This case has been remanded back by the Hon’ble State Consumer Disputes Redressal Commission, Chandigarh vide order dated 11th February 2016 for deciding the same on merits by proceeding in accordance with the provisions of the Consumer Protection Act, 1986.

2.           Complainant National Plastic Industries Pathankot through its Partner Harjinder Singh through the present complaint filed under Section 12 of the Consumer Protection Act, 1986 (for short, ‘the Act’) has prayed that the opposite party be directed to pay Rs.5,95,000/- alongwith 12% interest from the date of filing of the complaint till realization, in the interest of justice.

3.    The case of the complainant in brief is that he is partner of small firm which deals with the small business of producing PVC garden pipes. For the said purpose he had purchased an Extruder garden pipe producing machine for a sum of Rs.9,82,803/- from the opposite party vide bill dated 27.12.2011. He had paid a sum of Rs.89,976/- as duty on the said machine and opposite party had assured him that the said machine will satisfy his business purpose namely production of plastic garden pipes. Opposite party has also given two years warranty qua the said machine. The said machine was purchased by him exclusively for the purpose of his livelihood and he had employed only one helper for the above said purpose and as such he is the consumer of the opposite party. It is next pleaded that the opposite party had also deputed its technician Mr.Partap Thakur to operate the above said machine in his premises in Gurdaspur. He had also given the sale consideration in the form of cheque to him in Gurdaspur. However, said technician of opposite party had failed to operate the machine on the very first day and requested him that he will depute some another operator for the said purpose. The night staying charges including food and accommodation of the said technician were borne by him. It is further pleaded that opposite party deputed operator one after the other to operate the machine in question but they were unable to operate the same as per his requirement and business purpose. At last, the opposite party advised him to engage some local experienced mechanic to operate the same. He being helpless toed the line of opposite party and engaged a technician Mr.Shiv Kumar from Delhi by spending a sum of Rs.25,000/- from his own pocket who apprised him that there was technical fault in the machine and some of its parts needed replacement with new ones. He appraised the above said fact to the opposite party who consented for the same and bound himself to bear the expenses of the replaced parts alongwith expenses of the technician Mr.Shiv Kumar. He after spending Rs.2,70,000/- approximately got replaced the parts namely conveyer, motor penal, screw, die head set of the machine with new ones and paid transportation and freight charges in order to satisfy the objective of the machine to produce garden plastic pipes and in this way suffered huge financial loss to the tune of Rs.4 Lacs because due to non operation of the machine several tons of his raw material was wasted besides unnecessary consumption of the electricity within a period of 4 months time besides accrual of labour charges. In this respect, he apprised the opposite party through E-mails dated 19.1.2012, 15.3.2012, 28.3.2012, 30.3.2012, 31.3.2012, 1.4.2012, 7.4.2012 and 21.4.2012. Thereafter, he asked the opposite party to pay to him the charges of Rs.25,000/- incurred on technician and Rs.2,70,000/- spent on replacement of spare parts besides Rs.4 Lacs as financial loss on account of wastage of material etc. but the opposite party resiled from his promise and has paid only Rs.1 Lac which clearly amounts to deficiency in service on the part of the opposite party which has given rise to the instant complaint. Hence this complaint.  

4.       Case has been received by remand. Case called several times but none had come present on behalf of opposite party, therefore, opposite party was proceeded against exparte vide order dated 30.03.2016.

5.       In the exparte evidence complainant’s partner has tendered his own affidavit Ex.C1, affidavit of Er. Arun Nanda Ex.C2, affidavit of Harpreet Singh Ex.C3 and affidavit of Inderpal Singh Ex.C4, alongwith other documents Ex.C5 to Ex.C-33 and closed evidence.

6.       The present complaint has been remanded back (to us for adjudication on merits) by virtue of the orders dated 11.02.2016 of the honorable Punjab State Commission, Chandigarh in FA # 580 of 2013 setting aside this Forum’s Orders dated 28.03.2013 in CC # 312 of 2012 dismissing the same on technical grounds of ‘absence’ of forum’s territorial jurisdiction. Thus, we, in compliance to the above referred orders of the honorable State Commission, proceed ahead with the present adjudicatory.

7.       We have carefully examined all the documents/evidence produced on record for their respective statutory merit and have also duly heard & considered the arguments as put forth by the learned counsel for the present complainant. Incidentally, the opposite party vendor who had preferred ‘ex-parte’ proceedings (in CC # 312 of 2012) before the Forum but had dutifully appeared before the honorable State Commission (in FA 580 of 2013) has somehow again preferred to go ‘ex-parte’ during the conduct of the present proceedings. No doubt, we are quite aware of the legally acceptable ‘judicial presumption’ (rather discretion) that the ‘ex-parte’ defendant has no legs to come to the ‘witness-box’ to plead his defense. Of course, we are also aware too of the ‘maxim’ that all ‘discretion’ shall be but ‘judiciously’ exercised.           

8.       We find that the present complaint was raised/ prompted at the mal-function (non-function) of the OP vendor’s supplied ‘Extruder Machine’ at complainant’s factory premises (at Gurdaspur) and subsequently ‘much’ additions/modifications had to be undertaken to make the same functional. The 4 nos. of affidavits (Ex.C1 to Ex.C4) do expressly prove the executed ‘modifications’ in the Machine in question and thus impliedly prove the ‘need & necessity’ for execution of the same to make it functional. It has also been further assessed (deposed) in the above 4 nos. of affidavits that the ‘executed’ modifications executed in the Machine (in question) must have incurred Rs.2.70 Lac to the complainant. The complainant has also duly submitted Bills/ Invoices for Rs.2.70 Lac for purchase of machinery parts etc purchased for execution of the said modifications in the Extruder Machine besides other misc expenditure enhanced to Rs 4.0 Lac. Finally, the complainant has alleged having received Rs One Lac only from the OP vendor who had consented to the necessary modifications etc at his cost, to make the machinery functional.

9.       We repeat here the evidence/documents as reproduced by this forum in its orders dated 28.12.2013 and also by the honorable State Commission in its orders dated 11.02.2016. The complainant has produced documents exhibited as Ex.C1 to Ex.C33 to prove the allegations as put forth in the complaint besides 4 nos. of affidavits by the eligible deponents. Interestingly, no pre-modification estimates/technical feasibility of the Extruder Machine in question have been placed on records in support of the allegations etc. Thus, the entire documentary evidence including the depositions etc pertain to the post-modification status of the Machine and no pre-modification mal-functional performance ‘status’ of the Machine (in question) has been produced on the records of the proceedings.

10.     We judicially deduce that the complainant has somehow produced only the post-modification expenses Bills/Invoices etc but has failed to produce any pre-modification estimates and requisite technical reports etc and that does in no way binds the OP vendor to fully reimburse the incurred expenses. We also find that the complainant has purchased some ‘old-machinery’ for getting ‘spare-parts’ etc and as such the left-out ‘machine-parts’ etc are capable of ‘re-sale’ as old machinery and ‘junk’ scrap etc partly reimbursing the cost of executing modifications etc. Thus, in our considered opinion an amount of Rs.2.0 Lac shall be a fair and judicious reimbursement to the modification expenses incurred by the complainant besides a fair compensation for ‘harassment’ meted out at the hands of the OP.  

11.     In the light of the all above, we partly allow the present complaint and thus ORDER the opposite party vendor to pay Rs 2.0 Lac(Two Lac) as cost of the modifications etc executed to the Extruder Machine (to make it functional) to the complainant besides to pay him Rs.10,000/- as cost and compensation within 30 days of the receipt of the copy of these orders otherwise the net awarded amount shall attract interest @ 9% PA from the date of orders till actual payment. The OP vendor shall however be entitled to deduct the already paid amount of Rs. one lac only (from the gross awarded amount) and that shall also not attract any interest, of whatsoever.

12.      Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to records.

                   (Naveen Puri)

                                                                                      President   

Announced:                                                             (Jagdeep Kaur)

May,11 2016                                                                    Member

*MK*