For the complainant: Shri N.R.Mishra & associate , Advocate.

For the O.P.          : Shri Minaketan Mishra & Associate Advocate

  ORDER

Sri A.K.Patra, President

1. This Complaint is filed by the complainant named above inter alia alleging deficiency in service and unfair trade practice their on the part of the Ops for non refund of price of product paid excess in advance.
2. The complainant seeks for an order directing the Op to pay the balance amount of Rs.4,38,760/-to the complainant  and to award compensation of Rs. 3,00,000/- towards mental agony, suffering and interest of the loan, and further to pay  Rs.10,000/- towards  cost of this litigation.
3. The brief facts  as emerged from the complaint petition and documents filed herewith giving rise to the present  complainant are that, the complainant is a businessman  deals with graphics, flex and other designs works  and, being a business man ,he  purchased a GRANDO PREMIUM-512i-4H-30PL machine from the Opposite Party for an amount of Rs. 9,08,600/- which includes GST. Before purchasing of said product the complainant discussed with the Opp.Party that, as the amount of machine is more than nine lakhs , the petitioner will take loan from the bank and, the sanctioned amount shall be deposited in the account of opposite party but prior to that and during the period of installation of subject machine, the complainant shall cleared all the amount of machine to the OP and on received of the cost from the bank through loan sanctioned to the complainant ,   the OP shall transferred the same to the account of the petitioner, where upon the Ops agreed and given his bank details  i.e. HDFC Bank Sambalpur Branch bearing account No.59203827141411 and the complainant has paid Rs.8,00,000/- on dt.12.01.2022 to the OP in two transaction and after receiving the said amount the Op delivered the subject machine to the complainant on dt.  23.01.2022 and installed the same on dt. 26.01.2022  by the service  engineer  namely Sujit Mahala  and, soon  after installation , the petitioner paid the balance amount of  Rs.1,00,000/-  to the op in the hand of said service engineer.
4. It is further submitted by the complainant that, he availed a loan from his bank in the month Novembedr,2022  and the sanction amount of Rs. Rs.8,83,000/-was directly  credited to  the account of the Opposite Party on 5.11.2022 .And as  per the terms & condition of the bank  the monthly installment has been deducted from the  account of the petitioner towards repayment of said loan but  OP remained silent and did not shown any interest to refund the price of the product paid earlier in advance prior to sanction of loan. After several requests of the complainant the OP refunded Rs.4,44,240/- only  on 5.12.2022 out of Rs.8,83,000/- .The  Op has taken different plea to refund the balance amount of Rs.4,38,760/-  and intentionally avoiding to refund the balance amount cost price of the machine paid in advance  for which the complainant sustained financial loss & mental agony . It is further submitted that, the machine supplied by the OP is not working properly and when it was intimated to the OP, he did not provide proper service for which the petitioner by spending huge amount called other expert paying from his own pocket and update the machine for which the complainant   suffered a lot and his business for his livelihood also hampered. The petitioner issued legal notice to the Op when the machine did not work but  OP did not provide any service and  did not care to that notice and remained silent over the matter rather,  threatened the complainant  over phone  that, neither he will provide any service in future nor he will refund the amount as claimed by the complainant which caused financial loss & mental agony to the complainant . Hence, this complaint.
5. Being notice, the OP appeared and filed their   written version denying the petition allegations on all its material particulars.
6.  The complainant is not a consumer of the OP. The complainant has purchased machine, machinery, flaxe media, etc from the opposite party company M/s Vinod Medical Pvt. Ltd during  the year 2018-2019 to year 2022-2023 for commercial utility and payment has been received by the Op time to time but some payment for supply of good is to be received from the complainant as such there is a business transaction and accounts is to be set off between the complaint & Vinod Medical System Pvt.Ltd. not comes under the definition of consumer defined in  the Consumer Protection Act.
7. It is further submitted by the OP that, this complainant is filed for recovery of Rs.4,38,760/-  does not  come under deficiency in service rather ,the claim /recovery of money is civil in nature.The complainant has not made party to the Company nor given any notice/demand to the Company and that, the complainant has not stated any fault and deficiency of the machine nor in the notice dt.18.08.2023 regarding any fault of the machine nor given any oral or written information to the opposite party or the company. The Ops is not liable to pay any amount as claimed in this complaint petition rather the op is to recovered Rs.4,50,811/- from the complainant and that, there is dispute of settlement of accounts between the parties not comes under the jurisdiction of this Commission.  The case is solely based on business transactions as such liable to be rejected with cost.
8. Both parties lead their evidence on affidavit as prescribed in C.P.Act 2019 to substantiate their respective pleadings.
9. The complainant, to substantiate his pleading, has filed his evidence on affidavit the averment of which are corroborating with the averment of the complaint petition. The complainant has also filed the self attested true copy of the following documents :- (i)  Copy of the quotation of the purchased machine received from the op,(ii) Copy of Bank account details supplied by the Op,(iii) copy of service report, (iv) copy of installation report, (v) copy of transaction details given by the op,(vi) Bank statement of complainant showing detail of loan amount transferred to the account of the Vinod Medical Pvt.Ltd, (vii) Office copy of Pleader notice dt.18/08/2023 with postal receipt  (viii) copy of Bank statement relating to the SBI Account No. 0000003167808412(4 sheets) ,(ix).Copy whatsApp charting (5sheets) ..
10. The OP to substantiate their pleading has filed an affidavit evidence of one Narayana Rathi ,the Director, Vinod Medical System Pvt.Ltd. the averment of which, are corroborating with the averment of their written version .The Op also  filed self attested true copy of invoices dt.22/01/22,dt.14/03/19,11,dt.18/03/19.dt.16/09/19,dt.16/11/22(5 pages)  and Account statement of the year 01/04/2018 to 15/03/2023 (11pages.)
11. Heard. Peruse the material on record. We have our thoughtful consideration to the submission of rival parties.
12. Here in this case, it is not disputed that the complainant has purchased purchased the subject GRANDO PREMIUM-512i-4H-30PL machine from the Opposite Party for an amount of Rs. 9,08,600/- which includes GST. .Nothing materials placed on the record to hold that the machine is purchased for resale or commercial purpose rather, the complainant has proved on affidavit that, he has purchased the subject machine for  developing of his business & to earn his livelihood remain un-rebutted .As  such this commission may safely hold that, the complainant is a consumer of the Ops.
13. The Op has raised dispute on   settlement business account there between the parties which is admittedly not coming under the jurisdiction of this commission. The Op is at liberty to sue for settlement of the account if any in the proper court of law.
14. The complainant has proved on affidavit that, he has paid Rs. 4,00,000/- each in two bank transaction i.e total Rs.8,00,000/- on 12^th  January 2022 and rest amount of Rs.1,00,000/- is paid to the service engineer of the op on the very day of the installation of the machine i.e on dt. 26/01/2022 remains un-rebutted. It is seen that, the same transaction are  reflected there in the account details prepared in the name of Sun Graphics, Bhawanipatna/complainant   from 1^st April to 31^st March 2022 placed on record by the OP and that, on 12 Jan 22 vide Vch. No. S-R-S-G-676-2122 an amount of Rs. 4,00,000/- and on the same date vide Vch. No S-R-S-G-676-2122 for an amount of Rs. 4,00,000/- is credited there in HDFC  A/C No. 59209827141411 (Sambalpur) of the Op .
15. It is further proved on affidavit evidence of the complainant that, on 5^th January 2022 he received back Rs. 4,44,240/- from the OP which paid in advanced towards cost of the subject machine remain un-rebutted rather, the account statement prepared in the name of the  Sun Graphics, Bhawanipatna  for the period of 1^st April to 15^th March placed in the record by the OP clearly support the averments of the complainant that ,  an amount of Rs. 4,44,240/- is debited from the op account. Nothing placed on record to hold that, rest amount of Rs. 4,38,760/- received by the op ,excess to the agreed price of the subject machine, has ever refund to the complainant which the complainant is entitled to get back from the Op squarely proved deficient service & unfair trade practice there on the part of  op . As such submission of the Op that, subject matter is not coming under this Commission is not acceptable.
16. Based on  aforesaid discussion, we may conclude that, the complainant is entitled to get back  Rs. 4,38,760/- paid in advance excess towards cost of the subject machine and the Op has not yet refund the same to the complainant clearly proved negligence, deficient service & unfair trade practice there on the Part of the Op certainly caused financial loss & mental agony to the complainant cannot be denied as such the Op is liable to compensate the complainant by refunding of same amount i.e Rs. 4,38,760/- with interest @ 9% p.a with a specific time period to the complainant .  The Op is also liable to pay cost of this litigation to the complainant.  However, the claim of the complainant is at higher side. Hence, this complaint is allowed in part with the following directions.

ORDER

In view of the aforesaid facts and circumstances this consumer Complain is partly allowed against the Op on contest with following direction:-

The Opposite Party is hereby directed to refund Rs. 4,38,760/- with interest @ 9% p.a from the date of filing of this complaint i.e.15/11/2023 till  its actual payment to the complainant . And further directed to pay Rs.10,000/- towards cost of this  litigation .No order as to compensation towards mental agony as we have awarded interest payable to the complainant.

   It is further directed to comply the aforesaid order within four weeks from the date of receipt of a copy of this order falling which the OP shall  be liable to pay additional compensation of Rs.500/-(five)  per day to the complainant till compliance of this order .

     Dictated and corrected by me.

            Sd/-

          President

                           I agree.

                                              Sd/-        

                                             Member

        Pronounced in the open Commission today on this    18^th day of December 2024 under the seal and signature of this Commission. The pending application if any is also disposed off accordingly. Complaint could not be decided on time as stipulated under C.P.Act in want of Coram of this Commission.

    Free copy of this order be supplied to the parties for their perusal or party may download the same from the Confonet be treated as copy served to the parties. Complaint is disposed of accordingly. Order accordingly.