BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM RAICHUR.
COMPLAINT NO. (DCFR) CC. 52/2012.
THIS THE 18th DAY OF JANUARY 2013.
P R E S E N T
1. Sri. Pampapathi B.sc.B.Lib. LLB PRESIDENT.
2. Sri. K.H. Sri Ramappa, B.A.LLB. MEMBER.
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COMPLAINANT :- Shaik Sirajuddin Ahmed S/o. Late Khaja
Mohinuddin, Age: 40 years, Occ: Business, R/o. H.No. 2-5-48/E, Shalamsab compound Taranata Road, Raichu 584 101.
//VERSUS//
OPPOSITE PARTY :- The Managing Director M/s. Eagle Trading
Company WZ-508/1, Ground Floor, Basai Darapur, Behind Ramesh Nagar Metro Station, New Delhi- 110005.
CLAIM : For to direct the opposite firm to refund cost of
six head thread winding machine of Rs. 1,60,844/- with interest and compensation with other reliefs as deems fit to the circumstances of this case.
Date of institution :- 19-07-12.
Notice served :- 27-08-12.
Date of disposal :- 18-01-13.
Complainant represented by Sri. T. M. Swamy, Advocate.
Opposite represented by Sri. Mohammed Khaleem, Advocate.
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This case coming for final disposal before us, the Forum on considering the entire material and evidence placed on record by the parties passed the following.
JUDGEMENT
By Sri. Pampapathi President:-
This is a complaint filed by complainant Shaik Sirajuddin Ahmed against Managing Director M/s. Eagle Trading Company, New Delhi U/sec. 12 of Consumer Protection Act for to direct the opposite firm to refund cost of 6 head thread winding machine of Rs. 1,60,844/- with interest and compensation with other reliefs as deems fit to the circumstances of this case.
2. The brief facts of the complainant’s case are that, he purchased 6 head thread winding machine from opposite firm to install it at Raichur at the cost of Rs. 50,000/-, it was installed at Raichur by the technician of opposite firm. After testing it, the said machine did not function properly and it was unable to produce 40 Kg of thread per day. The technician of opposite informed to him that, opposite firm has not supplied branded product of the company, it is locally prepared G.I. coupling in five numbers are unthreaded and old. Therefore, complainant informed the said to the opposite through his letter by sending 15 Kg unfinished product of that machine. But opposite not responded properly, he made several reqeusts to replace the defected machine by supplying new branded machine, but opposite not shown interest in installation of new branded machine. Accordingly, he filed this complaint against opposite for the reliefs as noted in it,
3. The opposite appeared in this case through its Advocate, filed its written version by denying all the allegations made by the complainant. It is contended that, complainant purchased the said machine for his commercial purpose. Hence, he is not a consumer under the meaning and definition of section 2(1)(d) of C.P. Act, and thereby, this consumer forum has no jurisdiction to try the subject matter of this complaint. It further contended that, the Branch Office of opposite is not situated in Raichur, as such, as per the terms and conditions of the agreement, the complaint has to be filed by the complainant within the territorial jurisdiction of New Delhi, as such, this complaint is not maintainable before this Forum.
As regards to the products supplied by it to the complainant is admitted but, it denied the defects in the supplied machine. The machine was not properly handed by the complainant. Hence, it developed defects, it is the responsibility of the complainant and not responsibility of the opposite as such, it denied the material allegations made against it, and prayed for to dismiss the complaint among other grounds with cost.
4. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that:
1. Whether the complainant proves that, opposite supplied defective and local made 6 head threads winding machine and installed in Raichur, instead of new branded machine thereafter it not worked properly. It is sub-standard with locally made machine therefore, he requested to replace the said machine with newly branded machine, but opposite not shown interest in replacing the new branded machine in place of defective machine and thereby opposite found guilty under deficiency in its service.?
2. Whether complainant is entitled for the reliefs as prayed in his complaint.?
3. What order?
5. Our findings on the above points are as under:-
(1) In the affirmative.
(2) As discussed in the body of this judgement and as noted in the final order.
(3) In-view of the findings on Point Nos. 1 & 2, we proceed
to pass the final order for the following :
REASONS
POINT NOs.1 &2 :-
6. To prove the facts involved in these two points, affidavit-evidence of the complainant was filed, who is noted as PW-1. Affidavit-evidences of two witnesses filed, in his support and they have been noted as PW. 2 & 3. The documents Ex.P-1 to Ex.P-5 are marked. On the other hand, affidavit-evidence of Managing Director of opposite firm was filed, who is noted as RW-1. Documents totally marked as Ex.R-1 to Ex.R-10 are marked.
7. We have gone through the pleadings of the parties, their respective affidavit-evidences and documents relied by them and we are of the view that, the following fact is undisputed fact between the parties.
It is undisputed fact that, the complainant purchased 6 head thread winding machine from opposite firm at the cost of Rs. 50,000/- and got installed it, in Raichur through the technician of opposite firm.
8. Keeping in view of the above said undisputed fact in between the parties. Now, the points for our consideration is as raised by the parties before this forum is that, whether the present complainant is a complainant under the meaning and definition of section 2(1) (d) of C.P. Act.
9. The learned advocate for opposite seriously contended that, complainant has purchased the said machine for commercial purpose. As such, this forum has no jurisdiction to try the subject matter of this nature, as the complainant is not a consumer.
10. On the other hand, the learned advocate for complainant submitted before us that, the complainant purchased the said machine and got installed at Raichur for the purpose of his livelihood, he not done any commercial activity by installing that machine, as such, he is the consumer under the meaning and definition of section 2 (1) (d) of C.P. Act, he can file a consumer complaint before this consumer forum. Accordingly, he filed this complaint before this forum which is maintainable.
11. We have appreciated the submissions made by both the advocates in this regard and we have referred the legal requirements of section 2 (1) (d) of C.P. Act for to see who is the consumer and who is not a consumer within the definition of the said section.
12. The pleadings and evidence of complainant and documents reveals that, he purchased the said machine for livelihood, the documents produced by him supports this view. Contrary, the documents submitted by the opposite are not reveals any of the fact that, the said machine got installed by the complainant for commercial purpose or he engaged in commercial transaction subsequent to it, to say that, his activity attracts commercial transactions. Keeping in view of the facts noted above, we are of the view that, the affidavit-evidence of complainant and evidences of PW-2 & 3 are sufficient to say that, the said machine was installed for livelihood of the complainant and not for commercial use. Hence, the transaction in question clearly falls within the meaning and definition of section 2(1)(d) of C.P. Act. He can file consumer complaint, as he is a consumer. Hence, we have not accepted this submissions and references made in affidavit-evidence and in written version of opposite.
13. The second contention that was raised before us by the opposite is that, as per the terms and conditions of the agreement entered by the parties clearly fixing the jurisdiction of the Delhi courts to decide the dispute if any, the complainant cannot file this complaint before the consumer forum at Raichur.
14. The learned advocate for complainant denied this contention and contended that, part of cause of action arose to the complainant in Raichur, as the machine was installed in Raichur by the technician of opposite. He paid an amount through cheque in Raichur, as such, this forum has got jurisdiction to try the subject matter. We have considered the submissions made by both the advocates with regard to territorial jurisdiction of this forum and also considered the jurisdiction mentioned in the agreement.
15. Any argument consisting of terms and conditions entered by the parties, contrary to the provisions of Consumer Protection Act is not enforceable. Section 11 of the C.P. Act, deals with territorial jurisdiction of the district forum, Section 11 (c) shows that party can file a complaint, the cause of action arose to him wholly or in part.
16. Keeping in view of section 11(c) of C.P. Act, we have gone through the entire case of complainant as well as case of opposite and we are of the opinion that, section 11( (c) is applicable to the facts of the present case on hand regarding territorial jurisdiction to file complaint by the complainant before this forum at Raichur and this district forum has got territorial jurisdiction to deal with the subject matter of this complaint. Accordingly, we have not accepted this contention of opposite in this regard. Similarly this consumer forum has got jurisdiction to try the subject matter of this complaint, in view of section 3 of the C.P. Act, even though there is arbitration clause in the agreement to settle the dispute.
17. The main point for our consideration is whether, the machine supplied by opposite is defective, sub-standard and not producing the required out put materials as per the norms and standard as shown by opposite firm.
18. In this regard the complainant himself stated in his affidavit-evidence and affidavit-evidences of PW-2 & 3 with other documents filed by the complainant reveals the fact that, the machine supplied by the opposite firm was sub standard machine.
19. The learned advocate for complainant referred the following rulings:
1) 2012 (1) CPR 325 (NC). State of Himachal Pradesh through the District Collector & Ors. V/s. Suresh kumar.
2) 10 CPJ 384 (NC) M.A. FINCORP LTD., V/s. Kumar Gupta
3) 2011 (2) CPR 244 (NC) Munish Sahgal V/s. DLF Home Developers
Ltd.,
4) 2012 (3) CPR 32 (HP) Surjeet Kumar V/s. M/s. Prakash Sales & Engineering Corporation & Anr.
The learned advocate for opposite referred the ruling of the Hon’ble Supreme Court Laxmi Engineering Works (1995) (2) CPR-11 (SC)
20. Keeping in view of the principles of the rulings noted above, and also keeping in view of the documentary evidences produced by the complainant we have satisfied that, the opposite firm has supplied sub-standard and defective machine to the complainant and got installed through its technician in Raichur. Thereafter, opposite firm not attended the complaints made by the complainant through his request letters and thereafter also his response was not upto mark as trader. There are no exaggerative versions in the pleadings as well as in the affidavit evidence of complainant. Documents referred by the opposite are not helpful for it to substantiate its contention as contended in his written version Accordingly, we are of the view that, opposite firm found guilty under deficiency in its service towards its customer, accordingly we answered point No-1 in affirmative.
21. As regards to the reliefs are concerned, it is undisputed fact that, the cost of the machine is of Rs. 50,000/- as such, the complainant is entitled to get an amount of Rs. 50,000/- from opposite towards cost of the machine.
22. As regards to the inconvenience caused to the complainant, loss sustained by him, his mental agony etc., We have taken note of the entire facts and circumstances of this case and awarded total amount of Rs. 20,000/- on these heads to the complainant which is recoverable from opposite firm.
23. An amount of Rs. 3,000/- is awarded towards deficiency in service on the part of opposite. An amount of Rs. 2,000/- is awarded towards cost of litigation.
24. The complainant is entitled to get interest at the rate of 9% p.a. on total sum of Rs. 75,000/- from the date of complaint till realization of the full amount. Accordingly, we answered point No-2.
POINT NO.3:-
25. In view of our findings on Point Nos-1 & 2, we proceed to pass the following order:
ORDER
The complaint filed by the complainant is partly allowed with cost.
The complainant is entitled to get total amount of Rs. 75,000/- from Opposite.
The complainant also entitled to get interest at the rate of 9% p.a. on total sum of Rs. 75,000/- form the date of this complaint till realization of the full amount.
Opposite is hereby given one month time to make the payment of the said amount with interest to the complainant.
Intimate the parties accordingly.
(Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 18-01-2013)
Sri. K.H. Sri Ramappa Sri. Pampapathi,
Member. President,
District Consumer Forum Raichur. District Consumer Forum Raichur.
*RK*
