KAMLA CHOWDHARY Vs. GENSALES
JAMMU AND KASHMIR STATE CONSUMER DISPUTES REDRESSAL COMMISSION
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(1.) ORDER dated 30.9.2004 has been taken in appeal by the appellant whereby her complaint made before the Divisional Forum, Jammu (hereinafter to be referred to as the Forum) had been dismissed. The relevant facts of the case in brief are that on 24.3.2003, the appellant as per her allegation purchased one portable Honda Generator Set for a sale consideration of Rs. 38,200 and after accepting the sale consideration, the respondent issued bill No. 1112 dated 24.3.2006 which was accompanied by a "warranty card" and "a free service coupon booklet" and "owners manual" duly filled in by the representative of the respondent wherein the frame number and the engine number of the above stated generator set were mentioned. The case of the appellant is that at the time of accepting the sale price the respondent had made a promise with the appellant that the delivery of the said portable Honda Generator Set shall be home delivery which would be made on the next day. The service charges for the installation of the set had to be separately borne out by the appellant but the promise was breached because no body turned up at her residence for the installation of the generator set despite requests were made on telephone as well as she had visited the shop personally. When all her requests were turned down she was led with no alternative but to serve a legal notice which was given through a Counsel. The notice was served through speed post on the same day i.e. on 27.3.2003 against signature obtained on Annexure E . Even after the receipt of the registered notice, the delivery of the generator set in question was not made so on 29.3.2003 complaint was filed before the learned Forum. The respondent had taken the defence that appellant herein did not qualify to be a "consumer" as defined under the J&KConsumer Protection Act (hereinafter to be referred to as the Act) because she had not made the payment of the sale price. It was also pleaded that appellant had played fraud by cheating because without making the payment she had succeeded in obtaining the "bill of the price", "the warranty card" and "service documents". While leaving the shop, she had taken all the above stated documents with her but never returned from her house to make the payment of the sale price. That on 27.3.2003, FIR was lodged in the Police Station City. In this case, disputed questions of facts were involved which required their adjudication in a Civil Court after a proper trial and not in the Forum created under the Act where only a summary procedure is adopted. That respondent had produced income tax return and balance sheet of the Financial Year 2003 dated 31.3.2003 which indicated at serial No. 72 that an amount in the sum of Rs. 38,200 was due from the appellant as a sundry debtor. The Forum after appraising the evidence of the parties has held that "the generator set in question was not supplied to the appellant on the ground that payment of the price bad not been made". That order has been challenged inter alia in the appeal on the following ground:
(a) The learned Forum has mis -appreciated the evidence.
(b) There was cogent and convincing evidence in the nature of documentary as well as oral evidence which had proved the factum of payment of the price of the generator set in question but delivery was not made.
(2.) THE complainant had filed her affidavit in support of the allegations made in the complaint while respondent Sanjeev Kalra has deposed on affidavit. He has also filed the affidavits of Mr. Ashok Kalra and Mr. Davinder Singh as his witnesses. Respondent Mr. Sanjeev Kalra in his affidavit has stated that appellant along with a gentleman came to his shop at around 7.00 p.m. and after seeing the generator had requested for the completion of the sale documents. The cousin of the respondent namely, Ashok Kalra prepared the bill and handed it over to the appellant for receiving the payment but she left the shop with the promise that she would come from her home after bringing money and then would take the delivery of the generator set. That appellant did not turn up as promised and respondent had sent Mr. Davinder Singh, Salesman from his shop to contact her for getting the payment of the said generator set. When the payment of the generator set was not made till 26.3.2003; an FIR was lodged by Mr. Ashok Kalra regarding the incident in Police Station City. The appellant by cheating the respondent had got the documents from him but had not made the payment of the aforesaid generator set. As per the business practice, the delivery of the generator set is only given at the shop premises after receiving the sale price. Mr. Ashok Kalra has deposed that on 24.3.2003, the appellant accompanied by one gentleman came to their shop at around 7.00 p.m. and after seeing the generator set had requested for the completion of the sale documents which he did. The bill was handed over by him to the appellant for payment purposes but she left the shop with a promise that she would come back and after making the payment the delivery would be taken. Later on she did not turn up. The salesman of respondent No. 1 namely, Mr. Davinder Singh was sent to fetch the sale price of the generator set but till 26.3.2003 that attempt did not bear any fruit. He spell out the trade practice by stating that always delivery of sold generator set is made at the shop after getting the price which is the place of business and not at home of any consumer. Mr. Davinder Singh witness in his affidavit has stated that he works as a salesman in the shop of the respondent and on 24.3.2003 the appellant accompanied by a gentleman came to the shop at around 7.00 p.m. and after seeing the generator set in question made a request for the completion of its sale documents which accordingly were prepared by Ashok Kalra and the bill was handed over to the appellant for payment but she left the shop with a promise that the delivery would be taken after making the payment which was not made. He further stated that he had gone to her house to fetch the sale price which could not be realized. He has also pleaded that as per trade practice delivery of a generator set is always made at the place of business and not at the residence of a customer.
(3.) HEARD the arguments.
The learned Counsel appearing for the appellant has contended that the possession of the "bill of sale" "warranty card" and "service card" regarding the generator set in question has not been denied. The receipt of the legal notice is equally admitted. The only controversy which has been raised in this case is that sale price had not been paid by her as by practising a fraud she had taken the delivery of the bill of sale along with other two above stated documents. Respondent No. 1 lodged a complaint in Police Station City through Ashok Kalra on 27.3.2003 at 11.50 p.m. when already legal notice had been served upon respondent No. It has come in the evidence that record of sale had been prepared by Mr. Ashok Kalra after getting duped by the appellant that payment would be made after visiting the home. The evidence of respondent Sanjeev Kalra and his witness Ashok Kalra is to the point that when appellant did not turn up with sale price, they detected a fraud and sent Mr. Davinder Singh salesman to fetch the money. Davinder Singh corroborates this version. It is very pertinent to note that all of them i.e. Sanjeev Kalra, Ashok Kalra and Davinder Singh are silent on what date, at what time Mr. Davinder Singh was sent and consequently what was the result of his visit. These material omissions in their testimony on material points make their testimony as of doubtful nature and reasonably a presumption can be drawn that such a defence is an out -come of after thought. Much stress has been laid upon the production of balance sheet prepared by the concerned Chartered Accountant by way of income return of the respondent for the Income Tax Department wherein under item No. 72, the appellant herein has been shown as a sundry debtor. This documentary evidence which is shown by Mrs. Sindhu Sharma Advocate of respondent as of credulous nature cannot be treated so because its preparation is a unilateral act of the respondent and it is not an official record of the Income Tax Department. It could easily be got prepared in support of a false defence. While concluding his arguments Mr. Baldev Singh Advocate has shown the entries of the "warranty card" and free service coupon booklet. Under its heading "Maintenance Service Policies" there is a sub -head number 2 regarding installation which reads as under:
"Installation of generator set with automatic/manual change -over switch shall be provided by the dealer on customer s request and the expenses shall be borne out by the customer."
The installation of the generator set in question as per the maintenance service policies was to be made at the request of the appellant at her residence whereas she has to borne the expenses. The defence which has been set up by the respondent to ward off its liability runs contrary to the above stated entries of Maintenance Service Policies. In view of the law laid down by the Apex Court in the case of Fiat India Pvt. Ltd. v. Dr. Zahid Hussain Geelani, 2003 AIR(J&K) 71; it can be deemed that sale of generator set was complete when the payment had been made but delivery had not been made of the generator set in question. The Apex Court in the above stated case of M/s. Fiat India Pvt. Ltd. had held that respondent Dr. Zahid Hussain was a consumer within the definition of Section 2(g) of the Consumer Act because he had paid the price of the car and delivery had not been made to him. That it was deficiency in service. On the same analogy, it amounts to deficiency in service and under Section 2(r) respondent had resorted to carrying on unfair trade and practice.;
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