Complaints filed on: 09-03-2022
Disposed on:22-11-2022
BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, TUMAKURU
DATED THIS THE 22ND DAY OF NOVEMBER, 2022
P R E S E N T
SMT.G.T.VIJAYALAKSHMI, B.Com, L.L.M, PRESIDENT
SMT.NIVEDITA RAVISH, B.A., L.L.B, LADY MEMBER
CONSUMER COMPLAINT No. 71 OF 2022
Sri. B.S.Nataraja S/o N.Shivarudraiah,
Major, R/at 3rd Cross, Devarayapatna,
New Extension, Tumkur City
……….Complainant
(By Sri. V.G.Hiremath, Adv.,)
V/s
The Manager,
M/s A.V.Agro Industries,
No.1305/2, Near Narayana Chemical,
Gayathri Mandir Road,
Phase-4, Naroda Gide,
Naroda-382330, Gujarath.
(Served – absent)
:O R D E R :
BY SMT.NIVEDITA RAVISH - LADY MEMBER
This complaint was filed by the complainant Under Section 35 of Consumer Protection Act 2019, to direct the OP (hereinafter called as OP) to return the new branch equipment namely Earth Augar 71 CC Power Engine to the complainant and to pay cost, damages of Rs.5,00,000/- to the complainant for deficiency in service.
2. The case of the complainant in brief as set out in the complaint is that, the complainant had interested to purchase some of the equipments of OP and complainant had placed orders of delivery of some of the equipments, out of said equipments, one was Earth Augar 71 CC Power Engine, which cost about Rs.14,500/-. In response, the OP have sent the above said equipment along with other equipments vide invoice No.3341 dated:31.08.2021 and the said equipments were reached to complainant as per demand of the complainant. When the complainant has started to use the all equipments, the above mentioned Earth Augur 71 CC power Engine was not working properly and other equipments are working satisfactorily. Immediately the complainant has informed about the workmanship of the said equipment to the OP and as per the direction of the OP, the complainant has returned the said equipment to OP on 08.10.2021. After receipt of the above said equipment, the OP have informed to complainant that the OP will return the said equipment immediately after rectification of default or new brand equipment of same quality, but since October 2021, the OP have been dodging the matter with one or the other pretext. Though the legal notice issued by the complainant on 25.01.2022, the OP have not replaced the said equipment with rectification of default nor sent new brand equipment to the complainant. Hence, this complaint.
3. After service of notice by this Commission, the OP has not appeared before this Commission and even giving several opportunities, the OP has remained absent.
4. The complainant has filed his affidavit evidence with 08 documents which were marked as Ex.C1 to C8.
5. We have heard the arguments of the complainant and the points that would arise for determination are as under:-
- Whether the complainant proves deficiency in service on the part of OP?
- Is complainant is entitled to the relief sought for?
- Our findings on the aforesaid points are as under:
Point No.1: In the Affirmative
Point No.2: As per final order for the below
:R E A S O N S:
7. The counsel for the complainant submitted that in response to the place of order by complainant, the OP has sent the one Earth Augar 71 CC Power Engine, which costs about Rs.14,500/- along with other equipment vide invoice No.3341 dated:31.08.2021. To prove the same the complainant has produced the Ex.P3 and Ex.P4, which are reflecting the invoice number, date equipments, MRP, Tax, amount etc. Ex.P3 & P4 were also having signature of authorised person of the OP.
8. Further, counsel for the complainant has argued that the equipment send by the OP which was Earth Augar 71 CC Power Engine was not working properly when it was started to use by the complainant and immediately complainant informed about the workmanship of the said equipment. The complainant had returned the said equipment to the OP on 08.10.2021 as per direction of the OP and produced the Ex.P2. Ex.P2/consignor’s copy of VRL LOGISTICS reveals that the complainant has sent above said equipment to the OP, because, Ex.P2 includes description as CB AGRICULTURAL EQUIPMENT ENGINE STOCK TRANSFER and its D.Value Rs.14,000/-, DEST AMMEDABAD NARODA 9GJ-ADINO).
9. On perusal of Ex.P3, it is clearly proves that the complainant has purchased the CA EARTH AUGER 71 CC PW ENGIN for Rs.14,500/- and Ex.P3 also reflecting the terms and conditions as follows:
1. Goods once sold will not be taken back.
2. 1 year warranty of machine 1 year replacement warranty of motor,
3. Jurisdiction Ahmedabad,
4. This is only machine cost Transportation charge will be extra,
5. Payment should be advance against Quotation 100%.
10. It is clear that the OP has given warranty for replacement of motor for one year as per 2nd point of terms & conditions. Ex.P3 shows that the complainant has purchased the above equipment on 31.08.2021 and returned the equipment which was not working properly on 08.10.2021. The complainant has returned the equipment within two months which is in the warranty period. Hence, the OP is liable to replace the equipment with good condition or refund Rs.14,500/- with interest @ 8% PA from the date of filing of complaint i.e. 09.03.2022 till realization to the complainant. Though the complainant has issued Ex.P6/Legal notice dated:25.01.2022 to the OP, the OP has not returned the Earth Augar 71 CC Power Engine by rectifying the defects in it, nor send the new equipment of same brand. This negligent act of OP amounts to deficiency in service.
11. The complainant has prayed for Rs.5,00,000/- for damages. But he has not produced any document to show that he has suffered damages up-to Rs.5,00,000/-. In the same time, the complainant has submitted that he had sustained huge loss in his work without the above said equipment. Considering the mental agony and other damages, the complainant is entitled for the compensation of Rs.5,000/-. Further, the OP has compelled the complainant to approach this Commission. Hence, the OP is liable to pay Rs.5,000/- as litigation cost to the complainant. Accordingly, we proceed to pass the following:-
:O R D E R:
The complaint filed by the complainant is allowed in part with costs.
The OP is directed to replace the new Equipment Earth Augar 71 CC Power Engine to the complainant or to refund Rs.14,500/- with interest @ 8% PA from the date of filing of complaint i.e. 09.03.2022 to till realization.
It is further ordered that the OP shall pay compensation of Rs.5,000/- and litigation cost of Rs.5,000/- to the complainant.
Further, the OP is directed to comply the above order within 45 days from the date of receipt/knowledge of this order, otherwise, it carries the fine of Rs.50/- per day till realization.
Furnish free copy of this order to both parties at free of cost immediately.
