Present (1) Nisha Nath Ojha,
District & Sessions Judge (Retd.) President
(2) Smt. Karishma Mandal,
Member
Date of Order : 30.09.2016
Nisha Nath Ojha
- In the instant case the Complainant has sought for following reliefs against the Opposite party:-
- To direct the opposite party to refund the price of the said machine i.e. Rs. 65,600/- ( Rs. Sixty Five Thousand Six Hundred only ) along with 18% interest.
- To direct the opposite parties to pay Rs. 20,000/- ( Rs. Twenty Thousand only ) as compensation.
- The facts of this case lies in a narrow compass which is as follows:-
The complainant has asserted that on 16.06.2008 opposite party agreed to give hand operated candle machine (automatic ) for Rs. 65,600/- including transportation cost. It was also agreed that the aforesaid machine will make 96 pieces of candle. Thereafter the complainant sent draft of Rs. 15,600/- through Canara bank, Patna City on 21.04.2008 to the opposite party who assured the complainant to make available the aforesaid machine within a week.
It is further case of the complainant that thereafter the opposite party asked the complainant to come to Delhi and visit his shop with Rs. 50,000/-. Thereafter he paid Rs. 50,000/- and took up the transport bilti and got the machine on 12.08.2008 from transporter A.C. Services Pvt. Ltd. When complainant opened the package he found that the aforesaid machine was not the same machine as agreed between complainant and opposite party because the machine was not able to produce 96 pieces of candle rather the machine was able to produce only 84 pieces of candle out of which 30 candle was useless. The machine was able to produce 54 pieces of candle only because the machine was not duly finished. The complainant thereafter reported the matter to opposite party that the opposite party had sent machine which can produce only 84 pieces of candle and also requested to sent a person to make some modification in the machine. Thereafter the opposite party did not give proper reply and the grievance of the complainant was not redressed.
The complainant had to spent more than 20,000/- due to aforesaid trouble. The further grievance of the complainant is that the opposite party has cheated the complainant by giving machine which can produce only 84 pieces of candle instead of 96 pieces of candle.
A reply on behalf of the respondent ( opposite party ) to the complaint filed by the complainant has been received through post as will appear from order sheet dated 13.02.2009 but the aforesaid reply was un-affidavited and thereafter affidavit was sent through post as will appear from order sheet dated 21.10.2010. The opposite party never appeared to argue this case. In reply the opposite party has stated that the case is not maintainable because all transaction were done at Gaziabad, UP and the respondent ( opposite party ) is situated at Gaziabad and not within the jurisdiction of this Forum.
It is further asserted by the opposite party in Para – 3 of his reply that, “it is strongly and vehemently denied that the complainant paid any amount other than Rs. 15,600/-, by cheque against which a proper receipt dated 21.08.2008 was issued by the respondent. It is respectfully submitted here that on payment of the said amount by the complainant, he personally inspected/verified the machine and in his presence machine was packed and delivered to the transporter. The said machine was supplied as per the requirement of the complainant, without any fault therein and if any fault has occurred in the machine, it must be on account of the mishandling and lack of proper maintenance of the machine by the complainant. Therefore complainant himself is the guilty for his wrong.” The opposite party has denied all the allegation leveled by the complainant and has submitted that he has given the machine as agreed between the parties and the complainant himself inspected the machine at the time of purchase.
Heard the learned counsel for the complainant. No one appeared on behalf of opposite party ( respondent).
So far the maintainability of this case is concerned that the very fact that the complainant has paid Rs. 15,600/- by way of advance through a draft of Canara Bank, Patna City has not been denied by the opposite party rather in Para – 3 of reply the opposite party has admitted that the aforesaid amount was received by him by way of advance towards purchasing the aforesaid machine. As the part of payment has been done from Patna hence the part of cause of action will deemed to have arisen in Patna and as such this complaint is maintainable.
So far the merit of this case is concerned it is the case of the complainant that opposite party had agreed to supply machine which could produce 96 pieces of candle but the machine was only able to produce 84 pieces of candle. This facts has not been categorically denied by the opposite party in his whole reply.
It further appears that after selling the machine, despite complainant’s request for repairing the machine the opposite party have not taken any care to redress the grievance of the complainant because the machine was not properly functioning. It was duty of opposite party to take notice of the difficulty of the complainant who had purchased the machine with hope that machine will produce 96 pieces of candle.
It is surprising that in Para – 3 of reply the opposite party has accepted the payment of Rs. 15,600/- but has not clearly disclose whether he has been paid rest amount or not. However from careful perusal of Para – 3 of the reply of opposite party, it is crystal clear that the rest amount of Rs. 50,000/- appears to have been paid at the shop of opposite party because he has stated that the aforesaid machine was packed in presence of complainant after his inspection of the aforesaid machine and thereafter the aforesaid machine was supplied to the complainant as per requirement of the complainant.
It is needless to say that the opposite party has not given service to the complainant when his machine was out of order and instead of that the opposite party has stated that fault has been occurred in the machine due to mishandling of the complainant.
In our opinion by giving the defective machine which could produce only 84 pieces of candle the opposite party has committed gross deficiency and as such he is entitled to compensate the complainant.
Hence we direct the opposite party to replace the machine which could produce 96 pieces of candle or return the price of the machine to the complainant which has been paid to him towards purchasing of the machine i.e. Rs. 65,600/- ( Rs. Sixty Five Thousand Six Hundred only ) within the period of two months from the date of receipt of this order or certified copy of this order failing which the opposite party will have to pay an interest @ 10% on the aforesaid amount i.e. Rs. 65,600/- ( Rs. Sixty Five Thousand Six Hundred only ) till its final payment.
The complainant is also directed that if the amount of machine is returned by the opposite party then he will return the machine to opposite party at the time of receiving the aforesaid amount of Rs. 65,600/- from opposite party.
Opposite party is further directed to pay Rs. 10,000/- ( Rs. Ten Thousand only ) to the complainant by way of compensation and litigation costs within the period of two months.
Accordingly, this complaint petition stands allowed to extent referred above.
Member President
