BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.409 of 2015

Date of Instt. 18.09.2015

Date of Decision : 20.07.2016

Sukhdyal Singh, Proprietor Big Rock Construction Company, VPO Kadianwali, Jalandhar.

..........Complainant

Versus

Anand Enterprises, Street No.3, Bachittar Nagar, Gill Road, Near GNDE College, Ludhiana, through its Partner Harinder Singh.

.........Opposite party

Complaint Under Section 12 of the Consumer Protection Act.

Before: S. Bhupinder Singh (President)

Sh.Parminder Sharma (Member)

Present: Sh.Amit Beri Adv., counsel for the complainant.

Sh.NS Toor Adv., counsel for the opposite party.

Order

Bhupinder Singh (President)

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act against the opposite party (hereinafter called as OP) on the averments that complainant purchased one fully automatic brick/block manufacturing machine from OP vide invoice No.938 dated 16.11.2014 for a sum of Rs.13,78,650/-. The said machine purchased by the complainant for earning his livelihood, so the complainant is covered under the definition of consumer as provided in Consumer Protection Act. Complainant submitted that the OP assured the complainant that the said machine is covered under warranty of one year and shall manufactured 3000 blocks per day and that machine is fully automatic. Complainant alleged that after two months of purchase, machine started malfunctioning. Whenever it was operated, there was breakdown such as chain failure, oil leakage, filter problem. Moreover, machine was also not fully automatic. The machine was producing 800 to 1000 bricks/blocks with full capacity as was assured 3000 bricks. Complainant lodged complaint with the OP number of times but the OP did not pay any heed to the request of the complainant. Complainant further submitted that he purchased the machine by taking loan from the bank and has been paying interest and installments. Complainant served legal notice dated 21.8.2014 upon the OP through registered post but in vain. OP has neither repaired the machine nor replaced the same with new one nor refunded the price of the amount. On such averments, the complainant has prayed for directing the OP to replace the machine with new one or to refund the price of the machine. He has also claimed compensation and litigation expenses.

2. Upon notice, OP appeared through counsel and filed a written reply pleading that machine was purchased at Ludhiana. So, this Forum at Jalandhar has no jurisdiction to try and entertain the present complaint. Machine was purchased by the complainant for commercial purpose i.e. for manufacturing of bricks which were to be further sold by the complainant for commercial purpose. So, the complainant is not consumer. OP is manufacturing fully automatic fly ash brick making machine which has distinguished technical specifications with a capacity to make 10 bricks per stroke. The said machine is standardized machine. Moreover, there is no complaint from any customer with regard to manufacturing as well as output of the said machine. Before purchasing the machine in question from the OP, the complainant approached the OP in the month of August, 2014 and the complainant was apprised of the complete knowledge of machine and its working. Complainant after fully satisfied with the information and technical knowhow qua running of the said machine, purchased the machine in question vide invoice dated 16.11.2014. The said machine is fully automatic machine having capacity to make 10 bricks per stroke. It is smooth working of the machine depends upon the quality and standard of the material required for making bricks and handling of the machine by expert workers, having technical knowhow to operate the said machine. The OP submitted that in-fact the complainant is not having prospective buyers for purchasing the bricks manufactured by the complainant and under- utilization of the machine in question for making bricks. The complainant is making false allegations against the machine in question as well as OP. Complainant never approached the OP regarding any defect in the machine. However, a legal notice was received from the complainant which was duly replied by the OP. OP submitted that machine is working properly. No complaint was ever reported by the complainant regarding the machine in question to the OP and the present complaint has been filed with ulterior motive.

3. In support of his complaint, learned counsel for the complainant has tendered into evidence affidavit Ex.CA alongwith copies of documents Ex.C1 to Ex.C4 and closed evidence.

4. On the other hand, learned counsel for opposite party has tendered affidavit Ex.OP/A and closed evidence.

5. We have heard the Ld. counsel for the parties, minutely gone through the record and have appreciated the evidence produced on record by both the parties with the valuable assistance of Ld. counsels for the parties.

6. From the record i.e. pleadings of the parties and the evidence produced on record by both the parties, it is clear that complainant purchased one fully automatic brick/block manufacturing machine from OP vide invoice No.938 dated 16.11.2014 Ex.C1 for a sum of Rs.13,78,650/-. Complainant submitted that OP assured the complainant that the said machine is covered under warranty of one year and shall manufacture 3000 blocks per day and that machine is fully automatic. Complainant alleged that after two months of purchase, machine started malfunctioning. Whenever it was operated, there was breakdown such as chain failure, oil leakage, filter problem. Moreover, machine was also not fully automatic. The machine was producing 800 to 1000 bricks/blocks at full capacity and not 3000 bricks as assured. Complainant lodged complaint with the OP number of times but the OP did not pay any heed to the request of the complainant. Complainant further submitted that he purchased the machine by taking loan from the bank and has been paying interest and installments. Complainant also served legal notice dated 21.8.2014 Ex.C2 upon the OP through registered post, postal receipt of which is Ex.C3 but in vain. OP has not replaced the machine with new one nor refunded the price of the machine. Learned counsel for the complainant submitted that all this amounts to deficiency of service on the part of the OP qua the complainant.

7. Whereas the case of the OP is that machine was purchased at Ludhiana. So, this Forum at Jalandhar has no jurisdiction to try and entertain the present complaint. Machine was purchased by the complainant for commercial purpose i.e. for manufacturing of bricks which were to be further sold by the complainant for commercial purpose. So, the complainant is not consumer. OP is manufacturing fully automatic fly ash brick making machine which has distinguished technical specifications with a capacity to make 10 bricks per stroke. The said machine is standardized machine. Moreover, there is no complaint from any customer with regard to manufacturing as well as output of the said machine. Before purchasing the machine in question from the OP, the complainant approached the OP in the month of August, 2014 and the complainant was apprised of the complete knowledge of machine and its working. Complainant after fully satisfied with the information and technical knowhow qua running of the said machine, purchased the machine in question vide invoice dated 16.11.2014. The said machine is fully automatic machine having capacity to make 10 bricks per stroke. Smooth working of the machine depends upon the quality and standard of the material required for making bricks and handling of the machine by expert workers, having technical knowhow to operate the said machine. The OP submitted that in-fact the complainant does not have prospective buyers for purchasing the bricks manufactured by the complainant. So, due to under utilization of the machine in question, the complainant is making the false allegations against the machine in question as well as OP. Complainant never approached the OP regarding any defect in the machine. However, a legal notice was received from the complainant which was duly replied by the OP vide reply dated 4.9.2015 Ex.C4. Learned counsel for the OP submitted that machine is working properly. No complaint was ever reported by the complainant regarding the machine in question to the OP and the present complaint has been filed with ulterior motive. There is no deficiency in service on the part of the OP qua the complainant.

8. From the entire above discussion, we have come to the conclusion that complainant purchased the aforesaid machine from the OP vide invoice Ex.C1 dated 16.11.2014 for a sum of Rs.13,78,650/- which was installed at VPO Kadianwali, Jalandhar by the OP. So, this Forum at Jalandhar has territorial jurisdiction to try and decide the present complaint. Complainant has purchased the machine to earn his livelihood by preparing fly ash bricks. Complainant has also alleged that he has been earning his livelihood by operating this machine, as such complainant fall under the definition of consumer under the Consumer Protection Act.

9. As regards the functioning of the machine, complainant purchased this machine from the OP on 16.11.2014 vide invoice Ex.C1. Complainant has submitted that the OP has given one year warranty and assured that it shall manufacture 3000 bricks/block per day but complainant could not produce any documentary evidence to prove that there was one year warranty of the machine or that the said machine will manufacture 3000 bricks/block per day. Complainant further alleged that after two months of purchase, the machine started malfunctioning i.e. whenever it was operated, there was breakdown like chain failure, oil leakage, filter problem. Moreover, machine was also not fully automatic and that it was manufacturing only 800/1000 bricks/blocks at full capacity. But the complainant could not produce any evidence in the form of complaint he has ever lodged to the OP nor complainant has filed affidavit of any expert/mechanic to prove that the machine was suffering from any defect like chain failure, oil leakage, filter problem, etc or that it was not fully automatic. Complainant also could not produce any documentary evidence in the form of brochure or pamphlet or advertisement made by OP regarding this machine to prove that the OP assured that the machine will manufacture 3000 bricks/blocks per day. Complainant has not mentioned any day, date, month or year when he lodged any complaint with the OP regarding any defect in the machine. Complainant has only served legal notice dated 21.8.2015 Ex.C2 to the OP in which he has lodged aforesaid allegations regarding the machine in question. The said legal notice was duly replied by the OP in the form of legal reply dated 4.9.2015 Ex.C4 in which the OP has categorically stated that the OP is manufacturing fully automatic fly ash brick making machine i.e. machine in question, it has distinguished technical specifications with a capacity of making 10 bricks per stroke. The said machine is standardized machine. Machine was purchased by the complainant from the OP on 16.11.2014 and prior to that complainant approached the OP in August, 2014 and he got complete knowledge of the machine and its working and after being satisfied, obtained the quotations from the OP and thereafter he purchased the said machine from the OP vide invoice dated 16.11.2014 Ex.C1. Complainant got installed the said machine from the OP and he was fully satisfied with the working of the said machine and since the installation of the said machine, complainant never made any complaint of any kind with regard to the working and production of the said machine, to the OP. The OP did not give any assurance of warranty nor assured the complainant that it will manufacture 3000 bricks/blocks per day as alleged by the complainant. Rather, complainant never lodged any complaint with the OP regarding the machine in question and he filed the present complaint without proving any defect what to speak of any manufacturing defect in the machine in question. Complainant could not rebut this reply filed by the complainant to the legal notice served by the complainant upon the OP which has been duly proved by the OP vide their affidavit Ex.OP/A.

10. So, from the entire above discussion, this Forum has come to the conclusion that complainant has failed to prove on record any deficiency of service on the part of the OP qua the complainant. Resultantly, we hold that complaint is without merit and same is hereby dismissed with no order as to cost. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Parminder Sharma Bhupinder Singh

20.07.2016 Member President