KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD THIRUVANANTHAPURAM APPEAL NOs.644/2000 & A.743/2000 COMMON JUDGMENT DATED 31.3.2010 PRESENT SHRI.M.V.VISWANATHAN -- JUDICIAL MEMBER SRI.M.K.ABDULLA SONA -- MEMBER APPEAL NO.644/2000 Crescent Foundary and Engineering Works, Cheruvannur, Post Feroke, -- APPELLANT Kozhikode Distrit. (By Adv.G.S.Reghunath) Vs. 1. Hassan, Son of Moosa M/s National Peeling Unit, Mundol Road, Thekkil, -- RESPONDENTS Post Chattamchal, Kasaragod. 2. India Machine Tools Company, Shamsu Building, 19/1678-A Kallai Road, Calicut 673 002. (R1 By Adv.K.V.Sohan & Ors.) APPEAL NO.743/2000 India Machine Tools Co. Shamsu Buildibng, 19/1764-A, Kallai Road, -- APPELLANT Calicut 673 002. (By Adv.Sreelal Warriar & Ors. Vs. 1. Hassan, Son of Moosa M/s National Peeling Unit, Mundol Road, Thekkil, -- RESPONDENTS Post Chattamchal, Kasaragod. 2. M/s.Crescent Foundary and Engineering Works, Cheruvannur, Post Feroke, Kozhikode Distrit. COMMON JUDGMENT SHRI.M.V.VISWANATHAN: JUDICIAL MEMBER The above appeals are preferred from the order dated 22nd May 2000 passed by CDRF, Kasaragod in OP.58/99. The complaint in the said OP.58/99 was filed by the first respondent in these appeals as complainant alleging deficiency in service on the part of the appellants in these appeals who were the opposite parties in the said complaint in OP.58/99. The complainant therein alleged deficiency in service on the part of the opposite parties 1 and 2 in supplying a defective peeling machine having manufacturing defect. It was averred that the said peeling machine was manufactured by the first opposite party M/s.Crescent Foundry and Engineering works, Cheruvannur, Feroke, Kozhikode and the same was supplied by the second opposite party/India Machine Tools Company, Shamsu Building, Kallai Road, Calicut. Thereby, the complainant claimed refund of the price of the peeling machine amounting to Rs.334880/- with interest at the rate of 18% per annum from 5.11.97 till payment with sum of Rs.38,400/- being the amount paid to Sakthi Engineering works for repairing the said peeling machine and also for compensation of Rs.50,000/- for mental agony and monitory loss suffered by the complainant with litigation costs of Rs.2000/-. 2. Notice in the said complaint was served on opposite parties 1 and 2. Though notice was served on the second opposite party India Machine Tools Company, Shamsu building, Calicut-2, it remained absent through out the proceedings before the Forum below. 3. The first opposite party M/s Crescent Foundry and Engineering Works, Cheruvannur, Feroke, Kozhikode entered appearance and filed reply/version denying the alleged deficiency in service. They denied the case of the complainant that the Peeling machine supplied by the second opposite party was manufactured by the first opposite party. They totally denied the alleged transaction regarding the manufacturing and supply of peeling machine to the complainant. It is further contended that the second opposite party was not the authorized agent of the first opposite party and no peeling machine was supplied to the complainant through the second opposite party. They also denied the allegation that the repairing work of the peeling machine was carried out through M/s.Sakthi Engineering works, Pappinisseri. It was admitted that the complainant placed order over telephone for machinery parts in the year 1998 and supplied those parts and necessary bills were also given towards the sale of machinery parts. It was further contended that the setting of the entire machine was done by some others and the some parts like wheels, cutting knife etc. were supplied by the first opposite party to the complainant only after the inauguration of the M/s.National peeling unit i.e. after several months. The first opposite party gave an estimate of the repair work done by M/s. Sakthi Engineering as per the request of the complainant and that the first opposite party has not done any repair work on the complainant’s peeling machine. The first opposite party is not a necessary party and requested for dismissal of the complaint. 4. Before the Forum below, the complainant and the power of attorney holder of the first opposite party filed affidavits. The complainant was examined as PW1 and the power of attorney holder of the first opposite party was examined as DW1. Exts.P1 to P23 documents were also marked on the side of the complainant. No documentary evidence was adduced on the side of the first opposite party. The second opposite party remained absent. 5. The complainant filed IA 97/99 for appointment of an Advocate commission to note and report about the working condition of the peeling machine installed at the national peeling unit of the complainant in Chattanchal, Kasaragod. But, the Forum below was pleased to appoint expert commissioners to report the matter regarding the working condition of the said peeling machine. Thereby, both the complainant and the first opposite party were directed to submit panel of experts for appointment. The complainant submitted the name of the expert Sri.B.V.Kakkillaya, B.Tech (Mechanical) Proprietor, Veekay Engineering Works Industrial Estate, Vidhyanagar, Kasaragod. The first opposite party submitted a panel of experts consisting 3 names of M/s.C.J.Raphel, DMV, K.Radhakrishnan, Fitter, Gemini Medicals, Feroke and D.Rajan, former moulder Bharath Engineering, Calicut with I.T.C. certificate in moulding. The Forum below appointed Sri.B.V.Kakkillaya B.Tech. Mechanical and Mr.C.J.Raphel, DMV from Government Polytechnic, Thrissur as joint expert commissioners to submit a joint expert report in the matter. The complainant and the first opposite party submitted work memo to the joint commission for their inspection. Thereby, the joint commissioners conducted joint inspection of the disputed peeling machine installed at the peeling unit of the complainant. The said joint inspection was conducted on 21.11.99 in the presence of the complainant and power of attorney holder of the first opposite party. But the joint commissioners filed separate reports. The expert commission report submitted by Sri.B.V.Kakkillaya has been marked as Ext.C1 and the expert commission report filed by Sri.C.J.Raphel has been marked as Ext.C2. 6. Complainant filed objection to the commission report filed by the expert commissioner Mr.C.J.Raphel stating that his report (C2 ) cannot be accepted as the same is biased and un-sustainable. The first opposite party filed objection to the commission report filed by Mr.Kakkillaya stating that the expert Mr.Kakkillaya failed to mention important matters which were revealed in the inspection. After hearing both parties the Forum below passed the impugned order dated 22nd May 2000 directing the opposite parties to pay a sum of Rs.3,47,210/- with interest at the rate of 15% per annum on the principal amount of Rs.3,34,880/- from 5.11.97 with cost of Rs.500/-. Aggrieved by the said order, the present appeals are preferred by the opposite parties 1 and 2 therein. Appeal 743/2000 is filed by the second opposite party/India Machine Tools Company, Shamsu Building, Kallai Road, Calicut and the Appeal 664/2000 is filed by the first opposite party M/s.Crescent Foundry and Engineering Works, Cheruvannur, Feroke, Kozhikode. 7. We heard the appellants in these appeals and the first respondent/complainant. The learned counsel for the appellant in Appeal 743/2000 (2nd opposite party in OP.58/99) urged the points raised in the appeal memorandum. It is submitted that the appellant who is the 2nd opposite party in the said complaint was absent in the proceedings before the Forum below and that he did not get the opportunity to defend his case in the said complaint in OP.58/99 and thereby requested to remand the matter for affording an opportunity to the appellant/2nd opposite party. It is further submitted that the notice in OP.58/99 was served on the previous Manager of the second opposite party and because of his negligence the second opposite party could not defend the case. The learned counsel for the appellant in Appeal 743/2000 has also canvassed for the position that the second opposite party was the supplier of the peeling machine and he had nothing to do with the manufacturing or after sale service of the said machine. It is further submitted that there was no negligence or omission on the part of the second opposite party/dealer of the peeling machine manufactured by the first opposite party. Thus, the appellant/2nd opposite party prayed for absolving them from the liability to pay compensation to the complainant (first respondent). The appellant in Appeal 743/2000 has also filed argument note in support of the oral submission made by the counsel for the appellant. The learned counsel for the appellant in Appeal 644/2000 (first opposite party in OP.58/99) submitted his arguments based on the grounds urged in the memorandum of the present appeal. He canvassed for the position that the disputed peeling machine was not manufactured by the appellant/first opposite party and that the finding of the Forum below on the said issue cannot be upheld. The appellant herein has also challenged the correctness of the order passed by the forum below in appreciating the evidence on record. He also pointed out the failure to get the expert commissioners examined before the forum below. The appellant in Appeal 644/2000 also argued for the position that the complainant (1st respondent) is not a consumer and that the forum below had no jurisdiction to entertain the complaint in OP.58/99. It is further submitted that no part of the cause of action had arisen within the territorial jurisdiction of the CDRF, Kasaragod. Thus, the appellant requested to set aside the impugned order passed by the forum below. On the other hand, the first respondent in these appeals (complainant in OP.58/99) supported the impugned order passed by the forum below in OP.58/99. He much relied on the oral testimony of the complainant as PW1 and the reports submitted by the expert commissioners regarding the defects noticed in the peeling machine supplied by the second opposite party and manufactured by the first opposite party. He also placed reliance on the documentary evidence available on record and thereby prayed for dismissal of these 2 appeals. 8. The points that arise for consideration are:- 1. Whether the complaint in OP.58/99 is maintainable? 2. Whether the Consumer Disputes Redressal Forum, Kasaragod had the territorial jurisdiction to entertain the complaint in OP.58/99? 3. Whether the complainant in OP.58/99 on the file of CDRF, Kasaragod can be considered as a consumer as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986? 4. Whether the peeling machine supplied by the second opposite party in OP.58/99 was manufactured by the first opposite party M/s Crescent Foundry and Engineering Works, Cheruvannur, Feroke, Kozhikode? 5. Whether there was any manufacturing defect in the said peeling machine as alleged by the complainant in OP.58/99 on the file of CDRF, Kasaragod? 6. Whether there was any sort of deficiency in service on the part of the opposite parties 1 and 2 in OP.58/99 as alleged by the complainant ? 7. Is there any sustainable ground to interfere with the impugned order dated 22.5.2000 passed by CDRF, Kasaragod in OP.58/99? For the sake of convenience the parties to these appeals can be referred to according to their rank and status before the forum below (CDRF, Kasaragod) in OP.58/99. These 2 appeals are preferred from the same order passed by CDRF, Kasaragod in OP.58/99. This State Commission is pleased to dispose of these appeals by a common judgment. 9. POINTS 1 TO 3:- There is no dispute that the complainant Mr.Hassan purchased the peeling machine from the second opposite party/India Machine Tools Company on a sale consideration of Rs.3,34,880/-. The said purchase of the peeling machine is evidenced by Ext.P5, copy of the delivery note (bill) dated 23.4.98. The aforesaid delivery note was issued by the second opposite party, India Machine Tools Company. It would show that the brand new peeling machine size 4 Ft. to complete with all standard fittings without Electricals wire dispatched from Calicut to Kasaragod in a pick up van with Registration No.KL 11 C 9315. The complainant has categorically averred in the complaint and in evidence that the said peeling machine was supplied by the second opposite party at the premises of the complainant situated in Kasaragod. The aforesaid delivery Note dated 23.4.98 would establish the fact that the peeling machine was supplied by the second opposite party at the premises of the complainant in Kasaragod. The complainant as PW1 has categorically deposed about the purchase of the peeling machine from the second opposite party and delivery and installation of the same at the premises of the complainant in Kasaragod. The complaint in OP.58/99 is filed alleging deficiency in service on the part of the opposite parties 1 and 2, the manufacturer and the dealer of the said peeling machine in effecting sale and delivery of a defective peeling machine and their failure to rectify the defects noticed in the said peeling machine. The fact that the disputed peeling machine was supplied by the second opposite party and the same was installed at the premises of the complainant have not been disputed by the second opposite party who filed appeal 743/2000. The averments and the grounds urged in the appeal memorandum in Appeal 743/2000 would make it clear that the peeling machine was supplied by the second opposite party (appellant in Appeal 743/2000) and the same was delivered at Kasaragod. Thus, part of the cause of action had arisen in Kasaragod within the territorial jurisdiction of the CDRF, Kasaragod. 10. The case of the appellant in Appeal 644/2000 namely, the first opposite party in OP.58/99 that the opposite parties are carrying on business in Kozhikode and no part of the cause of action had arisen within the territorial jurisdiction of the CDRF, Kasaragod and so the complaint in OP.58/99 cannot be entertained by the forum below can be treated as an un-tenable and un-sustainable contention. More over, no such contention was adopted by the first opposite party in the written version filed in OP.58/99. The appellant in Appeal 644/2000 filed a petition as IA 167/09 to get the appeal memorandum and the written version in OP.58/99 amended. But, this Commission by the order dated 19.3.09 dismissed the aforesaid petition filed seeking amendment. Thus, it can very safely be concluded that the Forum below had the jurisdiction to entertain the complaint inOP.58/99. 11. The first opposite party (A.644/2000) has also got a case that the complainant in OP.58/99 is not a consumer and the dispute involved in the said complaint is not a consumer dispute. It is also contended that the complainant purchased the peeling machine for commercial purpose and so he cannot be termed as a consumer as defined under Section 2 (1) (d) of the consumer protection Act. But, the first opposite party omitted to note the pleading in the complaint that complainant is conducting peeling unit by name National peeling unit and the income getting from the said unit is the only source of income for his livelihood by meansof self employment. The aforesaid averment in the complaint has not been denied or disputed by the opposite parties especially, the first opposite party. Thus, the complainant can be considered as a consumer coming within the ambit of the definition ‘consumer’ as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986. The aforesaid averment in the complaint would make it clear that the complainant is entitled to the benefit of the explanation attached to or added to Section 2 (1) (d) of the Consumer Protection Act. The aforesaid explanation reads as follows:- “Explanation – For the purpose of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self employment.” 12. The aforesaid explanation would make it clear that a person who purchased goods for commercial purpose and used the same for the purposes of his livelihood by means of self employment can be considered as a consumer. In the case on hand, the complainant categorically averred in the complaint that he purchased the peeling machine for running the peeling unit exclusively for earning his livelihood by means of self employment. This averment is strengthened by the evidence of the complainant as PW1. He further deposed that for starting such a peeling unit he has also availed financial assistance from Corporation Bank. The aforesaid case of the complainant has not been challenged or disputed by the opposite parties. The aforesaid explanation would also make it clear that services availed by a person for commercial purpose if that service was availed for the sole purpose of earning his livelihood by means of self employment, then, such a person can also be considered as a consumer coming within the ambit of the Consumer Protection act, 1986. Thus, the complainant in OP 58/99is entitled for the benefit of the explanation to Section 2 (1) (d) of the Consumer Protection Act, 1986 and that he is a consumer as defined under Section 2 (1) (d) of the Consumer Protection Act. 13. The complainant has also got a case that the wood peeling machine purchased by the complainant from the second opposite party was having manufacturing defects from the very beginning and that the said peeling machine was having guarantee for 2 years against manufacturing defects. It is true that the written complaint is silent about the guarantee for the peeling machine but in the affidavit filed by the complainant it is averred in Para 7 that the second opposite party/dealer also gave guarantee against manufacturing defects for a period of 2 years with regard to the machine supplied. The complainant as PW1 has also admitted the fat that the guarantee card was not issued by the second opposite party/dealer and supplier of the machine. It is also deposed by PW1 that even after repeated request the second opposite party was prolonging the matter. But, it is come out in evidence that the peeling machine was delivered at the premises of the complainant on 23.4.98 and the same was installed immediately after its delivery on 23.4.98. It is the definite case of the complainant that from the very beginning of its installation the peeling machine was not functioning properly and he noticed mal functioning and the matter was reported to the second opposite party/dealer at the first instance and that the second opposite party took the complainant to the first opposite party and the mechanic of the first opposite party visited the premises. It is also the case of the complainant that the peeling machine was repaired at the instance of the first opposite party through M/s Sakthi Engineering Works. Ext.P6 letter and P7 copy of the bill would show that the repairs were effected during July ‘98. It can be seen that the defects or problems developed by the peeling machine immediately after its installation. There can be no doubt that the machine like peeling machine will be having guarantee/warrantee for some period. But the brand new peeling machine purchased by the complainant developed problems immediately after its installation. It is the duty of he dealer and the manufacturer of the machine to supply a defect free machine to the purchaser. It was also the duty of the dealer and the manufacturer of the machine to cure the defects which developed immediately after its purchase. Thus, the manufacturer and dealer, were bound to render service by curing the defects developed by the machine. It is a settled position that warrantee service is also service and that a person who availed services for commercial purpose during the warrantee period of the goods will come under the purview of the definition consumer. In other words, the services availed for commercial purpose during the warrantee period of the goods purchased would come under the purview of the Consumer Protection Act, 1986. It is true that the position has been changed after the introduction of the amendment of Section 2 (1) (d) (2) by amended Act62/2002 which came into effect on 15.3.03. After the said amendment, a person who availed services for commercial purpose has been kept outside the purview of the definition for ‘consumer’. But, in the present case, the purchase of the peeling machine and the deficiency in rendering service with respect to the after sale service was in the year 1998. So, the complainant who availed the services in connection with the purchase of the peeling machine would come under the purview of the definition consumer. Thus, in all respects, the complainant in OP.58/99 can be considered as a consumer and the dispute involved in the said complaint can also be treated as a consumer dispute. Hence, the complaint in OP.58/99 filed before the CDRF, Kasaragod is held as maintainable. These points are found in favour of the first respondent/complainant. 14. POINT NO 4:- The definite case of the complainant is that the peeling machine purchased by the complainant from the second opposite party/India Machine Tools Company was manufactured by the first opposite party M/s Crescent Foundry and Engineering Works, Cheruvanoor, Kozhikode. The second opposite party remained absent in the proceedings before the forum below in OP.58/99. They did not file their written version. But the second opposite party who filed Appeal 743/2000 challenging the correctness of the impugned order passed by the forum below has admitted the fact that the complainant purchased the peeling machine from the second opposite party and that the said peeling machine was manufactured by the first opposite party M/s Crescent Foundry and Engineering Works, Cheruvannur, Feroke, Kozhikode. But, the first opposite party who filed written version in OP.58/99 categorically denied the allegation that the peeling machine was manufactured by them. The first opposite party totally denied the case of the complainant that the peeling machine was manufactured by the first opposite party. They have also denied the case of the complainant that the second opposite party was the dealer of the first opposite party. According to the first opposite party they had no sort of connection with the second opposite party M/s.India Tools Company Ltd. and that there was no transaction of sale of the peeling machine between the complainant and the first opposite party. 15. The complainant who filed the affidavit in support of his case in the complaint has categorically averred in Para 18 of the affidavit that on the body of the peeling machine in bold English letters Crescent Foundry Engineering Works, CVR, Feroke was found. It is also stated that the aforesaid impression on the body of the peeling machine would show that the said peeling machine is manufactured by the opposite party No.1. It is also stated that both the expert commissioners have also noticed the aforesaid impression or engraving on the said machine. In Para 15 of the affidavit filed by the power of attorney holder of the first opposite party, it is stated that the English letters Crescent Foundry and Engineering Works etc. which are seen on the body of the peeling machine is falsely fabricated one. It is not the original trade mark of the first opposite party. But, the first opposite party has not produced the admitted or approved trade mark of the 1st opposite party. There is nothing on record to show that the aforesaid impression on the body of the peeling machine was falsely fabricated by anybody. In the very same affidavit in Para 16, it is averred that there is collusion between the complainant and the second opposite party and that the complainant had approached the second opposite party for the purchase of peeling machine with malicious motive. But the first opposite party has not adduced any evidence regarding the alleged collusion between the complainant and the second opposite party. There is also no whisper as to what purpose such a collusion was there between the complainant and the second opposite party. The mere fact that in the delivery note, it is written as the second sale, it cannot be treated that the peeling machine was an old one. On the other hand, it is specifically stated in the P5 delivery note and the other quotation and connected bills that the complainant purchased and the second opposite party sold a brand new peeling machine. It is admitted by the first opposite party they had been manufacturing peeling machines. If that be the position, they will be knowing the price of the said peeling machine. As per P5 delivery note and the other connected papers, it can be seen that the cost of the said peeling machine was 3,34,880/-. The first opposite party has no case that the said price is not that of a brand new peeling machine. It is also to be noted that expert commissioners who inspected the disputed peeling machine have no case that the said impression on the body of the peeling machine is a fabricated one. It is also to be noted that the first opposite party had no such case in their written version. 16. The material facts available on record would show that the first opposite party had the occasion to see the machine during 1998. The evidence on record would show that the peeling machine was repaired at the instance of the first opposite party through the repairer M/s.Sakthi Engineering Works. If the said trade mark was falsely fabricated, the first opposite party should have proceed against the persons who fabricated the trade mark. No such action was taken by the first opposite party. The very inscription or the impression of the trade mark of the first opposite party on the disputed peeling machine would strengthen the case of the complainant that the said peeling machine was manufactured by the first opposite party and the same was sold and supplied to the complainant through the second opposite party, India Machine Tools Company. 17. Admittedly, the second opposite party India Machine Tools Company is a dealer in such machineries. The first opposite party has no case that the second opposite party is not the dealer of such machines or machineries. The complainant issued lawyer notice and also filed the complaint in OP.58/99 alleging deficiency in service on the part of the opposite parties by treating the first opposite party as manufacturer of the peeling machine and second opposite party as the dealer of the manufacturer. It is also come out in evidence that the complainant has also taken the pleadings and adduced evidence stating that the peeling machine manufactured by the first opposite party was supplied by the second opposite party as dealer of the first opposite party. They also adduced evidence that the machine supplied by the second opposite party was having the trade mark of the first opposite party. Even thereafter, the first opposite party had not taken any stringent action against the second opposite party for acting as their agent and dealer. The so-called unauthorized action of the second opposite party in acting as the agent and dealer of the first opposite party has not been challenged or questioned before any authority. No action has been taken against the second opposite party for the alleged unauthorized and illegation action. All these circumstances would support the case of the complainant that the peeling machine manufactured by the first opposite party was supplied by the second opposite party and the said transaction was effected with the full knowledge and consent of the first opposite party. 18. The Forum below has correctly appreciated the evidence available on record especially, exhibits P6, P7, P8, P10 and P19 documents. The documentary evidence would establish the involvement of the first opposite party as the manufacturer of the disputed peeling machine. The available evidence on record and the evidence of PW1 would show that the first opposite party Crescent Foundry and Engineering Works, Cheruvannur, Feroke, Kozhikode took the initiative at the instance of the complainant to cure the defects developed in the peeling machine. The evidence of record would also show that the defects were repaired by the first opposite party through the Sakthi Engineering Works. The letter and the bill issued by M/s.Sakthi Engineering Works to the first opposite party would clingingly establish the fact regarding direct involvement of the first opposite party in repairing the peeling machine. The aforesaid circumstances and evidence would in turn strengthen the case of the complainant that the disputed peeling machine was manufactured by the first opposite party M/s Crescent Foundry and Engineering Works. The Forum below has also considered the oral testimony of PW1 with that of the testimony of DW1. The Forum below has rightly relied on the testimony of PW1. The power of attorney holder of the first opposite party as DW1, could not give any reasonable explanation for the outstanding amount shown in P10 document. The Forum below has rightly rejected the case of the first opposite party that an estimate of the work done by M/s Sakthi Engineering Works was made by the proprietor of M/s.Crescent Foundry and Engineering Works and that the said assessment or estimate was made at the request of the complainant. The aforesaid explanation given by the first opposite party can be treated as a cock and bull story. All the circumstances available would only give the inference that the first opposite party is the manufacturer of the peeling machine supplied by the second opposite party to the complainant. Thus, the finding of the forum below that the first opposite party M/s Crescent Foundry and Engineering Works, Cheruvannur, Feroke, Kozhikode is the manufacturer of the peeling machine supplied by the second opposite party to the complainant is to be upheld. Hence we do so. This point is found accordingly. 19. POINTS 5 & 6:- The complainant alleged manufacturing defects in the wood peeling machine supplied by the second opposite party and manufactured by the first opposite party. To substantiate the case of the complainant regarding manufacturing defects in the peeling machine, the complainant filed a petition to get the peeling machine examined by a commission. The forum below allowed the said commission application and thereby a joint commission was appointed M/s.B.V.Kakkillaya, an engineering degree holder in Mechanical Engineering and C.J.Raphel, a Diploma holder in Mechanical Engineering were appointed as the commissioners. The joint commissioners inspected the peeling machine on 21.11.99 in the presence of both the parties. But, instead of filing a joint commission report they filed separate reports. The report filed by the joint commissioner B.V.Kakkillaya was marked before the forum below as Exts.C1, and the report filed by the joint commissioner C.J.Raphel was marked as Exts.C2. It is to be noted that Sri.B.V. Kakkillaya was included in the panel of experts submitted by the complainant and that the name of Sri.C.J.Raphel was given by the first opposite party M/sCrescent Foundry and Engineering Works. 20. The commissioners could detect the defects in the said peeling machine. It is reported in C1 commission report filed by the expert B.V.Kakkillaya that the main drive shaft of the peeling machine is found rotating slightly off-centre and is vibrating due to a slight bend in the shaft. The other commissioner C.J.Raphel has also pointed out the very same defect in rotation of the drive shaft and the bend in the said shaft. Both commissioners have also detected defect in the gear system and also reported that the gear provided for the said peeling machine was damaged. It is also reported that the alignment of the said gear is also not correct. It is further reported by both the commissioners that the safety guards provided for the rotating parts of the wheels are not adequately provided that there is defect in the spindle gear provided for the machine. They have also reported that the peeling knifes provided for the peeling machine are not properly fabricated and the same are fabricated by using scrap pieces and materials. It is also reported that the fixing arrangement of the knife in the peeling machine is not properly done and that the rails for the carriage and their supporting structures are not strong enough and they vibrate during working. Thus, the reports submitted by the commissioners would make it clear that there were so many defects in the peeling machine and those defects could be considered as manufacturing defects. 21. The complainant had no objection to C1 commission report which verified by the joint commissioner B.V.Kakkillaya and that the first opposite party did not file any objection to the report filed by the joint commissioner, C.J.Raphel. Both the reports would show common defects in the said peeling machine. Thus, both the complainant and the first opposite party agreed to the common findings of the joint commissioners regarding the defects in the disputed peeling machine. The Forum below has not given much importance to the C1 and C2 expert reports because of the fact that the expert commissioners were not examined before the forum below. It is to be noted that the joint commissioners were appointed by the Forum below and the experts were appointed at the request of the complainant and the first opposite party. More over, both the complainant and the first opposite party admitted the common defects pointed out by the commissioners because of the fact that they have not filed objection to those aspects. Thus, C1 and C2 expert reports would prove the case of the complainant that there were inherent defects in the peeling machine supplied by the second opposite party and manufactured by the first opposite party. This Commission have no hesitation to approve the conclusion of the Forum below that there were manufacturing defects in the disputed peeling machine purchased by the complainant. The documentary evidence would also show that the aforesaid defects were noticed by the complainant at the very beginning of its installation at his premises and that the opposite parties 1 and 2 were well aware of those defects. It would also show that at their instance attempt was made to cure those defects. The correspondence between the complainant and M/s Sakthi Engineering Works and also between the first opposite party and M/s.Sakthi Engineering Works would make it abundantly clear that the first opposite party attempted to get those defects in the peeling machine rectified through M/s.Sakthi Engineering Works, but failed in that attempt. 22. The second opposite party the supplier of the machine to the complainant would contend in their Appeal 743/2000 that they were only the dealers of the first opposite party/manufacturer and they cannot be made liable for the manufacturing defects detected in the peeling machine. It is to be noted that the evidence on record would show that the second opposite party, the dealer supplied a defective machine to the complainant. It could be seen that the second opposite party/ dealer supplied the defective machine by suppressing the defects in the said machine. It is come out in evidence that there were inherent defects in the machine, as and when the same was supplied to the complainant. So, supplying a defective machine would amount to deficiency in service. The second opposite party who received the consideration from the complainant was bound to effect sale and supply of a defect free peeling machine. On the other hand, the second opposite party dealer effected the sale and supply of a defective peeling machine. The materials on record are sufficient enough to come to a definite conclusion that the second opposite party supplied a defective machine. It can also be seen that the second opposite party dealer failed to issue the warranty or guarantee for the brand new peeling machine supplied to the complainant. It can also been seen that the second opposite party was keeping mum about the defects in the peeling machine and they failed to take any effective steps to get the defects rectified. It is also to be noted that the second opposite party remained absent in the proceedings in OP.58/99. There is no reasonable explanation for their failure to defend the case in OP.58/99. It is alleged by the appellant in A.743/2000 (second opposite party in OP.58/99) that their previous Manager was negligent in defending the case. But it is not disclosed who was the previous Manager and what steps the second opposite party had taken against the then Manager. It is also not stated as to when the said previous Manager was removed from the service of the second opposite party. There is only a vague statement in the appeal memorandum in Appeal 743/2000 that the second opposite party could not defend the case because of the negligence of their previous Manager. The appellant has not even mentioned the name of the previous Manager. Thus, in all respects, it can very safely be concluded that the second opposite party dealer of the peeling machine was also negligent and there was deficiency in service on the part of the second opposite party dealer. The Forum below has rightly made the second opposite party is also liable for the deficiency in service in effecting the sale of a defective peeling machine to the complainant. 23. The forgoing discussions and the findings would show that the opposite parties 1 and 2 effected sale and supply of a defective peeling machine to the complainant. Therefore, the forum below is perfectly justified in finding that there was deficiency in service on the part of the opposite parties 1 and 2. The said finding of the forum below is upheld. 24. POINT NO 7:- The forum below awarded a total of Rs.3,47,210/-. It would take in the sale consideration of 3,34,880/- paid by the complainant to the second opposite party/dealer and the amount of Rs.10,500/- paid to the M/s Sakthi Engineering Works towards the repairing charge. The forum below has rightly directed the opposite parties 1 and 2 to pay a sum of Rs.3,47,210/- to the complainant. The forum below has also awarded interest at the rate of 15% per annum on the principlal amount of Rs.3,34,880/- from 5.11.97 onwards. It is to be noted that on 5.11.97 the complainant had only paid Rs.50,000/- to the second opposite party, the deader of the first opposite party. But, the balance sale consideration of Rs.2,84,880/- was paid only on 15.4.98. So, the Forum below cannot be justified in awarding interest from 5.11.97 onwards. It is to be noted that the complainant has been using the peeling machine to some extent. It is true, that he had to face so many problems in using the said peeling machine. Exts. C1 and C2 reports of the expert commissioners would also make it clear that the said peeling machine was in a working condition and that the peeling machine could not be used to the expected or desired result. But, it is come out in evidence that the complainant had been suing the said peeling machine with much difficulties. The forum below has not considered that aspect regarding the use of the machine by the complainant. We are of the view that the interest awarded from 5.11.97 cannot be upheld. The facts, circumstances and available evidence on record would give an indication that the use of the said machine by the complainant is also to be taken into consideration. If that be so, the interest can only be awarded from the date of the complaint in OP.58/99. The rate of interest at 15% can be treated as excessive. The same being on the higher side, we are pleased to reduce the rate of interest from 15% per annum to 9% per annum. So, the order passed by the forum below regarding payment of interest is modified and thereby interest at the rate of 9% is awarded from the date of the complaint in OP.58/99 i.e. 9.3.’99. 25. By the impugned order the opposite parties are directed to refund the sale consideration received from the complainant. But, no order is passed with respect to the handing over of the defective machine to the opposite parties. On getting refund of the price of the machine, the complainant is bound to return the defective machine. So, the impugned order is modified to the effect that on acceptance of Rs.3,47,210/- with interest at the rate of 9% per annum from the date of the complaint in OP.58/99 the complainant shall return the defective peeling machine to the opposite parties. The cost of Rs.500/- awarded by the forum below being reasonable, the same is upheld. Thus, the impugned order dated 22.5.2000 passed by the forum below is modified as indicated above. This point is answered accordingly. In the result, these appeals are allowed to the extent as indicated above. The impugned order dated 22.5.2000 passed by CDRF, Kasaragod in OP.58/99 is modified. And thereby the appellants in these appeals (namely Opposite parties 1 and 2 in OP.58/99) are directed to pay a sum of Rs.3,47,200/- with interest at the rate of Rs.9% per annum on the principal amount of Rs.3,34,880/- from the date of the complaint in OP.58/99 till the date of payment/realization. The complainant is also entitled to get cost of Rs.500/- from the opposite parties. On acceptance of the said amount with interest and cost, the complainant shall surrender possession of the defective peeling machine to the opposite parties. As far as these two appeals are concerned, the parties are directed to suffer their respective costs. M.V.VISWANATHAN -- JUDICIAL MEMBER M.K.ABDULLA SONA -- MEMBER |
