BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT MANGALORE

                                                                 Dated this the 19^th April 2010

COMPLAINT NO.103/2009

(Admitted on 12.05.2009)

PRESENT:              1. Smt. Asha Shetty, B.A. L.L.B., President                                                                                                                                                                                                                                                                                                                                   

                                                                                  2.Sri. K. Ramachandra, Member

                                                                                 3. Smt.Lavanya M Rai, Member

BETWEEN:

Mr. Ramesh Acharya,

So. Late Sheena Acharya,

Aged about 60 years,

RA. Shri Durga Prasad,

Main Road, Kulai,

Mangalore.                              …….. COMPLAINANT

(Advocate for the Complainant: Sri.P.P. Hegde).

          VERSUS

1. Gold Print Technology Pvt. Ltd.,

F 102, Gorai Commercial Complex,

Phalka Bazar, Lashkar,

Gwalior  474 001 M.P,

India. 

2. Mr.Manish Sakarkar,

Director, Gold Print Technology Pvt. Ltd.,

F -102, Gorai Commercial Complex,

Phalka Bazar, Lashkar,

Gwalior – 474 001 (M.P),

India.                                …..…. OPPOSITE PARTIES

(Advocate for the Opposite Party: Sri.Mukesh Gupta).

                                      ***************

ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:

1.       The facts of the complaint in brief are as follows:

This complaint is filed under Section 12 and 13 of the Consumer Protection Act alleging defect in CNC Wood Carving Machine against the Opposite Parties claiming certain reliefs. 

The Complainant submits that, Opposite Party No.1 is a Private Limited Company of which Opposite Party No.2 is the Director and Opposite Parties are the suppliers of CNC Wood Carving machines.  The Complainant placed an order for the purchase of CNC Wood Carving Machine with the Opposite Party for his personal use exclusively for earning livelihood by carpentry by means of self employment.  It is stated that the Complainant purchased the above said machine by paying  Rs.50,000/- in cash paid on 03.06.2008 as per receipt No.1106 and Rs.3,00,000/- by demand draft dated 30.6.2008 drawn on Corporation Bank in favour of the Opposite Party and Rs.3,34,000/- by demand draft dated 22.11.2008 and Rs.25,000/- paid to XPS Cargo Services as per receipt No.643403611 dated 15.12.2008.  It is stated that the Opposite Parties had promised to provide 10 days of free training to the Complainant regarding the use of the machinery supplied by them.  The Opposite Parties’ engineer came to Mangalore to install the machine in the month of December 2008 and at that time it was found that the machine was defective.  The machine cannot run at all, Opposite Parties’ engineer stated that the motor of the machine was defective and unless it was replaced the machine cannot start.  It is further stated that the Opposite Parties’ engineer told that he would replace the same with a new machine but till today Opposite Parties have not made any replacement.  Hence it is contended that the Opposite Parties are guilty of deficiency of service and the goods supplied by them are sub-standard, defective and not in working condition from the date of supply till date.  It is further stated that the Complainant had availed a loan of Rs.8,00,000/- to purchase the above said machine and paying monthly installments of Rs.13,333/- with interest at 14% p.a. On account of the Opposite Parties’ failure to replace the machine the Complainant unable to start work even till today and repay the amount to the bank and he had suffered financially as well as the work entrusted to him and subsequently the Complainant issued a notice dated 10.3.2009 but till this day they have not responded hence the Complainant filed the above complaint before this Hon'ble Forum under Section 12 and 13 of the Consumer Protection Act, 1986 (herein after referred to as ‘the Act’) seeking direction from this Hon'ble Forum to the Opposite Parties to refund the value of the machine being Rs.7,09,000/- with interest at 18% p.a. from the date of respective payments till the date of repayment and also claimed Rs.5,000/- per day  as compensation from the date of delivery of the machine till the refund of the price and also claimed Rs.50,000/- towards the mental agony suffered by the Complainant and cost of the proceedings. 

2.       Version notice served to the Opposite Parties by RPAD. Opposite Parties appeared through their counsel filed version raised a contention that the complaint is bad for non-joinder of necessary parties.  The participation of the financier bank is important in this case and the Complainant has purposely not made the financier bank as party to the case and prayed for dismissal of the Complainant.

 And the another objection raised by the Opposite Parties are that the above said machine is availed for business perspective and the complaint is of a commercial nature and hence the Complainant is not a consumer.

 The third point raised by the Opposite Parties are that the Complainant has made the aforementioned complaint only with the intention of not paying the balance of Rs.2,00,000/- and with wrong and false allegations intends to usurp the amount.  The Opposite Party is supposed to receive Rs.2,00,000/- in lieu of sale of the machine.  It is stated that the Complainant had given a signed cheque dated 03.06.2008 Vijaya Bank, Hosbettu for Rs.2,00,000/- and he also gave a letter to the Opposite Party stating that he was under a financial crunch the Opposite Party should not realize the cheque until later.  After that whatever the Opposite Party demanded the remaining Rs.2,00,000/- the Complainant did not intend to pay up.  The Complainant has presented the case with the intention of not paying the remaining amount. 

Fourthly it is contended that the machine is working properly and is in sound condition and contended that the case hearing should be under the jurisdiction of a commercial court and not before this Court.  And it is further submitted that this Opposite Party installed the machine at the Complainant’s site and his employees understand the features and gave complete information on operation and running of the machine.  And further stated that the conditions mentioned in the quotation, the Complainant’s engineer would have to come to train at the Opposite Party’s workshop in Gwalior before the delivery of the machine but the Complainant’s engineer or technician never came at the Opposite Party’s workshop in Gwalior till date for training.  But in light of their goodwill the Opposite Party imparted training for 5-6 days continuously.  Since there is no fault in the machine there is no question of replacing it and prayed for dismissal of the complaint.

3.       In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the Complainant is a consumer and the machine purchased by him falls within the purview of Section 21(d) of the C.P. Act?

2. Whether the complaint is bad for non-joinder of necessary parties?

3. Whether this FORA has jurisdiction to entertain the complaint?

4. Whether the Complainant proves that the subject machine purchased by him from the Opposite Parties proved to be defective?

5. If so, whether the Complainant is entitled for the reliefs claimed?

6. What order?

4.         In support of the complaint, Mr.Ramesh Acharya (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him.   One Mr.Prakash Shetty (CW2) – Diploma in Electrical Engineering – witness of the Complainant filed affidavit and answered the interrogatories served on him.  Ex C1 to C19 were marked for the Complainant as listed in the annexure.  One Shri Manish Sakorkar (RW1), i.e., Opposite Party No.2 filed counter affidavit but not answered the interrogatories served on him.  Ex R1 to R6 were marked for the Opposite Parties as listed in the annexure.  

          We have considered the oral arguments submitted by the learned counsels and also considered the materials that was placed before the Hon'ble Forum and answer the points are as follows:                     

          Point No.(i) to (iii): Affirmative.

          Point No.(iv) to (vi): As per the final order.  

Reasons

5.  Point No. (i):

          In the given case, the complaint is filed under Section 12 and 13 of the Consumer Protection Act as against the Opposite Parties for the manufacturing defects of the goods sold by them.  The Complainant in his affidavit as well as in their complaint categorically stated that the above said machine i.e., CNC Wood Carving Machine purchased for his personal use for earning his livelihood by carpentry by means of self-employment. The Opposite Party though raised objection stating that the machine was purchased for commercial purpose but no material evidence placed before this FORA to show that the said machine was used for the commercial purpose by the Complainant.  Since the machine was purchased for his personal use for earning his livelihood by carpentry it cannot be said that the said machine was purchased for commercial purpose.  If the machine is purchased for the purpose of business by way of self-employment is a consumer within the purview of Section 2(1)(d) of the Consumer Protection Act.  Hence the Complainant is a consumer and point No.(i) held in favour of the Complainant.

Point No.(ii):

          Just because the Complainant availed a financial assistance from the bank, we do not understand why the financier is necessary party to the proceedings in a case of defect of goods alleged by the Complainant in his complaint.  It is a case wherein the allegation is against the manufacturing defect of the goods supplied by the Opposite Parties and not in respect of any money transaction.  Hence the financier of the Complainant is not necessary party to the proceeding to adjudicate the matter in controvercy.  Hence the objection raised by the Opposite Party is hereby overruled and point No.(ii) held in favour of the Complainant.

Point No.(iii):

          As far as jurisdiction is concerned, the Opposite Parties contended that in the invoice issued by the Opposite Parties it has been specifically stated that the jurisdiction for the suits if any before the Gwalior jurisdiction.  The catena of judgment rendered by the various State Commissions and National Commission held that the restraining the parties for filing a suit or legal proceedings in a particular Court which is bad in law hence the point raised by the Opposite Parties in this regard does not sustainable.  Hence the point No.(iii) raised by the Opposite Party is hereby rejected. 

Point No.(iv) to (vi):

As far as the defect of the machine is concerned, the admitted fact is that the Opposite Parties sold the CNC Wood Carving Machine to the Complainant as per the Opposite Parties’ quotation dated 03.06.2008 and the same has been installed by the Opposite Party in the Complainant’s premises in the month of December 2008. 

Now the dispute between the parties before this FORA is that the machine supplied by the Opposite Party is defective and not in working condition right from the day one of the purchase.

The Opposite Parties on the contrary, contended that the machine supplied by them are in working condition and there is no manufacturing defect as alleged by the Complainant.

The Complainant filed the evidence by way of affidavit and produced Ex C1 to C19 and examined CW1 and CW2.  The Opposite Party No.2 also filed evidence but not answered the interrogatories served by the Complainant.  However, the Ex C1 i.e., receipt No.1106 issued by the Opposite Parties dated 03.06.2008 and also the Ex C2 i.e., a demand draft bearing No.435154 dated 30.06.2008 and Ex C3 i.e., demand draft bearing No.481523 dated 22.11.2008 and the receipt No.643403611 issued by XPS Cargo Services on 15.12.2008 clearly reveals that the Complainant had paid a sum of Rs.7,09,000/-towards the machine and charges of the Cargo.  The Ex R1 i.e., the quotation issued by the Opposite Parties reveals that the Opposite Party issued a quotation for Rs.9,04,000/- which includes the entire unit of the gold route CNC Engraving Machine/Router (Model GR-1226) and the invoice dated 04.12.2008 (i.e., Ex R6) reveals that there is a due of Rs.2,00,000/- towards the machine from the Complainant.  But the documents produced by the Complainant reveals that he had paid Rs.6,84,000/- towards the machine and Rs.25,000/- towards the transportation charges and the machine was received by the Complainant on 15.12.2008 through XPS Cargo Services.  The Ex C7 to C17 are the computer print out of the Email dated 17.12.2008, 18.12.2008, 24.12.2008, 02.01.2009, 04.01.2009, 13.01.2009, 23.08.2008, 01.10.2008, 10.10.2008, 23.11.2008 and 15.12.2008 and Ex C5 i.e., the copy of the notice dated 10.03.2009 clearly discloses that the machine delivered by the Opposite Party on 15.12.2008 is not working and the machine is defective and the Complainant called for the Opposite Parties to replace the above said machine.  When that being the case, it is the bounden duty of the Opposite Party to attend the defects of the machine but no such attempt was made by the Opposite Parties could be seen in this case.  However, the Complainant filed application under section 13(b) of the Consumer Protection Act to refer the matter to the technical person after serving notice to the Opposite Party.  This Hon’ble Forum allowed the application and the matter was referred to the technical expert by name S.Prasad, BE, FIV, MIE, Approved Valuer, Consulting Engineer, Chartered Engineer filed the inspection report after detailed inspection carried out by him.  The inspection report submitted by the qualified engineer in this field reveals that the said machine is not in working condition and the expert observed that the said machine was found to be defective at the first stage itself.  The Opposite Party not filed any objection to the Commissioner’s Report nor examined the Commissioner in order to disprove the observation made by the expert in this case.  The entire inspection report is not controverted/contradicted by the Opposite Parties in this case.  That the independent expert report filed by the engineer is the best piece of evidence available on record to show that the machine supplied by the Opposite Party is not in working condition from the day one of the purchase is proved.  The Opposite Parties inspite of taking so much of amount from the Complainant not supplied the defect free machine and also not attended the complaint of the Complainant.  But on the other hand, Opposite Party raised an objection stating that there is Rs.2,00,000/- still due from the Complainant.  The due payable by the Complainant is a separate issue, the first thing has to be considered in this case is that inspite of taking  more than ¾ amount the machine is not working from the day one of the purchase definitely caused hardship to the Complainant.  The Complainant availed a bank loan and purchased the above said machine by paying so much of amount and as much as the interest also paid on the bank loan availed by him till this date but the machine purchased by him is proved to be defective definitely caused financial loss apart from the other hardship.     

In view of the above discussion, we are of the considered opinion that the machine supplied by the Opposite Parties are proved to be defective.  Under that circumstances, we hereby direct the Opposite Parties to refund the entire amount paid by the Complainant including transportation charges i.e., Rs.7,09,000/- along with interest at 14% p.a. from the date of receipt of the amount till the date of payment.  Since we have considered the rate of interest on the amount paid, we are inclined to grant compensation on separate head.  The Opposite Parties are at liberty to take back the machine after paying the above said amount and apart from that Rs.3,000/- awarded as cost of the litigation expenses.  Compliance/payment shall be made within 30 days from the date of this order. 

6.       In the result, we pass the following:                          

ORDER

The complaint is allowed.  Opposite Parties are directed to refund the entire amount paid by the Complainant including transportation charges i.e., Rs.7,09,000/- (Rupees seven lakh and nine thousand only) along with interest at 14% p.a. from the date of receipt of the amount till the date of payment.  The Opposite Parties are at liberty to take back the defective machine after paying the above said amount.  Further Rs.3,000/- (Rupees three thousand only) awarded as cost of the litigation expenses.  Compliance/payment shall be made within 30 days from the date of this order.  

Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.

(Dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 19^th day of April 2010.)

PRESIDENT

                                 (SMT. ASHA SHETTY)

         MEMBER                                         MEMBER

(SRI. K.RAMACHANDRA)               (SMT. LAVANYA M. RAI)

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 – Mr.Ramesh Acharya – Complainant.

CW2 – Mr.Prakash Shetty – Diploma in Electrical Engineering – witness of the Complainant.

Documents produced on behalf of the Complainant:

Ex C1 – 03.06.2008: Receipt No.1106 issued by the Opposite Party.

Ex C2 – 30.06.2008: DD bearing No.435154 drawn on Corporation Bank, Baikampady in favour of Opposite Party.

Ex C3 – 22.11.2008: DD bearing No.481523 drawn on Corporation Bank, Baikampady in favour of Opposite Party.

Ex C4 – 15.12.2008: Receipt No.643403611 issued by XPS Cargo Services.

Ex C5 – 10.03.2009: Copy of the notice issued by the Complainant to the Opposite Party.

Ex C6 – 02.10.2009: Commissioner’s report.

Ex C7 to C17 – 17.12.2008, 18.12.2008, 24.12.2008, 02.01.2009, 04.01.2009, 13.01.2009, 23.08.2008, 01.10.2008, 10.10.2008, 23.11.2008 and 15.12.2008: Computer print out of the E-mail sent to Opposite Party No.2.

Ex C18 -                 : Receipt issued by the Opposite Party.

Ex C19 -              : Computer print out of the photographs which were sent to the Opposite Party through E-mail by CW2 (20 in numbers).

Witnesses examined on behalf of the Opposite Parties:

RW1 – Shri Manish Sakorkar, i.e., Opposite Party No.2.

Documents produced on behalf of the Opposite Parties:  

Ex R1 – 31.05.2008: Quotation No.10704 issued by the Opposite Parties.

Ex R2 – 03.06.2008: Copy of the order confirmation letter.

Ex R3 – 03.06.2008: M.R. No.1106 for Rs.50,000/- cash deposited in Bank.

Ex R4 – 03.06.2008: M.R. No.1107 for Rs.2,00,000/- cheque No.3896668.

Ex R5 – 03.06.2008: Unpaid Cheque No.386668 for Rs.2,00,000/-.

Ex R6 – 04.12.2008: Invoice No.12-208018 for Rs.9,04,000/-.

Dated:19.04.2010                            PRESIDENT