Andhra Pradesh

Visakhapatnam-II

CC/122/2010

M/s Lanka Venkateswarlu and Company - Complainant(s)

Versus

Power Track - Opp.Party(s)

Lanka Jagannadham

25 Feb 2015

ORDER

                                             Registration of the Complaint:01-04-2010

                                                                              Date of Order:25-02-2015

BEFORE THE DISTRICT CONSUMERS FORUM-II:AT VISAKHAPATNAM

                   Present:

1.Sri H.ANANDHA RAO, M.A., L.L.B.,

       President

2.Sri C.V.N. RAO, M.A., B.L.,

                                             Male Member

3.Smt.K.SAROJA, M.A., B.L.,

       Lady Member

 

WEDNESDAY, 25^TH DAY OF FEBRUARY, 2015

        CONSUMER CASE NO.122/2010

 

 

BETWEEN:

 

M/S LANKA VENKATESWARLU & CO.,

SOLE PROPRIETARY CONCERN, REP. BY ITS SOLE

PROPRIETOR SRI LANKA JAGANNADHAM,

S/O LATE VENKATESWARLU, ADVOCATE, 17,

RAJENDRA NAGAR, VISAKHAPATNAM-16.

 

                                                                                      …COMPLAINANT

A N D:

 

1.POWER TRACK, D.NO.74-12-3, NEAR RTC COLONY ROAD,

OPP:AUTO NAGAR, PATAMATA, VIJAYAWADA-520007.

2.P.Y.N.RAO, C.E.O., POWER TRACK, D.NO.74-12-3,

NEW RTC COLONY ROAD, OPP:AUTONAGAR,

PATAMATA, VIJAYAWADA-520 007.

 

          …OPPOSITE PARTIES

 

This case coming on 10-02-2015 for final hearing before this Forum in the presence of M/S LANKA VENKATESWARLU & CO., Advocate for the Complainant and of SRI M.V.JAGANNDHA RAO, Advocate for the 1^st and 2^nd Opposite Parties, and having stood over till this day for consideration, the Forum made the following:

 

O  R  D  E  R

(As per the Honourable President on behalf of the Bench)

1.       This complaint is filed by the Complainant against the Opposite Parties directing them to supply 45KVA D.G.Set  for C.P.C.B. approved acoustic enclosure, powered by KIRLOSKAR ENGINE MADE MODEL HA 494 TC cable of developing 56 BHP at 1500 RPM coupled with Kirloskar Make Alternator, 45 KVA/36 KW, 3 phase, 415 volts, 50 cycles with A.M.F. Control Panel, Fuel Tank battery with leads and other standard accessories for Rs.4,68,000/- includes tax and duties as agreed to supply and commission it to his satisfaction or in the alternative to pay Rs.15,00,000/- for deficiency of service with costs.

 

2.       The case of the complainant in brief is that the complainant is an Advocate at Visakhapatnam and the OP on 19-03-2008 received an amount of Rs.35,000/- by means of a cheque bearing No. 19652 dated 19-03-2008 as advance for 45 KVA Diesel Generating set, 3 phase and issued a receipt bearing No.687 and on 29-03-2008 under Receipt No.196538 by quotation dated 13-03-2008 in his letter dated 16-07-2008, the OP informed him (we thank you very much for your enquiry. We are hereby enclosed offer for the above diesel generating set power by Kirloskar Engine) for supply of 45KVA generating set, the OP issued proforma invoice on 29-03-2008 and the 45KVA DG Set for CPCB  approved acoustic  enclosure, powered by Kirloskar Engine  made model HA 494 TC cable of developing 56 BHP at RPM  coupled with KIRLOSKAR make alternator 45 KVA/36 KW, 3 phase 415 volts for Rs.4,68,000/- which amounts to including tax and duties and promised to deliver the set in 10 days from the date of receipt of payment and the OP personally inspected  his premises and instructed the civil works that had to be done and he has completed the civil works then itself. But so far as the same was not supplied on one pretext or the other. In spite of his contacting on number times. finally, addressed a letter dated 10-03-2010 which was received by OP on 12-03-2010 but the generator set has not been supplied which indicates clear deficiency of service. Hence, this complaint.

3.       The case of the Opposite Party admitting the payment of Rs.2,80,800/- denied all the material averments of the complaint, they submitted that the cost of the aforesaid generator is Rs.4,68,000/- but the complainant asked extra accessories costing Rs.81,000/- which comes to Rs.5,49,000/- and the accessories were already supplied on 19-04-2008 in the complainant premises for the subject matter, the complainant was silent. According to the terms and conditions in payment column initially, the complainant has to pay 25% towards advance and later on 60% against proforma invoice and remaining 15% on commission at their site, but the OP’s marketing executive promised the complainant to install the said machine on payment of 25% advance + 65% 2^nd payment and later 10%.

4.       The complainant sent only an amount of Rs.2,80,800/-  i.e., not even 52%. According to them, minimum 85% payment has to be made to install the said machine but complainant paid less than 52%. Therefore, the complainant is not entitled to claim the above said generator until and unless the requested payment is not made, due to the act of the Complainant, they incurred heavy loss. If the customer is not prompt in payment, the relationship of OP and machine manufacturing company will be deteriorated and their reputation will be tainted. Due to the act of the complainant, their repudiation was lost. Finally, the OP stated that they are ready to supply the said generation if the complainant complies his duty according to the terms and conditions of the transaction. Till today, they are anticipating the remaining payment form the complainant. There are no merits in the case of the complainant and therefore, it is liable to be dismissed.

5.       To prove the case on behalf of the complainant, he filed his affidavit and  got marked Exhibits A1 to A6. On other hand, on behalf of the OP, they filed affidavits. No documents are marked.

6.       Exhibit A1 is the Receipt bearing No.687 dated 19-03-2008, Exhibit A2 is the Receipt No.684 dated 29-03-2008, Exhibit A3 is the quotation dated 13-03-2008, Exhibit A4 is the proforma invoice, dated 29-03-2008, Exhibit A5 is the letter addressed to the OP, dated 10-03-2010, Exhibit A6 is the postal acknowledgement dated 12-03-2010

7.       Both parties filed their written arguments.

8.       Heard oral arguments from both sides.

9.       Now the point for determination to be determined in this case is;

Whether there is any deficiency of service on the part of the OPs and the Complainant is entitled to any reliefs asked for?

10.     The main dispute between the complainant and the OP is payment and installation of aforementioned generator. According to the complainant, he had paid more than 52% in total payment of the generator but the generator was not supplied.  The OP’s contention is that according to their business terms and conditions, the complainant has to pay 85% of the total amount of the said generator, which was agreed by the complainant at the time of entering into contract but he has not paid. As such, they have not supplied the generator.

11.     It is an admitted fact as seen from the record that the OPs received Rs.35,000/- + Rs.2,45,800/- = Rs.2,80,800/-  vide Exhibit A1 and A2 towards supply of 45KVA diesel generating set and vide Exhibit A5 Notice, the complainant demanded the OP for supply of the aforesaid generator failing sought for damages and it was duly received by the OP vide Exhibit A5 letter and A6 Acknowledgement. Exhibit A3 and A4 are proforma invoice dated 23-09-2008 addressed by OP 2 to the complainant which reveals the terms of business. It indicates that delivery, payment, warrnaty etc., it goes to show that the unit price is Rs.4,68,000/- and inspite of payment of 100% as in advance before dispatch. 

12.     Now, it is to be seen whether both parties have complied the aforesaid terms and conditions. According to OP, if the complainant paid their payment in time as stipulated in Exhibit A3, they would have supplied the machine without fail and as the complainant has not paid according to the terms and conditions, he has no right to claim the interest paid on the amount. Admittedly, the complainant has not paid the total amount as stipulated in Exhibit A3. It is already noted that the complainant paid an amount of Rs.52% only towards advance. Exhibit A3 shows 100% amount has to be paid as in advance before dispatch, since the complainant has not paid the entire amount as stipulated in Exhibit A3 it cannot be held that there are no latches on the part of the OP. However, it is the duty of the OP to respond when the complainant has not paid the amount. Keeping the amount with him years together much less even after receipt of Exhibit A6 notice, it can be held that with the money of the complainant, he is carrying business. He ought to have return or atleast make correspondence with the complainant to send back the amount which he received. The way in which the OP kept the amount of the complainant with him, the complaint is entitled for interest for the said amount. If the complainant has got the said amount in bank deposit, he earns interest not less than 12% depending upon the nature of the investment but in the business, the OP may earn return atleast more than 20%. Having regard to all these facts and circumstances, we are of the considered view that the complainant is entitled for refund of the amount of Rs.2,80,800/-.  including interest @ 12% p .a., from April, 2008 onwards.

12.     Before parting our discussion, it is incumbent and imperative on our part to consider the costs of litigation.  The Complainants ought not have to approach this Forum had his claim for refund of the advance amount of Rs.2,80,800/- or reliefs sought for have been honored by the Opposite Parties within a reasonable time and in view of the matter, the Complainant’s claim for costs deserves to be allowed.   In our considered and unanimous opinion, awarding a sum of Rs.5,000/- as costs would appropriate and reasonable.   Accordingly costs are awarded.

13.     In the light of our discussion, referred supra, the complainants are entitled to receive the sum of Rs.2,80,800/- (Rupees Two Lakhs Eighty Thousand And Eight Hundred Only) together with subsequent interest @ 12% p.a., from April, 2008 till the date of realization and costs of Rs.5,000/- to the Complainant.

14.     In the result, this complaint is allowed, directing the Opposite Parties to pay Rs.2,80,800/- (Rupees Two Lakhs Eighty Thousand and Eight Hundred Only) together with subsequent interest @ 12% p.a., from April, 2008 till the date of realization and costs of Rs.5,000/- (Rupees five thousand only) to the Complainant.  Time for compliance, one month from the date of this order.

Dictated to the Stenographer, transcribed by him, corrected and pronounced by us in the open Forum, on this the 25^th day of February, 2015.

     Sd/-                                            Sd/-                                       Sd/-

LADY MEMBER                        MALE MEMBER                       PRESIDENT        

 

APPENDIX OF EVIDENCE

For the Complainant:-

 

Exhibits	Date	Description
A-1	19-03-2008	Original of Receipt No.687
A-2	29-03-2008	Original of Receipt  No.684
A-3	13-03-2008	Original Quotation
A-4	29-03-2008	Original Proforma Invoice
A-5	10-03-2010	Office copy of my letter
A-6	12-03-2010	Original Postal Acknowledgement

 

For the Opposite Parties:-              -nil

      Sd/-                                             Sd/-                                         Sd/-

LADY MEMBER                            MALE MEMBER                        PRESIDENT