KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

C.C No.124/2018

ORDER DATED: 08/07/2024

PRESENT:

COMPLAINANT:

(Party in person)

Vs.

OPPOSITE PARTIES:

                                            (by Adv. N.G.Mahesh)

ORDER

SRI. AJITH KUMAR D.: JUDICIAL MEMBER

This is a complaint filed by  Smt. Meenakumari against the opposite parties 1 to 3 alleging unfair trade practice and deficiency in service. 

2. The allegation contained in the complaint in brief are stated here under:-

  The complainant is running a business establishment under the name “Royal Foundary” at Chingavanam .For the expansion of the business the complainant had proposed to purchase a CNC milling machine and she obtained quotation from the 1^st opposite party, the manufacturer of the machine.  On perusal of the brochure supplied by the  opposite parties the complainant got satisfied with the machine bearing travelling length on X,Y and Z axis (X axis-1600mm, Y axis -910mm Z axis-810mm) as specified in the brochure supplied by the 1^st opposite party.  The 2^nd and 3^rd opposite parties are the Branch Manager and authorized dealer of the 1^st opposite party.  They had visited the establishment of the complainant and explained about the specifications and dimensions of the machine.  Ultimately the complainant had purchased a machine by availing a loan of Rs.57,37,509/- from the Chingavanam Branch of the Federal Bank.  The machine was installed at the premises for the complainant on 28/07/2016.  The complainant had noticed the malfunctioning of the ‘Y’axis of the machine.  The travel length of the ‘Y’axis is only 810mm with job against the promised length of 910mm as specified in the brochure.  The matter was informed to the opposite parties.  The 2^nd opposite party had assured that the defect will be rectified but requested the complainant to use the machine.  Thereafter the opposite parties had forwarded a modified cover to the complainant in the 1^st week of October 2016.  But the promised traverse length of 910mm could not be achieved and the complainant had visited the 2^nd opposite party at Coimbatore who promised the complainant that the issue will be resolved without any delay.  On 02/05/2017 the 1^st opposite party had sent another modified cover for curing the defects.  But the defect persisted.  So the machine was not commissioned.  Most of the work carried out by the complainant is of dimensions 1200mm X 900mm.  Since the promised traverse length has not achieved the complainant had to work in two settings which resulted in the consumption of extra energy and financial loss.  The complainant would allege unfair trade practice in supplying the machine which is contrary to the specifications.  She would seek for a direction to the opposite party to replace the machine or to refund the entire sale consideration of Rs.57,37,500/-.  She had also sought for Rs.3,00,000 as compensation for the mental agony and inconvenience caused .

3. The opposite parties had entered appearance and filed written version as follows:

4. The complaint is not maintainable as the complainant has approached this Commission with unclean hands by suppressing material facts. 

5. The complainant is not a consumer as per the Consumer Protection Act.  She is running a proprietory firm which cannot be legally considered as her profession for livelihood.   

6. The complainant had been using BMV 60 machine, manufactured by the 1^st opposite party since a decade.  For the expansion of her business of manufacturing of dyes by improving her production capacity the complainant had invited quotations from several manufacturers.  The complainant knows the quality of the machine manufactured and supplied by the opposite party.  So she had contacted the 2^nd and 3^rd opposite parties.  The complainant was given the details regarding the specification of BMV 70 plus machines available with the company.  It was also told that it’s a standard machine and not customized for the requirements of the complainant.

7. The complainant being a person involved in the field of dye making and a user of similar machines, it was after being convinced of the quality and specification of the machine and having made a thorough inspection of the machine at the premises of the opposite party at Bangalore by the technical team of the complainant and she purchased the machine.  The machine with the aforesaid specifications was accepted and verified by the complainant and successfully installed at her premises but she refused to sign the commissioning report on the pretext of not being able to use 910mm job size on the ‘Y’axis.  Such a specific requirement was never made by her.  The complaint was filed after two and half years after the installation and commissioning of the machine and she has been using the said machine continuously on day to day basis.  The machine was designed to have an actual stroke area of 910mm on the ‘Y’axis and it does have an actual stroke/traverse area of 910mm.  In spite of the unreasonable expectation of the complainant she purchased a machine after thorough verification by her own technical team, as a measure of goodwill the 2^nd opposite party had offered to replace the telescopically cover in the ‘Z’axis with a bellow so as to address the requirement of the complainant as far as possible.  This offer was also not acceptable to the complainant.  Her own admission is that more than the majority of her clients do work for the job height of less than 100mm.  Finally the engineers of the opposite party had designed and proposed a roll away cover to the complainant to remove the height restrictions in the bellow proposal.  On mutual consent the side plates were incorporated to address the issue of ingress of coolant and chips.    Thus with additional features the roll away cover was supplied and fitted on the machine as a token of   goodwill though the same was not included in the original specification and without collecting any additional amount.  An additional one year warranty was also provided for ‘Z’axis guide and ball screw over and above 2 years warranty.  Infact after  the modifications the complainant was getting 910mm effective use but she was not willing to accept the same stating that there was some openings in the new cover as not similar to the old cover.  There was no false promise made by opposite parties.  The instant complaint is an experimental measure with a view to extract money from the opposite parties.  The opposite parties denied the entire allegations of unfair trade practice and deficiency in service attributed in the complaint.

8. The complainant had appeared in person and contested the case.

9. No oral evidence was let in by both the parties. 

10. The complainant had filed affidavit in lieu of chief examination.  Ext.A1 to A10 were marked from her side.  The 2^nd opposite party had sworn an affidavit in lieu of chief examination.

11. Heard the complainant and the lawyer appearing for the opposite party.  Perused the case records.

12. The points which arise for determination are:

(i). Is there any unfair trade practice or deficiency in service on the                 

      part of the opposite parties as alleged in the complaint?

(ii) Whether the complainant is entitled to get replacement of the

                      machine or to receive the value of the machine as sought for?

 (iii) Whether the complainant is entitled to get any compensation and 

        if so what is the quantum?

     (iv). Relief and cost?

13. Points (i) to (iii):- The complainant had sworn the chief affidavit in support of the averments contained in the complaint.  Ext.A1 is the quotation issued by the opposite party on 05/03/2016.  According to the complainant the brochure and the specification pertaining to the machine proposed to be purchased were furnished by the opposite parties.  The brochure is marked as Ext.A2 and specification as Ext.A3.(A3 was referred as A2(a) in the chief affidavit )According to her the specification details with respect to the travel axis are written by the 2^nd opposite party.  Ext.A4 is the invoice dated 29/06/2016 issued by the opposite party.  The machine was installed at the premises of the complainant on 28/07/2016.Her grievance is that the ‘Y’axis could   function only at the distance of 810mm though it bears 910 mm in measurement .She informed the said complaint to the opposite party and in response to her complaint on 29/07/2016 the opposite party had sent an email that they will revert back after looking into the   issue for 910mm by stroke. This communication is marked as Ext.A5.  Subsequently on 26/09/2016 a modified cover was forwarded to the complainant, the transaction slip in this regard was exhibited as A6.  The complainant was not satisfied with the arrangement made by the opposite party so she had visited the office of the 2^nd opposite party at Coimbatore and thereafter on 02/01/2017 an email was sent by the 2^nd opposite party that they have ordered some items for the proposed modification and status report would be sent on 24^th of January.  Ext.A7 to A9 are subsequent emails sent by the opposite parties to the complainant.  They had fixed another device on the machine to resolve the inconvenience faced by the complainant in not operating the machine on its ‘Y’axis at a distance of 910mm.  Ext.A10 is the email sent by the complainant to the opposite party that the special over fixed on the machine was not suitable and hence the complaint was not ready to accept the remedial measures taken by the opposite parties

  14. Basing up on the aforesaid evidence the complainant would contend that there was unfair trade practice adopted by the opposite party in supplying a machine which is against the specification contained in the brochure supplied to her at the time of purchasing the machine. 

    15. The opposite parties would submit that there is no unfair trade practice or deficiency in service on their side on the reason that this particular machine is not a customized one suitable to the needs of the complainant and the complainant had visited their premises along with her team of technical experts and got convinced that the machine was suitable for their requirement.  According to the opposite parties there was no deficiency in the length of the ‘Y’ axis as shown in the specification.  As long as no change in the measurement of the axis one cannot contend that the opposite parties had supplied a machine against the specification contained in the brochure.  She would state that a distance of 810mm alone could be utilized for her manufacturing process.  For resolving this issue the opposite parties had already initiated steps.  As per Ext.A6 a device was sent to the complainant so that the defect projected by the complainant could be resolved.  When the complainant stated that the resolution made by the opposite party was not suitable they had purchased another device and fixed the same.  But according to the complainant the special cover provided by the opposite parties does not suit to her machine. Her further grievance was that no life time warranty was provided by the opposite parties. 

 16. On a careful consideration of the entire evidence on record it could be seen that there was no variations in the specification pertaining to the machine supplied.  It is also made out in evidence that the machine purchased by the complainant was not a customized one for the needs of the complainant so it’s up to the complainant to look into the matter and order the product.  When inconvenience faced by the complainant was brought to the notice of the opposite parties they had sent their experts and provided additional devices so as to enable the complainant to resolve the inconvenience.  Ext.A10 is the last communication sent by the complainant wherein she would allege that the cover provided by the opposite party was not suitable for the machine.  It is also stated that the coolant oil and chips were being entering in to the machine component through the holes in the cover but for resolving this issue side plates were provided by the opposite party on the ‘Z’ axis.  Though the complainant had requested to uninstall the special cover fixed on the machine there is no case for the complainant that the special cover supplied and fixed on the machine was subsequently removed.  The complainant has been using the machine without any break.  If her case is genuine one would expect the complainant to bring sufficient materials by seeking expert opinion.  A technical issue was raised by the complainant but there is no convincing evidence forthcoming.  The stand taken by the opposite parties that the resolution worked out by them has been utilized by the complainant who continues the work does appear to be probable.  An expert ought to have been deputed and report is made available to prove her contentions.  Though during the stage of arguments we asked the complainant as to why an expert was not deputed to her premises for proving her contentions she expressed her reluctance to take out a commission. On a careful consideration of the evidence on record it could be seen that the complaint has been using this machine day by day.  Her case is that she is incurring loss as the full traverse space on ‘Y’axis cannot be utilized. Though such a specific contention is raised no convincing evidence has been adduced.  No liability could be fastened on the opposite parties on the reason that there was no change in the specification of the machine supplied to the complainant.  There is no evidence to reach a conclusion that the opposite party had adopted any unfair trade practice on the complainant or there was any deficiency in service of the opposite parties.  So we have no hesitation to conclude that the complainant is not entitled to get any of the relief as sought for. Points are found against the complainant. 

                   In the result the complaint is dismissed.  Parties shall bear their respective cost.                                

R

APPENDIX

I         COMPLAINANT’S WITNESS :

 II      COMPLAINANT’S DOCUMENTS :

III      OPPOSITE PARTY’S WITNESS :

IV      OPPOSITE PARTY’S DOCUMENTS :