Date of Filing      : 19.03.2019

                                                                                                                 Date of Disposal: 24.06.2022

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

 

 BEFORE  TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law)                  .…. PRESIDENT

                 THIRU. J.JAYASHANKAR, B.A, B.L.                                                             ..… MEMBER-I

                 THIRU P.MURUGAN, B.Com,                                                                     ….. MEMBER-II

CC. No.16/2019

THIS FRIDAY, THE 24th DAY OF JUNE 2022

 

G.S.Satish, S/o.Sreepathi Chetty,

Prop“PowerPro Herbal Drinkz“

No.37, 1st Street, Secretariat Colony,

Chennai -600 010.                                                                              ……Complainant.

 

                                                 //Vs//

Prakash,

Prop“Ms.Sachsruthi Pack Systems“

Office No.1/255, Mogappair East,

Dr.J.J.Nagar, Chennai -600 037.                                                       …..opposite party. 

 

Counsel for the complainant                          :   M/s. V.Shankar , Advocate.

Counsel for the opposite party                       :   Mr.I.Jesu, Advocate. 

                         

This complaint is coming before us on various dates and finally on 08.06.2022 in the presence of M/s.V.Shankar Advocate, counsel for the complainant and the opposite party remaining absent for oral argument and upon perusing the documents and evidences, this Commission delivered the following: 

ORDER

PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI,   PRESIDENT.

 

This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986 alleging deficiency in service on the part of the opposite party in selling defective machines seeking direction to direct the opposite party for the following reliefs; 

a) to refund a sum of Rs.6,45,000/- being the cost price of the two machines with 18% interest per annum from 20.06.2017,  after taking return of the two Defective Machines, 

b) to pay a sum of Rs.36,000/- for the replacement of the defective parts in the FFS machine, to refund a sum of Rs.2000/- for replacing the toggle switch in the Liquid Filling Machine, 

c) to refund a sum of Rs.6,300/- towards insurance amount, 

d) to refund a sum of Rs.20,737/- for consolidated charges, 

f) to pay a sum of Rs.5,00,000/- as compensation, for mental agony and hardship and to pay a sum of Rs.50,000/- towards cost of this proceedings.

Summary of facts culminating into complaint:-

 

The present complaint has been filed by the complainant alleging deficiency in service on the part of the opposite party in selling defective “Pneumatic Form Filling Machine” & “Semi-Automatic Volumetric Liquid Filling Machine” for Rs.6,45,500/-.  It is the case of the complainant that the opposite party assured to supply a machine which can seal Paper Aluminum Poly Foil (Pneumatic Type Automatic Form Fill & Seal Machine) which matched the complainant’s requirements, yet the opposite party chose to test the machine sealing with Pet Aluminum Poly Foil.  When the complainant questioned the opposite party he came with some lame duck excuses by explaining that both the materials are similar in their functionality.  The complainant took delivery of the Pneumatic Type Automatic Form Fill & Seal Machine on 23.06.2017 after testing with trail samples using Paper Aluminum Poly Foil without printing and hence the trial samples did not have the “Date” printed.  However the opposite party instructed the complainant to bring final printed packaging material so that flaws can be set right at the time of installation when the final printed material is ready. The complainant states that the printed foils got delayed due to the manufacturing defects –misalignment of chute in the “Pneumatic Form Filling Machine”.  The complainant conveyed the issue to the opposite party that he had requirement for multi head volumetric filling machine and for which the opposite party told that he has not even heard of a multi head volumetric filling machine till that date but volunteered to develop a multi head volumetric filling machine, if the complainant provides the concept/design for the same. After mutual consent between the complainant and the opposite party it was agreed that the machine shall be made with 81 nozzle filling station and with 2 shuttling trays with the provision for removable trays and that the machine shall be provided with 1/2 Hp S.S. feeding pump and with 3 spare removable trays.  The price was finalized for multi head volumetric filling machine for Rs.2,00,000/- and the additional tray to be charged at Rs.3,000/-  per piece and the opposite party issued Pro-Forma invoice and the same was presented to the bank by the complainant.  The opposite party demanded minimum amount of 1.5 lakhs to deliver the multi head volumetric filling machine to the complainant and the complainant paid Rs.1.5 lakhs as advance to the opposite party.  However, the opposite party also persuaded the complainant to spend Rs.10,000/- for modifying the machine for using Nitrogen and Rs.5000/- for reprogramming but no bill was issued for the same.  To execute the pending orders the opposite party deputed his associate and charged Rs.1500/- per day for production of printed packets, but the machine was not properly installed and the complainant had to pack the pouches without date.  The opposite party has neither installed the machine at the complainant’s premises nor proceeded to demonstrate as to how the machine should be operated in spite of receiving full payment. The top paper feeding unit was not functioning well, for which electrical/electronic parts were replaced and further rubber bands were used to control the film from rolling down and the same has not been rectified till date.  The complainant submitted that the defect of the machine is as follows;

Toggle switch in the Peristaltic controller was broken while in transit;

5 pumps were volumetrically defective;

On 27.03.2018 the silicon tube was replaced;

Leak from the New Stainless Steel tank and the nozzle;

On initiating the machine for continuous production, the complainant found that the machine was totally defective and the dispensing system did not perform to the extent stated by the opposite party.

On 28.04.2018 the opposite party visited the complainant’s premises and inspected the machine and found that the defects pointed out by the complainant were genuine one and agreed for replacement of machine.  However the opposite party demanded extra amount for replacing the machine.  Thus the complainant submitted that the opposite party failed to comply with the expectation of the complainant i.e.by delivering both the FFS and Liquid Volumetric Filling machines which were inherently manufacturing defects.  Thus alleging deficiency in service the present complaint was filed for the following reliefs;

To refund the sum of Rs.6,45,000/- being the cost price of two Defective Machine with 18% interest per annum from 20.06.2017, after taking return of “Two Defective Machines” delivered to the complainant vide invoice No.335, Vide Pro-Forma Invoice No.52;

To pay a  total sum of Rs.36,000/- towards the cost paid to the opposite party for the replacing the defective parts in the FFS machine;

To refund Rs.2000/- for replacing the toggle switch in the Liquid Filling Machine;

To refund a sum of Rs.6300/- towards, insurance amount likely to be debited from the complainant’s account by the banker for the period from 2019-2020, 2020-2021, 2021-2022;

Consolidated charges of a sum of Rs.20,737/- debited by its bankers towards Loan Account;

To Pay a sum of Rs.5,00,000/- as compensation for mental agony and hardship;

To Pay a sum of Rs.50,000/- for cost of the proceedings

Defense of  Opposite Party :-

The opposite party filed version denying the allegations made by the complainant contending interalia that the relief claimed by the complainant is not maintainable before this Consumer Commission among other grounds.  The opposite party submitted that the supplied machine was tested before delivery and that the complainant started using the machine for production thus the complainant acknowledged that the machine supplied was proper.  The machine was completely tested with trail samples using paper aluminium poly foil.  It is also submitted that the complainant has due and liable to pay the balance purchase money of Rs.4,00,000/- and a Police Complaint was also lodged by this opposite party on 01.08.2018.  It is submitted by the opposite party that there was mutual oral understanding between the parties for the delivery of machine on or before 21.12.2018 but the complainant forcibly took the machine during March 2018 itself.  Thus, contending that the allegations of manufacturing defects in the machine supplied by the opposite party as false sought for the dismissal of the complaint.

On the side of complainant proof affidavit was filed and documents were marked as Ex.A1 to A8. On the side of opposite party Ex.B1 and B3 was marked along with proof affidavit. 

 Point for consideration:

Whether the complainant is successful in proving his complaint allegations by producing proper evidence before this Commission with regard to the alleged deficiency in service on the part of the opposite party?

If so to what relief the complainant is entitled?

 Point No.1&2:

On the side of the complainant following documents were filed in support of his allegations;

Quotation issued by the opposite party to the complainant dated 17.06.2017 was marked as Ex.A1;

Receipt issued by the opposite party on 20.06.2017  was marked as Ex.A2;

Receipt issued by the opposite party on 21.06.2017 was marked as Ex.A3;

Invoice issued by the opposite party dated 23.06.2017 was marked as Ex.A4;

Pro-Forma invoice issued by the opposite party dated 15.11.2017 was marked as Ex.A5;

Bank statement was marked as Ex.A6; 

Legal notice issued to the opposite party by the complainant dated 12.07.2018 was marked as Ex.A7;

Un-served cover was marked as Ex.A8;

On the side of the opposite party the following documents were filed in support of their defence;

Police complaint lodged by the opposite party dated 01.08.2018 was marked as Ex.B1;

CSR copy issued by the J.J Nagar Police Station was marked as Ex.B2;

Legal notice issued by the opposite party dated 12.07.2018 was marked as Ex.B3;

Heard the arguments adduced by the learned counsel for the complainant and inspite of sufficient opportunities the opposite party did not turn up.  Hence this Commission with no other option was constrained to consider the written arguments filed by the opposite party as oral arguments to decide the case on merits. The learned counsel for the complainant in answering to the defence put forth by the opposite party argued that it is made loud and clear that the relationship between the complainant and the opposite party is that of a consumer vis-a vis service provider and the opposite party has saddled 2 defective machines hence the proceeding on hand is a classic case of deficiency in service.  Further he also denied that the complainant has not paid the balance sum as averred by the opposite party in their written version.  Further he argued that even as per version of the opposite party the FFS machine was only tested in their premises and not rigorously tested for uninterrupted commercial production, hence the FFS machine became dysfunctional.  When the employee attached with the opposite party initiated the machine for uninterrupted production, the machine encountered series of snags which were irretrievable in spite changing all the necessary parts. It is strongly submitted by the complainant that pre delivery testing was made only with Pet Aluminum Ploy Foil and not with Paper Aluminum Poly Foil which is requisite for the complainant.  He also argued that what prompted the opposite party to get order for the Semi-automatic liquid filling machine.  He also submitted a sum of Rs.4,09,500/- was credited into the opposite party’s bank account on 26.07.2017.  Further he submitted that even though the Semi-automatic volumetric liquid filling machine was delivered on 23.03.2018 till date the opposite party had failed to give the mandatory invoice to avoid remittance of 18% GST collected that is legally payable to the Government. Thus answering to all the defence raised by the opposite party the learned counsel for the complainant sought for the complaint to be allowed.

In the written argument submitted by the opposite party, opposite party submitted that the consumer complaint is not maintainable and only a Civil Court would be the proper Forum to be approached by the complainant for this consumer case.  The opposite party submitted that the machine before being delivered to the complainant was completely tested with trial samples using paper aluminium ploy foil.  It is further submitted that when the balance amount was claimed by the opposite party the complainant started telling various false reasons and malafidely averring that the machine supplied was not working properly in order to avoid the payment of balance amount. Further it is submitted if at all the defective machine was not working then the complainant ought to have returned the defective machine to the opposite party but the complainant was continuously using the machine and making productions and supplying the same to his customers. In respect of the machine supplied by the opposite party, the complainant is due and liable to pay the balance money of Rs.4,00,000/- for which a police complaint was also lodged by the opposite party on 01.08.2018.  Thus the opposite party sought for the dismissal of the complaint.

On perusal of all the contentions and evidences produced by both the parties, the complainant had submitted documents in support of his contentions that he had purchased the machine from the opposite party vide receipt issued by the opposite party Ex.A1 to Ex.A3. Further invoices issued by the opposite party dated 23.06.2017 and 15.11.2017 was also submitted by the complainant. The Bank statement was also submitted in proof of payment of money.  At this juncture, it is necessary to consider that the primary allegation put forth by the complainant was with regard to the manufacturing defect in the machine purchased by the complainant.  In such circumstances not even a single document was produced by the complainant to prove the same.  There is no evidence to show that the defective machine was either sent for any repair work or it was returned to the opposite party contending that it was fraudulently supplied to him against his requirements.  The complainant has also not taken any steps to make necessary arrangements for inspecting the subject machine by any experts through Court to cull out the defects in the machine.  On this score we have no other option but to conclude that the complainant had not taken any steps to prove his complaint allegations.  Thus we hold that the complainant has miserably failed to produce necessary evidence in proof of his allegations setforth in the complaint. Further the opposite party also submitted that there was some money due from the complainant which aspect could not be decided before this commission. In such circumstances we hold that the complainant has failed to prove the alleged deficiency in service and hence the complaint is liable to be dismissed and complainant not entitled to any reliefs. Hence we answer the points accordingly.

In the result the complaint is dismissed.  No order as to cost. 

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 24th day of June 2022.

 

        -Sd-                                                      -Sd-                                                 -Sd-                                                 

 MEMBER-II                                           MEMBER-I                                     PRESIDENT

 

List of documents filed by the complainant:-

 

Ex.A1 17.06.2017 Quotation issued by the op. Xerox

Ex.A2 20.06.2017 Receipt issued by the op. Xerox

Ex.A3 21.06.2017 Receipt issued by the op. Xerox

Ex.A4 23.06.2017 Invoice issued by the op. Xerox

Ex.A5 15.11.2017 Pro-forma invoice issued by the op. Xerox

Ex.A6 …………. Bank statement. Xerox

Ex.A7 12.07.2018 Legal notice issued to the op. Xerox

Ex.A8 …………… Un-served cover. Xerox

 

  List of documents filed by the opposite party:- 

 

Ex.B1 01.08.2018 Police complaint. Xerox

Ex.B2 ........... CSR copy. Xerox

Ex.B3 12.07.2018 Legal notice issued by the op to the complainant. Xerox

 

 

      -Sd-                                                 -Sd-                                                          -Sd-

MEMBER-II                                      MEMBER-I                                          PRESIDENT