IN THE CONSUMER DISPUTES REDRESSAL COMMISSION,
ALAPPUZHA
Thursday the 24th day of December, 2020
Filed on 01.03.2017
Present
1. Sri.S.Santhosh Kumar, Bsc.LLB(President)
2. Smt. C.K.Lekhamma.BA, LLB(Member)
In
CC/No.61/2017
Between
Complainant:- Opposite parties:-
Sri.Varghese C.J Hareesh Kumar.R
Owner, City Block Proprietor
Chavadiyil Veedu M/s Power Tech Enterprises
Thumpoli, Alappuzha Maliyekkal Buildings
Kayamkulam Kottarakkara, Kollam
(Adv. T.G.Sanalkumar) Kalayapuram
(Adv. G.Sunilkumar)
O R D E R
SRI. S. SANTHOSH KUMAR (PRESIDENT)
Complaint filed under Sec.12 of the Consumer Protection Act, 1986.
1. Material averments briefly stated are as follows:-
Complainant constructed a shed having an area of 3000 sq.ft. and obtained electric connection by spending an amount of Rs.1,00,000/- for starting a small scale industry for manufacturing cement blocks by name M/s City blocks. He purchased machinery such as double vibrator hollow block machine and full bag mixer machine by spending an amount of Rs.1,91,250/- and Rs.83,750/- from the opposite party. An amount of Rs.1,50,000/- was paid on 01.10.2015, Rs.1,00,000/- was paid on 22.04.2015 and Rs.15,000/- was paid on 12.03.2016. The remaining Rs.10,000/- was to be paid after the installation and working of the machinery.
On 12.03.2016 parts of machinery was supplied. On 15.04.2016 after getting electric connection the machine was work with an electric motor. Motor manufactured at Coimbatore. As per the request of complainant after one month the motor was replaced. All the bricks were broken and the motor was not working. After about 40 days another motor was installed and it burned. Inspite of repeated request directly and through phone the machines were not installed as agreed. Opposite party had given warranty for one year. The machineries were not functioning properly. Complainant intended to start business for his livelihood.
Complainant had spent an amount of Rs.6,00,000/- for construction of the building and Rs.1,00,000/- for electric connection. About 20 packets of cement also became useless. Opposite party had promised that using the dye he can manufacture 6 inches and 4 inches hollow bricks. Due to the act of opposite party complainant sustained a loss of Rs.2,65,000/- being the value of machinery, Rs.7,00,000/- being the construction cost of building and installation of electric connection. Complainant sustained mental agony due to the act of the opposite party and seeking an amount of Rs.2,00,000 on that account. Hence the complaint is filed for realizing an amount of Rs.2,65,000/-, Rs.7,00,000/- and Rs.2,00,000/-.
2. Opposite party filed a version mainly contenting as follows:-
On 01.10.2015 an advance amount Rs.1,50,000/- was paid by the complainant for purchasing vibrator hollow brick making machine with full bag mixer machine from the opposite party. Even though advance amount was paid on 01.10.2015 the complainant agreed to pay off the balance amount of Rs.10,000/- on the date of delivery. Machinery was delivered for the full satisfaction of the complainant. But complainant did not pay off the balance amount. After delivery of the machine only complainant got electric connection. Opposite party displayed error free work of the machinery and the complainant was convinced. Instead of paying the balance amount complainant informed about the fault with the motor. On getting information opposite party deputed technician for repairs. It was informed by the technician that the error was due to water collected inside the motor when it was washed. Opposite party changed the motor by substituting a new one.
Without complying with the legal formalities such as getting sanction etc. from the authorities, the complainant started installation of machineries. Warranty period is one year and it expired. There is no legal obligation for the opposite party for the complaint made after the warranty period. This frivolous complaint is filed after a long period of two years. Complainant did not obtain no objection certificate to start the business. He might have sustained loss but this opposite party is not liable for the same. The complainant approached this Forum with this complaint on an experimental basis and hence it may be dismissed with cost.
3. On the above pleadings following points were raised for consideration:-
- Whether there was deficiency of service from the part of opposite party as alleged?
- Whether the complainant is entitled to realize an amount of Rs.2,65,000/- being the value of machinery supplied by the opposite party?
- Whether the complainant is entitled to realize an amount of Rs.7,00,000/- from the opposite party being the value of construction and amount incurred to obtain electric connection?
- Whether the complainant is entitled to realize an amount of Rs.2,00,000/- as compensation for mental agony ?
- Reliefs and costs.
Evidence in this case consists of oral evidence of PW1and PW2 and Exts. A1 to A8 from the side of the complainant and the oral evidence of RW1 and Ext.B1 to B7 from the side of the opposite party. Expert commissioner was examined as CW1 and the commission report was marked Ext.C1.
4. Point No.1 to 4
For the sake of convenience these points are considered together. Complainant filed an affidavit in tune with the complaint and marked Ext.A1 to A8.
PW2 filed an affidavit stating that he is working as an electrician. He had conducted the electric wiring at the factory of PW1 Varghese. Electric connection was obtained on 15.04.2016. Machineries were installed and trial run was conducted in his presence. They could install only 6 inch dye. Vibrator and motor were supplied later. The motor was not functioning properly and later it was burned. The motor was supplied after about 4 months and the hollow bricks were broken. The machineries were not functioning properly.
RW1 is the opposite party in this case. He filed an affidavit in tune with the version and marked Ext.B1 to B7.
CW1 was the commissioner in this case. He inspected the machineries at the premise of the company and prepared a report after noting the defects and it is marked as Ext.C1. There was some manufacturing defects and it is mentioned in C1 report.
PW1, complainant in this case purchased machinery for starting a unit of Hollow Bricks manufacturing company from the 1st opposite party. The total price fixed was Rs.2,75,000/- and out of which Rs.2,65,000/- was paid. The machinery was delivered at the premises of complainant by name M/s City Blocks. However it was found that the machinery was not working properly. On getting complaint the electric motor was changed. Inspite of that the unit was not working properly. Though several complaints were given to the opposite party there was no response and finally this complaint was filed claiming an amount of Rs.2,65,000/- being the amount given as value of machinery, Rs. 7,00,000/- being the amount incurred for construction of the building and obtaining electric connection. Complainant is also claiming an amount of Rs.2,00,000/- as compensation for mental agony. On getting notice opposite party filed a version contenting that an amount of Rs. 10,000/- is pending as balance and it was not paid. Complaints of the machinery were rectified for the satisfaction of the complainant. It was contented that the complaint was filed with false allegations with an intention not to pay the balance amount. Complainant got examined as PW1 and Ext.A1 to A8 were marked. One witness was examined as PW2. An expert commissioner visited the premises and inspected the machinery and prepared Ext.C1 report. Commissioner was examined as CW1. Opposite party was examined as RW1 and Ext.B1 to B7(a) were marked.
As admitted by opposite party PW1 booked machinery for the construction of hollow bricks for a price of Rs.2,75,000/- . It is also an admitted case that Rs.2,65,000/- was paid and the machinery was delivered at the premises of the complainant on 17/12/2015 as per Ext.B2 delivery note. According to PW1 the machine was not working properly from the installation itself and he was unable to make hollow bricks. The motor was not working properly. When he made complaint to RW1 the motor was replaced. However thereafter also machine was not working properly. PW1 gave evidence to the effect that the machine was not working properly and he could not make hollow bricks. Ext.A8 will show that he was having a license issued from the Aryad Grama Panchayath for the year 2015-2016 for making hollow bricks. PW2 who was examined from the side of the complainant stated that he had done the electrical installations at the building of PW1. He was present at the time when the machine was switched on and it was not working properly.
CW1 expert Commissioner inspected the premises on 22/10/2018 and prepared Ext.C1 report. As per Ext.C1 report the machines were assembled ones using several machine parts and so there was manufacturing defects for the machinery. The winding of the motor was burnt and the bearings of the machinery were also having complaints. According to him the alignment was not proper and it was a manufacturing defect of the machinery. Even if the bearings and motors are changed the machinery could not run satisfactorily since there was manufacturing defect. During cross examination of CW1 it was brought out that CW1 is not having technical qualification for inspecting the machinery. However he has stated that for the last 46 years his father is conducting a workshop and for the last 25 years he is also assisting him. Now he is the proprietor of M/s Kaniyamparambil industries, Alappuzha. So according to me even though CW1 is not having technical qualifications due to vast experience he may be able to inspect machineries and identify the defects. Even he stated that on the date of examination itself he was coming after rectifying the complaint of mixture machine. In the said circumstances according to us the contention of the learned counsel appearing for the opposite party that CW1 is incompetent to prepare Ext.C1 report is unsustainable. When examined RW1 admitted that he had supplied two dies having size of 4inches and 6 inches for the manufacture of hollow bricks. He got a complaint that the machineries are not working properly and then he sent technician. However after the supply of machinery he has not gone to the place of installation. He admitted that the machinery is not a branded one and it was assembled using parts of M/s Kirloskar Brothers and M/s Crompton Greaves company.
RW1 produced Ext.B4 to B7series documents to show that PW1 had not obtained No Objection Certificate from the State Pollution Control Board and that he has not renewed his license. It has come out in evidence that the machinery was not working properly from its installation itself. Ext.A8 will show that he had taken license for the year 2015-2016. Since the machinery was not working there is no purpose of license. Similarly only if the factory is working properly then only No Objection Certificate from Pollution Control Board, District Medical Officer etc are necessary. So the contention of the learned counsel appearing for the opposite party that complainant has not obtained No Objection Certificate from Pollution Control Board, District Medical Officer etc. are unsuitable.
From the evidence of PW1 and 2 it can seen that the machineries are not functioning properly. RW1 admitted that he has received an amount of Rs.2,65,000/- being the value of machinery and only an amount of Rs.10,000/- is due to him. RW1 also admitted that after the supply of machinery he has not visited the premises and he had sent his technician to rectify the mistakes. It has come out in evidence that the electric motor was not working properly and it was exchanged by RW1. So the available evidence will show that the machinery supplied by RW1 is not working properly and so PW1 could not continue his work. RW1 admitted that PW1 purchased the machinery for starting a company for his lively hood. If the machineries are not working properly PW1 will sustain heavy loss. As admitted by RW1 he has collected an amount of Rs.2,65,000/- being the value of the machinery. So it was his duty to see that the machineries are working properly after the installation. Here in this case according to PW1 he could not manufacture any bricks since it was being broken. So the evidence of PW1 and PW2 coupled with the Ext.C1 commission report shows that the machineries supplied by RW1 were defective. According to CW1 the expert commissioner even it cannot be repaired since the alignment of the machine was not proper. After supply of the machinery since it was not working properly it will amount to deficiency of service. Complainant is seeking an amount of Rs.2,65,000/- being the value of machinery. RW1 admitted that he had received an amount of Rs.2,65,000/- and Rs.10,000/- is remaining. Since the machineries were not working properly, complainant is entitled for refund of the same. Complainant is also seeking an amount of Rs.7,00,000/- being the amount spend for the construction of shed and obtaining electric connection. Evidence of PW2 shows that now complainant is doing business of coir. So the shed constructed by PW1 is now being used as a coir factory. In the said circumstances though Rs.7,00,000/- was spend by PW1 since it is now being used as a coir manufacturing unit RW1 has no liability to compensate the complainant. It was come out in evidence that PW1 purchased the machinery as per Ext.A3 bill on 17/12/2015 and he could not run the manufacturing unit due to defect in the machinery. In said circumstances definitely PW1 is entitled for compensation for his mental agony and we are limiting the same to Rs.25,000/-.
On a perusal of proceedings paper it is seen that the opposite party has made a major role in delaying the case. CW1 was examined on 19/5/2018 and thereafter the case was posted for opposite party’s evidence on 16/6/2018. Opposite party was examined only on 21/10/2020. Due to some or other reason the examination was delayed so as to protract the trial. Though proof affidavit was filed on 26/9/2019 on that day also opposite party was absent. On 25/1/2020 opposite party sought time for his presence and it was allowed on payment of Rs.500/-. On 12/3/2020 though the cost was paid on that day also opposite party was absent. In the said circumstances complainant is entitled for interest and cost of the proceedings. These points are found accordingly.
5. Point No.5
In the result complaint is allowed in part.
A. Complainant is allowed to realize an amount of Rs.2,65,000/- being the value of machinery along with interest at the rate of 9% from the date of complaint ie, on 1/3/2017 till realization from the opposite party. On realizing the amount the machineries supplied by opposite party will be returned to him.
B. Complainant is allowed to realize an amount of Rs.25,000/- on account of compensation for mental agony.
C. Complainant is also allowed to realize an amount of Rs.5000/- as cost from the opposite party.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 24th day of December, 2020.
Sd/-Sri.S.Santhosh Kumar(President)
Sd/-Smt. C.K.Lekhamma(Member)
Appendix:-Evidence of the complainant:-
PW1 - Varghese.C.J(Complainant)
PW2 - Sajimon.M (witness)
Ext.A1 - Statement of Account.
Ext.A2 - Voucher dtd.1/10/2015
Ext.A3 - Tax Invoice
Ext.A4 - Lawyers Notice
Ext.A5 - Caller details
Ext.A6 - Acknowledgment Receipt
Ext.A7 series - KSEB Bills.
Ext.A8 - License from Aryad Grama Panchayath.
Evidence of the opposite parties:-
RW1 - Hareesh Kumar(Opposite Party)
Ext.B1 - Tax Invoice
Ext.B2 - Delivery Note
Ext.B3 - Trial/Service/Repair Order
Ext.B4 - RTI letter dtd.13/11/2020
Ext.B4(a) - RTI reply letter dtd.28/11/2020
Ext.B5 - RTI letter dtd.13/11/2020
Ext.B5(a) - RTI reply dtd.28/11/2020
Ext.B6 - RTI letter dtd.13/11/2020
Ext.B6(a) - RTI reply letter from District Medical Office, Alappuzha
Ext.B7 - RTI letter dtd.13/11/2020
Ext.B7(a) - RTI reply letter from State Pollution Control Board
CW1 - Expert Commissioner
Ext.C1 - Commission Report
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Br/-
Compared by:-