BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

C.C. No. 111/2007 Filed on 30.04.2007

Dated : 30.09.2009

Complainant :

Afthaf Ahemmad. S, Proprietor, Alcot Electro Mechanical Components, Alcot Complex, Nilamel Ward, Neyyattinkara, Thiruvananthapuram.

(By adv. C.V. Narayanan)

Opposite parties :

1. The Managing Director, Kumbha Sales Corporation, 108, Sarin Sonia Sadan, G-11, PVR Sonia Cinema, Vikas Puri, New Delhi – 110 018.

    

2. Sanjay Modugil, Kumbha Sales Corporation, 108, Sarin Sonia Sadan, G-11, PVR Sonia Cinema, Vikas Puri, New Delhi – 110 018.

    

3. Sohan Lal Shah, Kumbha Sales Corporation, 108, Sarin Sonia Sadan, G-11, PVR Sonia Cinema, Vikas Puri, New Delhi – 110 018.

    

4. Umesh, Instructor and Agent, Kumbha Sales Corporation, Kerala Branch Office at T.C 39/167(5), Rubi Nagar, Chalai Ward, Manacaud Village, Manacaud, Thiruvananthapuram.

    

5. Manager, Kumbha Sales Corporation, Kerala Branch Office at T.C 39/167(5), Rubi Nagar, Chalai Ward, Manacaud Village, Manacaud, Thiruvananthapuram.

This O.P having been heard on 07.08.2009, the Forum on 30.09.2009 delivered the following:

ORDER

SMT. S.K.SREELA : MEMBER

The brief facts of the case are as follows: The complainant who is an unemployed was sanctioned to open a small scale unit for earning his livelihood by name and style “ALCOT”- Alcot Electro Mechanical Components on 20.10.2005 valid upto 19.10.2010. For running the aforesaid self employment industrial unit, complainant availed a loan facility for an amount of Rs. 3,28,000/- from the State Bank of Travancore, Neyyattinkara Branch. Opposite parties approached the complainant and made believe that their equipments of manufacture of cables for automobile and Auto Bulbs have particular standard, good quality and also having long life. Opposite parties agreed to supply all the items on receipt of its price of the equipments and tools as per Purchase Order No. AEMC/EOPT/1 dated 23.12.2005. Complainant has made advance payment in two instalments of Rs. 20,000/- on 12.01.2006, Rs. 10,000/- on 20.02.2006 and send Demand Draft in the name of Kumbha Sales Corporation, drawn from SBT Bank, Neyyattinkara for an amount of Rs. 3,28,000/- in total an amount of Rs. 3,58,000/- has been received by the opposite parties for which an amount of Rs. 23,800/- has been excessively collected from the agreed amount of price of two sets of equipments. The opposite parties supplied only 10 items of equipments scheduled as item No.2. Hence the opposite party has produced only Bill/Cash Memo for an amount of Rs. 1,55,070/- for the 10 items in Item No. 2 only. The 8 items of equipments scheduled as item No. 1 is not supplied so far even after the receipt of its entire price. It also caused heavy loss and mental agony to the complainant. The opposite parties received the entire amounts for the price of the Item No. 1 & 2 and delayed to supply and the inordinate delay is also caused even for errecting and fixing the equipments as promised. Opposite parties violated the terms and conditions as agreed and further delayed in sending the man to train the apprentice and to start the functioning of the unit. Opposite parties technical Instructor, the 4^th opposite party Mr. Umesh failed to assemble, instal and run the equipments in proper way because most of the items were substandard and not sound enough to suit the purpose. The materials are poor in quality and highly defective. The defectiveness is inherent. Opposite parties purposefully and intentionally hid the true state of conditions of the equipments supplied at the time of sale. Opposite parties deceived the complainant. The 4^th opposite parties is not technically skilled. The alignment of the machine was totally defective and it is not in a position to hold the bulb properly. The exhaust pump was so weak that it could not properly extract air from the bulb due to the leakage of air and thereby no required pressure inside the bulb was maintainable. Because of the long delay in sending the item No. 1 and replacing the substandard and poor quality equipments and materials supplied in item No. 2 the full functioning of the unit delayed uncertainly. Opposite parties are solely responsible for it. Hence this complaint for refund of the price of non-supplied items, defective items and the amount excessively collected along with such other reliefs.

Inspite of service of notice, the opposite parties were absent and hence they were set exparte.

Complainant has filed affidavit and marked Exts. P1 to P11. Complainant has not been cross examined and hence his affidavit stands unchallenged.

The points that would arise for consideration are:-

1. Whether there is any deficiency in service and unfair trade practice on the part of the opposite parties?

2. Whether the complainant is entitled for the reliefs claimed for?

Points (i) & (ii):- The provisional registration marked as Ext. P1 goes to prove that the complainant's application has been accepted for provisional registration as an SSI/SSSBE Unit for the manufacture of items/activities as mentioned in the application form. The payment of Rs. 20,000/- as advance to the opposite parties on 12.01.2006 is revealed by Ext. P2. Though the complainant has pleaded that he had paid Rs. 10,000/- on 20.02.2006, there is no evidence for the same. But as per Ext. P2 statement an amount of Rs. 10,000/- is seen paid as third advance for the NSP on 19.01.2006. Ext. P3 purchase order dated 23.12.2005 shows the price of the items, the total of which comes to Rs. 3,34,200/-. Though the complainant has pleaded that he had sent D.D in the name of Kumbha Sales Corporation for an amount of Rs. 3,28,000/- there is no evidence to support the same. The complainant pleads that the said D.D has been drawn from SBT Bank, Neyyattinkara, but besides pleadings, there is no scrap of paper produced to corroborate the said pleading. The complainant has pleaded that for running the SSI unit, he had availed a loan facility for Rs. 3,28,000/- from SBT, Neyyattinkara Branch. The complainant at least should have produced the order sanctioning the loan to prove the same.

From Ext. P4 the cash receipt of Kerala Roadways it can be seen that the complainant has paid an amount of Rs. 6,430/- as freight charge for the goods the value of which is Rs. 1,55,070/-. As per Ext.P5 Bill/cash memo, the payment of Rs. 1,55,070/- can be seen. From the above documents, it could be seen that the complainant has made a total payment of Rs. 1,55,070/- to the opposite parties for the purchase of the machine. Payment of a total amount of Rs. 12,000/- (Rs. 4,000 + Rs. 2,500+ Rs. 5,500) to the opposite parties by the complainant is proved by Ext. P6 series. The complainant has not furnished any substantiate evidence to prove that the opposite parties have excessively collected an amount of Rs. 23,800/-from the complainant.

The complainant has alleged that items supplied were substandard and the materials are poor quality with inherent defects. The alignment of the machine is totally defective and not in a position to hold the bulb properly, the exhaust pump could not extract air from the bulb due to leakage of air. The opposite parties have not challenged the same and hence not contested the case. When there is no objection on the part of the opposite parties we also find that Sec. 13(1) of the Consumer Protection Act need not be followed in such a situation.

In view of the above discussions, we come to the conclusion that, the opposite parties shall refund Rs. 1,73,500/-(Rs. 1,55,070+ Rs. 6,430+Rs. 12,000) along with a compensation of Rs. 2,000/- to the complainant.

In the result, the complaint is partly allowed. The opposite parties shall pay Rs. 1,73,500/- to the complainant along with a compensation of Rs. 2,000/- and cost Rs. 1,000/- within a period of one month from the date of receipt of the order failing which the amount shall carry interest @ 9% till realization. On receipt of the said amount, the complainant shall return the equipments supplied as per Ext. P5 to the opposite parties.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 30^th day of September 2009.

S.K. SREELA : MEMBER

G. SIVAPRASAD : PRESIDENT

BEENAKUMARI. A : MEMBER

C.C. No. 111/2007

APPENDIX

I COMPLAINANT'S WITNESS :

NIL

II COMPLAINANT'S DOCUMENTS :

P1 - Photocopy of Provisional Registration Form dated

20.10.2005

P2 - Photocopy of detailed statement of account dated 26.01.06.

P3 - Photocopy of Purchase Order dated 23.12.2005.

P4 - Photocopy of cash receipt dated 12.05.2006 for Rs. 6430/-.

P5 - Photocopy of Bill/cash memo dated 18.04.2006 of Kumbh

Sales Corporation for Rs. 155070/-.

P6 series - Photocopy of letters dated 24.05.2006, 30.06.2006,

31.07.2006 and 28.08.2006 issued by opposite party.

P7 - Photocopy of letter dated 20.03.2006 issued by the

complainant to opposite party.

P9 - Credit Facilities dated 17.03.2006 issued by SBT

Neyyattinkara Branch.

P10 - Photocopy of letter dated 18.03.2006 issued to the Branch

Manager, SBT, Neyyattinkara by the complainant.

P11 - Photocopy of letter dated 21.01.2008 for Bank Adalat

issued by Branch Manager, SBT, Neyyattinkara.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

PRESIDENT