State Consumer Disputes Redressal Commission
The Chief Executive Officer Zilla ... vs M/S Laxmi Enterprises on 30 November, 2009
Date of filing :15.03.2003 Date of order :30.11.2009 MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL COMMISSION,MUMBAI, CIRCUIT BENCH AT AURANGABAD . FIRST APPEAL NO. :431 OF 2003 IN COMPLAINT CASE NO.:08 OF 1998 DISTRICT CONSUMER FORUM :OSMANABAD. The Chief Executive Officer, Zilla Parishad, Osmanabad, Dist.Osmanabad. APPELLANT (Org.Complainant) VERSUS 1. M/s Laxmi Enterprises, Jewali, Tq.Omerga, Dist.Osmanabad. 2. Sales Manager, Waterman Industries Ltd., Miro Co.op.Industrial Estate, Near Dahisar Check Naka, Mumbai 401 104. RESPONDENT (Org.Opponents) CORAM : Shri.S.G.Deshmukh, Hon`ble Presiding Judicial Member.
Mrs.Uma S.Bora, Hon`ble Member.
Present : Adv.Shri.R.V.Naiknaware for appellant, Adv.Shri.G.N.Chincholkar for respondent No.1, None for respondent No.2.
O R A L O R D E R Per Shri.S.G.Deshmukh Hon`ble Presiding Judicial Member.
1. The present appeal is filed by The Chief Executive Officer, Z.P., Osmanabad against the judgment and order dated 05.02.2003 in complaint case No. 8/98 passed by District Consumer Forum, Osmanabad.
2. Appellant/Org.Complainant`s case before the Forum is that, Zilla Parishad, Osmanabad is corporate body constituted under law. Complainant is Chief Executive Officer of Zilla Parishad Osmanabad. Respondent No.1 is authorised dealer of respondent No.2 and is dealing in the business of selling submersible pump set manufactured by respondent No.2. It is contended that complainant is doing work for welfare of the public and constructed the schemes as per direction of Government for public interest.
Complainant was in need of submersible pump sets for erecting on borewells to supply the drinking water to the public. Respondent No.1 executed the agreement in favour of complainant to supply the submersible pump sets within a period of September 1997 as per agreed price. It is contended that complainant issued several orders to respondent No.1 for supply of submersible pump sets.
Accordingly respondent No.1 supplied 94 submersible pump sets to the complainant. It is contended that complainant learnt that pump sets supplied by respondent No.1 are not working satisfactorily and are not of similar in appearance which are manufactured by respondent No.2. Complainant felt it necessary to confirm originality of submersible pump sets. Thus the complainant issued letter to Waterman Industries, Mumbai for checking submersible pump sets and requested for sending expert person for checking submersible pump sets supplied by respondent No.1. It is contended that as per request of the complainant respondent No.2 checked 3 submersible pump sets and after checking and scrutiny of pump sets, expert person opined that one pump set is manufactured by their unit and other two pump sets are not manufactured by respondent No.2. It is contended that out of supplied pump sets by respondent No.2 there are six pump sets which are having double serial numbers.
This fact was informed to respondent No.2 and respondent No.2 has not taken any cognizance about the supply of repeated serial numbered pump sets. It is contended that respondent No.1 has not supplied the submersible pump sets as per agreement and supplied duplicate submersible pump sets which are of less value. It is contended that complainant asked respondent to check all the pump sets for originality but respondent did not take cognizance and thus complainant approached Dist.Forum for directing them to check and scrutinise the submersible pump sets for its originality and to hand over original submersible pump sets in place of duplicate submersible pump sets complainant also claimed compensation of Rs.50,000/- and cost of Rs.1,000/-.
3. Respondent No.1 appeared before the Forum and resisted the claim. It is contended that 94 pump sets purchased from respondent No.2 had been submitted for verification, inspection, certification and for acceptance as per term/condition No.5 of the agreement to the effect that supplied pump sets are as per order of supply and make of respondent No.2. The said pump sets are accepted as correct from time to time whenever supplied by the concerned engineers of the complainant.
It is contended that there was no complaint before 13.9.97 on which date respondent No.1 received letter dated 4.9.97. It is contended that respondent replied the said letter on 20.9.97. Respondent denied the contention that pump sets are not working satisfactorily and are not similar in appearance. It is contended that working pump sets are taken out from underground after the installation and use of 3 months and that too behind back of the respondent without any panchanama in this connection. Act of complainant is malafide and unjustified. It is contended that in the agreement a stage is fixed for verification of the pump sets supplied as per term/condition No.5. Respondent had complied all conditions. It is contended that there is no provision provided in the agreement for verification of the pump sets supplied after they are installed. It is contended that there is no deficiency on the part of respondent.
4. Respondent No.2 appeared before the Forum and resisted the claim. It is contended that he had withdrawn dealership from respondent No.1 as respondent No.1 is to pay Rs.1,52,050/-. He had no concern with the business of purchase from respondent No.1.
5. The Forum below after going through the papers and hearing the parties allowed complaint by its order dated 19.5.1999. Complainant as well as respondents had preferred appeal bearing No.1453/01, 1172/99, 1128/99. State Commission, Mumbai allowed appeals and quashed and set aside the order dated 19.5.1999 and remanded the matter to the District Forum for consideration afresh on merit and according to statute and rules.
6. After remand the Forum on hearing parties dismissed the complaint and directed complainant to pay Rs.1,00,000/- to respondent No.1 with interest @ 12% from 31.5.1998.
Forum also directed complainant to pay interest @ 12% p.a. on Rs.9,20,000/- from 31.5.1997 to 09.08.2000. Forum further directed complainant to refund amount of Rs.50,000/- (Security amount) to respondent No.1. Forum further directed the complainant to pay Rs.5000/- towards compensatory cost.
7. Being aggrieved by the said judgment and order passed by the District Forum, Osmanabad, original complainant came in appeal.
8. Notices were issued to the appellant as well as respondents. Learned counsel Shri.Naiknaware appeared on behalf of complainant and learned counsel Shri.G.N.Chincholkar & learned counsel Shri.Warad appeared on behalf of respondent No.1.
None appeared on behalf of respondent No.2. We heard both sides. Learned counsel Shri.Warad for the appellant submitted that there was resolution of Standing Committee of Z.P. on 1.7.99 in which it was resolved to file appeal in respect of interest granted @ 18% from 31st May 1997. Thus according to him CEO is not empowered to file appeal against entire judgment and order. He further submitted that principal amount of Rs.8,20,000/- has been released by Z.P. thus appeal became infructuous.
9. On the other hand, learned counsel Shri.Naiknaware submitted that there was deficiency on the part of Z.P. Forum erred in directing complainant to pay arrears with interest. According to him respondent No.1 has remedy to approach the Civil Court and Consumer Fora has no jurisdiction to give finding in that respect.
10. We perused the papers and gave our anxious thoughts to the arguments advanced by both counsels. The resolution on which respondent No.1 tried to rely is passed on 1.7.1999 in respect of interest @ 18% from 31.5.1997. It is to be noted that said resolution was in respect of earlier judgment passed by Dist.Consumer Forum on 19.5.1999. Judgment against which complainant had come in appeal is dated 5.2.2003, resolution in question has no concern with the judgment dated 5.2.2003.Thus there is no substance in the argument put forth by the respondent.
11. There is no dispute that Z.P. had placed an order for supply of 94 submersible pump sets manufactured by respondent No.2 with respondent No.1. According to complainant pump sets supplied by respondent No.1 are not satisfactorily working and some of the pump sets are not of make of respondent No.2. It is also the contention of respondent that some of the pump sets were having double serial numbers and thus complainant had asked them to check and scrutinise submersible pump sets for its originality. There is no dispute that complainant had entered into the agreement dated 4.1.1997 with respondent No.1 for purchase of pump sets.
As per term and condition No.5 of the agreement pump sets were to be accepted by complainant after inspection and verification by their engineer and thereafter those were to be installed.
As per term and condition No.4 of the agreement respondent No.1 was to give guarantee of one year after installation. He is to remove the fault if occurred, within 10 days from the date of information on his own cost. On perusal of agreement in question there is no clause to take out pump sets from the places where they are installed and to take to see originality. It appears that some of the pump sets were taken out from places where they were installed, behind back of respondent No.1. It also appears that no notice for taking out the pump sets was given to respondent No.1, not only that but it also appears that those pump sets were taken out from places in the absence of respondent No.2 also and thus so called inspection of pump sets by respondent No.2 can not be said to be binding. It has also come on record that pump sets have two parts. Motor and pump, each part is equal in length. Number given to motor part is also given to pump. These parts are to be joined together in the middle to form pump set.
Both parts bearing the same number. It has also come on record that these two parts are supplied to respondent No.1 by respondent No.2 in two separate cartoons. Those were supplied by respondent No.1 to complainant in the same fashion. It is the contention of respondent that the pump bearing particular number can be attached to motor bearing different number which does not result into any fault in the pump set. Pumps have different stages. Pump of different stages can be attached to motors of different number. Witness of complainant has admitted this fact. Forum has considered all these aspects in right perspective and rightly held that there is no deficiency on the part of respondents.
12. Forum directed complainant to pay Rs.1,00,000/- to respondent No.1 with interest @ 12% p.a. from 31.5.1998 and complainant is also directed to pay interest @ 12% p.a. on Rs.9,20,000/- from 31.5.1997 to 09.08.2000. Forum also directed to refund an amount of Rs.50,000/- which has accepted as security amount to respondent No.1. Forum also directed to pay amount of Rs.5000/- towards compensatory cost.
13. It is the contention of complainant that he learnt that the pump sets installed are not working and also said pump sets are not of similar in appearance manufactured by respondent No.2. Forum held that pump sets were taken out without giving notice to respondent No.1 in his absence. He can not be held responsible for fault in the pump set.
From the contention raised by complainant and observations made by Forum it can not be said that complaint filed by complainant was frivolous. Only because pump sets were not taken from place where they are installed in the presence of respondent No.1, he is held not liable for any fault. It is not the request of respondent No.1 to direct complainant to pay amount of Rs.1,00,000/- and interest on amount of Rs.9,20,000/-. Consumer Act is applicable to the consumers only not to the supplier. Forum has no jurisdiction to direct complainant to pay arrears and security amount if any with interest to the supplier. Supplier has remedy to go to Civil Court if complainant is in arrears and is to refund security amount. In our view, Forum exceeded its jurisdiction directing complainant to pay arrears amount, security amount and the interest. We have mentioned that complaint filed by complainant can not be said to be frivolous or false and thus no compensatory cost can be imposed on complainant. We pass the following order.
O R D E R
1. Appeal is partly allowed.
2. Order directing complainant to pay Rs.1,00,000/- with interest @ 12% from 31.5.1998 and directing the complainant to pay interest @ 12% on Rs.9,20,000/- for the period from 31.5.1997 to 09.08.2000 and directing complainant to refund Rs.50,000/- towards security amount and to pay Rs.5000/- towards compensatory cost are hereby quashed and set aside.
3. Rest of the order dismissing complaint is maintained as it is.
4. No order as to cost.
5. Copies of the judgment be issued to both the parties.
Sd/- sd/-
Mrs.Uma S.Bora S.G.Deshmukh Member Presiding Judicial Member.
Mane