BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM RAICHUR.
CONSUMER COMPLAINT (DCFR) No. 30/2013.
THIS THE 17th DAY OF JANUARY 2014.
PRESENTS
1. Sri. Prakash Kumar, BA.LLB PRESIDENT.
2. Sri. Gururaj, B.Com. LLB. MEMBER.
3. Smt. Pratibharani hiremath MA.(Sanskrit) MEMBER.
*****
COMPLAINANTS :- 1. Santosh Patil S/o. Sharanappagouda, Age: 38 years, Occ: Agriculture,
2. Smt. Sharadamma W/o. Sharanappagouda,
Age: 55 years, Occ: Household & Agriculture both R/o. H.No. 1-11-118/13 & 14, Opp: Little Angel School Building, Raichur- 584101.
//VERSUS//
OPPOSITE PARTY :- The Manager, Shivsu Canadian Clear
Internal Ltd., No.14, Spurtank Road, Chetpet, Chennai-600 031.
Date of institution :- 02-05-2013.
Date of disposal :- 17-01-2014
Complainant represented by Sri. T. Sangangouda, Advocate
Opposite party represented by Sri. Vishwanath Reddy, Advocate.
ORDER
By Sri. Prakash Kumar, President:-
The complaint is filed by the complainant against the Respondent U/sec. 12 of Consumer Protection Act 1986.
2. The complaint in brief is that, the complainant No-1 is the son of complainant No-2. The complainant No-1 is managing the family affairs and they intending to start a packaged drinking water plant at Raichur for their livelihood approached the Respondent through company authorized marketing agent by name Murugan at Raichur who assured to send the quotation. Accordingly the quotation was sent on 30-11-2011 in the name of the complainant No-2 which was for Rs.5,50,000/-. The complainant No-1 paid Rs.50,000/- as advance by cheque dt.24-11-2011 to the Respondent who received the same and acknowledged it by issuing receipt dt. 02-12-2011. However the Respondent’s agents have suppressed the fact that their company has no ISI mark for packaged drinking water plant. The Deputy Commissioner, Raichur had strictly issued a circular that the ISI mark is compulsory for packaged drinking water plant. The Respondent has played unfair trade practice with the complainants. Therefore the complainants asked the Respondent to repay the amount paid by them. But they failed to repay the same. Therefore the complainants got issued legal notice to the Respondent calling upon them to refund the amount paid by them. But there was no response to the said notice. Therefore the complaint seeking reliefs as prayed for.
3. The Respondent filed written version stating that the complaint filed by the complainant is false, baseless and vexatious and is not maintainable either in law or on facts. The averments made in the complaint which are not specifically admitted are deemed to be denied. As per Para-3 of the complaint the complainants intended to purchase the product for the purpose of business at Raichur which is commercial in nature and not for self-use. Therefore the complaint does not come under CP Act. The complaint is bad for mis-joinder of necessary party as there is no relationship between the complainant No-1 and the Respondent at any point of time more over there is no any consideration passed by him to the Respondent and there is no any kind of privity of contract between him and the Respondent. The complaint does not disclose any valid cause of action and the alleged cause of action as false. This forum has no jurisdiction to entertain the complaint on the said ground. As per the terms and conditions of the agreement, if the order is cancelled the advance amount paid shall be forfeited to the Respondent. As per the said agreement any dispute arising between the parties is subject to Chennai Courts jurisdiction only. Therefore the complaint is liable to be dismissed. The averments made in para-1 of the complaint are not within the exclusive knowledge of the Respondent. The averments made in para-2 of the complaint are partly true. It is true that the Respondent is engaged in the business of designing, manufacturing and commissioning of bottled water and mineral water processing equipments, packaging machinery. PET blowing machines, waste water treatment plants, and the complainant wanted to start a packaged drinking water plant at Raichur for business purpose. Hence the complaint is not maintainable as consumer complaint. The relationship of the complainants, as son and mother is not within the exclusive knowledge of the Respondent. There is no consumer and service provider relationship in between the complainant No-2 and the Respondent. Rest of the averments of para-2 of the complaint are denied. The averments made in para-3 of the complaint are true and correct. The averments made in Para- 4 of the complaint are true and correct except the complainant No-2 has paid an advance of Rs.50,000/- allegedly at Raichur through agent by name Mr. Murugan which is absolutely false, as the said amount was paid at Chennai regarding which document No-6 filed by the complainant is self explanatory. The averments made in para 5 & 6 of the complaint are absolutely false and are denied in toto, as neither the Respondent nor the alleged authorized agent of the Respondent ever suppressed or misguided any facts to the complainants. The Respondent is not within the knowledge of any circular passed by the Deputy Commissioner, Raichur. It is the duty of the complainant to get the ISI mark after commissioning of the plant as per the alleged circular said to have been issued by the Deputy Commissioner, Raichur. The Respondent is an ISO 9001 company and does not require any ISI certificate. The averments made in Para- 7 & 8 of the complaint are false and are denied in toto. The amount of Rs.50,000/- was received by the Respondent towards the advance for the machines ordered by the complainant. The Respondent is in no way connected with ISI mark certification. If the complainant fails to take delivery of machines and cancels the order, then the advance paid will be forfeited as per the terms and conditions. There is no cause of action to file the complaint. All the equipments manufactured by the Respondent’s company are tailor made according to the needs and specification of their customers and time is the essence of their business. Considering the complainants’ request the Respondent gave quotation and the complainants have placed the order for water processing system-2000 for Rs.5,50,000/ and pumps and motors for Rs.50,000/- as advance. The Respondent after receiving the purchase order and advance amount started manufacturing the required items of the complainant by investing huge amount and the machines were kept ready for dispatch. When the Respondent informed the complainant to take the delivery of the machines ordered by them suddenly the complainants have informed the Respondent that they cancelled the order. Therefore the complaint is liable to be dismissed.
4. Complainant to prove his case filed his affidavit which is marked as PW-1 and relied on nine documents which are marked as Ex.P-1 to Ex.P-9. On the other hand the Respondent has filed his affidavit evidence which is marked as RW-1. No documents are produced and marked in evidence.
5. Arguments heard on both sides.
6. The points that arise for our consideration are:
1. Whether the complainant proved deficiency in service on the part of the Respondent against him?
2. Whether the complainant is entitled for the reliefs prayed for.?
3. What order?
7. Our answer on the above points are as under:
(1) In the affirmative.
(2) Partly in the affirmative.
(3) As per final order:
REASONS
POINT NO.1 :-
8. The factual aspects of the complainant’s case are not disputed by the Respondent. It is admitted by the Respondent that the complainant had placed an order for the supply of drinking packaged water processing system 2000 which was of Rs.5,50,000/- and paid Rs.50,000/- as advance and thereafter on coming to know that the said system to be supplied by the Respondent’s company has no ISI mark and as the plant cannot be established at Raichur without having ISI mark as per DC’s order, the complainants is cancelled the order and asked for refund of Rs.50,000/- paid as advance and the Respondent failed to pay the same. The contention of the Respondent is that as per clause 16 of the agreed terms and conditions if the order is cancelled the advance amount paid would be forfeited to the Respondent and the complainants are bound by the said terms and conditions. However what we could observe is that the Respondent has not produced any evidence to show that the complainants have agreed for the terms and conditions imposed by his company were accepted by the complainants. Ex.P-1 which includes the terms and conditions though signed on behalf of the Respondent was not signed by the complainants. The space meant for the same is blank. Therefore there is doubt whether such terms and conditions were made known to the complainants while they made an offer for purchase of water purifying machinery from the Respondent’s company and whether they had agreed for the said terms and conditions. Therefore such terms and conditions not agreed upon by the complainants cannot be imposed on them by the Respondent. Besides this the Respondent has not produced any evidence to show that as per the order given by the complainants they manufactured the plant and kept it ready to be taken by the complainants. Therefore it cannot be presumed that the Respondent by spending huge amount had got the machinery ready to be supplied to the complainants. Therefore the Respondent is bound to repay the amount paid by the complainant as advance. However as the complainants have unilaterally cancelled the order placed with the Respondent without valid grounds and we are of the opinion that ordering refund of 50% of the advance amount paid by the complainant would meet the ends of justice. Accordingly this point is answered in the affirmative.
POINT NO.2:-
9. For the reasons discussed under Point No-1, we are of the opinion that the complainants are entitled for refund of Rs.25,000/- from the Respondent’s Company along with cost which shall be as per final order. Accordingly, we answer this point partly in affirmative.
POINT NO.3:-
10. As per order below:
ORDER
The complaint filed by the complainants is partly allowed with cost.
The complainants are entitled to recover sum of Rs.25,000/- from Respondent’s Company towards water purifying machinery.
The complainant is also entitled to recover sum of Rs.1,000/- towards cost of the proceedings from the Respondent’s Company.
Respondent is given one month time from the date of this order for making payment of the above said amounts.
Intimate the parties accordingly.
(Dictated to the Stenographer, typed, corrected and then pronounced in the open court on 17-01-2014)
Smt.Pratibha Rani Hiremath Sri. Gururaj Sri. Prakash Kumar
Member. Member. President,
District Consumer Forum Raichur. District Consumer Forum Raichur. District Consumer Forum Raichur.
