<br /> By SRI.K. VIJAYAKUMARAN , PRESIDENT<br /> <br /> The complaint is filed by the complainant for realization of Rs.91,172/- being the price of the Machine purchased and compensation and costs.<br /> <br /> The averments in the complaint can be briefly summarized as follows:<br /> The complainant in connection with a self employment project started a small scale unit for manufacturing health mix called ‘Aspin’. For packing of the finished output, the complainant has purchased a semi automatic filling machine inviting quotation. The 2nd opp.party submitted a quotation to supply the above machine for a cost of Rs.75,600/- excluding tax, duty and installation charges. The 2nd opp.party made the complainant believe that the filling machine is a product of good quality performance and output, manufactured by the 1st opp.party and it is free from any operational constraints/hazards/ The 2nd opp.party has also appended performance certificate issued by similar concerns like Coimbatore Arya Vaidya Pharmacy and Kerala Financial Corporation. The complainant accordingly purchased a semi automatic filling machine on 6.1.2003 at a cost of Rs.75,600/- from the opp.parties .The entire sale consideration with taxes and installation charges were also paid. For installing of the machine the first opp.party sent his mechanics. On installation, they have conducted trial runs. But the performance of the machine was not at all to the mark The machine never gives constant quantity of materials on filling by weight and it will not weigh or carry more than 470 gms. as against the expected quantity of 500 grams. The time for filling was also three times than compared to manual filling of each pouch/Jar. The purpose of the machinery is not materialized and it becomes useless. The mechanics have also not to given a satisfactory reply about the inadequate performance of the machine. Though the mechanics were convinced of the defects and deficiency of the machinery they escaped from the spot on the hollow assurance that everything will be all right. The opp.party has not taken any steps to rectify the defect of the machine and put it operational The consistent complaints sent by the complainant to both the opp.parties did not yield any result. The written direction given by the 2nd opp.party to the 1st opp.party as per the letter dated 26.3.2004 was also left uncared by the 1st opp.party who is none other than the manufacturer. The complainant <br /> -3-<br /> strongly believe that the machine manufactured by the 1st opp.party and supplied by the 2nd opp.party is suffering from manufacturing defect. The machine is idling over one year after purchase and the complainant is still engaged in manual filling. The complainant has purchased the machine by availing loan from the bank. The complainant is incurring financial loss every day due to the faulty and defective machine installed by the opp.party. Since the machine is not functioning properly and suffering from manufacturing defect the complainant no longer wants the filling machine. Hence he wants refund of the prize. The complainant is also entitled to get damages and costs. Hence the complaint<br /> <br /> The 2nd opp.party is set exparte. The first opp.party filed version contending as follows: The complaint is false. The averments made in para 1 and 2 are false. The first opp.party are the Pioneer Manufacturers of the filling and sealing machines and they have supplied many number of machines in and around southern states. Through the 2nd opp.party the 1st opp.party had supplied filling and sealing machines to the complainant. The complainant has purchased the machine after inspecting the machines in person and knowing the technical details. The allegation that the performance of the machine is not up to the mark is false. The 1st opp.party used to install machines and conduct trial runs in the presence of the parties /buyers. Likewise the technicians of the 1st opp.party has installed machine and made the trial run in the complainant’s factory itself and she was satisfied. The allegations in para 2 are false. The first opp.party has supplied machine for filling of 500 grams of powder by using a measuring cup. The complainant had visited the factory of the first opp.party and technicians had explained the technology of the machine and given clear instruction that filling should be done in premade pouches with large mouth diameter for the best and exact results. Since the complainant informed that she is going to use this machine for the health mix powder, the technicians had instructed the complainant unless otherwise the moisture of the powder is constant, the weight may vary with the tolerance of 10% in the moisture is less the volume of the product will be more and it will be uniform in weight. If there is any variation in the weight, it may be due to the moisture in the powder content. Hence it cannot be termed as manufactural or technical defects. The complainant has not made any complaint about the working mechanism of the machine which would show that there is no manufacturing defect. The averments in para 3 is false and the 1st opp.party submit that at the time of installation the technicians of the of the 1st opp.party has explained about the technical details and also gave clear instructions of the operation. If really there was any mistake at the time of installation the complainant might have taken steps immediately. So the averments that the defect and deficiency in the machine is false. As per the complaint there is no manufactural or technical defects. So the complaint is liable to be dismissed as against the 1st opp.party. The complainant had sent a letter to the 2nd opp.party in turn it was sent to the 1st opp.party for which a reply letter was sent on 9.4.2004. The averments in para 4 are false. The complainant has not given any records to show that there is a manufactural technical defects. The 1st opp.party had supplied sealing machine to the same complainant, which is working in very good condition . The complainant has filed this complaint in order to delay the repayment of the loan to the bank from whom the complainant has availed<br /> <br /> loan . Since there is no manufacturing or technical defects in the machine, the 1st opp.party is not liable to pay any compensations. The 1st opp.party submits that they made a special alteration to suit the requirement of the complainant .So it is not possible to take back the machine from the complainant. The 1st opp.party had manufactured the machine which has been sold to the complainant by the 2nd opp.party. Hence the 1st opp.party prays to dismiss the complaint.<br /> <br /> Points that would arise for consideration:<br /> 1. Whether the complainant is a consumer or not ?<br /> 2. Whether there is any manufacturing or technical defects to the machine.<br /> 3. Whether there is any deficiency in service on the part of the opp.party.<br /> 4. Reliefs and costs.<br /> <br /> For the complainant PW.1 is examined. Ext. P1 to P15 are marked.<br /> For the opp.party DW.1 is examined. Ext.D1 is marked.<br /> <br /> Point.I<br /> <br /> The 1st opp.party is the manufacturer and 2nd opp.party is the dealer.<br /> The case of complainant is that she purchased a filling machine for filling powder in Premade pouches along with certain other machinery from opp.party 2 which was being manufactured by opp.party 1 as per Ext.P2 availing a loan from SBT, Chavara evidenced by P1 to P3, that after installation when trial run was made it was seen that the machine was not working properly and so she issued Ext.P5 letter to opp.party 2 for which <br /> Opp.party 1 issued Ext.P6 reply informing that they are sending their technicians for running the machine, that in pursuant to Ext.P6 one Solomon and Devid were sent who though attempted to rectify the mistake could not repair the same evidenced by Ext.P7 and they returned agreeing to send some other competent person, that since nobody turned up she again issued Ext.P8 letter to opp.party2, that since there was no response she again sent Ext.P10 letter, that finally Ext.P11 Advocate notice was issued which were accepted by the opp.parties but so far the machine was not repaired that the machine has manufacturing defect and that since the machine is not giving the expected result the opp.party may be asked to refund the price of the machine.<br /> <br /> The contention of the opp.party is that the complainant is not a consumer within the meaning of Sec. 2[1] [d] of Consumer Protection Act as she purchased the machine for commercial purpose. That argument is not tenable. The complainant is alleging manufacturing defect and deficiency in service and even if the machine is purchased for commercial purpose complaint against manufacturing defect is maintainable and reliance can be drawn from the decision of National Commission reported in 2006 NCJ 621. The National Commission has held in the decision reported in 2007 [ii] CPJ 231 that if the complaint is relating to defects during warranty period the limitation of commercial purpose is not attached to service rendered by the seller in lieu of warranty. Apart from that the complainant has purchased the machine for self employment availing loan as per Ext.P1 and as such we are of the view that she is a consumer within the meaning of section 2 [1] [d] of Consumer Protection Act. Therefore, we hold that the complainant is a consumer and complaint is maintainable before this Forum. Point found accordingly.<br /> <br /> Point:2<br /> The case of the complainant is that the machine was purchased for the purpose of packing Health Mix at a specified quantity of 500 gm but the machine will not pack more than 470 gms and that it takes time 3 times than manual filling and that the mechanics deputed by opp.party 1 were also satisfied of this aspect and they went back assuring to send another mechanic who never turned up. There is no dispute that the machine was installed in the premises of complainant by 1st opp.party who has also conducted the trial run. The definite case of the complainant is that the trial run was not satisfactory. Though DW.1 would claim that the trial run was successful there is no material to show that the trial run was successful and the performance of the machine was to the standard . As argued by the learned counsel for the complainant the product was for sale and if the machine pack lesser quantity it may amount to offences under the Package and Commodities Act and also cheating the customers. There is much force in that contention.<br /> <br /> Ext. P7 is the service report prepared by the mechanics deputed by opp.party.1 In Ext. P7 it is clearly stated that the filling is not correct. DW.1 disputes the veracity of Ext.P7, but he admitted that the mechanics referred to therein were his employees Ext. P5 to P9. would show that the complaint has been addressing opp.parties for the purpose of getting the machine repaired but it is of no avail. In this context it is worth pointing out that opp.party 2 the dealer has addressed 1st opp.party regarding the defect of the machine as per Ext.P9 which also would reveal the negligence on the side of opp.party. DW.1 has stated in chief examination page 2 that trial run was successful and that they got a report from consumer. If so, where is it? In cross examination DW.1 admitted that there is no such document.<br /> <br /> The definite contention of the complainant is that the packing machine could not be used because of the defect and the non production of any satisfaction report from the complainant itself is sufficient to establish that aspect. The learned counsel for the opp.party is relying on Ext.D1 for proving that the Engineer of opp.party 1 company visited the complainant’s company and checked the performance of the machine [Argument note page 3 pare 2] and made check report in which the complainant has also signed. Of course Ext.D1 would show that the service Engineer of opp.party 1 visited complainant’s company for rectifying certain faults reported. ie. Conveyor belt cleaning, pouch ceiling, cleaning, cup tap weight checking, cleaning etc. But in Ext. D1 in the column action taken it is stated Nil which means no action has been taken to rectify the faults. Ext. D1 also lent support to the contention of the complainant. Had the machine worked satisfactorily at trial run naturally the opp.party would have obtained a certificate to that effect from the customer and the non production of such a certificate, as already said leads to an irresistible conclusion that there was no satisfactory trial run. Exts. P1 to P10 and the evidence of PW.1 and DW.1 would clearly indicate that the packing machine was defective and one or two attempts from the side of opp.party did not cure the defects. A commission was issued from this Forum. The Commission though issued notice to opp.party, he did not turn up for inspection. The Commission has also reported in Ext,P13 report that the pack9ng machine is not working and the manufacturer has to set the machine in operable condition.<br /> <br /> It is argued by the 1st opp.party that the defect of the machine is due to certain acts of the complainant. According to him the filling should be made in a premade pouch with large mouth diameter for the best and exact result and that unless otherwise the moisture of the powder is constant the weight may vary with tolerance of 10%. But Ext.P14 and P15 certificate issued by Central Food Technologist Research Centre show that the moisture contents of the complainant powder was 4% to 5.7% respectively which is less than 10%. Therefore, the contention of the 1st opp.party regarding moisture fails. These aspects would clearly show that the machine suffer from manufacturing defect and the opp.party failed to rectify the same which means that there is deficiency in service on the part of opp.party. It is also worth pointing out in this context that the very same type of machine supplied by the opp.party developed same complaint’s and the District Forum Coimbature allowed the complaint and the opp.party 1 was directed to refund the price. <br /> Another contention of the opp.party is that the machine cannot be taken back as certain special alteration to suit the requirement of the <br /> complainant was made to the same. Even though such an alteration is made the machine could not be made operable. In such circumstance the opp.party has to take back the machine The learned counsel for complainant argued that due to the manufacturing defect of the machine the complaint suffered mental agony and financial loss. She also could not repay the loan properly. For all that has been discussed above we hold that there is manufacturing defect to the packing machine supplied by opp.party to the complainant and that there is deficiency in serviced on the part of the opp.party. Point found accordingly.<br /> <br /> In the result the complaint is allowed directing the opp.party to refund Rs.75,600/- with 7.65% central Excised duty and 4% tax. The opp.party is also directed to pay Rs.25,000/-as compensation and Rs.5,000/- towards costs. The order is to be complied with within one month from the date of this order.<br /> <br /> Dated this the 8th day of July, 2008.<br /> <br /> <br /> .<br /> I N D E X<br /> <br /> List of witnesses for the complainant<br /> PW.1. – Suliakha<br /> <br /> List of documents for the complainant<br /> P1. – Proceedings<br /> P2. – Invoice<br /> P3. – Photocopy of D.D<br /> P4. – Letter of warrantee dt. 13.7.2002<br /> P5. – Copy of complaint letter dt. 7.7.2003<br /> P6. – Reply letter<br /> P7. – Service report dt. 10.12.2003<br /> P8. – Copy of letter sent lby 2nd opp.party to 1st opp.party<br /> P9. – Reply olf Ext.P8<br /> P10. – Copy of complaint dt. 10.5.2004<br /> P11. Advocate notice<br /> P12. – Acknowledgement cards<br /> P13. - Expert report<br /> P14. – Letter sent by R. Ethijan to the M/s. Equipment Agencies<br /> P15. – Test Certificate.<br /> <br /> List of witnesses for the opp.parties<br /> DW.1. Ethirajan<br /> <br /> List of documents for the opp.parties<br /> D1. – Complaint service report.<br /> <br /> <br />