Per Shri B.A.Shaikh, Hon’ble Presiding Member.
1. This appeal is filed by the original complainant feeling aggrieved by the order dated 16/12/2011 passed by the District Forum, Chandrapur in consumer complaint No.90/2011, by which the said complaint has been dismissed and direction has been given to the complainant to deposit fine of Rs.500/- with the District Forum and to pay cost of Rs.500/- to each of the opposite party (for short O.P.) Nos.1 and 2.
2. The original complainant who is the appellant had filed a consumer complaint initially against the O.P.No.1 namely Laxmi Agro Products, under Section 12 of the Consumer Protection Act, 1986, on the ground in brief that he purchased the Thresher Machine and Wheat Kenko and Lakhori Seive for Rs.1,35,000/- from the O.P.No.1. He alleged that after a long delay, the O.P.No.1 provided him only Thresher Machine and did not provide other above two machines. He also alleged that the defect was occurred in the said machine during operation and intimation of the same was given to the O.P. No.1 who deputed a mechanic, but the said mechanic could not repair that machine and for that repairing the complainant incurred expenses of Rs.600/- and also Rs.560/-. He therefore issued notice to the O.P.No.1 on 04/05/2011. But despite receiving that notice, the O.P.No.1 did not remove the defect from that machine. He therefore prayed for in the complaint that direction be given to the O.P.No.1 to get repaired the machine with warranty or to provide him new Thresher Machine with warranty or in the alternative to refund him Rs.1,35,000/- with interest @ 12% p.a. and also to pay him compensation of Rs.50,000/- for the loss sustained by him and further compensation of Rs.25,000/- for physical and mental harassment and also to pay him Rs.30,000/- for not providing remaining two machines and also to pay him litigation cost of Rs.6000/-.
3. The O.P.No.1 after receiving notice from the Forum appeared before the Forum and filed reply. He denied the allegations made in the complaint and submitted that the complainant had booked the Thresher Machine for paying Rs.5000/- to him and that he is not a manufacturer of the machine. According to him the manufacturer of the machine is Hindustan make Paddy and Multi Crop and if there is manufacturing defect in the machine, then the manufacturer only can be liable for the same. It is his further case that he runs the shop namely “Laxmi Automobiles and Tyre-Tubes”. The complainant wanted Thresher Machine of Hindustan make Paddy and Multi Crop company and therefore O.P.No.1 acted as mediator in between complainant and Hindustan make Paddy and Multi Crop company. The complainant paid Rs.1,00,000/- on 31/10/2010 for purchasing that Thresher Machine. Though the complainant had agreed that he will pay balance price of Rs.25,000/- but he never paid that amount and filed false complaint. He also submitted that the complainant is not his consumer and there is no relationship of consumer and dealer in between both of them and his complaint is not maintainable before the Forum. He therefore requested that complaint may be dismissed with compensatory cost of Rs.10,000/-.
4. During the pendency of the complaint, at the time of final hearing of the complaint, the complainant filed an application seeking permission from the Forum to implead the manufacturer of the machine namely “Hindustan make Paddy and Multi Crop Company” as O.P.No.2 in the complaint. On his said application the said manufacturer of the Thresher Machine was impleaded in the complaint as O.P.No.2 and notice was issued to it. In pursuance of that notice, O.P.No.2 appeared before the District Forum and resisted the complaint by filing reply.
5. The O.P.No.2 submitted in brief is as under.
The complainant has not stated as to what is the manufacturing defect in the machine. He has not filed report of an expert showing manufacturing defect. The demand of the machine was made by the O.P.No.1 and on his demand the O.P.No.2 sold one Thresher Machine in good condition to O.P.No.1 on 23/10/2010. There was no warranty or guarantee about the machine. Manual is provided alongwith the machine giving information as to how the machine is to be operated. There are 20 bearings in the machine and there is no question of occurring of any defect in the said bearing. Whole machine is made from iron and there is no question of occurrence of fire in the machine. The complainant used that machine during the months of November and December of the year 2010 and January and February of the year 2011 and sent notice through his advocate. There is no manufacturing defect in the said machine and complainant never requested the O.P.No.2 to get the machine repaired. There is also no specific case of the complainant that there is manufacturing defect in the machine. Hence the O.P.No.2 had requested that the complaint may be dismissed with compensatory cost of Rs.10,000/-.
6. The District Forum below after hearing both the parties and considering evidence brought on record, accepted the aforesaid case of the O.P.Nos.1 and 2 and dismissed the complaint as above.
7. Feeling aggrieved, the complainant has filed this appeal. The learned advocate of the complainant and the O.P.No.1 filed written notes of argument in appeal. The learned advocate of the O.P.No.2 adopted the written notes of arguments filed by O.P.No.1. The appeal was adjourned from time to time for final hearing. However none for the appellant appeared for final hearing since 26/04/2016 though the appeal came to be adjourned eight times since then till this date of final hearing. Therefore after hearing advocate of the O.P.No.2 who is present to-day, we have proceeded to decide the appeal on merit. Advocate Mr.Linge appeared for the OP.No.1 and we have heard him. We also perused the entire record of the appeal.
8. The learned advocate of the original complainant/appellant in his written notes of arguments mainly submitted that the District Forum below has not properly considered the evidence brought on record and that District Forum itself ought to have appointed an expert for verification of the defects which was bonafidely complained about by the original complainant and therefore this complaint can be remanded to the District Forum alongwith the direction to appoint an expert for genuine non biased opinion so that the complaint can be decided a fresh on merit and appellant get justice.
9. According to learned advocate of appellant, the Forum has adopted hyper technical approach by relying on the versions of O.P.Nos.1 and 2 and not adjudicating the question of defect in the thresher as complained by the appellant. He therefore requested that the appeal may be allowed and complaint may be granted or in the alternative it may be remanded as above.
10. The learned advocate of the O.P.No.1 supported the impugned order and submitted that the burden lies on the complainant to prove his case and he failed to prove the same that there was any defect in the machine and it was not working properly. According to him, as there was no expert report, the Forum has rightly dismissed the complaint.
11. The learned advocate of the respondent No.2/original O.P. No.2 also made the same submission. He has also argued that though the O.P.No.2 was subsequently added in the complaint, no averment in the entire complaint was made against O.P.No.2 showing as to how the O.P.No.2 is liable for the alleged defect in the machine. According to him there was no privity of contract in between the complainant and O.P.No.2 as the machine was sold by O.P.No.2 without any guarantee or warranty to O.P.No.1 and that O.P.No.2 therefore can not be held responsible to pay any compensation or to refund the amount or to provide the new machine with warranty to the original complainant.
12. It is pertinent to note that the complainant has not brought any evidence on record to show that the O.P.No.1 is the authorized dealer of the machine manufactured by O.P.No.2. In the instant case, the complainant purchased the machine from O.P.No.1. Therefore we find that as it is not proved that the O.P.No.1 was duly authorized by the O.P.No.2 to sell the machine, and as it is seen from the case of O.P.No.2 that it had sold the machine to O.P.No.1 only, then under these circumstances the complainant is not entitled to make any claim against O.P.No.2 for defect in the machine.
13. If for the sake of argument it is accepted that the O.P.No.1 sold the machine to the complainant as authorized by O.P.No.2 then also we find that it was incumbent on the complainant to prove by adducing cogent evidence that there was manufacturing defect in the machine. According to the complainant, the mechanic deputed by O.P.No.1 had tried to repair the machine, but it was not repaired. However, we find that in the absence of expert opinion or any other evidence, it can not be proved on the basis of two receipts filed on record by the complainant that there was manufacturing defect in the machine and the said defect could not be removed.
14. We find that it was necessary for the complainant to give intimation of the manufacturing defects to the manufacturer i.e. O.P.No.2 requesting to remove the said defect. The complainant had not giving any such intimation of the defect in the machine of the manufacturer. Therefore O.P.No.2 had no opportunity to inspect the machine and remove defect if any found in it.
15. It is also not the case of the complainant that there was any warranty or guarantee given by the O.P.Nos.1 and 2 for the said machine. We also find that besides two receipts there is no evidence that the machine could not be repaired despite of making attempt by the mechanic. Hence we are of the considered view that the District Forum below has properly considered the evidence brought on record and came to right conclusion that there is no merits in the complaint and it rightly dismissed the complaint. Therefore the appeal deserves to be dismissed. Hence the following order.
// ORDER //
- The appeal is dismissed.
- No order as to cost in this appeal.
- Copy of this order be furnished to both parties free of cost.
