Kerala

Idukki

CC/54/2019

Mini Shajahan - Complainant(s)

Versus

Masters Equipment's Sid co Industrial Park - Opp.Party(s)

30 Sep 2021

ORDER

DATE OF FILING : 12.3.2019

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION IDUKKI

Dated this the  30^th day of  September, 2021

Present :

          SRI. C. SURESHKUMAR                            PRESIDENT

SRI. AMPADY K.S.                                    MEMBER

CC NO.54/2019

Between

Complainant                                                :   Mini Shajahan, W/o. Shajahan,

                                                              Vettukallummuriyil House,

                                                              Kallar, Peerumedu, Idukki

    (By Adv: V.C. Sebastian )

And

Opposite Party                                    :  The Masters Equipments,

                                                                             SIDCO Industrial Park,

                                                              Plot No.63, Chempannoor,

                                                              Angamali South P.O. Ernakulam.                                                                         (By Adv: A.J. Johnson )

O R D E R   

SRI. C. SURESHKUMAR, PRESIDENT        

          1. Petition filed under Section 12 of the Old Act.  Case of the petitioner is briefly discussed here under :

          2. Petitioner  is running a home made cake unit, namely, ‘Chefmother’ adjacent to her residence in Peerumedu Village.  Opposite party is having a manufacturing unit, namely, M/S Masters Equipments functioning in SIDCO Industrial Park, Angamali.  Petitioner had given an order to purchase a Single Deck Gas Oven from the unit of opposite party for a total price of Rs.64,644/-.  She had given an advance of Rs.25,000/- by way of bank transfer on 3.12.2018, date on which the order was placed.   Though  stipulation  in the  quotation  submitted  by                                                                                                               (cont....2)

-  2  -

opposite party was to deliver gas oven within 20 days of placing the order, opposite party had given an oral assurance that it will be supplied within 10 days after receipt of advance.  However, it was not supplied within the promised time or on 17.12.2018 and further on 23.12.2018, the dates on which opposite party assured delivery upon repeated enquiries by petitioner.  When the petitioner had again contacted opposite party, he had delivered an oven on 12.1.2019, transported in a goods autorickshaw, delivery being effected by him.  Upon examination, petitioner noted that the oven supplied was different from the one mentioned in the quotation.  It was a duplicate machine.  No written warranty or guarantee had accompanied the product.  Despite  lapse of 2 months or more after delivery, opposite party had not done anything to make the oven functional.  Petitioner had given a cheque for balance amount of Rs.39,664/-, less advance of Rs.25000/- towards cost of the oven, dated 26.2.2019.  Since opposite party had not acted in accordance with the instructions given with regard to delivery of  oven and other conditions relating to its purchase, petitioner had issued a stop memo to the bank for stopping payment of  cheque.  Though  petitioner had made repeated phone calls to opposite party for getting the gas oven installed at her own cost, opposite party has not sent his technician for doing the work. 

          3. Due to non-supply of the oven within time, petitioner had suffered business loss and also mental agony following the same.  Petitioner therefore prays for an order directing the opposite party to take back the oven after return of Rs.25,000/- paid by the petitioner as advance with interest and further to direct payment  of Rs.50,000/- as compensation for business loss and litigation expenses.

          4. Opposite party had appeared on notice and had filed written version disputing the claim of petitioner. His case is briefly outlined hereunder : Opposite party submits that he is running a manufacturing unit by name, Masters Equipments in Angamali as stated by petitioner.  She had given an amount of Rs.25,000/- by way of bank transfer on 5.12.2018 to him and had obtained a quotation for supply of a Single Deck Gas Oven worth Rs.96,900/-, a cake mixture costing Rs.42,500/- and a stand  costing Rs.10,600/- on 6.12.2018.  Total cost of oven,  mixture  and  stand  inclusive of  GST  was Rs.1,77,000/-.    She  has  falsely                                                                                                              (cont....3)

-  3  -

contended that she had intended to purchase a Single Deck Gas Oven for Rs.64,644/- and had paid an advance of Rs.25,000/- towards its purchase on 3.12.2018.  Quotation obtained by her was for the purchase of gas oven, mixture and stand for a total cost of Rs.1,77,000/-.  Though the petitioner had applied for a loan for  purchase of gas oven and its accessories with Peerumedu branch of South Indian Bank, bank had declined to give her the loan.  Hence she was unable to purchase gas oven and its accessories mentioned in the quotation.  Instead, she had  opted for purchasing a Single Deck Gas Oven which was of inferior quality worth Rs.64,644/- manufactured by ‘Jhonree’ Company in Calcutta.  It is incorrect to say that  opposite party had assured delivery within 10 days. As mentioned earlier, no quotation was given for purchase of Single Deck Gas Oven worth Rs.64,644/- after taking advance of Rs.25,000/-.  Quotation was given for Single Deck Gas Oven and its accessories worth Rs.1,77,000/- in total, manufactured by the opposite party.  In the quotation, delivery time stipulated is between 15 to 20 days.  As requested by  petitioner, an order was placed with Calcutta Company for supply of one Single Deck Gas Oven  and it was delivered via railway on 18.12.2018.  Receipt of  Oven from Calcutta was intimated to  petitioner on the very same day.  However, she had no money with her to pay the balance amount for taking delivery in time.  Thereafter on 12.1.2019, she had come to the concern of opposite party and had given a cheque for balance amount of Rs.39,664/- post dating it to 26.2.2019 owing to paucity of funds.  It is incorrect to say that opposite party had promised delivery on 17.12.2018 and again on 23.12.2018.  She has also falsely stated that opposite party had delivered the  Oven by transporting it in a goods autorickshaw on 12.1.2019 to her residence.  She had taken delivery of the oven from the concern of opposite party at Angamali after giving a post dated cheque for balance amount as mentioned earlier.  Ordering of Single Deck Gas Oven and delivering the same to the petitioner from his manufacturing unit in Angamali was as per the request and instructions of petitioner.  It is incorrect to say that there was no attempt from the side of  opposite party to make the oven functional despite lapse of  2 months and more from the date of delivery. Petitioner is expert in operating similar ovens and she had used the oven without any difficulty for her purposes.   She had  attempted to make unlawful  gains by issuing a stop memo so                                                                                                           (cont....4)

-  4  -

that payment of balance amount could be averted or delayed.  Contentions that petitioner had requested for service of a technician for installing the oven are false and are cooked up for the purpose of this case.  Till date petitioner had not sent any intimation to  opposite party complaining that oven is inoperable or that it could not be installed by her.  Petitioner is not entitled to get back Rs.25,000/- paid as advance or Rs.50,000/- towards compensation.  This case has been filed only to work up a better defence in the criminal case filed by  opposite party owing to dishonour of  cheque given by  petitioner as per her stop memo.  Petition is to be dismissed with costs and  with a direction to  petitioner to pay balance amount of Rs.39,664/- towards cost of the oven along with interest.

          5. Petitioner has also filed an application for appointment of a commissioner to carry out inspection of the gas oven supplied to her by the opposite party.  This was allowed and Adv: Vikraman Nair, Kattappana was appointed as Commissioner. Commissioner had, in obedience to directions given by this Commission, carried out inspection on 26.9.2019 with notice to both sides and in their presence.  He had filed his report after inspection on 4.10.2019.

          6. After completion of steps, case was posted for evidence.  On the side of petitioner, she herself was examined as PW1.  Exts.P1 to P5 were marked on her side.  Ext.C1 Commission Report was also formally proved by her though it was not necessary, as inspection was with notice to both sides.  On the side of opposite party, he himself was examined as RW1.  Exts.R1 to R4 were marked on his side.  Thereafter evidence was closed and both sides were heard.

          7. Now the points which arise for consideration are :

1.  Whether petitioner had purchased a Single Deck Gas Oven from opposite party ?
2. Whether the  petition was defective ?
3. Whether there was failure on the part of opposite party in rendering requisite service for installing the gas oven in the premises of petitioner ?
4. Whether petitioner is entitled to get back advance paid along with compensation ?
5. Reliefs and costs.                                                                 (cont.....5)

-  5  -

8. Point Nos.1 to 4 considered together for the sake of convenience: Learned counsel for petitioner has taken us through the pleadings addressed by both sides and evidence tendered in this case.  Able counsel would submit that admittedly a gas oven was purchased by petitioner from the manufacturing unit of opposite party.  He does not have a dealership of any other gas oven manufacturing company, in particular, that of a company by name Jhonree in Calcutta.  Hence his case that he had ordered a Single Deck Gas Oven from  Jhonree company in Calcutta, as requested by petitioner, cannot be believed.  There is no evidence to substantiate these contentions.  Though initially intention was to purchase a single deck gas oven as shown in Ext.R1 quotation, despite availing the advance amount opposite party was unable to supply it during X’mas and New Year season when there was  demand for cakes.  After having paid an advance, petitioner had no option but to get the gas oven supplied by opposite party, so that she could make good at least some loss which was occasioned to her  since  she was unable to function during peak season.   The  gas oven supplied does not bear any company’s name, no warranty/guarantee was given for the product, there was inordinate delay in supplying the gas oven and there was failure on the part of opposite party in rendering necessary services for installing the gas oven.  Therefore the oven could not be made functional and it had remained idle in the premises of petitioner.  It is true that petitioner had given a post dated cheque towards payment of balance consideration.  However, there was deficiency in service, as aforesaid, hence petitioner was not desirous of purchasing the same.  Commissioner has also mentioned in Ext.C1 that gas oven was seen kept upon a table in a shed, with its packing untouched.   This will prove that the oven was not installed.  Installation could not be done as  service technician was not provided by opposite party,though petitioner had waited for more than 2 months after delivery of gas oven at her premises.  Therefore petitioner was not desirous of  going through the contract, she had repudiated the same and issued notice to opposite party for return of advance amount with interest.  She is entitled to get back  advance amount paid by her and opposite party, liable to pay the same and to take back his gas oven.  Petitioner has sustained huge financial loss and mental agony for which she is entitled for compensation.  Amount  claimed as compensation is fair and just.  Petition is to be allowed as prayed for.                                                                        (cont....6)

-  6  -

          9. Learned counsel for respondent would submit in reply that petitioner has made a bank transfer of Rs.25,000/- initially for purchase of a gas oven with its accessories,  worth Rs.1,77,000/- in total.  She had not intended to purchase a Single Deck Gas Oven worth Rs.64,664/-.  She had planned to avail a bank loan for purchase of gas oven and accessories as mentioned in Ext.R1.  However,  she was unable to get the loan and therefore she had settled for an inferior product, namely, a Single Deck Gas Oven without any accessories, manufactured by Jhonree Company in Calcutta.  Since respondent was only manufacturing quality products, he was unable to supply an inferior product and it was at this juncture, when informed about the contingency,  that the petitioner had settled for gas oven manufactured by Jhonree Company in Calcutta.  Counsel submitted that though opposite party was not a dealer of gas oven and accessories manufactured by other companies,  upon specific request by  petitioner, he had helped her to tide over the season by purchasing a less expensive product, though of inferior quality, manufactured by a different dealer.  Able counsel would submit that petitioner was aware of the quality and nature of Single Deck Gas Oven and it was at her behest that he had placed an order with this manufacturer in Culcutta which was conveyed to him via rail as per Ext.R2(b) railway receipt.  Opposite party had taken delivery of the same on 18.12.2018 and had informed  petitioner about the same on 18^th itself.  However, she had no money to pay balance amount and had came to take delivery of the gas oven only in February 2019.  During her cross examination, petitioner had admitted that she had given cheque for balance amount after making  opposite party believe that she had sufficient funds in her bank to honour the cheque and it was after believing this promise that the opposite party had given the oven to her. Able counsel submits that this answer would prove the case of opposite party that the petitioner herself had taken delivery of the oven from his manufacturing unit in Angamali after giving cheque for balance amount.  Contentions that it was delivered by the opposite party in a goods autorickshaw at her premises in Peerumedu are cooked up for the purpose of making out a cause of action within jurisdictional limits of this Commission.  Ext.R1itself would go to show that the policy of opposite party is that the purchaser has to do the necessary work for installation of  equipment.   Similarly  quotation  would  also  prove that                                                                                                          (cont....7)

-  7  -

advance was paid for purchase of gas oven and accessories worth Rs.1,77,000/-.  Subsequent purchase as per Ext.P1 of Single Deck Gas Oven for Rs.64,664/-was at the instance of the petitioner herself as she was unable to secure a bank loan to purchase gas oven and accessories as per R1.  Purchase of single deck gas oven as per Ext.P1 was after the petitioner had satisfied herself of the nature and quality of the product and also with the knowledge that it was inferior to the gas oven mentioned in Ext.R1.  That apart, petitioner has no case that gas oven supplied to her had any manufacturing defect.  She was also prepared to purchase the same  without any guarantee/warranty as such  products do not come with any warranty.  For the same reason it is idle to contend that the product did not have any manufacturer’s name or emblem upon it.  Petitioner had purchased it knowing fully well that opposite party was not its manufacturer.  There was no delay in delivering the oven to her,  from the side of opposite party.  In fact, petitioner was unable to take delivery in time due to non-availability of funds.  There was no contract for installation of gas oven at the premises of the petitioner by opposite party.  No such stipulations are there in Ext.R1 or Ext.P1. Installation did not involve any  technical protocol/procedure for which service of a technician was necessary. That apart, it is made clear in Ext.R1 that  work connected with installation is to be done by the purchaser.  There is no deficiency in service.  This case was filed only to avoid possible conviction in the criminal case filed by  opposite party against petitioner due to dishonour of cheque given by her.  Same is to be dismissed with costs as petitioner is not entitled to get the advance paid or any compensation prayed for.

          10. Learned counsel for  petitioner in reply would again submit that the product was of inferior quality and that there was deficiency in service from the part of opposite party.

          11. Upon this, we had directed the counsel for petitioner to specify what is the defect in the goods delivered and also deficiency in service alleged by petitioner. There are no pleadings in the petition or in the chief examination affidavit that the product has any manufacturing or other defect, except that it was of inferior quality, there was no warranty  for it and that it had no manufacturer’s name or address upon it.                                                                           (cont....8)

-  8  -

12. When this was put to counsel for petitioner, he submitted that commissioner had reported that it was rusted.  Though the Commissioner has reported that this could be due to efflux of time, observations so made by him are not correct.  Machine was rusted when it was delivered.  In so far as deficiency in service is concerned, able counsel submits, there was delay in delivering the oven and latches on the part of opposite party in not providing a technician for installing the oven.

          13. Learned counsel for opposite party would submit in reply that his concern is located at a distance of 145 km away from the premises of petitioner which is in Peerumedu.  There was no contract between petitioner and opposite party that installation service will be provided by opposite party.  Learned counsel pointed out that in fact, operation of gas oven was very simple and it did not require any installation procedure except for provision of a scaffold, stand or a table strong enough to bear the weight of machine.  To be operational, it only needed to be plugged in to a power source and connected to gas cylinder/source.  There was no delay from the side of opposite party in delivering the oven.  Petitioner was unable to pay remaining amount and hence could not take delivery in time though the oven has reached the business place of opposite party on 18.12.2018 itself.  Gas oven was operational and it was new at the time of delivery.  As rightly found by  commissioner, rusting of machine was only for the reason that petitioner has kept it idle in her shed all this time. 

          14. Thus these are the rival contentions.  Firstly, we shall advert to the documentary evidence tendered by both sides in this case.  As mentioned earlier, on the side of petitioner, Exts.P1 to P5 were admitted in evidence.  Opposite party has provided Exts.R1 to R4 on his side.  Ext.C1 is commission report which is admissible as such without formal proof, since inspection was with notice to both sides. Though written objections are filed by petitioner upon report, there was no attempt to summon and examine the commissioner. Hence objections remain as paper objections. Ext.P1(series) are an invoice dated 12.1.2019 issued by opposite party for Rs.64,664/- relating to  sale of single deck oven.  Ext.P1(a) is copy of e-way bill relating to  transport of goods mentioned in Ext.P1 from opposite party’s                                                                                                            (cont....9)

-  9  -

premises to the business place of petitioner. Ext.P2(series) are 6 photographs and a bill issued from the studio, issued in the name of petitioner relating to those photographs.  Photographs are that of the single deck oven purchased as per Ext.P1.  Ext.P3 is copy of stop memo, dated 25/02/2019, issued by petitioner relating to a cheque given by her for payment of balance consideration to opposite party. Ext.P4 is probably the ledger extract of the account of petitioner, on which the said cheque was drawn, for the period from 12.1.2019 to 1.2.2019.  Ext.P5 is copy of lawyer notice sent by the petitioner to opposite party dated 21.2.2019.

          15. As far as Ext.P2(series) of photographs are concerned, these are not accompanied by affidavit of the photographer who had taken them. However, we are inclined to consider these documents as admitted, since no objections were taken at  the time of marking them. Ext.P4does not contain a page certificate or requisite certification by the custodian of  original with regard to the computer or instrument where in original ledger extract is stored in electronic/digital form.  Therefore we are not inclined to place much relevance upon Ext.P4.

          16. Ext.R1 and R1(a) are 2 pages of an invoice dated 6.2.2018 provided upon letter head of the concern of opposite party.  Ext.P1(series) is of a single deck oven, cake mixture and SS stand costing Rs.96,900/-,  42,500/- and 10,600/- respectively.  Total cost inclusive of GST would come to Rs.1,77,000/-.  Ext.R2(series)  3 in numbers are paper print photographs of the same oven and copy of a railway receipt.  Ext.R3 is copy of complaint probably filed by the opposite party against petitioner for dishonour of the cheque given by her towards balance price of oven.  Ext.R4 is copy of lawyer notice sent by opposite party to petitioner seeking payment of the cheque which was dishonoured.  Both Exts.R3 and R4 do not bear any date.  Date portion is kept blank and neither has  counsel                                        attested those as  true copies of respective originals maintained by him in his office.  Both are not relevant for consideration and therefore we are not relying upon these documents.

          17. In the course of arguments, learned counsel for the opposite party has contended  that  a  forged quotation on the lines of Ext.R1 was produced by                                                                                                                         (cont....10)

-  10  -        

petitioner to clandestinely substantiate her contentions that there was indeed an enquiry by petitioner for purchase of single deck gas oven, cake mixture and SS stand.  These contentions, prima facie, are not substantive for the reason that the petitioner does not stand to gain anything by forging a quotation wherein product/goods sought to be purchased and the price quoted are the same. Invoice allegedly forged  is  for Rs.1,77,000/- and the goods sought  to be purchased are also as mentioned in Exts.R1 itself. Both are computer prints and there is nothing to suggest that the one produced by petitioner is a fake one.

18. Coming to the contentions addressed, as rightly pointed out by counsel for opposite party, no manufacturing defect is alleged in petition or evidence.  Petitioner has no case that the oven was damaged in any manner when it was delivered.  There is nothing to show that  rust found in the oven was there at the time when it was delivered.  Admitted facts from the side of petitioner are to the effect that oven was kept by her without removing its outer cover from the time it was delivered as she was unable to install the same.  Hence observations of the commissioner that rusting may have been due to efflux of time appears to be correct. We shall advert to allegations in petition that oven does not bear name and address of manufacturer and that it is a duplicate product later in this order, after considering the question of  deficiency in service alleged by petitioner.  According to her, there was delay in delivery of  oven and secondly opposite party has not provided a technician for installing the oven. These contentions also do not appear to be meritorious.  As per the complainant, petitioner had approached the opposite party on 3.12.2018 for purchase of a single deck gas oven.

19. Counsel for opposite party  would submit that in fact she had transferred advance amount  only on 5.12.2018 and had obtained R1 quotation for purchase of oven along with accessories on 6.12.2018.  This appears to be true in view of the fact that Ext.R1, which is not challenged during cross examination of RW1,is dated 6.12.2018. Ext.R1 contains 3 items.  1^st one is oven costing Rs.96,900/-, 2^nd cake mixture costing Rs.42,500/- and 3^rd one is a stand costing Rs.10,600/-; inclusive of GST, total cost comes to Rs.1,77,000/-.  At this juncture, it would be apposite to refer to Ext.P5 which is the notice sent by  petitioner to opposite party.  Ext.P5 is                                                                                                               (cont....11)

-  11  -

the 1^st document relating to complaints made by  petitioner with regard to alleged defect in product and deficiency in service.  In Ext.P5, petitioner has stated that opposite party had sent a price proposal to the petitioner on 6.12.2018 and thereafter petitioner had after accepting the same, paid advance amount, which is admittedly Rs.25,000/- paid by bank transfer. It is hence clear that there was no approach on 3.12.2018.  In Ext.P1, there are further averments  that opposite party had promised to deliver the oven within 5 days.  However, opposite party has denied this in evidence and also in his pleadings.  In Ext.R1 quotation, delivery time is mentioned as between 15 to 20 days.  That being so, contentions that there was an oral undertaking  regarding  supply of goods within 5 or 7 days is not at all believable.  It is also mentioned in Ext.P5 lawyer notice that due to delay in delivering oven and accessories as agreed vide R1, petitioner had conceded to purchase a single deck oven as per Invoice No.68 dated 12.1.2019 for an amount of Rs.64,666/-.  This amount so mentioned in   Ext.P5,  is not correct.  As per invoice which is marked as Ext.P1 of P1(series), amount is Rs.64664/-.  However,   averments   that petition had later agreed to purchase a single deck gas oven as per Ext.P1 would go to show that contract made   to purchase oven and accessories as per Ext.R1 quotation/invoice was changed  and there was fresh contract for purchase of single deck gas oven alone, without accessories, on 12.1.2019.  It is also stated in Ext.P5 notice that single deck gas oven covered by Ext.P1 was delivered to her upon her giving a post dated cheque for the balance amount.  It is also averred that opposite party has accepted the post dated cheque to  compensate petitioner for the delay in delivery. In other words according to petitioner opposite party had given her time for paying balance amount by accepting a post date cheque, as according to her, there was delay in delivery since order was place on 3.12.2018. Thus even as per averments in her notice itself, delay, if any, from the side of opposite party has been condoned by her as he had conceded to give time for payment of balance amount. Therefore she cannot now turn around and say that delay amounts to deficiency in service, if there were to be any delay. According to opposite party, petitioner could not purchase the oven and accessories as per R1 due to paucity of funds. This appears to be convincing as petitioner has given different  versions  in P5 and in her complaint.  Her  complaint  proceeds  as  if  the                                                                                                            (cont....12)

-  12  -

contract vide R1 had subsisted without any change, whereas in P5 she would allege that there was a consensus to purchase a different gas oven without accessories, that too of a lesser cost as per P1. If version in P5is accepted as true, then it is to be taken that petitioner complaints about delay in delivery of oven and accessories as per R1 will not stand. When she had agreed to purchase an oven as per Ext.P1 on 12.1.2019, complaints with regard to delay in delivery as per the earlier proposal will not survive.  Now the question is whether there was delay in supply of oven mentioned in Ext.P1 dated 12.1.2019.  According to opposite party, oven was with him since 18.12.2018, the date on which it was delivered to him by Calcutta party via Ext.R2(b) copy of railway receipt.  It is contended by counsel for opposite party that upon receipt of oven on 18.12.2018, petitioner was informed about it on the same day itself.  However, she did not turn up with  balance amount and had shown up only on 12.1.2019 and that too with a post dated cheque for balance consideration.  She had pleaded and beseeched the opposite party to accept a post date cheque and assured that it would be honoured on the date of presentation.  Taking pity on her, opposite party had accepted the cheque and had allowed the petitioner to take delivery of the oven from his manufacturing unit in Angamali. 

          20. Petitioner has a case that the respondent had delivered the gas oven in a goods autorickshaw on 12.1.2019.As per Ext.P1, there are no stipulations with regard to delivery.  Distance between the concern of opposite party and petitioner as seen by Ext.P1(a) copy of way bill is 145 kms.  Ordinarily no dealer would undertake delivery  free of cost to the premises of a purchaser which is located 145 kms away.  It would be either at the cost of purchaser or if not, delivery would be taken care of by the purchaser himself or herself. Petitioner does not say whether delivery was free or that it was done by the opposite party upon her meeting the cost. So also, under normal circumstances, there is no probability of the petitioner accepting delivery of a product costing more than Rs.60,000/- without being satisfied of its condition or workability. Petitioner has admittedly  given a cheque for balance amount to opposite party.  She has also produced Ext.P1 invoice, which according to her was issued by opposite party.  She does not have a case that she had given a post dated cheque covering balance amount to the driver of goods autorickshaw and had accepted the invoice from him, which is highly improbable.                                                                                                               (cont....13)

-  13  -

Her admission that she had given post dated cheque for purchase of a gas oven covered by Ext.P1 would probablise the case of  opposite party that the cheque was given, indeed in person, by petitioner for purchase of gas oven mentioned in Ext.P1 dated 12.1.2019.  The oven was with opposite party on the date of Ext.P1 as it was delivered on 18.12.2018.   Petitioner must have examined it and had after being convinced about its quality and the fact that it was not of any brand or make, accepted the same and  given a cheque for balance amount to purchase the same, if not she would not have given cheque for balance amount. Thereafter she must have taken the oven to her place in Peerumedu.  Her contentions that it was delivered by  opposite party without any contract for delivery of the same,  covering a distance of 145 kms is not at all believable. It is not inevitable that every goods sold should carry a warranty or guarantee by manufacturer or trader. Petitioner had opted for a cheaper oven than one mentioned in R1, owing to paucity of funds as is evident from the fact that she had given a post dated cheque for balance amount and such products, ordinarily,  are of indefinite origin and come without any warranty or guarantee. As mentioned earlier, there is no possibility of petitioner giving a cheque for balance amount without examining the oven either by herself or through her agent. Broader probabilities which emerge are that  oven was examined, purchased and taken delivery by petitioner from the premises of opposite party in Angamali.

          21. Further contentions that there was deficiency in service are also unconvincing. In Ext.P1 invoice no such undertaking is seen given by opposite party that the installation would be done from the concern of opposite party either free of cost or upon payment by purchaser.  At this juncture, it would be proper to consider  whether gas oven required any complicated installation procedure or not? As per Ext.P1, purchase is only of a single deck gas oven.  It operates on gas and electric connection is required only for operating its instrument panel.  Instrument panel is in built in the oven itself, as could be seen from P2 series of photographs.  It has switches for sparking(firing) the oven and to control the temperature and also for turning it off. A regulator pipe line from a gas cylinder or any other source of gas will have to be connected to the oven, just as in the case of gas stoves and  to make the oven operational it need to be placed upon a scaffolding or any platform                                                                                                          (cont....14)

-  14  -

like a table strong enough to bear its weight.  Thereafter what is required is to connect the gas pipe  and power plug from the instrument panel is to be plugged into.    Petitioner does not have a case that installation involves complex procedure which requires technical expertise.  It is also pertinent to note that the commissioner was not asked to report with the help of expert about the installation procedure required to make the gas oven operational.  Neither was he asked  to report with the assistance of an expert to connect the oven to gas and  power sources and to show whether it is functional or not.  Evidence in its totality would go to show that in fact there is no complex technical procedure involved in installing the oven.  Going by Ext.R1, scaffolding and necessary wiring is to be done by the purchaser herself.    Thus what emerges from evidence is that after taking delivery of  oven, for reasons best known to petitioner herself, it was kept idle by her without even examining whether the oven was functional or not.  No manufacturing defect is alleged.  The only complaint now raised is regarding  the rust found in the oven, which, according to commissioner was due to efflux of time. Petitioner has no case in her pleadings that oven was rusted or had sustained any damages when she had taken delivery of the same.  There is no evidence to show that the opposite party was  responsible to deliver the oven at the premises of the petitioner.  There is no evidence either to show that the opposite party had delivered the oven to the working place of petitioner.  Probabilities are that the oven was taken delivery after purchase vide Ext.P1 by the petitioner herself and taken to her working place.  There was no insistence as such to provide technical assistance for installation, firstly, for the reason that there is no reliable evidence to show that petitioner has made any such request, except for her ipsi dixit which is met by contra evidence of opposite party, secondly, as the petitioner does not have a case that installation of oven involved any complicated procedure requiring technical expertise.  It was admittedly placed upon a wooden platform, a table, where it was and probably still is comfortably resting.  What was required was only to connect the gas pipe and also to plug in to instrument panel to a power source.  It was for the petitioner to do these things and she was capable of doing so also as  it is seen from her pleadings that she was running a cake making unit in her premises much  before the dispute herein.                                                                                                                                                                           (cont....15)

-  15  -

22. To sum up, we find that oven was not defective when purchased by petitioner. Opposite party was not responsible for delivering or delay in delivering the gas oven as per Ext.P1 invoice.  There is no reliable evidence to prove any deficiency in service with regard to non-provision of a technician for installing the gas oven, as mentioned earlier.

23. Consequently, we find that there is no defect in goods sold and neither any deficiency in service from the side of the opposite party.  Petitioner is therefore not entitled to get back the advance amount with interest or the compensation claimed.  Point Nos.1 to 4 are answered accordingly.

24. Point No.5: As far as grievance of opposite party is concerned, under the Act, our jurisdiction is limited  to determine whether the consumer is entitled to any relief under the Act with regard to any defect in goods or deficiency in service from a trader or a service provider. In the light of findings arrived at on Point Nos. 1 to 4, we hold that the petition is only to be dismissed.

          In the result, petition is dismissed without costs.

          Pronounced by this Commission, on this the 30^th  day of September, 2021

                                                                                      Sd/-

                                                          SRI. C. SURESHKUMAR, PRESIDENT

                            

                   Sd/-

SRI. AMBADY K.S., MEMBER

 

 

 

 

 

 

                                                                                                                                  (cont....16)

-  16 -

APPENDIX

Depositions :

On the side of the Complainant :

PW1 -   Mini Shajahan.

On the side of the Opposite Party :

DW1 -  Shanto T.K.

Exhibits :

On the side of the Complainant :

Ext.P1(series)  -Tax invoice and e-way bill.

Ext.P2             -  Photos and a bill.

Ext.P3             -  Copy of letter from petitioner to opposite party.

Ext.P4             -  Statement of Account.

Ext.P5             -  Copy of lawyer notice dated 21.2.2019.

Ext.C1            -  Commission report.

On the side of the Opposite Party :

Ext.R1 & R1(a)  – Price Proposal and Quotation.

Ext.R2(series)   -  Photographs and railway receipt.

Ext.R3               -  Copy of complaint filed before the JFCM Court, Angamaly.

Ext.R4              -  Copy of lawyer notice.

 

 

                                                                             Forwarded by Order,

 

 

                                                                     SENIOR SUPERINTENDENT