Shikhar Marketing Company and Others Vs. Gopal Das - Court Judgment

SooperKanoon Citationsooperkanoon.com/1110076
CourtUttar Pradesh State Consumer Disputes Redressal Commission SCDRC Lucknow
Decided OnAug-31-2010
Case NumberAppeal No. 1064 of 2005
JudgeBHANWAR SINGH, PRESIDENT, THE HONOURABLE MR. SYED ALI AZHAR RIZVI, MEMBER & THE HONOURABLE MR. RAMPAL SINGH, MEMBER
AppellantShikhar Marketing Company and Others
RespondentGopal Das
Excerpt:
consumer protection act, 1986 - sections 2(1)(g), 15 - comparative citations: 2011 (2) cpj 164, 2012 (1) cpr 136 (up)bhanwar singh, president: oral: 1. heard mr. sanjeev bahadur srivastava, learned counsel for the appellants and mr. o.p. duvel, learned counsel for the respondent and perused the record. 2. challenge has been made to the impugned judgment of february 8, 2005 passed by the forum below in complaint case no. 411/1998 whereby the complaint of the respondent was allowed with a direction to the appellants to refund the amount of rs. 15,000 along with interest @ 09% p.a. rs. 2,000 as compensation for mental agony and rs. 1,000 as litigation charges were also directed to be paid. as per the default clause interest @ 12% p.a. was payable if the payment of the aforesaid sums was not made within one month. 3. it was pleaded by the complainant that he had paid rs. 15,000 as price of detergent cake machine along with mixer and motor. the appellant had supplied the main machine without accessories i.e. mixer, motor and dye set and also committed deficiency in service by not deputing an engineer to impart training. in the absence of the accessories and requisite training the complainant could not utilize the machine, although he had purchased it with a view to earn his livelihood. the complaint was filed for recovery of the aforesaid amount and as mentioned above the complaint was allowed. 4. all the appellants contested the complaint and filed their written statement levelling allegations against the complainant himself to the effect that he had not shown requisite interest in taking the training although sri ishtiaq mistri was sent to educate the complainant about the functioning of the machine. also he had not got requisite load of power sanctioned. 5. the district consumer forum recorded a finding of deficiency in service as also breach of agreement insofar as supply of accessories was concerned and on the basis of its finding allowed the complaint. 6. feeling aggrieved of this judgment the appellants came up with appeal reiterating their argument that the complainant himself had not taken interest in either taking the training or getting the requisite load of power sanctioned. 7. the complainant had written the first letter to the branch manager of the shikhar marketing company on 5.6.1997 and complained against the breach of agreed supply of accessories and also asked for a mechanic to be deputed who could instal the machine so as to make it functional. the appellants had also relied upon the two letters dated 15.4.1998 and 18.4.1998. a perusal of these letters would reveal that the complainant himself was held responsible for default on his part in not coming forward to take training. it is significant to note that the detergent cake machine had been supplied to the complainant in april 1997 but it remained non-functional as it could not be installed upto april 1998. the prospectus of the shikhar udyog soochna kendra one of the three appellants had advertised its scheme of sale of detergent cake machine and its perusal would show that along with the machine d-l as supplied to the complainant three accessories namely cutting machine, packing machine and die-set were also to be supplied and it was on the basis of this commitment that the complainant had written his letter on 5.6.1997 thereby conveying to the appellants that neither the accessories had reached yet to his place nor any mechanic had come to instal the machine. there was no immediate response to this letter from the side of the appellants and the first communication which had been dispatched on their behalf is dated 15.4.1998. it is, therefore, apparently clear that nearly for one year the appellants did not bother to provide accessories or depute an engineer to instal the machine. as per the scheme advertised through prospectus referred to above shikhar industry was under an obligation to depute an engineer for installation of the machine. the appellants have not even stated that any engineer was sent by them to the working place of the complainant at bhadohi. the fact remains that the machine was never utilized nor the complainant could ever learn with the expected cooperation and obligation of the appellants to operate the machine. the very purpose for which it was purchased stood frustrated. in these circumstances the complainants claim for refund of the money paid to the appellants seems to be perfectly justifiable. we are therefore, of the view that the district consumer forum has rightly directed the appellants to refund the money of the complainant along with interest which we find to be sustainable. 8. even otherwise the appeal being time barred was not maintainable. the impugned judgment was pronounced on 8.2.2005 while this appeal was presented on 30.6.2005. there was an inordinate delay of more than 3½ months. learned counsel for the appellants with reference to the affidavit of sri kausar suhail proprietor of the shikhar marketing company had argued that the notice regarding the impugned judgment had been received by the appellants on 31.5.2005 when they learnet about the execution proceedings having been initiated by the complainant. we do not find the explanation offered for the delay to be as sustainable. for the reasons disclosed above we are of the decisive view that this appeal is liable to be dismissed as time-barred as also on merit. 9. in the result this appeal tails and it is hereby dismissed with costs which we quantify at rs. 5,000. the money deposited by the appellants shall be paid to the complainant as per accounts to be determined. the district consumer forum dealing with the execution petition of the complainant shall ensure that the machine supplied to the complainant is handed over to the appellants at the time of the payment being made.
Judgment:

Bhanwar Singh, President:

Oral:

1. Heard Mr. Sanjeev Bahadur Srivastava, learned Counsel for the appellants and Mr. O.P. Duvel, learned Counsel for the respondent and perused the record.

2. Challenge has been made to the impugned judgment of February 8, 2005 passed by the Forum below in complaint case No. 411/1998 whereby the complaint of the respondent was allowed with a direction to the appellants to refund the amount of Rs. 15,000 along with interest @ 09% p.a. Rs. 2,000 as compensation for mental agony and Rs. 1,000 as litigation charges were also directed to be paid. As per the default clause interest @ 12% p.a. was payable if the payment of the aforesaid sums was not made within one month.

3. It was pleaded by the complainant that he had paid Rs. 15,000 as price of detergent cake machine along with mixer and motor. The appellant had supplied the main machine without accessories i.e. mixer, motor and dye set and also committed deficiency in service by not deputing an engineer to impart training. In the absence of the accessories and requisite training the complainant could not utilize the machine, although he had purchased it with a view to earn his livelihood. The complaint was filed for recovery of the aforesaid amount and as mentioned above the complaint was allowed.

4. All the appellants contested the complaint and filed their written statement levelling allegations against the complainant himself to the effect that he had not shown requisite interest in taking the training although Sri Ishtiaq Mistri was sent to educate the complainant about the functioning of the machine. Also he had not got requisite load of power sanctioned.

5. The District Consumer Forum recorded a finding of deficiency in service as also breach of agreement insofar as supply of accessories was concerned and on the basis of its finding allowed the complaint.

6. Feeling aggrieved of this judgment the appellants came up with appeal reiterating their argument that the complainant himself had not taken interest in either taking the training or getting the requisite load of power sanctioned.

7. The complainant had written the first letter to the Branch Manager of the Shikhar Marketing Company on 5.6.1997 and complained against the breach of agreed supply of accessories and also asked for a mechanic to be deputed who could instal the machine so as to make it functional. The appellants had also relied upon the two letters dated 15.4.1998 and 18.4.1998. A perusal of these letters would reveal that the complainant himself was held responsible for default on his part in not coming forward to take training. It is significant to note that the detergent cake machine had been supplied to the complainant in April 1997 but it remained non-functional as it could not be installed upto April 1998. The prospectus of the Shikhar Udyog Soochna Kendra one of the three appellants had advertised its scheme of sale of detergent cake machine and its perusal would show that along with the machine D-l as supplied to the complainant three accessories namely cutting machine, packing machine and die-set were also to be supplied and it was on the basis of this commitment that the complainant had written his letter on 5.6.1997 thereby conveying to the appellants that neither the accessories had reached yet to his place nor any mechanic had come to instal the machine. There was no immediate response to this letter from the side of the appellants and the first communication which had been dispatched on their behalf is dated 15.4.1998. It is, therefore, apparently clear that nearly for one year the appellants did not bother to provide accessories or depute an engineer to instal the machine. As per the scheme advertised through prospectus referred to above Shikhar industry was under an obligation to depute an engineer for installation of the machine. The appellants have not even stated that any engineer was sent by them to the working place of the complainant at Bhadohi. The fact remains that the machine was never utilized nor the complainant could ever learn with the expected cooperation and obligation of the appellants to operate the machine. The very purpose for which it was purchased stood frustrated. In these circumstances the complainants claim for refund of the money paid to the appellants seems to be perfectly justifiable. We are therefore, of the view that the District Consumer Forum has rightly directed the appellants to refund the money of the complainant along with interest which we find to be sustainable.

8. Even otherwise the appeal being time barred was not maintainable. The impugned judgment was pronounced on 8.2.2005 while this appeal was presented on 30.6.2005. There was an inordinate delay of more than 3½ months. Learned Counsel for the appellants with reference to the affidavit of Sri Kausar Suhail proprietor of the Shikhar Marketing Company had argued that the notice regarding the impugned judgment had been received by the appellants on 31.5.2005 when they learnet about the execution proceedings having been initiated by the complainant. We do not find the explanation offered for the delay to be as sustainable. For the reasons disclosed above we are of the decisive view that this appeal is liable to be dismissed as time-barred as also on merit.

9. In the result this appeal tails and it is hereby dismissed with costs which we quantify at Rs. 5,000. The money deposited by the appellants shall be paid to the complainant as per accounts to be determined. The District Consumer Forum dealing with the execution petition of the complainant shall ensure that the machine supplied to the complainant is handed over to the appellants at the time of the payment being made.