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Sameera @ ParutheekuzhiyilSameera, Proprietor v/s Reghu, Proprietor, Metro Paper Products, Athanikkal, Malappuram now Proprietor, Malappuram

    Appeal No. 40 of 2016

    Decided On, 04 February 2020

    At, Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram

    By, MEMBER

    For the Appellant: M.M. Baby, Advocate. For the Respondent: -------

Judgment Text

A. Beena Kumari, Member

The appellant is the complainant in C.C. No. 187/2011 on the file of Consumer Disputes Redressal Forum, Malappuram and the respondent is the opposite party.

2. Facts of the case are as follows: The complainant, as a part of self-employment, wanted to purchase a semi-Automatic Paper Cup making Machine and the opposite party offered the lowest quotation of Rs.4,23,442/-(J.B.Z 12 Model Semi-Automatic Paper Cup Making Machine, 32 cup/minute with all standard accessories) and the said Machine was installed by opposite party, in the complainant's institution. The S.B.I. Bank, Koodaranji has issued the D.D. in favour of the opposite party for Rs.4,23,442/- towards the price of the Machine who accepted the same. It is stated that, subsequently, the complainant came to know that the machine supplied by the opposite party is a fully automatic one and it is defective also which was a second hand paper Cup Making Machine. It is not functioning and has become completely useless. Hence the complaint.

3. The opposite party is resisting the complaint, mainly on the ground that the price of machine that he had accepted by way of D.D. from State Bank of India, has been given back to the complainant's husband on his demand. So no sale as per the Section 54 of Transfer properly Act has taken place. The complainant's husband has issued one cheque for Rs.4,40,000/- to the opposite party as the price of the machinery, and it was dishonoured resulting a criminal case under Section 138 of Negotiable Instruments Act in the Judicial First Class Magistrate Court, Malappuram, against the complainant. It is further averred that fully knowing well the technology of the paper cup making machine, the complainant and her husband purchased the second hand machine from the opposite party and so no deficiency on the side of opposite party.

4. On the basis of the entire evidence and pleadings of the complainant the finding of the District Forum is that the purchasing of the fully automatic paper cup making machine for Rs. 4,23,442/- is admitted by the opposite party and the Demand Draft issued by the State Bank of India for the said amount is also accepted the opposite party. Ext. A3 is the lowest quotation offered by the opposite party for the said amount and Ext. A5 is the receipt of the said amount dated 04.01.2011. From Ext. A3 it is understood that the opposite party had offered J.B.Z 12 Model Semi-Automatic paper cup machine. Ext. C1 commission report reveals that the machine is kept idle and not working. The opposite party failed to prove that he has paid the D.D. amount to the complainant. On the basis of the above mentioned discussions the District Forum found that there was deficiency in service and unfair trade practice from the side of opposite party.

5. The opposite party produced Exts. B1 to B4 documents before the Forum to show that a case is pending against the husband of the complainant before the Judicial First Class Magistrate Court, Malappuram. The date of filing of the complaint in the District Forum was on 25.07.2011. The date of filing of the case against the complainant’s husband was on 05.06.2012. So it is clear that the opposite party has filed the said private complaint after the filing of the complaint before the Forum. The District Forum has not gone through the merits of that case.

6. On the basis of the entire record on file the District Forum directed the opposite party to refund half of the price of the machine i.e; Rs. 2,00,000/- to the complainant and also ordered that the opposite party has liberty to take back the machine at their cost and the complainant shall provide all facilities to the opposite party for the same. Aggrieved by the impugned order complainant has filed this appeal.

7. The appellant argued that the District Forum failed to grant all the reliefs claimed for in the complaint. Though there was ample and sufficient evidence supporting all the grievances of the complainant, but the District Forum allowed to realize only half of the price of the machine. The opposite party in his deposition has admitted that he had supplied fully automatic second hand machine to the complainant. The opposite party also admitted that he had received the price of the machine by way of D.D.

8. Further the appellant argued that the commissioner in his report (Ext. C1) reported that the machine was not functioning and noted that it is a second hand machine. Hence the appellant submitted that this Commission be modify the order and allow him to realize the full price of the machine along with compensation of Rs. 10,50,000/- for the business loss happened to him and also direct to pay costs to him.

9. We carefully verified the entire records on file. The District Forum found that there was deficiency in service from the side of respondent/opposite party and directed to pay only half of the price of the machine. We find that the appellant had got the machine in 2010 November. The respondent/opposite party received the D.D of Rs. 4,23,442/- on 04.01.2011. The date of complaint was on 25.07.2011. The appellant had used the machine only for a few months, within that period the machine became defective. The opposite party admitted these facts. The contention of the respondent/opposite party is that the D.D amount received by them was demanded by the appellant and the respondent had given that amount to the complainant. But the opposite party has not adduced any evidence to prove that contention. The complainant and opposite party have filed cases against each other before the Magistrate Court. We have not gone through that aspect. In this case there is clear deficiency in service and unfair

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trade practice from the side of opposite party. Hence we decide to modify the order that the opposite party/respondent shall pay Rs. 4,00,000/- the price of the machine to the appellant/complainant and the respondent/opposite party has the right to take back the machine from the custody of the appellant/complainant. In the result, appeal is partly allowed and the Order in C.C. No. 187/2011 is modified. The respondent/opposite party shall pay Rs. 4,00,000/- the price of the machine to the appellant/complainant within one month from the date of order otherwise 9% annual interest shall be added to the amount. No order on costs.