By Jayasree Kallat, Member:

            The complainant, Mr. Abdulla had purchased one De-stoner machine.  The De-stoner was to be used in the rice mill run by the complainant as self employment for his livelihood.  At the time of purchase opposite party has assured that 250 Kgs. of rice will be cleaned within one hour by using the machine.  But the machine when operated the complainant could not get even 50 Kgs. of rice cleaned within one hour.  The complainant had approached the opposite party regarding this complaint several times.  Opposite party did not give any proper reply.  The machine has become useless.  The complainant had filed the petition alleging deficiency of service on the part of opposite party and seeking a direction to the opposite party to make the machine defect free along with compensation.

            Opposite party-1 filed a version denying the allegations in the complaint except those that are expressly admitted.  Opposite party-1 has taken the contention that the complainant is not a consumer as contemplated under the Consumer Protection Act.  The complainant had purchased the De-stoner machine manufactured by the second opposite party from the first opposite party for doing commercial activities.  Thus this matter will not lie before the Consumer Forum.  Opposite party-1 is only an agent and distributor of different kinds of industrial machineries.  Opposite party-1 is also dealing with the mini grain cleaning machine manufactured by the second opposite party.  Much after the purchase the complainant had made a complaint regarding alleged improper functioning and lack of optimum capacity.  For this purpose the complainant has to approach the manufacturer for repair and services.  Opposite party-1 has not offered any warranty or guarantees.  There is no maintenance contract between the complainant and opposite paprty-1.  For this reason the opposite party-1 is not liable and responsible for the relief claimed in the petition.  Hence opposite party-1 prays to dismiss the complaint with awarding cost to opposite party-1.

            Opposite party-2 filed a version denying the averments in the petition except those that are expressly admitted.  There is no privity of contract between the complainant and opposite party-2.  Opposite party-1 from whom the complainant purchased the De-stoner machine is not a dealer or agent of opposite party-2.  Opposite party-2 is doing business at Coimbatore in Tamil Nadu only.  The complainant has not purchased any goods from opposite party-2.  The allegation in the complaint as to the purchase of the machine from the first opposite party and price paid etc. are not known to opposite party-2.  Opposite party-2 admits that they are manufacturing mini grain cleaning machine.  The machine is intended to remove stones, dust and broken grain,  from all types of grains like rice, wheat, maize. Remove stones, dust and broken grain from whole grains.  As opposite party-2 has not sold any machine to the complainant,  there is no deficiency of service from the part of Oppositeparty-2.  Opposite party-2 is not liable either to repair or pay the price of the machine.  Opposite party-2 is also not liable to pay any compensation or cost to the complainant.  Opposite party-2 prays to dismiss the complaint with compensatory cost to opposite party-2.

            The points for consideration is (1)  whether the complainant is a consumer or not? (2)  Whether the complainant is entitled for any relief?

            The complainant was examined as PW1 and Ext.A1 to A3 were marked on complainant’s side.  Expert report is marked as ext.X1.  No evidence was adduced by opposite parties.

Point No.1:-    

            Opposite party-1 has raised the contention in their version that the complainant is not a consumer as contemplated in the Consumer Protection Act because the complainant has purchased the De-stoner machine for commercial purpose to run his rice mill.  The complainant has given the explanation that he was running the rice mill as self employment for his livelihood.  The De-stoner machine was purchased for using in the mill for the same purpose.  The Forum is convinced that the complainant was running the rice mill as self employment for his livelihood.  Hence the complainant will come under the purview of Consumer Protection act.  Point No.1 is proved.

Point No.2:-

            The case of the complainant is that he was running a  rice mill as self employment for his livelihood.  During February 2005 complainant had purchased a De-stoner machine to use in his mill.  After 10 months of purchase the De-stone machine became defective.  According to the complainant while purchasing opposite party-1 had assured that at least 250 Kgs. Of grains can be cleaned within one hour using the De-stoner machine.  But the complainant could clean only 50 Kgs. of grains per hour.  The complainant had reported the defect to opposite party-1 the dealer.  Opposite party-1 directed the complainant to approach opposite party-2, the manufacturer to get the machine repaired.  The case of the complainant is that neither opposite party-1 nor opposite party-2 has responded to the complaints made by the complainant.  The opposite parties did not make the effort to rectify the defects.  Complainant had filed a petition to appoint an expert and attain a report regarding the defective working of the De-stoner machine.   As a result expert N.M. Ajithkumar, Lecturer in Mechanical Engineering, Kerala Government Polytechnic, Kozhikode has filed a detailed report which is marked as Ext.X1.  In the Ext.X1 report the expert has stated that Mr. Abdulla has not produced any evidence to learn the capacity of the machine, operating conditions, the technical details of machine and the maintenance schedule.  According to the expert all these factors have a vital role in ensuring efficiency of a machine at an optimum level.  Expert has also stated that Mr. Abdulla has not produced any evidence relating to the feeding rate of rice and number of times to ensure that the method followed by him was as per the instructions of the manufacturer.  If an operator does not follow the right method of operation we cannot expect the optimum efficiency of machine.  It is to be maintained properly as per the instructions of the manufacturer.  Expert has also concluded that the function of the machine was satisfactory at the time of installation.  According to the expert the fall in capacity to clean/removal, of stones from rice, satisfactorily from 250 Kg. per hour to less than 150 Kg. per hour within a service period of 10 months cannot be justified.  Accepting the expert’s report the Forum is of the opinion that the complainant was not able to prove his case and ascertain that there was any defect in the De-stoner machine.  Hence we are of the opinion that the complainant is not entitled for any relief.

            In the result the petition is dismissed.

Pronounced in the open court this the 18th day of March 2010.

                        Sd/- PRESIDENT                    Sd/- MEMBER                        Sd/- MEMBER

APPENDIX

Documents exhibited for the complainant:

A1.  Photocopy of Quotation dt. 7-7-04 issued by 1^st O.P. to the complainant.

A2.  Photocopy of receipt dt. 16-9-04. issued by 1^st O.P. to the complainant

A3.  Photocopy of Invoice dt. 27-1-05 issued by 1^st O.P. to the complainant.

Documents exhibited for the opposite party.

                        Nil

Witness examined for the complainant:

PW1.  Abdulla (Complainant)

Witness examined for the opposite party.

                        None.

X1.  Expert Report dt. 15-9-08.

                                                                        Sd/- President

                                    // True copy //

(Forwarded/By order)

SENIOR SUPERINTENDENT.