Punjab

Faridkot

CC/16/241

Jatinder Kumar Chhabra - Complainant(s)

Versus

M/s Unitech Engineering Company - Opp.Party(s)

Babu Ram

01 Nov 2016

ORDER

        DISTRICT  CONSUMER  DISPUTES  REDRESSAL  FORUM,  FARIDKOT

 

Complaint No. :        241

Date of Institution :   26.08.2016

Date of Decision :     01.11.2016

 

Jatinder Kumar Chhabra, aged about 41 years, Asstt Manager, M/s Crop Chemicals India Ltd Company, Unit-1, C-63 to 65, Focal Point, Kotkapura, District Faridkot.

   .....Complainant

Versus

1. M/s Unitech Engineering Company, A/7, Royal Industries Estate, Nai Gaun, Cross Road, Wadala, Mumbai-400031 through its Authorized Signatory.

2. Abhishek Uday Sinha, the Authorized Signatory being Senior Staff Member(Promoter), M/s Unitech Engineering Company, A/7, Royal Industries Estate, Nai Gaun, Cross Road, Wadala, Mumbai-400031.

3. Shashi Dharan Swetty, Proprietor, M/s Unitech Engineering Company, A/7, Royal Industries Estate, Nai Gaun, Cross Road, Wadala, Mumbai-400031.

      .......Ops

   Complaint under Section 12 of the

   Consumer Protection Act, 1986.

   Quorum:     Sh. Ajit Aggarwal, President.

   Sh P Singla, Member.

   Present:       Sh Babu Ram, Ld Counsel for complainant,

    OPs-Exparte.

    

   (Ajit Aggarwal , President)

                                                Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against Ops seeking directions to Ops to replace the machine in question, to refund the amount of Rs.16,32,501/-alongwith compensation of Rs two lacs for mental agony and harassment etc and Rs 11,000/-as litigation expenses.

   2                                          Briefly stated, the case of the complainant is that on advice of OP-1, complainant purchased a Unitech 4 Time Flow Filling Machine worth Rs.16,32,501/- for earning livelihood from OPs vide bill dated 13.05.2013 and OPs delivered the same at the factory of complainant through transporter VRL Logistics Ltd. Mumbai. Complainant made payment of Rs7 lacs through cheque no.704159 and of Rs.7,50,000/- through cheque no.639751 on 21.06.2012 and 7.05.2013 respectively to OP-1. Total amount of bill was Rs.16,32,501/- and complainant paid total of Rs.14,50,000/- and withheld Rs.1,79,775/-to be paid later on to OP-1 after checking the proper working of machine. OP-1 did not send VAT Tax C-form of Rs.2,726/-to complainant till today, which has already been paid by complainant. Complainant also paid Rs.42,000/-as transportation charges through cross cheque for door delivery at complainant’s factory. Engineer of OP-1 Sh Abdul Naibishakh installed the said machine in his factory and got signed Commissioning Report from complainant with remarks”250 ML Star Wheel required (2HDPE) (1Pet) = 3 Pcs. It is submitted that complainant informed OP-1 both telephonically as well as through DTDC Courier on 20.08.2013 that there were some problems in functioning of said machine. Problems occurring in the said machine are fitting of wooden star wheel is not proper, which upsets the running system of bottles, conveyor is required in single /one pc, if possible or it should be in level so that the bottles run properly; cap fitting system is not properly working; wooden star wheels of 250 ml and 500 ml bottles for four sets are required; speed of machine is not proper as it is very slow than the normal standards; filling pipes blocked off and it creates problems for filling; nozzle trips also need to be set right. Due to all these problems, machine stopped working with effect from 20.08.2013. Both OP-1 and 2, who are promoters of Company did not turn up to remove the defects occurring in machine and they also did not send their engineer to make any repairs. After long waiting, complainant again sent letter dated 5.10.2013 to OP-1 through DTDC Couriers requesting them to repair the machine in question. On 1.10.2014, OP-2 sent an e-mail wherein asked complainant to make payment of remaining dues through demand draft and also asserted that thereafter, they would send their engineer for servicing the machine and as per their instructions, complainant complied with same through letter dated 15.10.2014 alongwith C-form worth Rs.16,32,501/-. Complainant again requested OP-2 through telephone to remove the defects in said machine, but all in vain. Complainant also served legal notice dated 18.03.2016 to OPs requesting them to remove the defects in said machine and to replace the defective machine with new one, but that also bore no fruit. Thereafter, OPs sent their engineer from 22.05.2016 to 23.05.2016, who gave report wherein mentioned that “Machine PLC not working, request you to kindly send PLC, HMI and Cable to Unitech Mumbai for repairing” . Engineer of complainant side also countersigned commissioning /Visit Report with remarks : Kindly send new above said parts i.e PLC, HMI and Cable as suggested by your visiting Engineer within 20 days from today. As we lodged the complaint on 20.08.2013 within Guarantee Period so that machine can be in working condition immediately without any further delay”. It is submitted that both the engineers jointly singed the Commissioning /Visit Report on 23.05.2016, but thereafter, OPs did not do the needful to repair the said machine. All this act of OPs has caused unnecessary harassment and mental agony to complainant and it amounts to deficiency in service and trade mal practice on the part of OPs and due to this complainant has prayed for seeking direction to Ops to pay Rs. 2 lacs as compensation for mental agony and harassment etc and Rs.11,000/- as litigation expenses besides the main relief. Hence, the complaint.

   3                                          The Counsel for complainant was heard with regard to admission of the complaint and vide order dated 30.08.2016, complaint was admitted and notice was ordered to be issued to the opposite party.

   4                                   Registered Cover containing copy of summons and copy of complaint alongwith documents was sent to OPs on 6.09.2016, but same has not been received back undelivered. It is presumed to have been served. Case was called upon several times on date fixed, but nobody appeared on behalf of OPs either in person or through counsel to defend the allegations levelled by complainant. Therefore, after long waiting till 4.00 pm, OPs were proceeded against exparte vide order dated 18.10.2016.  

   5                                         As there is no rebuttal from OPs side, therefore, ld counsel for complainant tendered in evidence affidavit of complainant as Ex.C-1 and documents Ex C-2 to 21 and then, closed the evidence.

   6                                       Ld Counsel for complainant vehementally argued that complainant purchased on advice of OP-1, complainant purchased a Unitech 4 Time Flow Filling Machine worth Rs.16,32,501/- for earning livelihood from OPs vide bill dated 13.05.2013 and OPs delivered the same at the factory of complainant through transporter VRL Logistics Ltd. Mumbai. Complainant made payment of Rs7 lakhs through cheque no.704159 and of Rs.7,50,000/- through cheque no.639751 on 21.06.2012 and 7.05.2013 respectively to OP-1. Total amount of bill was Rs.16,32,501/- and complainant paid total of Rs.14,50,000/- and withheld Rs.1,79,775/-to be paid later on to OP-1 after checking the proper working of machine. OP-1 did not send VAT Tax C-form of Rs.2,726/-to complainant till today, which has already been paid by complainant. Complainant also paid Rs.42,000/-as transportation charges for door delivery. Engineer of OP-1 installed the said machine in his factory and got signed Commissioning Report from complainant with remarks “250 ML Star Wheel required (2HDPE) (1Pet) = 3 Pcs.” It is submitted that complainant informed OP-1 both telephonically as well as through DTDC Courier on 20.08.2013 that there were some problems in functioning of said machine. Problems occurring in the said machine are fitting of wooden star wheel is not proper, which upsets the running system of bottles, conveyor is required in single /one pc, if possible or it should be in level so that the bottles run properly; cap fitting system is not properly working; wooden star wheels of 250 ml and 500 ml bottles for four sets are required; speed of machine is not proper as it is very slow than the normal standards; filling pipes blocked off and it creates problems for filling; nozzle trips also need to be set right. Due to all these problems, machine stopped working with effect from 20.08.2013. Both OP-1 and 2, who are promoters of Company did not turn up to remove the defects occurring in machine and they also did not send their engineer to make any repairs. After long waiting, complainant again sent letter dated 5.10.2013 to OP-1 through DTDC Couriers requesting them to repair the machine in question. On 1.10.2014, OP-2 sent an e-mail wherein asked complainant to make payment of remaining dues through demand draft and also asserted that thereafter, they would send their engineer for servicing the machine and as per their instructions, complainant complied with same through letter dated 15.10.2014 alongwith C-form worth Rs.16,32,501/-. Complainant again requested OP-2 through telephone to remove the defects in said machine, but all in vain. Complainant also served legal notice dated 18.03.2016 to OPs requesting them to remove the defects in said machine and to replace the defective machine with new one, but that also bore no fruit. Thereafter, OPs sent their engineer from 22.05.2016 to 23.05.2016, who gave report wherein mentioned that “Machine PLC not working, request you to kindly send PLC, HMI and Cable to Unitech Mumbai for repairing”. Engineer of complainant side also countersigned commissioning /Visit Report with remarks : Kindly send new above said parts i.e PLC, HMI and Cable as suggested by your visiting Engineer within 20 days from today. As we lodged the complaint on 20.08.2013 within Guarantee Period so that machine can be in working condition immediately without any further delay”. It is submitted that both the engineers jointly singed the Commissioning /Visit Report on 23.05.2016, but thereafter; OPs did not do the needful to repair the said machine. All this act of OPs has caused unnecessary harassment and mental agony to complainant and it amounts to deficiency in service. Complainant has prayed for accepting the present complaint.

   7                                    We have heard the exparte arguments advanced by ld counsel for complainant and have very carefully gone through the record and evidence produced on record.

   8                                  The case of the complainant is that complainant purchased a Unitech 4 Time Flow Filling Machine worth Rs.16,32,501/- for earning livelihood from OPs against bill dated 13.05.2013 and OPs delivered the same at the factory of complainant through transporter VRL Logistics Ltd. Mumbai. Complainant made payment of Rs.14,50,000/- and withheld Rs.1,79,775/-to be paid later on to OP-1 after checking the proper working of machine. OP-1 did not send VAT Tax C-form of Rs.2,726/- which has already been paid by complainant. Complainant also paid Rs.42,000/-as transportation charges delivery at his factory. Engineer of OP-1 installed the said machine in his factory and got signed Commissioning Report from complainant. But said machine was not working properly and therefore, complainant made several requests to Ops both verbally as well as in written through courier and also served legal notice requesting them to remove the defects from said machine and make it worthy of use. Even the engineer sent by him reported that there were defects in said machine. To prove his case, complainant has stressed on documents exhibited by them. Ex C-3, 4 and 5 are copies of bill, tax invoice and billetee, which prove that complainant is the consumer of OPs, Ex C- 7 and 8 and 11 are copies of complaint made by complainant before OPs regarding defects in machine and reminder issued by complainant with request to Ops to repair the machine in question. Ex C-17 is the copy of legal notice issued by complainant to OPs.  Action of OPs in not repairing the machine and make it worth use amounts to deficiency in service and trade mal practice on the part of OPs.             

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         

   9                               Before deciding the present complaint on merits, the first point is to be considered that whether complainant falls under the definition of consumer under Consumer Protection Act as admittedly Complainant Company is engaged in the business of manufacturing and sale of pesticides and machine in question is purchased by them for  this purpose. To prove his case that they fall under the definition of Consumer under Consumer Protection Act, ld counsel for complainant has placed reliance on citation 2015 (2) CLT Page (1) titled as M/s Pressweld Engineers Vs Jayram Reddy wherein it is held that Consumer Protection Act, 1986, Section 2(1)(d)-Commercial Purpose- Defective Machine- Plea of OP that the transaction of purchase being Commercial in nature, the Complainant is not a ‘Consumer’ under the Act-Held-Not tenable-Even if machine purchased for commercial purpose-The Complainant is competent to invoke jurisdiction under the provisions of the Consumer Protection Act, 1986. He has further placed reliance on citation 2009(2) CLT page 358 titled as Larsen and Toubro Ltd Vs Krishan Kumar Dhanker & Ors wherein it is held that Consumer Protection Act, 1986, Section 2(1) (d)- Consumer – Commercial Purpose – Machine – Defect during warranty period – Held that even if the machinery is sold for commercial purpose, the purchaser will be consumer under Section 2(1)(d) during the period of warranty.

   10                                 From the above discussion and record produced by complainant, this Forum is of considered opinion that there is deficiency in service on the part of OPs and complainant has succeeded in proving his case. Therefore, complaint in hand is hereby allowed. Ops are directed to repair the machine in question and to replace the defective parts free of costs to the satisfaction of complainant, subject to condition that complainant shall make payment of entire remaining balance amount, due towards him as cost of machine in question. OPs are further directed to pay Rs.25,000/-to complainant as compensation for harassment and mental agony suffered by him besides Rs.3000/-as litigation expenses. Compliance of this order be made within one month of receipt of the copy of the order, failing which complainant shall be entitled to proceed under Section 25 and 27 of the Consumer Protection Act. Copy of the order be supplied to parties free of cost as per law. File be consigned to the record room.

   Announced in open Forum:

   Dated: 01.11.2016

                      Member                         President                        (P Singla)                           (Ajit Aggarwal)