Order by:
Sh.Amrinder Singh Sidhu, President
1. The complainant has filed the instant complaint under section 35 of the Consumer Protection Act, 2019 on the allegations that he is running a small workshop at Kotkapura Bye Pass, Moga for earning his livelihood by means of self employment and hence a consumer under the Act. Further alleges that on 16.10.2019, the Deputy Manager Marketing, Opposite Party No. 2 approached the Complainant for the sale of the machines of his company and at that time, the Opposite Party No. 2 assured the Complainant that the machines of their company were having full guarantee of every kind and defect free with full smooth functioning and on the allurement of Opposite Party No. 2, the order was booked at Moga by Opposite Party No. 2 after receiving the cash of Rs.3,80,000/- on 05.11.2019. As per the order, three machines i.e. Wheel alignment, wheel balancing and tyre changer machine were supplied by the Opposite Parties at Moga on 05.11.2019 as per order vide Invoice No. 0158. Thereafter, the Opposite Parties have also received an amount of Rs.3,54,000/- from the Complainant on the said date. In this way, total amount of Rs.7,34,000/- has been received by the Complainant. Further, at the time of order booking by Opposite Party No. 2 i.e. Deputy Manager Marketing of Opposite Parties, the Opposite Parties assured that the parts of the machines are USA made. It is pertinent to mention over here that as per the order booking, another automatic machine worth Rs.35,000/- was also booked on 18.10.2019 which was lateron delivered by the Opposite Parties and installed at the premises of the Complainant. After the installation of the machines, the Complainant found that the machines so purchased by him from the Opposite Parties are not properly working and hence the Complainant immediately reported the matter to the Opposite Parties on 22.10.2019 and thereafter on 12.11.2019, 01.12.2019, 15.01.2019, 24.01.2020, 04.03.2020 and 12.03.2020 at the regular interval and informed that the machines are not properly working and due to the defective machines supplied by the Opposite Parties, the business of the Complainant is suffering since the date of the installations of the said machines. Not only this, due to the supply of the defective machines, it has also come to the notice of the Complainant that the parts of the machines are of China made and not USA made as committed by Deputy Manager Marketing Opposite Party No. 2. On the each and every service call report referred above, the Complainant also gave remarks on the service call reports in respect of the defects in the machines, but sorry to inform that the Opposite Parties have failed to remove the defects in the machines and also not provided the proper service of the defective machines to the Complainant inspite of various complaints lodged to the Opposite Parties. The repeated requests have been made to the Opposite Parties to return all the machines and to refund of the amount i.e. costs of the machines alongwith damages which are incurred by the Complainant due to the supply of the defective machines and due to the mis-representation of Deputy Manager Marketing Opposite Party No. 2 of Opposite Parties who had assured that the parts in the machines are USA made whereas in the said machines, China made parts are there. Hence, it is clear cut deficiency in service and unfair trade practice, but the Opposite Parties have failed to redress the grievance of the Complainant and at last refused to admit the rightful claim of the Complainant. Vide instant complaint, the complainant has sought the following reliefs.
- The Opposite Parties may be directed to refund the price of the machines i.e. Rs.7,69,000/- (i.e. Rs.734,000/-+ Rs.35,000-/) alongwith interest @ 12% per annum from the date of payment of the machines in question, till its realization.
- The amount of Rs.5,00,000/- may also be allowed to the Complainant to be paid by the opposite parties on account of compensation due to mental tension and harassment and due to business loss caused by the complainant.
- The cost of complaint amounting to Rs.20,000/- may please be allowed.
- And any other relief to which this District Consumer Commission deem fit may please be granted to the Complainant, in the interest of justice and equity.
Hence, the Complainant has filed the present complaint for the redressal of her grievances.
2. Opposite Parties appeared through their counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the present complaint is not maintainable and is liable to be dismissed. In fact, the Opposite Party company is a world clause ISO 9001:2015 certified company. The answering Opposite Parties are manufacturer of complete range of quality automobile Servicing Tools, Equipments and Machines. The answering respondents are serving Indian Automobile sector for over a decade and became an established and renowned brand in the market. The complainant's firm i.e M/s Bhullar Tyre placed an order dated 16.10.2019 and 18.10.2019 with the answering respondent. The order was booked by Sh. S.S. Shekhawat i.e respondent no.2. The machines, equipment, tools ordered by the complainant were immediately delivered to the complainant at its firm's address and the engineer of the answering respondent installed the machines and gave proper training to the complainant regarding the working of the machines and equipment. The bill invoice was generated and handed over to the complainant. On 22.10.2019, the answering respondents appointed Mr.Arjun Madhesia, Service Engineer to visit the site of the complainant and prepare the site for installation of machines. The engineer of the answering respondent inspected the premises of the complainant and prepared the site of the complainant for installation of machines. The complainant was fully satisfied and even told the engineer that the service of the answering respondent was quick and effective. On 12.11.2019, the answering respondents sent its Engineer, to the site of the complainant to install the machines and to give training to the complainant regarding operating the machines. The installation training was done to the satisfaction of the complainant. The service call report dated 12.11.2019 is That on 01.12.2019, the answering respondents for the first time received a complaint from the complainant that the machine display is not working. The answering respondent directed its engineer to resolve the complaint. The engineer thoroughly checked the machine and found that due to voltage fluctuations, there arose some issues in the mother board of the machine. The engineer told the complainant that the problem was due to voltage fluctuations and it is necessary to install CVT (Constant Voltage Transformer), but the complainant is not ready to install CVT. Then the engineer changed/ repaired the mother board but the problem remains the same. The engineer then noted the same in the service call report. Thereafter, the answering respondents as per the warranty conditions changed the mother board of the machine. It was told to the complainant that such problems arose due to voltage fluctuations and when the operator does not know how to operate the machines. The engineers of the answering respondent again gave the training to the complainant regarding operating the machine, so that such problems do not arose in future. It was again told to the complainant to install CVT (Constant Voltage Transformer) for the effective and smooth working of the machine and to save the machine from voltage fluctuations. The complainant was not ready to purchase CVT. It was advised by the engineers of the answering respondent to the complainant to install substitutes of CVT i.e stabilizer or UPS, but the complainant is not ready to install the same. The photocopy of service call report dated 20.12.2019 regarding changing the mother board of machine and report of engineer that machine is in working condition is placed on record. On 14.01.2020, the complainant made complaint regarding camera and display problem in machines and the engineer of the answering respondent resolved the complaint of the complainant. It was found by the engineer that the machines were not operated properly. The complainant was pressing wrong operational keys on the machines; resultantly the machine shows an error. It was told to the complainant to use the right operational keys. Once again, the training regarding using machines were given to the complainant so that the complainant would not use wrong operational keys in future. The complainant was satisfied with the work done and training given to him. The machines were working smoothly and properly. The photocopy of service call report dated 14.01.2020 however inadvertently written as 14.01.2019. On 15.01.2020, the answering respondents again received a complaint that the machines were not working properly, Tyre changer jaw damage, nitrogen display not working properly and wheel balancer show error. The answering respondents immediately ordered its engineer to resolve the complaints of the complainant. The engineer checked the machines and found that the complainant is not taking proper care of the machines as advised to him. The engineer told the complainant to clean the sensor of the machine with tissue paper and change the oil of the Air Compressor on 1st of every month as advised to the complainant while installing the machine and giving training to the complainant. However, the tyre changer jaw and nitrogen display has been changed. The photocopy of service call report dated 15.01.2020 is placed on record. That on 24.01.2020, the answering respondents again received a complaint from the complainant that nitrogen machine display not working and tyre change jaw not working properly. The engineer checked the machines and found that someone deliberately damaged the nitrogen machine display and the tyre changer jaw needs fresh oiling. The engineer told this fact of deliberately damaging the machine to the answering respondents. The answering respondents being a reputed company and always want to serve its customers told its engineer to change the display of the machine and resolve the complaint of the complainant to his satisfaction as customer satisfaction is the motto of our company. The engineer changed the display and checked that all the machines were working properly. On 04.03.2020, the answering respondents received a complaint from the complainant that alignment camera not working and tyre changer jaw pedal not working. The answering respondents immediately deputed an engineer to resolve the complaint. The answering respondent also delivered new balancer as per the requirement of the complainant. The engineer installs the balancer and again gave training to the complainant. Then, the alignment web camera was checked by the engineer and it was found that alignment web camera needs reinstallation as someone tampered with the camera settings or changed the positioning of the alignment web camera. The engineer then asked the complainant that who changed the position of the alignment web camera, the complainant stated that the complainant has himself changed the position of the alignment web camera and changed the camera settings. The complainant was asked not to do that again without the permission of the engineer of the answering respondent. The alignment web camera started working properly after reinstallation. Thereafter, the tyre changer jaw pedal was checked and found to be working properly. The machines were thoroughly checked and found to be working properly. The service was done and the complaints were resolved to the satisfaction of the complainant. The complainant again complained that the machines were not working properly. The answering respondent sends its engineer and the engineer found that the windows automatic update option was switched off and firewall option was also switched off. The engineer told the answering respondent that the complainant was intentionally doing all this in order to harass the answering respondent. The engineer also told that there was no fault in the machines and the machines were working properly. The answering respondent urged the complainant to not to indulge in such malpractices and not to unnecessary harass the answering respondents, but to no avail. However, the engineer resolved the complaint and observed that the machines were working properly. It is apposite to mention here that during the course of events as stated above the complainant wants that the balancer purchased by him be changed with a new balancer and as per the requirement of the complainant, the balancer was changed and a new balancer was installed on his premises on 04.03.2020. The complainant fails to point out a single instance of deficiency in service on the part of answering respondents. The complainant himself is at fault for not taking proper care of the machines and deliberately damaging the machines. It is further pertinent to mention here that till date, the answering Opposite Parties are resolving the complaints of the complainant and providing services to their utmost ability to the complainant, even after the period of warranty has been expired. There is no deficiency of service on the part of the answering respondents. All the complaints were resolved within 24 hours. There was no manufacturing defect in the machines. The problems occur in the machines due to the mishandling of machines by the complainant, voltage fluctuations, wrongly operating the machines and deliberately tampering with the machines. The complainant tried to lower the goodwill of the answering respondents in the estimation of others by filing false and frivolous complaint. The complainant himself is a wrongdoer and as such does not deserve any relief from this Commission. Hence the complaint may kindly be dismissed with costs.
3. In order to prove his case, the complainant has tendered into evidence his affidavit Ex.C1 alongwith copies of documents Ex.C2 to Ex.C20 and closed the evidence on behalf of the complainant.
4. On the other hand, Opposite Parties also tendered into evidence the affidavit of Amit Yadav Ex.Ops1, affidavit of S.S.Shekawat Ex.Ops2, affidavit of Arjun Madhesha Ex.Ops3, affidavit of Dharminder Ex.Ops4 alongwith copies of documents Ex.Ops5 to Ex.Ops17, additional affidavit of Arjun Madhesha Ex.Ops18, additional affidavit of Amit Yadav Ex.Ops19, and copy of call record Ex.Ops20 and and closed the evidence on behalf of Opposite Party.
5. We have heard the complainant as well as ld.counsel for the Opposite Parties and also gone through the documents placed on record.
6. During the course of arguments, the complainant as well as ld.counsel for Opposite Parties have mainly reiterated the facts as narrated in the complaint as well as written reply respectively. We have perused the rival contentions of the parties and also gone through the record on file. The main contention of the complainant is that there is some manufacturing defect in the machines in question. Moreover, the Opposite Parties have supplied the China Made machine despite USA Made, but to prove that there is manufacturing defect in the machines in question, the complainant has failed to adduce any iota of evidence. No expert evidence to prove that there is any manufacturing defect in the machines in question, is placed on record. In the absence of any such report of some expert, Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case titled as Sukhvinder Singh Vs. Classic Automobile & Anr. decided on 6 November, 2012 has held that the report of expert is essential or some other evidence showing manufacturing defect should have been adduced. The mere fact that the vehicle was taken to the service station for one or two times does not ipso fact prove the manufacturing defect. Due to lack of evidence, the value of the petitioners case evanesces.” Not only this, on the same line, Hon’ble National Commission, New Delhi in case titled as Maruti Udyog Limited vs Hasmukh Lakshmichand decided on 26 May, 2009 also held so. Hence, we hold that the complainant has failed to prove any manufacturing defect in the machines in question.
7. Furthermore, to prove such assertion and to decide the real controversy between the parties, the cross examination of the witnesses as well as other relative persons is required and hence, we are of the view that intricate questions of law and facts are involved in the present complaint which require voluminous documents and evidence for determination which is not possible in the summary procedure under the Consumer Protection Act and appropriate remedy, if any, lies only in the Civil Court. Not only this, the nature of the dispute, in the present complaint, is squarely covered by the law laid down by their lordships of the Hon'ble Supreme Court in various judgements. Further in case Oriental Insurance Company Ltd. Vs. Munimahesh Patel 2006(IV) CPJ page 1, wherein the Hon'ble Supreme Court has held that :-
“Proceedings before the commission are essentially summary in nature and adjudication of issues which involve disputed factual questions should not be adjudicated. It is to be noted that commission accepted that insured was not a teacher. Complainant raised dispute about genuineness of the documents (i.e. proposal forms) produced by the appellant.”
Their lordships have further held that :-
“The nature of the proceedings before the commission as noted above, are essentially in summary nature. The factual position was required to be established by documents. Commission was required to examine whether in view of the disputed facts it would exercise the jurisdiction. The State Commission was right in its view that the complex factual position requires that the matter should be examined by an appropriate court of Law and not by the Commission.”
A similar view has been taken by the Hon'ble National Consumer Disputes Redressal Commission in 1(2004) CPJ page 101 wherein it has been held by the Hon'ble National Commission in a revision petition titled as R.D. Papers Ltd. Vs. New India Assurance Co. Ltd. & Ors. in para No.7 of the judgement which reads as under:-
“After going through the complaint and the written version, it appears to us that the complaint raises complicated questions of facts which cannot be decided by us in our summary jurisdiction.”
8. Keeping in view the aforesaid facts and circumstances of the case, the instant complaint is not maintainable in this District Consumer Commission for its proper adjudication and the same stands dismissed. However, the complainant can get redressal of his grievance from the Civil Court/ or any other competent authority, in accordance with law, for which the time spent before this District Commission shall stand excluded under Section 14 of the Limitation Act in the light of the judgment of the Hon'ble Supreme Court in case titled 'Lakshmi Engineering Works vs PSG Industrial Institute reported in 1995(3) SCC 583'. However, keeping in view the peculiar circumstances of the case, the parties are left to bear their own costs. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.
9. Reason for delay in deciding the complaint.
This complaint could not be decided within the prescribed period because the State Government has not appointed any of the Whole Time Members in this Commission for about 3 years i.e. w.e.f. 15.09.2018 till 27.08.2021 as well as due to pandemic of COVID-19.
Announced in Open Commission.
Dated:14.07.2022.
