BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT

SRI.  P.V. JAYARAJAN                              : PRESIDENT

SMT. PREETHA G. NAIR                           : MEMBER

SRI. VIJU  V.R.                                             : MEMBER

C.C.No. 234/2021  Filed on 09/08/2021

ORDER DATED: 03/03/2022

ORDER

SRI.P.V. JAYARAJAN, PRESIDENT: 

This is a complaint filed under section 35 of Consumer Protection Act 2019 and the matter stood over to this date for consideration.After hearing the matter the commission passed an order as follows:

1. The complainant is a physics teacher by profession.  The 1^st opposite party is the Managing Director of Omvir Print O Pack and 2^nd opposite party is the sales manager of the 1^st opposite party.  The opposite parties are the manufactures of ‘Big paper cutting machines’, ‘Glue Binding machines’, ‘Paper collator, (Paper sorting) machines etc.  Lured by an advertisement through online published by the opposite parties, the complainant decided to purchase a Glue binding machine, as it was found to his requirements and demands.  The complainant contacted the 1^st and 2^nd opposite parties on 08/06/2019 to get further details regarding the glue binding machine.  The opposite parties agreed to supply Glue binding machine to the complainant for an amount of Rs.64,900/-.  Then paid an advance amount of Rs.25,000/- to the 1^st opposite party through bank account on 19/12/2020.  But the delivery got delayed.  After a series of deliberations opposite party informed that the delivery of the Glue binding may get further delayed but they are having as ready stock of ‘brand new Paper Collator’ machine.  Further to the discussion the opposite parties provided all the features of the said product.  As it was also very much required by the complainant the purchase of the same was agreed upon.  Accordingly, the opposite parties quoted Rs.2,87,920/- for the ‘Brand new Paper collator’ machine including taxes.  After negotiations the opposite parties finally arrived at a deliverable quote totaling Rs.2,52,525/-.  The complainant agreed to pay the said amount.  Accordingly, the total amount of Rs.2,52,525/- was paid to the opposite parties into their respective accounts, as per the intimation furnished by the 2^nd opposite party.  The opposite party informed the complainant that they have received the whole amount and that the paper collator machine shall be dispatched by first week of March 2021.  It was also informed that the e-way bill be for Glue binding machine but actually the machine being transported in Paper Collator machine itself and that there is nothing to worry regarding the quality and standards of the Paper Collator.  Thereafter the opposite party dispatched the paper collator machine labeled as Glue Binding machine which was received by the complainant through TCI EXPRESS on 28/02/2021 by paying Rs.3601/-.  After the first sight of the package itself, complainant found rust on the loose end of the package and contacted the 2^nd opposite party before opening the package for confirmation.  The complainant got it examined by an expert, whereupon it was found that the dispatched paper collator machine was totally rusted, quite old, thoroughly used and presently not in working condition.  The complainant contacted the 2^nd opposite party and 2^nd opposite party confessed that a mistake has occurred in dispatching the brand new machine by their demo machine.  The 2^nd opposite party informed the complainant to send back the defective paper collator machine and to facilitate the same promised to send the return e-way bill for the rejected machine.  The complainant sent the defective old product on 08/03/2021 through TCI EXPRESS to the opposite party by paying Rs.3,155/-.  The above action on the part of the opposite parties amounts to gross deficiency in service and unfair trade practice under the Consumer Protection Act 2019.  As per the opposite parties promise the new machine should have reached the complainant by end of April 2021.  The 1^st opposite party on 19/06/2021 convinced the complainant to the extent of asserting that “the machine is on the way”.  But the opposite parties totally failed in keeping up their promise.  Again showing gross deficiency in service and unfair trade practice by not delivering the Paper Collator machine and hence the complainant approached this Commission.
2. After admitting the complaint, notice was issued to the opposite parties.  The opposite parties 1 & 2 refused to accept the notice issued by this Commission.  The postal authorities have returned the notice to this Commission with an endorsement “refused”.  The process of notice is completed.  On 05/11/2021 the name of the opposite parties 1 & 2 were called and as they were absent, the opposite party 1 & 2 were declared ex parte by this Commission.
3. The evidence in this case consists of PW1, Ext.A1 to A8 on the side of the complainant.  As the 1^st & 2^nd opposite parties were declared ex parte, there is no oral or documentary evidence on the side of the opposite parties.
4. Issues to be considered:

1. Whether there is any deficiency in service and unfair trade practice on the

     part of the Opposite Parties?

2. Whether the complainant is entitle to the relief claimed in the complaint?
3. Order as to cost?

5. Heard.  Perused records, affidavit and documents. To establish the case of the complainant, the complainant sworn an affidavit as PW1 and Exts.A1 to A8 were marked on the side of the complainant.  Ext.A1 is the copy of the proforma invoice dated 08/02/2021.  Ext.A2 series are the copy of the payment details.  Ext.A3 is the copy of the money receipt dated 27/02/2021.  Ext.A4 is the copy of the photographs.  Ext.A5 is the copy of the receipt dated 01/02/2019.  Ext.A6 is the copy of the delivery challan dated 06/03/2021.  Ext.A7 is the copy of the E-way bill system dated 06/03/2021.  Ext.A8 is the copy of the Whatsapp chat communication dated 19/06/2021.  There is no contra evidence from the side of the opposite parties 1 & 2 to disprove the case put forward by the complainant against the opposite parties.  Hence the evidence adduced by the complainant is unshaken in the absence of any contra evidence from the side of the opposite parties.  In view of the above discussion we find that by swearing an affidavit as PW1 and marking the documents as Ext.A1 to A8, the complainant has succeeded in establishing his case against the opposite parties.  From the evidence available before this Commission we find that there is deficiency in service and unfair trade practice on the part of the opposite parties 1 & 2 by which the complainant has suffered financial loss and mental agony.  As there is deficiency in service and unfair trade practice on the part of the opposite parties 1 &2, they are jointly and severely liable to compensate the loss suffered by the complainant.
6. In the result the complaint is partly allowed.  The 1^st & 2^nd opposite parties are jointly and severally liable to refund an amount of Rs.2,52,525/- (Rupees Two lakh Fifty Two Thousand Five Hundred and Twenty Five Only) along with Rs.25,000/- (Rupees Twenty Five Thousand Only) as compensation and Rs. 2500/- towards cost of this proceedings to the complainant within 30 days from the date of receipt of this order, failing which the amount except cost shall carry an interest @ 9% p.a from the date of order till the date of realization/remittance. 

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Court, this the 3^rd   day of March,  2022.

R

C.C. No. 234/2021

APPENDIX

1. COMPLAINANT’S WITNESS:

2. COMPLAINANT’S DOCUMENTS:

3. OPPOSITE PARTY’S WITNESS:

4. OPPOSITE PARTY’S DOCUMENTS:              NIL

                                                                                                                                    Sd/-

                                                                                                                            PRESIDENT