ORDER

(Per: Mr.  D.K. Tyagi, Member):

The complainant has filed this consumer complaint before this Commission under Section 12 read with Section 18 of the Consumer Protection Act, 1986, against opposite parties with the prayer that the opposite party No. 1 be directed to deliver TATA Hitachi Hydraulic Excavator Mode Ex-200LC at the site of complainant, i.e at Rima, District Bageshwar or to award the amount of price of the said machine amounting to Rs. 42,53,590/- alongwith interest @ 18% per annum from the date of receiving the same by opposite party No. 1 through opposite party No. 2 and Rs. 5,00,000/- towards compensation of loss of work and mental agony on the basis of deficiency in service on the part of opposite party No. 1 and cost of the litigation.

2.       The complainant has stated in the consumer complaint that the complainant is the proprietor of M/s Sher Singh Suppliers, Kishanpur Sakulia, Mota Haldu, Tehsil Haldwani, District Nainital, as such some tools and machinery are required for funning his work and to earn his livelihood smoothly for his own use and to improve his work not for any commercial purpose. The opposite party No. 1-Telco Construction Equipment Ltd., New Delhi is the supplier and manufacturer of Tata Hitachi Hydraulic Excavator Mode Ex 200 LC (hereinafter referred to as “the machine”).  After considering the quotations of the said machine, the complainant sent the purchase order to opposite party No. 1 which amounts to Rs. 42,53,590/- for the purchase of said machine.  For the purchase of above mentioned machine, the complainant obtained a loan from opposite party No. 2-HDFC Bank Ltd., Commercial Transport Corporation Group, Civil Lines, Bareilly, which was duly sanctioned by the said bank vide its letter Ref/DO No. DO/CE/BLY/043 dated 29.08.2009.  After depositing the margin money by the complainant in the bank, opposite party No. 2 issued a bank draft of Rs. 42,53,590/- to opposite party No. 1, i.e. manufacturer/supplier of the said machine and afterwards opposite party No. 1 intimated that it has received the draft of Rs. 42,53,590/- towards the price of the machine under the hypothecation to opposite party No. 2 and remaining of Rs. 66,020/- was deducted from the invoiced amount towards subvention and insurance as special condition imposed by opposite party No. 2.  That vide letter dated 08.08.2009 the complainant intimated to opposite party No. 1 regarding the purchase order of the said machine.  It was specifically mentioned in the said letter that the transport charges and comprehensive insurance will be given by the opposite party No. 1 free of cost and freight transport charges from Dharwad to complainant’s site Rima, District Bageshwar be included in the above price meaning by it is very much clear that the delivery of the machine will be made at complainant’s site.   Inspite of various letters and reminders, opposite party No. 1 did not make the delivery of the said machine to complainant at his site Rima, District Bageshwar, while the opposite party No. 2 financier bank intimated to the complainant that the said machine will be delivered to the complainant within a week after disbursement of the price money to the opposite party No. 1 and the opposite party No. 2 vide its letter dated 29.08.2009 gave instruction to opposite party No. 1 as instruction No. 2, but the opposite party No. 1 did not pay any heed to the said instruction and declined to deliver the said machine to the complainant. Due to non-delivery of the said machine by opposite party No. 1 to the complainant, the complainant is suffering a huge amount of loss in his work as well as mental agony due to not supplying the said machine within reasonable and stipulated time period of delivery of machine.  The complainant is the consumer of the opposite parties and due to deficiency in service on the part of the opposite party No. 1, the complainant is suffering great financial loss.  For running the work smoothly, the complainant has to hire the machine at the rate of 3000/- per hour for 8 hours daily for his work and spent an amount of Rs. 24,000/- per day and the opposite party No. 1 is solely responsible for the loss of complainant.  It is also relevant to mention here that the complainant is also suffering the loss of interest upon the above amount (cash amount + loan amount) given by the complainant to the opposite party No. 1 through opposite party No. 2 and the opposite party No. 2 started the proceeding of recovery of loan amount against the complainant.  The complainant also served the registered notice upon the opposite parties through his counsel Sh. Yogendra Singh Chuphal, but the opposite parties did not pay any heed and inspite of resolving the grievances of the complainant, the opposite party No. 1 sent the reply dated 19.01.2010 on the basis of false, fabricated and made out facts and did not make the delivery of the machine till now despite receiving the full amount of the price of said machine and caused great financial loss and mental agony to the complainant.  The complainant is entitled to get delivered the above said machine at his site at Rima, District Bageshwar or in default is entitled to get back the amount of Rs. 42,53,590/- to the opposite party No. 1 by the complainant through opposite party No. 2 alongwith interest @ 18% per annum from the date of receiving the said amount by the opposite party No. 1 till date of actual payment.  The complainant is also entitled to get compensation of loss of his work due to deficiency in service on the part of the opposite party No. 1 amounting to Rs. 5,00,000/-. The cause of action arose to the complainant due to non-delivery of the said machine by the opposite party No. 1 to the complainant’s site, i.e. Rima, District Bageshwar, within reasonable and stipulated period from the date of receiving the amount of price of said machine and cause great financial loss and inconvenience in running the own business of the complainant and due to not paying any heed to the repeated requests and reminders made by the complainant to the opposite party No. 1 regarding the supply of the said machine and on 19.01.2010 when the complainant sent notice to the opposite parties which was served upon the opposite parties, but not complying the same by the opposite parties and due to deficiency in service on the part of the opposite party No. 1 and the same is continued.  The cause of action arose to the complainant at Rima, District Bageshwar (Uttarakhand) within the jurisdiction of the State Commission and this Commission has both territorial and pecuniary jurisdiction to try and decide the complaint.

3.       The opposite party No. 1-Telco Constructions Equipment Ltd. neither appeared before this Commission nor filed any written statement on record.  Therefore, vide order dated 19.01.2012 and 01.07.2015, the matter proceeded ex-parte against the opposite party No. 1.

4.       The opposite party No. 2 has filed the written statement and has pleaded that para No. 1 of the consumer complaint is not admitted.  Para No. 2 is related to opposite party No. 1, hence, no need to reply.  Para No. 3 of the consumer complaint is admitted that the complainant had obtained a loan from opposite party No. 2 for purchase of machine.  An amount deducted by the answering opposite party shall be according to the rules of loan etc.  Para Nos. 5 & 6 of the consumer complaint are not admitted.  Para No. 7 of the consumer complaint is denied that the machine was not supplied to the complainant.  Para No. 8 is denied.   Para No. 9 of the consumer complaint is admitted that the answering opposite party had sanctioned loan to the complaint to purchase the said machine.  It is denied that the complainant had sent any legal notice dated 19.01.2010 to answering opposite party or this notice was ever received by the answering opposite party.  No cause of action arose in favour of the complainant against the answering opposite party.  In additional pleas, the answering opposite party has pleaded that the complaint is not maintainable.  The answering opposite party had sanctioned a loan to the complainant for purchase of machine, which was to be returned to the bank in 35 months. The said machine was supplied to the complainant at his site as per his direction.  The answering opposite party has stated that the complainant was not paying the loan amount and cheques issued by the complainant were being not honoured.  Therefore, the answering opposite party had sent its employees to meet the complainant, who requested the complainant to pay the loan amount.  A proposal was also given to the complainant that in case, he is unable to repay the loan amount, then he should handover the machine to the answering opposite party, but the complainant apprised the employees of answering opposite party that the said machine met an accident and fallen down into gorge, for which he had already lodged a complaint on 21.09.2009 at reporting police post, Rima.  It is also informed by the complainant that no person sustained injuries in this accident.  It is categorically denied that the said machine was never supplied to the complainant. In case, the said machine was not received by the complainant, then why did he lodge the complaint about accident of said machine to the police?  It is clear that the said machine had been received by the complainant and after receiving the said machine and its accident, the behaviour of the complainant had changed.  He does not want to return or repay the loan amount, therefore, to harm the answering opposite party, the complainant is wrongly stating that he had never received the said machine. The complainant is trying to avoid the payment of loan amount. The answering opposite party demanded installment of loan amount from the complainant and also requested the complainant that the said machine is insured with the Oriental Insurance Co. Ltd., therefore, the complainant may claim insured amount from the insurance company and should pay the amount to the answering opposite party.  But the complainant had refused to pay any installment of loan amount to the answering opposite party and also refused to pull out the said machine from the gorge and also refused to claim of the said machine from the insurance company. Thereafter, the answering opposite party contacted the insurance company and a letter dated 30.12.2010 was sent to the Divisional Manager of the Oriental Insurance Co. Ltd.  The Oriental Insurance Co. Ltd. had also sent a letter to the complainant, but the complainant had never replied to the insurance company. Thereafter the answering opposite party after giving the intimation to the insurance company and opposite party No. 1 and Police Station, Bageshwar, pulled out the said machine from the gorge.  This machine was repaired and kept in yard.  The answering opposite party spent Rs. 9,63,497/- in repair of the said machine as well as the cost of pulling out the machine from the gorge and also spent Rs. 92,667/- as expenses of guard from 20.06.2010 to 04.11.2011.  In this way, the answering opposite party had already spent Rs. 10,56,161/-.  The answering opposite party is not liable to pay any amount to the complainant, rather the answering opposite party-bank is facing economical loss, as the complainant has not repaid the loan amount.  The consumer complaint is liable to be dismissed.

5.       The complainant has filed an affidavit of Sh. Sher Singh, the complainant himself, in evidence alongwith copy of delivery order dated 29.08.2009 of HDFC Bank annexure-Ka1 (paper No. 41) and copy of police complaint dated 21.09.2009 annexure-Ka2 (paper No. 42), copy of one more police complaint dated 10.11.2009 annexure-Ka3 (paper No. 43), risk held cover letter dated 24.09.2009 annexure-Ka4 (paper No. 44), receipt of The Oriental Insurance Co. Ltd. dated 27.10.2009 (paper No. 45), Contractors Plant and Machinery Policy Schedule (paper Nos. 46 & 47), copy of letter dated 08.08.2009 and copy of letter undated sent by M/s Sher Singh Suppliers to Telco Construction Equipment Co. Ltd. (paper Nos. 48 & 49). 

6.       The opposite party No. 2-HDFC Bank has filed an affidavit of Sh. Amit Saxena, Power of Attorney and Law Officer (paper Nos. 53 to 58). The opposite party No. 2 has also filed certain documents vide list at paper No. 59.  Copy of statement of account of Sh. Sher Singh (paper Nos. 60 to 64), photocopy of letter dated 23.03.2011 of HDFC Bank to M/s Sher Singh Supplier (paper No. 65), copy of proforma invoice of Telco Construction Equipment Co. Ltd. (paper No. 66), photocopy of letters dated 08.11.2010 sent to M/s Sher Singh Supplier (paper Nos. 67 & 68), photocopy of letter dated 30.12.2010 of HDFC Bank to Senior Divisional Manager of The Oriental Insurance Co. Ltd. (paper No. 69), photocopy of reply dated 21.12.2010 of notice by Marcos and Co. (paper No. 70), photocopy of post-repossession intimation to Police Station, Bageshwar dated 03.11.2010 by HDFC Bank (paper No. 71), photocopy of inventory of items in vehicle (paper No. 73), photocopy of Survey Fee Bill (paper No. 74) and photocopy of spot survey by The Oriental Insurance Co. Ltd. dated 04.03.2010 (paper No. 75).  The opposite party No. 2 has also filed one more affidavit of Sh. Amit Saxena (paper Nos. 78 to 80) alongwith copy of proceedings under Arbitration and Conciliation Act. Annexure-Ka and evidence by way of affidavit on behalf of HDFC Bank, i.e. petitioner before Arbitrator Annexure-Kha and copy of award dated 30.11.2012 (paper Nos. 81 to 94), photocopy of police complaint dated 21.09.2009 (paper No. 95) and copy of reply of notice by Marcos & Co. dated 21.12.2009 (paper No. 96).

7.       The complainant has filed written arguments (paper Nos. 100 to 105) and the opposite party No. 2 has also filed the written arguments (paper Nos. 109 to 114).

8.       Learned counsel for the complainant has submitted the written arguments before us that the opposite party had informed the opposite party No. 1 regarding purchase order vide letter dated 08.08.2009 (paper No. 15) and regarding delivery order dated 29.08.2009 (paper No. 13) in which it was explained that the complainant had obtained a loan of Rs. 32.00 lacs.  In the letter of D.O. special conditions were there that Rs. 66,029/- of the funding is subvention and 0.08% on invoice amount will be deducted against insurance.  It was also specified that this delivery order is valid only for 07 days from the D.O. date.  If the asset is invoiced after the validity period, the D.O. needs to be revalidated by HDFC Bank Ltd.  The revalidation will be applicable for 07 days from date of revalidation.  Learned counsel has argued that on 08.08.2009 the complainant had also informed the opposite party No. 1 that transport charges and insurance is on the part of opposite party No. 1 during transportation of the machine from Dharward to Rima, District Bageshwar and machine be delivered after receiving draft from the HDFC bank.  Even then the opposite party No. 1 did not deliver machine to the complainant.  The advocate of the complainant sent a legal notice dated 19.01.2010, but it was never replied by the opposite parties.  Learned counsel for the complainant has submitted that he has never received the said machine at the site.  The opposite party No. 2 has not produced any receipt of delivery of the said machine to the complainant before this Commission.  It is stated in para 18 of the written statement of the opposite party No. 2 that the said machine met an accident for which an FIR was registered at reporting police post on 21.09.2009.  Real fact is that on 21.09.2009 some person named Kesar Singh had lodged report and again on 10.11.2009 a similar report was lodged at reporting police post by some Kesar Singh about the accident of the said machine.  Real fact is that when the said machine transported from Dharward to the site of the complainant at Rima, District Bageshwar, at that time the said machine was not insured and when on 21.09.2009 the said machine met an accident then the said machine was insured on 24.09.2009 from Bharti Aviva General Insurance Co., which was valid up to 23.09.2010 and again the opposite party No. 2 took insurance of the said machine on 27.10.2009 from The Oriental Insurance Co. Ltd..  Therefore, to conceal its negligence, the opposite party No. 2 lodged another report at police post Rima through some Kesar Singh on 10.11.2009.  The complainant had received both the police report as well as both insurance covers policies through post.  Therefore, it is clear that the opposite parties had never delivered the said machine to the complainant and the said machine met an accident before reaching at its destination at Rima, District Bageshwar.  The complainant had already paid money for the insurance to the opposite parties, even then they did not take insurance before transportation of the said machine.  Learned counsel also argued that it is strange that if the machine had already delivered to the complainant, then why did the said machine was pulled out by the insurance company and the bank.  Actually this machine met an accident at about 20 Kms from Rima before reaching its destination.  It is also strange if the said machine met an accident on 21.09.2009 and the insurance company had insured this machine on 27.10.2009 then why did the insurance company came to pull out this machine before 27.10.2009.  Learned counsel has also argued that he does not know Kesar Singh and the opposite party No. 2 has not produced Kesar Singh in evidence.

9.       Learned counsel for the opposite party No. 2 has filed written arguments and submitted that the opposite party No. 2 is only a financier of the said machine.  The opposite party No. 2 provided a loan to the complainant.  The said machine was to be delivered by the opposite party No. 1 to the complainant at site Rima, District Bageshwar, but according to the complainant the said machine met an accident before reaching the destination.  Learned counsel has submitted that if the machine was not delivered to the complainant then why did report was lodged on 21.09.2009 about the accident at police out post Rima.  Learned counsel also argued that the complainant is not the consumer of the opposite party No. 2 as according to the complainant he had never received any machine.  According to the complainant he had never used the said machine in his work.  The said machine was to be used in construction work and the construction work of the complainant comes in the definition of commercial use.  Therefore, the complainant does not come under the definition of consumer.  The opposite No. 2 provided a loan of Rs. 32.00 lacs to the complainant, which was never returned or repaid to the opposite party No. 2.  Therefore, the opposite party No. 2 went into the arbitration against the complainant.  The complainant never appeared before the arbitration.  Therefore, the arbitration passed an award against the complainant at present loan amount as well as interest etc. is about Rs. 50.00 lacs outstanding against the complainant, which is public money, which has not been paid to the Bank, therefore, to save money the opposite party requested the insurance company, but the insurance company did not pay any heed towards the request of opposite party No. 2-Bank.  Thereafter, the opposite party No. 2 itself with the help of labours and machines, the said machine was pulled out and after repair, it was kept in the yard. 

10.     From the pleadings as well as evidence on record and the written arguments filed by both the parties, we are of the view that the arguments advanced by the complainant has force.  From the perusal of the purchase letter of machine, it is clear that purchase letter dated 29.08.2009 (paper No. 41) was sent by the opposite party No. 2-Bank to the opposite party No. 1-Telco Construction Equipment Co. with all the terms and conditions.  The asset cost of the machine was Rs. 42,53,590/.  Finance amount was Rs. 32.00 lacs and subvention was Rs. 32,000/- as per scheme. There was special condition that Rs. 66,029/- (32000+34029), 1000 per lac of the funding as subvention and 0.8% on invoice amount will be deducted against insurance.  In other important instructions in the purchase order, it was clearly mentioned that kindly do not invoice without a copy of comprehensive insurance for the above asset.  Therefore, it was the duty of the opposite party No. 1 to send the said machine after invoice with comprehensive insurance.  The said machine was transported by the opposite party No. 1 from Dharward to the site place Rima, District Bageshwar without insurance.  There is no evidence on record to show that the said machine was ever delivered to the complainant at his site Rima at District Bageshwar.  Rather two different copies of police reports dated 21.09.2009 and 10.11.2009 (paper Nos. 42 and 43) as well as two insurance cover letters dated 24.09.2009 and 26.10.2009 (paper Nos. 44 and 46) filed on record, which were received by the complainant through post indicates that some Kesar Singh lodged police report at reporting police post at Rima, Kapkot, District Bageshwar on 21.09.2009 and similar report lodged by some person Kesar Singh on 10.11.2009 indicating that the said machine fallen down on 21.09.2009 at about 6:30 a.m. near Chattikhet.  There is no explanation by either of the parties that why did these two similar reports were lodged at police outpost Rima on 21.09.2009 as well as 10.11.2009.  Interestingly in one report dated 21.09.2009 it is mentioned that the said machine fallen down at 6:30 a.m. where in other report dated 10.11.2009 (paper No. 43) it is mentioned that the said machine fallen down in the gorge on 10.11.2009 at 6:30 a.m. The complainant has categorically denied that these complaints have never lodged at police station Rima by him or is man.  The complainant does not know Kesar Singh, who lodged these complaints in police on two different occasions.  Similarly, two insurance covers are filed on record, one is for the period from 24.09.2009 to 23.09.2009 taken from Bharti Aviva General Insurance Co. (paper No. 44) and the other insurance policy is for the period from 26.10.2009 to 25.10.2010 (paper No. 46).  In this way, it is clear from the evidence filed on record that the said machine was never received by the complainant at his site Rima, District Bageshwar.  The complainant had never lodged FIR in the police outpost Rima on 21.09.2009 or on 10.11.2009.  The complainant has also did not take any insurance policy from Bharti Aviva General Insurance Co. or from The Oriental Insurance Co. Ltd.  These insurances had been taken either by the opposite party No. 2-Bank or opposite party No. 1, after the said machine fallen down in the gorge on 21.09.2009.  There was no insurance of the said machine before 21.09.2009 when the said machine met an accident near Chattikhet before reaching the destination, i.e. site of the complainant at Rima, District Bageshwar. 

12.     The complainant has not sought any relief from the opposite party No. 2-Bank.  The complaint filed against the opposite parties in which the complainant has sought relief to direct the opposite party No. 1 to deliver the above said machine at the site of the complainant, i.e. Rima, District Bageshwar or to award an amount of the price of the said machine amounting to Rs. 42,53,590/- alongwith interest @ 18% per annum from the date of receiving the same by the opposite party No. 1 from the complainant through opposite party No. 2 till the date of actual payment.  

13.     The complainant has filed evidence in support of his contention in the form of affidavit, which is not controverted by the opposite party   No. 1.  The opposite party No. 1 neither appeared before this Commission nor filed any written statement or evidence in support against the contentions of the complainant. The complainant has not sought any relief against the opposite party No. 2-Bank.

14.     From the evidence filed on record, we are of the view that the evidence filed by the complainant against the opposite party No. 1 has not been controverted through any affidavit or by any documentary evidence, therefore, the complainant has proved his case and the complaint deserves to be allowed against the opposite party No. 1-Telco Construction Equipment Co.

Order

The consumer complaint of the complainant is allowed against the opposite party No. 1-Telco Construction Equipment Ltd.  The opposite party No. 1-Telco Construction Equipment Ltd. is directed to deliver the new machine to the complainant at the site of complainant, i.e. at Rima, District Bageshwar within one month from the date of this order or to pay an amount of price of machine amounting to Rs. 45,53,590/- alongwith interest @ 18% per annum from 29.08.2009, i.e. date of purchase order.  The opposite party No. 1 is also directed to pay Rs. 25,000/- for compensation of loss of work and mental agony caused to the complainant and Rs. 5,000/- towards litigation expenses.

(MRS. VEENA SHARMA)                                                (D.K. TYAGI)