Date of Filing:15.01.2009<br /> Date of Order:30.11.2009<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> <br /> Dated: 30TH DAY OF NOVEMBER 2009<br /> PRESENT<br /> <br /> <br /> <br /> Sri S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> COMPLAINT NO: 145 OF 2009<br /> <br /> M/s Frontline Buildcom,<br /> No. 70, Brigade Road,<br /> Bangalore-560 025,<br /> Represented by its<br /> Joint Managing Director,<br /> P.K. Shakeer. Complainant<br /> <br /> V/S<br /> <br /> 1. M/s Shimera Project Lighting, <br /> Regd. Office at No. 13/15,<br /> Vithalwadi, I Floor,<br /> Mumbai-400 002.<br /> <br /> 2. Mr. Prakash Chabria,<br /> Managing Director,<br /> M/s Shimera Project Lighting, <br /> Vithalwadi, I Floor,<br /> Mumbai-400 002.<br /> <br /> 3. Mr. Hussain Choudhury,<br /> Project Manager,<br /> M/s Shimera Project Lighting, <br /> Vithalwadi, I Floor,<br /> Mumbai-400 002. Opposite Parties<br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> <br /> This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.<br /> The facts of the case are that, the complainant is the promoter of “Hotel Iris”, was in search of suitable light fittings for their hotel. Miss Sruthi Architects, has introduced opposite parties to install lightings for complainant’s hotel. The management of the complainant decided to go for purchase of lighting sets from opposite party No.1 and selected few items from the sample, which opposite parties’ sales representative showed the complainant and opposite party promised to supply suitable light fittings as per the purchase order. In the purchase order dated 17/04/200, it is clearly mentioned that the lighting materials should be delivered within 14 days from the date of purchase order to which the opposite parties had agreed and accepted and collected the advance amount of Rs.3,79,880/- vide cheque No.084891 dated 18/04/2008. As per the purchase order the opposite party No.1 needs to deliver the lighting materials on or before 01/05/2008, which is the opposite party failed to do totally. It is clearly evident from the e-mail correspondence between the management of the complainant and the opposite parties of failure to deliver the required materials as promised. On 21/05/2008, Mr. Hussain sent an apologizing e-mail to the complainant’s M.D, Mr. Shekar saying that the delay happening in respect of delivery of the materials as the ordered items are not available in the branch factories so it is already undergone the process of manufacture and they are taking maximum time of one month to deliver to the site of the complainant. On 30/05/2008, Mr. Hussain sent another e-mail saying that the opposite parties have failed in their commitment of delivering the required materials on 23/05/2008 as promised, but still the complainant was only hoping to deliver the materials at the earliest. On 09/05/2008 the Project Manager of the complainant sent a strong e-mail to Mr. Alam saying that the materials were not delivered on time and also few materials, which were delivered, were not suitable to the complainant’s requirements and clearly mentioned that Mr. Hussain is not responding to his calls and failed to keep up his promise of delivering the materials within 3 days after the complainant receive the other materials. On 17th July 2008, Mr. Hussain has sent an e-mail to the complainant’s M.D apologizing once again and blaming others saying that they have failed to inform them about the materials are not in stock and as they are only the vendors, so they have to take complete responsibility for the inconvenience caused. It is submitted that the above correspondence clearly establishes that the opposite parties failed completely to deliver the light fittings as promised to the complainant and it seems the opposite parties were only tendering apologies to the complainant instead of delivering the materials as promised. In the end of June-08, the opposite parties had delivered some light fittings which were not according to the sample which the opposite parties had showed to the complainant’s and for which the opposite parties had placed order in complainant’s purchase order. The some lights, which the opposite parties had delivered, were not suitable to the complainant in addition to the fact that the materials supplied by the office were not complete sets. On 24th September 2008 one more e-mail was sent by the complainant to opposite party No.2 with an option of taking back the supplied materials and providing a credit note in writing for the amount which the complainant have paid as an advance. As there was no reply to the complainant’s e-mail, the complainant sent a reminder on 29th September-2008. Mr. Jagadeesh asked for the credit note opposite party No.2 said orally that “anytime the complainant could visit Mumbai or Chennai and purchase the material”. It is submitted that overall conduct of the opposite parties in making extremely delivered short supply of wrong items which is not in tally with the specifications in the purchase order and keeping the complainant in a state of inaction by tendering apologies and making false promises and ultimately turning round the new conditions stating that, the complainant has taken treatment with Dr. Salahuddin of Dental Diagnostic Centre, Richmond road, Bangalore to his teeth on the left side of the mouth and submitted the required mediclaim documents including the original x-ray along with the claim request to TTK Health Care Services Pvt. Ltd., as early on 07/03/2009 who is the TPA for United India Insurance Company Limited. Before submitting the claim, he has visited TTK Health Care Services at Jeevan Bima Nagar and consulted with Dr. Nagabhooshan Rao over telephone who in turn informed him that it does not need any hospitalisation. Based on that he has submitted the claim and accordingly the claim department of TTK Health Care Services accepted his claim and also promised him that within 21 working days his claim will be settled. Since he could not get any communication from TTK Health Care Services even after a month, he tried to contact, but he could not get a proper reply. Even after lapse of three months, he could not get a proper reply about his claim. He requested Mr. Somashekar, Development Officer of United India Insurance Company Limited to assist him in getting the claim at the earliest. But to his surprise he has been informed by Mr. Somashekar that his file is rejected wherein no reason has been told and till now he has not received any communication from TTK Health Care Services till date in this regard. The complainant has reported this matter to the Divisional Manager, United Insurance Company Ltd., Indiranagar vide e-mail on 3rd June 2009. But he could not get any reply from this officer. Hence the complainant prayed to direct the opposite parties to settle his claim of Rs. 19,400/-. <br /> 2. Notice was issued to opposite parties through RPAD. Notices were served. Opposite party No.1 and 2 have filed defence version denying all the allegations of complainant that, the Hon’ble Forum does not have jurisdiction to entertain the complaint. The complainant has filed this complaint for recovery of the amount paid to the opposite party No.1 for the goods sold that there is no dispute of the fact that the complainant has not received the goods which were ordered by the complainant. Therefore, the complaint is not maintainable. <br /> 3. The opposite party No.3 filed separate defence version stating that the complaint against opposite party No.3 is not maintainable as he is the employee of opposite party No.1 and therefore requested to dismiss the complaint. <br /> 4. Affidavit evidence of parties filed. The respective parties have filed the documents. I have gone through the complaint allegations and documents. <br /> 5. Heard the arguments. <br /> 6. In the light of the arguments advanced before us following points arise for consideration:<br /> 1. Whether the complaint is maintainable?<br /> <br /> 2. Whether the complainant has proved any deficiency in service on the part of the opposite parties?<br /> <br /> REASONS<br /> 7. It is an admitted case of the complainant that, he is a promoter of “Hotel Iris” which is located in a highly commercial locality at Brigade Road, Bangalore. He has placed orders for supply of lighting materials with the opposite parties and an advance amount of Rs.3,79,880/- has been paid to opposite party No.1. The complainant submitted that the opposite party had delivered some lighting materials and fittings to the complainant. It is the case of the complainant that the material supplied by the opposite party are not in accordance with the samples shown to the complainant and the said materials are not suitable to the complainant and those materials laying in the store of the complainant. The complainant submitted that opposite party had not arranged to take back the materials. The complainant submitted that the materials supplied approximately costs Rs. 2.08 lakhs. The complainant submitted that the materials do not tally with the specifications in the purchase orders. Therefore, the complainant submitted that he has no other option except to initiate legal proceedings for recovery of advance amount paid to the opposite party with interest. By reading the entire complaint, the complaint has never made any facts or allegations of deficiency in service on the part of the opposite parties. It is a simple case of sale and purchase of materials. The complainant has placed orders for supply of lighting materials and the opposite party has supplied some materials. The complainant has paid advance amount of Rs.3,79,880/-. The complainant wants a decree or direction against the opposite party for recovery of advance amount with interest and compensation. This type of complaint is not at all maintainable before the Consumer Forum. The matter involved in this case is of civil nature coming under the Sale of Goods Act. Proper remedy or Forum for the complainant to get the suitable justice is from the hands of Civil Court in a properly instituted suit. The complainant should have filed the Civil Suit for recovery of amount etc. The present complaint filed before this Forum is legally not maintainable. There is absolutely no provision under the C.P Act, 1986 to deal with present nature of dispute. The complainant never stated that the material supplied by the opposite parties are having manufacturing defect. Even it is not the case of the complainant that, he wants replacement of the goods received by him. The complaint filed by the complainant is misconceived and the same is liable to be dismissed as not maintainable either on facts or on law. Therefore, the best solution or remedy would be for the complainant is to file a civil suit and get the relief there. So under these circumstances, the present complaint deserves to be dismissed as not maintainable before this Forum. In the result, I proceed to pass the following: <br /> <br /> ORDER<br /> 8. The complaint is dismissed. Parties to bear their own costs. <br /> <br /> <br /> <br /> <br /> 9. Send the copy of this Order to both the parties free of costs as statutory requirements. <br /> <br /> 10. Pronounced in the Open Forum on this 30TH DAY OF NOVEMBER 2009. <br /> Order accordingly,<br /> <br /> PRESIDENT<br /> I concur the above findings.<br /> <br /> MEMBER<br /> rhr.,<br /> <br /> <br />