DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD

Dated this the 22^nd day of May 2009.

Present : Smt. H. Seena, President

: Smt. Preetha.G. Nair (Member)

: Smt. Bhanumathi.A.K. (Member)

C.C.No.07/2008

Linson.C.T

Managing Partner

M/s. ELCEE TEE Industries

Manali Road

Palakkad - Complainant

(Adv. Viju.K. Raphel)

V/s

M/s. Terrotec Engineers & Associates

(Represented by its Proprietor

Shri Krishnarajan)

V/11/263(6), Chilanka Complex

Kannara Street.

Palakkad – 678 001 - Opposite Party

( Adv. Gopinathan.K. )

O R D E R

By Smt. H. Seena, President

Complainant is the Managing Partner of a firm running a workshop named M/s. ELCEE TEE Industries. He is making his livelihood from the earnings from the workshop. On 04/10/2006 complainant approached the Opposite party for supply of a lathe machine to his workshop. The total value of lathe machine as offered by Opposite party was Rs.2,20,824/-. As per the terms and conditions of the offer, Opposite party has to supply the machine within 50 days from the receipt of the advance amount. Complainant availed loan from Federal Bank and made an advance of Rs.50,000/- by Demand Draft dated 10/10/2006. Opposite party received the same and issued receipt. According to the complainant, Opposite party has not supplied the machine within the stipulated time. Complainant requested the opposite party many times to supply the machine as per the offer, but the opposite party after almost one year from the date of offer, insisted the complainant to pay further amount than the agreed price. Opposite party demanded an amount of Rs.3,31,176/- as against the agreed price of Rs.2,20,824/-. Opposite party refused to refund the advance of Rs.50,000/- already paid by the complainant and insisted the complainant to take delivery of the machine after paying an additional amount . As the complainant was in urgent need of the machinery, balance amount was also paid by availing loan. Opposite party supplied the lathe

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machine on 19/09/2007. The grievance of the complainant is that opposite party failed to supply the machinery at the agreed cost of Rs.2,20,824/- within the agreed time limit and thus committed deficiency in service. Further opposite party instead of supplying the machine at the agreed price within the agreed time limit supplied the same after one year by extracting excess money from the complainant. Complainant claims refund of excess amount collected together with Rs.50,000/- as compensation.

Opposite party filed version with the following contentions.

The first contention of Opposite party is that complaint is not maintainable as it was admittedly purchased for commercial purpose. Opposite party admits the receipt of Rs.50,000/- as advance. The delay caused in delivery was not due to the fault of opposite party. Complainant did not take delivery of machine by paying the balance amount as per the offer for about 9 months. After that complainant made a offer to buy another brand lathe machine which was bigger and costlier than the earlier ordered one. Opposite party accordingly gave new quotation. Submitting the same complainant again availed loan. Complainant paid the whole amount and lathe machine was supplied by the Opposite party. According to the opposite party there is no deficiency in service or unfair trade practice on their part. The machine supplied is of another brand costing higher price than the earlier ordered one.

Both parties filed proof affidavits. Exhibit A1 to A6 marked on the side of the complainant. Complainant filed answer to the questionaire filed by Opposite party.

Now the issues for consideration are:

1. Whether the complaint is maintainable?

2. Whether there is deficiency in service on the part of Opposite party?

3. Whether opposite party has exercised unfair trade practice?

4. If so, what is the reliefs and cost?

For the sake of convenience whole issues are considered together.

Complainant has specifically stated in the affidavit that he is running the workshop for his livelihood. Hence complainant is a consumer and complaint maintainable before the forum.

The definite case of the complainant is that as per the terms and conditions of the offer lathe

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machine was to be supplied within 50 days from the receipt of the advance amount. Advance payment of amount vide Demand Draft dated 10/10/2006 is admitted by opposite party. But according to opposite party, complainant failed to take delivery of the machine for a period of about 9 months by paying the amount as per the conditions of offer and hence opposite party was not able to deliver the same. Further no legal action was taken by the complainant for not delivering the machine within 50 days. According to opposite party, that itself shows that the say of the complainant is untrue.

Going through the evidence on record, it can be seen that no notice was sent by the complainant claiming the advance amount nor any legal action was initiated against the breach of contract. Instead complainant accepted the latter offer, made positive steps of availing loan as per the new quotation, paid the whole amount with no objection and purchased the lathe machine.

We are of the view that the acts of the complainant amounts to implied acceptance of the latter offer. Further going through the answers filed by the complainant for the questionaire supplied by Opposite party, it can be seen that brand offered as per the earlier quotation was 'STAR' model and the latter was 'SOHAL' model. Verifying Exhibit A1 and A5, it can be seen that Sohal model is larger in size than the Star model.

Hence we are of the view that price difference is due to the difference in the brand offered, for more facilities and larger size of the machine. Complainant with no objection has accepted the same.

From the foregoing discussions we are of the view that there is no deficiency of service or unfair trade practice exercised by the opposite party.

In the result complaint dismissed. There shall be no order as to cost.

Pronounced in the open court on the 22^nd day of May 2009

PRESIDENT (SD)

MEMBER (SD)

MEMBER (SD)

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APPENDIX

Witness examined on the side of Complainant

Nil

Witness examined on the side of Opposite party

Nil

Exhibits marked on the side of the complainant

1. Ext. A1 – Quotation dated 4^th Oct 2006 of Terrotec Engineers and Associates

2. Ext. A2 series– Copy of Terms and Conditions of Sale of Terrotec Engineers & Associates

& Copy of Receipt No.14 of Terrotec Engineers & Associates

3. Ext A3 – Copy of cash receipt for Rs.25,000/- of Terrotec Engineers & Associates

4. Ext. A4 – Copy of cash receipt for Rs.256176/- of Terrotec Engineers & Associates dtd 12.9.07

5. Ext. A5 – Copy of Tax Invoice dated 19/09/07

6. Ext. A 6 – Copy of document of Instrument of partnership dated 17.3.98

Exhibits marked on the side of the Opposite Party

Nil

Forums Exhibits

Nil

Forwarded/By Order

Senior Superintendent