(Through Self for the Complainant)
(Through Sri D.P.Panigrahi, Advocate & Associate
For the Opposite Party no.1;
None Appeared - Exparte for the Opposite Party no.2; &
Dr. Bijaya Krishna Mohanty, Advocate for the
Opposite Party no.3)
Sri P.Surya Rao, President:
The fact of the case is that the complainant has filed this consumer complaint Under Section 35 of the Consumer Protection Act, 2019, alleging deficiency in service against the Opposite Parties (in short the O.Ps.) and for redressal of his grievance before this Commission.
2. The fact of the case as averred by the complainant is that, for the self employment and for livelihood the complainant with due consent of the purchaser Sri Dukhisyam Panigrahi started using and operated the paper cup machine to produce paper cups. The O.P.No.1 being the supplier of the paper cup machine assured to the purchaser and the complainant that the machine will produce the 70 paper cup per minutes. But the said machine was produced only 40 to 45 paper cup per minute some days and thereafter started creating problems in the machine and stops functioning. It is further averred that Opposite party no.3 not supplied the insurance policy documents to the complainant for which an amount of Rs.5880/- deducted from the loan account of the complainant (Annexure A). The complainant through the purchaser purchased the machine RZM fully Automatic paper cup making machine 70 Speed from O.P.No.1for Rs.8,08,300/- on 30.06.2020/Invoice No. 180. The O.P.No.1 while delivered the machine not provided the warranty card. After 3 months of delivery and several approaches made by the complainant through whatsapp and telephone calls for which the O.P.no.1 provided warranty card to the complainant through whatsapp. But the O.P.No.1 has not delivered the billed machine rather delivered a machine bearing Model No. RZM-60 manufactured by the O.P.No.2. To purchase the said machine under PMEGP scheme, the O.P.No.3 has motivated the purchaser and sanctioned the loan for the same bearing loan Account No.39146328493, Product: EB-MSME-TL-PMEGP/ dated 17.02.2020 and the machine was insured made by O.P.No.3 by deducting insurance premium of Rs.5880/- dated.- 25.06.2020 when the paper cup machine started problem while producing cups, the complainant has inquired about the said machine and discussed about the machine with the manufacturer i.e. the O.P.No.2 and could able to know about the price, warranty terms, post-purchase services, capacity of production of paper cup in between RZM-70 and RZM-60. Further the complainant came to know about the price specifically that, the O.P.No.1 has sold RZM-60 for the price of RZM-70 machine. To redress the ongoing grievance, the complainant has issued Advocate notice dated 28.12.2020 through Registered posts but both the OP.No.1 & 2 does not reply to the said notice. Being aggrieved the complainant has filed this case and prayed to the Commission to grant following reliefs:-
- Replace defective paper cup machine RZM-60 with new tested and certified RZM-70 paper cup machine along with proper warranty, insurance and post-purchase service conditions and to pay interest @ 24% per annum on the total loan amount from O.Ps.
- Return of costs of the entire machine amount along with 24% per annum interest by O.P.No.1.
- Stop charging of interest upon loan amount by O.P.No.3.
- Compensation of Rs.8,00,000/-.
- Litigation cost of Rs.80,000/-
- Cost of Rs.50/- towards Registered Post Notices.
3. The case admitted and notices issued to O.Ps. Duly acknowledging the notices, the O.P.No.1 appeared on 01.03.2021 and filed written version on 04.10.2021. The O.P. No.3 appeared and filed written version on 04.10.2021. But due to delay in filing of the written version by the O.Ps, the Commission has declared all the O.Ps as exparte on 22.09.2021.
4. The Hon’ble State CDR Commission, Odisha, Cuttack in R.P.No.20 of 2022 set aside the exparte order against O.P.No.3 and allowed the petitioner (O.P.No.3) to participate in the proceedings.
5. The O.P.No.1 in its written version has submitted that the present complainant has approached the O.P.No.1 for the paper cup machine. The complainant has visited the O.P.No.2 manufacturer point also and after finalization of the machine, the complainant purchased the machine through O.P.No.1. The complainant selected the machine designed to produce 65 Ml. cups. The O.P.No.1 has informed to the complainant prior to purchase the machine that, any subsequent change of such mould would require considerable replacement cost. Knowing all these conditions the complainant purchased the machine. As per request, the O.P.No.1 has delivered the machine at the premises of the complainant with invoice on 30.06.2020. The complainant has operated for 6 months without any hurdles. Assuming the market demand for 50ml mould cup, the complainant approached the O.P.No.1 to replace the machine free of cost and if not changed, he threatened to initiate legal proceedings against the O.P.No.1. The O.P.No.1 further submitted that, there was nothing with model No. RZM-60 and production of 70 ml cups per minute. The O.P.No.1 has clarified in its written version that, the complainant has tried to take unreasonable benefits as mentioned in invoice. The O.P.No.1 has assured now that, the said machine can run at a speed of 70 units per minute on the condition that the machine has not suffered any damage due to wrongful use of it.
6. Similarly, the O.P.No.3 has admitted in its written version that, insurance was taken by the complainant and the premium amount has debited from the loan account. The PMEGP loan has sanctioned by O.P.No.3 to the father of the complainant for starting a fully automatic plant and manufacturing unit of paper cups and plate on the application dated 14.10.2019 along with supporting documents. The Bank has sanctioned a term loan of Rs.7,00,000/- and based working capital limit of Rs.3,00,000/-. The loan was sanctioned on 18.03.2020 and the arrangement letter was issued by the Bank O.P.No.3. As per the terms and conditions of loan the borrower has to repay the loan amount along with interest in 53 EMI @Rs.17,420/- and last installment for Rs.7086/-. The payment of installment commenced from 02.05.2020. When the borrower has failed to repay the loan installment, the O.P.No.3 has issued notice on 05.03.2021. The O.P.No.3 further submitted that there was no privity of contract between the Bank and the complainant. The Bank has never created any problem for the borrower. To cover up their own latches and lacunas, the complainant has unnecessarily involved the Bank and it’s the then Branch Manager in this case. As there is no privity of contract between the complainant Sri Rajanikanta Panigrahi and this opposite party bank. Hence the complaint petition is not maintainable in the eyes of law. It involves complex question of facts, evidence and law, the Commission has no jurisdiction to admit the case and the matter can be adjudicated in the Civil courts and the complaint does not come within the scope and ambit of the Consumer Commission. Hence there is no deficiency in services and unfair trade practice undertaken by the O.P.No.3. The complaint petition is barred by limitation and the same has not properly valued. The complaint is not maintainable due to non-joinder and mis-joinder of this Opposite Party No.3 without any allegation, cause of action against it. Hence prayed to dismiss the complaint.
7. Heard the argument from the Complainant in person and learned Counsel for the opposite party no.3 and have gone through the documents on record.
On analysis of the averments made by the complainant, op no.1 and op no.3, it reveals as follows. The complainant has filed documentary evidence in the shape of the photocopies. He has also filed the affidavit of evidence and written argument. Similarly the Op no. 1 has filed his written version only. He has neither filed any evidence nor any written argument on the other hand the op no.3 has filed the written version, evidence on affidavit and written argument. It is found from the record that the Rasmi Enterprises, Laxmi Sagar, Bhubaneswar has provided the tax-cum-detail invoice infavour of the Ram Paper Products, Dukhishyam Panigrahi on dtd:30.06.2020 showing grand total Rs.8,08,300/-. Similarly the proforma invoice by Rasmi Enterprises shows a grand total Rs.8,08,300/-. The warranty card was not supplied initially.
The op no.1 in his written version admitted selling the RZM machine to the complainant but did not state whether the machine is RZM-70 or RZM – 60. He came up with a new story stating he asked the complainant to purchase the machine from op no.2. The complainant personally visited Op no.2 but agreed to buy through op no.1., the reasons behind the purchase of the machine through op1 is not known. There is no evidence to support this aspect by the op no.1. The op no.1 did not state what machine he delivered at the premises of the complainant. Further the op no.2 has not issued any invoice. Rather it is found that the Rasmi Enterprises (OP no.1) has issued tax-cum-retail invoice on dated:30.06.2020 bearing No.180 for grand total of Rs.8,08,300/- infavour of the Dukhisyam Panigrahi. Further it is noted that, the op no.1 has not tendered any evidence nor given any written argument.
The op no.3 bank has tendered evidence under affidavit and written argument. Perusal of the documents shows that, the op no.3 admitted that Sri Dukhisyam Panigrahi the father of the complainant approached the bank for sanction of term loan of Rs.7,00,000/- and based working capital of Rs.3,00,000/- under the Prime Minister Employment Generation Programme. The loan was sanctioned vide the letter dtd:18.02.2020 infavour of the Complainant’s father for starting a fully automatic plant and manufacturing unit of Paper Cups. The complainant’s father signed the agreement containing terms and conditions. There is no privity of contract in between the complainant and this bank (OP no.3). the letter of agreement contains the terms and conditions as per Annexure A & B. It inter-alia speaks that the all the assets charged by the Bank should always be fully insured by the borrower. In this regard the complaint petition evidence and argument shows that the machine was insured by the op no.3 bank by deducting insurance premium of Rs.5880/- on dtd: 25.06.2020. The op no.3 has not denied the deduction of insurance premium and he has not given the copy of the insurance to the borrower Dukhishyam Panigrahi. That apart the name of the insurance company in whose favour the premium amount deposited is not disclosed. Hence from all these, it appears that, Sri Dukhishyam Panigrahi has a genuine grievance.
8. For proper adjudication in the instant case, the Commission reliance was placed on the decision of the Hon’ble Supreme Court of India in Anantharam vs. M/s Fiat India Limited and others Etc. reported in 2011 NCJ 109 (SC), “wherein while considering the provisions of Sections 3 and 14 of the Consumer Protection Act, 1986, this Court was of the view that when the deficiency began to manifest themselves it was the duty of the suppliers to attend to such deficiencies immediately and if the supplier was unable to attend to the deficiencies and malfunctioning of the system soon after installation, it would amount to "deficiency of service". Furthermore, when the deficiencies in the system continued to persist during the warranty period, including the extended period, the suppliers were rightly held to be liable for deficiency in service by the State and National Commission. It was also held that in the light of the specific power conferred under Section 14(1)(c) of the aforesaid Act, damages equivalent to the price of goods could be awarded, despite the provisions of Section 12(3) of the Sale of Goods Act, 1930, as the provisions of the 1986 Act are in addition to and not in derogation of any other provision of law.”
9. In view of the above discussions, the present consumer complaint case deserves to succeed against the Opposite Parties no. 1 & 3, and the same is accordingly allowed and whereas there was no claim against the opposite party no.2 filed by the Complainant hence the case is dismissed against the opposite party no.2.
ORDER
Hence, the complainant’s case is allowed against the Opposite parties No. 1 and 3.
The Opposite Parties No. 1 is liable -
- To replace the defective paper cup machine with new machine; and
- To pay compensation of Rs.25,000/- (Rupees Twenty Five Thousand) towards damages sustained by the complainant; and
- To pay the cost of Rs.7,500/- (Rupees Seven Thousand Five Hundred) to the complainant.
And the opposite party no.3 is liable to settle the loan outstanding by claiming the insurance amount from the concerned insurance company.
Parties are left to bear their own cost.
This order shall be complied with by the Opposite Parties no.1 & 3 within forty-five days from the date of receipt of this order, failing which, they shall be liable to pay the entire Ordered amount along with interest @ 12% p.a. from the date of the order of this case till its actual date of realization and the complainant is at liberty to take appropriate steps in accordance to the Consumer Protection Act, 2019 for the realisation of all dues.
A copy of this Order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019. A copy of the order be forwarded to the Secretary, State CDR Commission, Odisha, Cuttack in accordance with their directions vide Letter No.:360/Dtd:02.02.2023.
The Order be uploaded on the www.confonet.nic.in for the perusal of the parties.
The file is to be consigned to the record room along with a copy of this Order.
(SHRI P. SURYA RAO)
PRESIDENT
(SHRI SATISH KUMAR PANIGRAHI)
MEMBER
(SMT. SARITRI PATTANAIK)
MEMBER (W)
PRONOUNCED ON: 14.02.2023
