State Consumer Disputes Redressal Commission
C. Ramesh vs M/S. Vijayalakshmi Enterprises on 12 September, 2011
BEFORE THE A BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD. FA 191 of 2008 against C.C. 70/2006, Dist. Forum, Ananthapur Between: C. Ramesh, S/o. Ramachandraiah Age: 41 years, Business D.No. 1/305, Vasavi Temple Street Bukkapatnam (V&M) Ananthapur Dist. *** Appellant/ Complainant. And 1. M/s. Vijayalakshmi Enterprises Rep. by its Proprietor # 3-118-3, Bheemareddy Nagar Colony Boddupal, Ranga Reddy Dist. 2. M/s. Kirloskar Oil Engines Ltd. Rep. by its Area Manager 216 to 228, Unite Building Complex 2nd Floor, B-Block, S.D. Road Secunderabad-3 *** Respondents/ O.Ps. Counsel for the Appellant: M/s. K. Maheswara Rao Counsel for the Respondent: M/s. A. Muralidhar Reddy CORAM: HONBLE SRI JUSTICE D. APPA RAO, PRESIDENT SRI R. L. NARASIMHA RAO, MEMBER & SRI T. ASHOK KUMAR, MEMBER MONDAY, THIS THE TWELTH DAY OF SEPTEMBER TWO THOUSAND ELVEN ORAL ORDER:
(Per Honble Sri Justice D. Appa Rao, President) ***
1) Appellant is unsuccessful complainant.
2) The case of the complainant in brief is that during January, 2006 he placed an order with R1 for supply of Kirloskar diesel generator of 15 KVA at Rs. 1,50,000/- including taxes on condition of door delivery.
Accordingly he paid the amount. However, R1 sent 10 KVA generator. After deliberations he agreed to replace the 10 KVA generator with 15 KVA generator. When he returned 10 KVA generator on 10.3.2006 R1 supplied the same generator erasing the mark 10 KVA and imprinted 15 KVA.
On that again he demanded to replace the generator with 15 KVA. Alleging that it amounts to deficiency in service filed the complaint for a direction to R1 to replace the defective 10 KVA genitor with 15 KVA generator manufactured by R2.
3) R1 resisted the case, however, it admitted placement of order for supply of 15 KVA generator at Rs. 1,50,000/-, and that he supplied 10 KVA generator initially. However it denied after returning 10 KVA generator he supplied the very same generator by erasing the imprint. Equally the allegation that he supplied a second hand generator, and that it was defective. 15 KVA generator was despatched through Navatha transport on 7.3.2006 which the complainant received it on 10.3.2006, and was installed to his satisfaction The complainant acknowledged the same through his letter dt. 12.3.2006 after satisfying with it. The complainant did not return the cheque for Rs. 1,50,000/- taken as security during February, 2005. When the said cheque was sent later, on its presentation the same was dishonoured on 5.9.2005. Basing on which he issued notice u/s 138 of N.I. Act. His letter dt. 8.2.2005 clearly shows that the cheque was kept as security, and after receiving the generator cheque was sent. Requirement of the complainant was 13,500 watts. There is no cause of action for the complainant to file the complaint. He approached the Dist. Forum with unclean hands. Therefore it prayed for dismissal of the complaint with costs
4) R2 did not choose to contest the matter, and therefore it was set-exparte.
5) The complainant in proof of of his case filed his affidavit evidence and got Exs. A1 to A4 marked while R1 filed his affidavit evidence and got Exs. B1 & B2 marked.
6) The Dist. Forum after considering the evidence placed on record opined that the very complainant by his letter Ex. B1 informed R1 that 15 KVA generator was installed to his satisfaction. It cannot be said that second hand generator was supplied, and therefore dismissed the complaint.
7) Aggrieved by the said decision, the complainant preferred the appeal contending that the Dist. Forum did not appreciate the facts or law in correct perspective. It ought to have seen that the very conduct of R1 in supplying 10 KVA generator instead of 15 KVA in the first instance itself would show its malafide intention. Ex. B2 discloses that it was not possible to convert 10 KVA to 15 KVA. Ex. A4 is the warranty card issued by R1. It was not considered. Therefore he prayed that complaint be allowed.
8) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?
9) It is an admitted fact that when the complainant has ordered for supply of 15 KVA generator R1 supplied 10 KVA generator. On that he protested under letter Ex. A2. Ex.
A4 is the warranty card supplied by R1 to complainant. R1 himself gave Ex. A3 reply mentioning that when he found on the generator there was a mention it was 10 KVA he took return of it re-winded in order to see that it gives 12,520 watts and sent to him. There were some other disputes between them. It looks as though R1 had with them 20 gms of gold ornaments belonging to the complainant which he promised to return on 15.5.2005.
It seems that a cheque for Rs.
1,50,000/- that was given was kept with the complainant as collateral security for supply of generator. In fact the complainant himself gave Ex. B1 letter dt. 12.3.2005 that generator that was received was installed to his satisfaction. It was 15 KVA generator. Thanking you Sir. R1 filed a letter from DPK Engineers Pvt.
Ltd., for the reasons not known mentioning that it is difficult to convert from 10 KVA to 15 KVA. Whatever be the technical difficulty the fact remains that the complainant himself gave Ex. B1 stating that 15 KVA generator has been installed satisfactorily. Admittedly, having received and used it, filed the complaint without mentioning, that the cheque that was issued by him for Rs. 1,50,000/- was bounced, and that R1 filed a criminal case u/s 138 of N.I. Act. He did not allege anything about the gold ornaments that said to have been with R1. In the light of Ex. B1 admitting installation of 15 KVA generator to his satisfaction the Dist. Forum was right in holding that the complainant filed the complaint without any cause of action. We are also of the opinion that to get over the criminal proceeding initiated by R1 under N.I. Act etc., the complainant filed the complaint. The complainant did not choose to examine any mechanic to show that the generator that was supplied was not in tune with the invoice Ex. A1. We do not see any mis-appreciation of fact or law by the Dist. Forum in this regard. We do not see any merits in the appeal.
10) In the result the appeal is dismissed. No costs.
1) _______________________________ PRESIDENT
2) ________________________________ MEMBER
3) ________________________________ MEMBER 12/09/2011 *pnr UPLOAD O.K.