KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD, THIRUVANANTHPAURAM APPEAL .907/01 JUDGMENT DATED: 23.4.10 PRESENT SRI.M.V.VISWANATHAN : JUDICIAL MEMBER SRI.M.K.ABDULLA SONA : MEMBER 1. Dr.Benny Joseph, : APPELLANTS Kanate Dental Clinic, Trade Arcade, Opp.YMCA, Kannur Road, Calicut-1. 2. Dr.Susan Thomas, W/o Dr.Benny Joseph, Kanate Dental Clinic, Trade Arcade, Opp.YMCA, KAnnur Road, Calicut-1. (By Adv.Shyam Padman) Vs. Mr.Sunny Joseph, : RESPONDENT Proprietor, Jaison Agencies, Manuel Sons Business Complex, Shop No.BF – 16, GH Road, Calicut -1. (By Adv.T.G.Rajendran) JUDGMENT SRI.M.V.VISWANATHAN : JUDICIAL MEMBER The appellants were the complainants and respondent was the opposite party in OP.No.251/2000 on the file of CDRF, Kozhikode. The said complaint in OP.251/2000 was filed alleging deficiency in service and unfair trade practice on the part of the opposite party in effecting sale of the dental equipments covered by P1 quotation (Performa invoice) dated 8.1.99. The complainants claimed refund of Rs.49069/- being the over charge collected by the opposite party from the complainants and also for supply of the articles which were short supplied by the opposite party with a further prayer for compensation of Rs.1,00,000/- for the loss and injuries sustained by the complainants due to negligence, deficiency in service and unfair trade practice on the part of the opposite party. 2. The opposite party entered appearance and filed written version denying the alleged deficiency in service and unfair trade practice. He also denied the case of short supply and the alleged collection of excess price. The opposite party also contended that the complainants received Rs.28000/- from the opposite party by way of loan and that the present complaint is filed because of the demand made by the opposite party for the said loan amount of Rs.28000/- with interest. Thus, the opposite party prayed for dismissal of the complaint with compensatory costs. 3. Before the Forum below the complainants 1 and 2 were examined as PW2 and PW1 respectively and Exts. P1 to P7 documents were also marked on their side. The opposite party was examined as RW1 and R1 to R3 documents were marked on his side. On an appreciation of the evidence on record, the Forum below passed the impugned order allowing the complaint in part and thereby the opposite party is directed to pay the 1st complainant Dr.Benny Joseph a sum of Rs.3958/- with interest at the rate of 12% per annum from 12.5.2000. Parties are directed to suffer their respective costs. The complainants therein are not satisfied with the order passed by the Forum below. Hence the present appeal. 4. When this appeal was taken up for final hearing, there was no representation for the respondent/opposite party. We heard the learned counsel for the appellants/complainants. He submitted his arguments on the strength of the grounds urged in the memorandum of the present appeal. It is stated that the Forum below did not consider the case of the complainants regarding deficiency in service and unfair trade practice in effecting the sale and supply of the dental equipments covered by P1 quotation/performa invoice. He argued for the position that the Forum below can not be justified in restricting the claims made by the complainants by relying on P6 notice issued by the 1st complainant to the opposite party. It is further submitted that P6 letter was issued as a personal letter without disclosing the entire facts related to the deficiency in service and unfair trade practice on the part of the opposite party and that the said personal letter was issued only stating the claim with respect to the excess payment collected by the opposite party. He also relied on the testimony of PW2, the 1st complainant on that respect. Thus, the appellants/complainants prayed for modification to the impugned order passed by the Forum below and to allow the complaint in OP.251/2000 with respect to the short supply of items, delay in supplying those items covered by P1 notice, failure to supply the X-ray unit as specified in P1 quotation, failure to effect after sales service, maintenance and the compensation for loss and injuries sustained by the complainants due to the negligence, deficiency in service and unfair trade practice on the part of the opposite party. 5. The points that arise for consideration are:- 1) Whether the Forum below can be justified in relying on P6 registered letter dated 15.2.2000 issued by the 1st complainant to the opposite party in OP.251/2000 and thereby restricting the claim of the complainants therein with respect to the alleged over charging of the price higher than the maximum retail price of the articles supplied? 2) Whether the complainants in OP.251/2000 on the file of CDRF, Kozhikode had succeeded in establishing the alleged deficiency in service and unfair trade practice on the part of the opposite party therein with respect to the delay in supplying the dental equipments, failure in supplying the X-ray unit as specified in the quotation, short supply of some of the items as averred in paragraph 5 of the said complaint and failure to effect after sale services and maintenance for the dental equipments supplied? 3) Is there any sustainable ground to interfere with the impugned order dated 15th May 2001 passed by CDRF, Kozhikode in OP.No.251/2000? 6. Points 1 to 3 :- For the sake of convenience, we will refer the parties to this appeal according to their rank and status before the Forum below in OP.251/2000. These issues can be considered together as these issues are inter connected and inter related and that evidence to be discussed is also one and the same. 7. The complainants 1 and 2 and the father of the 2nd complainant entered into a contract with the opposite party Sunny Joseph for supply of dental clinical equipments for the dental clinic of complainants 1 and 2. It is admitted that the opposite party issued P1 performa invoice dated 8.1.99 for supply of the dental clinical equipments and that P1 invoice was placed before the Indian Bank for availing loan by the complainants. Admittedly the opposite party and the father of the 2nd complainant were having acquaintance and that is why the complainants approached the opposite party and placed the orders for supply of dental clinical equipments for their dental clinic. 8. The case of the complainants is that there occurred delay on the part of the opposite party in supplying the dental clinical equipments ordered and due to the said delay the complainants suffered loss and inconvenience and that the complainants could not inaugurate their newly started dental clinic as expected by them. On the other hand, the opposite party contended that there was no date specified for supply of the equipments and that he supplied the equipments on getting the payments from the bank. It is to be noted that there is no written contract or other document evidencing the date for supply of the dental clinical equipments. There is also no evidence forthcoming from the side of the complainants to show the date of inauguration of their dental clinic at Kozhikode. The complainants as PW1 and 2 have deposed that the date of inauguration of the dental clinic was fixed on 9.4.99 and that the entire equipments were not supplied by the opposite party within 9.4.99. But, there is no documentary evidence to support the case of the complainants that the inauguration of the dental clinic was conducted on 9.4.99 or that the date was fixed for inauguration of the dental clinic. Moreover, there is nothing on record to show that time was the essence of the contract of supply of dental clinical equipments. Thus, in effect the complainants failed to substantiate their case that there occurred delay in effecting supply of the dental clinical equipments. 9. The definite case of the opposite party is that he need only supply the equipments on getting payment for the same. On the other hand, the complainants would allege that the opposite party had agreed to effect supply of the dental equipments even before getting the price of the items. But there is no acceptable evidence other than the interest testimony of PWs 1 and 2 that the opposite party had agreed to supply the dental equipments without getting the payment for the same. The aforesaid versions of PWs 1 and 2 are denied by RW1, the opposite party. Thus, there is only oath against oath. On the other hand, R2 price list with details of the equipments issued by Confident Dental Equipments Ltd., Bangalore would show that the said company will supply the dental equipments only on payment of the price of the goods. The terms of supply are incorporated in R2 sale price list. In R2 it is also specified that Central excise duty, Central sales tax, State sales tax, octroi, freight and installation are to be borne by the purchaser of goods and that advance of 1/3 of the total value is to be effected at the time of placing the order and 100% advance payment is to made on delivery of the goods. 10. Admittedly, the opposite party was only the dealer of Confident Dental Equipments Ltd. and that the opposite party supplied the dental equipments which were supplied by Confident Dental Equipments Ltd., PW2, the 1st complainant himself admitted that he went to confident Dental Equipment Ltd., along with the opposite party for purchase of 5 items of dental equipments. It is admitted in the complaint in OP.251/2000. The opposite party has also got a definite case that he will get the dental equipments from the said confident dental equipments Ltd. Only on effecting full payment towards the price of the items. These circumstances would strength the case of the opposite party that the delay in supplying the goods occurred only because of the delay in getting the payment. Ext.P2 certificate issued by the Indian Bank would show that a sum of
Rs.2,03,000/- was received by the opposite party on 12.3.99 and Rs.2,09,565/- was received on 31.3.99. Admittedly some of the items were supplied to the complainants before the inauguration of the clinic and the entire items were supplied by 2nd June 1999. The 2nd complainant as PW1 has categorically admitted that the entire items were delivered by 2nd June 1999. Thus, it can be seen that the entire dental equipments were delivered within 2 months of getting full payment of the price of the equipments. So, the opposite party cannot be made liable for the delay in effecting supply of the entire equipments. 11. The complainants in their written complaint have averred that 5 of the items (dental equipments) mentioned in para 4 of the complaint were taken delivery by the 1st complainant from Bangalore itself. It is also stated that the 1st complainant compelled the opposite party to accompany him to the Confident Dental Equipments Ltd, Bangalore and thereby the aforesaid 5 items were purchased from confident Dental Equipments Ltd., Bangalore. The 1st complainant as PW2 has also admitted the fact that in the month of Mach 1999 he visited the Confident Equipments Ltd., Bangalore along with the opposite party and purchased the items referred to in para 4 of the complaint. According to PW1, the 2nd complainant they asked the opposite party to go to Bangalore to collect the equipments and thereby the 1st complainant accompanied the opposite party to Bangalore and directly purchased 5 items. But PW2, the 1st complainant would say that the opposite party insisted him to accompany the opposite party to Bangalore for the purchase of dental equipments from confident Dental Equipments Ltd. Whatever may be the reason, it is an admitted fact that the 1st complainant and the opposite party went to Confident Equipments Ltd., Bangalore during the month of March 1999 and effected purchase of 5 dental clinical equipments. It is also admitted that the opposite party effected payment for those items and the opposite party himself delivered those items at Kozhikode. If that be the position, it can very safely be held that the aforesaid 5 items were delivered before the so called date of inauguration of the dental clinic. PW1 has also admitted that one item was supplied by the opposite party even prior to the date of inauguration of clinic. Thus, it is admitted that altogether 6 items were delivered before the alleged date of inauguration of the dental clinic. If the complainants were very much interested to get the entire equipments, then the 1st complainant could have purchased the other items also when he accompanied the opposite party to Bangalore for effecting purchase of the aforesaid 5 items of dental equipments. Thus, in all respects it can be concluded that there was no such delay on the part of the opposite party in effecting supply of the dental equipments. Moreover, there is no acceptable evidence showing the date of
inauguration of the clinic or the assurance given by the opposite party to effect supply of the dental equipments on or before a particular date. 12. The complainants have got a case that ‘economy compact clinic’ consisting of micromotor was supplied without Hand piece. Ext.P1 quotation would show that the price for that micro motor was quoted without Hand piece. So, the case of the complainants that Hand piece was not supplied with the micromotor can not be accepted. It is argued that micro motor without Hand piece was supplied and it would amount to deficiency in service. There is no evidence to support the case of the complainants that 3 items namely, item No.2, item No.3 and item No.6 were supplied without trimming stone, polishing buff and day light manual developer, clip hanger etc. has not been substantiated by any acceptable evidence. 13. It is to be noted that before the institution of the complaint in OP.251/2000, Complainants had issued P6 registered letter to the opposite party; but there is no whisper in P6 letter about the alleged short supply of parts of any items of the dental clinical equipments. Had there been any such short supply of any part of the equipments that should have found a place in P6 letter dated 15.2.2000. This is a strong circumstance that is sufficient to negative the case of the complainants regarding short supply of parts of some of the dental equipments. So, the case of the complainants that there was short supply of parts of some of the items can not be accepted. 14. The complainants have also got a case that the opposite party supplied 65 KV X-ray unit in the place of 70KV X-ray unit. But opposite party has contended that there was no so much price difference between 70KV X-ray and 65 KV X-ray unit. RW1 has categorically deposed that the price difference is only Rs.500/-. In support of the said case of RW1 has relied on Ext.R3 quotation dated 30.10.2000 issued by Techno Dento Equipments Pvt. Ltd. Quoting the price of 65KV X-ray unit and that of 70KV X-ray unit. R3 document would show that the price difference between 65 KV X-ray unit and 70 KV X-ray unit is Rs.500/- only. Moreover, RW1 has also got a case that the complainants were fully satisfied with the X-ray unit supplied and no objection was raised at any point of time by the complainants. Moreover, there is also no whisper in Ext.P6 letter issued by the 1st complainant regarding the issuance of X-ray unit without complying with the specification. The complainants could not adduce any evidence to show the price of 65 KV X-ray unit. It is deposed by PW1 that the price of the 65 KV X-ray unit would be below Rs.43,000/-. But, the complainants are not sure about the actual price of 65 KV X-ray unit. On the other hand, R3 document would give a clear picture about the price difference of 65 KV and 70KV X-ray units. More over, there is nothing on record to show that the complainants raised any objection in the supply of 65 KV X-ray unit instead of 70 KV X-ray unit. 15. The complainants have stated that they cancelled the 10th item in P1 quotation namely dental forceps, elevators other tools and materials amounting to Rs.20,000/-. But there is no acceptable evidence to show such cancellation was made by the complainants. On the other hand, the available materials on record would show that the item No.10 was also supplied. Opposite party as RW1 has categorically denied the said case regarding cancellation of item No 10 of P1 quotation. On the other hand, he deposed that the said item was also supplied. As far as the said case of cancellation of item No.10 of Ext.P1, there is no supporting document other than the interested testimony of PW2. But, P6 letter is silent about such a cancellation. It is to be noted that there was no demand for refund of the said amount vide Ext.P6 letter. Thus, the complainants have also failed to substantiate the said case regarding cancellation of item No.10 of P1 invoice. 16. The complainants have alleged deficiency in service on the part of the opposite party in his failure to effect after sales service and maintenance of the dental equipments supplied to the complainants. But there is no document evidencing the alleged agreement for after sales service or maintenance. It is true that RW1 has deposed that during the warranty period the service and maintenance have to be effected by the supplier. But in this case no warranty has been issued for the dental equipments supplied by the manufacturer. It is also to be noted that the complainants have never requested for any warranty for the said equipments. They have also no case that the said equipments were covered by warranty. In the absence of any such warranty, the opposite party cannot be burdened with the liability to attend the after sales service and maintenance. More over, there is no whisper in the complaint about the warranty provided for the equipments supplied by the opposite party. On the other hand, RW1 has categorically deposed that the equipments were installed at his instance. The complainants never requested the opposite party for effecting any after sale service or maintenance. It may be correct to say that the said equipments were not in need of any such service or maintenance and that might be the reason the complainants never demanded for after sales service or maintenance. It is also to be noted that in P6 letter the complainants had no such case of failure on the part of the opposite party to effect after sales service and maintenance. The complainants have not succeeded in establishing the alleged deficiency in service and unfair trade practice on the part of the opposite party. 17. The Forum below considered the alleged deficiency in service referred to in P6 letter dated 15.2.2000 issued by the 1st complainant to the opposite party. In P6 letter it was specifically stated that the opposite party collected over charges from the complainants and that the opposite party is liable to refund the excess price collected from the complainants. It was also categorically stated in P6 letter that in the event of failure to refund the excess amount within 10 days of receipt of P6 letter, the complainants will be forced to seek legal help. So, P6 can not be treated as personal letter issued by the 1st complainant on cordial terms. But, Ext.P6 letter can be treated as legal notice issued by the complainant to the opposite party informing the opposite party to settle the matter within 10 days of receipt of P6 letter. Had there been any other grievance for the complainants that would have mentioned in P6 letter. The 2nd complainant as PW1 has categorically deposed about the grievance of the complainants and issuance of P6 letter. It is deposed as follows “Ext.P6 is the notice issued by 1st complainant to the opposite party. Ext.P6 reflects our true and actual grievance.” The aforesaid admission was made by PW1 when she was examined on 28.8.2000. The 1st complainant was examined as PW2 on 5.10.2000. It is PW2 who deposed that P6 was a personal letter issued by him to the opposite party; hence the entire dispute was not narrated. The aforesaid version of PW2 is inconsistent with the testimony of PW1. It can be inferred that PW2 has developed another case deviating from the oral version of PW1. The aforesaid contradiction or inconsistency would make it clear that the grievance of the complainants was mentioned or narrated in P6 letter. The Forum below is perfectly justified, in dealing with the claim of the complainants as alleged in P6 letter dated 15.2.2000. There is no meaning or basis in finding fault with the Forum below in not going into the other allegations of the complainants in the complaint in OP.251/2000. This State Commission have also considered the other allegations in the said complaint and also considered correctness of those allegations with respect to the evidence available on record. This Commission is of the view that the complainants have not succeeded in establishing the allegations stated in the complaint in OP.251/2000. 18. The Forum below considered the case of the complainants regarding the excess price collected by the opposite party. That aspect was considered in detail with respect to the documentary evidence available on record. The discussions on that issue in para 7 to 18 would make it abundantly clear that the said issue was considered elaborately with reference documentary evidence available on record. We do not find any sustainable reason or ground to interfere with the aforesaid findings and conclusions made by the Forum below. Thus, the Forum below has rightly directed the opposite party to refund Rs.3958/- with interest. 19. The payment of Rs.28000/- by the opposite party to the father of the 2nd complainant is admitted. It is evidenced by R1 receipt. It would show that the aforesaid payment of Rs.28,000/- was received by the father of the 2nd complainant on 13.3.99. The case of the complainants and that of the opposite party regarding payment of Rs.28,000/- was considered by the Forum below and rightly held that the case advanced by the complainants and opposite party regarding payment of Rs.28000/- cannot be believed or accepted. The Forum below considered that aspect in detail and tried to find out the truth in that transaction. The Forum below succeeded in its attempt to find out the truth with respect to the said transaction and has rightly held that the price in Ext.P1 was over quoted for the purpose to submitting the Ext.P1 quotation before the bank for the purpose of availing loan. The aforesaid over quoted price has been paid by the opposite party to the complainant. The aforesaid finding is also supported by the testimony of PW1. It is deposed by PW1 that the sum of Rs.28000/- paid to the complainants can not be treated as an advance because the complainants have to pay back the said amount to the bank. “ We cannot keep Rs.28000/- advanced to us by the bank as we have to pay back to the bank”. The aforesaid version given by PW1 would give an indication that the aforesaid sum of Rs.28000/- paid to the complainants was the amount due to the complainants. The Forum below is perfectly justified in passing the impugned order . Thus, in all respects the present appeal deserves dismissal. These points are answered accordingly. In the result the appeal is dismissed. The impugned order dated 15.5.01passed by the CDRF, Kozhikode in OP.No.251/2000 is confirmed. As far as the present appeal is concerned there will be no order as to costs. SRI.M.V.VISWANATHAN : JUDICIAL MEMBER SRI.M.K.ABDULLA SONA : MEMBER Ps APPEAL 879/06 JUDGMENT DATED: 23.4.2010 The above appeal is directed against the order dated 21st February 2006 of the CDRF, Kannore in OP.71/2002. The complaint therein was filed by the respondent herein as complainant against the appellants/opposite parties 1 to 3 alleging deficiency in service on the part of the opposite parties in collecting the service charges and repair charges collected from the complainant by the opposite parties during the warranty period with respect to the vehicle purchased by the complainant from the opposite parties. Before the Forum below Exts.A1 to A4 documents were marked on
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