The instant complaint case has been filed by the complainant Manilal Dey, r/o village –Kendghata,P.S- Maslia, District-Dumka against the O.P’s i.e.(i) Manoj Kumar Kejriwal, Proprietor Machinery Traders Main Road, Jamtara, District-Jamtara (ii) General Manager, District Industries Centre, Dumka (Industrial Department), and (iii) Vananchal Gramin Bank, Dalahi, P.O –Dalahi, District- Dumka U/S-12 of the Consumer Protection Act,1986 for not removing defects in the wielding machine and lastly refusing to replace the said defective machine with new machine during the warranty / guarantee period and thereby causing mental tension, agony, harassment, loss and damages to the complainant, which amounted to negligency and deficiency in service of the O.P.’s. The complainant has prayed to direct the O.P’s to pay a sum of Rs.2,95,000/- as the Principal cost of the supplied wielding machine, further direct to pay Rs.3,26,000/- towards compensation for harassment, mental tension, loss and damages occurred due to non operation of defective wielding machine and further also direct to pay Rs.10,000/- towards cost of litigation. Besides complainant has also prayed to allow interest @ 12%p.a. on the awarded amount from the date of filling of the case till its payment.
2. The brief facts of the case as disclosed in the complaint petition, the documents annexed therewith as well as in the short notes of argument dated 26.02.2016 and 05.04.2018 are as follows:-
That the complainant is an unemployed poor youth having no source of income purchased a wielding machine for preparing grill gates etc from the proprietor of Machinery Traders, Jamtara (O.P-1) who is the dealer of Pump set, diesel engine, Generator set etc. at a cost of Rs.2,95,000/- on 03.05.2013. The said wielding machine was financed by Vananchal Gramin Bank, Dalahi,Dumka (O.P.no-3)at the direction of the General Manager ,District Industries Centre (Industrial Department) District- Dumka (O.P.no-2) under the PRIME MINISTER ROJGAR YOJNA of the year 2013-14.The Proprietor, Machinery Traders, Jamtara on receiving the consideration amount delivered the machine and it was installed in complainant’s house. The Proprietor gave receipt of the payment of consideration amount on 10.05.2013 to the complainant.
The further case of the complainant in that the wielding machine was installed on 03.05.2013 but within three months from the date of purchase it development snag and suddenly stopped generating smoke as a result the business of the complainant came to halt . The complainant immediately informed the matter to the O.P. No-1 and 3 and then O.P.No-1 sent a mechanic to repair the machine ,who changed its ring and gaskit and the machine was started however, it began to consume excess fuel and generating heavy smoke. The complainant again informed to the O.P’s as the machine was not functioning properly when O.P’s assured him to repair the machine shortly. Thereafter O.P No-1 sent a mechanic namely Reviendar Nath Gorain, who repaired it by removing gaskit and union piston and then machine could resume function for 1/2 of the month but began to give cracking noise and smoke. The matter was again brought to the notice of O.P.No-1 and 3 and at the direction of O.P.no-3 the complainant visited to O.P.No-1 and protested for delivering a defective machine upon which O.P.No-1 again assured to sent expert mechanic for repairing and bringing it to good condition or in alternative to deliver a new machine in lieu of the same, but O.P.No-1 neither sent any mechanic to repair the defective machine nor replaced it with new one although the machine was still running under warranty/guarantee period. Thereafter, on many occassions complainant requested O.P.no 1 and 2 for replacement of the defective machine but they did not pay any heed to it.
The further case of the complainant is that he deposited Rs.72,250/- towards C.C. loan account vide A/c No-84003821032,Rs.48,627/- towards T.L. account and Rs.30,000/- towards insurance policy to the vananchal Gramin Bank, Dalahi etc. and thus in total deposited Rs.1,50,827/-. It is asserted that due to negligency and deficiency act of the O.P’s the loan taken for purchase of machine Rs.2,95,000/- is lying unpaid . It is alleged that O.P. no-1 in a conspiracy with other O.P’s has managed to deliver a defective old machine to the complainant which caused consequential loss and damages to his business.
The further case of the complainant is that having found no alternative he sent Pleader’s notice to the O.P.no.1 on 15.04.2014 and then O.P.no-1 in his reply dated 04.07.2014 admitted defect in the machine supplied by him and also admitted that he changed parts of the said machine but it remain in operative and idle due to incurable defect. On the basis of the said ground lastly complainant filed this case before this forum 26.04.2014 for redressal of his grivence by granting reliefs as mentioned in foregoing Para.
3. Having served notices the O.P’s appeared and filed separate written statement and contested the case. O.P.No-1 and 3 appeared on 21.11.2014 however O.P No-2 appeared on 30.07.2015.
4. The O.P.No-1in his written statement dated 15.05.2015 and in short notes of arguments dated 20.06.2018 besides taking preliminary objections such as lack of territorial jurisdiction ,non maintainability U/S-2(1)(d) of Consumer Protection Act1986 non- compliance of sec-13(1)(c and d) of the Act and also the case being bad for non -joinder of the necessary party has admitted that the machine in question has been purchased by the complainant from this answering O.P. at Jamtara. This O.P. has further claimed that the assertion made in para 2 and 3 of the complaint petition regarding alleged defect in machine and repairing of the same are all false and baseless, however, the guarantee and warranty promised upon the machine was given by the manufacturer and not by this O.P and repair made during the guarantee period were by the manufacturer of the company hence this O.P is not liable for deficiency in service. Further stated that assertions made in Para 4 and 5 of the complaint petition regarding repairing and assurance for replacement of the defective machine was incorrect hence denied. It has further claimed that the complainant is not entitled to the reliefs and prayed to dismiss the same as not maintainable.
5. The opposite party no-3 the Vananchal Gramin Bank, Dalahi in its written statement dated 30.07.2015 has admitted that the complainant had purchased diesel pump set, diesel engine, Generator set and other component on sanctioning and advancing loan of Rs.2,95,000/- in his favour under PMEGP scheme on the recommendation of O.P no-2. Further this O.P. had also sanctioned loan under cash credit limit amounting to Rs.1,85,25,/- for carrying business in favour of the complainant. The complainant at his own choice purchased the machine from the O.P No-1 and on production of quotation dated 23.03.2013 by the complainant paid Rs.2,95,000/-by Bank draft being the price of machine to O.P.No-1. It has also claimed that this O.P had merely advanced loan to the complainant for his business /trade purpose and it is entitled to recover entire loan amount. It has further asserted that allegation about cheating, fraud and causing loss etc. are entirely false and denied. It has further claimed that this O.P is not at all concerned with affairs between the complainant and O.P.No-1 and hence prayed to dismiss the complaint against this O.P.
6. O.P.No-2 General Manager, District Industries Centre, Dumka in his letter dated 14.07.2015 has stated that upon receiving complaint regarding supply of a defective machine he sent a a letter vide no.849 dated 15.07.2014 to the Supplier Machinery Traders, Jamtara for removal of the defect and redressal grievance and also deputed Industrial extension officer shri Nirmal Kumar for enquiring of the matter . It is also stated that this matter related between Branch Manager of the bank and KVIC,Ranchi whereas this O.P has no Concern . He also asserted that as this complainant could not run his business for three years hence, subsidy amount was not adjusted with the loan account of the beneficiary accordingly this answering O.P is not liable and hence prayed to dismiss the case against this O.P.
7. We have heard the argument of the respective parties and gone through the records along with the materials and documents attached therein.
8. In support of their respective cases the parties have adduced oral as well as documentary evidence .The complainant has filed affidavited statement of three witnesses including himself, out of them C.W.-1Manilal Dey is the complainant himself. C.W.-2 Dinesh Kumar Mahato and C.W.-3 Subleshwer Kumar Yadav are the witnesses on facts. Besides oral evidence the complainant has adduced following documentary evidence:-
Ext.1- Photocopy of quotation dated 23.03.2013 of O.P.No-1;
Ext.2- Photocopy of bill/challan dated 03.05.2013 of O.P.No-1 to the complainant;
Ext.3- Photocopy of Pleader’s notice dated 15.04.2014 sent to O.P.No-1;
Ext.4- Photocopy of reply of Pleaders notice dated 04.07.2017 by
O.P.no-1;
Ext.5- Photocopy of letter dated 15.07.2014 by O.P.No-2 to
O.P.No-1;
Ext.6- Photocopy of letter by the complainant to the O.P.No-3 and
Deputy Commissioner, Dumka dated Nil;
Ext.7- Photocopy of letter by the complainant to O.P.No-2 dated Nil;
Ext.8- Photocopy of complainant letter dated 01.08.2014 to O.P.no-2;
Ext.9- Photocopy of complain dated 04.03.2014 before Duputy
Commissioner, Dumka;
Ext.10- Photocopy of letter no-844 dated 21.08.2012 by O.P.no-2 to the complainant;
Ext.11- Photocopy of letter no 757 daterd 10.10.2017 by O.P.No-2 to the complainant;
Ext.12- Photocopy of diesel purchase slip dated 04.06.2013 and 27.06.2013.
On the other hand O.P.No-1 has adduced only affidavited statement of a witness namely C.W.-1 Ravindra Nath Gorain, however, no any document has been brought on behalf this O.P. whereas, O.P.No-2 and O.P.No. 3 have not any led either any oral or documentary evidence in support of their cases.
9. Now points for discussion as emerged on the basis of the pleadings of the parties are as follows:-
- Whether the complainants case is maintainable in view of the mandatory provisions of the Consumer Protection Act 1986?
- Whether the case is bad for nonjoinder of necessary party i.e. Manufacturer?
- Whether the complainant is entitled to the reliefs claimed for?
F I N D I N G S
10. Firstly we would discuss the points of maintainability. (A) The point for discussion is whether this Forum has territorial jurisdiction to entertain this Consumer complaint ?
The learned counsel for the O.P.No-1 contended that this forum has no jurisdiction in view of section -11(2) of the Consumer Protection Act1986 as none of O.P. carries business in this district and no any part of cause of action arose in this district, Dumka. and in support of his contention relied upon a case laws reported in 1(2018) C.P.J 437(NC) and (ii) 2009 (3) JLJR 114.
On the other hand learned counsel for the complainant has argued that this forum is competent to entertain this complaint case in view of Subs.(b) and (c) of Sec.11(2) of the Consumer Protection Act 1986 and in support of his contention relied upon case law reported in first Appeal no-127/2011 in a case of M/s Skoda Auto India Pvt. Limited and other Vrs Bhawesh Narula, decided by SCDRC Uttarakhand,Dehradun.
In the present case the admitted position is that the complainant, an unemployed poor youth took loan under the scheme of PMRY sanctioned by OP.No-2General manager, District Industries Centre , Dumka and at his direction O.P.No-3 Vananchal Gramin, Bank, Dalahi, Dumka granted loan Rs.2,95,000/-(Two lac ninety five thousand) and by paying it to O.P.No-1 Manoj Kejriwal, Proprietor of Machinery Traders, Main Road, Jamtara sold a wielding machine on 03.05.2013 to the complainant. The said machine was installed in the house of the complainant and it could work for about three months and then despite repairing could not resume to its function during warranty/ guarantee period. The complainant requested O.P.No-1 and other O.P’s but the machine could not be either repaired or replaced. Sec-11 of the consumer Protection Act, 1986 deals with the jurisdiction of the District Consumer Forum .Sec-11(2) deals with territorial Jurisdiction of the Forum. It reads as under:-
‘’A complaint shall be instituted in a District Forum within the local limit of whose jurisdiction-
(a) The opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or [carries on business or has a branch office or ] personally works for gain, or
(b) Any of the opposite parties ,where there are more than one, at the time of the institution of the complain actually and voluntarily resides or [carry or business or has a branch office],or personally works for gain ,provides that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or [carry on business or have a branch office],or personally works for gain provided ……………….. as the case may be ,acquiesce in such institution ,or as the case may be acquiesce in such institution] or
(c) The cause of action, wholly or in part arises,
In the present case O.P.No-1Proprietor,Machinery Traders ,Jamtara, who sold allegedly a defective machine to the complainant resides and carries business in the district of Jamtara, where as O.P.No-2 General Manager, DIC, Dumka who sanctioned loan under the scheme of PMRY and directed O.P.no-3 the Vananchal Gramin Bank,Dalahi,Dumka to grant loan in favour of the complainant have office in the district of Dumka. The O.P.no.1 dealer had sold and delivered wielding machine to the complainant at his residence at his village- Kendghata , P.S- Maslia , District- Dumka. In this way it is apparent that O.P.NO-2 and 3 who sanctioned loan under PMRY scheme and financed loan in favour of the complainant has office, carries business in the District-Dumka therefore, this case in fully covered U/S-11(2) (b) and (c) of Consumer Protection Act,1986. It is also evident that part of the cause of action has also arisen in the District- Dumka as the cost of wielding machine was paid through Bank draft prepared by O.P no-3 at the direction of O.P.no-2 at-Dumka office in favour of the O.P.no-1,who on receiving Bank draft delivered the machine to the complainant.
Learned counsel for O.P.no-1 has relied upon the case law reported in 1(2018) CPJ 437(NC) in which Hon’ble NCDRC New Delhi held “ As neither drug was manufactured or sold within India nor it was prescribed by O.P.No-3 within territory of India, cause of action for suing those opposite parties obviously arose in USA- only courts at USA have jurisdiction to entertain same and Indian Courts cannot entertain complains in that regards”.
The learned counsel has also relied on case law reported in 1 (2018) CPJ 12 (CN) (Uttara.) in a case of Jaganath Thakur Vrs Bajaj Allianz Life Insurance Company, Ltd. and others held “ There is nothing on record to show that any transaction between parties took place at Dehradun within territorial jurisdiction of District Forum Dehradun …………… complaint filed by the complainant was not at all maintainable before the District Forum, Dehradun”.
In the aforesaid rulings relied by O.P.No-1 it is evident that neither any O.P. belong to the place of the complainant nor any part of cause action arose in that district. Therefore, the courts have rightly held that the complaint was not maintainable, but in the present case situation is completely different. In this case O.P.no.2 and 3 have office in the district of Dumka and part of the cause action definitely arose in the territorial district of Dumka. The complaint’s counsel in this regards cited a case law in which Hon’ble SCDRC Uttrrakhand at Dahradun held “so for as the territorial jurisdiction of the district Forum ,Nanital in the matter under reference is concerned ,the O.P.No-1 –manufacturing Company is having its dealers throughout the country and O.P. No-3 situated at Haldwani District- Nanital, is one of its dealer. There is no dispute with regard to the fact that the complainant has taken vehicle to the O.P.no-3 for repair work or 28.05.2010 and the vehicle is still lying with the O.P.no-3.Therefore, part of cause of action in the instant Case, had arisen in favour of the complainant within the territorial jurisdiction of District Forum Nanital hence the district forum Nanital had territorial jurisdiction”. This case law is fully applicable to the facts of the present case.
Therefore, in view of above discussed provision as well as the case laws cited by the complainant as well as by the O.P.no.1 this forum is fully competent to entertain the present case and the contention of learned counsel for O.P.no.1 has no merit.
(B) The another contention raised by learned counsel for O.P.No-1 is that since the complainant has purchased the machine for commercial purpose hence, not a consumer within the meaning of Sec-2 (1) (d) of Consumer Protection Act 1986,.In support of his contention he relied upon a case law reported in 1(2018) CPJ 178(NC) and1(2018) CPJ70 (NC).
On the other hand learned counsel for the complainant has contended that the complainant has purchased a wielding machine by raising loan from O.P.no.3 for earning his livelihood through self employment and it is not at all justified to say that he was running weilding shop for commercial purpose. In support of his contention he has relied upon following case laws:-
2012(3) CPR 94(NC) and 2015(1) CPR 222(NC).
In the present case the complainant has pleaded in his complaint petition that he is an unemployed poor person having no source of income purchased a wielding machine financed by O.P.No-3 and by paying the cheque to the O.P.No-1 the machine was delivered to him for his livelihood. The complainant C.W.-1 Manilal Day in his affidavited statement at page 4 has clearly stated that “he has purchased wielding machine on raising loan for his livelihood and due to defect cropped up in the machine he went fully jobless”. Thus the complainant has clearly proved that he is an unemployed poor man purchased the machine for purpose of his livelihood by means of self employment. Sec-2(1)(d) of the Consumer Protection Act,1986 clearly reads reads as follows:-
Consumer means any person who-
- “buys any good for a consideration which has been paid or promised or partly paid and partly promised ……………….but does not include a person who obtains such goods for resale or for any commercial purpose.
- [hires or avails ] of any services for a consideration which has been paid or or promised ……….[but does not include a person who avails of such services for any commercial purpose]
[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 of his livelihood by means of self employment,].”
In the aforesaid provision of Sec-2(1)(d) of the Consumer ProtectionAct,1986 word “commercial purpose” has not been defined however, it has been said that commercial purposes does not include use by a person of goods bought and used by him and services availed by him, exclusively for the purpose of earning of his livelihood by means of self employment. In “Laxmi Engneering Works” reported in AIR1995 SC page-1428, Hon’ble supreme court held that “where a person purchases goods with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit,he will not be a Consumer within the meaning of the Act”. In this connection the learned counsel for the O.P.No-1 relied a case law 1(2018) CPJ 178NC in which the Hon’ble NCDRC New Delhi held.” Petitioner stated that he is running a furniture house to earn his livelihood –However, in his application to Bank clearly indicated that he would be running the business for giving employment to 14 persons Petitioner not consumer. In another ruling reported in 1(2018) CPJ70 (NC) the Hon’ble NCDRC, New Delhi held” shop was booked not to earn their livelihood by means of self employment but because complainant No-1 wanted to augment her income complainant are not consumer”.
On the other hand learned counsel for the complainant relied upon a case law reported in 2012(3) CPR 94 (NC)in which the Hon’ble NCDRC, New Delhi held “supply of defective lab machine and gross deficiency in post commercial service- complainant had purchased machine by raising bank loan for earning his livelihood and family maintenance are through self employment only for engagement of an assistance/ helper to man counter/shop, it would not be justified to say that owner was running shop for commercial purpose. “In another ruling reported in 2015(1) CPR 222(NC), Hon’ble NCDRC New Delhi held “Even though machine/equipment in used for commercial/industrial purposes if any manufacturing defect occurs during warranty period then issue is covered under C.P. Act”.
In this contextC.W.-1 Manilal Dey in Para-7 of his cross examination clearly stated that he himself was operating machine he did not employ any operator however, he had engaged three persons on daily basis for helping him In Para-8 stated that he had taken training for operating machine from Industries department. In Para-10 he has admitted that his machine was a diesel engine machine and he used to purchase diesel from the shop at Nala, District- Dumka. In this way the complainant has clearly proved that he has purchased machine for his self employment as he was a poor unemployed youth for maintaining his family. The law laid down in the aforesaid ruling fully support the complainants case that he is a consumer within the definition of section 2(1)(d) of the Consumer Protection Act1986. Therefore, this contention of the O.P.No-1 is also not acceptable.
(C) The another contention raised by learned counsel by O.P.No-1 that the complaint case is bad non joinder of the manufacturer of wielding machine, who is the necessary party .
It was argued by the learned counsel for the O.P.No.1 that O.P.No-1 is not the manufacturer rather a dealer of the machine and the guarantee/warranty given upon the machine is to be covered by the manufacturer of the machine and hence, this case fails for non joinder of the necessary party. In this connection learned counsel for the complainant has argued that O.P No-1 did not hand over any cheat of paper regarding the description of manufacturer of the machine as well as showing warranty period of machine rather simply gave a slip of price and hence due to absence of knowledge the manufacturer was not made party. He has also contended that if deficiency in Service is proved the complainant may seek relief either from manufacture or from dealer or from both. He has relied upon a case law i.e M/S Skoda Auto India Pvt. Ltd. and others Vrs Bhawesh Narula decide vide first Appeal No-127/10 by the Hon’ble SCDRC ,Uttarakhand, Dehradun on 20th march 2014. In the said case law it has been held that if there was manufacturing defect in the tractor ,the manufacturer and dealer both are liable”. In the present case it is evident from Ext.1- Photocopy of quotation dated 23.03.2013 and Ext.2- Photocopy of bill /challan dated 03.05.2013 of O.P.No-1, that no where the description of the manufacturer of wielding machine has been mentioned in both these documents, rather it shows that O.P.No-1 is himself manufacturer and supplier of the machine, hence, in such situated O.P.No-1 cannot take plea that this case is bad for non- joinder of the manufacturer. Moreover complainant may seek relief from the dealer O.P.No.1 only. Therefore, this plea raised by the O.P.No-01 is also not acceptable.
(D) The another contention raised by learned counsel by O.P.-01 that the complainant has not complied the mandatory provision Sec-13(1) (c,d) of the Consumer Protection Act1986 as well as Sec-13(2)(b)(i) of the Consumer Protection Act1986 as because he was duty bound to prove the defect in the machine, if any, by an expert’s opinion/any Laboratory report. In support of his plea relied upon a case law reported in 1(2018) C PJ 425(NC) in which Hon’ble NCDRC New Delhi held “Complaint filed by petitioner is very sketchy and vague and it does not give details of any manufacturing defect in vehicle except that it gives black smoke and mileage of about 13 K.M. as per letter…………… Petitioner has failed to place on record any job cards regarding free service given to him as also for visits for getting vehicle repaired. He has also failed to place on record any expert opinion regarding alleged manufacturing defect in his vehicle deficiency not proved”.
On the other hand learned counsel for the complainant has contended that O.P.No-1 has admitted in his reply to the pleaders notice i.e .Ext.4 that the machine supplied was not running properly hence he sent mechanic on four times regarding repair of the wielding machine, who changed the parts as required within guarantee period. He also contended that the witness examined by O.P.No-1 i.e.O.P.W.No.1 Ravindra Nath Gorain in his affidavit has admitted that “he had gone to remove defect in the house of Manilal Dey”. Therefore, defect in the machine is an admitted fact. In this connection learned counsel for the complainant has also relied upon the case law i.e. M/s Skoda Auto India Pvt. Ltd. case . In the said case it has been held that in case of admission of defect, the report of expert in not required and Sec.13 of Consumer Protection Act1986 ia not applicable. Thus, in view of the above facts, evidence and case law the contention of learned counsel for the O.P.No-1 is not acceptable. Accordingly we find that in this case Sec-13 of the Act is not at all applicable.
11. Now, we will discuss whether the complainant is entitled to the reliefs claimed for?
The complainant as C.W.1 in his affidavited statement has completely proved his case stating that he has purchased a wielding machine by raising , loan of Rs-2,95,000/- from Vananchal Gramin Bank, Dalahi (O.P.No.3) at the direction of General Manager, District Industries Center, Dumka under the PMRY of the year 2013-14. The machine was delivered by O.P.No-1 after receiving consideration amount and it was installed his at house on 03.05.2013 but within three month from the date of purchase it developed defect and suddenly stopped giving smoke as a result his business came to halt .He immediately informed to O.P.No-1, who sent mechanic after five days to repair machine. The mechanic changed ring and gasket of the machine and got it started however, the sound of the machine had increased but speed slowed down. After few days machine again went out of order,thereupon, he informed Bank manager and at his direction he went Jamtara and asked O.P.No-1 that his machine was not working when the Proprietor again sent a mechanic, who again changed ring but after 10-20 days machine again went out of order. Then again he informed to O.P.No-1 and 3 for either repair or replacement of defective machine then O.P.No.1 abused and said that as the guarantee period was over hence, he will not do anything. As a result he sustained heavy financial loss. He has also stated that he sent a letter to Bank and Industry department on 19.02.2014 and met with Deputy Commissioner, on 04.03.2014. Thereupon, at the direction of Deputy Commissioner the machine was examined and on the said report the Deputy Commissioner ordered to replace the defective machine but O.P.No.1 did not replace and lastly filed case before this forum. In Para-10 of his cross examination stated that he could run machine for about three months only. In Para-12 stated that machine was financed by bank but he could not repay loan. In Para-24 he has denied the suggestion of the O.P.No-1 that there was no defect in the machine but in order to emblazzle bank loan he has filed this case.C.W.-2 Dinesh Kumar Mahato and C.W -3 Sublashwer Yadav have also supported the case of the complainant by corroborating his version. It is admitted fact that the machine after installation developed defects which is clearly admitted in the reply letter of O.P. no.1 dated 04.07.2017 (Ext-4) in which in Para-6,8,and 12 stated that his mechanic went to repair the machine but could not repair. In this connection O.P.No-1 has examined O.P.W No-1 Ravindar Nath Gorain, who admitted in his affidavited statement as well as in Para-18 of his cross- examination that he went four times to the house of Manilal Dey to repair his machine but the machine had gone out of order. Thus, it is proved that the machine supplied by O.P.No-1 had gone out of order within three months and it could not be repaired even by the expert mechanic sent by O.P.No-1. It further appears from Ext. 4, 5, 6 and 9 that upon the letter sent by complainant to the Branch manager, Vananchal Gramin Bank, General manager , District Industries Center, Dumka for repair the machine but could not be put in order. The General manager in a letter to O.P No-1 directed to supply a new machine but he on the pretext of one or the other did not replace the defective machine with new machine.It is also proved that the machine went out of order during guarantee/warrantee period and this facts has been admitted in the O.P.no.1’s pleader’s reply letters ( Ext.4). It is also proved that the complainant is an unemployed poor man, who purchased the machine for earning his livelihood and family maintenance by self employment but due to incurrable defects in the machine he went jobless. It is also proved as the machine could not run till three years hence complainant he could not avail the benefit of PMRY scheme and he could not get subsidy of the Government in view of Para-8 of the letter of O.P No-2.
12. Upon consideration of the above facts evidence and case law’s we are of consistent view O.P.No-1 i.e. Proprietor, Machinery Traders, main Road, Jamtara has committed negligency and deficiency in service by not replacing defective machine. Therefore, we find that O.P.No-1is liable for payment of cost of the wielding machine Rs.2,95,000/-further also liable for payment of Rs.1,00,000/- for financial loss, damages due to non-operation of machine and complainant going jobless etc and further also for the harassment, mental tension sustained by him, further also liable to pay Rs.10,000/- as a cost of litigation. Besides O.P.no.1 liable for interest @12% p.a. on the principal amount from the date of filling of this complain till its payment, however,O.P.No-2 and 3 are not liable as no any case made out against them.
In the result,
O R D E R E D
That the case be and the same is allowed on contest with cost against O.P.No-1 i.e. Manoj Kejriwal, Proprietor of Machinery Traders ,Main Road, Jamtara and hence directed to make payment of Rs.2,95,000/-(Two lac ninety five thousand ) towards principal amount / cost of the wielding machine along with interest @ 12% p.a. from the date of filing of the complaint till its payment, further directed to make payment of Rs.1,00,000/- ( One lac) towards financial, loss ,damages, mental tension ,harassment sustained complainant further also directed to make payment Rs.10,000/-(Ten thousand) towards cost of litigation to the complainant. On the payment being made ,the O.P.no.1 would be entitled to receive the defective machine form the complainant.
The order must be complied within one month from the date of receipt of this order failing which necessary legal action as contemplated U/-25 and 27 of the Consumer Protection Act 1986, shall be initiated.
The office clerk is directed to furnish copy of this order to the parties or their advocate free of cost.
This case, is thus stands disposed accordingly.
