SMT. RAVI SUSHA: PRESIDENT
Complainant filed this complaint U/s 12 of Consumer Protection Act 1986, seeking to get an order directing opposite party to pay Rs.20,00,000/- to the complainant along with 12% interest together with cost of proceedings of this case.
The facts of the case, in brief are that the complainant approached the OP and informed his desire of starting a “Hollow Bricks” unit in the month of January 2016. The OP squarely represented that they are the manufacture of vertical and horizontal machines for the manufacture of interlock bricks machine and also represented that horizontal triple block machine is more profitable, since three piece of interlock bricks can be produced without much consumption of soil and time. Believing the representation of OP the complainant agreed to purchase a horizontal triple interlock bricks machine. The OP also agreed that they will also supply 350 Kg. pan mixer machine, Truly hydraulic pallet truck air cooler system, mixer hopper system which are the part and parcel for production of interlock bricks. The OP also agreed that they will perform the machine erecting, trial run and continue production process. Believing the gentleman offer of the OP, the complainant placed the order and the OP supplied the horizontal triple block machine, pan mixer machine, trolly, pallet truck cooler system, mixer hopper system at the property of the complainant at Muyyam, which was modified and converted for bricks production unit. The complainant paid Rs. 15,43,500/- to the OP as per invoice No. 042 dated 03/03/2016. The complainant unloaded more than thousand of loads of soil and started production of the interlock bricks in the supervision of OP, but whenever the bricks was manufactured, the size of the bricks are not in uniformity and whenever water applied, size of the bricks increase or decrease. All this productions of bricks are under the strict supervisors of the OP and whenever the complainant informed this irregularity issue, the OP made minute changes in the machine. As such the complainant manufactured the 5000 bricks and supplied nearly 2000bricks to the customer but all are returned with a complaint of irregular size of bricks which are unfit for construction. Due to the frequent complaint and demand of the complainant the OP’s supervisors admitted the manufacturing defect of the machine and squarely admitted that there is a defect in service efficiency in service and considering the huge loss of the complainant, the OP taken back to the machine as per delivery note dated 10/04/2017. It is submitted that the entire unit of the complainant at the Koonamstand closed and 3000 bricks which are in irregular size kept in the manufacturing unit which are unfit for sale. It is submitted that the complainant arranged huge amount of Bank loan for the production of starting the unit in addition to the amount of Rs.15,43,500/-. In addition to the cost of machine, the complainant sustained a loss of 1,50,000/- in connection with production cost of irregular size bricks due to the manufacturing defect of the horizontal triple blocks machine. In addition to the above loss the complainant sustained much mental agony, pain, strain, tension due to the defect in service of the OP. On enquiry it was revealed that the machine manufactured by the OP or his production unit bearing no ISI or ISO standard specification. The complainant finally requested the OP to pay the amount of 20,00,000/- to the complainant on 30/05/2017. But the OP neither paid any amount nor entered any explanation but sent a letter to the complainant admitting the sale of the machine, receipt of the price, defect of the machine, with a false allegation of supply of 1 vertical bricks machine instead of horizontal triple block machine having manufacturing defects. The OP again sent 2 letters to complainant dated 08/06/2017 intimating the completion of alteration of the interlock machine having manufacturing defects and another letter demanding Rs.83,500/- by demanding that the complainant is liable to pay additional amount for the machine having manufacturing defects and which was taken back by the OP due to manufacturing defects. The act of the OP is defect in service, deficiency in service and unfair trade practice and the OP is liable to pay 20,00,000/- to the complainant.
After receiving notice, OP entered appearance through counsel and filed version stating that the machine supplied by the OP to the complainant was as per the clear specifications of the complainant himself as detailed in person while placing the order. It was an interlock triple brick machine along with 350 Kg. pan mixer machine, Trolley, hydraulic pallet truck etc. for a total price of Rs.15,43,500/- as per the invoice No.042 dated 03/03/2016. Out of such total price, the complainant paid a total amount of Rs.14,60,000/- in four installments of Rs.20,00,000/- on 04/09/2015, Rs. 1,75,000/- on 04/11/2015, Rs.10,00,000/- on 25/01/2016 and Rs.85,000/- on 01/03/2016. Such payments received by the OP was duly acknowledged in the order form dated 01/03/2016 itself apart from the receipt No.017 dated 01/03/2016 issued by the OP to complainant. As such an amount of Rs.83,500/- is still lying as unpaid due from the complainant to the OP. In addition to the aforesaid machines supplied as per order, the OP had also supplied and duly installed oil cooler system, mixer hoper system etc. in the said machine at the complainant’s place of work. The price of such items have not been so far paid by the compliannt to the OP. The OP has been from the very beginning employing their experts to erect and install the machines, their accessories and addition, their trial run production process etc. And the complainant had been giving positive feedback to the satisfaction of the OP with regard to the functioning of the aforesaid items. The OP has been very much vigilant in giving proper technical advises and feed back to the complainant. The complainant’s men were not able to maintain water level standard as per the guidance from the OP’s staff at the raw material mixing process. Hence the OP was constrained to put much experts their time, energy, money and concentration to provide effective alternatives to the absolute satisfaction of the complainant. The complainant’s problem was thus solved and positive feedback was given to the OP to the effect that the machine was functioning smoothly. When the complainant’s crusher soil had faced some problems relating to opening of weld mesh sizes opening causing the crushed soil sized to become larger ad it was informed to OP, the OP’s staff attended advised the way to reduce the soil size. But the complainant was not ready to reduce the soil size for fear of lessening profits disregarding the increase of soil wastage. Instead the complainant wanted to have one brick vertical machine replacing the horizontal triple block to manage the wastage soil etc. It was disregarding the expert opinion from the OP’s side to the effect that such change was not advisable or profitable and instead the complainant was to change the raw material related processes. Disregarding such advise the complainant put high pressure on the vertical machine. Actually the OP’s opinion was disregarded and the triple brick frame was taken delivery of by the complainant on his own volition. The complainant also disregarded the fact that his competing businessman near to his place were also running the same model. In fact the present vertical machine was supplied to the complainant by the OP by taking back the horizontal machine solely due to his own demand and his own stubborn insistence. The delivery was on 17/04/2017. It was after such installation that the complainant demanded six inches mould instead of five inches mould. Hence the OP agreed to it and wanted a short time to complete the manufacturing of such mould. Within a few days it was completed and duly informed to the complainant to the effect that the OP would be sending the same to him. But he was not ready to receive the same as he was not in station as informed. But without prior intimation the complainant conveyed the OP another day for the delivery thereof but on that day neither vehicle nor technicians were available and so delivery could not be effected. The OP detailed the above facts in their letter dated 31/05/2017 to the complainant who did not respond there to. Hence the OP sent a reminder letter dated 08/06/2017 to him demanding to take delivery of the interlock machines’ center frame received by them on 18/04/2017 which was ready with them after effecting the required modification as suggested by him with a request to inform the OP is convenient date to take delivery thereof. On the same day of 08/06/2017 the OP issued another letter to the complainant pointing out that an amount of Rs.83,500/- was still lying as unpaid due from him to the OP and he was bound to clear off the same and with further demand to take delivery of the modified machine frame. The complainant totally failed to clear off the said outstanding due amount or to take back delivery of the said machine items despite the receipt of the aforesaid three letters from the OP. On all and every complaints raised by the complainant including minor and triple issues even relating to the electricity, additional fittings, accessories etc totally unrelated to the OP, the OP’s staff always rushed to the complainant’s place and duly attended the machines free of cost. The technicians alone had so attended more than 8,9 times. All the service reports showing such attendance were signed by the complainant. There after again the complainant wanted to replace the same with the mould of 06 inches. Even such change is done by the OP but the complainant is not ready to take delivery thereof. Six inches vertical machine to replace 05 inches is ready with the OP to be handed over to the complainant. Even now the OP is ready to hand over the same along with the “A frame” which is also duly repaired as specified by the complainant. In fact the complainant has operated the machines for about one year and produced 2000/- bricks per day which is its actual capacity. The product is covered by ISI standards and the complainant placed order after himself having been convinced of the same. There is neither any deficiency in service nor any unfair trade practice on the part of the OP in the aforesaid transactions with the complainant and prayed for the dismissal of complaint.
Both parties led evidence. Complainant has filed his proof affidavit and submitted documents. He was examined as Pw1 and documents were marked as Ext.A1 to A5 and Advocate commission reports as Ext. C1, photos Ext.C2 series and Video (CD) Ext.C3. Pw1 was cross-examined for the OP. On the side of OP the husband of OP has filed chief affidavit and has been examined as Dw1. Dw1 also was subjected to cross-examination for the complainant. After that the learned counsel of complainant has filed written argument note.
It has been contended by the learned counsel for the complainant that believing the representation of OP, complainant placed an order to supply horizontal triple block machine, pan mixer machine, trolley, pallet truck cobbler system, mixer hoper system at the property of the complainant for starting brick production unit and or that he had paid Rs.15,43,500/- to the OP as per invoice No.042 dated 03/03/2016. And also unloaded more than thousand of loads of soil and started production of the interlock bricks in the supervision of OP. It is alleged by complainant that whenever the bricks was manufactured, the size of the bricks are not in uniformity. Whenever the complainant informed this irregularity issue, the OP made minute changes in the machine and as such the complainant manufactured 5000 bricks and supplied nearly 2000 bricks to the customer but all are returned with a complaint of irregular size of bricks which are unfit for construction. Complainant further alleged that due to the frequent complaint and demanded of the complainant, the OP’s supervisor’s admitted the manufacturing defect of the machine and admitted that there is a defect in-service efficiency and OP had taken back to the machine as per delivery note dated 10/04/2017. Complainant also alleged that the product of the OP having no ISO or ISI standard and the act of the OP is deficiency in service and unfair trade practice.
On the other hand, it is contended by OP that the machine supplied by the OP was as per the clear specification of the complainant himself and out of the total price of 15,43,500/- the complainant paid a total amount of Rs.14,60,000/- and as such an amount of Rs.83,500/- is still lying as unpaid due from the complainant to the OP. OP submitted that in addition to items supplied as per Ext.A1 invoice OP had also supplied and duly installed oil cooler system, mixer hoper system etc. at the complainant’s place of work and the prices of such items have not been so far paid by the complainant to the OP. OP submitted that from the very beginning complying their experts to erect and install the machines, trial run production process etc, and the complainant has been giving positive feed back to the satisfaction of the OP with regard to the functioning of the machine. OP submitted that the 1st problem happened to the complainant with regard to the water applying level at the raw material mixing process. The said problem would involve quality issues of bricks on their production. Hence OP gave technical advice to maintain standard level of water. But the complaint’s men were not able to maintain such water level standard as per the guidance from the OP’s staff. Then the complainant’s problem was solved by providing much experts. According to OP the other problem happened was due to using of large crushed soil size. Further contended instead of changing the water applying level at the mixing process and reduce crushed soil size, OP demanded vertical machine and due to high pressure of complainant, OP has taking back the horizontal machine and supplied present vertical machine to the complainant on 17/04/2017 and was again duly installed at his place by the OP’s men.
OP further contended that after such installation, complainant demanded six inches mould instead of five inches mould. But though after completing the manufacturing of such mould, complainant was not ready to take delivery of it even after sending letters and through the said letters OP demanded the balance amount of Rs.83,500/-. But complainant has not paid the amount still at present. OP submitted that OP is ready to handover the six inches vertical machine to replace 05 inches now with the complainant himself. OP also submitted that the product is covered by ISI standards and there is neither deficiency in service nor any unfair trade practice.
OP in this version has admitted that there are some defect happened in manufacturing bricks through the machine supplied by him and it was due to the way of making bricks by the workmen of the complainant, which was rectified by the expert mechanic from his side. But the fact that the bricks manufactured through the machine are of different size was due to the fault on the side of complainant’s work men, is not proved by the OP. OP has not established the machine supplied were defect free machine. The OP himself admits that the horizontal machine has taken back and delivered vertical machine, that itself goes to show that OP has been supplied with a defective machine in the 1st instance.
In the Advocate commission report Ext.C1 and C2 the Advocate commissioner specifically stated that the bricks manufactured and stocked in the factory are different in size. It is also reported that at the inspection time the complainant is using vertical machine. Further reported that about 850 bricks were seen kept in the shed of the factory and were of different in size and unfinished bricks. Further stated that the bricks are of horizontal in shape, which means that those bricks were manufactured by using horizontal machine installed in the first instance. Hence Ext.C1 and C2 clearly shows that the horizontal machine supplied by opposite party to complainant suffers from inherent defect from the day of its installation at the premises of the complainant. Here it is seen that OP neither filed any objection to advocate commissioner’s report to elicitate that the production of brick having different size and shape was not due to the defect of his machine initially supplied to the complainant and the machine being used by the complainant after changing the horizontal machine belonged to him and having no defect. Therefore the evidence adduced by complainant through Ext.C1,C2 stands unchallenged in as much as the OP could not impeach such evidence and thus, it appears that the machine in fact was suffering from inherent defect, which requires replacement and the brick manufactured in the horizontal machine could not be used for sale. Further with regard to the dispute about ISO, ISI standard, the Advocate commissioner has not noted any ISO, ISI mark in the machine installed in the complainant’s premises, which itself clears the contentions of complainant that the product of the OP having no ISO, ISI standard is seems to be correct. Mere contention by OP in the version itself is not sufficient. Thus supply of machine without standard mark found to earn money and profit without any duty cast on them on the consumers. This cannot be allowed to continue. Had the machine been found all right from the day of its inception, it could have given some profit to the complainant out of which he would earn money. Here the complainant could not do it due to the deficient attitude of the OPs.
With regard to the contention of OP about balance payment of Rs.83,500/- by complainant to him, as contended, so far OP has not taken any legal steps to recover the dues against complainant. Further there is no piece of evidence on the hand of OP to show that complainant had paid only 14,60,000/- to him and he had supplied additional accessories to the complainant without receiving cost of accessories. Without any evidence, we cannot accept the said contention of OP. From Ext.A1 it is seen that complainant had paid Rs.15,43,500/- to OP.
From above facts nod circumstances of this case, we are of the view that there is deficiency in service on the part of OP and the complainant is entitled to get redress his grievance. Here the expert commissioner reported that the bricks manufactured through the newly installed machine are of uniform in nature, which means the complainant is running his business.
Considering the entire facts as stated above, the complaint is allowed in part. Opposite party is directed to pay Rs.2,50,000/- to the complainant towards loss of earning monetary loss and hardship along with Rs.50,000/- as compensation for mental agony and Rs.10,000/- as cost to the proceedings of the complaint within one month from the date of receipt of this order. Failing which Rs.2,50,000/- carries interest @ 9% per annum from the date of order till realization. Complainant is at liberty to file execution application against opposite party for realization of the awarded amount as per provisions stated in Consumer Protection Act 2019.
Exts.
A1-Cash receipt
A2-Delivery note
A3-Letter issued by OP to complainant dated 31/05/2017
A4-Letter dated 08/06/2017
A5-Letter dated 08/06/2017
C1-Commission report
C2(series)-Photos
C3-Video (CD)
Pw1-Complainant
Dw1-Husband of the OP
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forward by order/
Assistant Registrar