DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.992 of 2018
Date of institution: 25.09.2018 Date of decision : 13.02.2019
Durgesh Kumar son of Subash Gupta, resident of House No.1313/6, Phase-11, SAS Nagar, Mohali, Punjab.
…….Complainant
Versus
1. National Enterprises (Regd.) through its Director Mr. Mahender Gupta, National Enterprises (Regd.), 9960, Gali No.4, Multani Dhanda, Paharganj, Near Maharashtra Bhawan, New Delhi 110055, India.
2. Bombay Shimla Roadways (Regd.), through its Prop. Plot No.32, New Timber Market, Sector 26, Chandigarh, UT.
……..Opposite Parties
Complaint under Section 12 of
the Consumer Protection Act.
Quorum: Shri G.K. Dhir, President,
Mrs. Natasha Chopra, Member.
Present: Complainant in person
OP No.1 ex-parte.
Complaint against OP No.2 not admitted.
Order by :- Shri G.K. Dhir, President.
Order
Complainant purchased a Kraink Double Dai Hydraulic from op No.1 for amount of Rs.79,500/- by paying amount through bank transactions. This machine was booked on 23.06.2018 by paying amount of Rs.15,000/-, regarding which receipt was issued by OP No.1. Assurance was given to complainant regarding sending of machine at his residential address within two days, but on the next day a call was received to the effect that complainant will have to pay an amount of Rs.20,000/- on 25.06.2018 through net banking from his account and thereafter machine will be delivered. Similar call for paying Rs.30,000/- was received by complainant from an employee of OP No.1 subsequently also and complainant paid that amount of Rs.30,000/- by way of transfer of amount from his account to the Company. Complainant submitted request for checking of machine before making balance payment, but threat was administered by OP No.1, Company, to the effect that in case complainant denied, then previous paid amount will stand forfeited. So complainant after arranging for amount of Rs.14,500/- paid the same through bank transaction. It is claimed that all the payments have been made by complainant to OP Company, but machine was not delivered in time because the same was delivered on 08.07.2018 through transportation of OP No.2 at Mohali. On arrival of the machine, complainant checked and found the same not to be new one. So, complainant gave a call to the Company for intimating its officials about condition of the machine. Complainant further disclosed as if no invoice (bill) has been sent by OP Company with the machine. Assurance was given for replacement of the machine within two days by claiming that there is some misconception in sending of the machine. Bunty another company official gave assurance to complainant for replacement and that is why complainant kept the machine in an accommodation took on rent of Rs.4,500/- P.M. by him. Complainant kept on asking the Company continuously for replacement of the machine. It is claimed that complainant has never opted for old machine. On 08.09.2018, a person from Company came for claiming that he will repair the machine. However, complainant claimed that issue of repair is not involved because old machine in place of new purchased machine has been sent by OP. Said machine returned back and thereafter Mr. Bunty, Manager of OP shouted through telephone call as if machine will not be replaced because the same may have been replaced by transporter. On call being made to the transporter, he denied about such replacement by claiming that machine has been delivered in the same condition in which it was loaded by Company. Rather the transporter claimed that issue regarding sending of old machine in lieu of new one is an issue between company and complainant. By pleading deficiency in services on part of OPs, prayer made for directing OPs to replace/repair the machine or return the received amount without any deduction. Compensation for mental agony and harassment of Rs.50,000/- and litigation expenses of Rs.20,000/- more claimed. Besides apology for inconvenience sought from OPs.
2. OP No.1 is ex-parte in this case. Complaint against OP No.2 was not admitted at admission stage itself.
3. Complainant to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.C-3 and then closed evidence.
4. Written arguments not submitted. Oral arguments heard and records gone through.
5. Complainant has produced invoice Ex.C-1 dated 23.06.2018 for establishing that machine was purchased for an amount of Rs.73,500/- and that is why entry incorporated regarding receipt of amount of Rs.5,000/-, but of balance outstanding amount as Rs.68,500/-. However, Rs.10,000/- more were paid on 25.06.2018 and thereafter balance worked out on this invoice is of Rs.,58,500/-. Ex.C-2 is a document showing as if Rs.20,000/- transferred from the account of complainant to OP No.1 on 25.06.2018, but Rs.5,000/- on 23.06.2018. Rs.30,005.90 N.P. and Rs.14,505.90 N.P. further were transferred from the account of complainant to OP No.1 on 27.06.2018 and 28.06.2018 as per contents of Ex.C-2. Photocopy of Page-2 of certificate of registration of OP No.1 shows as if it has account No.37080200000258 with IFSC Code: BARBOSHALIM. Transfer of amounts on 27.06.2018 and 28.06.2018 took place in the above referred account with above referred IFSC Code, is a fact borne from contents of Ex.C-2 and as such certainly payment of Rs.69511.80 N.P. from account of complainant to OP No.1 is established through transaction entries Ex.C-2.
6. It may be mentioned here that written statement through post of OP No.1 was received. In that written statement, objection regarding territorial jurisdiction of this Forum raised by claiming that working place of OP No.1 is at Paharganj, Delhi and as such complaint at Mohali not maintainable. That objection taken in the written statement of OP No.1 has no force because deficiency in service found at Mohali due to sending of old machine in lieu of new one after acceptance of amount. Payment was transmitted by complainant from Mohali and as such certainly cause of action accrued to complainant at Mohali. Being so, this Forum has territorial jurisdiction and objection raised to the contrary in the written statement is not tenable.
7. Second objection taken in the written statement of OP No.1 is that there is no deficiency in service on part of OP No.1 and as such question of harassment of complainant does not arise. Though it is claimed in the written reply that machine has been delivered to complainant upto his entire satisfaction, but record of that satisfaction has not been sent at all. Such record of satisfaction bound to be with OP No.1, but despite that same has not been sent alongwith reply received through post. So there is concealment of material facts in this respect by OP No.1.
8. In delivery receipt Ex.C-3 issued on the letter pad of OP No.2 it is specifically mentioned that OP No.2 does not take any responsibility for delivery of goods. In view of this recital contained in Ex.C-3 certainly liability of OP No.2 does not remain regarding the machine. It is for OP No.1 to establish that delivered machine is not old one by establishing that machine was received by complainant after recording satisfaction note. Such record has not been produced at all by OP No.1, though the same bound to be in its power and possession. So by drawing adverse inference against OP No.1, entitlement of complainant becomes for replacement of machine with new one of the same model or of equal worth. As OP No.1 has withheld best evidence available with it and as such transportation charges for replacement will have to be borne by OP No.1. Act of sending of old machine in lieu of new one after acceptance of its price is unfair trade practice and as such complainant entitled for compensation of mental agony and harassment and also to litigation expenses, but of reasonable amount from OP No.1.
9. As a sequel of above discussion, complaint allowed against OP No.1 with direction to him to replace the machine with new one of the same model or of equal worth within 45 days from the date of receipt of copy of order. Transportation charges of replacement will be borne by OP No.1. Compensation for mental agony and harassment of Rs.5,000/- (Rs. Five Thousand only) and litigation expenses of Rs.5,000/- (Rs. Five Thousand only) more allowed in favour of complainant and against OP No.1. Payment of these amounts of compensation and litigation cost be made within 30 days from the date of receipt of certified copy of the order. Certified copies of the order be supplied to complainant and OP No.1 as per rules. File be indexed and consigned to record room.
Announced
February 13, 2019.
(G.K. Dhir)
President
(Mrs. Natasha Chopra)
Member
