IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Wednesday the 28th day of February, 2018
Filed on 5.03.2016
Present
1. Smt. Elizabeth George (President)
2. Sri. Antony Xavier (Member)
3. Smt. Jasmine D (Member)
in
CC/No.72/2016
Between
Complainant:- Opposite parties:-
Sri. Renjith.C.M 1. Sri. K.Sasi
Proprietor S/o Karunakaran
Aiswaraya Paper Product Puthenparambil
Aiswaraya, 1/292 A, Near Kattil Market Tamallackal
Kumarapuram.P.O, Karthikapally Karthikapally Taluk
Alappuzha. Alappuzha
(Adv.Sudarsanakumar)
2. Smt. B.Premalatha Prabhakaran
Proprietor, SAPP Paper Technio,6
V.K.S Garedns, Perumalkovil
Street, Vadavalli, Coimbatore
641 041 Tamilnadu
(Adv. G.S.Krishnan Kartha)
O R D E R
SMT. JASMINE D. (MEMBER)
The case of the complainant in short is as follows:-
The 1st opposite party approached the complainant and intimated about the small scale unit of paper plate manufacturing unit and accordingly the complainant contacted the 2nd opposite party for the purpose of purchasing the same. 2nd opposite party sent 2 quotations through online to the complainant. As per the quotation No 521 dated 6-1-15 the price of one unit of JBZA-12 FUDY Automatic Paper cup machine with separate Electric Panel and 2 set of moulds is fixed for Rs. 6,25,000/- Quotation No. 522 dtd 6-1-15 for SAPP Hydro Perumatic Paper Plates forming Machine with cutting attachment. Air compressor and with one set of Mould and the cost of the said Unit is quoted Rs. 1,80,000/- and for SAPP Hydro Preumatic Double headed machine with two sets of moulds cutting attachment and Air Compressor one unit for Rs. 2,25,000/-. The warranty of one year was also assured in the quotation. As per the terms of the quotation out of the total amount 60% of the amount has to be paid at the time of conformation of order and 30% is to be paid at the time of bill of ladding and the remaining 10% is to be paid at the time of delivery of the machine. And the 2nd opposite party assured that the machinery will be delivered within 40-50 days from the date of confirmation. The opposite party at the time of confirmation of order intimated to the complainant that there was no ready stock on punching and packing machine and it will be supplied to the complainant on availability of stock. On 6-1-15 confirmation was made and on amount of Rs. 5,00,000/- is paid to the opposite party as 60% of the total price of the paper cup forming machine and the paper plate forming machine with air compressor. There after the complainant again paid 2 lakhs on 12-5-15 and 2 lakhs was paid on 26/3/2015 as per the quotation the 2nd opposite party. . But the 2nd opposite party delivered the machine on 9/4/2015. Thereafter on 20/1/2015 the opposite party informed the complainant that the punching and packing machine is available for delivery and the complainant paid balance amount on same day itself and delivery was affected by the 2nd opposite party through courier. The complainant further alleged that though the machines were delivered to the complainant it was not installed. The same was installed on 13/7/2015 and at the time of demonstration of working of the machine it was noticed that the paper cup forming machine is functioning defectively. The output was only 40% and the 60% of the paper inserted in the machine was wasted due to the malfunctioning of the machine and the technician of the opposite party could not rectify the defect even after the repeated effort. The complainant paid a total on amount of Rs. 6,25,000/- towards the price of the paper cup machine tax of 2% CST amounting to Rs. 12,500/- and in total the complainant spent Rs. 6,37,500/-. According to the complainant the opposite party has delivered a defective and old machine to the complainant and the complainant could not run a unit and thereby sustained a loss of Rs. 30,000/- per month. The complainant on 28/10/15 sent lawyers notice to the 2nd opposite party demanding replacement of the product but the grievances of the complainant have not been redressed. The complainant sustained much mental agony and hence filed this complaint seeking refund of the amount paid with compensation and cost.
2. Notice against 1st opposite party returned as not known. Notice against 2nd opposite party served. 2nd opposite party appeared before the Forum and filed version.
3. Version of the 2nd opposite party is as follows:-
The complaint is not maintainable there is no consumer service provider relationship between the complainant and the 2nd opposite party. The complainant has brought the machine for business purpose. On 15/1/2015 the purchase of machinery as per the quotations numbers 521 and 522 dated 6/1/2015 of the opposite party was confirmed by the complainant. It is admitted that the 2nd opposite party has delivered 3 machines to the complainant as per the quotations ie. a paper cup forming machine, paper plate forming machine with the air compressor on 9/4/2015 and a punching packing machine on 20/5/2015 with due diligence. The complainant had confirmed the purchase of the said machines with the 2nd respondent and the price of the said 3 machines together was Rs.10,30,000/- with 2% CST against C-from is and 14.5% without C-form. Complainant had paid a part of the sale consideration Rs.5,00,000/- for the confirmation on 15/1/2015. By the time the 2nd respondent made it clear to the complainant since the machines are imported from China, it would take around 45 days to deliver and the delivery of the machine would be effected on receipt of the entire sale amount as per the terms. The complainant requested the 2nd opposite party that he could not pay the entire amount at one time to arrange financial aid. Accordingly the 2nd respondent on good faith believing the words of the complainant owing to goodwill, agreed to the request made by the complainant and as on 26.3.2015, when the account of the 2nd respondent was credited with an amount of Rs. 9 lakhs, enabled the 2nd opposite party to deliver Paper Cup Forming Machine and Paper Plate Forming Machine to the complainant.
3. Complainant was examined as PW1 and documents produced were marked as Ext.A1 to A10. An expert commissioner was examined as CW1, and Expert report were marked as Ext C1. 2nd opposite party was examined as RW1 and documents Exts. B1 and B2 marked Subject to objection.
4. Considering the allegation of the complainant this Forum has raised the following issues for consideration:
1) Whether there is any deficiency in service on the part of the opposite parties?
2) Whether the complainant is entitled to get any relief as prayed for?
5. Issues 1 and 2:-
The case of the complainant is that the complainant had purchased three machines from the 2nd opposite party including one paper cup forming machine, one paper plate forming machine and one punching and packing machine and the complainant paid a total sum of Rs. 10,30,000/- to the 2nd opposite party. All these machines were delivered to the complainant and installed by the 2nd opposite party. At the time of carrying out the demonstration itself the complainant noticed that the paper cup forming machine is defective and the same was informed to the 2nd opposite party. The Technician from the 2nd opposite party inspected the machines several times, but the 2nd opposite party failed either to rectify the defect or to replace the machine. According to the complainant he had purchased the machine by investing a huge amount but he could not utilize the machine due its defect and thereby incurred huge loss. The complainant further alleged that the 2nd opposite party had not delivered the machine within the time period as assured by them. Hence this complaint.
6. Power of Attorney Holder of the complainant was examined as PW1 and documents Ext.A1 to Ext.A10 were marked. Ext. A1 is the Power of Attorney executed by the complainant in favour of one Mr. Sunil Kumar. Ext A2 is the Tax invoice dated 9/4/2015 for a total amount of Rs. 8,67,000/-. Ext.A3 is the receipt dated 22/5/2015 for an amount of Rs. 10,63,600/- Ext.A4 is the Certificate issued by the Asst. Engineer KSEB that the electric connection was effected on 7/5/2015. Ext.A5 is the Advocate Notice dated 28/10/15. Ext.A6 is the reply notice dated 18/11/2015. Ext.A7 is the Brochure. Ext.A8 is the Quotation. Ext.A9 is the Acknowledgement Card. Ext.A10 is the postal receipt.
7. The main allegation of the complainant is that the paper cup forming machine supplied by the opposite party is defective and also there was delay in delivering the machine to the complainant. According to the complainant the paper cup forming machine supplied by the 2nd opposite party was not working properly. Only 40% of the intaken papers form the product and the remaining 60% of the in taken papers are wasted. The job output of the machine is limited to 40% only. The opposite parties contention is that there was no delay in delivering the machine but the installation of the said machines were delayed because there was no electric connection in the premises of the complainant at the time of delivery of the machines and the defect of the machine was caused only due to the mishandling of the complainant. According to the opposite party the machine is highly sophisticated and the same had been dragged, though rough surface for more than 1 km and also dismantled the same without proper knowledge. The 2nd opposite party in their version also contended that the complainant has purchased the machine for his business purpose and hence the complaint is not maintainable before the Forum. But in the complaint it is pleased that the complainant is running the unit as a self employment to earn his lively hood. More over when RW1 was examined. She deposed that for operating the said paper cup forming machine one operator and one helper is needed. The 2nd opposite party has produced 2 documents Ext.B1 and B2. In Ext.B2 also stated that only one employee is there in the complainant’s unit. So it is clear that the complainant is running a small scale unit to earn his livelihood. So the complainant will definitely come under the purview of a consumer.
8. Admittedly the complainant purchased the disputed machine from the 2nd opposite party on 9/4/2015 after paying an amount of Rs. 6,25,000/- to the 2nd opposite party According to the complainant the same was defective from the date of installation itself and the 2nd opposite party has made several attempts to rectify the defect but they failed to rectify the defect.
9. In order to prove the defect of the machine an expert was appointed he inspected the disputed machine in the presence of both parties and filed report which was marked as Ext.C1. In Ext.C1 report it is specifically stated that the machine is defective and also stated that the machine is very old and the entire body shell and internal parts are corroded and worn out and as per the commission Report the year of make of the said machine is 2008. In the Commission Report it is affirmed that the disputed machine has major defects. The documents produced by the complainant together with the commission report made it clear that the supplied paper cup forming machine is defective. The second allegation of the complainant that there was delay installing the machines and according to the opposite party the installation was delayed only because the premises of the complainant was not electrified. According to the complainant the machine were installed in the month of July 2017. Ext.A7 shows that the complainant got electric connection on 7/5/2017. Therefore the contention of the opposite party is contrary to the Ext.A7 document and is not sustainable. The documents produced by the complainant and the Commission Report is proves the case of the complainant. From Ext.A2 it can be seen that the complainant purchased the said machine on 9/4/2015 after paying an amount of Rs. 6,25,000/- but from the Commission Report it is stated that the year of make of the said machine is 2008. The 2nd opposite party has not only committed deficiency in service but also unfair trade practice. The 2nd opposite party failed either to rectify the defect or to replace the defective machine. So the 2nd opposite party is liable to refund the price paid for it. Since there is deficiency in service on the part of the opposite party 2 they are liable to compensate the complainant for the mental agony and inconvenience caused to him. Notice against the opposite party 1 was returned as “not known” and also on going through the entire documents it seems that opposite party 1 has not role in the alleged transaction so we can’t hold 1st opposite party liable for any deficiency in service.
In the result the complaint is allowed. The 2nd opposite party is directed to refund the price of the paper cup forming machine Rs.6,25,000/-(Rupees Six lakh twenty five thousand only) to the complainant with 9% interest from the date of delivery of the said machine i.e 9/4/2015 till realization of the amount. The 2nd opposite party is further directed to pay an amount of Rs. 5000/- (Rupees Five thousand only) towards compensation and Rs. 5000/- (Rupees Five thousand only) towards cost of the proceedings. The order shall be complied within one month from the date of the receipt of this order.
Pronounced in open Forum on this the 30th day of April, 2016.
Sd/-Smt. Jasmine.D. (Member) : .
Sd/-Smt. Elizabeth George (President):
Sd/-Sri. Antony Xavier (Member) :
Appendix:-
Evidence of the complainant:-
PW1 - Renjith C.M(witness)
Ext.A1 - Power of Attorney
Exts.A2 - Tax Invoice dtd 9/4/15
Ext.A3 - Receipt dtd.22/5/15
Ext.A4 - Certificate KSEB
Ext.A5 - Advocate Notice dtd. 28/10/15
Ext.A6 - Reply notice dated 18/11/15
Ext.A7 - Brochure
Ext.A8 - Quotation
Ext.A9 - Acknowledgement Card
Ext.A10 - Postal receipt
CW1 - Manu. N(Witness)
C1 - Commission report.
Evidence of the opposite parties:-
RW1 -
Ext.B1 - List of Documents (Subject to objection)
Ext.B2 - Documents (Subject to Objection)
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite party/S.F.
Typed by:- br/-
Compared by:-
