By Smt. PREETHI SIVARAMAN.C, MEMBER
1.Case of the complainant:-
Complainant is a Gulf returned person and looking about for a job or wanted to set up own business for his daily needs. Complainant had received one SMS from the mobile phone of opposite party No.1 for starting up a business and they offered Rs. 30,000/- to 40,000/- by doing the business from home. Complainant called opposite party No.1 and they explained that they are the manufacturers of paper plate machines and they have supplied the machine all over India and they assured that they will provide the raw materials for making of plates and they will give necessary training to complainant operate the machine in their expenses. They again assured that after making plates, they will buy it from the complainant and they will pay Rs.400/- for 1000 pieces and there is no worry for complainant to sell the plates outside. The machine capacity was 15000 to 25000 plates in a day on 8 hours working time.
2. As per the assurance given by opposite party complainant selected a machine which is fully automatic which quoted Rs. 2,00,000/-. Then complainant contacted the representative of opposite party No.1 and she agreed to give this machine for Rs.1,50,000/- which includes the machine delivery charges. Complainant agreed with this price and delivery agreement. She wanted to pay 50% of the amount as advance and the remaining need to pay at the time of delivery. Complainant paid Rs.25,000/- as advance after transferring the advance, the representative of opposite party No.1 said that the machine will despatch within two days. On the very next day opposite party No.1 called the complainant and said that machine already despatched and it will reach within 5 to 7 days and wanted to keep the balance amount with the complainant to give opposite party No.1 at the time of delivery. After 6 to 7 days opposite party No.2 called the complainant and informed that there is one consignment in complainant’s name. When complainant approached opposite party No.2 and see the machine which was fully covered by wood. So he was unable to open and check the machine in detail. At the same time the representative of opposite party No.1 told to complainant to pay the balance amount at once then only courier team will release the machine. So on 26/02/2021 complainant transferred the balance amount of Rs. 1,25,000/- to opposite party No.1 through his bank account and he approached opposite party No.2 for releasing the machine. When he saw the supplier invoice, he was shocked to see that the value of the machine was only Rs.25,960/- instead of Rs. 1,50,000/- and the supplier name was Maari Enterprises instead of Omex enterprises. Moreover opposite party No.2 said to complainant that he has to pay Rs. 11,120/- as cargo charges, then only they will release his machine. Complainant refused to accept the invoice and the machine. Then complainant called the representative of opposite party No.1 one Vijaya and told her that, this is cheating and he wanted to get back the money he paid. Then she threatened the complainant that complainant should take the machine in his own expenses otherwise complainant will lose his money and machine. Complainant lost his money and machine due to the deficient service of opposite parties and unfair trade practice from the side of opposite party No.1. Hence this complaint.
3. Prayer of the complainant is that he is entitled to get Rs. 1,50,000/- as he was already paid to opposite party No.1 as the cost of the paper plate making machine and Rs. 1,00,000/- for the deficiency of service and unfair trade practice from the side of opposite parties and thereby caused mental agony and hardships to complainant.
4. On admission of the complaint notice was issued to the opposite party (Now opposite party No.1) and notice served on them and they did not turn up. Hence opposite party set exparte. Thereafter complainant filed IA 245/2021 to implead M/s URL Logistics Malappuram as opposite party No.2 for the effective adjudication of the complaint. Moreover he mentioned in the IA that opposite parties are trying to dispose the machine mentioned in the complaint which is in the custody of opposite party No.2. Hence Commission gave a direction to opposite party No.2 to keep the machine mentioned in the petition in the safe custody of opposite party No.2 till the disposal of CC/62/2021. Thereafter notice sent to opposite party No.2 and they appeared with their counsel and filed version.
5. In their version opposite party No.2 denied all the allegations raised by the complainant against them except those which are specifically admitted. They contended that complainant is not a consumer as per Consumer Protection Act and then above complaint is not maintainable against them. They have no connection with the first opposite party and have no idea about them. They admitted that one Maari Enterprises booked a consignment on 17/02/2021 at their Delhi Office and directed to deliver it to the complainant as “to pay go down”. With the freight charge of Rs. 10,260/- . On arrival of the freight, they informed the complainant about the arrival of the goods and requested him to take delivery of the item after making the freight charge specified above. The other allegations are not known to them and they have no role in the financial dealing and conversation and agreement between first opposite party and complainant.
6. They again contented that they are always ready to release the item to the complainant at any time on making payment of the freight charge and other expenses including handling charges, rent for keeping goods more than 15 days at the go down , by the complainant. They again stated that they have no objection for releasing the amount from other opposite party. They never done any deficiency of service or unfair trade practice against the complainant. Actually they were put to suffer huge loss and hardship due to the non payment of the freight charge by the complainant. Still they are keeping the item of the complainant in their go down and they are wasting a big space of their office. They are totally unaware and they are unnecessary party to the complaint. Complainant purposefully with ulterior intention filed this complaint to get illegal benefits. Hence complaint may be dismissed.
7. In order to substantiate the case of the complainant, he filed an affidavit in lieu of Chief examination and the documents he produced were marked as Ext. A1 to A4. Ext.A1 is the photocopy of customer acknowledgment received by complainant while transferring Rs. 25,000/- through NEFT by complainant to the account of Omex Enterprises (Opposite party No.1) dated 15/02/2021, Ext.A2 is the photocopy of customer acknowledgment received by complainant while transferring Rs. 1,25,000/- through NEFT by complainant to the account of Omex Enterprises (Opposite party No.1) dated 26/02/2021, Ext.A3 is the photocopy of Bank account statement received by complainant from Urban Co-operative Bank , Pertintalmanna branch Thachingnadam, Ext. A4 is photocopy of tax invoice for Rs. 25,960/- dated 17/2/2021.
8. Thereafter opposite party No.2 also filed affidavit, but no documents produced to prove their case.
9. Heard complainant and opposite party No.2. Perused affidavits and documents. The following points arise for consideration:-
1. Whether there is any deficiency of service and unfair trade practice on the
part of opposite parties
- If so, Reliefs and cost.
10. Point No.1 & 2:-
Complainant is a Gulf returned person and he had received one SMS from the mobile phone of opposite party No.1 for starting up a business. When complainant called opposite party No.1 and they said that they are the manufacturers of paper plate machines and they have supplied all over India and they assured that they will provide the raw materials for making of plates and they will give necessary training to complainant operate the machine in their expenses. They again assured that after making plates they will buy it from the complainant and they will pay Rs. 400/- for 1000 plates and there is no worry for complainant for sell the plates outside. The machine capacity was 15000 to 25000 plates in a day on 8 hours working time.
11. As per the assurance given by opposite party No.1 complainant paid Rs. 1,50,000/- through bank account and he approached opposite party No.2 for releasing the machine. He was shocked when he saw the supplier invoice because the price of the machine was only Rs.25,960/- instead of Rs. 1,50,000/- and the supplier name was Maari Enterprises instead of Omex enterprises. More over opposite party No.2 said to complainant should pay Rs. 11,120/- as cargo charges.
12. In their version opposite party No.2 denied all the allegations raised by the complainant against them except those which are specifically admitted. They have no connection with the first opposite party and have no idea about them. They admitted that one Maari Enterprises booked a consignment on 17/02/2021 at their Delhi Office and directed to deliver it to the complainant as “to pay go down”. With the freight charge of Rs. 10,260/- . They again contented that they are always ready to release the item to the complainant at any time on making payment of the freight charge and other expenses including handling charges.
13. In this complaint , opposite party No.1 refused to receive the notice sent from this Consumer Commission and appeared directly or through the counsel. Hence opposite party No.1 set exparte. After scrutinizing the documents it is clear that complainant had paid Rs. 25,000/- on 15/02/2021 to opposite party No.1 Omex enterprises. It is very clear as per Ext. A1 document. As per Ext. A2 , complainant had paid Rs. 1,25,000/- to Omex enterprises ie., opposite party No.1 on 26/2/2021 through his bank account. As per complainant’s case he had ordered a paper plate making machine from Omex enterprises located at Delhi. They assured that they will provide necessary raw materials for making paper plates and they will provide necessary training to operate the machine in company’s expenses. Moreover they assured that after making plates they will buy the plates from the complainant at the rate of Rs. 400 for thousand pieces they promised that the machine capacity was 15000 to 25000 in a day on 8 hours working time. But complainant not produced to prove the above contention raised by him.
14. In his complaint he again stated that a lady namely Vijaya, a keralite whose spoke to complainant and she agreed to give the machine for Rs. 1,50,000/- which include the machinery delivery charges to complainant’s house. But complainant not produced documents to prove the above contention raised by him. But as per Ext. A1 , A2 and A3 it is clear that complainant had transferred Rs. 25,000/- to the account of Omex Enterprises on 15/02/2021 and Rs.1,25,000/- on 26/02/2021. But Ext. A4 has no connection with omplainant and Omex Enterprises. There mentioned that the machine delivered by Maari Enterprises. In Ext. A4 the invoice date mentioned is 17/02/2021. On that day ,Maari Enterprises based on New Delhi had supplied Double die crank machine and paper raw materials worth Rs. 22,000/- at with 18% GST and total amount of Rs. 25,960/- to complainant as per invoice No.051 and invoice date 17/02/2021.
15. Complainant filed an IA after filing the complaint to implead M/s URL Logistics, Malappuram as opposite party No.2 and he wanted to direct opposite party No.2 to keep the machine mentioned in the complaint in safe custody of opposite party No.2 till the disposal of this complaint No. 62/2021. As per his petition IA 245/2021 M/s URL Logistics had impleaded as opposite party No.2 and the prayer of the complainant was allowed. Complainant in his complainant stated that opposite party No.2 wanted Rs. 11,120/- as cargo charges before delivering the machine. But complainant was not amenable for that and he filed this complaint. In their version they also stated that they have no connection with opposite party No.1 and they have no idea about them . They again stated that Maari Enterprises was booked the consignment on 17/02/2021 at the Delhi Office of opposite party No.2 and directed them to collect the freight charge of Rs. 10,260/- They have no idea about the financial dealing between first opposite party and complainant. They again stated that they are ready to release the consignment to the complainant at any time on making payment of the freight charge and other expenses including handling charges , rent for keeping goods more than 15 days at their go down.
16. From the above statements stated by opposite party No.2 it is clear that they are only receiving the consignment sent from different parts of the country and they are delivering the items to the people in whose name the consignment came. That is true from their side . But they can clearly know the whereabouts of opposite party No.1 or they can contact opposite party No.1 in the address and phone number noted in their documents about opposite party No.1. The innocent complainant was not able to contact opposite party No.1 . As per the rule of opposite party No.2 they will sent back the consignment to opposite party No.1 within 15 days after receiving the consignment in their office. So they can connect opposite party No.1 for further transactions. Opposite party No.2 not produced documents to prove their case. They can easily produce the direction from opposite party No.1 to them regarding the freight charges. They can easily informed opposite party No.1 regarding the dispute existing about the consignment they sent to opposite party No.2 . Sometimes opposite party No.2 already contacted opposite party No.1 and passed information to them. Opposite party No.1 will definitely be contacted opposite party No.2 for enquiring about the delivery of consignment they sent in the name of complainant and its further proceedings. Hence opposite party No.1 must have told about the IA 245/2021 to opposite party No.2 and their difficulty in returned back the consignment to opposite party No.1. We are on the opinion that they will surely intimated opposite party No.1 about the direction of this Commission and their inability to sent back the consignment due to that order from Consumer Commission. Hence opposite party No.2 can easily produce the documents and chat records or email communication between opposite party No.1 and them. More over opposite party No.2 can easily produce the documents regarding the freight charge to be collected from the complainant and the direction they received from opposite party No.1 regarding that. But opposite party No.2 did not mentioned anything about this in their version and affidavit.
17. From the above points it is clear that there is clear deficiency of service and unfair trade practice from the side of opposite parties. Even if there is no direct connection between complainant and opposite party No.2, but they are the intermediary who supplied the consignment sent by opposite party No.1 to complainant after receiving the freight charge of Rs. 10,260/-. They can easily settle the matter by connecting complainant and opposite party No.1. So opposite party No.2 is also deficient in their service. As per complainant‘s case, he is stated that he had paid Rs. 1,50,000/- in the name of Omex enterprises, but the consignment came from Maari Enterprises, New Delhi. Nobody will sent any item to anyone without getting money. So we are on the opinion that Maari Enterprises and Omex enterprises are one and the same. From Ext. A4, it is clear that the cost of the machine is Rs. 25,960/- including GST. But complainant paid Rs. 1,50,000/- to opposite party No.1 which is an exorbitant amount regarding the machine. If the cost of the machine is 1,50,000/- , then they will appear before the Commission and provide details regarding the machine. In Ext.A4 document, the amount mentioned is a small amount compared to the amount paid by the complainant to the opposite party No.1. Opposite party No.1 never appeared before the Commission to say that the machine they provided will cost Rs. 1,50,000/- or more. Hence we take the complaint filed by complainant is a true complaint and the machine given to complainant by opposite party No.1 which costs only Rs. 25960/- including taxes. So there is a clear deficiency of service and unfair trade practice from the side of opposite party No.1. Opposite party No.2 is a also deficient in their services provided to complainant even if they have no connection with opposite party No.1. It is unbelievable to take the contention raised by opposite party No.2 that they have no connection with opposite party No.1. It is their duty to contact the opposite party No.1 and informed them about the complaint filed the complainant. Hence we are on the opinion that they are well aware about opposite party No.1 and case of the complainant. So they are also liable in an indirect way. Hence we allow this complaint holding that opposite parties are deficient in service.
18. We allow this complaint as follows:-
- The opposite party No.2 is directed to hand over the product in their safe custody as per order in IA 245/2021 to complainant on free of cost and opposite party No.2 can contact opposite party No.1 for realising the freight charge and other expenses including handling charges , rent for keeping goods more than 15 days at their godown.
- The opposite party No.1 is directed to pay compensation of Rs.2,00,000/-(Rupees Two lakh only) to the complainant on account of deficiency in service on the part of opposite party No.1 and thereby caused mental agony, physical hardships and sufferings to the complainant.
- The opposite party No.1 is also directed to pay Rs. 5,000/-(Rupees Five thousand only) as cost of the proceedings.
If the above said amount is not paid to the complainant within 30 days from the date of receipt of copy of this order, the opposite parties are liable to pay the interest at the rate of 12% per annum on the said amount from the date of receipt of the copy of this order till realisation.
Dated this 30th day of September, 2022.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil
Documents marked on the side of the complainant : Ext.A1to A4
Ext.A1 :Photocopy of customer acknowledgment received by complainant while
transferring Rs. 25,000/- through NEFT by complainant to the account of
Omex Enterprises (Opposite party No.1) dated 15/02/2021.
Ext.A2: Photocopy of customer acknowledgment received by complainant while
transferring Rs. 1,25,000/- through NEFT by complainant to the account of
Omex Enterprises (Opposite party No.1) dated 26/02/2021.
Ext.A3: Photocopy of Bank account statement received by complainant from Urban
Co-operative Bank , Pertintalmanna branch Thachingnadam.
Ext.A4: Photocopy of tax invoice for Rs. 25,960/-given complainant dated
17/02/2021.
Witness examined on the side of the opposite party : Nil
Documents marked on the side of the opposite party : Nil
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
