By Jayasree Kallat, Member: Complainant bought one bush cutter ‘Sparta 42’ Sl.No. 2048173153 on 19-6-08 from Josco Agency, Agri Division, Chalappuram by paying Rs.25000/-. Opposite party did not furnish the cash bill. After the third free service, the machine became defective. It was taken to the opposite party. The mechanic of opposite party repaired and changed the spare parts, but the machine is still defective. Machine is with the opposite party which was given for repair. Even after 9 months opposite party has not returned the machine. Hence complainant has filed the petition seeking relief against opposite party. Opposite party filed a version denying the averments in the complaint except those that are specifically admitted. The complainant is not a consumer as defined in the Consumer Protection Act. This complaint is bad for non jointer of necessary parties. Opposite party denies that the complainant had purchased one Sparta 42 bush cutter Sl.No.2048173153 from Josco Agri Division. On 19-6-08 one Mr. K. Vijayan from Kakkayam had purchased ‘sparta 42’ bush cutter from the firm M/s. Josco Agencies , Agri Division, for a price of Rs.22876/-. The bill for the same was given to Mr. Vijayan then and there. Warranty certificate and service book for the above article were also given to Vijayan . A warranty period of 6 months for any manufacturing defect was given. The opposite party was only a salaried employee in Josco Agencies Agri Division. Hence opposite party is not liable for any liability, that may be cast on the firm Josco Agencies Agri Division. The Josco Agencies was closed down. There after the opposite party has started his own new business in the name and style Kynadi, Agro-Tech. Opposite party had sent the bush cutter on 15-2-09 to the various service centres at Cochin for getting it repaired. Service centre had repaired the bush cutter and sent it back with their bill for repairing which will come to Rs.3230/- on 19-3-09. The bill included the cost of spare parts, service charges and packing and transport charges. Opposite party had informed the complainant to take back the machine after paying repair charges. Complainant refused to pay the repair charges. Hence the bush cutter is still with the opposite party. There was no negligence, deficiency in service or unfair trade practice on the part of opposite party. Opposite party prays to dismiss the complaint with costs to O.P. The points for consideration is (1) whether the complainant is a consumer or not? (2) Whether the complainant is entitled for any relief? PW1 and PW2 were examined and Ext.A1 to A3 were marked on complainant’s side. RW1 was examined and Ext.B1 and B2 were marked on opposite party’s side. Point No.1:- The opposite party has taken the contention that the complainant will not come under the purview of Consumer Protection Act because opposite party has not sold any machinery to the complainant. The machinery was sold to one Mr. Vijayan. Vijayan was examined as PW2 who has deposed that he was working and managing the estate of the complainant for the last 30 years. PW2 has admitted that “ The evidence adduced by PW2 Vijayan is sufficient enough to prove that the bush cutter was purchased for Mr. Sacariyachan the complainant in this case. Hence it is proved that the complainant will come under the purview of Consumer Protection Act, as he is a consumer. Point No.2:- The case of the complainant is that he had bought one bush cutter from the opposite party. Within two months of purchase it became defective. PW2 has deposed that the machine became defective 4 to 5 times and it was taken to opposite party for repair. The machine is still with the opposite party. Complainant has produced Ext.A2 warranty certificate. In Ext.A2 the manufacturer guarantees the machine to be free from defects for a period of 24 months from the date of purchase provided it is used exclusively for private purpose. Opposite party has submitted in his version that he was working in the Josco Agri Division which was closed down. Now he is running his own firm Kynadi Agrotec. In the version opposite party has also admitted that on 10th February the complainant had approached the respondent with the bush cutter for repair. The opposite party had sent the bush cutter to the service centre on 15-2-09. It is an admitted fact that the bush cutter became defective according to PW2 who was using the bush cutter on behalf of the complainant. Ext.A1 shows that some repair work has been done on 27-8-08 that is within two months of purchase. Within one year of purchase opposite party had sent the bush cutter to the service centre for repair. This shows that the machine had become defective within one year of purchase. Ext.A2mention guarantees for a period of 24 months. Taking into consideration all these facts we are of the opinion that the complainant is entitled for relief. Complainant has to get the machine repaired free of cost. In the result the petition is allowed and opposite party is directed to return a defect free bush cutter and compensation of Rs.1000/- to the complainant within two weeks from the date of receipt of copy of the order. Pronounced in the open court this the 17th day of February 2010. Sd/- PRESIDENT Sd/- MEMBER Sd/- MEMBER APPENDIX Documents exhibited for the complainant: A1. Photocopy of Service and Spares Quotation dt. 27-8-08. A2. Warranty Certificate. A3. Photocopy of Service and Spares Quotation dt. 7-1-09. Documents exhibited for the opposite party: B1. Copy of letter dated 16-2-09 send by the opposite party to M/s. Chackalath Corporation, Pallimukku, Ernakulam, Kochi. B2. Copy of bill No.3595 dt. 19-3-09 send by M/s. Chackalath Corporation, Kochi to the Opposite party’s concern M/s. Kainady Agro-Tech. Witness examined for the complainant: PW1. M.K. Scariachen (Complainant) PW2. Vijayan, Thottumkara House, Kakkayam. Witness examined for the opposite party: RW1. Tojo Abraham Kainady, Kainady Agro Tech, Sheraton Complex, Chalappuram-P.O. Calicut- 673 002. Sd/- President // True copy // (Forwarded/By order) SENIOR SUPERINTENDENT. | 
