SMT. RAVI SUSHA: PRESIDENT

            This complaint has been filed by the complainant for getting an order directing opposite parties to take back the subject machines from the complainant and to pay cost of those machines Rs.2,27,360/-, Rs.5,00,000/- as compensation, Rs.50,000/- towards cost of spares and parts with 12% per annum from the date of complaint till realization and to pay cost of proceedings of this case.

            Facts of the case are that the complainant setting up a self employed Industrial Unit of Button hole making and button fixing in order to purchase one such machines each.  On 13/11/2020 complainant sent a quotation through e-mail quoting the rate of a total of Rs.2,27,360/- for one such machines of each items including tax.  The complainant placed an order with OPs through the 1^st OP to supply 1Nos. each of the above machines for Rs.2,27,360/-.  The OPs thereafter supplied both items to the complainant on 13/04/2021.  It is stated that the OPs declined to issue invoice of those machineries either at the time of delivery or at the time of erection and also thereafter except carbon copy of a  forged invoice as stated below.  Thereafter, the 1^st OP assembled and erected both the above machines in the shop room of the complainant in the name and style of “Nisha’s Button Fixing Centre” at New  Bus stand, Payyannur.  While erecting the machines also, the 1^st OP repeated his above representations as to the quality and perfection of those machines.  Immediately after erection, the complainant started using those machines but both machines began showing many troubles, break downs, defects and imperfection in working, one after another.   Complainant experienced untold obstacles including break down of several parts of those machines.  Most of the parts and components are very inferior in quality, working and perfection and were so weak, defective and outdated.  But to the troubles experienced in working of both machines, complainant could neither continue operation of machines nor uninterruptedly work with them.  On all these occasions, complainant frequently contacted the 1^st OP for their service to make them in working condition.  But the 1^st OP with whom the complainant contacts, totally neglects to attend the complaints.  He use to extend his service after continuous calls for days and weeks.  During all these times, the complainant had to sit idle.  When frequent break down occurred, the complainant enquired about the basic cause of those machines with similar operators.  What the complainant could understand was the subject machines supplies by the OPs were of very poor quality, quite unfit for industrial running and both of them were old and sued ones which the suppliers would have collected from the 2^nd sale markets.  The whole amount of Rs.27,360/-  paid by complainant to the OPs, is lost.  The OPs above act is nothing  but deficiency in service, unfair trade practice, imperfection an short coming in quality, purity and standard which the OPs are bound to maintain under law in the subject deal.  The machines were  got inspected by an expert by name Mr. Thamban Nambiar M P, at Kottachery, Kanhangd who is a qualified Mechanical Engineer and a registered Insurance Surveyor and Loss Assessor.  His report affirms the above stated poor quality of machines.  The complainant sent lawyer notice dated 23/12/2021 to the OPs.  However, notice issued to all OPs were retuned unserved with the endorsements and “Door Locked”, “Addressee cannot be located”, and “Addressee left” respectively.  Hence this complaint.

            Notices were served to the OPs.  OPs 1 to 3 contested the case and filed written version submitted that there is no deficiency on their part and submitted that these OPs denies the allegations.  It is true that these OPs received the amount online and had shown many products then complainant selected particular machine and OP supplied the same.  The product is a standard product produced by Sunshine Industries and the name of the brand is SERA.  It is a well-known brand which provides machines.  These OPs are only distributors thereafter supplied both items to the complainant on 13/04/2021.  At the time of handing over the machine these OPs provided invoice in original and later the complainant informed that she lost the same and the OPs issued carbon copy of the invoice on request for claiming warranty from the manufacturers.  In fact the complainant used the machine without adjusting thread tension properly and mishandled the machine and when these OP visited the site they came to know that the complainant has no knowledge regarding the functions of the machine and she requested the OPs to teach how to use the same every time.  These OP attended the shop several times and informed them to use the machine properly.  The complainant was not willing to approach manufacturer saying that their address is at Mumbai.  The manufacturer is available over phone however the complainant never called them for providing warranty.  It is submitted that for bad quality the manufacturer is liable and not the distributors and they are necessary parties to decide the dispute.  However, the complainant never approached the manufacturer.  The product supplied was a new one without any defect.  Further, submitted that Mr. Thamban Nambiar M P, at Kottachery, Kanhangad who is a qualified Mechanical Engineer and a registered Insurance Surveyor and Loss Assessor is not known to these OP.  His report is a biased report and cannot be accepted.  The OPs never received any lawyer notice as stated in the complaint.  This complainant is only dealer and there is no deficiency in service on the part of these OPs.  Hence prayed for the dismissal of the complaint.

            Complainant filed her chief –affidavit and documents.  She was examined as Pw1 and Exts. were marked as Ext.A1 to A6.  Ext.A6 is the report submitted by Insurance surveyor and Engineer Mr. Thamban Nambiar M P as per the instructions of the complainant.  Marking was objected by the Learned counsel of OP.  From the complainant side, the above said person who prepared ext.A6 was examined as pw2 and confronted Ext.A6 to him.  On the side of OPs, OP No.1 Mr. Saji Mathew filed his proof affidavit and was examined as Dw1.  One more witness Mr. Mukesh P K alleged as Mechanic was examined as Dw2.   All witness of both sides were cross-examined by the rival parties.  After that the learned counsel of complainant made argument and the learned counsel for OPs, filed their written argument note.

            The 1^st plea raised by the learned counsel of OP that the complainant is bad for non-jointer of necessary parties.  According to OPs the products were manufactured by Sunshine Industries with brand named SERA.  The products come with a standard warranty for one year from the date of purchase.  The warranty would expire only on 07/04/2022.  If there is any manufacturing defect or any other defects the complainant can claim relief from the manufacturer. However, the manufacturer has not been impleaded so far.  Hence, the complainant is bad for non-jointer necessary parties.

            We can see that during examination in page 6, Pw1 categorically stated that sunshine  എന്ന കമ്പനിയും sera എന്ന product ഉം ആയി  ഈ ഇടപാടുമായിട്ട് ഞാനുമായി യാതൊരു ബന്ധവുമില്ല.  Machine purchase ന് വേണ്ടിനിങ്ങളുമായി ഇടപാട് ഉണ്ടാക്കിയത് ആരുമായിട്ടാണ്?  Sanjay Mathew വുമായിട്ടാണ്.                          

            In Electro Audio Vision Vs. M/s Diddan Construction 2014(1) CLT.  The Hon’ble State Consumer Disputes Redressal Commission Shillong, held that “manufacturer may be proper party merely because manufacturer may be a possible party is no ground for holding in the reverse that he is a necessary party who non-jointer would be fatal to the whole proceedings because  The Consumer Protection Act is a beneficial Statute  enacted for the better protection of the interest of consumer.  Here, OPs are independent dealers and not an agent of the manufacture of the product in dispute.  Hence he cannot wash off his hands after making a sale and shift his burden to the manufacturer nor can he insist that the Manufacturer be added as a party to the proceedings.  (Here Dw1 agreed about the sale of the product to the complainant.)  A consumer is primarily concerned  with the person from whom he buys the goods, as privity of contract is between them and no with the manufacturer (Pw1 deposed like that)

            By taking into consideration of this view, the 1^st plea taken by the OPs cannot be allowed.  Hence the said plea is rejected.

            The 2^nd plea raised by OPs is that Expert report is mandatory to prove inherent defects under Sec.13(1) ©.  The learned counsel of OP cited a decision M/s Barath Earth Movers Ltd Vs. Thiru R NCDRC. ie since no expert has been appointed by the commission the case cannot be decided on merit and liable to be dismissed.

            In the instant case, complainant allegation is that immediately after erection and use of the dispute machine, began showing many troubles, break downs, defects and imperfection in working, one after another.

            From the submissions made by the complainant and on perusing the correspondence between the complainant and OP No.1 (Ext.A2) it is clear from the E-mail forwarded to OP No.1  that the machine was not working properly since the installation and also clear that Inspite of several request  and information from the side of complainant, OP did not provide purchase bill as well as Guarantee and warrantee card and also “after Sales service is not under taken  properly”.  Which clearly evident that the machine supplied by OPs became defective within a short period.  The said fact itself amounts to manufacturing defect and principle of resipsa Ioquiture can be applied at this juncture.  Moreover the Hon’ble National Commission in the case Scooter India Ltd. and Anr. Vs Madha Baneda Mohanly and ors. 11(2005) CPJ 136 (NC) had clearly held that “it is not always necessary for the customer to get expert testimony”.  So the 2^nd plea of OPs is also found against OPs.

            Here complainant has submitted Ext.A6 Machinery Inspection report prepared by    Mr. Thampan Nambiar. M P.  Insurance surveyor and Engineer.  He was also examined as a witness of complainant.  From the evidence it is revealed that he is an Automobile diploma holder, having IRDA License Surveyor having 35 years experience.  Our view that considering his experience etc. the inspection report prepared by Pw2 with respect to sewing machine, can be taken as an evidence to ascertain the present working condition defects  etc. of the machine.

            It is reported that “Button Hole Stitching Machine” (Sera Special, Make: Sera Sewing Machine Co. Taiwan; Model No. SR780; Serial No.2020907012 found damaged badly.  Motor accelerating pulley assy was found broken.  Pulley belt was damaged badly.  Motor assy found damaged badly due to wear and tear.  Thread tension unit found broken.  Machine head assy found damaged badly and not properly working condition.  Adjusting system unit of the button hole width found damaged badly and not properly working condition.  Speed reduction system assy found not properly working.   Manual feed handle assy found broken.  The “Button Hole Stitching Machine assy” found damaged badly beyond repair and the same would require replacement.  “Button Fixing Machine Make: Sera Sewing Machine Co. Taiwan; Model No: 1851; Serial No:1581507003; 2L0WZ2008016) were found damaged badly.  Machine head unit, Attaching pulley, Motor assy, Chain Unit Assy etc. of the “Button Fixing Machine” found damaged badly due to wear and tear.  Adjusting system unit of the length and width bar found damaged badly and not properly working condition.  Threading bobbin case found broken.  Thread tension unit assy was found damaged badly due to wear and tear. “Button Fixing Machine” assy found damaged badly beyond repair and the same would require replacement. The cause of damage appears to be manufacturing damages due to material defect then both above said machineries were found damaged badly.  The damage and wear and tear noted doesn’t appear to be ordinary wear and tear considering the date of purchase.

            From this report it is evident that both machine Button Hole stitching Machine assy and Button Fixing Machine are in a badly damaged condition beyond repair and the same would require replacement.  Further observed that the damage and wear and tear noted in the machine doesn’t appears to be ordinary wear and tear considering the date of purchase.  This observation made support the allegation of the complainant that both the machines were old and used items.  Though OP examined Dw2 to discard the said allegation, he is an interest and witness of OPs.  Moreover there is no report prepared by him after doing service of the machine.  Further he, himself deposed that he has no educational qualification.  So from his evidence we cannot come to a conclusion that the defects happened to the machine was happened due to the lack of experience of the complainant in working the machine.

            The learned counsel of complainant further pointed out that OP had delivered button hole lock stitch sewing machine is not the same model machine as specified in the quotation.  On perusal it is revealed that in quotation to deliver Button hole machine having model No. SE 781.  But in A3 Invoice though OP received the same price Rs.98,000/- for Button hole machine from complainant as stated in Ext.A1 quotation, the delivered machine was of SR 980 model.  Dw2 deposed that in page 3.  നിങ്ങൾ പരിശോധിച്ച് ഏതു മോഡൽ ആണെന്ന് മെഷീൻ നോക്കിയാൽ മാത്രമേ പറയാൻ പറ്റുകയുള്ളൂ? അതെ.  Sera 781 എന്ന മോഡൽ ഉണ്ടോ? ഉണ്ട്. 781 എന്ന മോഡൽ ഉണ്ടോ? Higher technology ഉണ്ടാകുമായിരിക്കും.  ഉറപ്പ് പറയാൻ പറ്റില്ല.  780 ഉം 781 ഉണ്ടെങ്കിൽ  781,780 യെക്കാൾ ഹയർ ടെക്ക്നോളജി ആയിരിക്കും? അതെ.  Clear deficiency in service on the part of him is also reflected from the above said fact.

            Taking over all view of the matter we are of the pinion that in the above mentioned circumstances where both the sewing machines have become defective immediate after purchase definitely caused physical and mental agony to the complainant.  Since the product is found to be defective at the very beginning it is always better to order for the refund of the amount because replacement of the product as suggested by surveyor, will never satisfied the complainant because as a consumer she lost faith in that company’s product and if the repaired product again returned to the complainant and if develops the defect again, then she will have again to take legal action against OPs.

            So considering all the facts and circumstances of the case and above discussion, we are of the view that there is deficiency in service and unfair trade practice on the part of OPs 1 to 3.  So complainant is entitled to get relief.

            In the result opposite parties 1 to 3 are directed to pay Rs.2,27,360/- (Value of both machines in connection with this case) with interest @ 4% per annum from the date of complaint till realization to the complainant.  Opposite parties are further directed to pay Rs.25,000/- towards compensation and Rs.10,000/- towards cost of the proceedings of this case.  Opposite parties 1 and 2 are represented by opposite party No.1. Hence opposite parties 1 and 3 are jointly and severally liable to pay the awarded amount to the complainant.  Failing which awarded amount except cost amount will carry interest @ 9% per annum from the date of complaint till realization.  Complainant is at liberty to execute the order as per provision in consumer Protection Act 2019.

Exts.

A1-Quotation

A2- Communication between complainant and OP’s Print out whats app- marked with objection

A3- Carbon copy of invoice

A4- Copy of lawyer notice

A5(series)- Returned notices(3 in No.)

A6- Surveyor report (subject to proof)

PW1-Nisha P-Complainant

Pw2-Thamban Nambiar-Witness of complainant

Dw1-Sanjay Mthew-OP1

Dw2- Mukesh P K-Witness of OP

      Sd/                                                                                 Sd/                                                         Sd/

PRESIDENT                                                                 MEMBER                                              MEMBER

Ravi Susha                                                               Molykutty Mathew                                     Sajeesh K.P

(mnp)

                                               /Forwarded by order/

                                             Assistant Registrar