DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA (PUNJAB)

CC No. 421 of 17-08-2011

Decided on : 30-11-2011

Shree Shyam Petro Infrastructure Pvt. Ltd., Mansa Road, near HPCL Oil Depot, Bathinda, through its Director Deepak Bansal S/o Sh. Shiv Charan Dass Bansal R/o Model Town, Phase II, Bathinda.

.... Complainant

Versus

1. BELLSTONE Hi-Tech International, H.O 3755, G.F. Main Chawri Bazar, Delhi 110006, through its Managing Director

2. Mr. Chaudhary, Production Department, BELLSTONE Hi-Tech International, H.O. 3755, G.F. Main Chawri Bazar, Delhi 110006

3. Mr. Mishra, Inspection Department, BELLSTONE Hi-Tech International, H.O. 3755, G.F. Main Chawri Bazar, Delhi 110066.

4. Mr. Kaul, Approval Department, BELLSTONE Hi-Tech International, H.O. 3755, G.F. Main Chawri Bazar, Delhi 110006.

5. BELLSTONE Hi-Tech International, Branch Office at D-6, Sector A-3, Industrial Area, Tronica City, Loni Ghaziabad (U.P) through its Branch Manager

..... Opposite parties

Complaint under Section 12 of the Consumer Protection

Act, 1986.

 

QUORUM

Smt. Vikramjit Kaur Soni, President

Sh. Amarjeet Paul, Member

Smt. Sukhwinder Kaur, Member

For the Complainant : Sh. Vishal Goyal, counsel for the complainant

For the Opposite parties : Sh. H S Aklia, counsel for the opposite party Nos. 1,2,4 & 5.

Opposite party No. 3 exparte.

O R D E R

VIKRAMJIT KAUR SONI, PRESIDENT

1. The instant complaint has been filed by the complainant under Section 12 of the Consumer Protection Act, 1986, as amended upto date (here-in-after referred to as 'Act'). In brief, the case of the complainant is that the he has purchased one Mini Mobile Batching Machine Model RM800E Make BELLSTONE from the opposite parties for earning his livelihood, vide Invoice bearing Sl. No. 051 of book No. 002 dated 26-5-2011 for Rs. 3,67,200/-. Besides this, the complainant also paid Rs. 12,050/- on account of transportation charges to Grover Tempo Tpt. Service, Ghaziabad. The complainant had placed an order to the opposite parties for the supply of said machinery with specifications of ST-52 GRADE Steel and with a water storage tank of 100 Ltrs and the opposite parties sent him the proforma invoice mentioning therein that the machinery having water storage tank of 100 Ltrs would be supplied to him. The opposite party No. 5 i.e. branch office of opposite party No. 1 has also admitted that the entire machinery would be of ST-52 GRADE steel and as per specifications given by the complainant to them. The complainant received the delivery of the said machinery through the aforesaid transporters from the opposite parties and when their Service Engineer Mr. Anshu Malik visited the factory premises of the complainant on 29-05-2011 for getting installed the said machinery and inspected the same, it was found that the machinery supplied by the opposite parties is not as per specifications given by the complainant and its paint was also defective one and this fact was also mentioned in the Installation/Service Report bearing Sl. No. 098 dated 29-05-2011. The machinery supplied by the opposite parties was having water storage tank of 40 ltrs. Capacity whereas the complainant had placed the order for supply of 100 Ltrs water storage tank and this fact was also mentioned by the opposite parties in their proforma invoice. The complainant alleged that the machinery in question is not in working condition and it is neither having any outlet nor any inlet system. The machinery supplied/delivered to the complainant by the opposite parties did not work/function even for a single minute due to said defects and the same is lying idle in the same position as was received by the complainant from the opposite parties. The opposite parties did not supply the machinery to the complainant as per their order/specifications nor the same is as per their proforma invoice. The complainant alleged that the machinery in question is defective one and is of sub-standard and inferior quality and same is not functioning although the opposite parties have charged the full payment of the same from the complainant. The complainant approached and requested the opposite parties to take back the said machinery and refund the amount of Rs. 3,79,250/-, but to no effect. The complainant got served legal notice dated 14-6-2011 upon the opposite parties on 15-6-2011, but the opposite parties in reply to notice, refused to refund the price of the machinery. In the last week of July, 2011, opposite parties sent some employees of their company who inspected the machinery and tried to remove the machinery from the premises of the complainant by admitting that there is defect in the weighing panel of the machinery, but when the complainant asked for receipt of the same, they refused and left the premises of the complainant without repairing or replacing the machinery. Now, the opposite parties have refused to accede to the request of the complainant, hence he has filed the present complaint seeking directions to the opposite parties to take back the said machinery and refund the amount of Rs. 3,79,250/- with interest and pay him compensation and cost.

2. The opposite party Nos. 1,2,4 & 5 filed their joint written reply and denied that they agreed to supply the machinery with the specification of ST-52 Grade Steel but admitted that due to some inadvertence, the water storage tank of 40 Ltrs was fitted in the said machine instead of water storage tank of 100 Ltrs, but later on, the opposite parties had supplied the water storage tank of the requisite capacity to the complainant which was received by him under his signatures on 5.7.2011. It has been pleaded that there is absolutely no defect in the machine rather the same is Ok, tested and is working properly without any kind of defect therein. The complainant now does not want to keep the said machine and wants to return the same in order to get the refund of total amount. The intention of the complainant is very much clear from the fact that at the time of receiving the said machine, the complainant earlier mentioned on the receipt of the transporter that the machine is not ok and later on, he mentioned by making cutting that paint is not ok. The complainant is using the said machine. The said machine has been commissioned and tested to the satisfaction of the complainant in his presence on 2-6-2011 at about 4.30 p.m. and the complainant cannot return the same without any reason. The opposite parties have pleaded that they are ready to replace the said machinery with some other high model machine if the complainant so desires at the cost of the complainant regarding transportation charges etc., but he is not entitled to refund of the amount.

3. Registered A.D. notice of the complaint was sent to opposite party No. 2, but despite service of notice, none appeared on its behalf and as such, exparte proceedings were taken against it.

4. Parties have led their evidence in support of their respective pleadings.

5. Arguments heard. Record alongwith written submissions submitted by the parties perused.

6. These are undisputed facts between the parties that complainant purchased one Mini Mobile Batching Machine Model RM 800 E Make BELLSTONE vide Invoice Ex. C-1 bearing No. 051 dated 26-05-2011 for Rs. 3,67,200/- from the opposite parties.

7. The allegation of the complainant is that the machine in question is not in working condition and it is neither having any outlet nor any inlet system. The machine supplied/delivered to the complainant by the opposite parties did not work/function even for a single minute due to said defects and the same is lying idle in the same position as was received by the complainant from the opposite parties. Further machine in question is not as per specifications given by the complainant and its paint was also defective one. It is having water storage tank of 40 ltrs. Capacity whereas the complainant had placed the order for supply of 100 Ltrs water storage tank and this fact was also mentioned by the opposite parties in their proforma invoice.

   The pleading of the opposite parties is that they have supplied the water storage tank of 100 Ltrs capacity to the complainant which was received by him under his signatures on 5.7.2011. There is absolutely no defect in the machine rather the same is Ok, tested and is working properly without any kind of defect therein. The intention of the complainant is very much clear from the fact that at the time of receiving the said machine, the complainant earlier mentioned on the receipt of the transporter that the machine is not ok and later on he mentioned by making cutting that paint is not ok.

8. A perusal of proforma Invoice Ex. C-5 reveals that Mini Mobile Batching Machine in question, as per specification has water tank capacity of 100 Ltrs. The allegation of the complainant is that the opposite parties have supplied him water tank of 40 Ltrs capacity. The opposite parties have pleaded in their written reply that due to some inadvertence, the water storage tank of 40 Ltrs was fitted in the said machine instead of water storage tank of 100 Ltrs, but later on the opposite parties had supplied the water storage tank of the requisite capacity to the complainant which was received by him under his signatures on 5.7.2011. To prove their version, the opposite parties have placed on file Ex. R-4 i.e. G.R. No. 647 dated 4.7.2011 vide which water tank of 100 Ltrs. Capacity was supplied to him and he signed the said GR as receipt of the same and this fact was not denied by the complainant.

   The complainant has alleged that the machine in question is defective one and is of sub-standard and inferior quality, same is not functioning and its paint was also defective although the opposite parties have charged the full payment of the same from the complainant. The opposite parties did not supply the machine to the complainant as per their order/specifications nor the same is as per their proforma invoice.

9. Onus to prove the version in the complaint is upon the complainant. He was required to establish it by way of leading cogent and convincing evidence. On the basis of presumptions and assumptions his

   case cannot be said to have been proved. In the case in hand, the complainant has alleged manufacturing defect in the machine in question, but he has utterly failed to prove it by leading any evidence. There is no expert evidence on the file to prove that there is manufacturing defect in the machine or the colour of the machine has any defect or the machine in question was not supplied to him as per specifications. Due to inadvertence the water tank of 40 ltrs capacity was supplied by the opposite parties which was replaced by them, but it does not prove that there is any manufacturing defect in the machine in question. In view of this matter we get support from the observations of the Hon'ble State Commission, Haryana, Chandigarh in the case titled 2005(2) CPC 628 wherein it has been held :-

   “..... The motor-cycle purchased by the complainant found to be defective – District Forum ordered replacement of vehicle or to refund its price of Rs. 38,500/- alongwith interest at the rate of 10% per annum – Appeal filed challenging the impugned order – complainant during pendency of complaint approached opposite party No. 2 and got replacement of the parts of vehicle namely crank assembly, crank bearing, rear shocker and cylinder piston assembly – Order of District Forum that vehicle with manufacturing defect required replacement of the same is not sustainable. Merely because some defective parts have been replaced by opposite party No. 2 does not prove that vehicle has manufacturing defect – Order set aside.”

10. Keeping in view the facts, circumstances and the evidence placed on file by the parties, this Forum is of the view that the complainant has utterly failed to prove by producing any expert evidence that there is any defect in the machine in question supplied by the opposite parties. Hence, this complaint fails and is hereby dismissed without any order as to costs.

11. A copy of this order be sent to the parties concerned free of cost and the file be consigned to record.

Pronounced

30-11-2011

(Vikramjit Kaur Soni)

President

(Amarjeet Paul)

Member

(Sukhwinder Kaur)

Member