Per Sri A. Hazarath Rao,  President:-

        The complainant filed this complaint u/s 12 of the Consumer Protection Act seeking relief against 2^nd opposite party only claiming refund of Rs.2,00,000/- being the variation of price; Rs.35,000/- being the value of eye let machine; Rs.84,000/- and Rs.14,700/- being the interest on the above amounts @24% p.a., from 04-06-10 to 03-04-12; Rs.2,00,000/- towards mental agony; Rs.3,00,000/- towards compensation and Rs.50,000/- towards legal expenses.

2.   In brief the averments of the complaint are these:

The complainant is a post graduate and her husband is a polytechnic diploma holder.   Being un-employees the complainant and her husband though of introducing paper carry bags under small scale self employment scheme.  The paper carry bags making unit gives 35% of subsidy on the loan amount.   The complainant is proprietor of M/s Akshaya Industries.  The 2nd opposite party issued quotation on 12-03-10 for Rs.8,70,000/- excluding taxes and transport charges for paper bag making machine model senior 2 – III with four color online printing.   The 1^st opposite party sanctioned the loan and provided the subsidy.   The complainant on 04-06-10 purchased the paper bag manufacturing machine from the 2^nd opposite party for Rs.9,23,100/-.  The invoice contained the model of the machine as senior-2 model along with eyelet machine worth of Rs.35,000/-.   The 2^nd opposite party failed to deliver the eyelet machine though collected amount.  The complainant paid Rs.41,290/- towards fright charges on the date of delivery.   The 2^nd opposite party delivered and erected machine in the premises of the complainant.  The period of warranty was one year from the date of purchase.   The 2^nd opposite party did not supply spares to the complainant which were needed to commence the printing.   The complainant surprised to note that the said machine gave only two colors instead of four colors online printing.   The 2^nd opposite party supplied two color printing machine as against the sale invoice.   The complainant informed the said fact to the Marketing Manager.  The 2^nd opposite party failed to supply the agreed compulsory spares without assigning any reasons.   The actual output is 6000 paper bags per hour with four colors.   Non availability of spares and insufficient colors gave total loss of production and quality.   The complainant lost the market due to less production on account of inferior quality model supplied by the 2^nd opposite party.   The complainant was forced to pay Rs.43,000/- towards EMI to the 1^st opposite party for discharge of loan without receiving any business.   The complainant started the business for eking out her livelihood.   The 2^nd opposite party committed deficiency of service by supplying low capacity machine to the complainant though received amount.  The complaint therefore be allowed.       

3. The 1^st opposite party remained exparte.

4.  The contention of the 2^nd opposite party in brief is thus:   The complainant is not a consumer within the meaning of Consumer Protection Act, 1986 as she is doing commercial business.    The opposite party sent paper bag making machine model Senior 2-III with four color online printing machine to the complainant at Guntur as per her request.   The 2^nd opposite party is not aware of the loan obtained by the complainant from the 1^st opposite party.   The complainant’s husband visited the factory at Amritsar and was well versed with the three various types of machines available in the factory.  The 2^nd opposite party sent their technician to the complainant’s place in order to explain the mode of machine.   The complainant has started the production of paper bags with four color.   The complainant ought to have mentioned the same in several e-mail communications if really the 2^nd opposite party have supplied two color machine only.   There was some delay in sending the double eyelet machine, but instead sent single eyelet machine to the complainant.   The 2^nd opposite party refunded the differential amount of Rs.31,500/- through cheque bearing No.374383 dated 08-06-11 of ICICI Bank in the name of complainant’s husband.  The present case requires a detailed examination of the terms of the agreement and evidence of technicians to substantiate the deficiency of the 2^nd opposite party.   In order to avoid payment of court fees in Civil court the complainant approached this Forum suppressing material facts.   This Forum has no jurisdiction to try the complaint as it was mentioned in the invoice “subject to Hyderabad jurisdiction”.   The complaint is barred by limitation.  The complaint is bad for non joinder of necessary parties.   The complaint therefore be dismissed.             

5.  Exs.A-1 to A-14 and Exs.B-1 to B-6 were marked on behalf of complainant and 2^nd opposite party respectively.

6.     Now the points that arose for consideration in this case are:

1. Whether the complaint is barred by time?
2. Whether this Forum has territorial jurisdiction to entertain the complaint?
3. Whether the complainant is a consumer under the purview of Consumer Protection Act?
4. Whether the 2nd opposite party committed deficiency of service?
5. Whether the complainant is entitled to compensation from 2^nd opposite party and if so to what amount?
6. To what relief?

7.  POINT No.1:-   The 2^nd opposite party on 04-06-10 supplied heavy duty paper bag forming machine with online color printing with slitting and rewinding attachment, model senior 2-B complete with eyeleting, with all accessories including creasing machine as seen from Ex.A-6 invoice.   The complainant filed this complaint on 28-04-12.  Therefore the complaint is in time.   We therefore answer this point in favour of the complainant.   

8.  POINT No.2:-    A complaint can be instituted where part of cause of action had arisen in part or wholly as per section 11(2)(c) of the Consumer Protection Act.   In this case the technician of the 2^nd opposite party erected the machine at complainant’s place as seen from their version.   Therefore a part of cause of action arose at Tenali within the jurisdiction of this Forum as rightly contended by the complainant.   On the other hand,  the 2^nd opposite party relied on Ex.A-6 invoice to oust the jurisdiction of this Forum.   Ex.A-6 invoice amounted to a contract between the complainant and the 2^nd opposite party as rightly contended by the 2^nd opposite party.   The 2^nd opposite party was doing business at Hyderabad and sold the subject machine.  

9.     Ex.A-14 was copy of bill dated 04-06-10 wherein it was mentioned “subject to Amritsar jurisdiction”.   Under Ex.A-14 the 2^nd opposite party got one heavy duty paper bag forming machine model senior-2B with online printing double color with slitting and rewinding attachment.  That is why it was mentioned in Ex.A-14 “subject to Amritsar jurisdiction”.   Ex.A-14 is a contract between the 2^nd opposite party and its manufacturer and as such in our considered opinion in no way help the complainant regarding jurisdiction.   There is no privity of contract between the manufacturer of the said machine and the complainant regarding jurisdiction.   The cause of action arose both at Hyderabad where the opposite party was doing business and at Tenali where the machine was installed.             

10.   The complainant based his complaint on Ex.A-6 invoice dated 04-06-10.   We already observed that Ex.A-6 amounted to a contract between the complainant and the 2^nd opposite party.   It is well settled in law when two adjudicatory Forums are having territorial jurisdiction parties can consent or fix to have jurisdiction at a particular place.   The 2^nd opposite party against whom the relief claimed was doing business at Hyderabad.  Therefore we opine that the clause “subject to Hyderabad jurisdiction” in Ex.A-6 is not opposed to public policy.   The contention of the complainant that this Forum has jurisdiction to entertain the complaint cannot be accepted in view of the clause stated supra in Ex.A-6 invoice.   Under those circumstances returning the complaint  for presentation before the proper Forum will meet ends of justice.   We therefore answer this point against the complainant.

11.  POINTS 3 to 5:-   In view of above findings on point No.2 we are of the considered opinion that these points need not be discussed.  Therefore the decisions relied on by both parties touching merits of case in our considered opinion need not be gone into. We therefore answer these points accordingly.

12.  POINT No.6:- In view of our findings on point No.2 the complaint is returned for presentation before the proper Forum.  The parties are directed to bear their own costs.

            Typed to my dictation by Junior Steno, corrected by me and pronounced in the open Forum dated this the 30^th day of October, 2012.

MEMBER                                  MEMBER                                PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For 2^nd opposite party: 

        PRESIDENT