Ms.Rachna Arora,  Member

1.       The complainant has brought the instant complaint under section 11 & 12 of the Consumer Protection Act, 1986 on the allegations that the complainant is running his business under the name and style of Deep Floor Mills, Amritsar for earning his livelihood and the complainant purchased one Collar Type pouch packing machine for pulses and spices for own use from the Opposite Parties for a valuable consideration of Rs.4,25,000/- with one year warrantee regarding any kind of defect occurred in it. At the time of sale, the Opposite Party No. 2 gave false assurance to the complainant that it is a very good machine and there is no problem in it and it is a brand new one, but when the complainant received the said machine at Amritsar, he found that so many parts of the machine were missing. The complainant immediately called the Opposite Parties and apprised them about the missing parts of the machine and the Opposite Parties also admitted that those parts were not sent by them alongwith the machine  as these are very important and costly parts i.e. conveyor belt and feeder and they also apprised that they will send their engineer alongwith these parts who will apprise the complainant as to how these parts will install in the machine and how to operate the machine. But lateron the complainant received a telephone call from the Opposite Party  stating that the above said parts are not included in the said machine and the complainant will have to purchase these parts separately by giving extra money to the Opposite Parties. The complainant requested the Opposite Parties to send these parts  as these are part and parcel of the machine and said machine will not operate without the parts and even otherwise the amount was already paid by the complainant to the Opposite Party  which include the costs of these parts  also but of no avail.   The complainant requested the Opposite Parties so many times to accede his genuine request to send those parts of the machine by way of writing complaints to them. Thereafter, in response of the complaints, the Opposite Party  sent their engineer who inspected the machine and found that there is some technical problem in the computer system of the said machine and said engineer also told the complainant that the said machine is having inherent defect and even otherwise he can not run the machine in absence of conveyor belt and feeder. The complainant requested the Opposite Parties to install the machine properly and even otherwise the Opposite Parties are under obligation to install the machine with all the parts especially when the complainant made the entire payment of the said machine including its parts, but of no avail. Ultimately, the complainant sent a legal notice dated 14.8.2015 to the Opposite Parties calling upon them to refund the amount to the tune of Rs.4,25,000/- paid by him to the Opposite Parties, but the Opposite Parties did not any heed to the genuine and legitimate request of the complainant. In this way, the Opposite Party  have sold an inferior quality product on higher rate by giving false assurances. In this way, there is great negligence, gross carelessness, and Unfair Trade Practice on the part of the  Opposite Parties.  Vide instant complaint, the complainant has sought the following reliefs.

a)       Opposite Parties be directed to refund the amount to the tune of Rs.4,25,000/- i.e. the amount of the machine.

b)      Compensation to the tune of Rs.50,000/- be also awarded to the complainant which complainant suffered on account of mental tension, pain and harassment.

c)       Costs of the litigation be also awarded in favour of the complainant.

Hence, this complaint.

2.       Upon notice, opposite parties appeared and contested the complaint by filing  joint written statement taking preliminary objections therein inter alia that  the present complaint is baseless and flagrant abuse of process of law to harass and blackmail the Opposite Parties as not a single complaint has been received by the Opposite Parties during the warranty period, as the machine was supplied on 20.5.2014 and warranty expired on 19.5.2015, but the legal notice was issued to the Opposite Parties much later the expiry of warranty period and there is no written or oral complaint during that period. The complainant has not complained any type of the complaint regarding manufacturing defects or otherwise during the warranty period, although, if any, the complaint made by the complainant which the Opposite Parties have repaired the defects. It is submitted that the Opposite Parties sold one collor type PLC base packing machine to the complainant on 20.5.2014 and the said machine was sold with one year warranty against Manufacturing defects to the complainant. Thereafter, the Opposite Parties installed the machine by ending their mechanical engineer in the premises of the complainant and the complainant did not take proper care after installation of the machine, which is a mandatory requirement during the operation of the machine. Thereafter, as and when the service engineer of the Opposite Parties visited the complainant premises to attend the machine, the complainant never made any complaint regarding the manufacturing defects in the machine. On merits, the Opposite Parties took same and similar pleas as taken up by them in the preliminary objections. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.

3.       In his bid  to prove the case, complainant tendered into evidence  affidavit Ex.CW1/A in support of the allegations made in the complaint and also produced copies of documents Ex.C1 to Ex.C5  and closed his evidence.

4.       On the other hand, to rebut the evidence of the complainant, the Opposite Parties tendered into evidence the affidavit of Sh.R.D.Singh, Managing Director Ex.OP1,2/1 alongwith copy of document Ex. OPW/1 and closed the evidence on behalf of the Opposite Party.

5.       We have heard the ld.counsel for the parties and have carefully gone through the evidence on record.

6.       The complainant has submitted his affidavit Ex.CW1/A in which he has reiterated the facts as detailed in the complaint and submitted that  the complainant is running his business under the name and style of Deep Floor Mills, Amritsar for earning his livelihood and the complainant purchased one Collar Type pouch packing machine for pulses and spices for own use from the Opposite Parties for a valuable consideration of Rs.4,25,000/- with one year warrantee regarding any kind of defect occurred in it. At the time of sale, the Opposite Party No. 2 gave false assurance to the complainant that it is a very good machine and there is no problem in it and it is a brand new one, but when the complainant received the said machine at Amritsar, he found that so many parts of the machine were missing. The complainant immediately called the Opposite Parties and apprised them about the missing parts of the machine and the Opposite Parties also admitted that those parts were not sent by them alongwith the machine  as these are very important and costly parts i.e. conveyor belt and feeder and they also apprised that they will send their engineer alongwith these parts who will apprise the complainant as to how these parts will install in the machine and how to operate the machine. But lateron the complainant received a telephone call from the Opposite Party  stating that the above said parts are not included in the said machine and the complainant will have to purchase these parts separately by giving extra money to the Opposite Parties. The complainant requested the Opposite Parties to send these parts  as these are part and parcel of the machine and said machine will not operate without thee parts and even otherwise the amount was already paid by the complainant to the Opposite Party  which include the costs of these parts  also but of no avail.   The complainant requested the Opposite Parties so many times to accede his genuine request to send those parts of the machine by way of writing complaints to them. Thereafter, in response of the complaints, the Opposite Party  sent their engineer who inspected the machine and found that there is some technical problem in the computer system of the said machine and said engineer also told the complainant that the said machine is having inherent defect and even otherwise he can not run the machine in absence of conveyor belt and feeder. The complainant requested the Opposite Parties to install the machine properly and even otherwise the Opposite Parties are under obligation to install the machine with all the parts especially when the complainant made the entire payment of the said machine including its parts, but of no avail. Ultimately, the complainant sent a legal notice dated 14.8.2015 to the Opposite Parties calling upon them to refund the amount to the tune of Rs.4,25,000/- paid by him to the Opposite Parties, but the Opposite Parties did not any heed to the genuine and legitimate request of the complainant. In this way, the Opposite Party  have sold an inferior quality product on higher rate by giving false assurances. In this way, there is great negligence, gross carelessness, and Unfair Trade Practice on the part of the  Opposite Parties.

7.       On the other hand, ld.counsel for the Opposite Parties has repelled the aforesaid contentions of the complainant on the ground that the present complaint is baseless and flagrant abuse of process of law to harass and blackmail the Opposite Parties as not a single complaint has been received by the Opposite Parties during the warranty period, as the machine was supplied on 20.5.2014 and warranty expired on 19.5.2015, but the legal notice was issued to the Opposite Parties much later the expiry of warranty period and there is no written or oral complaint during that period. The complainant has not complained any type of the complaint regarding manufacturing defects or otherwise during the warranty period, although, if any, the complaint made by the complainant which the Opposite Parties have repaired the defects. It is submitted that the Opposite Parties sold one collor type PLC base packing machine to the complainant on 20.5.2014 and the said machine was sold with one year warranty against Manufacturing defects to the complainant. Thereafter, the Opposite Parties installed the machine by ending their mechanical engineer in the premises of the complainant and the complainant did not take proper care after installation of the machine, which is a mandatory requirement during the operation of the machine. Thereafter, as and when the service engineer of the Opposite Parties visited the complainant premises to attend the machine, the complainant never made any complaint regarding the manufacturing defects in the machine. The main contention of the complainant is that the machine in question is having some inherent manufacturing defect  and the Opposite Parties may be directed to refund its price to the complainant. On the other hand, ld.counsel for the Opposite Party  has specifically contended that  the complainant has not complained any type of the complaint regarding manufacturing defects or otherwise during the warranty period, although, if any, the complaint made by the complainant which the Opposite Parties have repaired the defects. It is submitted that the Opposite Parties sold one collor type PLC base packing machine to the complainant on 20.5.2014 and the said machine was sold with one year warranty against Manufacturing defects to the complainant. Thereafter, the Opposite Parties installed the machine by ending their mechanical engineer in the premises of the complainant and the complainant did not take proper care after installation of the machine, which is a mandatory requirement during the operation of the machine. Thereafter, as and when the service engineer of the Opposite Parties visited the complainant premises to attend the machine, the complainant never made any complaint regarding the manufacturing defects in the machine. It is a settled position of law that complainant has to prove by cogent, credible and adequate evidence supported by expert opinion that machine in question  suffers from inherent manufacturing defect and it has been held in various authorities including one  Sushila Automobiles Pvt. Ltd versus Dr. Birendra Narain Prasad and Others 2010 C)J 130 (NC) wherein the Hon'ble National Consumer Disputes Redressal Commission New Delhi citing the Apex Court held that:

“Unless onus satisfactorily, discharged, liability of manufacturer limited to removal of defect and/or replacement of parts.”

8.       In the present case the complainant has failed to bring any cogent, credible and adequate evidence supported by expert opinion that the machine in question suffers from inherent manufacturing defect and, therefore, we are of the considered view that in the facts, circumstances and on the basis of the evidence available on the record the complainant is not entitled for either replacement of the machine in question or repayment of the refund of the cost price. The complaint, being without any merits, is liable to be dismissed. . Keeping in the peculiar facts and circumstances of the case, the parties are left to bear their own costs. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.

Announced in Open Forum