Tamil Nadu

South Chennai

252/2006

m/S.Almas Digital,Proprietor - Complainant(s)

Versus

M/S.ESS DEE Nutex Infinities Pvt.Ltd.,Director & others - Opp.Party(s)

D.N.Dhurgasha

17 Nov 2017

ORDER

                                                                        Date of Filing :   22.03.2006

                                                                        Date of Order :   17.11.2017

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3

PRESENT: THIRU. M.MONY, B.Sc., L.L.B. M.L.,                     : PRESIDENT            

                  TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

             DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

 

C.C.NO.252/2006

FRIDAY THIS 17^th DAY OF NOVEMBER 2017

M/s. Almas Digital,

Rep.  by its Power of attorney Agent,

Mr.A.K.Gulshad,

No.87, Ellis Road,

Anna Salai,

Chennai 600 002.                                                  Complainant

                                        Vs 

1. M/s. ESS DEE NUTEK INFINITIES PVT. Ltd.,

Rep. by its Director,

No.D 784, Saraswathi Vihar,

Pitampura, New Delhi 110 034.

 

2. Mr. K.Upendra,

Authorized Seller of M/s. Ess Dee Nutek

Infinites Pvt. Ltd.,

No.5, Karpagambal Nagar,

Mylapore, Chennai 600 004.                       Opposite parties

 

Counsel for Complainant           :   M/s. D.N.Dhurgasha           

Counsel for opposite parties      :   M/s.Nirmal Roy Sanjeevi & another   

ORDER

THIRU. M. MONY, PRESIDENT

This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act 1986 seeking direction  to pay a sum of Rs.17,00,000/- towards compensation for mental agony, loss of profession, loss of reputation and to pay Rs.3,000/- towards cost of the complaint.

1. The averment of the complaint in brief are as follows:

           The complainant submit that he purchased a  one 10.5. Duel Head Digital Flex Printing machine in the month of October 2004 from the 1^st opposite party through 2^nd opposite party for a sum of  Rs.9,00,000/-.  Initially the complainant paid a sum of Rs.3,00,000/- by way of two cheques and issued 12 post dated cheques  for the balance amount of Rs.6,00,000/-.    Further the complainant state that he has paid a sum of Rs.50,000/- by way of cash on 25.10.2004 and taken back three cheques issued by him and issued on cheque for Rs.1,00,000/- on 6.5.2005.  Thereafter on 13.5.2005 the complainant issued cheque for Rs.50,000/- in favour of the opposite party; total sum of Rs.5,00,000/- since the machine was defective and the matter is informed to the opposite party a new machine was replaced to the complainant.  Since the opposite party has not come forward to repair and replace the machine the complainant was forced to repair the machine by one Classic Computer Care and on payment  of Rs.31,143/-.  Since the opposite party has not come forward to either repair the machine or replacing the machine.     As such the act of  the opposite party amounts to deficiency in service which caused mental agony and hardship to the complainant.  Hence this complaint is filed.

2.    The brief averments in Written Version of  the  opposite party is  as follows:

      The  opposite parties deny each and every allegations except those that are specifically admitted herein.   The opposite parties submit that  the opposite parties sold a 10.5 Duel Head Digital Printing Machine  to the complainant.   While using the machine some defects  notice and information given to the opposite parties that to replace the machine with a new one.    Due to service person visited the complainant’s residence and checked the machine.  As per job card there is no manufacturing defect.  The allegation that the complainant paid a sum of Rs.5,00,000/- towards cost of the machine is false.   The complainant paid only Rs.4,00,000/- alone.  Further the opposite parties state that the complainant purchased the said machine was governed by warranty of one year from 14.10.2004 to 13.10.2005 during the period all repairs are rectified.   The complainant purchased the said machine only for business purpose.    The opposite parties filed this case u/s 138 N.I. Act.   Further the opposite parties state that after the warranty period without paying the sale consideration raising the allegation of deficiency in service; and unfair trade practice is unsustainable.     Hence there is no deficiency in service on the part of the opposite party and the complaint is liable to be dismissed.

3.     In order to prove the averments of the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A15  marked.  Proof affidavit of opposite party filed and Ex.B1 & Ex.B9 marked on the side of the  opposite party.

4.   The points for the consideration is: 

Whether the complainant is entitled to  a sum of Rs.17,00,000/- towards compensation for mental agony, loss of profession, loss of reputation  with cost of Rs.3,000/- as prayed for ?

 

5. ON POINT:

       

        Both parties filed their  respective written arguments.  The complainant and his counsel not turned up to advance any oral arguments.  The complainant pleaded and contended that admittedly he purchased a 10.5. Duel Head Digital Flex Printing machine in the month of October 2004 from the 1^st opposite party through 2^nd opposite party for a sum of  Rs.9,00,000/-.  Initially the complainant paid a sum of Rs.3,00,000/- by way of two cheques and issued 12 post dated cheques  for the balance amount of Rs.6,00,000/-.  Further the complainant contended that he has paid a sum of Rs.50,000/- by way of cash on 25.10.2004 and taken back three cheques issued by him and issued on cheque for Rs.1,00,000/- on 6.5.2005. Thereafter on 13.5.2005 the complainant issued cheque for Rs.50,000/- in favour of the opposite party; total sum of Rs.5,00,000/- since the machine was defective and the matter is informed to the opposite party a new machine was replaced to the complainant. While using the new machine also had some defects was informed to the opposite party for replacing or repair.  Since the opposite party has not come forward to repair and replace the machine the complainant was forced to repair the machine by one Classic Computer Care and on payment  of Rs.31,143/- as per Ex.A7 to Ex.A13.  Since the opposite party has not come forward to either repair the machine or replacing the machine.  The complainant has not paid the balance amount.  The opposite party also filed suit No.189/2005 as per Ex.B9.  Further the complainant contended that due to the deficiency in service and the unfair trade practice administered by the opposite parties by way of selling defective machine.  The complainant was put to great hardship, mental agony, loss and reputation.   The complainant is claiming a sum of Rs.17,00,000/- towards compensation including refund of the advance payment.

6.     The learned counsel for the opposite parties contended that admittedly the opposite parties sold a 10.5 Duel Head Digital Printing Machine  to the complainant.   While using the machine some defects ; noticed and due information given to the opposite parties that to replace the machine with a new one.    The contention of the complainant is that  the new machine also having some defects and is not functioning properly is totally denied.  Due to service person visited the complainant’s residence and checked the machine as per job card Ex.B5 to Ex.B8 there is no manufacturing defect.  The complainant, without waiting for rectification of the defect arranged 3^rd party service person and rectify the repairs.   The allegation that the complainant paid a sum of Rs.5,00,000/- towards cost of the machine is false.   The complainant paid only Rs.4,00,000/- alone.  But on a careful perusal of records and on payment of Rs.50,000/- by way of cash on 25.10.2004 and duly endorsement in Ex.A3 and  a sum of Rs.50,000/- by way of cheque on 13.5.2005 was not denied by the opposite parties proves that the complainant paid Rs.5,00,000/-.

7.    Further the learned counsel for the opposite parties contended that the complainant purchased the said machine was governed by warranty for one year from 14.10.2004 to 13.10.2005 during the period all repairs are rectified.   The complainant purchased the said machine only for business purpose.  But it is apparently clear the said business is sole for his livelihood.   Since the complainant has not paid the entire sale price and cheque issued  returned as dishonoured.  The opposite parties filed this case u/s 138 N.I. Act.   Further the contention of the opposite parties is that after the warranty period without paying the sale consideration raising the allegation of deficiency in service; and unfair trade practice is unsustainable.   But on a careful perusal of the records it is very clear that the machine supplied is defective and was duly replaced by another machine which was found a defective from job cards.   The alleged warranty period was not applicable to the machine supplied subsequently.  It is also very clear from the records that the complainant serviced the machine with the help of third party service provider as per Ex.A7 to Ex.A13 on payment of Rs.31,143/-.   Considering the facts and circumstances of the case, this Forum is of the considered view that the opposite parties 1 to 2  are jointly and severally liable to replace the machine of same brand on receipt of Rs.4,00,000/- from the complainant within one month and shall pay compensation of Rs.20,000/- towards mental agony with cost of Rs.5,000/-  and the point is answered accordingly.

In the result the complaint is allowed in part.  The opposite parties 1 to 2  are jointly and severally liable to replace the machine of same brand on receipt of Rs.4,00,000/- from the complainant within one month and shall pay compensation of Rs.20,000/- (Rupees twenty thousand only) towards mental agony with cost of Rs.5,000/-  (Rupees Five thousand only) to the complainant.  

The aboveamounts shall be payable within six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a to till the date of payment.  

            Dictated by the President to the Assistant, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 17^th day  of  November  2017.  

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainant’s side documents:

Ex.A1-                             - Copy of Power of Attorney executed by complainant.

Ex.A2- 14.10.2004         - Copy of Advance receipt.

Ex.A3- 25.10.2004         - Copy of Receipt for acknowledgement.

Ex.A4- 29.10.2004         - Copy of letter by opposite party.

Ex.A5-                            - Copy of Bank statement.

Ex.A6- 6.11.2004            - Copy of Invoice by opposite party.

Ex.A7- 19.11.2005         - Copy of receipt for payment of repair charges.

Ex.A8- 30.11.2005         - Copy of receipt.

Ex.A9- 3.12.2005           - Copy of receipt.

Ex.A10- 22.12.2005       - Copy of receipt.

Ex.A11- 31.12.2005      - Copy of receipt.

Ex.A12- 2.1.2006         -  Copy of receipt.

Ex.A13- 21.1.2006        - Copy of receipt.

Ex.A14- 27.1.2006        - Copy of notice.

Ex.A15- 10.2.2005        - Copy of reply by opposite party.

 

Opposite party’s side document:   

Ex.B1-  14.2.2006           - Copy of the resolution.

Ex.B2- 14.10.2004         - Copy of sales agreement.

Ex.B3- 14.11.2004         - Copy of installation report and instruction sheet.

Ex.B4- 26.11.2004         - Copy of certificate given by the complainant

Ex.B5- 26.11.2004         - Copy of job cards

Ex.B6- 9.3.2005             -Copy of job cards.

Ex.B7- 15.3.2005           - Copy of job cards.

Ex.B8-5.5.2005             - Copy of job cards.

Ex.B9- 16.6.2006          - Copy of docket order in S.No.189/2005

 

MEMBER-I                        MEMBER-II                             PRESIDENT.