Per Mr.P.N.Kashalkar, Hon’ble Presiding Judicial Member

            This is an appeal filed by original O.P. against the order passed by Additional District Consumer Forum, Mumbai Suburban District Consumer Forum in consumer complaint no.253/2005 dated 11/2/2010. Allowing the complaint partly, Forum below directed O.P. to refund the amount of Rs.1,65,000/- with interest @ 6% p.a. to the complainant from 04/3/2004 till realization of the amount and also directed to pay amount of Rs.3000/- towards the cost, as such original O.P. has come up in appeal.  Facts to the extent material may be stated as under:-

Complainant had purchased from appellant/original O.P. ‘Brother Embroidery machine Super Galaxy 3000 model’ for his own earning and self employment on 30/8/2003.  Complainant and his son had no idea how to run the machine but O.P. assured that 5-6 times in a month he would send his man to train the complainant and his son for learning them how to run the machine.  On this assurance, complainant purchased the machine, but it is alleged by the complainant that the man was not deputed by the  O.P. to train them in the art of running the machine. Once mechanic was deputed by him but the said person told that machine was having defect.  He assured that he would send the owner of the shop to his house but none came to show how the machine should be run. Ultimately, after being fed up with the non response of the shop owner, complainant took that machine back to the shop of O.P. on 04/3/2004.  Shop keeper was not prepared to take back the machine. He abused the complainant. Ultimately, complainant left the machine with the O.P. in his shop and went to police station to lodge a complaint.  In Police station O.P. was called and in presence of police, it is alleged by the complainant that O.P. had assured to give refund of monies, but there was further no response from the O.P. He even sent letters to higher police officers but it was of no avail.  Ultimately, he filed consumer complaint alleging deficiency in service on the part of the O.P. and also claimed compensation of Rs.5000/- per month or refund of monies since the complainant pleaded that the machine was defective and it could not be repaired.

O.P. filed written statement in the forum below and contested the matter.  According to O.P. complainant has not given expert evidence to prove that machine was defective or it was having manufacturing defect.  According to O.P., after machine was sold to the complainant, 5-6 times his person had gone to the shop of complainant and explained him how the machine should be run.  Thereafter, complainant could run the machine and, therefore he had discontinued even services of his mechanic to train the complainant.  He however, admitted that after 4-5 months the complainant came to his shop and left the said machine at his shop.  According to O.P. the complainant had purchased the said machine for his business and, therefore, he cannot be treated as ‘consumer’ and he cannot be permitted to file a consumer complaint.  O.P. pleaded that as per conditions printed on the invoice, complainant knew that the machine cannot be/could not be taken back once sale was effected.  Therefore, he had not accepted delivery of machine on 04/3/2004 and complainant deliberately left the machine on the road in front of his shop and lodged false complaint against him in police station. He pleaded that even today he is prepared to give the machine back to the complainant, but complainant is insisting that he should be given refund of moneys. He pleaded that he is not guilty of deficiency of service of any kind and, therefore, complaint should be dismissed with cost.

Considering affidavits and documents placed on record, Forum below was of the view that the very fact that the machine was with the O.P. with effect from 04/3/2004 and further fact that O.P. had not opened the machine to see what defect it was having, the forum held that this conduct itself demonstrated that the machine was a defective piece and that is why he had not taken pains to open the machine and see if it was in proper working order or it was having any defect as alleged by the complainant.  Forum below was of the view that it was the duty of the O.P. to see if the machine was in order or if there was any defect in the machine.  He could have repaired it and asked the complainant to come to the shop and could have given live demonstration to the complainant to refute complainant’s allegation that the machine in question was having manufacturing defect.  Since he has not done so, forum below held that O.P. was guilty of supplying defective machine. Complainant had even sent letter to the O.P. on 19/10/2003 on which date he had given remaining amount of Rs.10,000/- to the O.P. and in that letter he had specifically mentioned that the O.P. should come to give live demonstration to him and the defect should be removed or repaired.  On this contention, he had given the remaining amount of Rs.10,000/- to him. This letter was not refuted by giving any counter reply to the said notice of the complainant and, therefore, forum below held that the complainant’s allegation that the machine was defective was finding support in terms of circumstances discussed in para 8 of the judgement and forum below also held that since the machine was lying with the O.P, complainant would not be in a position to procure any expert evidence because he cannot show that the machine to anybody else since it was in the custody of the O.P. Therefore, forum below upheld contention of the complainant and passed the impugned award directing the O.P. to refund amount of Rs.1,65,000/- along with interest @ 6% p.a. from 04/3/2004 and also directed to pay cost of Rs.3000/- to him.  Aggrieved by this award, O.P. has filed this appeal taking strong exception to the order passed by the District Consumer Forum.

We heard submissions of Mr.V.P.Katti-Advocate for the appellant and Mr.U.B.Wavikar-Advocate for the respondent.

Upon hearing them, we are finding that the order passed by the forum below is appearing to be just and proper and no fault can be found in the impugned award, simply because the complainant had not produced expert evidence on record.  Because of the circumstantial impossibility the respondent/complainant could not procure the expert evidence.  It is an admitted fact that from 04/3/2004 said machine is lying with the appellant.  Appellant has not bothered to open the said machine and to see whether it was in working order and/or if it was requiring some minor repairs. He did not inspect the machine at all right from 04/3/2004.  This fact weighed heavily on the mind of the District Consumer Forum and on account of this fact, this material omission on the part of appellant, forum below held that the machine was defective and that is why the O.P. was admitting in the course of arguments that he had not opened the machine after it was left at his shop by the respondent herein on 04/3/2004.  So the reasonable inference drawn by the Ld. District Consumer Forum upon the conduct of the O.P. in not even seeing or examining the machine left behind in his shop by the respondent on 04/3/2004 was itself proving that the machine was a defective piece and that is why the appellant had not bothered to open the machine on 04/3/2004 or any time thereafter.  In the circumstances, forum below rightly drew adverse inference against the appellant and held that the machine in question was not in order and, therefore, forum below rightly directed the appellant herein to give refund of Rs.1,65,000/- with interest @ 6% p.a. from 04/3/2004 and also rightly directed to pay cost of Rs.3000/- to the complainant by the impugned award.  In the circumstances, we are finding that the order passed by the forum below is just and proper and it does not call for any interference by this Commission sitting in appeal.  Appeal is appearing to be meritless. Hence the following order:-

                         ORDER

1.     Appeal stands dismissed.

2.     Parties are left to bear their own cost.

3.     Inform the parties accordingly.