BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 18th of February 2011
PRESENT
SMT. ASHA SHETTY : PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
SRI. ARUN KUMAR K. : MEMBER
COMPLAINT NO.199/2010
(Admitted on 17.07.2010)
Mr.Ramakrishna Bhat,
Aged about 60 years,
So. Mr.Narayan Bhat,
RA. Parapadi Mane,
Nalloor Post, Karkala Taluk,
Udupi District. …….. COMPLAINANT
(Advocate for the Complainant: Sri.K.P.A.Shukoor).
VERSUS
Mr.K.Ramachandra Bhat,
Proprietor, Aparna Steel Industries,
Old Gate, Sullia,
Dakshina Kannada District. ……. OPPOSITE PARTY
(Advocate for the Opposite Party: Sri.Sudhakar Nettar).
***************
ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:
1. This complaint is filed under Section 12 and 13 of the Consumer Protection Act alleging defect in goods against the Opposite Party claiming certain reliefs.
The brief facts of the case are as under:
The Complainant submits that, he is an agriculturist purchased Areca Pealing Machine from the Opposite Party for a total sale price of Rs.65,000/-, the above said machine was delivered on 15.10.2009. For the payment of the sale price, Opposite Party issued a receipt to that effect acknowledging the entire payment for the aforesaid machine.
It is stated that, on the very same day the Complainant noticed that the said machine was not working properly but the Opposite Party has assured that gradually it will work and if there is any defect, he will replace the machine or repay the full amount and given one year warranty for the said machine. The Complainant submits that, the aforesaid machine was not working from 01.11.2009 and immediately he had contacted the Opposite Party through telephone and the Opposite Party has assured the Complainant that, he would repair the same but the Opposite Party has not yet repaired or replaced the aforesaid machine. The allegation of the Complainant is that, the machine supplied by the Opposite Party is a sub-standard and has manufacturing defect.
It is further submitted that, the Complainant is an agriculturist and purchased the same for carrying out the pealing of the arecanut, because of the defect in machine, he has suffered financial loss as well as mental agony. Thereafter, he issued a legal notice to the Opposite Party to repair the machine or to replace the machine but the Opposite Party despite of receiving notice not repaired or replaced the same. Hence, the above complaint filed under Section 12 and 13 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to refund Rs.65,000/- i.e., the entire cost of the machine and also claimed Rs.30,000/- as compensation and cost of the proceedings.
2. Version notice served to the Opposite Party by RPAD. Opposite Party appeared through their counsel filed version denying the entire contentions raised by the Complainant in his complaint. This Opposite Party admitted the receipt of the amount and selling of the Areca Pealing Machine to the Complainant.
It is stated that, after receipt of the complaint from the Complainant, the Opposite Party sent his workers to the house of the Complainant and carried out the service. It is submitted that, there is acute shortage of agricultural labour in the agricultural field, alternative arrangement for pealing the arecanut is under invention. The Opposite Party is having workshop at Sullia and making one such attempt as demanded by local agriculturist for the same purpose. The Complainant has taken the unit as it as and there is no guarantee/warranty is offered by the Opposite Party. The unit has been taken by the Complainant, it is fit for use, there is no defect in the plant/unit/machine and denied the allegation that, on 1.11.2009 onwards the plant is not in working condition and prayed for dismissal of the complaint.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Areca Pealing Machine purchased by the Complainant on 15.10.2009 from the Opposite Party is proved to be defective?
- Whether the Complainant proves that the Opposite Party has committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Mr.Ramakrishna Bhat (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C3 were marked for the Complainant as listed in the annexure. One Sri.Ramachandra Bhat (RW1), Proprietor of Aparna Steel Industries filed counter affidavit and answered the interrogatories served on him. The Complainant produced citations.
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i): Affirmative.
Point No.(ii) to (iv): As per the final order.
Reasons
5. Point No. (i) to (iv):
The facts which are not in dispute is that, the Complainant who is an agriculturist purchased the Areca Pealing Machine from the Opposite Party and paid a sale price of Rs.65,000/- and the above said machine was delivered to the Complainant on 15.10.2009 (as per Ex C3).
The grievances of the Complainant is that, the Opposite Party by receiving Rs.65,000/- delivered the Areca Pealing Machine on 15.10.2009 and given one year warranty. The above said machine not worked properly from the date of installation itself but the Opposite Party assured that gradually it will work. On 01.11.2009 the machine was completely out of order and not working and immediately contacted the Opposite Party but the Opposite Party not repaired or replaced the aforesaid machine. It is stated that, the machine supplied by the Opposite Party is suffering from manufacturing defect and came up with this complaint.
Opposite Party on the other hand, denied the manufacturing defect and stated that, the unit taken by the Complainant used it and after receipt of the complaint, the Opposite Party sent his workers to the house of the Complainant and carried out the service and denied the allegation that from 01.11.2009 onwards the unit is not in working condition and stated that the machine is fit for use and there is no defect.
The Complainant filed oral evidence by way of affidavit and produced Ex C1 to C3. Opposite Party also filed oral evidence by way of affidavit.
After going through all the records available in this file, we find that, the purchase of the above said machine and manufacturing of the above said Areca Pealing Machine is not denied by the parties before this Forum. The Opposite Party specifically admitted in his version in para No.6 as follows:-
“There is acute shortage of agricultural labour in the agriculture field, alternative arrangement for pealing the arecanut is under invention. The Opposite Party is having workshop at Sullia and making one such attempt as demanded by the local agriculturist for the same purpose”. That means, the Opposite Party is not an expert in manufacturing of the Areca Pealing Machine is proved by his own statement. The Opposite Party admitted that, arrangement for pealing the arecanut is under invention and also admitted that, he is having workshop and making one such attempt as demanded by the local agriculturist for the same purpose. The Opposite Party though attempted to make one such areca pealing unit as demanded by the Complainant but he should not forget that the above said unit not sold free of cost. In the instant case, the Complainant paid Rs.65,000/- to the Areca Pealing Machine, when that being the case, the Opposite Party cannot escape from the liability by stating that there is an acute shortage of agricultural labour in the agriculture field, alternative arrangement for pealing the arecanut is under invention. The Opposite Party manufactured the above Areca Pealing Unit and received so much of amount i.e. Rs.65,000/- from the agriculturist i.e., the Complainant herein, it is the bounden duty of the Opposite Party to provide a quality product. To provide quality product, one must possess expertised knowledge in manufacturing such a machine. Further, we have noticed that, the Opposite Party admitted that after receipt of the complaint from the Complainant, he has sent his workers to the house of the Complainant and carried out the service. But no such service report produced before this FORA to show that the machine is repaired by him and the same is working and fit for use.
Further, in the instant case, the Complainant sworn to the fact that, the machine was not working from 01.11.2009 and immediately contacted the Opposite Party through telephone but the Opposite Party not repaired or replaced the machine and subsequently issued a registered notice dated 04.12.2009 (i.e., Ex C1) called upon the Opposite Party to repair the said machine or to replace the said machine. The above said legal notice was served on 08.12.2009 to the Opposite Party, despite of that the Opposite Party not taken any action in this case. The above said fact not controverted/contradicted by the Opposite Party by producing material evidence. No doubt, the Opposite Party filed affidavit by way of oral evidence before this Forum denying the allegation of defect in the Areca Pealing Machine and stated that there is no defect in the plant/unit/machine and it is fit for Complainant’s use. If that is the case, the Opposite Party should have taken out the commission to inspect the machine to prove that it is in working condition and not defective. But in the instant case, despite of receiving lawyer’s notice, Opposite Party not taken any steps/ measures to repair the machine. As we discussed herein above, the Opposite Party not produced any job card or service report to show that, the machine is in working condition and he carried out the repair of the said machine.
In the instant case, the Complainant proved that, when the machine was completely stopped working, he issued a registered legal notice and the same has been served to the Opposite Party. That itself is sufficient to hold that the Areca Pealing Machine is not working and it has some defects. There is no reason to disbelieve that the areca machine is not working.
We are of the opinion that, the Complainant being an agriculturist suffered in the hands of the Opposite Party by purchasing the above said machine and also by paying so much of amount to the Opposite Party. The Opposite Party is not an expert in manufacturing of Areca Pealing Machine which has been proved by his own statement filed before this Forum by way of version. Further the Opposite Party is not attempted to repair the machine despite of receiving complaint from the Complainant. The above facts proved beyond doubt that, the Areca Pealing Machine sold by the Opposite Party has some defect and the same is not working condition. Further the Opposite Party not attempted to repair the machine sold by him which amounts to deficiency in service.
In view of the above discussion, we find that, the Opposite Party is not expert in the field of manufacturing areca pealing machine and the machine sold by him to the Complainant on 15.10.2009 is defective. Under that circumstances, replacement of the Areca Plant will not meet the ends of justice. On the other hand, we direct the Opposite Party to refund the entire amount i.e., Rs.65,000/- paid by the Complainant to the Opposite Party by taking back the defective Areca Pealing Machine from the custody of the Complainant. And the Opposite Party also directed to pay Rs.10,000/- as compensation for the inconvenience and hardship caused to the Complainant and further Rs.1,000/- as cost of the litigation expenses. Payment 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 is hereby directed to refund the entire amount i.e., Rs.65,000/- (Rupees sixty five thousand only) paid by the Complainant to the Opposite Party by taking back the defective Areca Pealing Machine from the custody of the Complainant. And also pay Rs.10,000/- (Rupees ten thousand only) as compensation and Rs.1,000/- (Rupees one thousand only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
On failure to pay the aforementioned amount within the stipulated time as mentioned above the Opposite Party is hereby directed to pay interest at the rate of 10% p.a. on the total amount from the date of failure till the date of payment.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.
(Page No.1 to 10 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 18th day of February 2011.)
PRESIDENT MEMBER MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Mr.Ramakrishna Bhat – Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – 04.12.2009: Legal notice issued to the Opposite Party on behalf of the Complainant.
Ex C2 – : Postal acknowledgement.
Ex C3 – 15.10.2009: Receipt issued by the Opposite Party for Rs.65,000/- (Original).
Witnesses examined on behalf of the Opposite Party:
RW1 – Sri.Ramachandra Bhat, Proprietor of Aparna Steel Industries.
Documents produced on behalf of the Opposite Party:
Dated:18.02.2011 PRESIDENT
