COMPLAINT FILED ON 19/11/2020

            DISPOSED ON 27/02/2023

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, CHITRADURGA.

CC.NO:94/2020

DATED: 27/02/2023

PRESENT: Kum. H.N. MEENA, B.A., LL.B., PRESIDENT

                Smt. B.H. YASHODA, B.A., LL.B., LADY MEMBER                  Sri. H.JANARDHAN, B.A.L., LL.B., MEMBER  

:ORDER:

By Kum. H.N. MEENA, B.A., LL.B., PRESIDENT.               

The complainant has filed this complaint under section 35 of Consumer Protection Act, 2019 for seeking the relief by praying to direct the opposite party to pay Rs.11,18,000/- as compensation together with interest at 18% per annum from 16/05/2020 the date of receipt of the sale consideration amount of Rs.6,00,000/- till the realization of the amount of  Rs.11,18,000/- and to grant such other reliefs as this  Hon’ble Commission may deems fit and proper in the  interest of Justice.  

2. The brief facts of the complaint:

Complainant alleged that, the complainant had contacted the opponent through online, for the purpose of purchase paper cup making machine with complete set, for the purpose of manufacturing paper cups. The opponent had assured, promised the complainant to supply manufacturing defect free and good quality of said machine, while the complainant had approached personally to the opponent shop during the year 2019. The complainant had availed a sum of Rs.6,00,000/- loan amount from The Manager, Pragathi Krishna Grameena Bank, Godabanal Branch, now it is renamed as Karnataka Grameena Bank, for the purpose of purchase of said machine with complete set. The Manager of the said bank had transferred through NEFT Nos. 103689, 103893 and 103896 respectively dated: 16-5-2020, 03-06-2020 and on 27-7-2020, sum of Rs.3,00,000/- +2,00,000/- + 1,00,000/- = in all Rs.6,00,000/- to account of the opponent, the opponent had acknowledged the receipt of the said full amount towards supply / sale of the said machine to the Complainant. The opponent had supplied / sold, only paper cup making machine on 27-07-2020 to the complainant. The Complainant had brought the said machine by hiring Ashoka Layland Mini Truck from the shop of opponent at Davangere, to the Halagappanahatty. The complainant had paid a sum of Rs.3,000/- to the owner of the said Mini Truck for transportation/hire charges.

3. Complainant further submits that, the opponent as per promise and assurance without supplying complete set of paper cup making machine, had supplied only paper cup making machine. Further the opponent had promise to handover the delivery of complete set to the complainant within a week after sale/ supply of only paper cup making machine.

 As per the quotation, the opponent had agreed to sell / supply paper cup making machine with DIE (20ml To 300ml), 1.5HP motor and all STD accessories set and agreed, supply to the complainant, prior to receive and after receive of the said entire sale consideration price amount. The opponent with a malafide intention to harass, trouble the complainant, to make wrongful gain and to cause wrongful loss to the complainant.

4. Since the complainant lives in interior rural village, she had obtained a loan amount from the bank and purchased a paper cup making machine to make paper cups for livelihood. Complainant further submits that, for evidencing the supply / sale of the only paper cup making machine, the opponent had issued tax invoice dated 27-06-2020 and quotation dated to 22-6-2019, in the said documents, the opponent had cited, to sell / supply of paper cup making machine on with complete set, but the opponent failed to supply the entire complete set to complainant. The opponent had postponed to supply the complete set of paper by making machine to complainant, by saying one or the other false reasons, after repeated several demands requests, personal approach, finally the opponent did not supplied the entire complete set of paper cup making machine to the complainant.

5. Complainant further alleged that, the opponent had supplied / sold manufacturing defective, incompetent machine, the date of sold machine is not functioning and did not manufacturing paper cups continuously and only manufacturing / functioning for 30 minutes only. The complainant requested and informed to the opponent, the said manufacturing defect of the paper cup making machine, either to get it repair properly and perfectly or to replace the manufacturing defect free machine, by approaching to opponent personally and also through mobile. Opponent has only for nominal sake, to please the complainant the opponent concerned mechanics have attended the manufacturing defective paper cup making machine, without replacing the manufacturing defective parts and without proper, full and perfect repairs. Even after attending the paper cup making machine which is defective by the mechanic of the opponent, the same defects are continuing till today, therefore the complainant, in order to avoid loss of materials, earning, power etc., the complainant had stopped to make use of the paper cup making machine, since 45 days, in view of non-functioning of the said machine which is manufacturing defect, in production of paper cups. Even though the opponent had agreed to supply the said machine to the door of the complainant and also to pay the transportation charges of the machine from Davangere to Halagappanahatti, failed to fulfill and comply the same, without any alternative way the complainant had paid the hire charges and also crane charges to lift to the vehicle.

6. Complainant further submits that, finally the complainant requested to the opponent personally and through mobile phone but the opponent has failed to do the said acts and his part of the work. The complainant in his complaint alleged that the complainant is paying interest on the loan amount which has caused financial burden to the complainant and suffered loss due to supply of defective machine by the opponent, was forced to live a miserable life, was thrown on the street and liable to pay the said interest to the said bank.

7. Complainant further alleged that, The opponent has caused deficiency of service to the complainant and committed unfair trade by supplying the manufacturing defective machine without supplying the complete set to the illiterate complainant with the intention to make wrongful loss to the complainant and to make wrongful gain to opponent, thereby complainant had been put in to untold misery, financial loss and entire family members of complainant have been put in to starvation, without any sources of income.

8. Further the complainant submits that, the opponent blamed the complainant and her husband in a filthy language like,

“ಹುಚ್ಚ ಆಗಿದ್ದಿಯಲ್ಲೋ ನಾನು ಮಿಷನ್‌ ಎನ್‌ ರೆಡಿ ಮಾಡಿಕೊಡುತ್ತೇನೋ ಅದನ್ನೆ ಉಪಯೋಗಿಸಿಕೊಳ್ಳಬೇಕು ನೀನು ಕೋರ್ಟ್‌ಗೆ ಹೋಗುತ್ತೀಯೋ ಎಲ್ಲಿಗೆ ಹೋಗುತ್ತೀಯೋ ಹೋಗು”  

Therefore, complainant and her family have suffered a lot of mental pain and suffering, and complainant of husband has developed diabetes, which is up to 480, due to your illegal acts, opponent is responsible for this.

9. The complainant had got issued legal notice
dated: 28-10-2020. The Opponent after receipt of the legal notice had got issued untenable, concocted, created, reply notice
dated: 11-11-2020 with false story by denying all the averments of the legal notice by making false allegations against the complainant and her advocate. Hence all the averments of the reply notice are all concocted created and untenable. Hence, the opponent had violated the laws, public policy natural justice, fair trade of practice and business, opposing to public policy and natural justice by supplying manufacturing defective said machine to the complainant, hence this complaint without any alternative way.

10. This commission after registering this complaint ordered for issuance notice to opponent, placed ex-parte. Advocate for opponent filed IA behalf of the opponent there is no objection hence, I.A. is allowed. Therefore, opponent have made their appearance, through their respective counsel.

Version filed by the opponent submits as follows:

11. Opponent filed the version, traversing all the contents of the complaint. The OP version states that the allegations made by the complainant as in para no.1 to 13 of the complaint which are not specifically admitted in this version are hereby denied as false.

12. The allegation made in para 12 of the complainant are specifically denied as false the complainant is put to strict proof of the same. The complaint filed by the complainant is barred by time. The transaction done at Davanagere City and this Hon’ble commission has no jurisdiction to entertain this complaint without having jurisdiction. The complaint filed by the complainant is not a consumer and the alleged transaction is the commercial transaction, hence the complaint is not maintainable under the consumer protection act. The opponent has properly replied as per the reply notice dated: 11-11-2020, opponent is doing business in the name and style of M/s Hallikere Sales Corporation at Davanagere. The opponent given detail instructions and also given demonstration of the said machine and opponent has given instruction about how to use, quantity and quality and also the projection to produce the cups is also issued based on the initial samples issued. At the time of installing the said machine there was no complaint about the output product for a period of more than four months when such being the case where is the questioning of defective machine.

13. The opponents further stated in the version that the each and every one of the allegation made in complaint are all not only false, baseless and untenable one but also tailored to complaint the convenience of the complainant for the purpose of filing the present complaint against the opponents and to harass the opponents willfully and intentionally and hence each and every one of the allegations are hereby denied specifically.

14. There is no cause of action for filing this complaint. The cause of action alleged is an imaginary one. The complainant is put to strict proof that there is cause of action for filing the complaint against the opponent as alleged in para-13 of the complaint since each and every one of the allegation made in the said para are false, baseless, untenable and imaginary one.

15. The complaint filed by the complainant is false, frivolous and vexatious one to the knowledge of the complainant. The complainant is not entitle for any relief or reliefs against the opponents. Therefore, it is most respectfully prayed that this Hon’ble forum be pleased to dismiss the complaint of the complainant with costs and compensatory costs in the interest of justice and equity. [

        16. Both complainant and OP filed their evidence by way of Affidavit, the documents produced by complainant marked as Ex.A-1 to Ex.A-18. Both complainant and OPs filed their written arguments. Heard oral arguments of both side. Advocate for opponent filed IA No.2 as per order dated 30/11/2021, IA No.2 is dismissed. Against the IA No.2 order, the opponent has filed a revision petition in the Hon'ble State Commission and the said petition will be closed on 24/01/2022.

        18. On the assessment of the above facts, the following  

             points arise for our consideration as follows

1. Whether the complainant proves that, he is the consumer of OPs?
2. Whether the complainant further proves any deficiency of service on the part of OPs?
3. Whether the complainant is entitled to the relief prayed in the complaint?
4. What order?

19. Our findings on the above points are as follows:

Point No.1: In the affirmative.

Point No.2: Partly In the affirmative.

Point No.3: Partly In the affirmative.

Point No.3: As per the final order for the following.

REASONS

20. Point No.1 to 3: On perusal of the complaint, version and affidavits of both sides and documents of complainant. It is very clearly shows that, the complainant has purchase the paper cup making machine with complete set, for the purpose of manufacturing paper cups. The complainant had availed a sum of Rs.6,00,000/- loan amount from The Manager, Pragathi Krishna Grameena Bank, Godabanal Branch, now it is renamed as Karnataka Grameena Bank, for the purpose of purchase of said machine with complete set. The Manager of the said bank had transferred through NEFT Nos. 103689, 103893 and 103896 respectively dated:
16-5-2020, 03-06-2020 and on 27-7-2020, sum of Rs.3,00,000/- +2,00,000/- + 1,00,000/- = in all Rs.6,00,000/- to account of the opponent. The opponent had acknowledged the receipt of the said full amount towards supply / sale of the said machine to the Complainant. Hence, complainant has become a consumer of opponent.

21. The opponent had supplied / sold, only paper cup making machine on 27-07-2020 to the complainant. The Complainant had brought the said machine by hiring Ashoka Layland Mini Truck. The complainant has further submits that, the opponent as per promise and assurance without supplying complete set of paper cup making machine, the opponent has supplied only paper cup making machine. The opponent has promised to handover the delivery of complete set to the complainant with a week after sale/supply of only paper cup making machine. In this regard we perusal the Exhibits of complainant side, that is Ex.A-1 Legal Notice of complainant issued on 28/10/2020, Ex.A-2 is reply notice issued by the opponent, Ex.A-3 is original invoice shows that, the complainant purchased the Paper cup forming machine and accessories and OP issued the invoice dated 27/06/2020. Ex.A-4 is quotation of Rs.6,00,000/- issued by the opponent on 22/06/2019 Ex.A-5 is application fees receipt, Ex.A-6 and 7 is true copy of Bank amount and extract of complaint. It is clearly shows that The Manager of Pragathi Krishna Grameena Bank had transferred through NEFT Nos. 103689, 103893 and 103896 respectively dated:16-05-2020, 03-06-2020 and on 27-7-2020, sum of Rs.3,00,000/- +2,00,000/- + 1,00,000/- = in all Rs.6,00,000/- to account of the opponent, that is Hallikere Sales Corporation, Ex.A-8 to 17 nine photos and Ex.A-18 is C.D.

        22. On perusal of the entire case paper documents and evidence. It is clearly shows that, OP has committed deficiency in their service. The opponent has taken the contention that, the complainant is not a consumer and this commission has no jurisdiction to entertain this complaint. But opponent has to failed to prove their contention. The opponent has not produced any evidence on record to prove there is no deficiency of service.

As per notification dated 20/12/2022, the District Commission has having pecuniary Jurisdiction up to 50 lakhs rupees. Hence, The Hon’ble commission is having territorial and pecuniary jurisdiction to entrained the complaint.

[34, Jurisdiction of District Commission.

Provided that where the Central Government deems it necessary so to do, it may prescribe such other value, as it deems fit.

(2) A complaint shall be instituted in a District Commission within the local limits of whose jurisdiction, —

(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, ordinarily resides or carries on business or | has a branch office or personally works for gain; or

(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case the permission of the District Commission is given, or

(c) The cause of action, wholly or in part, arises; or

(d) The complainant resides or personally works for gain;

We rely on ruling reported as follows….

Hon’ble National Commission, New Delhi, judgment 2008 (1) CPR 2 (NC) Mohini Wheat Product V/s Nalanda Agro Works and others…..

“Where supplier of defective machine is unable to supply a new machine as directed by State Commission then he is at liberty to refund the “purchase” amount with interest from the date of purchase till payment along with penal interest, if any, payable by purchaser to the agency from whom purchase amount was arranged”.                                                                                                                                                                                                                                                                                                                                                                                                                                    

Hon’ble National Commission, New Delhi, judgment 2013 (1) CPR 374 M/s Transasia Biomedicals Ltd., V/s Dr. D.J. Desouza…… 

“Supplier must take immediate care of defective machinery supplied by him”.                                                                                                                                                                                                                                                                                                                                

Hon’ble Rajastan State Commission,Jaipura, judgment 2011 CPR 292 Kirloskar Oil Engines Ltd., V/s S.K. Indian Oil and Others…… 

“Defective machinery must be replaced or compensated”.                                                                                                                                                                                                                                                                                                                                                                                                                             

23. The above reported judgments are applicable to present case. The complainant has proved the deficiency of service on the part of the opponent. Once, the deficiency of service is proved the next question for? The complainant has prayed for Rs.11,20,000/- towards the transportation charges, electricity collection, cast of construction and loss of raw material, loss of earning, mental shock, agony inconvenience. But it is not supported by documentary evidence. Ex.A-3 is Tax invoice submitted by complainant of Rs.6,00,000/-. The opponent has liable to pay of Rs.6,00,000/- with 6% interest from the date of complaint till realization and also OP has liable to pay sum of Rs.10,000/- towards mental agony and Rs.5,000/- towards cast of this proceeding to the complainant. Accordingly we answer the Point 1 to 3 is held affirmative.

          We rely on ruling reported another citation in… Hon’ble National Commission, New Delhi, judgment 2020 (3) (NC) M/s Sanwaliya Tractor Sales and Service and another V/s Bhagwati devi Bhatt and Others………

“Manufacturing defects / mechanical defects in Tractor- State Commission directed to pay a sum of Rs.4,75,000/- to complainant towards cost of tractor and trolley along with 6% interest Rs.15,000/- and Rs.10,000/- respectively as compensation for mental, physical agonies suffered by complainant and cost of complaint” The above all reported citations are applicable to present case.

        24. Point No.3:  As discussed on the above points and for the reasons stated in we pass the following order.  

::ORDER::

1. The complaint filed by the complainant U/s 35 of Consumer Protection Act, 2019 is Partly allowed.

2. It is order that, the OP, shall pay Rs.6,00,000/- to the complainant with 6% interest per annum from the date of complaint till  realization to the complainant.

3. It is order that, the OP has directed to take back the paper cup making machine and accessories from the complainant in their own cost.  
4. It is order that, the OP shall pay the sum of Rs.10,000/- towards the mental agony and Rs.5,000/- towards the cost of this proceedings of the complaint.

5. In case of non-compliance of the order the entire amount shall carry interest at the rate of 10% p.a. till its realization.

6. The OP, shall pay the above said award amount within 30 days from the date of this order.

7. Send the free copies to both parties.

(Typed directly on the computer to the dictation given to stenographer, the transcript corrected, revised and then pronounced by us on 27^th February 2023.)

LADY MEMBER                   MEMBER                    PRESIDENT

-:ANNEXURES:-

Witness examined on behalf of Complainant:

PW-1:- Smt. Bhagya N.S. W/o H.S. Umapathi by way of affidavit of evidence.

Wetness examined behalf of opponent:

DW-1:- Sri Santhosh S/o Basavaraja Hallikere by way of affidavit of evidence.

Documents marked on behalf of Complainant:

Documents marked on behalf of opponent:

Nil.

LADY MEMBER                   MEMBER                    PRESIDENT

GM**