M/s. Bharat Constructions,

Engineers & Contractors,

“Sundeep Apartments”’

Near Masjid, Malbhat,

Margao Goa.

Represented by its partner,

Shri Kiran Naik,

R/o. above address. ….. Complainant



V/s.



M/s. Universal Engineers,

Plot No.16,

Ramdev Industrial Estate,

G.I.D.C. Vatva,

Ahmedabad -45

Represented by their Authorised Signatory/

Manager-in-Charge,

Shri Dashrath Parekh,

R/o. above address. ….. Opposite Party

O R D E R

I. It is stated in the complaint that the Complainant is a Partnership Firm carrying on the business of construction activity at the abovementioned address and is duly represented by its partner, Shri kiran Naik and further that the O.P. is also in the business establishment and came in contact with the Complainant in furtherance of their mutual business interest.

II. It is alleged in the complaint that the Complainant has purchased equipments from the O.P. for their new plant at Balli, Goa. Out of various equipments ordered by the Complainant as a result of the offer and representation made by the O.P., one equipment was for the supply of 1 No. new Static Roller of 8 ton capacity at a cost of Rs.6,50,000/- with 4%, which was ordered by Complainant’s Purchase Order No. BC/113/2007 dated 02.05.2007. It is further alleged that as per the said Order the item was to be delivered at the aforesaid site of the Complainant by the first week of August, 2007. Vide letter dated 12.08.2007 the O.P. informed the Complainant that the Road Roller will be supplied to the Complainant by the first week of September, 2007. However, the said item was not received by the Complainant even after 1st week of September 2007 and hence the Complainant went on reminding the O.P. on several occasions over telephone or otherwise to arrange for immediate dispatch of the same at the site of the concerned premises of the Complainant as the same was required by the Complainant for execution of their various works in progress.

III. It is also alleged in the complaint that consequent to several reminders over phone or otherwise the O.P. dispatched 1 No. Static Road Roller with accessories through Green Lines Carrier, Ahmedabad and that though this item reached in Goa on 20.10.2007, while unloading and thereafter whilst taking the same …3/-

to a position, it started producing unusual sound and stopped its movements for which the Complainant cannot be faulted. On a thorough checking it was observed that as against the order for supply of a new Road Roller, the O.P. had supplied the Complainant a second hand junk. When the Complainant informed this fact to the O.P. over telephone, the O.P. told the Complainant that there was some problems with the new engine and despite of the urgency shown by the Complainant, the O.P. still installed the old engine and the O.P. informed that they would be sending their Engineer to rectify the defects and put the Roller for use for the time being and further that they will send the new Engine and replace the old Engine with new one. The Complainant further states that after several reminders over phone, the O.P. deputed two of their representatives viz. Shri Jeevanbhai T. Chavda and Shri Maheshbharti N. Goswami, who arrived at Goa on 24.11.2007. After inspecting the road roller they informed the Complainant the engine is very old one and it was not properly overhauled and the same requires major repairs.

IV. However, the said two technicians thereafter prepared a big list of parts required for repairing the engine and informed the Complainant that these parts are not available in Goa and left Goa with old one. On being told about the same, the O.P. informed the Complainant that for the time being this Road Roller would be repaired and put in use to meet the urgency and kept promising the Complainant that the new Road Roller would be delivered very soon. However, till the date of filing the complaint the Complainant neither received the new Road Roller nor heard anything in the matter form the O.P.

V. It is alleged in the complaint that the O.P. intentionally and malafidely sent a second-hand Road Roller instead of the new one and that the said Road Roller did not work even for a single hour

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or single day and as a result the Complainant had to incur tremendous financial loss over additional expenditure @ Rs. 2,000/- per day being the hire charges of the Road Roller for the execution of their day-to-day work.

VI. The case of the Complainant is that he is entitled to receive the damages by way of compensation for the amount of Rs. 5,00,000/- on the grounds of inconvenience , hardship and loss of business, etc.

VII. It is alleged in the complaint that the Complainant has sent a legal notice on 09.06.2008 through his advocate by Regd. A/D addressed to the O.P. inter-alia demanding the refund of Rs. 8,01,160/- with interest within 15 days from the date of receipt of the said notice. By way of abundant caution the Complainant has sent another similar notice with similar contents to the O.P. by E-mail on their E-mail address which was duly received by them. However, the O.P. has failed to comply with the said notice.


VIII. Based on the said cause of action which arose on 02.05.2007 when the said order was placed by the Complainant with the O.P. and thereafter on 09.06.2008 when legal notice was sent, the Complainant has filed the present complaint with the following reliefs:


a) That this Hon’ble Forum be pleased to order the O.P. to refund to the Complainant the amount of Rs. 8,01,160/- with interest @ 18% per annum from the time when the payment was made till actual payment.

b) That this Hon’ble Forum be pleased to order the O.P. to pay to the Complainant the amount of Rs. 5,00,000/- by way of damages/compensation on the grounds of mental tension, anxiety, inconvenience, financial loss, etc. caused to the Complainant due to the negligence and deficient acts of the O.P. ..5/-

c) The costs of Rs. 10,000/- may please be granted in favour of the Complainant.


The notice issued by the Forum to the O.P. on their last known address was returned “unserved” and hence on the application moved by the Complainant, substitute service of the notice by way of publication in the newspaper was allowed. Accordingly the Complainant published the notice in the newspaper which is taken on file. Despite the same, the O.P. has failed to appear before us and file the written version. Hence the Complainant as per the direction of this Forum has filed his Affidavit-in-evidence and also his written arguments This Forum has marked the proceedings against the O.P. to run ex-parte.

We now proceed to decide the fate of this complaint on merits. We have perused the documents enclosed to the complaint, Affidavit-in-evidence and the written arguments submitted by the Complainant and we ensure that despite the non-participation of the O.P. this order is passed on oral merits of the case:

1. The fact of the matter is that the O.P. has failed to participate in the proceedings before this Forum right from inception. The O.P. has also failed to respond to the publication of notice in the newspaper.


2. Since the case is ordered to run ex-parte against the O.P. we do hereby hold that the O.P. is deemed to have admitted the case as set by the Complainant and accordingly the O.P. must be held responsible for all the consequences of his acts of commission and omission arising out of the cause of action in the present complaint.


3. The Complainant has produced alongwith the complaint the necessary documents, the contents of which have been perused by us in greater detail.

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4. We have gone through the contents of the Purchase Order dated 02.05.2007 placed by the Complainant with the O.P. The said Purchase order gives the details about the price, terms of payment, taxes, excise, delivery, insurance, erection & installation and warranty of the said Static Road Roller of 8 ton capacity. As per item no. 14 of the said Purchase Order, the invoice addressed to M/s. Bharat Construction i.e. the Complainant is consisting of “(1) Four bin Feeder (2) Thermo drum for mixing unit (3) Slinger conveyor (4) Load out conveyer with storage hopper & hydraulic power pack (5) Control penal with printer system (6) Asphalt tank main with assembly (7) Asphalt storage tank with burner (8) Filler unit (9) Vibrator screen (10) LDO tank (11) Control cabin heat and dust proof.”


5. It is observed from the record that the Complainant vide letter dated 09.06.2007 has brought to the notice of the O.P. that they have enclosed thereto a cheque of Rs. 2,00,000/- drawn in favour of the O.P. on Punjab National Bank towards part payment for supply of Static Road Roller and Asphalt Mechanical Single Nozzle Trolley mounted Sprayer 2.5 ton capacity.


6. We have gone through the contents of the letter dated 12.08.2007 addressed by the O.P. to the Complainant, the contents of which are self explanatory. Vide letter dated 12.08.2007 the O.P. informed the Complainant that they are sending their Erection Engineer Shri Jagmohan Yadhav to erect the plant with a request to provide boarding, lodging in medium level guest house or lodge and local conveyance to him and also give him Rs. 2000/- towards to and fro train fare, etc.


7. The Complainant has produced on record the letter dated 13.08.2007 addressed by M/s. Green Lines Carrier to the O.P., the contents of which are self explanatory.

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8. We have gone through the correspondence between the parties especially the letters dated 21.08.2007, 22.082007, 29.08.2007, the insurance documents, etc. Vide letter dated 06.09.2007 the O.P. requested the Complainant to remit Rs. 3,03,500/- by D.D. payable at Ahmedabad to enable them to dispatch the pollution control unit. The rest of the correspondence on record is self explanatory.


9. We have gone through the contents of legal notice addressed by the Complainant to the O.P. We observe that the O.P. has miserably failed to comply with the requirements of the said legal notice.


10. The Complainant has brought on record the notice published in the newspaper by way of substituted service. However, as stated earlier the O.P. has failed to appear before us.


11. It is hereby observed that the record reveals that the Complainant has proved his case beyond doubt with cogent and convincing evidence. The Complainant has also proved the acts of commission and omission on the part of the O.P. which throw enough light on the gross negligence on the part of the O.P. and which amounts to ‘deficiency-in-service’ on the part of the O.P. as defined under the Consumer Protection Act, 1986.


12. In the whole transaction it is established that the Complainant has suffered mentally and financially great inconvenience and hardship and hence the Complainant is entitled to receive the damages/compensation, if not to the extent to which the Complainant has claimed in the main complaint.


13. We therefore hold that this complaint has to be allowed in the larger interest of justice, which accordingly we do so.

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We therefore pass the following Order:


O R D E R


It is hereby Ordered that the Complaint dated 14.08.2008 filed by the Complainant herein against the O.P. herein is hereby allowed. The O.P. accordingly is directed to refund to the Complainant the amount of Rs. 8,01,160/- (Rupees eight lakhs one thousand one hundred sixty only) with interest at the rate of 12% per annum from the time when the O.P. received the payment from the Complainant till actual payment. The O.P. is further directed to pay to the Complainant the consolidated compensation in the amount of Rs. 25,000/- (Rupees twenty five thousand only) on the grounds of mental tension, agony and financial loss to the Complainant due to the negligence and deficiency on the part of the O.P. The O.P. is further directed to pay to the Complainant the cost of Rs. 5,000/- (Rupees five thousand only).