COMPLAINT FILED: 28-08-2009 <br /> DISPOSED ON: 05-01-2010<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> 6TH JANUARY 2010<br /> <br /> PRESENT :-SRI. B.S.REDDY PRESIDENT <br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI.A.MUNIYAPPA MEMBER <br /> COMPLAINT NO.2094/2009<br /> <br /> <br /> COMPLAINANT <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> Sri.Govinda Raju, Proprietor,<br /> S/o.Venkataswamappa, <br /> Aged 50 years,<br /> M/s.Srinivasa Poultry <br /> Breading Farm,<br /> P.C.Extension:Kolar<br /> <br /> Advocate – Sri.D.A.Sudheer<br /> <br /> V/s.<br /> <br /> OPPOSITE PARTIES 1.The Managing Director<br /> Jeevan Diesels & Electrical Ltd<br /> <br /> 2. The Senior Sales Engineer<br /> Jeevan Diesels & Electrical Ltd<br /> <br /> Both are having address at:<br /> No.75, Commercial Complex,<br /> J.C.Road,<br /> Bangalore – 560 02.<br /> <br /> Advocate – Smt.Prathima<br /> <br /> <br /> <br /> <br /> O R D E R<br /> <br /> SRI. B.S.REDDY, PRESIDENT<br /> <br /> The complainant filed this complaint u/s. 12 of the C.P. Act of 1986 seeking direction against Opposite Parties (herein after called as OP) to pay compensation of Rs.80,000/- with interest on an allegations of deficiency in service on the part of the OPs.<br /> <br /> The case of the complainant to be stated in brief is that:-<br /> <br /> 2. The complainant wanted to purchase 40KVA Ashoka Leyland DG Set. Accordingly by the letter dated 24-03-2009 the Ops appraised the complainant of their expertise in dealing with such machinery and also service rendered. Ops issued quotation / Price schedule. The complainant agreed to said price. Ops assured to deliver the generator set within 3 to 4 days from the date of quotation. The complainant at the time of taking the quotation appraised the OPs of the fact that he requires the generator set for Poultary Farms. Ops assured to deliver the generator set within 2 to 3 days from the date of placing the order and paying Rs.10,000/- as advance amount. Though the payment terms in quotation was 50% of the value, Ops obliged to receive only Rs.10,000/- stating it was the year ending and they would not insist for 50% of the advance. The complainant paid Rs.10,000/- by cash on 25-03-2009, OP issued receipt in that regard. In accordance with the agreed terms the complainant approached with a Demand Draft for Rs.3,20,000/- dated 02-04-2009. Ops attempted to convince the complainant that they would deliver the DG set after 10-04-2009. The delay on the part of the OP caused immense damage to the complainant and his Poultry Farm as chicken cannot tolerate high temperature, inspite of the same Ops failed to comply terms of quotation dated 25-03-2009. The complainant incurred huge loss due to the death of 100 chicken worth of each chicken Rs.600/-and hence incurred total loss of Rs.60,000/-. Ops are liable to make good loss incurred. The Ops committed deficiency in service for which complainant is entitled for compensation. The complainant has suffered huge loss and mental agony, hence he has sent legal notice dated 08-04-2009, Ops have given untenable reply. Hence the complainant was advised to file this complaint seeking necessary relief.<br /> <br /> 3. OP on appearance filed version contending that one Mr.Ravi claiming to be the representative of the complainant approached them to procure a DG set and placed the order dated 25-03-2009 by paying sum of Rs.10,000/- as advance. Inspite of there being a company, practice to collect 50% at the time of placing the purchase order by a customer, being compellingly the persuaded by the representative of the complainant, OP heeded to accept the purchase order and also accepted to deliver the DG set. It is submitted that neither the complainant nor the representative turned up with the balance amount due to the tune of Rs.3,20,000/-, inspite of the DG Set was ready. The complainant tried to contact the cell phone number given by the representative of the complainant but the calls were not received to the reasons best known to the complainant. The notice sent by the complainant was suitable replied. In the meanwhile the representative of the complainant, started to make threatening calls to the Marketing Manager of the OP Company who in turn informed the advocate of the complainant by sending letter dated 20-04-2009. In the said letter it has been specified that the Company would refund the advance amount of Rs.10,000/- to the complainant. The complainant never turned up. <br /> Further it is contended that M/s.Srinivasa Poultry Breading Farm filed this complaint which is not maintainable as the same does not come within the definition of the term “Consumer” as defined under the Act. The service being availed of for commercial purpose. Profit is the driving force and sole object which propels any commercial activity. Hence complainant is not maintainable and the same is liable to be dismissed with exemplary costs. <br /> <br /> 4. The complainant filed affidavit evidence in support of the complaint averments and filed written arguments. The Senior Sales Engineer of OP filed affidavit by way of evidence and OP filed written arguments. <br /> <br /> <br /> 5. After perusing the written arguments filed by both the parties and on hearing the points that arise for our consideration are:-<br /> <br /> Point No. 1 :- Whether the complainant is a Consumer<br /> as defined under the C.P.Act and complaint <br /> is maintainable ?<br /> <br /> Point No. 2 :- Whether the complainant has Proved <br /> the deficiency in service on the part of <br /> the OP?<br /> <br /> Point No. 3 :- If so, whether the complainant is <br /> entitled for the relief’s now claimed?<br /> <br /> Point No. 4 :- To what Order?<br /> <br /> <br /> 6. We record our findings on the above points:-<br /> <br /> Point No.1:- Negative<br /> Point No.2:- Negative<br /> Point No.3:- Negative<br /> Point No.4:- As per final Order.<br /> <br /> R E A S O N S <br /> <br /> 7. From the admitted fact in the complaint it becomes clear that the complainant placed an order for purchasing 40KVA Ashoka Leyland Diesel Generator set for the purpose of using the same for running the fans in the Poultry Farm to maintain the temperature to suit the chicken. Thus it becomes clear that the complainant is breader of chicken engaged in the business of selling chicken in order to earn profit. <br /> In Goderj Appliances Ltd. Vs. S.Rajendran and others III (2005-CPJ) iii198 TN it was held that the Fridge purchased for storing and selling cool drinks, purchase made for business purpose - complainant not “Consumer”.<br /> As in the instant case the DG set was intended for the purpose of making use of the same for his Poultry Farms and the same was not for personal use of the complainant as such the complainant cannot be a consumer within the meaning of Sec 2 (i) (d) of the C.P. Act. Therefore the complaint filed in this Forum under the Act to invoking the jurisdiction of this Forum is not maintainable. <br /> <br /> 8. Even assuming that the complainant intended to purchase the DG set for the use of the same in the Poultry Farm meant to earn his livelihood, there is no satisfactory evidence to prove the fact that on receipt of Rs.10,000/- on 25-03-2009 with the Purchase Order, the Ops assured to deliver the DG set within 2 to 3 days. The quotation supplied by the OPs clearly provides that 50% of the value as advance along with the purchase order has to be paid and balance amount before dispatch pro-forma invoice. From this it becomes clear that 50% of the value of the DG set is to be paid along with the purchase order, but the complainant has paid only Rs.10,000/- . The affidavit evidence of the complainant that Ops agreed to receive only Rs.10,000/- as advance as against stipulated 50% of the value to be paid in advance as shown in the quotation on the ground that it was year ending cannot be accepted. In our view when the quotation terms and conditions are clear regarding the payment of 50% of the value as advance with purchase order, it is difficult to accept the case of the complainant that Ops agreed to receive only Rs.10,000/- as advance while placing purchase order and agreed to deliver DG set within 2 to 3 days of the purchase order. The total value of the DG set is shown in the quotation is Rs.3,11,000/- by no stretch imagination it can be believed that only on the payment of paltry sum of Rs.10,000/- Ops could have agreed to deliver the DG set worth of Rs.3,11,000/- within 2 to 3 days. From affidavit of OP it becomes clear that Ops tried to contact the complainant to pay the balance amount by keeping DG set ready, but complainant has not responded for the same. The Bank account extract produced by the complainant reveals that he has purchased a DD for Rs.3,20,000/- on 02-04-2009 and got it cancelled on 06-04-2009. Only on that basis it is difficult to accept that the complainant infact has taken that DD to the Ops for taking deliver of the DG set. In case, if the complainant has taken that DD there is no reason for the Ops to refuse to deliver the DG set. The deficiency in service alleged is only on the ground that within 2 to 3 days of placing orders the DG set was not delivered to the complainant from the date of payment of advance amount on 25-03-2009. Since the complainant has not paid 50% of the value of the DG set along with purchase order as stipulated in the quotation, there was no any obligation on the part of the Ops to deliver the DG set only after receipt of Rs.10,000/- as advance. For the legal notice got issued by the complainant dated 08-04-2009 Ops have suitably replied denying all the allegations of the notice. Further it is stated that the complainant had not approached the Ops with the DD. Since the complainant has not paid the balance amount, OP could not deliver the DG set as per terms of order. Under these circumstances we are of the view that the complainant failed to prove deficiency on the part of the Ops. <br /> <br /> 9. The complainant has not placed any material to show that on account of non-supply of DG set he has suffered loss to the tune of Rs.60,000/- as 100 numbers of chicken died each chicken worth of Rs,600/-. Except the self servicing sworn testimony by way of affidavit absolutely there is no other material placed to support the fact of death of 100 number of chicken. Under these circumstances we are of the view that the complainant is not entitled for any reliefs claimed. The complaint is devoid of merits, the same is liable to be dismissed.<br /> <br /> O R D E R<br /> The complaint filed by the complainant is dismissed. Considering the nature of dispute no order as to costs.<br /> <br /> Send copy of this order to both the parties free of costs. <br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by her verified and corrected, and then pronounced in the Open Court by us on this the 6th day of January 2010.) <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> NRS<br />