DATE OF FILING: 27.03.2014.
DATE OF DISPOSAL: 22.05.2017
Dr. N.Tuna Sahu, Presiding Member:
The complainant has filed this consumer dispute under Section 12 of the Consumer Protection Act, 1986 alleging unfair trade practice and deficiency in service against the Opposite Parties ( in short the O.Ps) and for redressal of his grievance before this Forum.
2. The brief fact of the case of the complainant is that he being one of the partners of M/s Arya Motors dealing in sales and services of automobiles. On 10.10.2013 the O.P.No.2 supplied and installed DVR 4 Channel Axis/HD 264 four numbers of Dome camera, 800 TVR, IR-6 mm lens, 1TB HDD costing Rs.40,000/- in the tractor workshop division of M/s Arya Motors. Out of the total cost of Rs.40,000/- the complainant paid Rs.20,000/- to the O.P.No.2 through cheque vide Oriental Bank of Commerce cheque No.509490 dated 18.09.2013. Similarly, on the same day i.e. on 10.10.2013, the O.P.No.2 had also supplied 4 channel DVR Axis/H-264 German TVR Bullet 1/3 camera-01/Speed dome to the complainant and installed the same at Kanisi, godown, costing Rs.48,000/-including the price of Bullet camera of Rs.26,000/-. It is also alleged that the DVR supplied by the O.P.No.2 does not contain the Hard Disk in it as is evident from Annexure-II and also not supplied the bullet camera. It is further alleged that the Wymax fitted in the tractor division and at Kanisi godown did not work due to defects and the O.P.No.2 removed the Wymax at Tractor division to handover same to the BSNL and fitted the Wymax of Kanisi godown at Tractor division did not work till date. The O.P.No.2 had removed the Wymax installed at Kanisi godown with an assurance to replace the same with a good one but till date the O.P.No.2 not replaced the same consequently the dome camera is not functioning at all and the online vision in mobile phone and laptop also not working. In the complaint it is also alleged that the defective Wymax which costs Rs.3000/- on complain by complainant was removed by O.P.No.2 with the assurance to surrender the same in wireless tower of BSNL and would install a good one is not done till date and on the contrary the telephone authority charging the complainant without service. He further mentioned that as per the invoice No.29 dated 22.9.2013 the O.P.No.2 supplied the day vision camera of AXIS product but in the name of AXIS products, the O.P.No.2 has supplied ZENEX products being wrapped in cover printed on it as AXIS product and the said camera has no IR facilities, hence the O.P. No.2 has adopted unfair trade practice.
When the aforesaid products and cameras did not serve the purpose of ensuring safety, the complainant repeatedly requested the O.P.No.2 to attend and to rectify the defects or to replace but he did not give any heed and the very purpose for which it was installed was defeated, so the complainant suffered from mental agony and harassment. The complaint also discloses that the O.P.No.2 has also received a sum of Rs.16,000/- from the complainant on 25.3.2013 for rendering annual maintenance service w. e. f. 1.4.2013 to 31.3.2014 and the payment was done through bank cheque bearing No.508060 dated 25.3.2013 but the O.P.No.2 neither provide services nor returned the amount and even he did not made functional the items supplied by him and the complainant reminded the O.P. No.2 that unless the defective items made functional and proper services are not rendered, he would take shelter in proper court of law. However, in a bid to avoid his liabilities on 4.12.2013 the OP No.2 issued a legal notice to the complainant demanding Rs.68,000/- towards the goods supplied. It also reveals that there was exchange of legal notices between the parties through advocates over the deal but that also did not yield any fruitful results. In the aforesaid back drop, the complainant has filed this consumer complaint mentioning that he has made a part payment of Rs.20,000/- to the OP No.2 for the defective goods supplied and has also paid Rs.16,000/- towards annual maintenance charges and prayed before this Forum to direct the O.Ps to replace defective items with genuine goods and to make them functional or else to return Rs.20,000/- to the complainant. He also prayed direct the O.P. No.2 to refund Rs.16,000/- received towards annual maintenance contract and for not providing proper services. The complainant has also claimed a compensation of Rs.60,000/- only for harassment and mental agony suffered by him due to non-providing of services from October 2013 to till date and for non supply of proper goods in time for which the safety and security of the complainant’s shop is at risk and to grant other relief as the Hon’ble Forum deems just and proper in the fact and circumstance of the case in the interest of justice.
3. On notice, the O.Ps put their appearance through learned counsel Sri Lalatendu Padhi and Associates on 6.5.2014 but failed to file his version of the case. The O.Ps again appeared on 2.11.2015 through learned counsel Sri B.K. Padhi and Associates who filed his Vakalatnama by obtaining no objection from Sri L. Padhi, Advocate. Learned counsel Sri B.K.Padhi for the O.Ps filed his written version on 17.7.2016. It is stated in the written version that O.P.No.2 also representing as a partner of M/s Legend Marketing i.e. O.P.No.1. It has also been admitted that the O.P. had installed the cameras in two premises of the complainant on 10.10.2013 as mentioned in Para 2 of the complaint of the complainant. He further mentioned that in Para 2 and 6 of the complaint, the complainant has stated that he has only partly paid a sum of Rs.20,000/- to the O.P, by a cheque and at no point of time the complainant has paid the balance outstanding amount of Rs.68,000/-to the O.Ps towards the sale consideration as per the invoice No.20 and 30 dated 10.10.2013. He also submitted that the complainant though received the items as mentioned in the invoice No.20 and 30 dated 10.10.2013 but he has not paid the balance outstanding dues of Rs.68,000/- i.e. (Rs.40,000/- + Rs.48,000/- -Rs.Rs.20,000/-), hence all the averments made in Para 3 & 4 are not admitted. In Para 5&7, it is submitted that as the complainant has not paid the balance outstanding amount of the O.Ps, the question of maintenance does not arise. The complainant has not paid the entire amount of the goods supplied to him and has violated the contract between the seller and customer and the burden is on the complainant to prove that he has paid the outstanding amount of Rs.68,000/- to the O.Ps, then the point of maintenance or repairing arises on part of O.Ps. The O.Ps has never adopted any unfair trade practice rather the complainant has violated the contract of non-payment of dues who is liable to be punished legally. He has also prayed before this Forum to direct the complainant to pay the outstanding dues to the O.Ps. As such the complainant is not to be treated as a consumer under the Consumer Protection Act and he has no right to claim Rs.20,000/- along with Rs.16,000/- towards non-compliance of providing service to the complainant. By the by the O.P. is also not liable to pay these amounts along with compensation of Rs.60,000/- which is not tenable and illegally claimed by the complainant. Hence, the O.Ps humbly submits that there is neither deficiency in service nor any unfair trade practice on the part of the O.Ps so the petition is liable to be dismissed with cost.
4. On the date of final hearing of the consumer dispute, the learned counsel for the complainant is present and the learned counsel for the O.Ps is on call absent. In fact, the O.Ps failed to file their written arguments even though repeatedly directed by this Forum to file the same from 4.4.2016 to 5.4.2017. The O.Ps even remained absent and not filed any steps from 16.1.2017 to 2.5.2017 i.e. the date of final hearing of the consumer dispute.
5. During the course of hearing, we heard the learned counsel for the complainant at length and perused the complaint, written argument and documents filed by the complainant placed on the case record. We have also carefully gone through the written statement submitted by the learned counsel for the O.Ps and also verified the material document placed on the case record.
During the course of hearing, the learned counsel for the complainant submitted that for the safety and security of his business establishment the complainant purchased two set of cameras from the O.P.No.2 was to be installed at Tractor Workshop Division at Somanath Nagar, 1st Line, Berhampur and other was to be installed at Kanisi Unit. On 10.10.2013 the O.P.No.2 supplied and installed the camera as per the specifications given above costing Rs.40,000/- and the complainant paid Rs.20,000/- to O.P.No.2 in shape of cheque bearing No.509490 dated 18.9.2013 and on the same day O.P.No.2 also supplied camera and other accessories as specified above for Kanisi unit costing Rs.48,000/- including the price of bullet camera which itself costs Rs.26,000/-. He has also submitted that on 25.3.2013 the complainant also paid a sum of Rs. 16,000/- to the O.P.No.2 towards annual maintenance charges for the period 1.4.2013 to 312.3.2014 and the said payment was done by the complainant to the O.P. through cheque No.508060 dated 25.03.2013. However, the OP No.2 supplied defective cameras without hard disk in the name of Axis brand camera supplied a day vision camera of ZENEX products being wrapped in a cover printed on it as Axis Product. The complainant purchased the same from O.Ps but in fact those cameras did not work and not served the purpose of complainant and though the complainant paid a sum of Rs.16,000/- towards annual maintenance charges but in spite of repeated requests the O.P. did not extend any service for annual maintenance for the period for which the contract was made. So he prayed to direct the O.Ps to refund Rs.20,000/- or to replace the defective items with genuine goods and to direct the O.P.No.2 to return Rs.16,000/- for non-providing proper service. He also prayed to direct the O.Ps to pay a sum of Rs.60,000/- towards compensation for harassment and mental agony suffered by the complainant from the month of October 2013 till the date of filing the complaint.
6. We heard the learned counsel for the complainant and perused the pleadings of parties and verified the documents. On verification of documents submitted by the complainant as Annexure-I to VIII placed on case record, we found that there is no dispute or doubt that the complainant purchased the cameras as per the specifications mentioned in the invoice No.20 &30 of O.P.No.1 on 10.10.2013 for costing Rs.40,000/- and Rs.48,000/- respectively for two units of the complainant. It also revealed that the complainant has paid a sum of Rs.16,000/- to the O.P. No.1 towards annual maintenance charges bearing cheque No.508060 dated 25.3.2013 vide invoice No.53 issued by O.P. No.1 on 01.03.2013 for the period 1.4.2013 to 31.3.2014. It is also not in dispute that the total cost of the goods supplied by the O.P. No.2 to the complainant costs Rs.88,000/- (Rs.40,000/- + Rs.48,000/-) and it is also beyond dispute that the complainant has paid only Rs.20,000/- towards goods purchased from O.P.No.2 against total cost of Rs.88,000/-. We also found that the O.P.No.2 issued a legal notice to the complainant to pay Rs.68,000/- against goods supplied for security solution and delivery of communication equipments which is due to pay by the complainant to O.P.No.2. The complainant also replied the advocate notice of O.P.No.2 on 24.12.2013 mentioning the details of defective goods and deficiency in service and the inconvenience faced by him. Similarly, the O.P.No.2 again issued a legal notice through his counsel to the complainant on 21.1.2014 mentioning that the O.P. No.2 has supplied standard goods for the last 12 years and the products were of ISI certified and 100% quality goods but insisted to pay Rs.68,000/- by the complainant to the O.P. No.2 and otherwise to charge interest of 24% per annum. In reply, the complainant again issued a legal notice on 5.2.2014 placed on case record as Annexure-VIII mentioning that the O.P. in his invoice No.29 dated 22.9.2013 has charged Rs.26,000/- towards supply of a Speed Dom AXIS/0931923 10x camera but in fact supplied a Day Vision Camera of ZENES products being wrapped in a cover printed on it AXIS products which amounts to unfair trade practice.
7. On careful perusal of the case record and vital materials, it reveals that the complainant has paid Rs.20,000/- only to the O.Ps against billing amount of Rs.88,000/-(Rs.48,000/- + Rs.40,000/- vide invoice No.20 & 30 dated 10.10.2013) and Rs.16,000/- towards annual maintenance charges for the period 1.4.2013 to 31.3.2014. It also discloses that the O.P.No.2 instead of supplying AXIS products has supplied ZENES being wrapped in cover printed on it as AXIS product and the fact is verified and corroborated during the course of hearing. In view of the case and under the present fact and circumstances, in our considered view we would like to state that the O.P.No.2 is to supply the goods as specified in his tax invoice No.30 dated 10.10.2013 and No.20 dated 10.10.2013 respectively to the complainant. It is also ascertained that the complainant is to pay the outstanding dues of Rs.68,000/- to the O.P. No.2 on receipt of the goods from O.Ps as specified in the aforesaid tax invoices dated 10.10.2013 and on completion of the installation in the premises of the complainant. The complainant is also required to return the defective goods to the O.P.No.2 after receipt of the goods as per the order vide tax invoice No.20&30 dated 10.10.2013. As discussed above, the O.P.No.2 is also required to refund Rs.16,000/- to the complainant received towards annual maintenance charges for non performance of the contractual obligation. In this case the complainant has also claimed a sum of Rs.60,000/- from O.Ps towards compensation and harassment but he has not filed any cogent and convincing documentary proof regarding his loss. He has also not filed any statement of expenditure or any relevant documents with regard to his loss incurred due to the negligence and deficiency of service by the O.Ps. We are, therefore, not inclined to award any cost and compensation in this case. In sequel to the above discussions we partly allowed the case of the complainant against the O.Ps.
8. In the result, we direct the O.P.No.1 & 2 who are jointly and severally liable to supply the goods to the complainant as specified in the tax invoice bearing No.20 dated 10.10.2013 and No.30 dated 10.10.2013 respectively. The O.P.No.1&2 are also directed to refund Rs.16,000/-(Rupees Sixteen Thousand) only to the complainant due to non-performance of annual maintenance contract as agreed by parties on 01.03.2013 vide invoice No.53 issued by O.P. No.1. Similarly, the complainant is also directed to pay Rs.68,000/- (Rupees Sixty Eight Thousand) only to the Opposite Party No.2 towards outstanding dues after receipt of the goods from O.Ps as specified in the tax invoice bearing No.20 dated 10.10.2013 and No.30 dated 10.10.2013 respectively alongwith proper installation of the same in the premises of the complainant as stated above. The complainant is also directed to return the Zenes products to the O.Ps after receipt of goods as specified in the above tax invoice dated 10.10.2013. The above order shall be carried out by the parties within two months from the date of receipt of this order. In the fact and circumstance of the case, we are not inclined to pass any order as to cost or compensation. The case of the complainant is disposed of accordingly.
9. The order is pronounced on this day of 22nd May 2017 under the signature and seal of this Forum. The office is directed to supply copy of order to the parties free of cost and a copy of same be sent to the server of
