SRI JIBAN KRUSHNA BEHERA, MEMBER (I/C)
The Complainant has filed this complaint petition, U/s-35 of C.P.A.- 2019 (here-in-after called as the “C.P. Act - 2019”), alleging a “deficiency-in-service” by the Ops, where the OP No.1 is the Proprietor-cum-owner of Surya Industries, New Delhi and OP No.2 is the Mata Transport Private Limited, Balasore.
2. The complainant’s case, in short, is that he is an educated unemployed youth and being advised by his kith and kin, he decided to start paper plate business of his own. On enquiry, he came in contact with OP No.1, who deals with all kinds of machine such as slipper machine, manual paper plate, bowl, tea cups, led bulb and raw materials. Thus, he negotiated with him and expressed his intention to purchase one paper plate machine with double die and other accessories that required for production. On this, OP No.1 advised the complainant to pay advance of Rs.10,000/- after which he will supply the machine and raw materials. On good faith, complainant paid the advance amount of Rs.10,000/- on 9.3.2020 through online to the account of the OP No.1.
It is further averred that on getting advance amount, OP No.1 supplied the order book on 17.11.2020 where the total cost of all machineries including raw materials was calculated as Rs.1,04,900/- and as the complainant has already paid advance amount of Rs.10,000/-, the balance amount was calculated as Rs.94,900/-. The complainant deposited Rs.94,900/- in the account of OP No.1 through NEFT on 19.11.2020 in UCo Bank, Nilgiri Branch. But after receiving total amount of Rs.1,04,900/-, the OP No.1 had only supplied one paper plate machine with double die on 10.12.2020 through OP No.2 and he received the said machine from OP No.2 on 13.2.2021 further paying Rs.8,620/-. The complainant found in the invoice that the cost of the said machine was Rs.43,660/-, but the OP No.1 mentioned the cost of the said machine as Rs.65,000/- in the order book. On discussion with the OP No.1, he assured the complainant that within a short period he will supply all other machineries as per order book.
It is also averred that in the meantime the paper plate machine supplied by the OP No.1 found to be defective for which the complainant informed him to refund the said machine and supply another new machine to him. OP No.1 agreed with the complainant and assured to depute his staff and mechanic with new machine within a week. But the OP No.1 neither deputed any mechanic nor has supplied the machineries with raw materials as per order book and also not supplied the new machine in place of old one. Being aggrieved, complainant served legal notice on OP No.1 on 16.3.2021, but he remained silent. Further, on 6.8.2021, when the complainant contacted with OP No.1 over phone and requested to supply the rest machinery and raw materials including the new machine in exchange of defective one, at that time, he refused the request of the complainant. For such illegal act and deficiency in service on the part the OP No.1, the complainant sustained irreparable loss.
The cause of action of this case arose on 30.9.2020, when the complainant paid Rs.10,000/-, on 19.11.2020, when the complainant paid rest amount of Rs.94,900/- and on 13.2.2021, when the complainant to know the machine supplied by OP No.1 is defective, on 16.3.2021, when the complainant served legal notice and lastly on 6.8.2021, when the OP No.1 refused the request of the complainant. Thus, the complainant was constrained to file the present case. Hence, this case.
To substantiate his case, the complainant relied upon the following documents, which are placed in the record -
- Photocopy of order book dated 17.11.2020.
- Photocopy of money transfer to the account of OP No.1.
- Photocopy of money transfer to the account of OP No.1.
- Photocopy of acknowledgement.
- Photocopy of invoice of OP No.2.
- Photocopy of tax invoice of OP No.2.
- Photocopy of E-Way Bill system, Part-A slip.
- Photocopy of Advocate notice and registration receipt.
3. In the instant case, notices were issued against the Ops. In spite of receipt of notices, the Ops did not appear and hence, they are set ex parte.
4. Learned counsel appearing for the complainant has submitted that the complainant is an educated unemployed and with a view to start paper plate business, he contacted OP No.1, who deals with all kinds of machines i.e. slipper machine, manual paper plate, dona, tea cups, led bulb and raw materials. Thus, on negotiation, as per advise of OP No.1, the complainant paid Rs.10,000/- in advance on 9.3.2020 through online to the account of the OP No.1. It is further argued that OP No.1 supplied the order book on 17.11.2020 where the total cost of all machineries including raw materials was calculated as Rs.1,04,900/- and as the complainant has already paid advance amount of Rs.10,000/-, the balance amount of Rs.94,900/- was paid in the account of OP No.1 through NEFT on 19.11.2020 in UCo Bank, Nilgiri Branch. But after receiving total amount of Rs.1,04,900/-, the OP No.1 only supplied one paper plate machine with double die on 10.12.2020 through OP No.2 and he received the said machine from OP No.2 on 13.2.2021 on payment of Rs.8,620/-. The complainant found in the invoice that the cost of the said machine was Rs.43,660/-but OP No.1 mentioned the cost of the said machine as Rs.65,000/- in the order book. On discussion with the OP No.1, he assured the complainant that within a short period he will supply all other machineries as per order book.
It is further submitted that in the meantime the paper plate machine supplied by the OP No.1 found to be a defective one and the complainant informed him to refund the said defective machine and supply another new machine to him. Although OP No.1 agreed with the complainant and assured him to depute his staff and mechanic with new machine within a week, but did not do so. Being aggrieved, complainant served legal notice on Ops, but they remained silent. Further, on 6.8.2021, when the complainant contacted with OP No.1 over phone and requested to supply the rest machinery and raw materials including the new machine in exchange of defective one, at that time, he refused the request of the complainant. For the above acts of the Ops and deficiency in service, not only the complainant sustained financial loss, but also suffered mental agony. It is further submitted that in Annexure-6, it has been mentioned that goods once sold will not be taken back or exchange and the seller is not responsible for any loss or damage of good in transit. The very terms of sale is a formal in nature and by mentioning the same in the tax invoice, the Ops cannot escape themselves from their liabilities as because the manufacturers or sellers are bound to provide free or paid services for maintenance of the goods they sold to the customers. Therefore, the Ops are liable for the compensation as claimed by the complainant.
5. In the present case, OP No.2 is a Transport Private Limited named as “Mata Transport Private Limited” located at Remuna Golei, Balasore. It appears from Annexure-5 & 7 that OP No.2 has collected Rs.8,620/- from the complainant towards transportation of machine good from Delhi Narin on 23.1.2021. Thus, OP No.2 has no role to play in the deficiency in service towards the complainant. Therefore, this Commission is of the considered opinion that OP No.2 is no way liable for the compensation, as claimed by the complainant.
6. At the same time, the liability of OP No.1 in the present case in deficiency in service cannot be ruled out. As it appears, the OP No.1, on receipt of notice, neither choose to appear in this case nor filed written version to defend the case of the complainant. Therefore, the statement of the complainant remains unchallenged and goes against the OP No.1. Hence, the complainant is entitled to get the compensation along with other benefits, as claimed for, in this case and only the OP No.1 is liable for the same.
Hence, it is ordered –
O R D E R
The case of the complainant be and the same is allowed on ex parte against the OP No.1 & dismissed against the OP No.2. The OP No.1 is liable to deliver same brand of new paper plate machine in place of defective one or to deliver properly repaired, serviceable paper plate machine already supplied as per order book at his own cost and to pay Rs.1,00,000/- towards compensation & harassment and Rs.20,000/- for litigation cost to the complainant within two months hence, failing which the complainant is entitled to get compensation of Rs.1,00,000/-, Rs.1,04,900/- for the total cost of the paper machine, both carries interest @ 9% PA from the date of actual cause of action till its realization along with Rs.20,000/- for litigation cost & advocate’s fee. In case of deviation, the complainant is at liberty to realize the same through the process of law.
Pronounced in the open Court of this Commission on this day i.e. the 26th day of September, 2023 given under my Signature & Seal of the commission.
