DOF.4/7/2005 DOO.4/8/2010 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR Present: Sri.K.Gopalan: President Smt.K.P.Prethakumari: Member Smt.M.D.Jessy: Member Dated this, the 4th day of August 2010 CC.180/2005 P.P.Surendran Secretary, Kairali Swayam Sahaya Sangham, Kuttikkara, P.O.Keezhallur (Rep. by Adv.K.K.Rajesh) Complainant N.S.Kumar, Proprietor, YENYESKEY, Machine Tools, Thadakam Road, Near J.M.Hospital, Coimbatore. (Rep. by Adv.K.Mahesh) Opposite parties ORDER Smt.K.P.Preethakumari, Member This is a complaint filed under section 12 of consumer protection act for an order directing the opposite party to pay Rs.1, 78,320/- as compensation along with cost. The complaint is filed by the Secretary, Kairali Swayam Sahaya Sangam for and on behalf of the other members also. The above sangam was registered with Iritty Block Panchayath and all the members are belonged to below poverty line. The Sangam started a paper bag unit with the financial help of the Gramin Bank, Karetta Branch under the administrative control of Iritty block panchayth. At the time of starting the business the Sangam has an investment of Rs.63, 175/- with the Gramin Bank. The complainant came to know about the opposite party through their advertisement in Deshabhimani daily and hence he telephoned to the opposite party and made enquiry about the paper bag machine. Accordingly the opposite party sends his Manger Pramod and he demonstrated the qualities, price and other details of the machine. The price of the machine was Rs.1,27,920/-.The opposite party represented to the complainant that the company had ISO-9000 certificate and the machine can produce 1 lakh paper bag per day. There after on 28.4.04, the complainant had given a DD of SBT for an amount of Rs.26, 000/- towards the advance of the machine. At the time of receiving the DD, the opposite party told that the machine will be ready within two weeks and training to the members will be given by them about the operation of the machine. But the machine was delivered only on 9.8.04. The complainant had purchased papers for Rs.10, 681/-from opposite parties and for Rs.9, 120/- from Shalimar. But the paper bag which is released from the machine is completely tone and damaged. The opposite party sends two people one by name Subramanian when the complainant informed the same thing to the opposite party and they repaired the machine. But even after repairing the defects of the machine persist and 90% of the paper bag which is released from the machine was good for nothing and cannot be sold. Again the opposite party send his worker for repairing the machine, when the complaint informed the same to the opposite party for the second time. Even after repairing for 10 or 11 times the defects of the machine kept unchanged. The opposite party withdrawn from their promise to give training to the members of Sangam. The complainant had given the balance amount of Rs.92, 000/-towards the value of machine by way of DD of S.B.T dt.31.7.04 and Rs.9920/- by cash to the Manger of opposite party Mr.Pramod at Keezhalloor. Since the defect of the machine is continuing the opposite party told to the complainant that the defect of the machine can be cured by them from their company at Coimbatore and the machine was taken by them with a condition that the machine will be returned after curing the defect after one week. But they had returned the same after one month. But there after also the defect of the machine is continuing and the matter was again discussed with the opposite party, he told the complainant that he has experience only in manufacturing in big size paper machine. There after the members of the Swayam Sahaya Sangam decided to return the defective machine to opposite party and the matter was talked over at Palayode with the Manger of opposite party Mr.Pramod in the presence of vice President, Keezhallur Grama Pacnhayath along with some other persons. In the above meeting Mr.Pramod, consented to give Rs.2, 50,920/- to the complainant towards value of machine including tax and other expenses incurred by the complainant. The above said Mr.Pramod promised that they are not in a position to give the entire amount at a stretch and hence the value of the machine will be handed over as first installment and the rest of the amount will be paid within one month. Accordingly the Manger had handed over a DD for Rs.1, 22,600/- on 18.5.05 and the machine was taken away to Coimbatore by him on the same day. Even though the opposite party’s Manger promised that he will hand over the amount within one month, he has not complied his promise till to day even after the repeated request made by the complainant for the same. So complainant and the members of his Sangham were suffered lot of financial, mental and physical loss. Hence this complaint. Upon receiving notice from the Forum, the opposite party entered appearance and filed version. According to the opposite party, the complainant is not a consumer and hence the Forum has no jurisdiction to try the case. The opposite party is the proprietor of M/s.YENYESKEY machine tools, Coimbatore which is a well reputed establishment dealing with and manufacturing and exporting of different types of paper bag machines and other kinds of machines for 20 years and on 31.3.04 the complainant represented by Surendran, Aneesh and Prashanthan visited the opposite party at Coimbatore to enquire about paper bag machine and the entry of their visit to the office of opposite party had made by the office in the enquiry register as entry No.11684. The opposite party showed and explained the different types of paper bag machine to the representatives of the complainant and they have selected one such type after satisfying themselves and they returned from there with a promise to come later. On 16.4.04 the representatives of the complainant again visited the office of opposite party and they have selected Junior “A” type paper bag machine as per preformd invoice bearing No.403 and Mr. Prasanthan had signed the proforma invoice and as per this the cost of the machine is Rs.1,27,920/- including tax. On 28.4.04, the complainant paid an amount of Rs.26, 000/- by DD DT. 27……4.04 drawn from SBT to opposite party at his Coimbatore office and the opposite party signed and issued a receipt No.807 dt.28.4.04 and the opposite party promised the complaint to deliver the machine by the end of June 2004; and the opposite party expressed his readiness to deliver the machine in time but the complainant sought time for taking delivery of the machine. The complainant informed the opposite party by a letter dt.13.6.04 that they have not got the necessary KGST,CST registration and “C”form from the concerned authorities and hence they require more time for taking delivery of the machine and opposite party is no way responsible for the delay. On 31.7.04, the complainant’s representatives came to opposite party’s office and paid the balance amount of Rs.92,000/- by DD drawn on SBT and Rs.9920/- by cash and receipt No.822 for DD and 823 for cash dt.31.7.04 was issued by opposite party. On 9.8.04 the complainant visited the opposite party at his office in Coimbatroe and handed over photo copy of KGSD,CST certificate and ‘C’ form and had taken delivery of the machine vide invoice No.5 dt9.8.04. At the request of the complainant the opposite party sent two of its employees for installation of the machine and the employees of opposite party successfully conducted the trial run of the machine to the satisfaction of the complainant. There is no contract between opposite party and complainant for imparting any kind of training. But the complainant by a letter dt. 11.8.04 requested to opposite party to send its employees to operate the machine and at the request of the complainant opposite party sent its employees several times. On 18.10.04, the complainant paid Rs.400/- to the employees. The machine does not have any defect at any point of time and the machine was functioning perfectly when the employees visited the complainant. The letter dt.5.11.04 by the complainant to opposite party itself certified that the machine was perfectly functioning and running in good condition. During 2005 January the complainant contacted the opposite party with a request to help them by making alterations in the machine in such a manner so as to produce large size of paper bag and also requested to give gear wheel as replacement of the present one. And the opposite party agreed to carry out the alteration work and necessary changes and informed that one month is required for the work. The opposite party ahs taken back the machine and carried out the alteration and changes as proposed by the complainant. After the successful trial run of the renovated machine on 3.3.05, at the factory of the opposite party the complainant given their satisfaction letter and requested the opposite party to send back the machine. Thereafter the complainant took delivery of the machine on 5.3.05 and the machine functioned without any complaint and the opposite party had clearly stated to the complainant that free service will be provided only once and further service of their employees should be born by the complainant. The complainant had never contacted the opposite party nor asked for the service of the employee of opposite arty after taking delivery of the machine after carrying alteration. It is evident that they had absolutely no problem in the machine. The complainant again approached the opposite party to take back the machine by submitting their inability to operate the machine also their struggle to survive. The complainant told the opposite party that they cannot run the unit as profitable. Since 13 persons are depending on the income from the unit and they cold not find an expert also. The complainant as per letter dt. 20.4.05 requested the opposite party to take back the machine and also agreed to pay Rs.1, 23,600/- being the value of the machine. The opposite party informed their willingness to take back the machine by a letter dt.10.5.05. On 18.5.05, the manager of opposite party had gone to the complainant and handed over three DDs all dated 16.5.05 drawn on SBI total for Rs.1, 22,600/- to the complainant and had obtained receipt from the complainant as full and final settlement for the business transaction and after which the complainant let the opposite party to take the machine and hence the machine was taken back on that day. After this the complainant had never contacted the opposite party with any request and hence the complaint is filed to harass the opposite party. The machine supplied with the opposite party does not have any inherent defect and the reports and letters given by the complaint certify that the machine was in a perfect running condition and free from all defects and these reports reveal that complainant produced thousands of paper bags from the machine. The opposite party sustained huge pecuniary loss due to the business deal. The renovation of the machine was done free of cost and hence the complainant is liable to pay compensatory cost and the complaint is liable to be dismissed. On the above pleadings the following issues have been raised for consideration. 1. Whether the complainant is a consumer? 2. Whether there is any deficiency in service on the part of opposite party? 3. Whether the complainant is entitled to get the remedies as prayed? 4. Relief and cost. The evidence consists of the oral testimony of PWs 1 to 4, DW 1 and Exts.A1 to A15 and B1 to B14. Issue No.1 The opposite party contended that the complainant had purchased the machine for commercial purpose and hence the complainant is not a consumer. The complainant contended that the Kairali Swayam Sahaya Sangham is constituted by13 members who are in B PL group for making an SSI unit for self employment and the same was registered under the Iritty Block Panchayth. They contended that SSI unit was started with the help of finance from NMG Bank to find out day to day means of the members of the sangham. The explanation to Section 2(1)(d)(2) of the consumer protection Act itself says that commercial purpose does not include by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self employment. So we are of the opinion that the complainant’s sangham had purchased the machine with an intention to start an SSI unit for earning day to day means of the members and hence the complainant is a consumer and the Forum has ample jurisdiction to try the case and issue No.1 is found infavour of the complainant. Issue Nos. 2 to 4 The case of the complainant is that they were compelled to close down the SSI unit of making paper bag due to the defective machine supplied by opposite party and hence they were returned the machine and the opposite party had paid only Rs.1,22,600/- instead of their promise to pay Rs.2,50,920/-. This was caused due to the deficient service of opposite party and hence they are liable to pay Rs.1, 78,320/- to the complainant by way of compensation. In order to prove the case the complainant had examined PW1 to PW4 and produced documents Exts. A1 to A15 such as invoicedt.9.8.04 for Rs.127920/-, letter for avoiding sales taxes, receipts by OP dt. 28.4.04 and 31.7.04, bills from Pleasant Plasa, Blank application for training, visiting card, inauguration notice, copy of minutes, and certificate from NMG Bank, telephone bills, damaged covers, Invoice and bills by which complainant purchased papers and two koolicheat. In order to substantiate the case opposite party also produced documents Exts.B 1 to B14 such as, letter dt. 11.8.04, daily report, visitor’s diary, preformed invoice DT. 16.4.04, daily report dt. 10.10.04, 17.10.04, letter dt.13.6.04, daily report dt. 5.11.04, cash bill dt.15.2.05, letter dt.20.4.05, letter dt. 18.5.0-5 covers and receipt from the complainant. In order to decide the issue No.2 the following things to be answered in this case. They are whether the delay caused in supplying the machine was due to any deficiency of opposite party and whether they are bound to give training to employees, whether the opposite party had taken back the machine due to any inherent defects and whether the opposite party is bound to pay any amount to the complainant as per mediation talk? The first thing to be decided is whether the delay in supplying machine is caused due to any deficient act of opposite party and whether they are bound to give any training to the members of the Sangham. According to the complainant even though they had booked for the machine on 28.4.04 by giving DD for Rs.26,000/-the opposite party had delivered the machine only on 9.8.04. But according to opposite party they promised the complainant to deliver the machine by the end of June 04 and they informed his readiness to deliver the machine in time. But the complainant sought time for taking delivery since they have not received the necessary KGST, CST registration and “c” form and they issued a letter dt.13.6.04 to that effect, which is produced before the forum as Ext.B7. The complainant has not produced any document to show that the opposite party had promised to deliver the machine before that. The complainant has produced 3 blank applications for training programme which are marked as ext.A5 series and the same was in the name of N.S.K. Industrial and Management Training Institute. The DW1 deposed that Ext.A5 (1) Bbn amÀ¡v sNbvX tcJ Fsâ Øm]-\-T-l-c-Pn-¡m-c\p \ÂIn-b-Xm-sW-¶p ]d-ªm icn-b-Ã. letter head Fsâ Øm]-\-¯nsâ sister concern sâXm-Wv.. More over the complainant has not produced any document to show that the opposite party had agreed to give them training. So the contentions of the complaint that the supply of machine was delayed due to the deficiency of the opposite party and he withdrawn from the agreement that he will give training to the complainant etc. are not proved and hence that contentions are not sustainable. Another contention that the opposite party had taken back the machine due to its inherent defects. According to the complaint the labourers of the opposite party came for 10or 11 times for the repairing work of the machine, the defect of the machine was continuing unchanged. But the opposite party submits that the machine does not have any defect at any point of time and the employees of opposite party visited the complainant only for helping the complainant in operating the machine since there were no experts available for the complainant and the machine was functioning perfectly when the employees visited the complainant. In order to substantiate their contention they have produced the daily reports Exts.B2, B5, B6 and Ext.B1 letter dt.11.8.04. The complainant contended that even though the machine was installed by opposite party’s laborers, they have not conducted any trial run. But as per Ext.B1 document it is stated that “IT-]\n Ab¨ sajn³ R§Ä¡v e`n-¨p. IT-]\n Hm¸-td-äÀam-cmb B\µv,IpamÀ F¶n-hÀ R §fpsS sskän h¶p sajo³ ^näp sNbvXp {Sb d¬ \S-¯n-bn-cp-¶p. The complainant deposed that “letter dt.11.8.04 to OPbnse signature Fsâ-Xm-Wv. CXnse ko R§-fp-sS-Xm-Wv.So the complainant admits the Ext.B1 document. The complainant further deposed that: “ tPmen-¡mÀ Hcp-]mSp Xh-W-Øm-]-\-¯n h¶n-cp-¶p.-sa-jo³ {]hÀ¯n¡m³ {]tX-yI ]cn-io-e-\T Bh-i-y-ap-v. Hm.-]n- bpsS BÄ¡mÀ h¶p sajo³ \¶m-¡p-T-t]mÄ \à IhÀ ASn-¨n-cp-¶p.-]n-¶oSv Ahcp t]mbn-¡-gnªv sN¿p-T-t]mÄ IhÀ \¶mbn h¶n-cp-¶n-Ã.. This deposition substantiated the contention of opposite party. More over the daily reports dt.19.9.04, 20.9.04, 21.9.04 was admitted by the complaint and which is marked as Ext.B2. In that report it is stated that 19.9.04 – 9-17 size paper ASn¨p 2000 IhÀ In«n. 20.9.04 – space set sNbvXp {Sb ASn-¨p. 21.9.04 -12-6-1 size holding cover 100ASn-¨p. More over in the Ext.B5 daily report dt.10.10.04, it was written as “\n§-fpsS Hm¸-td-äÀ kp{_-Ò-W-y³ 9.10.04 \p D¨¡v R§-fpsS skän F¯n. C¶p sshIp-t¶-cT hsc 1 1/2 Znh-kT R§-fpsS IqsS skäo Dm-bn-cp-¶p. 18/19 sskkv IhÀ seMvXv Ipd-ªXp Imc-W-T-A-Sn-¨n-Ã. 10/16-I-hÀ skäp sNbvXp7000 IhÀ ASn-¨p. . The Ext.B6 also is daily reports for 17.10.04 and 18.10.04. In it also it was stated that 18-10-04\p 9-13 size 20000 cover ASn¨p. B8 is a letter issued by the complainant to opposite party. In it also it was stated that “\n§-fp-sS-I-T-]\n Hm¸-td-äÀ kp{_-Ò-W-y³ 31 \pRm-b-dmgvN sshIn«v 5 aWn¡v R§-fpsS Øm]-\-¯nÂ-F¯n ChnsS kt½-f-\-am-b-Xp-sImv‘ D¨-hsc IT-]-\n-bn \n¶p Ipd¨v sNdnb IhÀ ASn-¨p. ]ns¶ 4þ.m-T-Xo-bXn 2.30 \p R§-fpsS IT-]-\n-bn F¯n-b-Xp-\p-ti-jT 4000, 7 x 12,500000 – 6 x 10 Ih-dp-IÄ AS-n-¨p. Ct¸mÄ-BsI 5 sskkv Ih-dp-IÄ ASn-¨p. anjy³ \à hÀ¡n-TMv Io-j\mWv. ]gb KnbÀ ho sNdn-bXp am{X-am-b-Xp-sImv t^mÄUn-TKv IhÀ ASn-¨n-«n-Ã. These above statements in the documents also substantiate the contention of opposite party. But the complainant had disputed the document B8 and denied by denying his signature by saying that some blank signed papers and letter heads are taken from the complaint by the man and manger of the opposite party, as well as the opposite party and the same is misused by the opposite party and later such unfilled letter head and paper is filed by the opposite party and now produced as document before the Forum. But the complainant has no pleadings in his complaint about the same and hence we feel that he has put forwarded a new case at the time of evidence. If the opposite party had taken away such blank papers as stated by the complainant, it should be stated in the complaint. More over the signature in the disputed B8 document is same as that in B1 and other admitted documents, complaint and in vakalath also. More over while going through the pleadings of complainant, there is no occasion to handed over such blank papers. So from the facts and circumstances of the case. It can be inferred that such contention was raised by the complainant as after thought after verifying the documents produced by the opposite party. So the contention raised by the complaint is not sustainable. From the above discussion it is seen that opposite party had given his service through his employees for so many times as admitted by the complainant in making paper cover. So we hold that the complainants lacks expertise and hence they cannot continue their business. Moreover the Ext. B11 document is a letter issued by the complainant to opposite party by requesting them to take back the machine. The reason stated is that “the machine is not enough to make a regular income for 13 people and we don’t have an expert technician and marketing executives”. Moreover the complainant deposed that “machine HcpsIm-Ã-t¯m-fT R§-fpsS ssIh-i-ap-m-b-hn-cp-¶p. B ka-b-s¯m-¶p-T-H.]n AÃmsX aäp-km-t¦-XnI hnZ-Kv[-sc-sIm-vsa-jo\p XI-cm-dp-sm-F¶p ]cn-tim-[n-¨n-cp-¶n-Ã.-A-Xn\p \S-]-Sn-k-zo-I-cn-¨n-cp-¶n-Ã. FXr-I£n sajo³ Xncn-s¨-Sp-¯-Xn-\p-ti-j-amWv \jvS-]-cn-lm-cT Bh-i-y-s¸-«p-Imv tIkv ^b sNbvX-Xv. “. So it is clear that the opposite party has not taken any steps for examining the machine by an expert. So the complainant has failed to prove that the machine is defective. Yet another point to be decided is whether the opposite party is bound to pay any more amounts to the complainant as per the mediation talk. The complainant’s contention that the opposite party agreed to give Rs.2, 50,920/- to the complainant in mediation talk taken place in the presence of PW2 along with some other person. But the complainant has not produced any documents to show that such a mediation talk was taken place and a decision was taken as stated by the complainant. No agreement or even minutes of the meeting was produced. More over PW2 was not certain about how much amount was agreed by the opposite party to be paid and how much he had paid etc. He deposed that “Rm³ a²-y-Ø-¯n-sâ-Xp-S-¡T apXÂ-A-h-km-\-T-h-sc-D-m-bn-cp-¶p. c-c-e-evj-¯n-e-[n-IT Dv.-Ir-X-y-ambn And-bn-Ã. Rm³ t]mIp-¶-Xn\p ap³t] F{Kn-saâp Dm-¡ntbm F¶-dn-bn-Ã. F-XnÀ I£n sajnsâ hne-kp-tc-{µ\p Xncn¨p \ÂIn-b-Xmbn a\-Ên-em-¡n-tbm. Hcp kT-Jy sImSp-¯n-cp-¶p.F{X-bm-sW-¶-dn-bnà “. So in the absence of supporting documents we are not in a position to give much reliability to the evidence of the witness PW2. Moreover the complainant admits that they have received Rs.1, 22,600/- as the price of the machine as per Ext.B14. So we are of the opinion that the complainant has miserably failed to prove the case that the opposite party had admitted to pay Rs.2, 50,920/- including the value of the machine. So from the above discussion, it is seen that there is no deficiency of service on the part of opposite party as alleged by the compliant and hence we are of the opinion that the complaint is liable to be dismissed and order passed accordingly. In the result, the complaint is dismissed. No cost. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the complainant A1.Invoice dt.9.8.04 issued by OP A2.Letter dt.5.3.05 issued to Check post authorities by OP A3.Receipts issued by OP A4.Receipts issued by Manager, Pleasant Plaza Tourist Home A5.Applicatin for training programme issued by NSK Industrial & Management Training Institute. A6.Visiting card of OP A7.Inaauguratin notice A8.Minutes of the meeting dt.21.6.05 conducted by complainant A9.Cewrtificate issued by NMG Bank, Karetta dt.1.12.08 A10.Phone bills A11.Paper cover A12.Invoice dt.3.9.04 issued by OP A13.Bill issued by Shalimar Enterprises dt.29.9.04. A14. & 15. Agreement Exhibits for the opposite parties B1. Letter dt.11.8.04 sent by complainant B2.Daily work report dt.19.9.04,20.9.04 and 21.9.04, B3. Visitors register maintained by the OP B4.Copy of the proforma invoice issued to complainant B5 & 6.Daily report dt.10.10.04 and17.10.04 & 18.10.04 submitted by complainant B7.Letter dt.13.6.04 issued by complainant B8.Letter dt.5.11.04 sent by complainant B9.Cash bill dt.15.2.05 issued by Vadivel & Co. B10 & 11.Copyt of the letter dt.3.3.05 and 20.4.05 sent by complainant B12.Copyof the letter dt.18.5.05 sent to complainant B13.Sample covers B14.Receipt issued by complainant Witness examined for the complainant PW1.Complainant PW2.C.K.Raghavan PW3.Balakrishnan PW4.M.V.Chandran Witness examined for the opposite parties DW1.N.S.Kumar Forwarded by order/ Senior Superintendent Consumer Disputes Redressal Forum, Kannur.
| | [HONORABLE PREETHAKUMARI.K.P] Member[HONORABLE MR. GOPALAN.K] PRESIDENT[HONORABLE JESSY.M.D] Member | | 
