IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 24th day of August, 2023
Present: Sri.Manulal.V.S, President
Smt.Bindhu.R, Member
Sri.K.M.Anto, Member
CC No. 106/2022 (Filed on 17-05-2022)
Complainant : V.J. George,
Proprietor,
CHEVRONS,
18/855, Muttambalam,
Kottayam – 6860004
Vs
Opposite parties : Saira Bagam,
Proprietor,
Barkat Hitech Engineering Plot No.75
Ground Floor, Defence Enclave
Part II Uttam Nagar,
New Delhi - 110059
(Adv. B. Reghu Kumar and
Adv. Ejas Muhammad)
O R D E R
Sri.Manulal.V.S, President
Case of the complainant is as follows:
Complainant is an MSME and GST registered dealer under the name and style Chevrons. Complainant is pursuing supply of equipment and test apparatuses to poli technic Colleges and Engineering colleges to the disciplines of electrical engineering, mechanical engineering, civil engineering and polymer technology. The complainant purchased one Asphalt Mixing machine from the opposite party after obtaining their quotation supported with required specification and the complainant paid advance amount of Rs.35,000/- on condition that apparatus be demonstrated online before dispatch. Machine was promptly assembled and during demonstration complainant noticed some mismatch about the heating unit instead of heating mantle of 4 KW capacity as per their quotation, the opposite party provided band heater which is not suitable for laboratory application as undergraduate civil engineers who operate the apparatus with molten asphalt in vessel are prone to safety hazard. The opposite party agreed to fit the unit with heating mantle. Therefore, the complainant paid balance amount of Rs.45,240/- to the opposite party through bank transfer on 28/1/2022 in full settlement of their invoice for Rs.80,240/-. The opposite party properly despatched the machine through TCI Express. When the complainant inspected for any external damage and when connected power to the apparatus it is found that though it was heating mantle but under capacity and incapable of raising temperature to even 100C. When the complainant contacted the opposite party, they stated that the heating mantle of 4 KW capacity is not available and advised to manage with band heater. It is alleged in the complaint that the space available to accommodate heating mantle is only 10 inches diameter whereas the diameter of heating mantle for 4 KW would be about 15 inches. Evidently the opposite party was trying to pass on a large machine on a small frame. Hence this complaint is filed by the complainant praying for an order to refund Rs.1,41,600/- to the complainant.
On receipt of notice from this Commission opposite party appeared before the Commission and filed version contending as follows:
Complainant obtained the quotation and purchased the Asphalt mixing machines by paying an advance amount of Rs.35,000/-.The allegation in the complaint that the opposite party provided band heater instead of heating mantle of 4 KW capacity as per the quotation and later the opposite party agreed to fit the unit with heating mantle as per the agreement are false. The parts of the machine provided by the opposite party was in good condition as per the quotation and it was thoroughly examined by the complainant. And there after he paid the balance amount of Rs.45,240/- through bank transfer on 28/1/22 in full settlement. The opposite party demonstrated the way of assembling the machine and its function and properly communicated to the complainant and the same was convinced by the complainant himself. But it is understood that the complainant deputed an unskilled, unqualified and in experienced to assemble the machine, there by the machine failed to function properly.
The opposite party promptly despatched the machine through TCI Express and the complainant had pick up the consignment, inspected the part and thereafter connected the apparatus. The heating mantle provided by the opposite party was in good condition as per the quotation. It is submitted in the version that due to the poor workmanship from the part of unskilled outsider, the machine got damaged and its mechanism malfunctioned. There after the complainant communicated the opposite party, not disclosing the afore said facts but demanded compensation from the opposite party stating that the machine is not working properly. Even though there was no mistake from the part of the opposite party, the party was ready and willing to either repair or to replace the machine but the complainant refused to accept the offer in earlier stage. When the opposite party examined the machine through the images sent by the complainant, the opposite party understood that the machine was not properly
assembled as well as the machine was repaired by someone who were not aware
of the mechanism of the machine. Thereafter the opposite party advised the complainant to retain the machine or to hold to the machine for repairing but the complainant was obstinate to demand the price of the machine and the huge
compensation from the opposite party. It is submitted in the version that the opposite party was ready and willing to repair or to return the machine at that period, but the complainant was not ready to do so. It is further submitted in the version that the compensation as claimed by the complaint is highly excessive and exorbitant. If the complainant was ready and willing to return by the machine earlier without causing damage, the opposite party would have been taken the machine earlier and the price of the amount received by the opposite party would have been returned.
Complainant filed the proof affidavit in lieu of chief examination and marked exhibits A1 to A7. No oral evidence from the opposite party the documents produced by the opposite party were marked as Exhibit B1 to B3. On evaluation complaint, version and evidence on record we would like to consider the following points
(1)Whether the complainant had succeeded to prove deficiency in service or unfair trade practice on the part of the opposite party?
(2) If so, what are the reliefs?
Point number 1 and 2 together.
It is admitted that the complainant had purchased Asphalt mixing machine from the opposite party. Exhibit A1 is the quotation issued by the opposite party to the complainant for Asphalt mixing machine, 10 lit capacity, 2 speed, 44 and 75 RPM through gearbox, ambient to 250*C timer, thermostat control, 4 KW heating mantle, digital display complete with motor and control panel. the amount quoted by the opposite party was Rs.88,500/-. It is proved by Exhibit A3 that the complainant paid had Rs.35,000/- to the opposite party through bank transfer on 10/5/22. The specific case of the complainant is that the opposite party delivered band heater instead of heating mantle of 4 KW capacity as per the quotation. It is alleged by the complainant that the heating mantle was under capacity and in capable of raising temperature to even 1000C and the available space to accommodate heating mantle is only 10 inches diameter where as the diameter of Heating Mandal of 4 KW capacity would be about 15 inches. Exhibits A4 tax invoice issued by the opposite party to the complainant on 27/1/22 proves that the price of the machine was Rs.80,240/-. The complaint was resisted by the opposites party stating that the parts of the machine was in good condition as per the quotation and after examination of the machine the complainant paid, the balance amount of Rs.45,240/- on 28/1/ 22. According to the opposite party due to the poor work from the part of unskilled person the machine got damaged. Though complainant alleged That the opposite party delivered band heater instead of heating mandle of 4 KW capacity he did not care to get it inspected by an expert to prove his case. However, it is pertinent to state that the opposite party submitted in the version that even though there was no mistake from the part of the opposite party, they were ready and willing either to repair or to replace the machine. In the last paragraph of the version the opposite party reiterated that if the complainant was ready to return the machine at earlier stage the opposite party would have taken back the machine and the price of the machine would have been returned. From these, we can infer that the machine which was delivered by the opposite party had some defect. In the absence of any defect there is no possibility to make such an offer by the opposite party to the complainant when he raised complaint regarding the machine. Considering this submission of the opposite party and keeping in mind that the salutary principle of the Consumer Protection Act, we are of the opinion that an order directing the opposite party to refund Rs.80,240/- to the complainant and to take back the machine from the complainant would meet the ends of justice. Therefore, we allow the complaint in part and pass the following order.
- We hereby direct the opposite party to pay Rs.80,240/- (Rupees Eighty thousand two hundred and forty only) to the complainant with interest@ 9% per annum from 17/5/22 ie. the date on which the complaint is filed till realisation and to take back the Asphalt mixing machine at their own cost within 30 days from the date of the copy of this order.
Pronounced in the Open Commission on this the 24th day of August, 2023.
Sri. Manulal.V.S, President Sd/-
Smt. Bindhu.R, Member Sd/-
Sri. K.M.Anto, Member Sd/-
Appendix
Exhibits marked from the side of complainant
A1 – Quotation dtd.29/11/2021 from Barkat Hitech Engineering
A2 – Purchase order dtd.13/01/2022 from complainant
A3 – Speed post returned envelop (image) with postal receipt
A4- Copy of tax invoice dtd/27/01/2022
A5- Copy of e-mail letter dtd.04/03/22 to opposite party
A6- Copy of e-mail letter dtd.12/04/22 to opposite party
A7 – Letter dtd.28/01/2021 by Principal, RIT to complainant
Exhibits marked from the side of opposite party
B1 – Photocopy of invoice dtd.29/11/2021 by opposite party
B2 – Photocopy of invoice dtd.27/01/20200 by opposite party
B3- Copy of purchase order dtd.13/01/2022 to complainant
By Order
Sd/-
Assistant Registrar
