DATE OF FILING: 03.05.2016
DATE OF DISPOSAL: 10.01.2018.
Dr. Alaka Mishra, Member (W)
The complainant has filed this consumer dispute under Section 12 of the Consumer Protection Act, 1986 alleging unfair trade and deficiency in service against the Opposite Party (in short the O.P) and for redressal of her grievances before this Forum.
2. Briefly stated the case of the complainant is that she being an unemployed graduate lady for self employment wanted to start a production unit in the name of Sobha & Sweta Enterprise of non-woven bags. Since there was ban of use of polythene in the state, the complainant was advised for development of non-woven bags which has demand in the market. In such a situation, the complainant approached the O.P. by running to Hyderabad and the O.P. assured for the same with minimum investment and to earn huge profits. Thereby the complainant was tempted for such a venture hoping for the best. The O.P. insisted for manufacturing non-woven bas of 22 inches which is marketable and accordingly the complainant agreed after knowing the same from the local market situation. The O.P. submitted the terms and conditions of the quotation on dated 27.02.2015. The complainant deposited Rs.7,65,000/- only and accordingly the O.P. dispatched non-woven bag making machine bearing No.53050090 on 22.04.2015 through vehicle No. AP-37-U-5506 vide Way Bill No. 21W-15086443830. The O.P. dispatched the voltage regulator and stabilizer vide way Bill No.21W-15120469945 dated 12.06.2015 for Rs.45,900/- only. The complainant had to make a total expense of Rs.3,67,060/- towards external electrification works besides Rs.1.00 Lakh for installation of electrical transformer. The complainant deposited Rs.66,300/- with the O.P. towards cost of compressor and Rs.6700/- towards transportation charges. Besides the above the complainant also paid Rs.14,000/- and Rs.15,000/- respectively towards transportation charges of machineries. The complainant paid Rs.25,000/- only towards installation charges and extra charges of Rs.3000/- towards the cost of spare parts. The complainant made expenditure of Rs.40,000/- only towards the cost of raw materials. Hence, she total paid an amount of Rs. Rs.9,42,120/- to the O.P. towards cost of machinery besides Rs.4,63,000/- for transformer and Rs.40,000/- as the cost of raw materials. To make viable of the unit the complainant had to raise loans from different sources as stated hereunder:
(i) Loan through District Industries Centre Rs.25,00,000/-
(ii) Personal loan. Rs. 5,00,000/-
(iii) Gold loan. Rs. 1,36,000/-
(iv) Gold loan. Rs. 93,000/-
(v) LIC policies premature surrender. Rs. 2,00,000/-
It is also alleged that through mutual consent, the O.P. promised for dispatching machineries for production of non-woven bags measuring 22 inches but while the complainant started the production, there was production of non-woven bags measuring 16 inches instead of 22 inches. The complainant ran to different establishments at the local market for marketing of said products but the same attracted no market though the non-woven bag of 22 inches are very much demand in the local market. It is submitted that the machinery dispatched by the O.P. can’t produce marketable size of 22 inches. The complainant intimated the above facts to the O.P. for replacement of the machinery for production of 22 inch bags but the O.P. neither take any action nor inspected or advised anything. For the non-actions of the O.P., the machineries are lying idle without any production. Due to deficiencies of services on the part of the O.P. the complainant has been harassment and suffered from mental agony. The complainant being a lady suffered losses due to unfair trade practice of the O.P and the complainant has been left isolated by the family members. The complainant was fully dependant on the income of the present project leaving the work of an agent of the LIC of India. The O.P. instead of dispatching the machineries in one transport services has carelessly dispatched in the transport services making the complainant heavy expenses towards transport charges i.e. Rs.1220, Rs.14,000/-, Rs.15,000/- and Rs.67,000/- respectively which otherwise leads to unfair trade practice, causing harassments. Similarly, the complainant paid Rs.25,000/- towards installation charges on 30.10.2015 whereas the O.P. deputed the engineer on 02.12.2015 after intervention of the police authorities of Berhampur. The complainant has filed this consumer dispute alleging unfair trade practice and deficiency in service on the part of the O.P. praying to direct the O.P. to replace with a conditioned machine for production of non-woven bags measuring 22 inches and to pay Rs.5.00 Lakhs towards compensation, alternatively refund the cost of machineries and to pay Rs.30,000/- as cost of litigation in the ends of justice.
3. Notice was issued against the O.P. but he neither chooses to appear nor filed any written version within the statutory period hence the O.P. was declared set exparte on 03.10.2016 and proceeded accordingly. However, the O.P. filed a set petition on 08.03.2017 through learned counsel Sri R.Venugoal Rao, Advocate, Berhampur to set aside the exparte dated 03.10.2016 but this Forum rejected the petition in view of Section 22-A of the Consumer Protection Act, 1986 and the matter was heard and decided exparte against the O.P.
4. On the date of exparte hearing of the consumer dispute, we have heard the learned counsel for the complainant at length and have gone through the complaint, written argument and other materials placed on the case record. During the course of hearing of the matter and on perusal of the materials placed on the case record, it reveals that the complainant deposited an amount of Rs.7,65,000/- only with the O.P. towards the cost of the non-woven machine vied way bill No.21W-15086443830 dated 28.4.2015. She also paid an amount of Rs.45,900/- for voltage regulator and stabilizer vide way bill No.21W-15120469945 dated 12.6.2015 and invoice No.025 dated 8.5.2015. Similarly, she also paid a sum of Rs.66,300/- for compressors of refrigerating equipment with was dispatched through way bill No.21W-15094985372 and also deposited an amount of Rs.6700/- towards delay collection charges vide Money Receipt No.HM246158 dated 30.5.2015. Besides, the complainant has also paid Rs.14,000/- and Rs.15,000/- towards transportation charges of the machineries, Rs.25,000/- towards installation charges and Rs.3000/- towards the cost of spare parts along with Rs.40,000/- as cost of raw materials. At the time of dispatch the O.P was agreed to supply machineries for production of non-woven bags measuring 22 inches but at the time of production it was produced 16 inches instead of 22 inches non-woven bags. It is also submitted that the complainant purchased the raw material according to the size of 22 inch machine and it was used in 16 inch machine then the cost of production will be very high due to wastage of raw materials. The machinery dispatched by the O.P. can’t produce non-woven bags of 22 inches but on repeated approaches to the O.P. there was no response as a result the machineries and lying idle. Due to non-description of production size of machineries the compliant could not distinguish the difference between non woven 16 inch bag and 22 inch bags. No materials produced regarding details of machineries which amounts to unfair trade practice and exploitation of complainant by the O.P. The O.P. is totally silent on the request for replacement of machine supplied hence she is suffering from harassment causing mental agony. In the foregoing context, the complainant has prayed before this Forum to direct the O.P. to replace the machine with a machine of 22 inch non-woven bag production instead of the present machine which produces 16 non-woven bags or to refund a sum of Rs.9,42,120/- besides Rs.4,63,000/- towards transformer and Rs.40,000/- towards cost of raw materials. However, on perusal of the materials placed on the case record, we confirmed that the complainant has paid an amount of Rs.7,65,000/- to the O.P. towards the cost of the non-woven machine vide way bill No.21W-15086443830 dated 28.4.2015, Rs.45,900/- for voltage regulator and stabilizer vide way bill No.21W-15120469945 dated 12.6.2015 and invoice No.025 dated 8.5.2015. Similarly, she has also paid a sum of Rs.66,300/- for compressors of refrigerating equipment vide way bill No.21W-15094985372 dated 9.5.2015 and also deposited an amount of Rs.6700/- towards delay collection charges vide Money Receipt No.HM246158 dated 30.5.2015. Hence, the complainant has paid a total amount of Rs.8,83,900/- to the O.P. to start her production unit in the name and style of Subha and Sweta Enterprises at Berhampur. In the above fact and circumstances, the O.P. though received the notice from the Forum but did not prefer to file his written version within the statutory period hence was declared exparte on 03.10.2016 and failed to contest this case. In the above peculiar fact and circumstances, in our considered view we would like to state that where no written version had been filed by O.P. to controvert the allegation of the present complainant, same is to be held correct. In this case the complainant has also filed an affidavit in support her case to prove her version true and correct. In the aforesaid peculiar fact and circumstances we are, therefore, no hesitation to hold that the O.P. is liable to replace the existing machine with a machine for production of 22 inch non-woven bag instead of 16 inch non-woven bags or to refund Rs.8,83,900/- to the complainant. We are not convinced to direct the O.P. to refund Rs.4.63,000/- toward transformer and Rs.40,000/- for cost of raw materials since there no proof of receipt of said amount by the O.P. Hence, the O.P. is liable to refund an amount of Rs. 8,83,900/- to the present complainant if failed to replace the machine as discussed above.
5. Similarly, in this dispute, the complainant has prayed direct the O.P to pay Rs.5.00 lakh towards compensation for causing harassment and mental agony to the complainant by the O.P. However, the complainant has not submitted any cogent and convincing documentary evidence of her loss and suffering but due to non production of industries and complainant could not make payment to the lone account, hence we are convinced to direct the O.P to pay a sum of Rs.20,000/- as compensation for harassment and suffering from mental agony which will be just and proper in the present and fact and circumstance. We are also convinced to consider the prayer of the complainant and agreed to award cost of litigation. As far as the cost of litigation is concerned, we feel that a sum of Rs.5,000/- will be just and proper as per the fact and circumstances of the case to be awarded as cost of litigation to be paid by the O.P. for compelling the complainant to file this consumer complaint with the help of a professional advocate to assert her rights. It is also a fact that the complainant has paid court fees and incurred expenditures for filing this consumer dispute. So, the O.P. is liable to compensate the legal expenses of complainant on payment of Rs.5,000/- as cost of litigation as quantified above. In the light of the foregoing discussion, deliberation and considering the fact and circumstances of the case, we allowed the case of the complainant against the O.P. to is liable to replace the machine as discussed or to refund the amount of Rs.8,83,900/- to the complainant along with compensation and cost as discussed above. Similarly, the complainant is also directed to return the existing 16 inch non-woven machine to the O.P. at the time of replacement or refund of the amounts by the O.P.
6. Resultantly, the complaint of the complainant is allowed against the O.P. who is liable to replace the existing machine with a machine of 22 inch non-woven bag production and or to refund an amount of Rs.8,83,900/- to the complainant. The O.P. is also directed to pay a sum of Rs.20,000/- toward compensation along with Rs.5,000/- as cost of litigation within two months from the date of receipt of this order failing which the complainant is at liberty to recover the whole amounts under Section 25/27 of the Consumer Protection Act, 1986. At the same time the complainant shall return the 16 inch non-woven machine to the O.P. at the time of replacement or refund of the amounts. The case of the complainant is disposed of accordingly.
7. The order is pronounced on this day of 10th January 2018 under the signature and seal of this Forum. The office is directed to supply copy of order to the parties free of cost and a copy of same be sent to the server of
