BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 20/10/2009

Date of Order : 31/12/2011

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 564/2009

Between

And

O R D E R

A. Rajesh, President.

1. Briefly stated, the case of the complainant is as follows :

The complainant is a partnership firm. The partners of the complainant firm are the wife and children of the Managing Partner and they are carrying on business for earning their livelihood by means of self-employment. The opposite parties placed a quotation dated 11-06-2008 to sell a Inkjet Coder Printing Machine before the complainant. The machine was made for imposing batch number, manufacturing date, M.R.P. Rate and Agmark serial number in its container for the coconut oil. Accordingly, the opposite parties erected the machine on 14-11-2008 and the complainant paid a sum of Rs. 2,65,302/- towards the price of the machine. From the date of installation onwards, the machinery was defective and the complainant could not use the same. Though the opposite parties tried to rectify the defects, they could not do the same. Since the machine suffers from inherent persisting defects, the complainant has had to impose the statutory specifications manually. Thus, the complainant is before us seeking direction against the opposite parties to pay a total compensation of Rs. 4 lakhs with interest together with costs of the proceedings.

2. The version of the opposite parties :

The complainant is a partnership firm doing the large scale commercial activity of extracting oil from coconuts, packaging the same in pouches for sale. It is for the said commercial activity, the complainant purchased the printing machine. Thus, the complainant is not a consumer as defined under the Consumer Protection Act. The complainant has not produced any document to show that they have been conducting the business for eking out their livelihood. M/s. Sauven Marketing Limited, Wintersells Road, Byfleet, Surrey, KT14 7LF, England is the manufacturer of the machine. The manufacturer is not a party to the proceedings. In the quotation, it is stated that the warranty of the printing machine is for 12 months from the date of invoice. The technicians of the opposite parties explained the operating procedures, programming of the machine and care and precautions to be taken while using the machine for smooth and efficient functioning of the same. The opposite parties rendered service to the machine as and when the complainant contacted them for the same. There is no evidence to prove that the machine suffers from any manufacturing defect.

3. The Managing Partner of the complainant was examined as PW1 and Exts. A1 to A12 were marked on his side. The witness for the opposite party was examined as DW1 and Exts. B1 to B7 were marked on their side. Both sides filed argument notes. Heard the counsel for the parties.

4. The points that came up for consideration are :-

1. Whether the complainant is a consumer?

2. Whether the opposite parties are liable to pay a compensation of Rs. 4 lakhs to the complainant?

3. Costs of the proceedings?

5. Point No. i. :- According to the opposite parties, the complainant partnership firm has been conducting a large scale business, so the complainant is not a consumer as per the provisions of Section 2 (1) (d) of the Consumer Protection Act. The learned counsel for the opposite party relied on the decision rendered the Hon'ble Apex Court in Laxmi Engineering Works Vs. PSG Industrial Institute (1995 (2) CPJ 1 (SC). On the contrary, the counsel for the complainant contended that the complainant firm is a partnership firm which is running a small scale industry for the purpose of earning the livelihood of the partners.

6. Admittedly, the defects highlighted by the complainant were caused during the warranty period. Since the complainant has raised the defects of the machine within the warranty period, even if it were purchased for commercial purpose, the complaint is maintainable in this Forum. According to the Hon'ble National Consumer Disputes Redressal Commission, if defects appear during warranty the buyer is deemed to be a consumer eventhough goods used for commercial purpose. (Pearl lite Lines Ltd. Vs. Thermo Janwell Ash Corporation & Anr. IV (2006) CPJ 375 (NC) ). Moreover, indisputably, a partnership firm is a person as per Section 2 (1) (m) of the Consumer Protection Act. In view of the above, we need not rely on the decision of the Hon'ble Apex Court since the facts and circumstances of the case at hand being totally different from what has been taken into account by the Hon'ble Apex court. So, we have no hesitation to hold that the complainant is a consumer as per the provisions of the Consumer Protection Act and this complaint is maintainable in this Forum.

7. Point Nos. ii. and iii. :- It is not in dispute that on 11-06-2008, the complainant purchased the Inkjet Printer paying Rs. 2,60,000/- evident from Ext. A1. Ext. A3 goes to show that the machine was installed on 14-11-2008. Exts. A4 and A5 dated 29-07-2009 and 14-08-2009 respectively are the letters sent by the complainant to the opposite parties complaining of the performance of the machine. Exts. A6 to A9 are the notices issued by the Assistant Controller, Legal Metrology to the complainant stating that the product of the complainant does not contain the date of declaration of date and month of packing as envisaged under the Standards of Weights and Measures Act. During the proceedings in this Forum, the complainant filed I.A. No. 556/2009 permitting the complainant to purchase a new printing machine. This Forum passed the following order in the I.A. on 16-01-2010 :

“Parties represented This I.A. is filed by the complainant seeking permission of this Forum for purchasing a new printing machine instead of the machine in question. We have heard the counsel for the parties. Since the order in this I.A. will not prejudice the rights of the parties in any manner, we allow this I.A.”

Accordingly, the complainant has purchased another machine vide Ext. A11 receipt dated 15-03-2010.

8. The learned counsel for the opposite parties vehemently contended that Ext. B1 series goes to show that the complainant had been using the machine without any complaint upto 2009. It is also contended that as and when, the complainant intimated the opposite party regarding the defects of the machine, immediately they rectified the same. Further it is contended that apart from the complainant, so many business concerns have been using the very same machine for the purpose of which the complainant is using the machine. The opposite parties produced Exts. B3 to B7 to substantiate the above contention. The opposite parties maintain that they are not the manufacturer of the machine and there is no evidence to show that the machine suffers from manufacturing defect.

9. Though the opposite parties contended that they are not the manufacturer of the machine in Ext. A1 quotation warranty has been provided by the opposite parties. So now, neither the opposite party can turn around and claim negligence stating that they are not the manufacturer of the machine. The Hon'ble National Consumer Disputes Redressal Commission in ARE BEE Star Maritime Agencies Pvt. Ltd. & Anr. Vs. M/s. Ramco International Through its Partners & Anr. 2011 (4) CPR 227 (NC) held that, “a plain reading of Section 230 of the Contract Act will show that in a case where the contract is made by an agent for the sale or purchase of goods for a merchant residing abroad, there is a presumption of existence of contract to the effect that the agent can personally enforce the contract or be personally bound to it.” So the contention raised by the opposite parties in the instant case goes for its own reasons.

10. Admittedly, there is no expert evidence before us to show that the machine suffers from manufacturing defects. The Hon'ble Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram in Dr. Abraham P. Sain Vs. Benz Motors & Ors. 2011 (4) CPR 140 KSCDRC,hed that, “the burden is upon purchaser to substantiate the case regarding manufacturing defect to such an extent that it is impossible to rectify these manufacturing defects.” In confirmation of the above, the Hon'ble National Consumer Disputes Redressal Commission has held in Smt. Omprabha Malvia Vs. Godrej Phone-Me Ltd. & Ors. 2011 (4) CPR 352 (NC), that manufacturing defect has to be proved by expert evidence. In view of the above, we are of the considered opinion that the opposite parties are contractually liable to rectify the defects of the machine as pointed out by the complainant free of cost and to extend the warranty for a year. If it is found that the defect is not rectifiable the machine shall be replaced with a new one with fresh warranty as per law at the cost of the opposite parties and the defective machine shall be taken back on the same grounds. The grievances of the complainant having been met squarely compensation is not called for hence. However, a costs of Rs. 2,000/- is awarded for compliance.

11. In the result, we partly allow the complaint and direct as follows :

1. The opposite parties shall jointly and severally rectify the defects of the disputed machine free of cost to the satisfaction of the complainant and to provide fresh warranty for one year from the date of rectification of the defect. If it is found that the defect is not rectifiable the opposite parties shall jointly and severally replace the machine with a new one with fresh warranty. In that event, the complainant shall return the machine in question to the opposite parties simultaneously.

2. The opposite parties shall jointly and severally pay Rs. 2,000/- (Rupees Two thousand only) to the complainant towards costs of the proceedings.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order.

Pronounced in open Forum on this the 31^st day of December 2011.

Forwarded/By Order, Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member. Sd/- C.K. Lekhamma, Member.

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

=========