FINAL ORDER/JUDGEMENT
SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
This is an application u/s.12 of the C.P. Act, 1986.
Briefly stated, the facts relevant for the disposal of the consumer case are that complainant being unemployed lady purchased one Automatic Hydraulic Four Roll Machine against Tax Invoice No. JMD-INV776 dated 01.05.2019 on payment of Rs. 1,48,295/- from the OP for manufacturing of paper plates, bowls, thalis etc. Machine was delivered to the complainant without any warranty card and in the tax invoice address of the complainant has been wrongly mentioned “Siliguri” instead of “Mirjapur”. Despite request, the OP did not provide warranty card and rectify wrong address. OP failed to install the machine in operation for which complainant has not availed the service. The acts of the OP is vexatious, illegal, malafide and ulterior motive. Hence, the complainant filed the present complaint for replacement of the defective machine alternatively refund Rs. 1,48,295/- along with interest at the rate of 15 percent per annum, compensation, and litigation cost.
OP despite service of notice of the complaint has failed to file Written Version within the limitation provided under section 13(2) of the Consumer Protection Act, 1986. No request for condonation of delay or extension of time for filing WV is made. Therefore, right of the OP to file WV is closed vide proceedings dated 09.02.2021, OP even did not choose to file any application to set aside the ex-parte order dated 09.02.2021.
Complainant Smt. Swati Panda has filed her evidence by way of affidavit supporting the allegations made in the complaint.
Ld. Advocate for the complainant has taken us through the consumer complaint as also the evidence adduced in support of the complaint. He also cited a decision of the Hon’ble NCDRC reported in 2017(3) CPR 13 (NC) M/s. Good Luck Developers –Vs- Vignesh Shanbhag.
On perusal of Tax Invoice dated 01.05.2019 issued by the OP to the complainant, it is clear that vide said tax invoice OP sold one Fully Automatic Hydraulic Four Roll Machine to the complainant. From the said document, it is also clear that the price of the subject machine was Rs. 1,48,295.33. It is also clear from the letter dated 20.06.2019 that subject machine was delivered to the complainant but the machine is not working condition. Complainant has categorically alleged in the complaint that despite several letter and legal notice OP did not replace and/or repair the subject machine. In order to prove said allegations, complainant has filed her affidavit reaffirming the allegations. OP has failed to controvert the allegations in the complaint by filing Written Version, the allegations in the complaint are deemed to have been admitted as correct. It is well settled that the allegations made in the complaint if not denied is deemed to be admitted as correct. Therefore, the complainant has proved deficiency in service i.e. defect of the subject machine. Complainant in her affidavit supports the allegations in the complaint. Thus, in our view, OP is liable to replace defective machine and/or to refund the price of the machine with interest at the rate of 10 percent per annum on the amount w.e.f. date of payment.
In view of the discussion above, the complaint is allowed with following directions:-
- The OP is directed to replace defective machine (Full Automatic Hydraulic Four Roll Machine) to the complainant within 45 days from today along with compensation of simple interest at the rate of 10 percent per annum from the date of payment till realization.
- The OP is also directed to pay a sum of Rs. 5,000/- as cost of litigation to the complainant.
- Alternatively, the OP is directed to refund entire amount of Rs. 1,48,295/- to the complainant within 45 days from today along with compensation of simple interest at the rate of 10 percent per annum from the date of payment i.e. 01.05.2019 till realization of the amount and Rs. 5,000/- as cost of litigation.
With these directions the present consumer complaint stands disposed of.
Copy of the judgment be supplied to the parties as per rules.
