D.O.F. 19.01.2009
D.O.O. 01.12.2010
IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR
Present: Sri.K.Gopalan : President
Smt. K.P.Preethakumari: Member
Smt.M.D.Jessy : Member
Dated this the 1st day of December, 2010.
C.C.No.22/2009
C. Shaji,
S/o. Late. Kunhikrishnan M.,
Proprietor, R.K. Mills,
Mavichery, Payyannur : Complainant (Rep. by Adv. Vinodkumar P.)
1. The Proprietor,
M/s. Royal Machine Tools
South Bazar, Kannur – 2
(Rep. by Adv. K.K. Phalgunan)
2. The Managing Director, : Opposite parties
M/s. Techno Design India (Pvt.) Ltd.
Major Industrial Estate,
P.B.No.10, South Kalamassery
O R D E R
Sri. K. Gopalan, President.
This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite party to pay a sum of ` 17,686 as the cost of machinery with 9% interest and a sum of ` 1,24,000 as compensation for the non-functioning of the mill or else to replace the defective machine and install a new one, with cost of this proceedings.
The facts of the case of complainant are as follows : The complainant is the proprietor of R.K. Mills at Payyannur, wherein, the grinding of grains, making of flour of corns etc are conducting. Income from the mills is the source of livelihood of complainant and his family. The mother of the complainant is now managing and looking after the day to day affairs of the mill. Complainant intended to replace the old machines. Opposite party 1 made believe the complainant that the machinery is having special qualities like less sound, high speed and it is free from dust pollution and offered free service for a period of one year with experienced technicians. The machinery namely ‘Sunfab’ was purchased on 21.06.2008 by paying a sum of ` 17,686.80. Separate payment were made for other accessories. At the time of purchase opposite party 1 promised and offered his mechanics will come and install the machinery in the mill. The opposite party 1 did not send their mechanics for installation and thus installed by the help of another mechanic paid by the complainant and the mill started functioning. Within a weeks of time complainant understood that the machinery is not having any such qualities as offered by opposite party. The machinery started eminating high sound, high dust pollution than the old one. It was complained to opposite party 1. Though one technician came and attend the machine he could not rectify the defects but told him that they will bring a mechanic of opposite party 2. But no body turned up thereafter. On 25.06.2008 onwards complainant closed his mill from doing the flour works. Hence he met with a loss of tune of ` 1000 per day. Lawyer notice issued to both parties calling up to replace the machinery or to refund the purchase amount with 9% interest and to pay a sum of ` 1,24,000 as compensation. Opposite party 1 sent reply with false allegations. But 1st opposite party afterwards informed that he is ready to replace the machinery. But till this day the same has not been complied. The notice of opposite party returned as “unclaimed”. It is deliberate. Complainant suffered mental agony and hardship and hence entitled for the relief prayed. Hence this complaint.
Pursuant to the notice opposite party 1 entered appearance and filed version whereas notice to opposite party 2 returned unclaimed. The notice is deemed served to opposite party 2 and subsequently declared Exparty after calling his name in open Forum.
The facts contained in the version of opposite party 1 in brief are as follows. Complainant is not a consumer. Opposite party is not admitting that the complainant is the proprietor of R.K. Mills. The machinery was purchased for commercial purpose. The complainant has got his own job as the Secretary of a Society and the machinery was purchased not for the purpose of earning the livelihood of the complainant or for self employment. Opposite party 1 supplied a machinery namely “Sunfab” manufactured by opposite party No.2. Opposite party did not convince the complainant that the machinery manufactured by opposite party 2 is having special qualities like ‘less sound and free from dust pollution’. The complainant purchased the machine after seeing the machine installed in some other places. The complainant had purchased only a bare machine stating that he is having the accessories of the old machine. The complainant took the machinery and installed the same on his own and the assistance of this opposite party was not sought for. Opposite party denied that the machinery supplied by this opposite party emanates high sound and high dust pollution than the old one. When opposite party contacted the complainant no complaint was made. The Mill and the machinery is even now functioning. Opposite party denied that the complainant met with a loss of ` 1000 per day. The machinery does not have inherent defect. The defect in installation and the user of old accessories cannot fasten liability on this opposite party. Complainant was never informed that he is ready to replace the machinery of another company. There is no manufacturing defect or deficiency in service or latches on the part of this opposite party. Hence to dismiss the complaint.
On the above pleadings the following issues have been taken for consideration.
1. Whether the complainant is a consumer?
2. Whether there is any deficiency on the part of opposite party?
3. Whether the complainant is entitled for the releif as prayed in the complaint?
4. Relief and cost.
The evidence consists of the oral testimony of PW1, PW2, Ext.A1 to A7. No evidence adduced on the part of opposite party.
Issue No.1 :
Admittedly complainant purchased a grinding machine from opposite party 1 which was manufactured by opposite party 2. Complainant’s case is that the machine was defective. It has to be either replaced or refunded the purchase price with compensation and cost. Opposite party contented that complainant is not a consumer. Hence the 1st question to be answered is whether the complainant is a consumer or not.
The case of the opposite party on the above issue is that complainant is a secretary of a co-operative society and the income from the mill is not the only means of livelihood of the complainant and his family. He purchased the machinery not for self employment or for earning his livelihood.
Complainant pleaded thus “out of the income from the Mill is the livelihood of complainant and his family”. What is pleaded in complaint has been repeated in evidence by means of chief affidavit. The contention that complainant is the Secretary of a Co-op. Society is not specifically denied in evidence.
In cross examination the complainant PW1 deposed that “sk{I-«-dn-bmbn Xm¡m-en-I-ambn tPmen sN¿p-¶p. 2 hÀj-ambn Chirakkal Co-op. Society bnÂ. F\n¡v aXn-bmb qualification CÃm-¯-Xp-sIm-mWv Ønc-s¸-Sp-¯m-¯-Xv. Record hcp-¯n-bm Rm³ Ahn-sS-bmWv tPmen sN¿p-¶-sX¶v a\-Ên-em-hp-T. Opposite partybn \n¶v machinery hm§p¶ ka-b¯v Rm³ sk{I-«dn Bbn-cp-¶p. ` 6000 BWv salary. Income tax sImSp-¡p-¶n-Ã.
The evidence as brought reveals that the complainant was a temporary employee as Secretary in Chirakkal Co-operative Society. Complainant has clearly deposed that “Record hcp-¯n-bm Rm³ Ahn-sS-bmWv tPmen sN¿p-¶-sX¶v a\-Ên-em-hp-T.” If he is a permanent employee steps would have been taken by opposite party so as to prove that he is a permanent employee. So the existing evidence only proves that complainant is a temporary employee of Chirakkal Co-op. Society. A temporary employee who is getting only ` 6000 per month if conducted a flour mill for earning livelihood of complainant and his family it cannot be considered as a commercial purpose as contented by opposite party. The circumstances in its entirety in our social condition typically reveals that the earnings from the flour mill is intended for the livelihood of the entire family of the Complainant including himself. Hence we find that complaint is maintainable. Issue No.1 is answered in favour of complainant.
Issue No.2 to 4 :
Complainant purchased the machinery in question on 21.06.2008 and according to the pleadings the Mill was closed for the reason of non functioning of faulty machinery purchased from opposite party 1 which was manufactured by opposite party 2. Ext.A2 bill issued in the name of Shaji, R.K. Mills, Mavichery, Payyannur dated 21.06.2008 proves that complainant has purchased the machinery by paying ` 17,686.80 on 21.06.2008. Ext.A1 estimate bill also reveals the machinery costs ` 17,686. Ext.A4(a) and (b) proves that complainant sent lawyer notice dated 28th day of October 2008 to opposite party 1 & 2.
Complainant sent lawyer notice within 4 months of purchasing and installing the new machinery to replace the machinery and to install a new one or to pay purchase amount with 9% interest. Ext.A7 proves that the registered lawyer notice sent by the complainant to opposite party 2 unclaimed and returned to sender’. So it can be considered that notice is properly served. Opposite party 1 sent reply. That also gives clue that the subject matter has been in the usual course might have informed by opposite party 1 to opposite party 2 since he is the manufacturer from whom opposite party 1 got it. The notice send by Forum also returned unclaimed. Unclaiming the notice and the non-appearance of opposite party 2 and remaining absent throughout, is only a tactical approach that resembles the mode of application of unfair trade practice on his side. As a manufacturer they can very well presume that a notice if send by the Consumer Disputes Redressal Forum probably that would be in respect of a complaint of their product. Since they are manufacturers, in the ordinary course, it is only a matter of common sense that there is no other purpose for Consumer Dispute Redressal Forum to send a registered notice. It is also pertinent to note that they have already returned a lawyer notice from the same district. Moreover the seller of their product already received the notice of the purchaser complainant. Naturally the seller is bound to inform the manufacturer. In any case we cannot consider that the same remained slept in the file without making known to opposite party 2, the subject matter. Thus it can only be presumed that opposite party 2 purposefully remained absent with knowledge and consent of opposite party 1 as an experiment to escape from liability. Hence the deficiency in service that amounts to unfair trade practice on the side of opposite party 2 is proved by the evidences discussed above itself. Opposite party 2 is liable for the deficiency in service and of unfair trade practice.
The lawyer notice dated 26.10.2008 received by opposite party 1. The machinery was purchased on 21.06.2008. The complaints of fault lodged before opposite party 1 by means of notice approximately within a period of 4 months of purchase. Complainant stated in his notice that he came to know the machinery was not having the said qualities and the same informed to opposite party 1. It is also stated that the mechanic sent by him failed to understand the fault and complainant waited for further repair as instructed by his mechanic but no repair was done thereafter. He further stated in notice that he asked opposite party 1 many occasions to replace the machinery and to supply a new one. What is done by opposite party 1 after receiving the notice Ext.A3. He sent Ext.A6 notice. He denied in his notice allegation of complainant that he sent a technician who gave instructions to wait for further repair but contented that when complainant was contacted he did not make any complaint. The allegation of close down of Mill from 25.06.2008, and loss of ` 1000 per day etc were also denied by the opposite party 1. He contented that the machinery does not have any inherent defect. If there is any defect in installation complainant alone is responsible for the same. He has offered if the complainant feels any inconvenience in operation of the machine opposite party is ready to check and correct the same at the expense of complainant.
It can be seen that opposite party 1 has not taken any sort of initiative to ascertain what really happened to the machinery. Even he has not taken interest to ascertain at least whether or not the Mill of the complainant was working.
Opposite party filed version denying the entire allegations of complainant. He takes defence in the version that after the purchase of the machinery when opposite party contacted the complainant no complaint was made. But he did not state when did he contact and what was the reason and occasion to contact the complainant. If such facts have been given it could have been a door to the truth. Opposite party has adduced evidence neither oral nor documentary. In the cross examination of PW1 it has been brought out that “Install sNbvX-XpT XI-cm-dp-m-b-XpT opposite party 1-s\ Ad-nbn-¨nà F¶p ]d-ªm icn-b-Ã. tcJm-aq-eT Ad-nbn-¨n-Ã. t^m¬ aptJ-\-bpT t\cn-«pT t]mbn ]d-ªp. CXp ImWn-¡m³ km£n-I-fpv. km£n-Isf hnkvX-cn-¡p-¶p-v. 25.06.2008 \v BWv opposite party 1-sâ representative Viswanathan F¶ BÄ h¶n-cp-¶Xv.” Complainant adduced evidence by way of affidavit. He has stated that opposite party 1 convinced him that the machine in question is having special qualities like less sound, high speed, free from dust pollution and will get free service etc. He has also stated in evidence affidavit that 1st opposite party offered that he will come and install machinery but he did not come to install the machinery. He further stated that the machinery within a short span of time started emanating high sound, high dust pollution in the mill and complained the same to opposite party 1. He continued to state that opposite party 1 sent one mechanic but he could not realize the actual defect so he informed another mechanic will be “brought from” opposite party 2 for further repair work but no body turned up thereafter and therefore closed the mill from doing the floor works.
Except blatant denial opposite party 1 failed to adduce any contra evidence so as to rebut the evidence adduced by the complainant. There is no justification in rejecting the evidence of complainant in absence of contra evidence. Both opposite parties were not ready to adduce oral evidence entering in witness box and so also no document has been produced.
In the light of above discussion and going through the evidence on record we are of the opinion that there is deficiency in service on the part of opposite party 1 and opposite party 2. The machinery purchased from opposite party 1 started giving trouble within a few days of its inception shows, that it is not defect free. The manufacturer despite being aware of the failure refused to attend the case at any point of time and the attitude of the opposite party 1 from practically refusing to make good of the defects, made known to him by various ways including lawyer notice shows that a case of unfare trade practice by and on behalf of the opposite parties, has been made out and accordingly the complainant is entitled to the refund of the price of machinery. It appears that in absence of evidence for actual damage the claim for compensation made by the complainant cannot be considered reasonable and appropriate. Complainant is also entitled for the cost of this proceedings. The opposite parties are thus liable to take the faulty machines and to refund ` 17,686 as the cost of machinery with ` 1000 as cost of this proceedings. The issues 2 to 4 are also answered in favour of the complainant.
In the result, the complaint is allowed directing the opposite party to pay a sum of ` 17,686 (Rupees Seventeen Thousand Six Hundred and Eighty Six only) as the cost of the machinery after taking back the same together with an amount of ` 1000 (Rupees One thousand only) as cost of this proceedings within one month from the date of receipt of this order, failing which the complainant is entitled to execute the order as per the provisions of Consumer Protection Act.
Sd/- Sd/- Sd/-
President Member Member
APPENDIX
Exhibits for the Complainant
A1. Estimate bill issued by 1st opposite party dated 21.06.2008.
A2. Bill issued by 1st opposite party dated 21.06.2008.
A3. Copy of lawyer notice dated 28.10.2008
A4. Postal receipts (2 Nos.) dated 28.10.2008.
A5. Postal acknowledgment card signed by 1st O.P. dated 29.10.2008.
A6. Returned legal notice by 2nd opposite party.
A7. Reply of 1st opposite party through their counsel dated 06.11.2008.
Exhibits for the opposite party
Nil
Witness examined for the complainant
PW1. Complainant
PW2. Vijayan M.
Witness examined for opposite party
nil
/forwarded by order/
SENIOR SUPERINTENDENT
