DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , 

AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144

             C.C. CASE NO. 46_ OF ___2018

DATE OF FILING :11.4..2018                  DATE OF PASSING JUDGEMENT:  15.1.2019

Present :   President       :     Ananta Kumar Kapri

    Member(s)    :     Subrata Sarker   & Jhunu Prasad    

COMPLAINANT : Anjana Mondal, Prop. Of Anjana Food, at M.N. Roy Road, P.O Rajpur, P.S Sonarpur, Kolkata-149, Dist. South 24-Parganas.

-    VERSUS  -

O.P/O.Ps :   Rising Industries, office at Tanushree Apartment (Gr. Floor), Ghosh Duttapara, (Opp. Of Honda Service Centre), Jhawtala, Hatiara, Teghoria (Near Lokenath Mandir),Kolkata- 157, represented by its Managing Partner Mr. A.K Kuila, Partner of Rising Industries ,having its office at Tanushree Apartment (Gr. Floor), Ghosh Duttapara, (Opp. Of Honda Service Centre), Jhawtala, Hatiara, Teghoria (Near Lokenath Mandir),Kolkata- 157, P.S Baguiati. 

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J  U  D  G  E  M  E  N  T

Sri Ananta Kumar  Kapri, President 

         Alleging deficiency in service on the part of the O.P, the complainant has filed the instant case under section 12 , C.P Act, 1986. 

          Facts leading to the filing of the instant case may be epitomized as follows. 

          The complainant is an unemployed person. She intended to start a business of vermicelli i.e preparation of dry chowmin, simui, Lachha etc. and therefore, she decided to purchase five machines – 1) Automatic Chow making machine, 2) automatic drier machine,3) chow steaming machine, 4)  a Mixture machine and 5) automatic packing machine from the O.P for a consideration price of Rs.19,05, 750/-. The O.P also supplied quotation to the complainant for those machines and agreed to sell the said machines for the above consideration price to the complainant.  Complainant took a loan of Rs.13,65,000/- from the IDBI Bank . She paid Rs.16,32,000/- for all to the O.P including the loan amount of Rs.13,65,000/-. On 17.2.2017 two machines namely chow making machine and steaming machines were delivered to the complainant by the O.P. Later on, complainant decided not to purchase the two machines namely the drier machine and mixture machine and the O.P also agreed to refund the price of those two machines to the complainant. Now, the allegation of the complainant is that steaming machine supplied by the O.P is made of low quality parts and, therefore, the machine does not ever work and the machine men of the O.P also failed to operate on several occasions. The machine is alleged to be defective in all respect and the O.P has also failed to replace the said machine by a new one. The chow making machine is working but it is not working properly for the reason that the machine is not according to the specification given by the O.P in the quotation. That apart, it is the allegation of the complainant that she has sustained a monetary loss @1000/- a day for non-functioning of the steaming machine and, therefore, a heavy amount of compensation has been prayed for by him. With the prayer for compensation and return of the amount which the complainant has excessively paid to the O.P, the instant complaint is filed by the complainant. Hence, this case. 

             The O.P has been contesting the case by filing written statement, wherein it is contended by him that he was all along ready to replace the steaming machine with a new one and that he informed the complainant of his eagerness by letter. But ,no response has been received from the side of the complainant and, therefore, it has not been possible for him to replace the said machine. As regards chow making machine he has stated that the machine is not at all manufactured with low quality equipments and he is ready to repair the same. It is further averred by him that he has already paid Rs.5,60,000/- to the complainant as the complainant did not purchase the drier machine and mixture machine. The further case of the O.P is that the complainant has not yet taken the delivery of the packing machine in terms of the quotation and, therefore, he has sustained heavy loss. 

         Upon the pleadings of the parties following points are formulated for consideration. 

 Is  the O.P liable for deficiency in service as alleged by the complainant? 

Is the complainant entitled to get relief or reliefs as prayed for ?

EVIDENCE OF THE PARTIES

The parties have filed their evidence on affidavits which are kept in the record. The BNA filed by the complainant is kept in the record for consideration. 

DECISION WITH REASONS

Point no. 1 & 2     :-

It is not disputed by the O.P that he agreed to deliver five machines to the complainant for a consideration price of Rs.19,05,750/-. It also goes undisputed that the O.P agreed to the proposal of the complainant that she would not purchase two machines i.e the drier machine and mixture machine and that the O.P will refund the value of those two machines i.e Rs.4,40,000/- to the complainant.   On the other hand, it is not also disputed that the complainant paid Rs.16,32,000/- to the O.P ( Rs.13,65,000/- + Rs.1,67,000/- + 1,00,000/-). Packing machine has not also been delivered to the complainant by the O.P, as the complainant was found reluctant to take the delivery of the said machine. The value of the packing machine being Rs.4,50,000/- will also be deducted from the total amount of quotation money i.e Rs.19,05,750/-. The value of drier machine, mixture machine and the packing machine i.e Rs…8,90,000/- having been deducted from the total amount of quotation money, there remains Rs.10, 15,750/- and this appears to be the amount to which the O.P is entitled to get for the purpose of selling the two machines i.e chow making machine and chow steaming machine to the complainant. But, complainant has  paid Rs.16,32,000/- to the O.P. the amount of Rs.10,15,750/- having been deducted from the money paid by the complainant to the O.P, it is found that complainant is entitled to get back Rs.6,16,250/- from the O.P. It is also undisputed fact that the O.P has already refunded Rs.5,60,000/- to the complainant through NEFT. So, if this amount is deducted from Rs.6,16,250/-, there remains Rs.56,250/- to which the complainant is entitled to get. 

It has been contended on behalf of the O.P that he has not received Rs.1,67,000/- from the complainant as alleged by the complainant. The complainant’s version is that he paid Rs.1,67,000/- to the Manager of the O.P, when the said Manager came to the factory site for the purpose of inspection of the factory site. But, according to the complainant, the money receipt which was granted by the said Manager to the complainant for Rs.1,67,000/- has been given to the O.P ,when demanded by him and that the complainant has not retained any copy of that money receipt. If that amount was not paid to the Manager of the O.P, the O.P would have demanded some money from the complainant. But the O.P has not demanded  payment of any money from the complainant and this fact of the money being not demanded by the O.P goes to indicate that the complainant actually paid Rs.1,67,000/- to the Manager of the O.P.

It is also a grievance of the complainant that the steaming machine has not been working at all from the very day of its installation. This grievance of the complainant is also found to be genuine. It is admitted by the O.P that the machine men of him have failed to operate the said machine. In the circumstances, the complainant has demanded refund of the price of the said chow steaming machine. The O.P is found to be all along ready and willing to replace the said defective  machine and he has apprised the complainant of his intention of replacing the said machine with a new one. The copy of letter dated 20.11.2017 has also been filed by the O.P on record. But, complainant is found to be without any response. Regards being had to all these facts and circumstances, we are inclined to say that it will be far better to order the replacement of the said defective steaming machine by a new one instead of refunding the price of the said machine to the complainant. 

Next grievance of the complainant is that the chow making machine supplied by the O.P has not also been working properly, as it is manufactured by low quality parts. This machine has been working, but not up to the satisfaction of the complainant. According to the complainant, ball and bearing of the said machine is of low quality and, therefore, queer sound is emitting from that machine during operation of the said machine and complaint is lodged within the warranty period of the said machine. Warranty period of the said machine is one year from the date of installation of the said machine. The machine was installed on 17.2.2017. So, it is found that the defect of the said machine has arisen within the warranty period and, therefore, the O.P is bound to repair that machine without taking any kind of cost from the complainant. 

The complainant has also demanded payment of compensation from the O.P for mental loss sustained by her due to non-functioning of steaming machine. It has been proved by materials on record that the steaming machine has not been working since the very day of its installation i.e since 17.2.2017. It is true that the complainant has sustained a huge amount of monetary loss for non-functioning of the said steaming machine and, therefore, he is deemed to be entitled to get compensation and the compensation amount is fixed at Rs.30,000/-.  

In the result ,the case succeeds. 

Hence, 

ORDERED

That the complaint case be and the same is decreed on contest against the O.P with cost of Rs.10,000/- .

The O.P is directed to replace the old steaming machine of the complainant by a new one of similar quality and make with a period of warranty for one year from the date of replacement of the said machine and also to repair the chow making machine without demanding any cost from the complainant. 

He i.e the O.P is also directed to refund Rs.56,250/- to the complainant and also to pay a sum of Rs.30,000/- as compensation for monetary loss sustained by the complainant in her business due to supply of defective steaming machine to her.

The decree is to be complied with within a month of this order, failing which, the O.P will have to refund the price of the steaming machine i.e Rs.4,40,000/-  along with compensation amount of Rs.30,000/-, advance amount of Rs.56,250/- and the cost amount as referred amount coupled with interest @8% p.a till full realization thereof. Be it mentioned here that the complainant will make over the old steaming machine to the O.P, whenever it is replaced.

Let a free copy of this order be given to the parties concerned at once. 

 

     President

We / I    agree.

                          Member Member

 

 Dictated and corrected by me 

 

                                  President

 

 

The judgment in separate sheet is ready and is delivered in open Forum. As it is 

 

ORDERED

That the complaint case be and the same is decreed on contest against the O.P with cost of Rs.10,000/- .

The O.P is directed to replace the old steaming machine of the complainant by a new one of similar quality and make with a period of warranty for one year from the date of replacement of the said machine and also to repair the chow making machine without demanding any cost from the complainant. 

He i.e the O.P is also directed to refund Rs.56,250/- to the complainant and also to pay a sum of Rs.30,000/- as compensation for monetary loss sustained by the complainant in her business due to supply of defective steaming machine to her.

The decree is to be complied with within a month of this order, failing which, the O.P will have to refund the price of the steaming machine i.e Rs.4,40,000/-  along with compensation amount of Rs.30,000/-, advance amount of Rs.56,250/- and the cost amount as referred amount coupled with interest @8% p.a till full realization thereof. Be it mentioned here that the complainant will make over the old steaming machine to the O.P, whenever it is replaced.

Let a free copy of this order be given to the parties concerned at once. 

 

 

Member Member President