BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD.
F.A.No.493/2012 against C.C.No.36/2011, Dist. Forum-II, East Godavari at Rajahmundry.
Between:
The Gandhi Surgicals ,Fitness World & Sports,
Opp.Surya Hotel , Old GAIL Buildings,
Danvaipeta,Rajahmundry,
E.G.District. … Appellant/
Opp.party no.1
And
1.Dr.Rajendra Prasad , Hindu,
Working as Regional Director of
Municipal Administration,
R/o.D.No.85-17-3,
All Bank Colony, Rajahmundry. … Respondent/
Complainant
2. The Incharge of Service Department,
AEROFIT, Sachadev Sports Company,
Hardy Complex, MG Road,
Secunderabad- 500 003. … Respondent/
Opp.party no.2
Counsel for the Appellant : M/s.V.Gourisankara Rao
Counsel for the Respondents : M/s. M.Ramgopal Reddy
R2 -notice served.
QUORUM: SMT.M.SHREESHA, HON’BLE INCHARGE PRESIDENT
And
SRI S.BHUJANGA RAO, HON’BLE MEMBER.
WEDNESDAY, THE FIFTEENTH DAY OF MAY,
TWO THOUSAND THIRTEEN
Oral Order : (Per Sri S.Bhujanga Rao, Hon’ble Member).
***
This appeal is directed against the order dt.15.5.2012 of the Dist. Forum–II, East Godavari Dist. at Rajamundry made in C.C.No.36/2011.
The appellant is the opp.party no.1 and the respondents are the complainant and opp.party no.2 respectively in C.C.No.36/2011. For the sake of convenience the parties are described as arrayed in the complaint.
The brief case of the complainant as set out in the complaint is as follows:
The 2nd opposite party is the manufacturer of motorized Treadmill and the opp.party no.1 is its dealer at Rajamundry. The complainant purchased 801 model motorized Treadmill for an amount of Rs.24,000/- on 26.11.2007 from the opp.party no.1. The said instrument worked without giving any troubles upto April,2009 and then started giving troubles in functioning of the same. On that, the complainant gave complaint to the opposite party no.1, its employees attended to the machine and repaired the same on payment of Rs.1200/- by the complainant. Even thereafter, the machine was giving troubles and caused inconvenience to the complainant’s regular course of exercise. On the complaint of the complainant, the mechanic examined the Treadmill on 7.10.2010 and admitted that there is some trouble. But till the date of the complaint, the machine was not repaired, due to which the complainant was facing much troubles. The fast-slow buttons on right hand handle are also not functioning properly.
On 20.10.2010, the complainant went to the shop of opp.party no.1 and again entered a complaint in the complaint register maintained by opp.party no.1, but opp.party no.1 did not take any action. On receipt of letter dt.20.10.2010 from the complainant, a mechanic, attended on 27.10.2010 and made some repairs on receipt of Rs.8,600/- from the complainant towards costs of spare parts and service charges vide bill dt.27.10.2010. Even then, the Treadmill did not function properly, through the mechanic replaced the new model. The Treadmill is completely dead from 6.10.2010 and the same was informed to the opp.party no.1 through a letter dt.20.10.2010. Inaction of the opposite parties comes under breach of contract and deficiency in service against the complainant. Hence the complaint is filed by the complainant seeking direction to the opposite parties to pay jointly and severally a sum of Rs.98,800/- towards the cost of the machine, towards repairs and spare parts and towards damages .
Resisting the complaint, the opposite party no.1 filed written version denying the material allegations made in the complaint. This opposite party admitted the purchase of the Treadmill for an amount of Rs.24,000/- on 26.11.2007 by the complainant from this opposite party. This opposite party contended that the Treadmill is in good condition till date and the complainant is using the same. This opposite party admitted that on the complaint of the complainant, the machine was examined on 7.10.2010 and attended the repair for the satisfaction of the complainant…This opposite party also admitted that on 20.10.2010, the complainant came to the shop of opp.party no.1 and again entered a complaint in the complaint register maintained by opp.party no.1 and opp.party no…1 attended the machine, on 27.10.2010 and made repair works.
This opp. party further contended that the complainant converted the estimation form into a bill by removing the heading words ‘estimation’ which is not a valid document in the eye of law. Hence there is no deficiency in service on the part of this opp.party and the complaint is liable to be dismissed.
Opp.party no.2 remained ex-parte.
During the course of enquiry, before the Dist. Forum, both the parties filed their evidence affidavits in proof of their respective contentions. The complainant has also got marked Exs.A1 to A9 and opp.party no.1 also got marked Exs.B1 to B5.
Upon hearing the counsel for both the parties and on consideration of the material on record, the District Forum, allowed the complaint in part directing the opp.parties to refund the cost of the defective Treadmill of Rs.24,000/- and repair charges of Rs.9,800/- to the complainant. The opp.parties are further directed to pay Rs.1000/- towards costs of the complaint.
Aggrieved by the said order, the opposite party no.1 preferred the above appeal, urging that the order of the District Forum in allowing the complaint is contrary to law, weight of evidence and probabilities of the case. That the Dist. Forum failed to see that there is no deficiency in service on the part of opposite party no.1 as the opposite party no.1 is only a dealer of opposite party no.2 and opp.party no.2 is the importer of Airofit Motorized Treadmills. That the Dist. Forum failed to see that there is no complaint within one year and according to the complainant, the troubles developed after April 2009, which is beyond the warranty period. That the District Forum failed to see that the complainant has not established that he incurred repair charges of Rs.9,800/- by producing proper bill. That the District Forum failed to see that the complainant has not established any manufacturing defect in the Tread Mill nor he examined any expert u/s.13 (4) (IV) of C.P.Act,1986. The appellant/opp.party no.1 finally prayed to allow the appeal and to set aside the impugned order.
We have heard the counsel for both the parties and perused the material placed on record including the written arguments filed by the counsel for both the parties.
Now the point for consideration is whether the impugned order of the District Forum is vitiated for misappreciation of fact or law?
It is not in dispute that opp.party no.2 is the manufacturer of motorized Treadmill and opposite party no.1 is its dealer at Rajamundry. It is also an admitted fact, that the complainant purchased the motorized Treadmill of 801 model from opposite party no.1 for Rs.24,000/- on 26.11.2007.
In para 4 of the complaint, the complainant has categorically stated that the said instrument worked upto April, 2009, without giving any trouble and then started giving trouble in functioning of the same.
There is no evidence on record to show that complainant complained to the opposite party no.2, about the functioning of the instrument prior to April,2009. Exs.A2 to A9 documents filed by the complainant relate to the period subsequent to April, 2009. In view of these circumstances, it is established that the Treadmill started giving trouble from April,2009, but not from April, 2008.
From the evidence adduced by both the parties, it is clear, that the Treadmill was not functioning properly, inspite of the mechanics of the opp.parties attended the repairs of the Treadmill. As rightly submitted by the learned counsel for the appellant/opp.party no.1, the complainant has not established any manufacturing defect in the Treadmill nor he examined any expert u/s13(4) (IV) of C.P.Act,1986 to establish that the Treadmill was having manufacturing defect . However, the complainant proved that the Treadmill purchased by him from opposite party no.1 is a defective one. Thus, there is deficiency in service on the part of the opp.parties in selling defecting Treadmill and in not attending the repairs properly. Therefore, we are of the view that the opposite parties are jointly and severally liable to pay compensation to the complainant. In our considered view the Dist. Forum committed error in directing both the opposite parties to pay Rs.24,000/- the cost of the Treadmill, to the complainant, especially when admittedly the complainant used the Tread mill from the date of purchase i.e. 26.11.2007 till August,2009. While directing the opposite parties to pay the cost of the Treadmill, the Dist. Forum did not direct the complainant to return the Tread Mill.
It is the case of the respondent no.1/complainant that the mechanics of the opp.parties attended the repairs of the Treadmill and that the complainant has paid Rs.1200/- on 17.4.2009 to the opposite party no.1 and paid an amount of Rs.8,600/- towards cost of spare parts ( Board and motor etc.) vide bill dt.27.10.2010. The opp.party no.1 has admitted payment of Rs.1,200/- by the complainant towards repair charges on 17.4.2009, but denied the payment of Rs.8,600/- under bill 27.10.2010 which is filed and marked as Ex.A4. The contention of opposite party no.1 is that Ex.A4 is not a proper bill/invoice, it is only an estimation for Rs.8,600/-. That Ex.A4 is not even a receipt. But the complainant got filed Ex.A4, by removing the word ‘estimation’ from the top of the prescribed estimation form maintained by opposite party no.1 in their usual course of business. As such, the District Forum ought not to have considered Ex.A4.
A careful examination of Ex.A4 belies the contention of the opposite party no.1. No word ’estimation‘ appears to have been removed from the top of the prescribed estimation form. The word like ’estimation’ is not printed on Ex.A4. Therefore, the question of removal of the word ’estimation’ from Ex.A4 does not arise. Admittedly, Ex.A1 bill was issued by the opposite party no.1. Ex.A4 is similar to Ex.A1. Opposite party no.1 admitted the replacement of the board and motor etc. by their mechanic. But they contend that they attended the repairs, free of cost, which we do not accept. Further, in Ex.A5 letter dt.2.11.2010 addressed by the complainant to opposite party no.1, the complainant has categorically stated that he has paid Rs.8,600/- to the persons of opposite party no.1 towards spare parts (Board and motor) and service charges on 27.10.2010 and that the people of opposite party no.1 simply attended some work and took away the bill amount of Rs.8,600/- on 27.10.2010. Admittedly, opposite party no.1 received original of Ex.A5 letter. But he did not deny the same in Ex.A6 reply dt.18.11.2010. In view of the above facts and circumstances, the complainant proved that he paid Rs.8,600/- to opposite party no.1 towards costs of spare parts and costs of repairs under Ex.A4.
The contention of the appellant/opp.party no.1 is that the complainant complained about the improper functioning of the Thread Mill to opposite party no.1 one year after the purchase i.e. the warranty period. The opposite party no.1 has not taken this plea in any of the reply notices got issued by him to the complainant and in his written version and evidence affidavit . They have taken this plea in this appeal. They have not denied the liability at any time on the ground that warranty period is over. On the other hand, admitted the defect in the machine and attended the repairs, though not satisfactorily .
Having regard to the facts and circumstances discussed above, we are of the view that it is just and reasonable to award a lumpsum amount of Rs.20,000/- including the repair charges of Rs.9,800/- as compensation in addition to Rs.1000/- towards the costs of the complaint awarded by the District Forum.
In the result, the appeal is allowed in part, directing the opposite parties 1 and 2 to pay jointly and severally a sum of Rs.20,000/- including repair charges of Rs.9,800/- as compensation to the complainant in addition to Rs.1000/- towards costs of the complaint awarded by the District Forum. The impugned order of the District Forum is accordingly modified. In view of the facts and circumstances of the case, there shall be no order as to costs. The opposite parties are directed to comply with the order, within four weeks from the date of this order.
INCHARGE PRESIDENT
MEMBER
Pm* Dt.15.5.2013
