Per :- Mrs. D.S. Bidnurkar, Member Place : Bandra -*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*- ::::: JUDGMENT ::::: Brief facts of the complaint is as under :- The Opponent no.1 is the authorized representative / agent / partner and service provider in Mumbai of the Opponent no.2. The Opponent no.2 is the company who deals in selling all over India computerized embroidery machines namely, ZHANYI Brand made in China and also provides maintaince repairing and other incidental services of those machinery. 2 By getting impressed on attractive representation made by the Opponents and as per the quotation, dated, 11.06.2007 given by the Opponents, the Complainant booked the comprised embroidery machine for his business. He runs his business for his self employment and every livelihood. He paid Rs.11,51,000/- towards the consideration of the said machine including custom duty shipping company charges and Octroi. The terms and conditions of the sale purchase contract are mentioned on quotation which is placed at exhibit-C1. 3 It is the case of the Complainant that as per the terms and conditions the Opponent no.2 gave services through the Opposite party no.1 from July – 200 7 to November-2007. Thereafter, the Opponents stopped arriving and giving services to the Complainant. This fact was brought to the notice of the Opponent by letter, dated, 13.12.2007 to this the Opponent replied by letter, 15.12.2007 and the denied to give further services. The Complainant contend that for the reasons given above the Opponent is liable to pay @ Rs.5,000/- per month towards servicing / maintaince charges for eight months i.e. Rs.40,000/-. 4 The Complainant, further, alleges that the engineer of the Opponent no.1 had simply opened the machine and again not reassemble the same. Because of this act, the Complainant had to suffer losses and inconvenience so the Opponents are liable to pay Rs.40,000/- towards the losses suffered by him. 5 The Complainant, further, submits that as agreed between the parties, the Opponents were under obligation in supply the work. Accordingly, they supplied the work through M/s. Madhusudan Sainath Industrial Estate, Goregaon. After completion of work, supplied by M/s. Madhusudan Sainath Industrial Estate, the Opposite party no.1 paid Rs.25,000/- and Rs.98,527/- is still pending. 6 Hence, the Complainant sent a legal notice calling upon the Opponent to pay Rs.98,527.50paise the outstanding amount due from M/s. Madhusudan Sainath Industrial Estate and Rs.40,000/- towards eight months servicing charges which has been paid to Mr. Ram Kumar by the Complainant. Rs.40,000/- towards the loss of four days income, as the Opponent no.1’s engineer opened the machine and not assembled the same. To this legal notice, the Opposite party replied but denied his liability of the payment. Therefore, the Complainant has filed this complaint before this Forum seeking relief for direction to the Opposite parties A to pay Rs.40,000/- towards loss suffered by him since machine remained unused. B to pay Rs.40,000/- towards servicing charges for eight months (Rs.5,000/- per month) C to pay Rs.2,00,000/- towards compensation for mental agony. D to pay the interest @18% interest per annum from the date of the delivery of the machine till realization of the amount. E to pay Rs.25,000/- towards costs of this proceeding. 7 The complaint is filed with an affidavit and along with requisite documents. 8 Notice for appearance and to file written statement was issued to the Opponents. The Opponents appeared but delayed in filing their written statement. The written statement was taken on the record, subject to payment of costs Rs.500/- to the Complainant. But the Opponent failed to comply with the order of this Forum and did not pay to cost to the Complainant. Hence, the application was filed by the Complainant for not taking the written statement on the record. Application was granted and written statement was not taken on record and order to proceed the matter ex-parte against the Opponent was passed on 27.07.2010. 9 On perusing the complaint and the documents on the record, the following points arose for our consideration. Nos. | Points | Findings | 1 | Whether the Complainant has proved the deficiency in service by the Opponent and unfair trade practice adopted by the Opponents ? | No | 2 | Whether the Complainant is entitled to get Rs.40,000/- from the Opponent towards service charges ? | No | 3 | Whether the Complainant is entitled to get Rs.40,000/- from the Opponents towards losses suffered by him due to the acts of the engineer of the Opponents ? | No | 4 | Whether the Complainant is entitled to get compensation of Rs.2,00,000/- ? | Question does not arise | 5 | Whether the Complainant is entitled to get 18% interest on above amount ? | Question does not arise | 6 | Whether the Complainant is entitled to get costs of this proceeding of Rs.25,000/- ? | Question does not arise | 7 | What order ? | Complaint stands dismissed |
REASONS FOR FINDINGS :- 10 The Complainant is partnership firms namely – M/s. Bajaj Processing Industry. The Complainant purchased a computerized embroidery machines namely, ZHANYI Brand made in China from the Opponent no.2 i.e. M/s. Shantilown Pvt. Ltd., Surat. Although, the Complainant had purchased the said machine for his business purpose, he is a consumer. The Complainant is relying on S. C.case no.165/0/1998, M/s. M.D. Technomeck Pvt. Ltd., Versus M/s. Tirupati Engineers & Others”. In this case, it was considered even if goods were purchased for commercial purpose, if there is a warranty for its maintaince, purchaser would be a consumer in respect of service rendered or to be rendered by manufacturer or supplier during warranty period. C.P.J.(N.C.) 3, (2006) 256, Super Computer Centre Versus Globees Investment Pvt. Ltd., in this case, it was held that the purchaser of the machinery will certainly be a consumer, in respect of defect in machinery during the period of warranty. 11 The Complainant had purchased the said embroidery machine as per the quotation given by the Complainant. The quotation is placed at exhibit-C1, the terms and conditions of sale purchased contract are mentioned on the quotation. He paid Rs.11,51,000/- the particulars of the payment are described in paragraph no.6, page no.2 of the complaint. 12 It is the case of the Complainant that as agreed between the Opponents and the Complainant and as per the quotation given by the Opponents, the Opponents were required to provide servicing free of charge. Accordingly, the Opponents no.1 provided servicing from July-2007 to November 2007, thereafter, they stopped attending and giving services to the Complainant. This fact was brought to the notice of the Opponent by sending letters, however, the Opposite party denied to give further servicing. Therefore, according to the Complainant, the Opponents are liable to pay Rs.5,000/- per month towards service charges for eight months i.e. Rs.40,000/-. On reading terms and conditions mentioned on quotation, it is observed that there is no mention of free servicing, the period of servicing and number of serving during the warranty period. Clause 5 of Terms and conditions mentioned on quotations reads as (5) Warranty :- One Year, Excluding consumerables like Needles, Shuttle m Bobbin and Bobbin and Bobbin Case, Clips, Compressor, etc…. Warranty does not cover any damages due to accident / mishandling /electrical burn / any force measuer etc., Free service for one year during 9 a.m. to 8 p.m./ during all working days. 13 It means that a in case of any problem with machine during the warranty period, it will be solved and service is free of charge. The Complainant is confused with terms, free service during warranty period and free servicing even duly normal working condition of the machine. The terms and conditions on quotation does not indicate any free servicing. Hence, the question of payment of Rs.40,000/- (@ Rs.5,000/- per day for eight days) does not arise. 14 The Complainant further, claims Rs.40,000/- towards the losses suffered by him. According to the Complainant, the engineer of the Opponent no.1 opened the machine and left it without reassembling. Therefore, the Complainant had to suffer loss for four days income i.e. Rs.40,000/-. Regarding this, the Complainant has not to produce any kind of evidence on the record. Therefore, this contention of the Complainant can not be considered. 15 The Complainant, further alleged that as alleged between the partes, the Opponent will require supply of work. Accordingly, the Opponent introduced M/s. Madhusudan Sai Industrial Estate has supplied their clothes for the work of the embroidery as per the instructions of the Opponents, the Complainant had completed the work to their satisfaction for this the Opponent no.1 paid Rs.25,000/- on behalf of M/s. Madhusudan Sai Industrial Estate and balance of amount of Rs.98,527/- is still pending. Regarding this contention, the Complainant has not brought on record the terms of the agreement and also any orders given by M/s. Madhusudan Sai Industrial Estate to the Complainant. Hence, there is no substance in the allegations made by the Complainant. Moreover, M/s. Madhusudan Sai Industrial Estate is not party to proceeding. The Complainant has totally failed to prove his case on any of the court. Hence, the complaint is liable to be dismissed. :::: ORDER ::::: (1) The complaint stands dismissed with no order as to costs. Certified copies of this order be furnished to both the parties, free of costs, as per rule
| | [HONABLE MRS. Mrs.DEEPA BIDNURKAR] Member[HONABLE MR. Mr. J. L. Deshpande] PRESIDENT[HONABLE MR. MR.V.G.JOSHI] Member | | 
