By Smt. C.S. Sulekha Beevi, President,

Both the above cases are similar. Opposite party and issues involved being the same the cases are considered together and disposed by this Common Order.

C.C.No.33/08 (Facts)

1. The complainant purchased a bush cutter machine from opposite party on 22-11-2007 by paying Rs.15,500/-. At the time of purchase complainant was made to believe that the machine will work without any trouble for 500 hours and can be used continuously for 8 hours. The complainant used the machine in his agricultural land. But the machine stopped working within an hour of use. On informing opposite party and after inspection of the defects by opposite party complainant was asked to take the machine to opposite party's Palakkad Head Office for repair. On 03-12-2007 complainant entrusted the machine at Palakkad Head Office for repairs. On 07-12-2007 complainant took delivery of the machine after repairs. But the machine again stopped working after 20 minutes. On intimating opposite party, an employee from the shop of opposite party came to the site where the machine was used and took the machine for repair. Thereafter opposite party has neither returned the machine after repairs nor replaced with new one. Complainant approached opposite party and requested to give a machine for temporary/stand by use and took a machine. Opposite party filed a complaint before the Nilambur police and by the intervention of Sub Inspector complainant returned the new machine and opposite party assured to return the old machine after effecting repairs. But opposite party has not returned the machine and has not replaced. Hence this complaint.

2. Version was filed by opposite party admitting the sale of bush cutter to complainant. Opposite party submits that complainant is using the machine for commercial purpose and is not a consumer. It is further submitted that opposite party is not the manufacturer of the machine and that the machine is made in China. Opposite party purchases it from whole sale dealers and sells it to customers. That there is no warranty or guarantee for the machine. That opposite party only does repairs in case of defects. That there are machines costing Rs.39,500/- which have guarantee. There are 2 stroke and 4 stroke machines. The 4 stroke costs of Rs.15,000/- and has more mileage with less power. That complainant has used the machine in the estate of his relative and has earned profit of Rs.50,000/-. That thereafter he has been giving the machine for hire on rent basis. It is stated that the machine became defective only due to rash use and over use. That it has no inherent manufacturing defects. Opposite party states that complainant was asked to pay Rs.600/- for the repairs and he reacted to this in a bad manner. That the complaint was filed thereafter. It is also stated that after making the machine defective by over use, complainant and his henchmen came to the shop room of opposite party and took another new machine forcibly. Opposite party then lodged a complaint before the Nilambur police and on the mediation of Sub Inspector, complainant returned the new machine. As per the mediation opposite party repaired the old machine but complainant did not turn up to take delivery of the same. The other allegations are denied as false. It is submitted that the defects can be rectified. That there is no unfair trade practice.

3. Evidence consists of the proof affidavit filed by complainant and Ext.A1 to A4 marked for him. Opposite party filed counter affidavit. No documents marked for opposite party. Witness on behalf of opposite party was examined as DW1. Opposite party did not seek any opportunity to cross examine and has not made any application for the same. Both sides adhered to and adopted to adduce evidence by affidavit and documents except for the oral evidence of DW1.

4. C.C.No.111/08 (Facts)

Complainant who is an agriculturist purchased a bush cutter machine from opposite party on 21-01-2008 for Rs.15,500/-. Within a few hours of it's working the machine became defective and stopped. The machine was entrusted to opposite party for repairs. After a long delay of one month the machine was returned after repairs. But the machine again stopped functioning after a few hours of working. On 24-4-2008 the machine was again entrusted to opposite party. But opposite party has not returned the machine after repairs to the satisfaction of the complainant. Though opposite party had assured that the machine can be used continuously for 8 hours the machine could not be used by the complainant even for a few hours. Hence this complaint.

5. Version was filed by opposite party stating that the complainant used the machine for commercial purpose and is not a consumer. Denying manufacturing defects to the machine it is stated that the machine purchased by the complainant is a small sized bush cutter and should be used very carefully. That complainant used the machine for commercial purpose employing workers. The machine developed defects only due to rash use. That the machine has no guarantee or warranty. Opposite party used to repair the defects. Opposite party admits that complainant had entrusted the machine for repair on 24-4-2008. The defects are due to rash and negligent use. Opposite party repaired the machine. But complainant did not take delivery of it and stated that he does not need it any more. Opposite party submits that it is not correct to say that the machine will work trouble free for 500 hrs and can be used continuously for 8 hours. The other allegations are denied. That complainant is not entitled to any reliefs.

6. Evidence consists of the proof affidavit filed by complainant. Exts.A1 to A4 marked for him. Opposite party filed counter affidavit. No documents marked for opposite party. Witness on behalf of opposite party was examined as DW1. Opposite party did not seek any opportunity to cross examine complainant and has not filed any application for the same. Complainant did not seek any opportunity to cross examine opposite party and has not filed any application for the same. Both sides adhered to and adopted evidence by affidavit and documents except for the oral evidence of DW1.

7. Points for consideration:-

(i) Whether complainants are consumers?

(ii) Whether opposite party has committed any unfair trade practice?

(iii) If so, relief and costs.

8. Point (i):-

In both cases opposite party has denied the complainants to be consumers contending that the machine is purchased for commercial purpose. Apart from the vague affirmation in the counter affidavit there is no reliable evidence adduced by opposite party to establish this contention. The burden lies upon opposite party who asserts this fact. Further complainants have stated that the machines became defective while using in their agricultural land. We therefore hold that the machine was not purchased for commercial purpose and that the complainant is a consumer.

9. Point (ii) & (iii):-

Complainants are aggrieved that the bush cutter machine purchased from opposite party became defective. Though opposite party denies any inherent manufacturing defect the alleged defects occurred in both machines within one month of purchase. Opposite party contends that the defects are due to rash use and over use. It is the case of opposite party that the defects have been fully rectified. But opposite party has not pleaded or affirmed about the details of repairs done and the replacement of parts if any done. DW1 deposed that the machine was repaired by him. According to him both the machines had similar defects of bend to the shaft and blade. In chief examination he stated that such defects will occur if the machine intended for cutting grass is used to cut big trees or if the machine hits against stone, while in use. According to DW1 there are no documents for the repair done or replacement of shaft and blade. In C.C.38/2008 DW1 deposed as under:

“1. പരസ്യത്തെപ്പറ്റിയും Brochure-നെക്കുറിച്ചും എനിക്ക് അറിയില്ല. Supervisor എന്ന നിലയില്‍ brochure-ല്‍ പറഞ്ഞിട്ടുളള കാര്യങ്ങള്‍ എനിക്കറിയില്ല. Machine-നെപ്പറ്റി അതുകൊണ്ട് യാതൊന്നും അറിയില്ല എന്നു പറഞ്ഞാല്‍ കംപനിയുടെ Tractor ആണ് main ആയി നോക്കുന്നത്".

2. പരാതിക്കാരന്‍െറ machine service centre-ല്‍ കൊണ്ടു വന്ന് repair ചെയ്താല്‍ രേഖകള്‍ service centre-ല്‍ കാണും. ആ രേഖകള്‍ ഞാന്‍ ഹാജരാക്കിയിട്ടില്ല. ഹാജരാക്കാതിരിക്കാന്‍ പ്രത്യേകിച്ച് കാരണമില്ല.

3. എന്‍െറ Supervision-ല്‍ ഈ Machine നന്നാക്കിയതായി യാതൊരു രേഖകൊണ്ടും കാണില്ല.

In C.C.111/08 the deposition of DW1 is as under:

“1. Brochure -നെക്കുറിച്ച് എനിക്കറിയില്ല. എനിക്ക് service മാത്രമേ അറിയൂ. കംപനി എന്തൊക്കെ വാഗ്ദാനമാണ് കൊടുത്തിട്ടുളളത് എന്ന് എനിക്കറിയില്ല. 8 മണിക്കൂര്‍ വരെ തുടര്‍ച്ചയായി machine work ചെയ്യാന്‍ സാധിക്കും എന്ന് പരസ്യത്തില്‍ പറഞ്ഞിട്ടുളളത് ശരിയാണ്. അപ്രകാരം 8 മണിക്കൂര്‍ ഞാന്‍ പരാതിക്കാര്‍ക്ക് machine work ചെയ്ത് കാണിച്ചുകൊടുത്തിട്ടില്ല . Brochure പ്രകാരം വലിയ മരങ്ങള്‍ പോലും cut ചെയ്യാം എന്നു പറഞ്ഞാല്‍ blade മാറ്റിയാല്‍ വലിയ മരങ്ങളും cut ചെയ്യാം. എതൃകക്ഷി Forum-ല്‍ ബോധിപ്പിച്ച counter affidavit-നെക്കുറിച്ച് എനിക്കറിയില്ല. counter affidavit-ല്‍ 500 മണിക്കൂര്‍ trouble free ആയി പ്രവര്‍ത്തിപ്പിക്കുവാനും 8 മണിക്കൂര്‍ തുടര്‍ച്ചയായി പ്രവര്‍ത്തിപ്പിക്കുവാനും കഴിയും എന്ന് എതൃകക്ഷി പറഞ്ഞിട്ടില്ല എന്നു പറഞ്ഞാല്‍ 8 മണിക്കൂര്‍ പ്രവര്‍ത്തിപ്പിക്കാം എന്നാല്‍ . 500 മണിക്കൂര്‍ trouble free ആയി ചെയ്യാന്‍ പറ്റില്ല. അപ്രകാരം കംപനി പറയുന്നുണ്ടെങ്കില്‍ ശരിയല്ല. Machine നന്നാക്കിയതിനോ parts replace ചെയ്തതിനോ യാതൊരു രേഖകളും ഇല്ല. "

The evidence of DW1 regarding the repair done by him is self contradictory. He first deposedthat there are documents in the service centre. Later he turns around and states that there are no documents to show that he did the repairs. It is also clear from the evidence that DW1 is engaged in repairing Tillers and Tractors. If a service personnel does not know anything about the contents of the brochure supplied by the Company along with machine or the assurances offered by the company regarding the operation of a machine it can be inferred that definitely he is incompetent to repair the machine or has no knowledge to completely rectify the defect. His interested testimony together with the contradictions is not credit worthy to elicite confidence in us.

10. Further in para 11 of the version in C.C.111/08 opposite party has pleaded and denied as incorrect to say that the machine will work trouble free for 500 hours and can be continuously used for 8 hours. This denial regarding the working of the machine is reiterated and affirmed in para 5 of the counter affidavit in C.C.33/08, and in para 7 of the counter affidavit in C.C.111/08. This statement of opposite party is in total contradiction to the representation made by opposite party in their advertisement which is produced and marked as Ext.A4. Both complainants have stated that they purchased the machine believing the representations made by opposite party through advertisements and directly at the time of purchase. In para 7 of the version in C.C.33/08 opposite party has stated as under:

"പരാതിയില്‍ പരാതിക്കാരന്‍ വാങ്ങിയ മെഷീന്‍ 500 മണിക്കൂര്‍ കേടില്ലാതെ work ചെയ്യുമെന്നും, 8 മണിക്കൂര്‍ ഒന്നിച്ച് work ചെയ്യുമെന്നും പ്രസ്താവിച്ചത് ശരിയല്ലാത്തതാണ്".

The representation by opposite party in Ext.A4 advertisement is as follows:

"തുടര്‍ച്ചയായി 8 മണിക്കൂര്‍ വരെ പ്രവര്‍ത്തിപ്പിക്കാം".

Opposite party has withdrawn from the representations made in the advertisement without any explanation. It is candid that the representations in Ext.A4 by opposite party are false representations which is unfair trade practice as defined under Sec.2(r)(i) of Consumer Protection Act.

11. Further the case put forward by opposite party is not at all consistent. In para 5 of the version in C.C.33/08 opposite party has averred that after repairing the machine when opposite party demanded Rs.600/- towards repairs charges complainant behaved in a bad manner and thereafter filed this complaint. In para 10 of the counter affidavit of the same case opposite party affirms that complainant was not willing to pay the repair charges of Rs.1,800/- and refused to take delivery of the machine after repair.

12. All these inconsistencies and contradictions in the contentions raised by opposite party together with the immediateness of the complaints filed after purchase of the machine, and the consistent case of complainant sufficiently prove and establish that the case put forward by the complainants in the above two cases are probable and true. We therefore are able to hold that the machine is defective and is of substandard quality. Selling a product with defects or which is of substandard quality and not replacing it is definitely unfair trade practice. Opposite party has not been able to repair the machines to the satisfaction of the consumer. There are no documents to support the repairs done. The evidence of DW1 regarding the repairs done, as already discussed, is not credit worthy. The other contention raised by opposite party is that the product is made in China and does not have any warranty or guarantee. We are unable to appreciate this contention. By sale of the machine made in China opposite party has definitely made some profit. If the product sold is defective and of substandard quality the consumer cannot be left without any remedy. Such situation empties the pocket of the consumer and leaves him helpless and hapless. No commodity shall be marketed in a manner to benefit only the trader and leave the consumer exploited. In the circumstances opposite party ought to have replaced the machines. Non replacement amounts to unfair trade practice. We find opposite party guilty of unfair trade practice in both the cases.

13. At this juncture certain circumstances that evolved during the pendency of the litigation, while exploring possibilities of settlement, are also worth mentioning. After the evidence of DW1 on 21-4-2009 opposite party prayed time for settlement and the case was posted to 25-4-2009 for settlement. On this day a joint statement was filed in C.C.33/08 and a statement signed by opposite party alone was filed in C.C.111/08 stating that the matter is settled and that opposite party is ready to replace with a new machine. It was also stated that the new machine will be handed over to complainants on 07-5-2009 from the Forum. The case was posted to 07-5-2009. Since there was no sitting on 07-5-2009 the case was posted to 12-6-2009. But on 12-5-2009 opposite party filed petitions to advance the cases stating that the new machines have been brought by opposite party for replacement. Both sides were present and complainants endorsed receiving the new machine. After inspecting the new machines it was submitted by both sides that only the main machine was replaced and the accessories (blade, shaft) were not provided along with the new machine. It was submitted that complainants have to use these parts of the old machine. Since the whole machine was not replaced complainants sought time to satisfy the working of the new machine with the accessories of old machine. On next posting date (14-5-2009) complainants submitted that the new machines could not be used since the old accessories were not suitable for the new machine. This matter was informed to counsel of opposite party who prayed time for settlement on 20-5-2009 and 27-5-2009. It was submitted by the complainant in C.C.33/08 (Mathew) that since the new machine given through the Forum did not work he was asked by opposite party to bring it to their shop and that opposite party had swapped it with an old machine but this machine also did not work with the old accessories. Though further chances were given for settlement, the matter was not settled. On 31-7-2007 the complainants in both cases filed additional affidavits stating the above events. Opposite party has not controverted the evidence adduced through these additional affidavits which contain the events of settlement. Though opposite party agreed to replace the machine opposite party did not replace the whole machine and the dispute remained unresolved.

14. In our view a further order for replacement will be futile. We consider that refund of the purchase price of Rs.15,500/- would be sufficient remedy in the given set of circumstances. In appreciation of the earnest effort made by the trader/opposite party to settle the matter during the pendency of the litigation, we hold that the refund of purchase price to the complainants would beadequate relief tot he complainants. We do not consider it necessary to burden the opposite party with costs.

15. In the result we allow both the complaints and order that opposite party shall refund the purchase price of Rs.15,500/- (Rupees Fifteen thousand and five hundred only) to each complainant in the above cases within one month from the date of receipt of copy of this order. On payment both the complainants shall return old machine (originally purchased by them) and new machine (replaced through Forum) to opposite party if not returned earlier. Dated this 15th day of September, 2009.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER

APPENDIX IN C.C.33/08

Witness examined on the side of the complainant : Nil

Documents marked on the side of the complainant : Ext.A1 to A4

Ext.A1 : Receipt for Rs.15,500/- dated, 22-11-2007 from opposite party to complainant.

Ext.A2 : Copy of the request by complainant to Agricultural Officer, Krishi Bhavan,

Kizhattur.

Ext.A3 : Macson shoulder brush cutter user's manual

Ext.A4 : Malayala Manorama Karshakashree in November, 2007.

Witness examined on the side of the opposite parties : DW1

DW1 : Midhun, Mechanical Supervisor of opposite party.

Documents marked on the side of the opposite parties : Nil

APPENDIX IN C.C.111/08

Witness examined on the side of the complainant : Nil

Documents marked on the side of the complainant : Ext.A1 to A4

Ext.A1 : Receipt for Rs.15,500/- dated, 21-01-2008 from opposite party to complainant.

Ext.A2 : Paper slip for Rs.350/- as repair charge dated, 23-4-2008 from opposite party to complainant.

Ext.A3 : Photo copy of the Macson shoulder brush cutter user's manual

Ext.A4 : Photo copy of the advertisement page of Malayala Manorama Karshakashree in November, 2007.

Witness examined on the side of the opposite parties : DW1

DW1 : Midhun, Mechanical Supervisor of opposite party.

Documents marked on the side of the opposite parties : Nil

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER