Date of Filing      : 12.08.2021

                                                                                                                 Date of Disposal: 11.11.2022

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

 

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

                  THIRU.J.JAYASHANKAR, B.A,B.L.,                                                              .....MEMBER-I

                 THIRU.P.MURUGAN,.MCom., ICWA(Inter)., B.L.,                                    ....MEMBER-II

  

CC. No.35/2021

THIS FRIDAY, THE 11th DAY OF NOVEMBER 2022

 

M/s.Malathi Builders,

Rep. by its proprietrix Mrs.Malathi,

Having office at No.1/170,

Chinthalakuppam Village,

S.R.Kandigai Post,

Gummidipoondi – 601 201.                                                        .........Complainant. 

                                                                          //Vs//

1.The Branch Manager,

    M/s.TRR Automotive,

    (Authorized Dealer of JCB India Limited Excavators),

    No.28/6 KM, GNT Road, Panchetty Village & Post,

    Ponneri Taluk, Thiruvallur District – 601 204.

 

2.The Manager, 

   (Authorized Dealer of JCB India Limited Excavators),

   GST Road, Silavattam Village, Pakkam Post,

   Maduranthagam Taluk, Kanchipuram District.

 

3.The Director, 

   M/s.JCB India Limited,

   No.B-1/1, 2nd Floor,

   Mohan Co-operative Industrial Estate,

   Matura Road, New Delhi – 110044.                                         ...Opposite parties.

 

Counsel for the complainant                                 :   Mr.A.R.Poovannan, Advocate.

Counsel for the opposite parties 1&2                  :   Mr.S.Sushil Kumar, Advocate.

Counself for the 3rd opposite party                     :  Mr.L.Thanigaivel, Advocate.

                         

This complaint is coming before us on various dates and finally on 27.10.2022 in the presence of Mr.A.R.Poovannan, Advocate Advocate,  counsel for the complainant, Mr.S.Ssushil Kumar, Advocate counsel for the opposite parties 1 & 2 and Mr.L.Thanigaivel, Advocate counsel for the 3rd 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.

 

This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service on the part of the opposite parties with regard to the purchase of JCB along with a prayer to direct the opposite parties  to pay a sum of Rs.5,00,000/- with 12% interest from the date of notice 19.12.2020 till realization towards compensation for the mental agony and economic loss caused due to the deficiency in service on the part of the opposite parties and to pay a sum of Rs.10,000/- towards cost of the litigation expenses to the complainant. 

Summary of facts culminating into complaint:-

 

It was submitted by the complainant that the 3rd opposite party was the manufacturer of excavators named as JCB and the 2nd opposite party was the dealer and 1st opposite party was the branch of the 2nd opposite party.  As the complainant was doing construction business, he approached the 1st opposite party branch office on 09.10.2020 and obtained quotation from one Mr.Senthil who narrated the specifications of JCB machine.  Hence the complainant placed an order to buy JCB model of JCB3DX ECO ECELLENCE BACKHOE LOADER with the specific demand that the machine should be fitted with MRF tyres. A sum of Rs.1,50,000/- was paid in cash on 16.10.2020 at the branch office of M/s.TRR Automotive/the 1st opposite party herein.  It was informed by Mr.Senthil that the JCB machine would be booked when the initial payment was done and advised that remaining down payment of Rs.4,81,229/- would be made on or before 31.10.2020 to have delivery of machine in time after arranging bank loan for the remaining amount and further assured that the loan amount would be delivered within a week.  Contrary to the earlier statement, on 27.10.2020 Mr.Senthil informed that the complainant had to immediately pay Rs.4,81,229/- to book the machine. Hence the complainant was shocked and upset as she could loose her contract with a private company if she was not keeping excavation machine ready with her to get excavation work worth about Rs.30,00,000/-.  Hence immediately on 29.10.2020 a sum of Rs.4,45,000/- was paid by RTGS but, Mr.Senthil demanded the remaining sum of Rs.36,229/- to be paid immediately for immediate booking and allotment of machine.  Hence the said amount was paid on 31.10.2020.  Thus the complainant totally paid a sum of Rs.6,31,229/-. In the first week of November when enquired it was informed that the machine was in transit and would be delivered in time.  When complainant’s husband called Mr.Senthil over phone in the 2nd week of November 2020 there was no response about the booking or allotment of the machine.  When enquired in the branch office it was informed that the machine had already reached the yard at Silavattam, Maduranthagam and asked to take delivery on 18.11.2020 at Silavattam, Maduranthagam.  The Bank loan of Rs.20,87,000/- was approved and was in hold due to uncertain dates from the 1st and 2nd opposite parties to transfer the funds.  The bank officials insisted the complainant to avail the sanction which could not be made in time due to the delay made by the opposite parties.  When one Mr.Logaraj was questioned about the delivery of machine on 18.11.2020 he informed that he has no idea about the same.  Mr.Senthil contacted the complainant’s husband over phone and informed to him that he has to wait for another two days to make allotment of machine as the vehicle has not been transported to yard.  The complainant’s lawyer called one Mr.Raja and on the same day immediate allotment of machine and delivery was assured.  Thereafter the allotment confirmation order was received by SMS which reveals that intentionally the Raja and Senthil hold the allotment of machine and delayed the delivery of the machine. It was further noticed that one Pitchandi of Red hills booked the JCB machine on 16.10.2020 by paying just Rs.10,000/- as advance, however, he got the machine in the same month of October 2020. It is learnt that the said Pitchandi had spent huge amount as commission to Mr.Senthil.  As per the commitment of opposite parties 1 & 2, the complainant sent her nominee with Form No.20 and Authorization letter to Silavattam, Maduranthagam by travelling 120 KM and on reaching the spot the 2nd opposite party’s representative asked him to handover Form No.20 and Authorization letter without showing the machine.  As the complainant’s nominee compelled him to show the machine, the machine was showed which was fitted with some other tyres instead of MRF tyres as assured and agreed by the 1st and 2nd opposite parties. The temporary registration was insisted before showing the machine.  Since the machine was not in required specification the temporary registration was delayed.   For the said trip the complainant spent around Rs.15,000/- to and fro and their valuable time. There was no communication until the complainant sent her husband and driver on 04.12.2020 to Silavattam, Mathuranthagam with lawyer to get details of non delivery of vehicle.  As the branch office was at Panchetty Village, Ponneri, Thiruvallur District the delivery of machine at Silavattam, Mathuranthagam was an unnecessary expense and harassment to the customers.  Further the said informations were not informed to the customers at the time of booking.  The complainant spent around Rs.15,000/- for booking delivery of the machine from Silavattam, Mathuranthagam and if at all the delivery at Panchetty Branch Office was informed earlier the complainant would have saved around Rs.15,000/- by avoiding transport and temporary registration.  The opposite parties 1 & 2 harassed the complainant and caused economical loss to the tune of Rs.5,00,000/-.  Thus the poor service of the opposite parties 1 & 2 caused mental agony, harm and injury to the complainant. Thus alleging deficiency in service the present complaint was filed for the following reliefs;

To direct the opposite parties to pay a sum of Rs.5,00,000/- with 12% interest from the notice dated 19.12.2020 till realization towards compensation for the mental agony and economic loss due to the deficiency in service on the part of the opposite parties

 To pay a sum of Rs.10,000/- towards cost of the litigation expenses to the complainant.

Crux of the defence put forth by the opposite parties 1 & 2:-

The 1st opposite party filed version which was adopted by the 2nd opposite party contending inter alia disputing the complaint allegations that the quotation was not obtained through WhatsApp and also that the complainant had placed an order to buy JCB model of JCB 3DX ECO XCELLENCE BACKHOE LOADER with MRF tyres was never accepted by the opposite parties 1 & 2 and it was clearly stated that it would take 2 to 3 weeks to deliver JCB.  The allegation that Mr.Senthil informed that the remaining payment of Rs.4,81,229/- should be made on or before 31.10.2020 to make delivery of machine in time and further assured that if the loan amount was arranged the machine would be delivered within a week was denied.  At the time of giving quotation it was informed that on payment of 30% on advance, the order would be taken and the balance 70% to be paid before the delivery at Madhuranthagam and the JCB may be delivered within 2 to 3 weeks from the date of payment of advance of 30% of the order.  Loan was sanctioned on 30.10.2020 for a sum of Rs.20,87,000/- by Induslnd Bank.  When the same was informed to the complainant that she should pay the remaining down payment of Rs.4,81,229/- for taking the order of JCB 3DX ECO XCELLENCE BACKHOE LOADER.  It was further informed to the complainant that there was change in market price from 01.11.2020 and for the benefit of complainant, it was informed that the remaining down payment of Rs.4,81,229/-should be made on or before 31.10.2020.  The allegation that the complainant waited for the booking and on 27.10.2020 Mr.senthil made a contradictory statement differing on earlier assurance was denied.  The allegation that complainant’s husband called Mr.Senthil over phone in the 1st week of November and it was replied that the machine is in transit and Mr.Senthil did not respond complainant’s phone call from 08.11.2020 to 13.11.2020 and that complainant visited the branch office on 14.11.2020 enquired about non communication and for further development and poor service of M/s.TRR Automotive were all denied. Being a Diwali festival, all the branch offices were closed which would reveal that the complainant had made a false allegations.  Moreover, opposite parties had also informed the complainant about his JCB machine’s Chassis Number and Engine Number and other details through WhatApp and it was replied by the complainant’s husband that the request of JCB machine would be made on 27.11.2020. The allegation that Mr.Raja and Mr.Senthil intentionally with held the allotment of machine and caused delay to deliver the machine was false. At the time of giving quotation itself and also in the booking folder it was clearly disclosed that the delivery shall be made only at Silavattam, Mathuranthagam.  The allegation that one Pitchandi at Redhills got the JCB within one week was denied.  When the complainant demanded for the change of MRF tyres it was informed to the complainant and her representative that the machine would be given as it was received from 3rd opposite party.  As the complainant refused to take the machine and in order to satisfy the customer, the opposite party purchased MRF tyres and got fixed it in the complainant’s machine.  Thus denying all the allegations the opposite parties 1 & 2 sought for the dismissal of the complaint.

Crux of the defence put forth by the 3rd opposite party:-

The 3rd opposite party filed version and the crux of the version is that there was no cause action against them for filing the present complaint.  Further the defence taken by the 3rd opposite party was that the JCB machine was purchased for commercial activity and hence the complainant is not a consumer as per the Consumer Protection Act. Further it was submitted that the machine was used for digging and loading and carrying on operational activities in the business of construction which is established that the machine could be used only for commercial purpose.  It was submitted that the relationship between the opposite party 3 and dealer was based on “Principal to Principal basis” and not that of “Principal and Agent” and thus the 3rd opposite party sought for the dismissal of the complaint. 

The complainant has filed proof affidavit and documents Ex.A1 to Ex.17 were marked on their side.  On the side of opposite parties 1 &2 proof affidavit was filed and documents Ex.B1 & Ex.B8 were filed by them.  On the side of 3rd opposite party proof affidavit was filed but no documents was filed on their side.

Point for consideration:-

Whether the complaint allegation with respect to the delay in delivering the JCB 3DX ECO XCELLENCE BACKHOE LOADER machine by the opposite parties amounted to deficiency in service on the part of opposite parties?

If so to what relief the complainant is entitled?

Point:1

On the side of the complainant the following documents were filed in support of the complaint allegations;

Quotation given by the 1st opposite party in the name of complainant dated 09.10.2020 was marked as Ex.A1;

Receipt for Rs.1,50,000/- by 1st opposite party dated 16.10.2020 was marked as Ex.A2;

Receipt for Rs.4,45,000/- by RTGS dated 31.10.2020 was marked as Ex.A3;

Receipt for Rs.36,229/- by the 1st opposite party dated 29.10.2020 was marked as Ex.A4;

Whatsup communications was marked as Ex.A5;

Invoice dated 19.11.2020 was marked as Ex.A6;

Temporary Certificate of Registration dated 03.12.2020  was marked as Ex.A7;

Machine Configuration was marked as Ex.A8;

Registration Certificate dated 06.10.2020 was marked as Ex.A9;

Delivery note dated 03.12.2020 was marked as Ex.A10;

Insurance Copy dated 21.11.2020 was marked as Ex.A11;

Letter written by the complainant to the 2nd opposite party dated 03.1.2020 was marked as Ex.A12;

Legal notice issued by the complainant’s counsel to the opposite parties dated 19.12.2020 was marked as Ex.A13;

Reply notice issued by the opposite parties dated 23.12.2020 was marked as Ex.A14;

Legal notice issued by the complainant’s counsel to the 3rd opposite party dated 30.01.2021 was marked as Ex.A15;

Reply notice by the 3rd opposite party dated 07.04.2021 was marked as Ex.A16;

Complaint to GST council with postal receipt dated 10.05.2022 was marked as Ex.A17;

 

On the side of opposite parties 1 & 2 the following documents were filed in support of their defence;

Booking order of complainant dated 15.10.2020 was marked as Ex.B1;

Financier sanction letter dated 30.10.2020 was marked as Ex.B2;

Authorisation letter to deliver the machine was marked as Ex.B3;

Delivery note dated 03.12.2020 was marked as Ex.B4;

Letter written by the authorised person of the complainant to the 2nd opposite party dated 03.12.2020 was marked as Ex.B5;

Email communication between complainant’s Advocate and opposite party was marked as Ex.B6;

Delivery challan dated 13.02.2021 and Tax Invoice dated 12.01.2021 was marked as Ex.B7;

Mr.S.Pichandi sanction letter and invoice was marked as Ex.B8;

  Heard the oral arguments and perused the pleadings, evidences and written arguments filed by both the parties. The crux of the arguments advanced by the complainant is that on receiving quotation from the opposite parties for the purchase of JCB 3DX ECO XCELLENCE BACKHOE LOADER and believing the words of one Mr.Senthil had paid a sum of Rs.1,50,000/- on 16.10.2020 and a further sum of Rs.4,81,229/-on 31.10.2020, but the machine was not delivered on time. The complainant after taking various efforts came to know that the vehicle would be delivered at Silavattam, Mathuranthagam and that it was not informed by the opposite party about the temporary registration of the vehicle. Since the complainant was not well versed with English language such essential information has to be informed in their vernacular language.  The complainant had spent Rs.15,000/- for travelling purpose. Further the machine was delivered very belatedly.  It was argued that the complainant was put to great mental agony due to the delay in delivery of the machine and also had sustained economical loss due to the act of the opposite parties.  It was also argued that the documents such as FOC, Warranty and Service Book was provided only after giving warning of legal action against the 2nd opposite party.  Thus the learned counsel for the complainant sought for compensation to be paid for mental agony and hardship caused to the complainant.

On the other hand it was argued by the learned counsel appearing for the opposite parties 1 & 2 that the complainant is doing construction activities towards excavation, speed filling and other related works. It was further argued that they never accepted to deliver the machine fitted with MRF tyres.  He also submitted that it was informed to the complainant that on payment of 30% as advance the order would be taken and payment of balance amount 70% to be paid before delivery at Madhuranthagam and the vehicle may be delivered within 2 to 3 weeks from the date of payment of advance of 30% of the order. As there is change in market price from 01.11.2020 it was informed to the complainant to make down payment of Rs.4,81,229/- on or before 31.10.2020.  When the complainant refused to take the machine, the opposite parties purchased 4 MRF tyres, fixed in the complainant’s machine and all other allegation was disputed and there is no deficiency in service on their part. 

The crux of the arguments advanced by the counsel for the 3rd opposite party is that there is no cause of action against them and as the machine was purchased for commercial purpose the complainant is not a consumer within the purview of Consumer Protection Act. He also cited the definition rendered in the Hon’ble STATE COMMISSION OF MADHYA PRADESH in the matter of M/s.Shushela Stone Crusher Vs ICB India Limited & Others dated 15.01.2007 wherein it was held that the JCB machine got many functions to perform besides digging of earth.  So not only the machine but the service incidental to the use of machine was also of commercial in nature.  Further the transaction was only on Principal to Principal basis and hence he argued that they are not liable.  Thus he sought for the dismissal of the complaint as there was no deficiency in service on their side.

On appreciation of the pleadings and material evidences filed by both the parties, it was established that the complainant had purchased the JCB 3DX ECO XCELLENCE BACKHOE LOADER from the 1st opposite party, manufactured by 3rd opposite party.  It was argued by the learned counsel appearing for the opposite parties that the transaction comes purely under commercial purpose and hence the present complaint is not maintainable before this commission and the complainant is not a consumer. However this commission is of the view that though the activity pertains to excavation/digging when it is done in a small scale for earning livelihood of the complainant, he comes very well within the definition of consumer.  Only if it is proved that the complainant is carrying on business in large scale and was earning huge profit it could be held that the complainant is not a consumer as the transaction comes under commercial transaction.  However, in the present case it was submitted that the complainant used the machine for digging and loading etc. only for construction purposes. Hence we brushed aside the objection raised by the opposite parties with regard to maintainability of the complaint on the ground of commercial purpose.

With regard to the merits of the complaint, the only deficiency in service alleged by the complainant in her complaint is that the opposite parties caused delay in delivering the JCB machine against the assurance given by them with regard to delivery of the machine which had caused huge economical loss.    Though it was the specific case of the complainant that the opposite parties had not acted as per the assurance given by one Mr.Senthil who was not examined by the complainant to prove the said allegation.  Further it is seen that the vehicle was booked on 16.10.2020 by paying an advance amount and that the vehicle was delivered on 03.12.2020.  The allegation that one Pitchandi at Redhills got the JCB machine in the same month after paying a lesser amount was also not proved by the complainant.  Thus this commission is of the view that mere allegations could not be considered in the absence of any substantive evidence with regard to the same.  

Further when it is the specific case of the opposite parties that they have already informed that the vehicle could be delivered at Silavattam, Mathuranthagam with temporary registration, the defence of the complainant that she was not well versed with English language and when such information was not provided in the vernacular language she was not aware of the same and thus she was made to spend Rs.15,000/- for transport purpose does not seems to be acceptable. The contention of the complainant that if at all the machine was delivered at Panchetty Village she would have saved Rs.15,000/- by avoiding transport and temporary registration seems to be not acceptable when she was already informed about the same at the time of giving quotation and also in the booking folder issued to the complainant.  The defence of the 3rd opposite party also seems to be acceptable as it was rightly pointed out by them that the complainant did not have any grievance against the vehicle such as any inherent manufacturing defects in the JCB supplied to her.  When such is the case there is no cause of action against the 3rd opposite party for the complainant.  

In the result allegation that Mr.Raja and Mrs.Senthil caused delay in delivery was not proved by the complainant for non examining the said persons. Further the contention of the complainant that she sustained Rs.5,00,000/-economical loss due to the delay in delivery of the JCB machine was also not proved by the complainant by providing any acceptable evidence.  In such circumstances we are of the view that the complainant had not proved the complaint allegations by admissible evidence. This point is answered accordingly in favour of the opposite parties and as against the complainant.

Point No.2:

As we have already held above that the complainant had failed to prove any deficiency in service on the part of the opposite parties, he is not entitled to any reliefs claimed in the complaint from the opposite parties.  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 the 11th day of November 2022.

    

 

     -Sd-                                               -Sd-                                                            -Sd-

MEMBER-II                                  MEMBER-I                                               PRESIDENT

 

List of document filed by the complainant:-

 

Ex.A1 09.10.2020 Quotation from the 1st opposite party. Xerox

Ex.A2 16.10.2020 Receipt for Rs.1,50,000/- by 1st opposite party. Xerox

Ex.A3 31.10.2020 Receipt for Rs.4,45,000/- by RTGS. Xerox

Ex.A4 29.10.2020 Receipt for Rs.36,229/- by the 1st opposite party. Xerox

Ex.A5 .............. Watts app communications. Xerox

Ex.A6 19.11.2020 Invoice. Xerox

Ex.A7 03.12.2020 Temporary Certificate of Registration. Xerox

Ex.A8 ............... Mechine Configuration. Xerox

Ex.A9 06.10.2020 Registration Certificate. Xerox

Ex.A10 03.12.2020 Delivery Note. Xerox

Ex.A11 ................. Insurance Copy. Xerox

Ex.A12 ................ Letter to the opposite party. Xerox

Ex.A13 19.12.2020 Legal notice to opposite party. Xerox

Ex.A14 23.12.2020 Reply notice by the opposite parties. Xerox

Ex.A15 30.01.2021 Legal notice by the complaiannt to the 3rd oppostie party. Xerox

Ex.A16 07.04.2021 Reply by the 3rd opposite party. Xerox

Ex.A17 10.05.2021 Letter given by the complainant to the Chairman, GST Council and Principal Chief Commission of GST and Central Excise. Xerox

 

List of documents filed by the opposite parties:-

 

Ex.B1 ............... Booking order of complainant. Xerox

Ex.B2 30.10.2020 Financier sanction letter. Xerox

Ex.B3 .............. Authorization letter to deliver. Xerox

Ex.B4 03.12.2020 Delivery Receipt. Xerox

Ex.B5 03.12.2020 Oetter by complainant to oppostie party. Xerox

Ex.B6 ................ Email communication between complainant’s advocate and opposite party. Xerox

Ex.B7 ............... Service done by opposite party. Xerox

Ex.B8 .................. Mr.S.Pichandi sanction letter and invoice. Xerox

 

 

       -Sd-                                              -Sd-                                                            -Sd-

MEMBER-II                                  MEMBER-I                                               PRESIDENT