SMT. RAVI SUSHA: PRESIDENT

            Complainant filed this complaint against OP seeking to get an order directing OP to take back the fake JISUNG Hydraulic Rock Breaker and refund its full cost of Rs.3,50,000/-  with 18% interest from the date of purchase, and compensation or Rs.1,00,000/- towards deficiency of service.

          The case of complainant is that the complainant is doing the business of laterited stone quarry as a self-employment.  So the complainant used to purchase various types of excavation machines and other machineries for his employment purpose.  Meanwhile from various Medias and advertisements, the complainant came to know that JSC Co. Ltd. formerly known as Jisung Heavy Industries Co. Ltd is the well-known manufacturer of Hydraulic Rock Breaker for the fittings of JCB JS 81 EXCAVATOR MACHINE.  Believing the words of said marketing agent of OP that OP is the sub dealer of the complainant a placed an order for a Hydraulic Rock breaker wit all accessories for the fittings of his JCB JS 81 EXCAVASTOR Machine.  There after the OP personally approached this complainant on 10/09/2020 and he received an advance payment of Rs.1,50,000 and gave a receipt to the complainant.  The complainant submit that on receipt of the Hydraulic Rock Breaker from the OP, after payment of Rs.3,50,000, a thorough checking of the  machinery  has been carried out an d it revealed that the said product is not the original Hydraulic Rock Breaker of JSC Co. Ltd. formerly known as Jisiung Heavy indudtries Co. Ltd.  It is confirmed that the said machinery is a fake Jisung Hydraulic Rock Breaker imported from China, without the official trade mark of the original company.  The complainant submits that the machine supplied by the OP is a fake one and not at all served the purpose for which it is purchased.  Hence the amount spent by the complainant for its purchase has become a sheer waste of money and efforts.  The complainant approached the OP for number of times for replacing the machine, but the company has no intention to replace the faulty machine or to compensate the complainant.  On 23/01/2021 the complainant was caused to send registered lawyer notice to the OP to take back the fake Jisung Hydraulic Rock Breaker and refund its full cost of Rs.3,50,000/- with 18% interest from the date of purchase, with compensation of rS.1,00,000/- and Rs.5,000/- as cost of said lawyer notice.  After getting the notice, the respondent sent a reply notice, denying the entire averments in the notice.  Hence this complaint.

            After receiving notice, OP entered appearance through counsel and filed written version stating that the complainant personally approached this OP for a Hydraulic Rock Breaker under the brand name Jisung SB 43 and accordingly this OP supplied a Hydraulic Rock breaker under the brand name Jisung – SB 43 to the complainant.  This OP submits that MLT Engineers Pvt. Ltd., Chennai are the only company having the trade license to sell Jusung Hydrualic Rock breaker.  Machine supplied by this OP is a fake one and not at all served the purpose for which it is purchased is not correct.  It is true that the complainant has issued a registered lawyer notice to this OP and this OP has send a reply raising true and correct facts.  This OP submits that the product supplied to the complainant was having warranty and as per the terms of the warranty if the customer dismantles the product by any third party the warrant ceases.  This OP submits that the complainant has dismantled the product by some unknown person and as a result the warranty granted to the complainant’s product has ceased.  This OP submits that there is no unfair trade practice on the part of this OP and the machine supplied to the complainant is the machine that has been placed orders by the complainant.  Hence, prayed for the dismissal of the complaint.

            At the evident stage, complainant has filed his chief affidavit and relevant documents to establish his case.  He was examined as Pw1 and the documents got marked as Ext.A1 to Ext.A6. While pending of this complaint, complainant has taken steps to appoint an expert commissioner to inspect the machine in dispute and to prepare a report, which was allowed and Mr. Shijith Manlyah, Assistant Professor, Department of Mechanical Engineering Govt. College of Engineering, Kannur was appointed and direction was given to inspect the subject Machine and to prepare report as per the  work memo submitted by parties and report its present condition. As per the direction, the expert commissioner visited the site and conducted inspection in the presence of both parties and their advocates.  After inspection the commissioner has filed a detailed report with photos of the machine.  Marked as Ext.C1.  Though OP filed objection to the expert report, OP has not taken any steps to examine the expert commissioner to discard the observations made by the expert commissioner.  Hence Ext.C1 report can be taken as an unchallenged document.   

            Here the undisputed facts are purchase of machine by complainant from OP on 19/09/2220 and paid a total sum of Rs.3,50,000/- to OP.

            Complainant alleged that the product supplied by OP is not the original Hydraulic Rock Breaker of JSC Co. Ltd. as ordered by the complainant.  According to complainant, the machinery supplied by OP is a fake Jisung Hydraulic Roack Breaker imported from China without having the official trade mark of the company and supplied product to serve the purpose for which it is purchased.

            The allegation raised by the complainant is totally denied by OP, stating that the complainant has placed order for Jisung SB 43 Breaker and the same product has been supplied by them to the complainant.  According to OP the machine supplied by the OP is not a fake one and the allegation of the complainant that it does not serve the purpose for which it is purchased is not correct.

            Complainant has tendered evidence in tune of his averment in the complaint.  On the side OP two witnesses were examined including OP.  On analyzing the evidence of OP (Dw1) it is revealed that he is the manager of OP No.1 shop.   During cross-examination, he has admitted that from Ext.A2 it is not revealed that OP No.1 sold the product of Jisung Heavy Industries Company, to the complainant.  Further, stated that if they sold Jisung company product, name of company should have mentioned in the Tax invoice.  Further stated that in page (3) “A1 ലോ     A2 വിെൻറ അകത്തോ B1 ൽ പരാമർശിക്കുന കമ്പനിയെ ആണ് ചുമതലപ്പെടുത്തിയത് എന്ന് കാണില്ല?(Q)  (A) ശരിയാണ്.

            Another witness is Mr. R Rathinaveli authorized person through Dw2, OP has proved that XLT Engineers is the marketing Agency of Jisung brand product.  The Trade marks registry is marked as Ext.B1.    Dw2 deposed that OP is the marketing agency of Jisung brand product in Kerala.  The certificate is marked as Ext.B2.  Ext.B3 is the original Invoice to show the supply of Hydraulic Rock Breaker Assy Jisung JSB 435 to OP Company by CLJ Engineering Pvt. Ltd.  Though he has given such evidence, it is not proved that he is the manager of  CXLT Engineering Pvt. Ltd. by submitting his ID card etc.  OP has taken steps to examine the MD of the XLT Engineering Pct. Ltd, more over Dw2 deposed that he does not know about to whom OP had made the sale of the product mentioned in the Ext.B3.  Hence though OP has examined Dw2, they could not prove the fact that the product mentioned in Ext.B3 had been sold to the complainant.

            In the above stated circumstance, the report submitted by the expert has to be given substantial value as the expert appointed is a competent man ie the mechanical Engineer.  He has submitted a detailed report and for each point, photograph of the particular part of machine is also attached.  The expert has observed that “the machine is not in working condition and  could not serve its purpose.  As per the tax invoice of M/s Saimons Hydro solution (invoice No.S/20-21/07, dated 19/09/2020- copy attached, Annexure 4) the serial number of the machine is mentioned as SB43YFK0511.  But unable to identify the above number on machine.  He has shown another number SB43H1911321. Which is a machine punched number on the same machine, which might be its original serial number.  OP had shown some vague numbers on cylinder part of the machine.  Which is not a machine punched number and it’s not able to read.  He did not see any ‘Jisung’ brand name or SB43’ product name or any othe ‘log punching’ on machine.  I had seen some black and red paint marks, which might be some ‘English letters’.  He requested Mr. Arun Salim Simon (OP/Product supplier) to send the brochure of the machine – Hydraulic Rock barker Assy – SB43 during the inspection.  But OP had send the brochure of another machine Jisung JSB 43S only, which may be different from SB43.  So he is unable to compare other specifications.  He opinioned that he felt it as a ‘newly painted-Hydraulic Breaker supplied, which is not having any machine punched ‘serial number’ mentioned in the tax invoice.  The machine is not in working condition.”

            After filing C1, OP filed objection stating that the machine inspected by the expert is a different one that supplied by OP.  This contention could not be accepted, because, inspection conducted in the presence of both parties and their counsels.  If the inspected machine as a different one, OP and his counsel could have objected and could have compelled the expert to report in Ext.C1.  No such incident was happened.  So the said objection raised by OP does not carry any importance.

            Since there is no material evidence to discard Ext.C1, we have taken it as an authenticated document to find out its originality and working condition of the machine.

            Considering the entire facts and circumstances of this case, we are of the considered opinion that OP has been held guilty of unfair trade practice.  So OP is liable to pay the value of the product in dispute with compensation.

            In the result complaint is allowed in part.  OP is directed to pay Rs.3,50,000/- with 4% interest from the date of complainant ie 28/10/2021 till realization and also pay Rs.25,000/- towards compensation to the complainant within one month from the date of receipt of this order.  Failing which Rs.3,50,000/- carries interest @12% per annum from the date of complaint till realization.  Complainant can execute the order as per the provision in Consumer Protection Act 2019.

Exts.

A1- Offer and warranty card

A2- Tax invoice

A3- Receipt

A4- Lawyer notice

A5- Postal receipt and Acknowledgment card.

A6-Reply notice

C1-Expert report commission

B1-Trade mark certificate of registration (subject to proof)

B2-Certificate issued by XLT Engineers Pvt. Ltd. (subject to proof)

B3- GST Invoice (photocopy) (subject to proof)

B4-Photocopy of tax invoice (subject to proof)

PW1-Chandrabeth Manoharan-Complainant

Dw1-Arun Salim-OP

Dw2-R Rathnaveli-Witness of OP

     Sd/                                                                                  Sd/                                                        Sd/

PRESIDENT                                                                 MEMBER                                               MEMBER

Ravi Susha                                                               Molykutty Mathew                                     Sajeesh K.P

(mnp)              

                                               /Forwarded by order/

                                                 Assistant Registrar