BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI Dated this the 30th day of January, 2009
Present: SRI.LAIJU RAMAKRISHNAN PRESIDENT SMT.SHEELA JACOB MEMBER SMT.BINDU SOMAN MEMBER
C.C No.139/2008 Between Complainant : N.M.Antony, St.Antony's Store, Padumala, Vandiperiyar, Idukki District. (By Adv: Shiji Joseph) And Opposite Parties : Mass digital Systems, Room No.39/132, Ameez Building, Mullassery Canal Road, Cochin – 11. (By Adv: Rajesh Palamattom) O R D E R
SRI.LAIJU RAMAKRISHNAN(PRESIDENT)
The complaint is filed against the unfair trade practice of the opposite party in supplying an electronic weighing machine.
The complainant is running a provision shop at Vandiperiyar. For his business purpose, he purchased a new Digital Scale namely "ESSAIC" Scale Sl.No.941506981345 for Rs.13,000/- from the opposite party. On 19.06.2006 it was supplied by the opposite party in his provision shop. The scale was verified by the Legal Metrology Department on 22.06.2007. After one month, the scale showed incorrect readings and the matter was reported to the opposite party. The opposite party corrected the readings and repaired the same but again the same mistake was repeated several times. After repairing in September 2006, the measurement showed 30 Kg. lesser than original measurement. Weighing of 99 Kg would show only 79 Kg. So the complainant had severe loss due to this. The complainant asked for the replacement of the machine but the opposite party was not ready for the same. On 28.03.2008 the complainant was constrained to send a legal notice to the opposite party and the opposite party replied with false allegations. So the complaint is filed for getting replacement of the defective machine and also for deficiency in service.
2. The opposite party filed written version and stated that the complainant is not a consumer as per the definition given in Section 2(d) of the Consumer Protection Act. The complainant-trader himself does not involve in any provision business as claimed by him in the complaint either at the time of delivery of the scale or at a later time. The opposite party admitted that they have supplied and installed the machine without any manufacturing or installation defect. Legal Metrology Department verified the same. The incorrect reading is only due to improper usage by the complainant-trader. It was noticed and pointed out by the mechanic of the opposite party that the machine was tampered with to get unlawful gain by adjusting the scale to show an excess weight than the actual weight. Thus the complainant-trader had forfeited his right to get any guarantee for the electronic scale. He permanently placed a large metallic sheet weighing upto 25 Kgms. extending beyond the platform so that he may place a large number of vessels to be weighed simultaneously. Such a tare weight is to be put immediately before weighting the material and should be removed once the weight is measured and material is removed. Such a practice may cause to the pressure cells of the weighing machine. Prolonged and continuous burdening of the electronic balance with a heavy tare could have damaged the pressure cells. This is a case of misuse which is not covered by the guarantee. This matter was reported to the complainant by the reply of the legal notice. So there is no cause of action against the opposite party and the petition may be dismissed.
3. The point for consideration is whether there was any unfair trade practice from the part of the opposite party, and if so, for what relief the complainant is entitled to ? 4. The evidence consists of the oral testimony of PW1 and Exts.P1 to P6 marked on the side of the complainant and the oral testimony of DW1 and Exts.R1 and R2 marked on the side of the opposite party.
5. The POINT :- Complainant purchased an electronic weighing machine from the opposite party on 19.06.2006 for the convenience of his provision shop business. Within one month, the machine showed incorrect readings, the same was repaired by the opposite party several times. But again it showed the same complaint. The complainant was examined as PW1. He deposed that the electronic weighing machine was supplied by the opposite party at his shop, the complainant is doing the business of steel vessels. The electronic weighing scale was purchased for Rs.13,000/-. Et.P1 is the copy of the order cum proforma invoice issued for the same. Ext.P2 is the copy of the delivery chelan for the same. Ext.P3 is the cash bill for the same. The scale showed some incorrect readings after the opposite party repaired the same. Again it showed incorrect measurements. After repairing in September 2006, it showed 30 Kgms difference in the actual measurement. The weighing of 99 Kg. weight shows only 79 Kg. The scale was repaired finally on 10.03.2007. After that, the machine shown different weights when the article placed in different part of the platform. The opposite party was not ready to replace the same. The instrument was inspected by office of the Legal Metrology. Copy of the inspection report of the same is marked as Ext.P4. After that the complainant is constrained to send a lawyer notice to the opposite party on 28.03.2008 for getting back Rs.9,750/-, which is the cost of the machine and Rs.1 lakh for compensation. The opposite party was examined as DW1. As per the opposite party, the complainant is not a consumer under the definition given in Section 2(d) of the Consumer Protection Act. Because the complainant is using the scale referred in the complaint is for commercial purpose. The incorrect reading is only due to improper usage of the complainant-trader. It was noticed and told to the complainant by the opposite party. The machine was tampered with to get unlawful gain by adjusting the scale to show an excess weight than the actual weight. Thus the complainant-trader has forfeited his right to get any guarantee for the electronic scale. The complainant permanently placed a large metallic sheet weighing upto 25 Kg extending behind the platform so that he may place a large number of vessels to be weighed simultaneously. Though the mechanic of the opposite party cautioned the complainant about this, but the complainant did not obey the same. The opposite party replied for the lawyer notice, which is marked as Ext.R1. The opposite party admits his willingness to repair the machine if it is produced before his office at Kochi.
6.The opposite party admitted that the machine was delivered at complainant's shop and there was a guarantee of 1 year for the machine. But the main allegation is that the petition will not sustainable because the complainant is using the machine for commercial purpose. As per the complainant, he is running a steel vessels shop with his father for his livelihood. Earlier he was doing the business by head load. He and his father has that much of heritage in the business. The business is for the daily bread of the complainant, so the complainant is a consumer in all the sense.
7. The opposite party also admitted that there is defect in the working of the machine, in showing the weight. As per the opposite party, it is due to the tampering of the complainant. The said machine is certified from Legal Metrology Department. If any such findings was made by the opposite party, the opposite party ought have complained the matter to the legal Metrology Department. Even this case is filed against the opposite party for getting a compensation of 1 lakh rupees, the opposite party did not make a complaint like that. The guarantee also admitted by the opposite party. So we think that the opposite party has not repaired the machine after repeated requests and lawyer notice, means there is gross deficiency in the part of opposite party. The machine was repaired by the opposite party several times, again it is having the same defect. So it is better to replace the machine or give back the cost of the machine. Rs.2,000/-may be enough for the compensation for deficiency in service of the opposite party.
Hence the petition allowed. The opposite party is directed to replace a brand new electronic weighing machine to the complainant by taking back the old machine or pay Rs.9,750/- to the complainant as the cost of the machine as per Ext.P5 lawyer notice. The opposite party is also directed to pay Rs.2,000/- to the complainant as compensation for the deficiency in service and Rs.2,000/- for the cost of this petition within 30 days of receipt of a copy of this order, failing which the outstanding amount shall carry further interest at 12% per annum from the date of default.
Pronounced in the Open Forum on this the 30th day of January, 2009
Sd/- SRI.LAIJU RAMAKRISHNAN(PRESIDENT)
Sd/- SMT.SHEELA JACOB(MEMBER)
Sd/- SMT.BINDU SOMAN(MEMBER) APPENDIX
Depositions On the side of Complainant : PW1 - N.M.Antony On the side of Opposite Parties : DW1 - Anish James Exhibits On the side of Complainant: Ext.P1 - True copy of Order cum Proforma Invoice dated 12.06.2006 for Rs.13,000/- Ext.P2 - True copy of delivery chelan dated 19.06.2006 Ext.P3 - True copy of Cash/Credit bill for Rs.9,750/- Ext.P4 - True copy of Legal Metrology Certificate of verification dated 22.06.2006 Ext.P5 - Copy of legal notice dated 28.03.2008 issued by the advocate of the complainant Ext.P6 - Reply copy of advocate notice dated 9.04.2008 issued by the advocate of the opposite party On the side of Opposite parties : Ext.R1 - Reply copy of lawyer notice dated 9.04.2008 issued by the advocate of the opposite party Ext.R2 - Postal Receipt
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