IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 12th day of August, 2022
Present: Sri. Manulal V.S. President
Smt. Bindhu R. Member
Sri. K.M. Anto, Member
C C No. 55/2019 (filed on 26-04-2019)
Petitioner : Ramees Ashraf,
Kappalamparambil,
Mundakkayam,
Kottayam – 686513
(Adv. K.K. Venu Gopakumar)
Vs.
Opposite Parties : (1) A.B. Trading Corporation,
312-Swathi, Main Road,
Moor Market, Ganapathi Street,
Coimbatore – 641006
Rep. by its Proprietor,
Devanandan.
(2) A-One Travels Kottayam,
Speed Travels,
Baker Junction, Kottayam,
Rep. by its Proprietor.
O R D E R
Sri. Manulal V.S. President
The complaint is filed under Section 12 of the Consumer Protection Act, 1986.
The facts, in brief, are that the complainant had obtained a quotation from first opposite party to purchase gear type cake machine and Atta kneader and bread slicer. The first opposite party had given a quotation on 13-11-2018 quoting Rs.60,000/- to the gear type cake machine and Rs.36,000/- for the Atta kneader and Rs.19,000/- for bread slicer. According to the complainant after satisfying the functioning of the machineries he had approved the quotation. At that time the first opposite party agreed to deliver the machineries at Kottayam without levying the transportation charges. Thereafter the first opposite party informed the complainant on 06-11-18 that they had sent the machinery through the second opposite party. On 18-11-18 the complainant received the courier from the second opposite party. But that courier contains only two machineries. On perusal of tax invoice it is learned that Atta kneader and Cake Kneader has the value of Rs.8000/- each and IGST as 2,850/-. As per the tax invoice the total price for both machines including the IGST was Rs.18,850/- only. The complainant had paid Rs.2000/- to the second opposite party towards the transportation charge. Thereafter on 2-11-18 the complainant received bread cutter from the second opposite party. As per the tax invoice receipt the said machine worth Rs.5310 including the IGST. The complainant paid Rs.450/- to the second opposite party for the transportation charge for this machine also. According to the complainant he had paid Rs.1,15,000/- to the first opposite party in accordance with the quotation. It is averred in the complaint that the first opposite party had received Rs.90,890/- from the complainant than the actual price of the machineries. It is further averred in the complaint that the first opposite party had not delivered the machineries which were shown to him. The machineries which were delivered by the first opposite party were inferior quality. According to the complainant due to the unfair trade practice and deficiency in service on the side of the first opposite party the complainant had suffered heavy loss and hardship. Hence this complainant is filed by the complainant praying for an order to direct the first opposite party was to repay Rs.1,15,000/- and to pay compensation of Rs.1,00,00 as compensation.
Though the notice was issued to the first opposite party it was returned with an endorsement that not claimed. Hence it is considered as deemed service. First opposite party failed to appear before the commission and to file version .Hence first opposite party was set ex-party. Second opposite party filed version as follows:
There was no privity of contract between the second opposite party and the complainant. The second opposite party delivered the articles which were sent by the first opposite party to the complainant after levying its transportation charge. The second opposite party is unaware about the transaction between the complainant and the first opposite party. The second opposite party is not liable for any loss incurred to the complainant due to any act of the first opposite party. The complainant had no cause of action against the second opposite party.
Complainant filed proof affidavit in lieu of chief examination and marked exhibit A1 to A5. After filing version the second opposite party chose to abstain from the proceedings of the case hence second opposite party was set ex party.
Points for consideration.
Whether the complainant had succeeded to prove deficiency in service on the part of the opposite party and is entitled any reliefs as prayed?
The specific case of the complainant is that after approving the quotation he had placed order with the first opposite party to purchase gear type cake machine and Atta kneader and bread slicer. Exhibit A1 is the quotation given by the first opposite party to the complainant on 13-11-18. On perusal of Exhibit A1
we can see that the quoted price for the gear type cake machine is Rs.60,000/-and Rs.36,000/- for the Atta kneader and Rs.19,000/- for bread slicer. According to the complainant the Atta kneader and cake kneader were delivered to him through the second opposite party on 18-11-2018. Exhibit A2 is the tax invoice issued by the first opposite party to the complainant. On perusal of exhibit A2 we can see that the price of the Atta kneader is 8,000/- and the cake kneader is 8,000/- and the IGST for the same is Rs.2,850/-. The total price of both the machines was Rs.18,850/-. ExhibitA3 is the tax invoice issued by the first opposite party to the complainant for bread slicer for an amount of Rs.4,500/- and IGST of Rs.810/-. Exhibit A4 and A5 proves that the complainant had paid a total sum of Rs.2450/- to the second opposite party towards the transportation charges of these machines.
The main contention of the complainant that though he had paid Rs.1,15,000/- to the first opposite party for the machineries which were stated in exhibit A1 quotation the first opposite party had delivered machineries of inferior quality worth Rs.24.160. It is submitted by the complainant in complaint as well
as in proof affidavit that the opposite party had collected excess amount of Rs.90,890/- from the complainant as per Exhibit A3 and A4 tax invoices. It is pertinent to not that neither in the complaint nor in the proof affidavit the complainant disclosed the date on which he had paid Rs.1,15,000/- to the first opposite party and the mode of payment of such amount. Complainant did not produce any evidence to prove that Rs.1,15,000/- had been paid by him to the first opposite party being the price of the machineries. Though the complainant alleged the machineries were inferior quality however he did not disclose the standard and specification of the machineries which were agreed by the opposite party.
The Hon’ble Supreme Court in a recent Judgment dtd.06th October 2021 i.e. in “SGS India Limited v/s Dolphin International Limited”, categorically held that the onus of proof that there was deficiency in service is on the complainant.
Here in this case as discussed above we are of the opinion that the complainant has failed to prove any deficiency in service on the part of the opposite party. Thus the complaint is dismissed.
Pronounced in the Open Commission on this the 12th day of August, 2022.
Sri. Manulal V.S. President Sd/-
Smt. Bindhu R. Member Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Exhibits marked from the side of complainant
A1 –Copy of quotation dtd.13-11-12 issued by 1st opposite party to petitioner
A2 – Copy of tax invoice for Rs.12,220/- issued by 1st opposite party to
petitioner
A3 –Copy of tax invoice dtd.19-11-18 for Rs.5,310/- issued by opposite party to
petitioner
A4 –Receipt for Rs.2,000/- issued by 2nd opposite party
A5 - Receipt for Rs.450/- issued by 2nd opposite party
Exhibits marked from the side of opposite party
Nil
By Order
Assistant Registrar
