AJAY KUMAR SAHAY vs Raj Kumar Singh

THE case of the complainant is that he had taken loan from Bihar State Financial Corporation under the Scheme of Unemployed Graduate for opening a small scale industry for manufacture of small items like plastic curtain ring with a view to earn his livelihood and had started the small scale industry known as M/s. Malti Electric Works. THE said small scale industry had become sick unit and with a view to revive the same, Bihar State Financial Corporation agreed to finance purchase of 25 KVAAC. diesel generating set of Kirloskar make. Accordingly the complainant entered into an agreement with opposite party No. 1 for purchasing 25 KVAAC diesel generating set for a consideration of Rs. 1,37,440/- (including local taxes) vide order dated 30.8.1992. THE entire consideration amount was paid to opposite party No. 1 on 25.1.1993 and the opposite party promised to instal the generating set at the site by 27.1.1993 or the first week of February, 1993, positively alongwith the accessories. In spite of several reminders and personal contacts the generating set was sent by opposite party No. 1 on 24.7.1993 without accessories. As per the invoice dated 25.1.1993, opposite party No. 1 had to supply self, dynamo, battery etc. but he supplied only the generating set as a result of which the same was lying at the site and was not operational. Furthermore the final bill included loading, forwarding and energising cost at the site but he (complainant) was compelled to pay Rs. 3,000/- extra for loading though the entire consideration amount including taxes had already been paid on 25.1.1993. According to the complainant the conduct of the opposite party No. 1 in delaying the supply of the generating set alongwith accessories amounted to deficiency in service and he (complainant) had been put to financial loss. On the allegations aforesaid the complainant had claimed Rs. 4 lakhs as compensation besides the entire consideration amount with an interest at the rate of 18%

BOTH the opposite parties have filed separate written statements but none of them appeared to contest the case at the time of hearing on 15.9.1997 and hence the case was heard ex- parte. Briefly stated the case of opposite party No. 1 is that the complaint filed by the complainant is not maintainable and the claim of the complainant is unjust, illegal and improper. The complainant has got no cause of action for the complaint. Further case of opposite party No. 1 is that Shri Ajay Kumar Sahay the proprietor of the complainant M/s. Malti Electric Works, approached him (opposite party No. 1) and placed order on 30.8.1992 for supply of 25 KVA AC diesel generating set of Kirloskar make. As per agreement order dated 30.8.1992 the delivery of the generating set was to be made within 215 days (within seven months) after full payment of the consideration amount of Rs. 1,37,440.80 paise. The complainant paid Rs. 62,000/- in instalments by way of advance and the balance amount was to be paid through Bihar State Financial Corporation, the financer, which was paid on 25.1.1993. Though the generating set was to be supplied within 215 days from 25.1.1993 the complainant requested for supply of the generating set as soon as possible and opposite party No. 1 undertook to supply the same as soon as possible. The agent of the complainant came in February, 1993, for taking delivery of the generating set but the same could not be delivered or sent to the complainant as road permit had not been granted by the Sales Tax Department. In good faith a letter to this effect was given to the agent of the complainant. As per agreement between the parties me complainant had to come to opposite party No. 1 for inspection of the generating set prior to loading and it was the responsibility of opposite party No. 1 to load and forward the generating set in presence of the complainant or his agent. In the month of March, 1993, when the complainant was informed neither the complainant nor his agent came to take delivery of the generating set nor any information was sent by the complainant. The agent of the complainant came to opposite party No. 1 in the month of July, and asked for delivery of the generating set. Since the generating set was ready for delivery, the agent of the complainant inspected the same and found the same to be fit and in order with complete accessories. Thereafter the generating set was loaded and forwarded with all the accessories to the factory of the complainant on 24.7.1993 i.e. within the stipulated period mentioned in the order of the complainant. There was no laches or delay on the part of the opposite party No. 1. Opposite party No. 1 in his written statement has denied that there was delay in supply of the generating set or that the generating set was sent without accessories. According to opposite party No. 1 there was no deficiency in service on his part rather this complaint case has been filed with a view to have some illegal gain. The allegation regarding forced payment of Rs. 3,000/- by the complainant towards loading charges has been denied and prayer for dismissal of the complaint petition has been made.

The case of opposite party No. 2, Kirloskar Oil Engines Ltd., as it appears from its written statement, is that no cause of action arose against opposite party No. 2 and it has been wrongly impleaded as opposite party No. 2. Opposite party No. 1 is not the authorised dealer of opposite party No. 2 and the statements made in the complaint petition are neither with regard to opposite party No. 2 nor any relief has been sought against opposite party No. 2 and hence the complaint petition is fit to be dismissed with special cost.

CERTAIN facts are not disputed. It is not disputed that the complainant had placed order on 30.8.1992 with opposite party No. 1 for supply of a 25 KVA AC diesel generating set, as detailed in Annexure I to the written statement of opposite party No. 1 and Annexure 1 to the complaint petition. It is also not disputed that the entire consideration amount agreed upon between the complainant and opposite party No. 1 was paid on 25.1.1993. Moreover this fact is also apparent from Annexure 1 to the complaint petition. According to the complainant the delivery of the generating set with all the accessories was to be made at the site by 27.1.1993 or by the first week of February, 1993 but the delivery was made after much delay on 24.7.1993. On the other hand opposite party No. 1 has alleged that the delivery was to be made within 215 days after full payment i.e. within seven months from 25.1.1993 and hence there was no delay in the delivery. Now it has to be seen as to whose version in this regard is acceptable.

ANNEXURE 1 to the written statement of opposite party No. 1 is photocopy of the order dated 30.8.1992 placed by the complainant with opposite party No. 1 for supply of the generating set. In it the delivery time has been shown as 215 days after full payment. The complainant has filed a rejoinder to the written statement of opposite party No. 1. In paras 9 and 12 of the rejoinder it has been alleged that the generator with accessories was to be supplied with 15 days from 25.1.1993 but opposite party No. 1 wrote the figure "2" before the figure "15" in the order dated 30.8.1992 and thereby committed forgery. The complainant in support of this plea has brought on record photocopy of a letter dated 15.2.1993 sent by opposite party No. 1. The said letter is ANNEXURE-4 to the complaint petition. The sending of this letter by opposite party No. I to the complainant has been admitted in para 11of his written statement. The said letter is to the effect that the supply was to be made in the first week of February, but the same could not be made due to non-availability of road permit from District Transport Office. Regret has been expressed for non-delivery and assurance has been given to deliver the generating set the moment road permit becomes available. Though opposite party No. 1 has in his written statement tried to explain away this letter by stating that he addressed this letter in good faith but his explanation does not appear to be convincing. The letter (ANNEXURE 4 of the complaint petition) lends support to the plea of the complainant in his aforesaid rejoinder that the delivery was to be made by the first week of February, 1993. Apart from the said letter the complainant has also brought on record photo-copy of a letter dated 26.1.1993 sent by opposite party No. 1 to the Branch Manager of Bihar State Financial Corporation, Deoghar. The said letter is ANNEXURE-7 to the rejoinder dated 19.12.1994 of the complainant. In this letter dated 26.1.1993 it has been specifically stated that the generating set would be installed at factory site of the complainant in the first week of February, 1993. The more letters sent by opposite party No. 1 or the Branch Manager of Bihar State Financial Corporation have been brought on record by the complainant as ANNEXUREs VII/1 and VII/2 to the aforesaid rejoinder. By the letter dated 5.5.1993 (ANNEXURE-VII/1) opposite party No. 1 informed the Branch Manager that due to absence of road permit the generator could not be sent though the same was ready for despatch but the same would reach the factory site of the complainant in May, 1993 (date not legible) at any cost. By the other letter which appears to be dated 7.7.1993 (ANNEXURE VII/2) the opposite party No. 1 informed the Branch Manager that road permit had been obtained from Sales Tax Department on 7.7.1993 and the generator would reach the factory site of the complainant on 10th or 11th July, 1993. A letter dated 29.5.1993 sent by the Bihar State Financial Corporation to opposite party No. 1 has been brought on record by the complainant as ANNEXURE- VII/3 to the rejoinder. In it it has been stated that opposite party No. 1 has to supply the generating set by the first week of February, 1993, but the same had not reached the factory site even by 15th May, 1993. The letter shows that threat was given to opposite party No. 1 to lodge F.I.R. against him for adopting fraudulent means in case the generator did not reach the factory site within a week. When the aforesaid letters are read as a whole it becomes apparent that the generator was to be delivered by the first week of February, 1993 and not within 215 days from 25.1.1993. So there was delay on the part of opposite party No. 1 in making delivery of the generator. Opposite party No. 1 in his written statement (para 11) has taken plea to the fact that the generator with accessories could not be delivered in February, 1993, or soon thereafter due to non-availability of road permit. In the rejoinder of the complainant the truth of this plea has not been challenged. From ANNEXURE-VII/2 to rejoinder of the complainant it would appear that road permit became available on 7.3.1993. Admittedly the generator was delivered on 24.7.1993. If the above explanation for delay in delivery is accepted then the major portion of delay stands explained. The other allegation of the complainant is that the generator was supplied without accessories (dynamo, battery, etc.) when as per agreement the same was to be supplied with accessories. It is not disputed that the generator was to be supplied with accessories as mentioned in the invoice dated 25.1.1993 (Annexure-1 to the complaint petition). But the case of opposite party No. 1 in his written statement (para 16) is that the generating set with all the accessories was sent to the factory site of the complainant. The statements made in the written statement of opposite party No. 1 have been supported by an affidavit dated 30.8.1995. So there is only oath against oath with regard to the allegation regarding non-supply of accessories. The complainant has brought on record copy of an Advocate''s notice on record as Annexure-5 to the complaint petition. In the Advocate''s notice it has been stated that accessories like dynamo, battery, etc. have not been supplied with the generator. It may be pointed out that this Advocate''s notice (Annexure-5) is undated and hence it is not known as to when the same had been sent. In para 9 of the affidavit dated 5.10.1994 of the complainant it has been stated that the legal notice had been sent in the month of August, but the date and year of sending the notice have not been mentioned even in the said affidavit. Of course, there is photo-copy of acknowledgement on record as Annexure 6 of the complaint petition which is dated 16.9.1993. There is nothing in this acknowledgement to show that it is with regard to the aforesaid Advocate''s notice (Annexure-5). Even if it is assumed for argument sake that the acknowledgement is concerning the Advocate''s notice to opposite party No. 1 on behalf of the complainant the same appears to be of little help to the complainant as the notice appears to have been sent much after the delivery of the generator. If the accessories had not been delivered with the generator, the natural conduct on the part of the complainant would have been to intimate opposite party No. 1 in writing immediately about the same but the complainant does not appear to have done so. In para 17 of the rejoinder dated 19.12.1994 the complainant has stated that he had sent a letter to the Branch Manager on 13.8.1993 regarding non-delivery or self, charger and battery by opposite party No. 1. Photo-copy of a letter dated 13.8.1993 addressed to Branch Manager of Bihar State Financial Corporation has been brought on record as Annexure-VIII to the rejoinder but there is no affidavit to the effect that the same (Annexure-VIII) is the photo-copy of the original. In the letter it has been stated that all the accessories except self, charger and battery have been supplied and the wanting accessories will be supplied at the time of starting of the generator by the supplier as per terms and conditions. From paras 4 and 5 of the supplementary affidavit dated 25.4.1996 filed by the complainant it appears that the generator set in question was being used by the complainant for manufacturing small items like plastic curtain rings. It goes to show that subsequent to delivery the generator was made operative. In continuation of the letter dated 13.8.1993 (Annexure-8) there is no letter by the complainant to opposite party No. 1 that self charger and battery had not been supplied at the time of starting the generator for use in the factory. Had the said accessories not been supplied at the time of making the generator operational in the factory of the complainant, the natural conduct on his part would have been to intimate opposite party No. l as well as Bihar State Financial Corporation about non-supply of the same. But he does not appear to the have done so. The photo-copy of challan and duplicate invoice dated 12.8.1993 brought on record as Annexure-IX/1 to the rejoinder go to show that the generator was supplied as complete in all respect. I may mention here that there is no affidavit to the effect that the said challan and duplicate invoices (Annexure- IX and IX/I) are true, photo-copy of the original. Even if Annexures IX and IX/1 are taken into consideration, the same appear to be of little help to the complainant with regard to non-supply of the accessories. It would not be out of place to mention here that the case of the complainant in the brief particulars of the complaint attached to the complaint petition is that the generator was supplied without accessories. Similar is the case of the complainant in para 6 of his affidavit dated 5.10.1994. But in the aforesaid letter dated 13.8.1993 (Annexure VII to the rejoinder) it has been stated by the complainant that he has received all the accessories except self, charger and battery. This statement in Annexure VII is at variance with the cause of the complainant that accessories were not supplied with the generator. This inconsistency naturally creates doubt about the case regarding non-supply of the accessories. The other allegation made in the complaint petition is that the consideration amount of Rs. 1,37,440.80 paise as mentioned in the invoice (Annexure 1 to the complaint petition) included loading, forwarding and energising cost but he was forced to pay Rs. 3,000/- extra as cost for loading. But in para 8 of the affidavit dated 5.10.1994 of the complainant it has been stated that opposite party No, 1 charged Rs. 3,000/- as transport cost (not loading charge as alleged in the complaint petition). So there is inconsistency with regard to this allegation. Furthermore, there is no receipt with regard to payment of Rs. 3,000/- by the complainant as loading charge or transport cost. Opposite party No. 1 in para 21 of his written statement has denied the allegation that the complainant had been forced to pay Rs. 3,000/- extra as cost of loading. Under the circumstances it is difficult to accept the allegation regarding forced payment of Rs. 3,000/- more by the complainant as loading charge.

NOW the question to be considered is as to whether delay in making delivery by opposite party No. 1 or delivery of generator without alleged accessories will amount to deficiency in service and can be treated as a consumer dispute. It was contended on behalf of the complainant that it will amount to a consumer dispute and the non-supply of the generator with accessories within the stipulated period will amount to deficiency in service. In support of this contention the learned Counsel referred to a decision of the National Commission reported in 1997 BCCL (Part VI) page 15 (Chima Engineering Services v. Rajan Singh). It may be pointed out that the facts of the said case were quite different. In that case the proposed purchase of machine was for earning livelihood but the manufacturer neither supplied the machine nor refunded the advance and under the circumstances it was held that the purchaser was entitled to invoke protection under the Consumer Protection Act. In the instant case before this Commission the supplier (O.P. No. 1) supplied the generator allegedly after some delay. So the said case is distinguishable. Further more, it may be pointed out that it is not the case of the complainant that there was any defect in the generator supplied by opposite party No. 1. When the complaint does not relate to any defect in the generator supplied rather relates to a breach of contract of the sale of generator on the ground of failure to supply same with accessories or non-supply of accessories within the period agreed to be supplied, it is purely a civil liability for which the remedy lies elsewhere. It is not a consumer dispute as there is no allegation of any defect in the generator. In support of this view of mine 1 would like to refer to the decision dated 22nd January, 1996 of the National Commission in the case of Executive Engineer, Gosikhurd Dam Division, Wahi (Pawani) v. Sri Hariganga Cement Ltd. Nagpur. In view of what has been pointed out above it is not a case of deficiency in service.

IN paras 4 and 5 of the supplementary affidavit dated 25.4.1996 filed by the complainant it has been stated that the complainant manufactures small items like plastic curtain rings and sells the same personally and the purchased generating set was used for manufacturing the small items. This statement goes to show that the generator supplied by opposite party No. 1 was being used. Then the case of the complainant in para 2 of the brief particulars of the complaint attached with the complaint petition that the generator set supplied without accessories is lying at the site and is not operational stands falsified. It is not the case of the complainant that he purchased the wanting accessories allegedly not supplied by opposite party No. 1 from open market for making the generator operational. It means that the generator could become operational due to supply of accessories by opposite party No. 1. It is not the case of the complainant that wanting accessories were supplied by opposite party No. 1 after filing of this complaint case and prior to the filing of the supplementary affidavit dated 25.4.1996. Then it means that the accessories were also supplied by opposite party No. 1 with the generator as asserted by opposite party No. 1 in his written statement and in any case prior to the filing of this complaint case. Under the circumstances the question of deficiency due to non-supply of accessories would hardly arise. In view of what has been pointed out above, this complaint petition is not maintainable. In the result the complaint is hereby dismissed. In the circumstances of the case, there will be no order as to cost. Complaint dismissed.