COMPLAINT FILED: 30.09.2008<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> <br /> 13th JANUARY 2009<br /> <br /> <br /> PRESENT :- SRI. A.M. BENNUR PRESIDENT <br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI.A.MUNIYAPPA MEMBER <br /> <br /> COMPLAINT NO.2133/2008<br /> <br /> <br /> COMPLAINANT Principal,Dr.Harshavardhana Industrial Training Institute,No.C2, K.S.S.I.D.C Industrial AreaB.M Road, Kunigal – 572130.V/s.<br /> OPPOSITE PARTIES Sri.Sandeep Sha,Owner,Hindustan Machinery Corporation (Company)No.D-1, Unity Building,J.P Road,Bangalore.2) Trident Machinery Corporation,Leading Machinery Dealers,D-1, Unity Building,J.C Road,Bangalore – 560 002.Advocate – Sri.M.T.Nanaiah<br /> <br /> <br /> O R D E R<br /> <br /> <br /> This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction to the Opposite Party (herein after called as O.P) to pay a compensation of Rs.88,640/- and for such other relief’s on an allegations of deficiency in service. <br /> <br /> The brief averments, as could be seen from the contents of the complaint, are as under:<br /> <br /> Complainant with a fond hope of imparting the education to the trainees placed an order with the OP for the supply of Tool and Cutter grinder machine on 07.10.2006 for a total cost of Rs.54,750/-. OP promised to deliver the said machine within 2 - 4 weeks on the receipt of the amount. Complainant did pay the entire amount by 26.02.2007 then OP sent certain machine duly packed. When they opened the said package they noticed that the said machine was old and it is not as per the specification. There are so many inherent defects in the machine. Immediately they brought the said fact to the notice of the OP. OP technicians visited the spot, examined the machine and confirmed the defect. Though they promised to replace the same with a brand new defect free machine of the same model within 2 – 3 weeks but they failed to do so. On repeated correspondence and insistence OP replaced the machine with a brand new one on 06.11.2007 that is nearly after lapse of 11 months. For want of the said machine complainant is unable to impart the technical education to the trainees. Due to which those trainees suffered both mental agony and financial loss. OP having retained the said huge amount for all those months and days accrued wrongful gain to itself and caused wrongful loss to the complainant that too for no fault of his. The approach of the OP is not fair and honest. Complainant felt unfair trade practice and deficiency in service on the part of the OP. Under the circumstances he is advised to file this complaint and sought for the reliefs accordingly.<br /> <br /> 2. On appearance, OP filed the version denying all the allegations made by the complainant in toto. According to OP the dispute involved is of civil in nature. If the complainant is so advised he has to file a regular civil suit to redress the grievance. It is further contended that the present transaction is commercial transaction. Hence it will not come under the purview of ‘consumer’ dispute. The allegations made in the complaint are all false, frivolous and vexatious. OP has already replaced the said machine and complainant who have collected the tuition fees from the trainees for imparting the training by utilizing the machine got enriched. With all that complainant has come up with this false and frivolous complaint. Neither there is any deficiency in service nor any unfair trade practice on the part of OP. Complaint is devoid of merits. Among these grounds, OP prayed for the dismissal of the complaint.<br /> <br /> 3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced some documents. OP has also filed the affidavit evidence. Then the arguments were heard.<br /> 4. In view of the above said facts, the points now that arise for our consideration in this complaint are as under:<br /> <br /> Point No. 1 :- Whether the complainant has Proved <br /> the deficiency in service on the part of <br /> the OP?<br /> <br /> Point No. 2 :- If so, whether the complainant is <br /> entitled for the relief’s now claimed?<br /> <br /> Point No. 3 :- To what Order?<br /> <br /> <br /> 5. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:<br /> <br /> Point No.1:- In Affirmative<br /> Point No.2:- Affirmative in part<br /> Point No.3:- As per final Order.<br /> <br /> <br /> R E A S O N S<br /> <br /> 6. At the outset it is not at dispute that the complainant has placed an order with the OP for the supply of tool and cutter grinder machine on 07.10.2006 for a total cost of Rs.54,750/-. It is also not at dispute that the OP received the entire amount on 26.02.2007 then sent some machine. On the receipt of the said package containing the machine when they opened it on examination complainant noticed that it is of a poor quality, not up to the specification noted in the quotation and some parts of the said machine are rusted. It is not in a usable condition. Immediately he brought the said fact to the notice of the OP.<br /> 7. On the receipt of the said complaint the technicians and mechanics of the OP visited the complainant institute, examined the machine and confirmed that there is a defect in the machine. Correspondence made in that regard repeatedly by the complainant with the OP and the reply given by the OP are produced. The said correspondence further goes to show that OP agreed to replace the said defective machine with a brand new one within a month or two but it failed to do so. Ultimately on repeated insistence when complainant sought for refund of the cost of the machine OP replaced it with a brand new one on 06.11.2007.<br /> <br /> 8. On the perusal of the said pleadings and the proof one thing is made clear that though OP received a lump sum amount of Rs.54,750/- failed to supply the defect free machine thereby accrued wrongful gain to itself and caused wrongful loss to the complainant that too for no fault of his. For want of the said machine complainant is unable to impart the education to the trainees for more than 11 months. After the lapse of nearly 11 months the machine was replaced. In the mean time complainant was forced to make some alternative arrangements by spending huge amount. That is why they sought for the compensation with regard to the TA / DA and other expenses of the trainees which they incurred in those 11 months.<br /> <br /> 9. Unfortunately complainant has not filed the affidavit of the said trainees who alleged to have suffered the inconvenience due to the non-availability of the defect free machine. So in absence of the corroborative evidence of the said trainees with regard to the fact of they having incurred certain TA / DA, maintenance charges etc., the bare and vague allegations of the complainant rather alone can’t be believed. Having taken note of the facts and circumstances of the case, admitted facts, as well as the established facts one thing is made clear that OP took its own sweet time in replacing the said defective machine that too an extent of 11 months and during those 11 months naturally both the complainant and the trainees must have suffered both mental agony and financial loss. <br /> <br /> 10. The defence of the OP that the present dispute is of civil in nature and the transaction is commercial appears to be a defence for defence sake just to avoid its obligation and liability. We do not find force in the said defence. We are satisfied that the complainant is able to prove both unfair trade practice and deficiency in service on the part of the OP. As already observed by us in the above said paras having regard to the facts and circumstances of the case justice will be met by directing the OP to pay a compensation of Rs.10,000/- and litigation cost of Rs.1,000/-. Accordingly we answer point Nos.1 & 2 and proceed to pass the following: <br /> O R D E R<br /> <br /> The complaint is allowed in part. OP is directed to pay a compensation of Rs.10,000/- and a litigation cost of Rs.1,000/- to the complainant. This order is to be complied within four weeks from the date of its communication.<br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 13th day of January 2009.) <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br /> Vln* <br /> <br /> <br />