CONSUMER DISPUTES REDRESSAL COMMISSION – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110016
Case No.93/2011
MR. VIJAY KUMAR BATRA
S/O LATE SH. JAGAN NATH BATRA,
SHOP- 275-276, SHAHI HOSPITAL ROAD, BHOGAL, NEW DELHI,
R/O E-13, JANGPURA EXTENSION
NEW DELHI- 110014 …..COMPLAINANT
Vs.
M/S. SUDHIR GENSETS LIMITED,
REGD OFFICE: 507, INTERNATIONAL TRADE TOWER
NEHRU PLACE, NEW DELHI
NEW DELHI- 110019 .…..RESPONDENT
Date of Institution- 22.02.2011
Date of Order- 14.06.2024
O R D E R
MONIKA SRIVASTAVA– President
Complainant has filed the present complaint seeking compensation of Rs.2,00,000/- for delay in supply of DG Sets, with interest @ 24% per annum for the delayed period of delivery of DG Sets on Rs.13,45,500/- along with pendente lite and future interest and cost of litigation.
- It is stated that complainant placed an order for purchase of 2, 125 KVA Silent DG Sets after making a payment of Rs.3,45,000/- dated 20.09.2010. In the said purchase order issued by OP three to four weeks time was mentioned as delivery. Copy of the said purchase order/ advance payment is annexed as Annexure-1.
- Balance payment of Rs.10,00,000/- was made on 01.10.2010 which was duly acknowledged by the OP and is annexed as Annexure-2.
- Vide its letter dated 01.11.2010, complainant requested the OP to deliver the DG Sets as per the terms of the purchase order and pay interest @24% per annum for the delayed period of delivery as the same rate of interest was being charged by the OP on non-payment of bill on presentation. Copy of Performa invoice is annexed as Annexure-3.
- It is stated that on 22.11.200 complainant received delivery of two DG Sets from the OP but on verification it was found that DG Sets were used, not in good condition and were not as per specification. Complainant made a request to the OP to replace the DG sets and pay damages. Copy of the said complaint is annexed as Annexure-4.
- On the request of the complainant, OP deputed their engineers to verify the complaint and agreed to replace the DG Sets. OP lifted these DG sets from the site of the complainant and gave back the delivery of the DG sets on 19.12.2010 at the site of the complainant. It is the case of the complainant that despite several requests, engineers of the OP finally visited his site on 29.12.2010 to make the DG Sets operational.
- It is further stated that request was made to OP to make payment of damages caused due to supply of used DG sets and also for delay in delivery of DG sets and in this regard, a legal notice was sent by the complainant dated 18.01.2011 which is annexed as Annexure-5.
- In reply to the legal notice, OP refuted the allegations made by the complainant and refused to make payment of damages. Copy of the said reply is annexed as Annexure-6.
- It is stated by the complainant that the act on the OP in delivering used DG sets and not paying damages for both delayed delivery as well as for providing used DG Sets is unjustified and amount to unfair trade practices, restrictive trade practices and deficient services as laid down under the Consumer Protection Act.
- It is stated that on account of inaction on the part of OP, in addition to the financial loss, mental agony, harassment, anxiety and tension have been caused to the complainant and therefore, he seeks compensation.
- In its reply, OP has stated that the Commission does not have the territorial jurisdiction to entertain the complaint and as there is no deficiency on the part of the OP.
- It is further denied that the complainant requested the OP to deliver the DG sets as per the terms of purchase order or that the complainant requested OP to make payment of interest @24% per annum for delay in delivery. It is stated that no such correspondence or letter has been placed on record by the complainant in support of his contentions.
- It is also denied by the OP that on verification of DG sets those were found to be used and not as per specification. It is further stated that despite this, the DG sets were replaced keeping in mind customer satisfaction and were replaced to the full satisfaction of the complainant. It is stated by the OP that complaint has been filed with the intention to gain undue money from the OP. It is stated that there is no delay in supply of the DG sets as those were organized in time on priority basis subject to supply of engine by the manufacturer ‘Cummins’. It is further denied by the OP that the complainant suffered any financial loss or mental agony, harassment, anxiety etc. It is further stated that complainant has not produced any document in support of this contention. It is stated that there is no occasion for criminal breach of trust in commercial transaction.
- In his rejoinder, complainant has stated that the DG sets in question were supplied by the OP to the complainant at Chattarpur, New Delhi and therefore, this Commission has the jurisdiction to entertain the present complaint.
- It is further stated that complainant had written letter to the OP on 01.11.2010 requesting them to supply DG sets as per terms of Performa invoice failing which the OP had to make payment of interest in terms of Performa invoice annexed with the complaint as Annexure 3.
- It is stated that after lot of persuasion, OP had supplied the DG Sets and when the complainant was about to lodge criminal complaint against the OP for cheating, only then the OP agreed to replace the said DG Sets. Copy of the photographs annexed as Annexure 7 shows that the DG sets are repainted, there was lot of carbon in silencer, engine oil was blackish, batteries were fitted whereas in new DG sets, the batteries are supplied separately. Even, the radiator had water instead of coolant.
- Both the parties have filed their respective evidence as well as written arguments.
- This Commission has gone through the entire material on record. The complainant has placed on record the bills showing the payment of Rs.13,45,500/- made by the complainant to the OP on 01.10.2010. The purchase order is dated 20.09.2010. Letters were written by the complainant on 22.11.2010 and 23.11.2010 wherein the complainant has written that the Gensets supplied to them had engine manufactured in July, 2010, body manufactured in August, 2010 whereas the delivery was given to them on 22.11.2010. It is further contended by the complainant that in the purchase order, the specification of the Gensets was provided however, the purchase order does not record any such specification of measurement. It only records specifications of engine etc. In their reply, OP has written to the complainant on 21.01.2011 denying any delay and stating that the DG sets was changed as per the request of the complainant.
- This Commission has seen that the complainant has placed some pictures of Gensets on record however, it is not clear whether these pertain to the same Gensets as supplied by the OP in this case. The purchase order filed on record does not record any specification of measurement of the Gensets when the order was being placed by the complainant.
The Hon’ble Supreme Court in the matter of SGS India Limited vs Dolphin International AIR 2021 SC 4849 has held the following
“The onus of proof that there was deficiency in service is on the complainant. If the complainant is able to discharge its initial onus, the burden would then shift to the Respondent in the complaint.”
It is therefore, upon the complainant to initially discharge its onus to prove that there was deficiency in service on the part of OP.This Commission has gone through the pleadings and documents filed by the complainant and find that complainant has not been able to discharge this onus.
Therefore, the present complaint is dismissed being devoid of any merits.
Copy of the order be provided to the parties as per rules. File be consigned to the record room. Order be uploaded on the website.
