Date of filling : 05.08.2011
Date of order : 30.09.2022
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, VELLORE
PRESENT: THIRU. A. MEENAKSHI SUNDARAM, B.A., B.L. PRESIDENT
THIRU. R. ASGHAR KHAN, B.Sc., B.L. MEMBER – I
SELVI. I. MARIAN RAJAM ANUGRAHA, M.B.A., MEMBER-II
FRIDAY THE 30th DAY OF SEPTEMBER 2022
CONSUMER COMPLAINT NO. 23/2012
P. Arul,
S/o. Pichandi,
Proprietor, P.R. Engineering works,
No.209/7, Jamun Complex Road,
Puliyanthangal, BHEL Post,
Ranipet – 632 406,
Vellore District. ...Complainant
-Vs-
Gujarat Machine Tools,
Rep by Manager R.K. Murthy,
Old No.135, New No.279,
Linghi Chetty Street,
Chennai- 600 001. ...Opposite party
Counsel for complainant : Thiru. S.R. Shanmugham
Counsel for opposite party : Thiru. A. Ramesh
ORDER
THIRU. A. MEENAKSHI SUNDARAM, B.A.,B.L.PRESIDENT
This complaint has been filed Under Section 12 consumer Protection Act 1986. The complainant has prayed this Hon’ble Commission to direct the opposite party to take back the defective machine and to deliver the same model with new one 20” Lathe machine or to repay Rs.5,85,000/- with interest @ 18% from the date of delivery of machine dated 24.01.2011 and to pay a sum of Rs.5,00,000/- for the mental torture and agony and to pay Rs.5,000/- being the cost this complaint.
1.The case of the complaint is briefly as follows:
The complainant is a Proprietor of P.R. Engineering works at Puliyanthangal Village, Ranipet as to do job works by using the Lathe Machine in working out or producing the goods for earning his livelihood by means of self of employment. The complainant further state that his friend one Mr.Pachaiyappan introduced the opposite party to purchase Heavy Duty Lathe Machine as his company under the name as P.R. Engineering Works and the opposite party gave quotation on 18.09.2010 for a sum of Rs.5,85,000/- for 20 feet size Lathe Machine, at that time the complainant pad 1,00,000/- by way of cash and subsequently he has paid Rs. 30,000/- by way of cheque and the balance amount of Rs.4,55,000/- have to be paid by the complainant submitted the quotation. The opposite party agreed to deliver the said Lathe Machine within 30 days to 45 days. The opposite party delivered the machine of 18 feet Lathe Machine on 24.01.2011. Even prior to delivery of the machine the complainant paid through bank to the opposite party on various date such as Rs.2,00,000/- , Rs.1,00,000/- and Rs.1,00,000/- as on date, he has paid nearly about Rs.5,30,000/-, balance amount of Rs.55,000/- also he has paid directly by way of cash to the opposite party. The opposite party delivered only 18 feet Lathe Machine as against agreed to deliver 22 feet lathe machine. At the time of installing the said machine the complainant questioned the opposite party regarding 20 feet Flame Harden Bed Lathe Machine for which the opposite party gave quotation, but delivered 18 feet Lathe Machine to difference place. Apart from the complainant found a crack in the lathe machine and he stopped the work and informed to the opposite party by way email and courier on 19.2.2011 the same was received by the opposite party. On 28.03.2011 the opposite party’s technician inspected the said lathe machine and to replace with new machine as agreed for 20 feet lathe machine. After inspecting the machine, the complainant used to talk with the opposite party through phone but the opposite party is evading to replace the said machine so far. The opposite party gave assurance to the complainant that the machines are good quality and durable for which quotation is given and received price amount, but the opposite party did not sent the machine as agreed. He did not run the machine from the second week of February 2011 which created heavy financial loss to the complainant for which the opposite party is bound to pay the compensation of Rs.5,00,000/-. Hence, this complaint.
2. Written version of opposite party is as follows:
The opposite party denies the allegation in para 1 of the complaint that the opposite party gave quotation on 18.09.2010 for a sum of Rs.5,85,000/- for 20 feet length lathe machine and the complainant is put to the strict proof of the same. The opposite party also denies having agreed to deliver the said lathe machine within 30 days to 45 days from then. They quoted the price for both 20 feet length as well as for 18 feet length lathe machines as requested by the complainant. The opposite party had clearly informed the complainant that the payment for the said machine to be delivered shall to made in advance. In accordance with such agreement by the complainant to pay in advance, the complainant gave a cheque bearing No.536909 for a sum of Rs.30,000/- drawn on Indian Overseas bank in favour of the opposite party, which was dishonoured several times by the complainant, for the reason that the complainant was in a dilemma to go for the 18 feet length machine or for the 20 feet one. Ultimately the complainant decided to go for the 18 feet length lath machine and had requested the opposite party during the end of December, 2010 to supply the 18 feet length lathe machine. Accordingly raised an invoice bearing No.401 dated 24.01.2011 clearly indicating that one number of 18 feet Flame harden bed lathe machine at the rate of Rs.5,20,000/-, wherein the receipt of Rs.5,00,000/- alone by the opposite party was also mentioned, clearly against the terms agreed by the complainant to pay in advance. In view of the business relationship maintained with the complainant, the opposite party delivered the said machine to the complainant, though having not received the entire amount due under the said machine, the Petitioner, though having not received the entire amount due under the said invoice. The opposite party states that initially the complainant agreed to issue C form to the opposite party and on such agreement it was also clearly provided in the said invoice that the failure to issue C form by the complainant, VAT at the rate of 12.5% would be charged by the opposite party in addition. The opposite party states that the said C form is still been not issued by the complainant, the complainant is liable to pay to the opposite party, the VAT at the rate of 12.5% on the invoice amount which amounts to Rs.65,000/-. The balance sum of Rs.55,000/- was paid through cash to the opposite party as the same is false. The payments given by complainant were given credit to and the balance which has not been paid was shown in the invoice itself. The opposite party denies the allegation in para 2 of the complaint that the opposite party answered while delivering the machine that the machine had been changed mistakenly as ht said machine was delivered only at the specific oral order of the complainant and therefore the question of mistaken delivery does not arise. It is pertinent to point out that the invoice had been raised only for 18 feet lathe machine and the same was accepted by the complainant and moreover the complainant had started to run the machine without any protest. The complainant had paid only a portion of the amount claimed in the said invoice towards the delivery of 18 feet lathe machine and the complainant had never paid a sum of Rs.5,85,000/- as claimed by him. While admitting the email received on 19.02.2011, states that no whisper was ever made by the complainant regarding the change of the lathe machine delivered to him as alleged in the present complaint, which itself clearly proves that the petitioner was satisfied with the lathe machine delivered to him. In fact the lathe machine was delivered and installed on 24.01.2011 and the same was run by the complainant till 19.2.2011 and only thereafter the alleged crack in the said Lathe machine was reported to the opposite party. Therefore, it is false to allege crack in the said lathe machine was run only for the period of one week. The opposite party denies having received any courier regarding the crack and puts the complainant to the strict proof thereof. The opposite party reiterates that the complainant is now estopped from contending that a different lathe machine had been delivered mistakenly by the opposite party. The opposite party admits their visit to the comlaninant’s place to inspect the machine with alleged manufacturing defect and denies the allegation that they have agreed to replace the said machine by delivering 20 feet lathe machine as the same is untrue. The complainant had also sent a letter dated 11.04.2011, wherein also there was no mention regarding the delivery of a machine with different size, which makes it very clear that the claim of the complainant that 18 feet machine was delivered instead of a 20 feet lathe machine. The opposite party states that even now the opposite party is prepared to replace the 18 feet machine lying with the complainant with that of a new 18 feet lathe machine provided the petitioner
- pays the balance amount of Rs.20,000/- as per the invoice together with interest at the rate of 12% per annum from 24.01.2011, i.e. the date of delivery of the said machine and
- also either issues the necessary C form or in the alternative bear the VAT at the rate of 12.5% on the invoice amount.
The opposite party is also prepared to alternatively refund the sum of Rs.5,00,000/- received from the complainant towards part payment of the invoice amount together with interest at the rate of 12% per annum from the date of receipt, provided the complainant handing over the 18 feet lathe machine delivered to him on 24.01.2011 to the opposite party. The terms above were also communicated to the complainant by way of reply dated 21.05.2011 which was not taken into account by the complainant and has moved this Hon’ble commission with clean hands. For the amount spent by the opposite party in procuring the said 20 feet lathe machine for the complainant from the date of its purchase. It is only a dealer and cannot be made opposite party for any manufacturing defect. In fact the ownership of the machine lies with the opposite party until the payment has been received by them from the complainant and therefore the complainant is not entitled to retain the machine delivered to him unless he makes the balance payment to the opposite party. Therefore, the Hon’ble Commission may be pleased to dismiss the above complaint as devoid of merits with cost.
3. Proof affidavit of complainant filed. Ex.A1 to Ex.A15 were marked. Proof affidavit of opposite party filed. Document was not filed. Written arguments of both sides filed. Oral argument of opposite party heard.
4. The Points that arises for consideration are:
1. Whether there is any deficiency in service on the part of the opposite
party?
2. Whether the complainant is entitled for relief as claimed in the complaint?
3. To what relief, the complainant is entitled to?
5. POINT NOS.1 & 2: The complainant obtained a quotation from the opposite party for heavy duty lathe machine length of 20 feet at the rate of Rs.5,85,000/-. The complainant paid sum of Rs.1,00,000/- by way of an advance. The said quotation as marked as Ex.A1. In the meantime there was a discussion going on between the complainant and the opposite party and finally the complainant has agreed to purchase of 18 feet Flame Harden Bed lathe machine. The said invoice marked as Ex.A2. But the rate of the lathe machine was proportionately reduced to Rs.5,20,000/- as the length of the lathe machine was reduced from 18 feet from 20 feet. Accordingly, the opposite party delivered the lathe machine at the place of the complainant and also the complainant took delivery of the said machine and the said machine was working properly till 19.02.2011. Thereafter, the complainant found that there is a crack in bed of the lathe machine and the same was communicated to the opposite party. The opposite party’s technician also came to the premises of the complainant and confirm the crack on the lathe machine. The allegation of the complainant is that initially, the opposite party agreed to deliver the 20 feet lathe machine but they delivered only 18 feet lathe machine. In this regard, we relied upon the various correspondent and subsequent invoice dated 24.01.2011 which was marked as Ex.A2. We find that the complainant have accepted 18 feet lathe machine without any protest further he also did not rais any objection with regard to reduction of the length in the lathe machine while reporting the complaint of crack in the lathe machine to the opposite party. Therefore we infer that both complainant and opposite party had accepted for the delivery of 18 feet lathe machine. The only issue that has to be decided by this commission is that in so far as the crack in the lathe machine in this regard, the complainant immediately after found in the crack of the lathe machine reported to the opposite party. The opposite party visited the premises of the complainant and confirmed that there is no a crack on the lathe machine. But defense raised by the opposite party is that only a dealer and not a manufacturer. Therefore if all there is any defect it is for the manufacturer to rectify the same and the opposite party in their reply notice fairly consented to replace the 18 feet lathe machine along with 20 feet lathe machine base on the complaint, the balance amount ready to pay Rs.2,00,000/- as per the invoice along with 12% from 24.01.2011. Further he also prepared invoice along with 12% of Rs.5,00,000/- paid the complainant as a consider for the 18 feet lathe machine. During the argument the opposite party contended that those offer only to certain period only. The complainant did not make use of that offer therefore that offer should not be never ending. Further the complainant voluntarily make a claim that the opposite party agreed to give 20 feet length. But he has delivered only 18 feet lathe machine. In our consider view that there is no such claim made prior to the filing of this present complaint. Therefore, the complainant falsely made his claim. Further in view of the admitted portion in para 11 and 12 of the written version. Therefore, We are of the consider view that the opposite party has committed deficiency in service. Hence, these Point Nos.1 and 2 are decided in favour of the complainant.
6. POINT NO.3: As we have decided in Point Nos. 1 and 2 that there is a deficiency in service on the part of the opposite party. The opposite party is hereby is hereby directed to replace the defective 18 feet Heavy Duty Lathe Machine with new one 18 feet Heavy Duty Lathe Machine and to pay a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) as compensation for mental agony and also to pay a sum of Rs.10,000/- (Rupees Ten Thousand only) towards cost to the complainant. Hence, this Point No.3 is also answered accordingly.
7. In the result, this complaint is partly allowed. The opposite party is hereby directed to replace the defective 18 feet Heavy Duty Lathe Machine with new one 18 feet Heavy Duty Lathe Machine and to pay a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) as compensation for mental agony and also to pay a sum of Rs.10,000/- (Rupees Ten Thousand only) towards cost to the complainant, within one month from the date of receipt of this order, failing which the above amounts shall carry interest at the rate of 9% per annum from the date of this order to till the date of realization.
Dictated to the steno-typist transcribed and typed by her corrected and pronounced by us in the open Commission on this the 30th September 2022. Sd/- Sd/- Sd/-
MEMBER-I MEMBER – II PRESIDENT
LIST OF COMPLAIANNT SIDE DOCUMENTS:
Ex.A1-18.09.2010 - Copy of the quotation
Ex.A2-24.01.2011 - Copy of the Invoice -cum-delivery challan
Ex.A3-27.01.2011 - Copy of the Invoice -cum-delivery challan
Ex.A4-27.01.2011 - Copy of the invoice -cum-delivery challan
Ex.A5-27.01.2011 - Copy of the Invoice -cum-delivery challan
Ex.A6-04.02.2011 - Copy of pending sales tax forms
Ex.A7-18.02.2011 - Copy of letter to the respondent
Ex.A8-19.02.2011 - Copy of the Email letter to the respondent
Ex.A9-28.03.2011 - Copy of letter from the respondent
Ex.A10-04.05.2011 - Copy of the notice
Ex.A11-21.05.2011 - Copy of the reply notice
Ex.A12 - Photo
Ex.A13-06.07.1998 – S.R. Kalyani Industries registration certificate
Ex.A14-15.12.2005 - Copy of service certificate of complainant
ExA15-24.11.2006 - Copy of SSI of complaint
Ex.C1 - Copy of Report filed by the Advocate Commissioner
LIST OF OPPOSITE PARTIES SIDES DOCUMENTS: -NIL-
Sd/- Sd/- Sd/-
MEMBER –I MEMBER-II PRESIDENT
