Haryana

Karnal

461/2011

Shree Markandeshwar Education Trust Jalbehra Ismailabad - Complainant(s)

Versus

Sudhir Gensets Limited - Opp.Party(s)

Sh. Y.S. Rathor

28 Dec 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

                                                               Complaint No.461 of 2011

                                                             Date of instt.:03.08.2011

                                                              Date of decision:28.12.2016

 

Shree Markandeshwar Education Trust Jalbehra,a Ismailbad, District Kurukshetra through its Chaiman G.S. Rana.

 

                                                                   ……..Complainant.

                                      Vs.

Sudhir Gensets Limited SCO no.7, 1^st floor, HSIDC, Sector-3, G.T. Road, near Namestay Chowk, Karnal through its Managing Director.

 

                                                                   ………… Opposite Party.

 

                     Complaint u/s 12  of the Consumer Protection Act.

 

Before                   Sh.K.C.Sharma……….President.

                   Sh.Anil Sharma…….Member.

 

Present:-      Sh.Y.S.Rathore Advocate for the complainant.

                    Sh. R.K.Sharma Advocate for the Opposite party.

                  

 ORDER:

 

                        This complaint has been filed by the complainant u/s 12 of the Consumer protection Act 1986, on the averments that complainant is running a Polytechnic Institute at village Jalbehra, Ismailabad, District Kurukshetra. The complainant placed an order for one 25KVA DG Set to the opposite party at Karnal and deposited Rs.75000/- for purchase of the DG set. However, due to availability of 24 hours three phase electricity connection/line, provided by the Uttar Haryana Bijli Vitran Nigam Ltd., the generator set was not required, therefore, the opposite party was telephonically requested for cancellation of the order, which was accepted by the opposite party. The opposite party agreed to return the entire amount paid as advance, but the amount was not returned despite repeated telephonic requests. Initially, the opposite party postponed the matter on one pretext or the other, but lateron refused to admit the genuine request. Thereafter, various letters were written to the opposite party for refund of the amount, but to no avail. The opposite party had never dispatched the DG set to the complainant, but illegally and unlawfully deducted Rs.30,000/- from the advance amount and refunded only Rs.45,000/-. It was wrongly and illegally mentioned by the opposite party in the letter dated 26.12.2008 that the DG set was dispatched and when there was no response from the side of the complainant, DG set remained lying at Delhi-UP border at transporter’s godown for more than five months and the advance was adjusted against the warehousing charges at the rate of 2% per month of the invoice value and to and fro charges on account of freight. Deducting huge amount of Rs.30000/- by the opposite party from the advance money amounted to deficiency in service on the part of the opposite party, due to which the complainant suffered physical and mental harassment apart from financial loss.

2.                Notice of the complaint was given to the opposite party, who put into appearance and filed written statement disputing the claim of the complainant. Objections have been raised that the complainant has no locus standi to file the complaint; that the complaint is not legally maintainable; that the complainant is estopped from filing the complaint by his own acts and conduct; that the complainant has not approached this forum with clean hands and that this forum has got no jurisdiction to entertain and decide the complaint.

                   On merits, it has been submitted that the Chairman of the complainant society, vide letter no.SMETC/272 dated 25.01.2010, requested for refund of the advance amount after adjusting the expenditure incurred by the opposite party. The complainant society did not take any decision for cancellation of the order of generator set. The opposite party wrote many letters to the complainant that it was sending back the generator set from transporter godown and in such case the complainant is liable to pay the amount of other expenses incurred by the opposite party in sending the generator. Thereafter, the complainant wrote letter dated 25.1.2010. The generator set remained lying at transporter’s office for more than six months, because non-payment of the balance amount of the DG set as ordered by the complainant. As per rules the opposite party could deduct 20% of the total cost of the DG set towards cancellation of the order once placed. However, the opposite party deducted Rs.30,000/- towards expenses incurred on transportation etc. and refunded amount of Rs.45000/- to the complainant. The DG set was dispatched by opposite party through invoice no.1918 dated 12.07.2008 within 10 days of the order. On 22.10.2008 the Chairman of the complainant society sent letter to the opposite party that the balance required payment of the opposite party will be sent to opposite party on 3.11.2008. Request was made in the said letter to dispatch the generator set to the Institute after receiving the demand draft. Since complainant did not send the demand draft of the balance amount, the opposite party dispatched the D.G. set back to the plant on 26.12.2008 after sufficiently waiting for the complainant. On 6.3.2009 the complainant wrote letter stating therein that it was not able to take the delivery and requested for refund of the advance amount. The complainant authorized Mr. Alok Sharma vide letter dated 10.09.2010 to collect the cheque which was entrusted to the complainant and the same was got encashed by the complainant. There was no deficiency in service on the part of the opposite party. The other allegations made in the complaint have been specifically denied.

3.                In evidence of the complainant, affidavit of G.S. Rana Chairman Ex.CW1 and documents Ex.CW1/A to Ex.CW1/H have been tendered.

4.                On the other hand, in evidence of the opposite party, affidavit of  Rajender Yadav (Legal) Assistant Manager Ex.R1 and documents Ex.R2 to Ex.R6 have been tendered.

5.                We have appraised the evidence on record, the material circumstances of the case and the arguments advanced by the learned counsel for the parties.

6.                The complainant placed an order with opposite party for purchasing one diesel generator set and paid an amount of Rs.75,000/- as advance. Lateron, due to availability of 24 hours three phase electricity connection, the complainant did not require the generator and cancelled the said order. The opposite party refunded an amount of Rs.45,000/- to the complainant out of the advance of Rs.75,000/- after deducting Rs.30,000/- towards the expenses incurred by it on transportation etc. It was alleged that the generator set was dispatched by the opposite party on 12.07.2008, but the complainant did not make payment of the balance amount, therefore, the generator set remained lying at transporter’s godown and was dispatched to the plant on 26.12.2008. Thus, the material question which arises for consideration is whether the opposite party had dispatched the generator set on 12.07.2008 for transporting the same for delivery to the complainant and that the generator set remained lying at transporter’s godown upto 26.12.2008 due to non-payment of the balance amount by the complainant.

7.                The opposite party has relied upon the invoice dated 10.07.2008. According to the said invoice the balance amount of the generator set Rs.six lacs was to be paid by the complainant after adjusting the amount of Rs.75000/- already paid as advance. As per the case of the opposite party, the generator set was dispatched to the transporter for delivery of the same to the complainant on 12.07.2008. However, no document worth the name has been produced on record which may show that the generator set was delivered to the transporter on 12.7.2008 for transporting the same to the destination for delivery to the complainant. No receipt regarding payment of freight to the transporter on 12.7.2008 has been produced. Had the transporter charged some amount for taking care of the generator set while the same remained lying at his office, then certainly a receipt regarding such charges was required to be issued, but no such receipt regarding payment of any charges to the transporter has been produced. The letter dated 26.12.2008, the copy of which is Ex.CW1/D/Ex.R2 only shows that the DG set was rebooked and dispatched back to the plant. There is no document on record from which even an inference may be drawn that the generator set was rebooked and dispatched to the plant of the opposite party on 26.12.2008 or on some earlier date. In the letter dated 26.12.2008 there is reference with regard to the letters dated 16.7.2008, 7.10.2008 and 15.10.2008 as well as discussion held with the complainant, but no copy of any such letter has been produced. Thus, the opposite party has altogether failed to prove that the generator set was dispatched by it on 12.7.2008, the same remained lying at the transporter’s godown and was returned to the plant of opposite party on 26.12.2008. Under such facts and circumstances, the opposite party was not entitled to deduct any amount out of the advance of Rs.75,000/-  on account of transportation etc. charges.

8.                In the written statement, the opposite party has submitted that as per rules it could deduct 20% of the total cost of the DG set towards cancellation of the order once placed. However, no such rule has been brought to the notice of this Forum. The opposite party without incurring any expenses towards the generator set ordered by the complainant could not deduct any amount from the advance amount of the complainant as warehousing charges and to and fro charges on account of freight. Thus, deducting amount of Rs.30000/- by the opposite party amounted to deficiency in service, therefore, complainant is entitled to get refund of the Rs.30,000/- from the opposite party.

9.                As a sequel to the foregoing discussion, we accept the present complaint and direct the opposite party to refund the amount of Rs.30,000/- to the complainant  alongwith interest thereon @ 9% per annum from the date of filing of complaint till its realization. We further direct the opposite party to pay Rs.3300/- to the complainant on account of mental agony and harassment suffered by him and for the litigation expenses. This order shall be complied within 30 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 28.12.2016

                                                                                      (K.C.Sharma)

                                                                                         President,

                                                                             District Consumer Disputes

                                                                             Redressal Forum, Karnal.

                             (Anil Sharma)

                               Member