associates.
For the Opp. Party No.1 Subhasis Panda, Adv.& Associates.
For the Opp. Party No. 2 Self (Ex-Parte).
Date of Order: 05.12.2017
Present
1. Shri Sundar Lal Behera, President.
2. Shri Santosh Kumar Ojha, Member.
3. Smt. Anamika Nanda, Member(W).
Shri Santosh Kumar Ojha, Member : - In brief, the complainant’s case is that, the complainant had purchased one Hyundai Hydraulics Excavator Machine from the O.P No.1 on dtd. 06.01.2017 for a consideration price of Rs.54,00,000/- only which was financed by one Srei Equipment Finance Ltd. consortium of Bankers with UCO Bank, Kolkata. The said vehicle was insured by O.P.No.2 which was valid up to dt.29.01.2018. The complainant has purchased the said machine to earn his livelihood by engaging an operator and helper. The machine was engaged for earth work at Bhushan Power & Steel Ltd., Thelkoloi and on dtd. 19.01.2017 the said machine after completing the work for the day suddenly capsized on its left side and got damaged. The complainant immediately informed to O.P.No2 and as per their assurance he consulted with the O.P.No.1. The O.P.No.1 send a proforma invoice of Rs. 7,20,318/- only dtd. 25.01.2017 for supply of required spare parts. The complainant paid Rs. 5,80,000/- only in total towards advance amount for supply of spare parts to the O.P No.1 but till today the O.P No.1 did not supply any spare parts rather demanding Rs.2,40,000/- only. The complainant alleges unfair trade practice against the O.P.NO.1 and prayed that he is suffering financial loss of Rs.8,000/- only per day. The complainant filed the case for proper adjudication.
The O.P.No.1 appeared through his counsel after being noticed, where the O.P No.2 kept silent in this case and stand ex-parte ultimately. The O.P No.1 challenged on the maintainability of the case as per Sec-11(2) and section 2(d)(i) of the C.P.Act, 1986 and submitted with other averments that he has issued the proforma invoice dtd. 25.01.2017 of Rs.7,20,318/- only towards the cost of spare parts and complainant only paid Rs.5,80,000/- only against the payment of Rs 7,20,318/- only and Rs.2,40,318/- only is due against the complainant. The O.P No.1 issued notice to the complainant on dt. 05.06.2017 and also on 19.06.2017 to take delivery of spare parts and to pay the balance amount, the complainant did not turn up. And also submitted that the O.P No.1 already repaired the machine in question through the service engineer and the complainant signed in the field service report. On the above submissions the O.P.No.1 prayed that the complaint petition may be dismissed.
Heard in length from both the sides. Followed minutely the relevant documents filed by the parties. There is no any allegation against the O.P.No.2 thus being an ex-parte the O.P.No.2 is not found to be any deficient in service or unfair trade practice. But there are so many issues found on both law and facts in deciding the matter such as :
- Whether the case is maintainable before this Hon’ble Forum or not U/S. 11(2) and U/S. 2(1)(d)(i) of the Consumer Protection Act, 1986 ?
- Whether the O.P No.1 is liable on the allegations raised by the complainant ?
While deciding on the very first issue the O.P.No.1 objected on the provisions of law on maintainability on the point of jurisdiction and on having a consumer. U/S. 11(2)(c) clearly says that, “the cause of action, wholly or in part, arises.” The cause of action in part arises as the complainant deposited the advance amount of Rs. 4,80,000/- only through cheque vide No. 000090, dtd. 16.02.2017 and Rs. 1,00,000/- only vide Cheque No. 000094 dtd.07.04.2017 of HDFC Bank, Jharsuguda Branch
which were duly received and agreed by the O.P NO. 1. On objection of U/S. 2(1)(d)(i) which reads as ,
“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; or”.
Here the complainant has not used the said machine for any resale or any commercial purpose which has been specifically explained as,
“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 purposes of earning his livelihood by means of self-employment;”.
Though the complainant has engaged an operator and a helper to run the machine which is for earning his livelihood. It will also come under the term “self-employment” as to run the said machine it will require an appropriate operator so also a helper to help the operator. So also on the point of pecuniary jurisdiction.
Though the consideration price of the machine is Rs. 54,00,000/- only the complainant prayed for direction on Rs.12,48,000/- only towards the loss sustained , Rs.4,00,000/- only towards harassment, Rs.3,00,000/- only towards deficiency in service and Rs. 50,000/- only towards the cost of the case i.e the total value of the case is Rs. 19,98,000/- only which is below Rs.20,00,000/- only(the pecuniary limit of District Consumer Forum). As such this this case is maintainable and this Hon’ble Forum is competent to adjudicate the matter.
On deciding the second issue, the complainant alleged that after paying advance amount of Rs. 5,80,000/- only in total out of Proforma Invoice bearing No. 298/16-17 dtd. 25.01.2017 amounting of Rs. 7,20,318/- only which were duly received by the O.P.No.1 (as agreed in para 8 of the Written Statement), the O.P No.1 not provided the necessary spare parts till date. In contrary the O.P.No.1 failed to prove that in which date he has sent the said spare parts and through which means rather as per “Date of Visit” in Field Service Reports dtd. 22.03.2017,31.03.2017 and 23.05.2017 which were signed by some unknown persons in column of “Customer’s Signature / Date” without any authorized person / any seal or stamp of complainant. Very interestingly the O.P.No.1 filed 03(three) Nos. of Invoices i.e bearing Nos. BBSR/16-17/835 dtd. 31.03.2017 amounting Rs. 4,64,790/- only with endorsement to be dispatched through “BY BUS”.
The description of goods shows that the spare parts such as H75N6-10000 (Cabin Assy) and 11N8-43290(Intercooler Assy). Those spares are seems to be huge in size used in excavator sent through bus without any specification. The other two invoices are bearing No.SAMB/16-17/316 dtd. 31.03.2017and Invoice No. SAMB/17-18/67 dtd. 18.06.2017. In both the invoices it is not mentioned that the spares are dispatched through which means. Thus it is crystal cleared that the O.P No.1 has failed to prove his case and he must be liable for his above mentioned negligent attitudes.
The aforesaid performances of the O.P NO.1 denotes towards adopting of unfair trade practice and deficiency in service towards the complainant hence the present complaint case is hereby allowed with following directions in form of order as follows:
ORDER
- The O.P. No.1 is directed to supply the total spare parts as per requirements to repair the damaged machine in question of the complainant and receive the legitimate amount, after adjusting the amount paid by the complainant.
- The O.P.No.1 is hereby directed to pay a sum of Rs. 1,500/- (Rupees one thousand five hundred) only per day to the complainant from the date of first receiving amount from the complainant (i.e. dtd.16.02.2017) till the date of finalization of repairing works of the machine in question towards delay taken place in supplying of necessary spare parts and repairing of the machine, mental agony including litigation cost, failing which the O.P.No.1 shall be liable for interest @ 10% per annum till the date of realization of the above mentioned awarded amount from the date of finalization of the repairing work of machine in question.
Accordingly the case is disposed of.
Order pronounced in the open court today the 05th day of December’ 2017. Free copy of this order be communicated to the concerned parties as per rule.
I Agree. I Agree.
A.Nanda, Member(W) S. L. Behera, President S.K.Ojha, Member
Dictated and corrected by me
S.K.Ojha, Member
