SMT. RAVI SUSHA: PRESIDENT
Complainant has filed this complaint U/s 12 of Consumer Protection Act 1986, for getting an order directing opposite party to pay a sum of Rs.10,05,000/- with interest at the rate of 18% per annum from 16/10/2015 till realization together with a sum of 1,00,000/- towards compensation for mental agonies suffered by the complainant and hardships caused due to the violation of agreement by opposite parties and Rs.5,00,000/- towards compensation for loss in view of the failure to perform the agreement and also cost of the proceedings of this case.
The dispute in this case related to purchase of machineries by the complainant from its manufacturers OP No.2 to start a tyre retreading shop under small scale Industrial scheme. A loan of Rs.9,04,000/- was advanced to the complainant by the Canara bank, Mattannur under prime Ministeres Mudra Financial Scheme, to finance this purchase
The case of the complainant is that as directed from the Industrial centre, the complainant had identified a plot of 12 cents of land in Pazhassi village, Mattannur for housing the tyre rethreading centre. As recommended by the Industrial centre, Kannur the complainant had approached the canara Bank authorities, Mattannur for availing loan facilities for commencing Industrial Unit. The bank authorities were pleased to sanction the loan under Prime Ministers Mudra Financial Scheme. Accordingly a loan amount of Rs.9,04,000/- was sanctioned to the complainant as a loan for purchasing necessary machineries and other equipments. Complainant further submitted that he had completed the construction of the building at Mattannur and got electricity connection and arranged all other facilities for starting the establishment. Immediately after the sanction of the loan the petitioner has placed an order with the OPs for supplying 18 items of machineries and other equipments required for the concern. The OPs had agreed to deliver the equipments and other machineries at mattannur within one month from the date of order. Accordingly the complainant had paid an advance amount of Rs.1,50,000/- to the OP and the complainant had informed the OPs that the balance mount would be paid through the bank from the loan amount. As per this understanding the canara bank Mattannur had credited an amount of 9,04,000/- to the account of the OP Federal bank, Main Branch, Coimbatore on 09/10/2015. But the OPs had not supplied the machineries as demanded by the complainant within the said period of one month. So the complainant along with his father had contacted the OP on several occasions and over phone and requested the OPs to deliver the equipments without further delay. On all such occasions the OPs had promised that they would deliver the article within few days. At last OPs delivered only a two tyre electric chamber against item No.1 in the quotation. This equipment was delivered on 02/01/2016. This is not in accordance in size, capacity and price. Except this electric chamber no other items are supplied to this complainant without delivering the equipment, further the OP had returned an amount of Rs.49,000/- to the complainant in the month of October 2015. The OPs had already collected the entire amount form the complainant. After receiving the amount the OPs had not cared to deliver the articles and to complete the installation on work within time.
Now the complainant is in receipt of notice from the bank for repaying the loan and to inform the commencement of the commercial production in the unit. Since the respondent had failed to supply the materials, the complainant could not commence the commercial production. The complainant suffered lots of monetary loss and mental agonies also. Hence filed this complaint.
In response to the above, OP took the stand that the complainant approached OPs for the purchase of Automotive five tyre electrical chamber with ring type pneumatic lock with timer, Hooter and inbuild type loading and unloading systems, tyre buffer without stand and submersible pump as per the quotation given to the OPs dated 17/01/2015. The quotation given by the complainant were accepted by the OPs vide Quotation No.387/2014/2015. As per the quotation, the OPs issued letter to the complainant briefing the types of machineries which can be delivered to him and the terms and conditions of the delivery and the amount to be paid to the OPs towards cost of the machineries. The amount quoted as per quotation was Rs.8,06,195/-. The OPs admit that an amount of Rs.9,04,000/- was credited to the account of the OPs by the complainant on 09/10/2015. The OPs deny the averment in the complaint that he had given a sum of Rs.1,50,000/- directly towards advance to the OPs. The OPs received a sum of Rs.50,000/- only towards advance and not Rs.1,50,000/- as stated by the complainant. Further the OPs deny the averment tin the complaint that the complaint placed an order for the supply of 18 items of machineries. The OPs emphatically say that they had delivered all the machineries quoted in the quotation without delay to the complainant. They had no liability to supply any other machines to the complainant. Now the entire machineries supplied by the OPs are in the possession of the complainant. The OPs deny the averment that they had delivered two tyre electrical chamber to the complainant. Further stated that towards the hand loan advanced to the complainant, the 1st OP issued three cheques, two of them for Rs.49,000/- each drawn on the Federal Bank Ltd. Bearing NO.10208325 dated 14/10/2015 and the other bearing No.10208324 dated 16/10/2015. The 3rd cheque also was drawn on the same bank bearing No.10208326 dated 20/10/2015 for a sum of Rs.43,172/-. On 01/01/2016 as per invoice No.21 of the OPs, the machines were supplied to the complainant. By this time the value and cost of production increased and the value of the machines supplied to the complaint as on 01/01/2016 come to Rs.8,22,195/-. The balance amount was entitled to the complainant. The OPs tendered the balance amount to the complainant by cash and the same was received by him. The OPs further submit that they are not at all responsible for the non-payment of the loan amount or the non-commencement of the firm of the complainant. The OPs are not responsible for the loss if any sustained to the complainant. Hence prayed for the dismissal of the complaint.
Both parties led their evidence. On the side of complainant, he has filed chief affidavit and Exts. A1 to A4. On the side of OP, the proprietor of OP Mr.Prajith has filed his chief affidavit and documents Ext.B1 to B3 and Ext.C1. Both witnesses were cross-examined for the other party. On the side of OP the Advocate commissioner, who prepared Ext.C1 was examined as Dw2 and was a subjected to cross-examination for the complainant.
After that the learned counsel for the complainant filed argument note and the learned counsel of OP made oral argument.
The admitted facts in this case for doing the tyre rethreading centre, complainant availed loan from canara Bank, Mattannur branch under Prime Ministers Mudra Financial scheme and accordingly a loan amount of Rs.9,04,000/- was sanctioned to the complainant for purchasing necessary machineries and other equipments.
Complaint’s case is that after the sanction of the loan, he has placed an order with the OPs for supplying 18 items machineries worth Rs.1,34,160/- and other equipments on 17/01/2015 and also paid an advance amount of Rs. 1,50,000/- to OP and the balance amount was paid through canara bank Rs.9,04,000/- on 09/10/2015. Complainant alleged that after collecting the entire amount, OP has not supplied that machineries within the period of one month. So he contacted many times and at last on 02/1/2016, OPs delivered only two tyre electric chamber against three tyre electic chamber as given in the quotation. Further alleged that except the electric chamber, no other items are supplied by the OP and also the delivered equipment is not in accordance in size, capacity and price. So the complainant could not commence the electric unit. For proving the items books he had produced quotation No.389/ 2014-2015 and marked it as Ext.A1.
On the other hand OPs contended that the complainant had approached them for the purchase of Automotive five tyre electrical chamber with ring type pneumatic lock with timer, Hooter and in built tyre loading and unloading systems, tyre buffer without stand and submersible pump as per the quotation given to the OPs dated 17/01/2015 and it was accepted by them vide quotation No.387/2014/2015. Further contended that as per the quotation OPs issued letter to the complainant stating the type of machineries and terms and conditions of the delivery and the amount to be paid to them towards the cost of the machineries. OPs submits that the amount as per the quotation placed was Rs.8,06,195/-.
According to OPs, the complainant had sent only Rs.50,000/- only towards advance payment and through bank (loan) sent an amount of Rs.9,04,000/-.
OPs strongly submitted that the complainant has not given an order to them for the supply of 18 items of machineries as per Ext.A1 as alleged by the complainant and also denied the averment of complainant that OP had delivered two tyre electrical chamber to the complainant. According to OPs, they had given three tyre electrical chamber with other equipments on the month of January 2016 as per Ext.B2 quotation No.387/2014-15. OPs contended that they had refunded the excess amount through three cheques of Rs.49,000/- on14/10/2015 vide cheque No.10208325, Rs.49,000/- vide cheque No.10208324 dated 16/10/2015 and Rs.43,172/- through cheque No.10208326 dated 20/10/2015. For proving the said contention OP produced Ext.B3 the bank statement of Federal Bank for a period between 01/02/2015 to 28/02/2015. OPs further submitted that as per invoice No.21 dated 01/01/2016 they had delivered the machineries to the complainant. Here both parties failed to submit the invoice of supply of machineries before us. The said document invoice is the concrete proof of evidence to prove the case, because the main dispute between the parties is with regard to delivery of items. The onus of proof lies up on the complainant to prove this averment by substantial evidence. Ext.A1 quotation No.389/2014-15 submitted before OPs alone is not sufficient. Further complainant alleged that he had paid Rs.1,50,000/- to OP, out of which Rs. 1,00,000/- through directly and Rs.50,000/- through cheque. Ext. B3 shows that on 16/02/2015 complainant Mr. Mithun has sent Rs.50,000,/- to OPs through cash. Here also complainant failed to produce any material evidence (receipt etc) to prove his contention about payment of Rs.1,00,000/- to OPs.
In this contest, we have to find out the point that what are the items supplied by OPs to complainant and also what amount was with the hand of OP as cost of the machineries?
From the evidence adduced from the side of both parties we are unable to find out the plea. In the instant case, while pending the case, complainant has taken steps to appoint an Advocate Commissioner and Advocate P K Sajeevan was appointed an advocate commissioner. Advocate commissioner inspected the premises of complainant after serving due notices to both parties and filed report with photos. The report is marked as Ext.C1. On the side of OPs, the advocate commissioner is examined as Dw2. The advocate commission report is the only proof to find out the type of machineries and equipment supplied by the OPs and other connected points. The advocate commissioner has reported that during inspection he could see a 5 tire electric chamber fastened on the earth, which is having automatic lock. The company name plate was removed on both side of the electric chamber. The screw hole of the electric chamber will reveal that the name board of the machine was removed recently. Moreover, the Motor which was used for working the electric chamber was also removed recently by cutting the electric wire. The inner part of the machine will show that it was constructed by Sree Krishna Electronics which is having number SN 598D/Y24/12/11. The type of machineries is affixed as TYPE 3T/15KW/5HP/RUB. No other number or writings are available in the above machine. Even though, commissioner directed to take an inventory of the machines kept in the room except the above said electric chamber all the other equipments and machines are not belongs ot the OP as admitted by them. The other machine kept in the room of the complainant is the following: Air compressor, Tyre changer, Electrical unit boxes two numbers, Rolling machine and 1 Generator. As per the admitted case of the OP these items are not belongs to them. The OP has stated that some of the items were removed by the complainant even before the inspection.
On the testimony of Dw2 it is revealed that he has categorically deposed that he had seen 5 tyre electric chamber at the premises without seal and number and also the motor electric wire was seen cut from the connection. Further during cross-examinations stated that the screw was removed recently.
On analyzing the evidence of advocate commissioner, we can reveal that the company name, the motor which was used for working the electric chamber were removed recently before the inspection of the commissioner. Moreover commissioner reported that all other equipments and machines seen at the premises were not belongs to OPs. The complainant has not contended that he had purchased equipments and machines from other company. Further commissioner reported that OP has stated that some of the items were removed by the complainant before the inspection of the Advocate commissioner. Stating into consideration of Advocate commissioner’s opinion, it is seen that the name plate of the electric chamber, motor, and some of the items were removed by the complainant before the inspection of the commissioner. More over the machine supplied by the OPs was a 5 tyre electric chamber.
From the above said facts it is obvious that the machine supplied by Opposite parties to complainant was as per Ext.B2 quotation ie 5 tyre mode. Further the complainant’s averment that opposite party had supplied 2 tyre model is not correct. Further from Ext. B3 statement, complainant has given only Rs.50,000/- as advance payment to opposite party and the Opposite parties had returned Rs.49,000+ Rs.49,000+ Rs.43,172 in three times to complainant through the cheques the excess amount collected . Hence we are of the view that there was no deficiency in service on the part of Opposite parties and Opposite parties are not liable for the non-functioning of the industrial unit of the complainant and the financial liability happened to the complainant.
In the result the complainant failed to prove his case and hence the same is dismissed. No order as to cost.
Exts
A1-Quotatin dated 17/01/2015(subject to proof)
A2-Letter issued bank manager to OP No.2 (subject to proof)
A3-Reply notice by OP No.2
A4-Copy of FIR (subject to proof)
B1-Lawyer notice
B2-Copy of quotation No.387/2014-15(marked subject proof)
B3-Statement of accounts Federal Bank (marked subject proof)
C1-Advocate Commission report (marked subject proof)
Pw1-Complainant
Dw1-OP
Dw2-P K Sajeevan-Advocate commissioner
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forward by order/
Assistant Registrar
