PRESENT:
- Smt. Asha Shetty, B.A., L.L.B., President
- Smt. Sulochana V. Rao, Member
- Sri. K. Ramachandra, Member
ORDER DELIVERED BY SMT. ASHA SHETTY, PRESIDENT:
1. The facts of the complaint in brief are as follows:
This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Party claiming certain reliefs. Complaint is admitted on 1.1.2008.
The case of the complainant is that, he is running a printing press and he had purchased brand purchased brand new Binding Machine Mark II Bound Weall worth Rs.3,31,875/- from the 1st Opposite Party through (hearinafter referred as the “Machine”) his dealer 2nd Opposite Party on 2nd September 2006.The said machine has warranty of one year for any manufacturing defect and free service from the date of supply as per letter dated 2.11.2006 .
The Complainant submits that, from the date of installation the above machine not functioned properly and is dotted with several malfunctions. For the said problems he had requested several times to rectify the problems, despite of repeated requests, the service personnel of 1st Opposite Party have visited the press only twice. On second visit, the 1st Opposite Party had charged Rs.35,000/- for the repair despite a warranty and one whole year of free service. Further submitted that, the repairs done by the service personnel of 1st Opposite Party have not helped and machine continues to face problems in functioning. The machine has stopped working from the last seven months and submitted that, the 1st Opposite Party have not been showing any interest to rectify the problem and machine is defective.
The Complainant further submits that, he has intimated the problem to the Opposite Party No.2, the Opposite Party No.2 has written letter to the Opposite Party No.1 expressing the problem but Opposite Party No.1 was not bother to reply the said letter nor he has sent any body to rectify the problem. Since there was no response Complainant issued a letter dated 7.8.2007 to the Opposite Parties mentioning all the problems even for the said letter there was no reply and again issued a legal notice in spite of that the Opposite Parties were not bother to rectify the problem that amounts to deficiency in service and hence the Complainant filed the above complaint under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction to the Opposite Parties to pay a sum of Rs.10,31,875/- with interest at 15% per annum by way of compensation to the Complainant.
2. Version notice served to the Opposite Parties. In spite of serving version notice to the Opposite Party No.1 not appeared nor represented the case till this date and hence we have proceeded exparte as against the Opposite Party No.1.
Opposite Parties No.2 appeared through their counsel and filed version. Admitted that the Complainant purchased brand new Binding Machine Mark II Bound Weall worth Rs.3,31,875/- from the 1st Opposite Party through his dealer i.e. 2nd Opposite Party on 2nd September 2006 and paid all the amount and the 1st Opposite Party had acknowledged the receipt of payment and the said machine has a warranty for one year for any manufacturing defects and one year free service from the date of supply and admitted that the said machine was not functioned properly since the date of installation.
This Opposite Party submits that they were prompt to inform the Opposite Party No.1 every time. It is also submitted that, service personnel of the Opposite Party No.1 have charged Rs.35,000/- for the repair despite a warranty and one whole year of free service. The Opposite Party No.2 has taken all efforts to ensure that the problem in the said machine be fixed at the earliest. There have been several letters written by the Opposite Party No.2 to the Opposite Party No.1 requesting him to rectify the problem. Apart from that there have been several phone calls to Opposite Party No.1 explaining the problem and urging to rectify the same. However, there has been no action taken by the Opposite Party No.1 and admitted that the said machine has serious manufacturing defect and Opposite Party No.1 had sold a defective machine. Opposite Party No.2 is a dealer, distributes the manufacturer’s machines to the end customers. Opposite Party No.2 do not have the technical knowledge to identify the manufacturing defect and rectify. It is the sole responsibility of the Opposite Party No.1 for putting on sale a machine with manufacturing defect and this Opposite Party is not liable towards defective machine. And Opposite Party No.2 ready to render all required support and contended that there is no deficiency in service as a dealer and prayed for dismissal of the complaint as against this Opposite Party No.2.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that the Opposite Parties have committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, the Complainant– Rev. FR.Peter Cyprian D’Souza (CW1), filed affidavit reiterating what has been stated in the complaint and Ex C1 to C109 were marked for the Complainant. Opposite Party No.2 filed version in support of the case.
We have heard the arguments and perused the pleadings, documents and evidence placed on record by the respective parties and answer the points are as follows:
REASONS
5. POINTs No. (i) to (iii):
In order to prove the case of the Complainant, Ex.C1 to C10 produced before this Forum ,wherein, Ex.C1 & C2 proved that the Complainant purchased above Binding Machine consisting spine thickness upto 70mm, spine length upto 430mm, speed–700 books per hour, power- 4 hp three phase–Heater 2 KV Heavy Duty with Accessories one in Number for worth Rs.2,95,000/- along with vat tax 12.5% i.e. Rs.36,875/- in total paid Rs.3,31,875/- to Opposite Party No.1 through Opposite Party No.2 who is a dealer on 2nd September 2006. Further Ex.C2 i.e. a letter dated 2.11.2006 issued by the Opposite Party No.2, it is proved that, the machine has a warranty of one year for any manufacturing defect and one year free service from the date of supply. And further the Ex C3 to C9 are the correspondences between the parties shows that, the said machine, since the date of installation is not functioned properly and is dotted with several malfunctions. The Complainant had requested several times to rectify the problems, in spite of several requests, the personnel of the Opposite Party No.1 visited the press only twice and on 2nd visit the personnel have charged Rs.35,000/- for the repair despite of one year warranty and free of service. And further it is proved that, the Opposite Party No.1 showing no response to the complaint made by the Complainant as well as Opposite Party No.2 who is a dealer.
Apart from the above mentioned documents the dealer i.e. Opposite Party No.2 specifically admitted in their version as well as in their evidence that the machine supplied by them are not working since few months and it has manufacturing defect and also admitted that in spite of several request the manufacturer is not turned up and agreed that Opposite Party No.1 charged Rs.35,000/- for the repair despite of one year warranty and of free service.
However, after filing the above complaint before this Hon’ble Forum, version notice served to the Opposite Parties by paper publication in Vijaya Karnataka Kannada Daily Newspaper, Bangalore Edition. In spite of that the Opposite Party No.1 not bothered to appear before the Forum or contest the case. The entire evidence of the Complainant is not controverted/rebutted by the Opposite Party No.1 and hence it requires no further proof.
From the above admitted documents as well as the oral evidence produced by the parties, it is proved beyond doubt that, the machine supplied by the Opposite Party No.1 is not working and defective. And further it is proved that, Opposite Party No.1 who is a manufacturer of the above said machine is not responding to the complaint lodged by the Complainant as well as the dealer. The service rendered by the Opposite Party No.1 amounts to deficiency in service.
As far as the claim of the Complainant is concerned in the present case, the Complainant claimed for reimbursement of the entire amount. By considering the service rendered by the Opposite Party No.1, it appears that instead of asking the Opposite Party No.1 to repair the above machine, it is reasonable to direct the Opposite Party No.1 to reimburse the entire amount because inspite of several correspondences the Opposite Party No.1 is not turned up that means Opposite Party No.1 is not bothered about the customers.
Under such circumstances, we find that the Opposite Party No.1 is hereby directed to reimburse the total sum of Rs.3,31,875/- by retracting the machinery from the Complainant and Rs.10,000/- awarded as compensation towards the mental agony and Rs.1,000/- awarded as cost of the litigation expenses. Compliances shall be made within 30 days from the date of this order.
6. In the result, we pass the following:
ORDER
The complaint is allowed. Opposite Party No.1 is directed to reimburse of the total sum of Rs.3,31,875/- by retracting the machinery from the Complainant and Rs.10,000/- awarded as compensation and Rs.1,000/- towards the cost of the litigation expenses. Compliances shall be made within 30 days from the date of this order.
Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.
(Dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 31st day of July 2008.)
PRESIDENT
(SMT. ASHA SHETTY)
MEMBER MEMBER
(SMT.SULOCHANA V.RAO) (SRI. K.RAMACHANDRA)
APPENDIX
Witnesses examined on behalf of the Complainant:
CW1 – Sri. FR.Peter Cyprian D’Souza.
Documents marked on behalf of the Complainant:
Ex C1 – 02.09.2006: Vat Invoice issued by the dealer, Monu
Graphis – 2nd Opposite Party.
Ex C2 – 02.11.2006: Office copy of letter furnished by the
2nd Opposite Party.
Ex C3 –16.3.2007: Office copy of letter issued by the 2nd
Opposite Party with instance of Complainant.
Ex C4 – 07.08.2007: Office of letter issued by the
Complainant to the 2nd Opposite Party.
Ex C5 –22.08.2007: Served Copy of the letter issued by 2nd
Opposite Party to 1st Opposite Party.
Ex C6 – 03.09.2007: Office copy of the notice issued by
Complainant to 2nd Opposite Party.
Ex C7 – 25.09.2007: Reply issued by the 2nd Opposite Party
to the Complainant.
Ex C8 –03.09.2007: Office copy of the notice issued by the
Complainant to 1st Opposite Party.
Ex C9 –Postal Acknowledgement having service of notice
issued by the Complainant – 2 in numbers.
Ex C10 – 29.4.2008: The Receipt issued by the Chiya &
Girish Advertising for paper publication.
Witnesses examined on behalf of the Opposite Party:
- Nil -
Documents marked on behalf of the Opposite Party:
- Nil -
Dated:31.7.2008 PRESIDENT
DATED: 31.7.2008
ORDER
The complaint is allowed. Opposite Party No.1 is directed to reimburse of the total sum of Rs.3,31,875/- by retracting the machinery from the Complainant and Rs.10,000/- awarded as compensation and Rs.1,000/- towards the cost of the litigation expenses. Compliances shall be made within 30 days from the date of receipt of this order.
Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.
PRESIDENT
(SMT. ASHA SHETTY)
MEMBER MEMBER
(SMT.SULOCHANA V.RAO) (SRI. K.RAMACHANDRA)
