ANAS BABU vs JOSSOP And CO.

THIS complaint is filed under Section 17 read with Section 12 of the Consumer Protection Act.

SHORTLY stated the allegation in the complaint are as follows:- The complainant is a contractor by profession doing construction works particularly, road tarring, maintenance etc. Complainant decided to purchase a Road Roller from the Opposite Party for the above purpose and sent a letter to the Opposite Party enquiring about the details in the first week of September, 1991. The Opposite Party sent a reply dated 14.9.91 stating price, payment, delivery, commissioning, guarantee and validity of price regarding Jessop Model 810 Diesel Road Roller of 8 to 10 Tonnes capacity filled with Simpson P 4(1) Water cooled diesel engine. The price was Rs. 4,12,149.18. It was stated in the said letter that the 30% of the total price was to be paid in advance and the period of delivery was 8 weeks. Complainant placed an order and paid an advance amount Rs. 1.35 lakhs on 7.12.91. He again sent Rs. 2,80,804.94 which was also received by the Opposite Party. However, according to the complainant the Opposite Party did not deliver the Roller to the complainant as promised. Opposite Party sent a telegram promising to deliver the Roller by the end of March, 1992. However the Roller was delivered to the complainant only on the 1st week of June. The complainant alleged that there is deficiency in service in not supplying the Roller within the time schedule and, therefore, he is entitled to get compensation of Rs. 2,29,583/-. Though notice was served on the Opposite Party there is no appearance for the Opposite Party and the Opposite Party was set exparte.

Complainant was examined as PW 1 and he spoke in terms of the averment contained in the plaint. Exbts. P1 to P9 were marked.

ON perusing the complaint and the evidence of PW 1 we find that the offer made by the Opposite Party was accepted at Trivandrum and D.D. was sent from Thrivikramangalam Branch of Canara Bank towards advance amount. In the circumstances we find atleast part of cause of action arose in the State of Kerala and this Commission has territorial jurisdiction to entertain the Complaint. From the evidence of PW 1 we find that the complainant is an engineer and is a contractor by profession and the purchase of Roller was made for use by him exclusively for the purpose of earning his livelihood, by means of self-employment. It is seen that the complainant is not an Income-tax payee and his income from contract was not very large. The amount for payment of consideration was raised by taking loan from the Canara Bank. In the circumstances the complainant is a consumer within the meaning of Section 2(1)(d) read with Explanation thereto. Moreover there is a promise to deliver the roller within 8 weeks from placing of order and Exbt. P1 invoice dated 14th September, 1991 sent by the Opposite Party also shows that the price quoted is inclusive of commissioning of the roller at the complainant''s site by one of their service engineers. So question of service for consideration is also involved. So complainant is a consumer.

THE next question to be considered is whether there is deficiency in service on the part of the Opposite Party. Exbt. P1 dated 14th September, 1991 is issued by the Opposite Party. The total price inclusive of tax and excise duty quoted is Rs. 4,13,149.18. It stated 30% advance should be sent along with the order and the balance prior to despatch. It also states that the delivery will be within 8 weeks. This offer was accepted by the complainant and he sent a demand draft for Rs. 1,35,000/- towards 30% of the price as required by the Opposite Party. Exbt. P2 dated 7.12.91 is the receipt issued by the Opposite Party for receipt of the amount. Exbt. P4 is the copy of the covering letter dated 31.12.91 sent along with demand draft accepting the offer. It is significant to note that the complainant enquired whether the Opposite Party required 8 weeks period for delivery and whether they could deliver it within one month. He pointed out the importance of delivering the Roller earlier as it was their good working season. He also enquired details about further payment. Thereafter as required by the Opposite Party the complainant sent the balance consideration of Rs. 2,80,808.94 as per demand draft drawn on Canara Bank. Exbt. P3 dated 31st March, 1992 was issued by the Opposite Party acknowledging receipt of the amount. Exbt. P5 is the covering letter sent by Canara Bank while sending DD towards balance of consideration. In this letter also Opposite Party was requested to extend necessary assistance to the complainant for taking delivery of Road Roller as early as possible. Instead of sending the roller earlier, the Opposite Party sent Exbt. P6 telegram to the complainant stating that delivery will be effected by the end of March. However it was delivered to the Kerala Transport Co. for transportation to Trivandrum to be delivered to the complainant only on 26.5.92 and it was actually delivered to the complainant in the 1st week of June, 1992. The facts narrated above would show that what was promised in the invoice Exbt. PI is delivery within 8 weeks from acceptance of offer and payment of advance of 30% of the price. The offer and me draft towards 30% was received by the Opposite Party before 7.12.91. The receipt Exbt. P2 is dated 7.12.91. 56 days from that date will take us to 1.2.92. The Roller was entrusted to Kerala Transport Co. for transportation only on 26.5.92, i.e., 3 months and 24 days thereafter. It may be noticed that the complainant wanted to effect delivery within one month from the date of receipt of acceptance of offer. He has made it clear that time is of essence of the contract by bringing to the notice of the Opposite Party the necessities of getting the Road Roller during the working season. During rainy season it would not be possible to carry on the road work. However roller was supplied only by the 1st week June, though in the telegram sent by the Opposite Party he agreed to deliver atleast by the end of March. As per the terms of contract and the delivery had to be made around 1st week of February. PW 1 stated that he had to go to Calcutta twice as delivery was not effected within the stipulated period. In the circumstances we have no hesitation to hold that there is deficiency in service on the part of the Opposite Party in not delivering the Roller within the stipulated period.

THE further question to be considered is what are the relives to which the complainant is entitled. PW1 stated that by reason of failure of the Opposite Party to supply the Roller as stipulated he had to take Roller on hire and he sustained loss of Rs. 1 lakh. He further stated that he had to pay Rs. 43,033/- by way of interest to the Bank during the delayed period. He stated that he had to spend Rs. 20,000/- for going to Calcutta twice. He stated that he is also entitled to get Rs. 50,000/- for mental agony. We have no doubt as the Roller was intended to be used for road repair and as it was not made available before the rainy season, the complainant must have incurred expenditure to hire Roller. Taking into consideration all these circumstances, we hold that the complainant is entitled to interest at the rate of 18% on Rs. 1,35,000/- from 7.12.91 and at the same rate on Rs.2,80,808.94 from 31.3.92 till 26.5.92. THEre is no evidence as to the exact amount he spent for going to Calcutta twice. We feel that an award of Rs. 10,000/- under other counts will meet the ends of justice. He will be also entitled to get Rs. 2,000/- towards the cost. THEse amounts will be paid within 6 weeks from today and on failure the complainant will be entitled to get interest at the rate of 18% for the period subsequent to the expiry of six weeks from today till payment. Complaint allowed with costs.