BEFORE THE DISTRICT CONSUMER REDRESSAL FORUM
(DISTRICT FORUM)
NORTH TRIPURA DISTRICT : KAILASHAHAR
C A S E NO. CC/10/19
SRI NIHARENDU DEBNATH
Son of Sri Pramode Rn. Debnath
Proprietor of DEBNATH PAVER BLOCK INDUSTRY, Agnipasa,
PS & Sub-Div. - Panisagar,
District- North Tripura.
…......COMPLAINANTS
V E R S U S
M/S STAR ENTERPRISES,
Ramnagar, Tarapur,
Karimganj Road, Opposite ISBT Bus Stand,
Silchar- 788003, Assam.
Represented by-
Mazibur Rahaman,
The Proprietor of M/S Star Enterprises,
Ramnagar, Tarapur,
Karimganj Road, Opposite ISBT Bus Stand,
Silchar- 788003, Assam.
….....OPPOSITE PARTY
P R E S E N T
SHRI J. M. MURASING
PRESIDENT
DISTRICT CONSUMER REDRESSAL FORUM
NORTH TRIPURA DISTRICT::KAILASHAHAR
A N D
SMTI. S. DEB, MEMBER
&
SRI P. SINHA, MEMBER
C O U N S E L
For the Complainant : Shri N. K. Deb, Advocate.
For the opposite parties : Heard Ex-parte,
ORIGINAL DATE OF INSTITUTION :27/03/2019
JUDGMENT DELIVERED ON : 26/11/2019
J U D G M E N T
This is a complaint U/S 12 of the Consumer Protection Act filed by the complainant Sri Nirahendu Debnath against the opposite party claiming compensation along with interest for supplying defective machinery and for deficiency of service.
2. The case of the complainant, as manifested from the complaint petition, is that the complainant being an unemployed youth took loan amounting Rs.7,40,627/- under PMEGP Scheme from the United Bank Of India, Panisagar Branch, North Tripura with a view to starting the industry of manufacturing of paver block industry at Agnipasha, Panisagar in the year 2017. For the purpose the complainant took lease of land from six persons for fifteen years with condition to pay Rs. 20,000/- for the first five years, Rs. 25,000/- for next five years and Rs. 28,000/- for the ultimate five years and the complainant already paid Rs. 20,000/- to the lessor. Thereafter the complainant communicated with the OP, who is a manufacturer and exporter in the name and style M/s Star Enterprises, Ramnagar, Tarapur, Karimganj Road, for supplying quatation of some machineries, namely, Double die paver bock machine with hoaper type, 80 mm zigzag mould, brick mould, pan mixture machine 1.5 bag capacity,4 belt pully, hardener chemical 250 ltr and 60 mm 1 mould 4 numbers. Accordingly, the OP sent quotation of the rates of said machines and raw materials to the complainant vide Sl.No.1113, dated 22-03-2018. The loan having been sanctioned the Bank issued a demand draft /cheque in favour of the OP on 04-08-2018. The complainant accordingly accepted the quotation. In the quotation it was also mentioned that on being accepted the same the goods will be supplied within twenty five days of order. In order to set up the industry the complainant also arranged for electricity connection in his industrial premises for which he had to incur an amount of Rs.1,55,899/- and he has also been depositing monthly charge of electricity. On receipt of the order from complainant the OP sent the machines and the complainant set up all the machines in his industry, but it is observed by the complainant that the block machine supplied by the OP is defective and it does not give its service and functioning properly. The complainant immediately informed the matter to the OP and even he sent email to the OP on 25-11-2018 with a request to replace the machine by a fresh one, but the OP did not take any step to replace the same till filing of the case and thus the industry has not been started for which the complainant has been suffering huge financial loss. As he could not start the industry, he is also not in a position to repay the monthly loan amount. Ultimately on 10-12-2018 the complainant served Advocate Notice to the OP with a request to replace the defective machine by a fresh one. The OP received notice on 17-12-2018, but did not give any response thereof. Thereafter, on 25-11-2018 the complainant again sent another email to the OP with a request for maintenance of defective machine explaining that because of the defective machine the complainant could not start production and has been suffering huge financial loss. More so, the complainant contacted with the OP several times over phone, but the OP did not give any response even the complainant personally met the OP, but in vain. Under these circumstance, finding no other alternative the complainant has presented the instant complaint claiming compensation and cost of the machines supplied by the OP.
3. On receipt of the notice opposite party did not appear and contest the complaint and as such, vide order dated 28-08-2019 it was ordered that the case would proceed exparte against the OP and accordingly since that date the case has been proceeding exparte against that OP.
4. In order to substantiate the claim, complainant examined himself as PW 1. In his deposition he stated the facts as was put down in his complaint petition. During his re-examination he has exhibited the following documents :-
1. Internet copy of G-mail (1 sheet)- Exbt. 1.
2. Copy of cheque(1 sheet)- Exbt 2.
3. Copy of demand note, Electrical Division, Panisagar(3 sheets)
- Exbt 3/1 to 3/3.
4. Copy of advocate notice(3 sheets)- Exbt 4/1 to 4/3.
5. Certified copy of PMEGP (1 sheet) -Exbt 5.
6. Prayer of complainant dated 29-03-2018- Exbt. 6.
7. copy of cheque dated 28-03-2018- Exbt. 7.
8. Copy of quotation dated 02-04-2018- Exbt. 8
9. Tax invoice(3 sheets)- Exbt. 9/1 to 9/3.
10. MSME certificate (1 sheet) -Exbt. 10
11. Certificate of DIC(1 sheet) -Exbt. 11.
5. The points to be determined in the case at hand are as follows:-
1. Whether the OP is deficient in service to the complainant?
2. Whether the complainant is entitled to compensation and cost of the machines from the OP?
6. Heard argument. Learned Counsel Mr. N.K.Deb appearing on behalf of the complainant submitted that the OP has cheated with the complainant by supplying defective machines and on repeated request in writing and even on receipt ofAadvocate's Notice the OP did not respond and took no step to repair/replace the defective machines and as such, the complainant is entitled to compensation and also entitled to the cost of the machines.
DECISION AND REASONS FOR DECISION
7. Exbt. 9 is the quotation supplied form the OP. The said quotation is for 6 numbers of machines, namely, 1. Double Die Paver Block Machine with Hoaper Type for an amount of Rs. 4,14,400/-, 2. 80 mm Zig Zag Mould, free 3. Brick Mould for an amount of Rs. 30,000/-, 4. Pan Mixer Machine 1.5 Bag Capacity for an amount of Rs. 1,44,500/-, 5. Hardener Chemical for an amount of Rs. 14,750/-, 6. 60 mm I Mould for an amount of Rs. 24,000/-. The complainant applied for loan from United Bank of Indian, Panisagar Branch, for an amount of Rs. 25,000,00/-. Ext. 5 is the application form in respect of loan. Quotation received from the OP for an amount of Rs. 7,40,627/- was obviously annexed with the loan application and ultimately the Bank sanctioned the amount derived in the quotation for an amount of Rs. 7,40,627/- and accordingly account payee cheque (Exbt. 7) was issued in favour of the OP. Thereafter, the United Bank of India, Panisagar Branch, Panisagar vide letter dated 29/03/2018 annexing the demand draft of Rs. 7,40,627/- (Exbt. 6) asked the OP to deliver the machines and raw materials after receipt of the demand draft in the address of the complainant. Exbt. 9, E -way bill system, shows that the machines and materials as per quotation were supplied to the industry of the complainant, named and styled as Debnath Enterprise situated at Kadamtala/Saraspur, Tripura- 799261. From Exbt. 9, Udyog Aadhaar, issued by Ministry of Micro, Small and Medium Enterprises , it is apparent that the business establishment/industry of the complainant, named and styled as Debnath Paver Block Industry was started on 23/03/2018 at the address Agnipassa, Panisagar under North Tripura District. From Exbt. 2 it appears that the complainant paid a sum of Rs. 1,55,899/- by way of demand draft to the Dy. General Manager, Electrical Division, TSECL, Panisagar. This exhibits shows that the complainant deposited the said amount to the TSECL, Electrical Division, Panisagar as charge of extension of HT/LT line & 25 KVA S/S for providing 3-ph service connection to plant site of the complainant at Agnipassa, Panisagar in response to the demand note (Exbt. 3) issued by the Dy. General Manager, Electrical Division, TSECL, Panisagar, North Tripura. It is alleged by the complainant in his complaint petition as well as in his examination in chief on affidavit that manufacturing of the products could not be started since the OP supplied defective machines to the complainant. As the machines were detected to the defective the complainant reported to the OP orally about the defective machine and requested to take necessary step either to repair the machines or to replace them by fresh ones but after waiting for three months the complainant did not get any response from the OP. Thereafter the complainant sent an e-mail on 25/11/2018 to the OP informing that he had been suffering problems too much for the machineries supplied from the OP for last three months. It is also alleged in the said e-mail that for delay the complainant has been incurring huge losses like damage of cement, raw materials and also incurring expenditure towards labour and repayment of bank loan etc., but the OP remained mum. Thereafter, on 10/12/2018 the complainant through his Advocate Sri Partha Pratim Nath of Dharmanagar Bar Association served Advocate's Notice to the OP stating the facts and also stated that the block machine supplied from his end is defective and it does not give its service and function properly. It is further indicated in the Advocate's Notice that the complainant informed the matter to the OP immediately after detection of the defect of the machine and also sent e-mail on 25/11/2018 with a request to replace the machine by a fresh one, but the OP did not do anything for which the complainant has been incurring heavy financial loss and passing his days in mental agony and financial troubles and requested the OP to come forward to replace the defective machine by a fresh one within 15 days from the receipt of this notice otherwise complainant would sue against the OP before the appropriate Forum. But the OP neither responded to the notice nor made any arrangement to replace the defective machine by a fresh one and ultimately on 27/03/2019 the complainant filed the instant complainant against the OP.
8. The OP runs a business under name M/S Star Enterprises situated at Ramnagar, Tarapur, Karimganj Road, Opposite to ISBT Bus Stand, Silchar, Assam and his business establishment is a Government registered vide GSTIN No. 18ASRPD2302D1Z8 and the complainant by observing all formalities by way of quotation purchased
the machines from the OP and by paying him the amount of the machines by way of demand draft and as such the complainant is a consumer of the OP. In the quotation (Exbt. 9) placed by the OP it is found that the warranty period of the machine is 1 year. From Exbt. 9 it appears that the complainant received the machines by 06/08/2018, meaning thereby the machines are under warranty period. From Exbt. 9 it is tangible that the industry of the complainant was commenced from 23/03/2018. The OP was in writing by way of e-mail on 25/11/2018 informed about the defective machine and thereafter again on 10/12/2018 the OP was served Advocate's Notice by which he was requested to replace the defective machine, but no step was taken by the OP to replace the defective machine by fresh one. From the complaint petition and also from the examination in chief on affidavit the block machine supplied from the OP was detected to be defective. Regarding other machines no defect or complaint is found raised from the part of the complainant. From the quotation supplied from the OP the rate of the block machine is found to be Rs. 4,14,400/- . The OP did not respond to the request of the complainant and neither he nor his man inspected the machine to verify the statement of the complainant as to whether the machine was really defective. The case has been proceeding ex-parte against the OP and as such, there is no doubt to infer that the block machine supplied form the part of the OP was defective. As the machine was under warranty period the OP could have easily replaced the machine by a fresh one, but he did nothing nor contested the case to put up his written statement. As such, the OP is under legal obligation to replace the block machine by a fresh one or to pay the amount of the machine for Rs. 4,14,400/- to the complainant. It is a fact that the complainant also expended an amount of Rs. 1,55,899/- for extension of electricity connection in his industry premises and the complaint has also demanded to get back the money from the OP. This demand of the complainant appears to be unjustified and the complainant is not entitled to get the amount incurred by him for extension of electrical connection in his industrial establishment. But it cannot be denied that because of the dealings of the OP the complainant has suffered huge financial lose and has to under go severe mental agony and as such, the complainant is entitled to some amount of compensation for pain and sufferings rendered by the OP because of his deficiency of service and considering all aspects this Forum awards an amount of Rs. 50,000/- as compensation to be paid by the OP. This apart, the complainant is not entitled to get any other relief.
The points are accordingly decided.
ORDER
9. In the result, the complaint filed by the complainant stands allowed and it is ordered that the OP, M/S Star Enterprises situated at Ramnagar, Tarapur, Karimganj Road, Opposite to ISBT Bus Stand, Silchar, Assam owned by Mujibur
Rahaman shall either to replace the block machine by a fresh one or to pay the amount of the machine for Rs. 4,14,400/- to the complainant and the OP shall also pay an amount of Rs. 50,000/- ( Rupees Fifty Thousand) as compensation to the complainant within 2 (two) months from today.
10. Furnish copy of this judgment to the complainant free of cost through his learned counsel.
ANNOUNCED
(J. M. MURASING)
PRESIDENT
(P. SINHA) (S. DEB)
MEMBER MEMBER
