BEFORE THE  DIST. CONSUMERS DISPUTES REDRESSAL FORUM;  DHARWAD.

DATE:29^th January 2016         

PRESENT:

1) Shri B.H.Shreeharsha       : President

2) Smt.M.Vijayalaxmi             : Member 

Complaint No.: 233/2015  

Complainant/s:               The Proprietor,         M/s.Sanvi Industries, R/by Amarsing Govindsing Thakur, Age: 29 years, Occ: Business, R/o.Plot No.12, Jai Hanuman Nagar, Bharti Colony, Anand Nagar, Hubli.

(By Sri.S.M.Patil, Adv.)

v/s

Respondent/s:          1)    The Proprietor, Venkateshwar Paper Products, L5-101/1(3) Ballal Industrial Estate, Yeyyadi, Mangaluru 575008.

1 (a) Smt. P.Jayashree Shenoy, Age: 45 years, Occ: Business.

1 (b) Srinivas S/o.Padmanabha Shenoy, Age: 29 years, Occ: Lecturer.

1 (c) Damodar S/o.Padmanabha Shenoy, Age: 19 years, Occ: Student

All are R/o. Sri Nivas, Gundurao Lane, 1^st Cross, Mannagudda, Mangaluru 575003.

2)     Venkateshwar Enterprises, L5-101/1(3) Ballal Industrial Estate, Yeyyadi, Mangaluru 575008.

3)     Smt. P.Jayashree Shenoy, Age: 45 years, Occ: Proprietor of Venkateshwar Enterprises. R/o. Sri Nivas, Gundurao Lane, 1^st Cross, Mannagudda, Mangaluru 575003.

(By Sri.S.V.Kamat, Adv.)

O R D E R

By: Shri. B.H.Shreeharsha : President.

1.     The complainant has filed this complaint claiming for a direction to the respondents to replace the machine or to refund Rs.6.15 lakhs cost of the machine, to pay Rs.2 lakhs compensation towards mental agony, hardship & inconvenience, to pay Rs.10000/- towards cost of the proceedings and to grant such other reliefs.

Brief facts of the case are as under:

2.     The case of the complainant is that, the complainant came to know the respondent is involved in the business of selling tissue paper converting machine of 20 cm. Hence, the complainant approached the respondent and placed quotation for the said machine for Rs.6.15 lakhs through Vijay Bank Hubli which was financed. The complainant has pledged his properties as guarantee to the Vijaya Bank for loan. The  Vijaya Bank released the cost of the machine with 2 installment payments of Rs.3,07,500/- each on 20.09.2014 and on 24.09.2014 by way of DD payable to the respondent firm. Hence, no due towards cost of the machine. Even after payment made by the bank the respondent did not supplied the machine then, the financier Vijaya Bank issued letter to the respondent to supply the machine immediately. During that time the proprietor of the respondent firm died. When the complainant approached the respondent 2 for delivery of the machine the respondent 2 agreed to send the machine and requested to take the machine without all parts & undertook to reimburse the amount to be borne by the complainant. The complainant have no other way accept the proposal of delivery of incomplete machine. Believing the words of the respondent 2 the complainant made arrangement for transportation of the said machine to Hubli under the invoice No.0000000632 dt.13.11.2004. respondent 2 had also promised to send Mr.Harish Shetty, Technician to fix and reassemble the machine delivered to the complainant. The complainant made all arrangements to stay of the technician & also paid all the salaries to the technician & spent Rs.1,18,879/- in all towards cost of the spare parts purchased from someone else industry repair charges, local parts purchased, accommodation for the technician, salary & traveling expenses. Inspite of efforts & amount spent the complainant could not commission the machine and get ready for use. Apart from the amount spent the complainant also spending Rs.7000/- p.m. towards the premises hired for installation of the machine and also paying monthly installments towards the repayment of the loan amount raised for purchase of the machine. The complainant purchased the machine for self employment to eke for livelihood. Hence, the very purpose of purchase of the machine become useless and further the complainant’s financial position is deteriorating at the instance of the respondent. The respondents are evading to receive the phone calls and are falsely assuring machine will be set right by the technician. But not done. Hence, complainant got issued legal notice to the respondent calling upon to replace the machine or otherwise to pay the amount along with all costs but not care to comply which amounts to a deficiency in service. Aggrieved by the act of the respondents complainant filed the instant complaint praying for the relief as sought.

3.     In response to the notice issued from this Forum the respondents appeared and filed the written version in detail denying and disputing the complaint averments. Further the respondents taken contention that the complaint as it brought is not maintainable either in law or on facts as there is no cause of action for the complainant and complainant is not consumer and respondents are not service provider, there is no jural relation between complainant and respondent. Since the transaction had taken place at Mangalore and respondents are residing at Mangalore this Forum has no territorial jurisdiction to adjudicate the same. The respondents are not proprietors and they have not inherited any properties or assets of the deceased proprietor. Hence, there is no pios obligations on the part of the respondents. Hence, prays for dismissal of the complaint. Further the respondent also taken contention that the complaint is not maintainable as it is not a consumer complaint. Apart from such other admissions & denials the respondent submits, as per the own admission of the complainant and at the request of the complainant only to facilitate for transportation of the machine the respondent.2  delivered invoice & the complainant received the same and shifted and transported the machine  as it is in the condition at any point of time the respondent 2 had not assured the complainant that the respondent 2 will reimburse the cost of the spare parts and promised to send the technician Harish Shetti. Further the answering respondent disputes the liability and taken contention that the complaint as brought is bad in law for non-impleading of the necessary parties of Sanvi Industries & Financial Banker as parties and prays for dismissal of the complaint.

4.     On the said pleadings the following points have arisen for consideration:

1. Whether the complaint filed could be prosecuted and be decided ?
2. Whether complainant has proved that there was deficiency in service on the part of respondents ?
3. Whether complainant is entitled to the relief as claimed ?
4. To what relief the complainant is entitled ?

Both have filed sworn to evidence affidavit, relied on documents. This Forum got appointed court commissioner to conduct inventory of the respondents firm premises & to report and accordingly  commissioner submits report. Both have submits argument. Heard. Perused the records.

Finding on points is as under.

1. Negative
2. Does not survive for consideration 
3. Does not survive for consideration  
4.  As per order

R E A S O N S

P O I N T S 1 to 3

5.     On going through the pleadings & evidence coupled with documents of both the parties it is evident that there is no dispute with regard to the fact, that the complainant submits quotation to the respondent’s firm and purchased the machine  on availing loan from the bank & has pledged the machine towards the repayments.

6.     Now the question to be determined is, whether the complainant is entitled for replacement or refund of the cost of the machine, if so, for what relief the complainant is entitled.

7.     Since the facts have been revealed in detail which requires no repetition.

8.     On going through the pleadings of both the parties following are the some other facts have to be determined for our consideration to approach the decision on merits are :-

9.     Whether the complainant comes within the meaning of definition consumer and the respondents are the service providers, whether this Forum has got territorial jurisdiction to adjudicate the present complaint, whether the present complaint is bad for non joinder of the complainant’s financier Vijaya Bank Hubli, Shatabdi Industries, Bangalore & there is cause of action to file the present complaint against the respondents.

10.   As per the admission by both the parties the proprietor of Venkateshwar Paper Mill Products, Padma Shenoy P. died on 29.10.2014. This is confirmed by the death certificate Ex.R-22 issued by Mangalore City Corporation, Mangalore dt.30.09.2015. Complainant took the delivery of the machine in question on 13.11.2014 i.e. after the death of the proprietor of respondent paper products. In the first instance the complainant filed complaint against the firm and the present respondent 3 only. subsequent to appearance of respondent the respondent admits written version opposing impleading of respondent.3 contending that the respondent.3 is no nexus with the firm and she has not inherited any estate of the deceased proprietor and further took contention that the complaint is bad for non joinder of necessary parties and all the legal heirs of the deceased proprietor. Further also taken contention that since the deceased proprietor left no assets behind him the present respondents have no pious obligation to discharge the liability of the deceased proprietor to know the facts of this in detail this Forum appointed the court commissioner and the court commissioner submits report reporting the present respondents are not running the respondent.1 firm by producing documents of the tax authority, labour department & City Corporation office. Those documents reveals the said firm is not running now. From the commissioner report it also reveals the firm Venkateshwar Paper Products has been attached and locked by the firm’s financiers for recovery of the debts. Since the estate of the Venkateshwar Paper Mill Products has not been succeeded by any persons or either by the respondents now question has been arised whether the respondents are liable to satisfy the claim of the complainant, is the question.

11.   Another question for determination is, as per the own admission of the complainant he had approached the respondent.3 personally and requested to deliver the machine, as such the respondent.3 delivered the same “as is where is condition”. Accordingly respondent.3 delivered the same. There is no documents were produced by the complainant to show that the respondent.3 only delivered the same to the complainant’s place and  respondent.3 only installed it, but the contention of the complainant that the respondent.3 sent her mechanics and they have installed it, but it is not commissioned due to some more parts were required to commission it. Except saying, the complainant did not examined though he mentioned mechanic name Mr.Harish Shetti , Technician installed it. Hence, in the absence of proper evidence on record territorial jurisdiction to adjudicate the complaint by this Forum also arised and is in question.

12.   As per the own admission of the complainant the complainant had purchased the machine in question by availing the loan from the Vijaya Bank by pledging the properties. Under those circumstances and as per the defence taken by the respondent non impleading of the financier as necessary party is arised & is in question.

13.   As per the own admission of the complainant he took the delivery of the machine as it is and where it is condition and he took the delivery of the part of the machine, rest of the parts were not available at the time of taking delivery of the same. In this circumstances approach of the complainant to this Forum praying the reliefs as sought in the complaint whether the complainant is entitled for the reliefs in such circumstances is the another question for determination.

14.   As per the own admission of the complainant  as he took the delivery of the machine from the respondent.3 as it is and where it is condition he purchased other parts from Shatabdi Industries Bangalore and some other parts from local. Under those circumstances it gives raise to whether those parts are suitable to the said machine to make it to run or not is arised and is in question for determination. So also the complainant did not implead the  Shatabdi Industries Bangalore as party. Under those circumstances it gives raise to question whether Shatabdi Industries Bangalore have any liability and this question also for determination.

15.   In all the complainant has not placed any evidence before the Forum whether the machine is working or not and for what reason it is not running among Venkateshwar Paper Mill Products & Shatabdi Industries Bangalore on whose faults the machine is not working is also not comingforth. So also among the 2 suppliers due to whose accessories or part of the machine the entire machine is not running is also not comingforth. Under those circumstances we taken issue.1 as preliminary issue and determined.

16.   Among all those above points raised no proper evidence is placed on the file and it requires detailed prosecution and it involves voluminous trial & it could not be determined and decided by this Forum by its summary proceedings and it is triable to be by a competent court of law.

17.   In view of above observations we answer issue.1 in negatively.

18.   In view of the above discussions we have arrived and proceed to held issue.2 and 3 does not survive for consideration.

19.   Point.4: In view of the finding on points 1 to 3 proceeded to pass the following 

O R D E R

Complaint is dismissed. Parties to bear their own costs. In the event the complainant would like to exercise his right of claim against the respondents in any other courts/forums/tribunals this order will not come in the way of rights of the complainant.

(Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 29^th day of January 2016)

(Smt.M.Vijayalaxmi)                                      (Sri.B.H.Shreeharsha)

Member                                                           President

Dist.Consumer Forum                                    Dist.Consumer Forum

MSR