F.A.No.705 OF 2006 AGAINST C.C.NO.237 OF 2005 DISTRICT CONSUMER FORUM PRAKASAM DISTRICT AT ONGOLE

Between
Divikolu Santhamma W/o Ramaiah,
Pro.S.No.Sitaramanajaneya Rice Flour Mill
Mamillapalli Village, Santhamaguluru Mandal
Prakasam District

Appellant/complainant

          A N D

1.    K.V.C.Industries,
Rep. by its Managing Director,
1-1-64/1, Iftikar Mansion Compound
R.T.C. ‘X’ Road, Hyderabad.

2. M/s Sabitha Engineering Corp.
     788, Vyas Complex, M.G.Road,
     Ranigunj, Secunderabad-03

3.  The National Small Industries Corp. Ltd.,
     (Aged of India Enterprises), 203,
     Sri Dattasai Complex, R.T.C. ‘X’ Road,
     Hyderabad - 020

                                                                   Respondent/opposite parties

Counsel for the Appellant               Sri Satyanarayana Nimmagadda

Counsel for the Respondents         Sri J.Prabhakar  

QUORUM:      SRI SYED ABDHULLAH, PRESIDING MEMBER

                                                      &

                              SRI R.LAKSHMINARSIMHA RAO, MEMBER

         TUESDAY THE THIRTIETH DAY OF JUNE               

                                         TWO THOUSAND NINE

   Oral Order ( As per R.Lakshminarsimha Rao, Member)
***

          The appeal is filled by the unsuccessful complainant whose complaint in C.C.No.237 of 2005 was dismissed by the District Forum, Prakasam at Ongole.

          Briefly stated the facts of the case as averred in the complaint are that the appellant entered into hire purchase agreement with the respondent no.3 to establish rice flour mill.  The total cost of the project is Rs.14,38,480/- and subsidy granted is Rs.3,59,620/-.  The appellant had to pay 10% as earnest money.  The machinery was to be supplied by the respondent tno2..  The third respondent issued cheqeus to the respondents no1 and 2 as per the specifications submitted by them.  The first respondent instead of supplying 1 Ton Deluxe parts supplied 1 Tone parts with price variation.  The first respondent did not supply Round Sieve though they had collected the amount from the third respondent. The first respondent had not supplied genuine parts of the machinery and did not visit the mill though the appellant requested therefor.  Due to the supply of defective machinery and due to malfunctioning of the machinery, the appellant sustained loss as 5 loads of rice totaling 1000 bags of rice was rejected by the technician of FCI for the reason that the percentage of broken rice was beyond the specification.  The third respondent had been insisting the appellant for repayment of the loan amount. 

          The respondents contested the claim.  It was contended by the first respondent that they had supplied the machinery as per the specifications and the Round Sieve  was acknowledged by the appellant through her letter dated 22.9.2003 addressed to the third respondent.  The appellant had never requested the first respondent to visit the mill.  The husband of the appellant had borrowed an amount of Rs.65,000/- as hand loan from the first respondent and when the respondent no.1 insisted him for payment of the amount, he had invented the theory of evasion by getting the complaint filed against them. 

          The respondent no.2 had contended that there was no deficiency in service on their part.  The appellant cannot demand for return of 4% APGST Tax on the material supplied by the respondent no.2 on the directions  and orders placed by the third respondent.

          The third respondent filed counter with the defence that after installation of the machinery since 16.9.2003, the appellant had not raised any objection in regard to the defect in machinery.  The appellant had not paid instalments due on 1.10.2004.  The post dated cheque issued by her for Rs.1,40,042/- was dishonoured and the other post dated cheques issued in discharge of the subsequent instalments were also bounced.  The appellant is not a consumer.  The matter requires elaborate evidence.  The complaint is not maintainable. 

          The District Forum dismissed the complaint holding that the subject matter involved complicated question of fact and needs examination and cross examination both the parties and their witness and also that the appellant had not produced any expert opinion in support of her statement that the machinery supplied by the respondents no.1 and 2 was defective.

          The respondent no.1 filed its written arguments.

          The points for the consideration are:

1)    Whether the machinery supplied by the respondent sno.1 and 2 is defective?

2)    Whether there was any deficiency in service on the part of the respondents no.1 to 3?

3)    To what relief?

POINT NO.1:       The appellant had filed Exs.A1 to A9 but no single document in the shape of any correspondence in regard to the grievance projected as the defective machinery, is filed.  The respondent no.3 who according to the version of the appellant is the owner of the machinery having advanced the loan for purchase of the same from the respondents no.1 and 2, have contended that the appellant had not raised any objection since 16.9.2003 on which date the machinery was supplied by the respondents no.1 and 2 and even on 1.10.2004 where the first instalment fell due.  The District Forum had given a finding that the appellant failed to produce any certificate from an expert to the effect that the machinery was defective.  However, we find a report filed by the Advocate Commissioner who had inspected the machinery and noted down the details thereof.  The appellant had not been able to explain how the report of the Commissioner is helpful to his case.  The complainant had not explained what prevented from getting the machinery inspected by an expert technician.  In the light of the contention of the respondent no.3, the appellant had not pointed out any defect earlier to the date of filing of the complaint and in the absence of an expert reports showing that there was some manufacturing defect or any other defect whatsoever, we do not see any reason to hold that the machinery supplied by the respondents no.1 and 2 was defective.

POINT NO.2        The machinery in question is a rice and flour mill.  The respondent no.3 had specifically raised an objection that it is a commercial transaction as the business involved in regard to the nature of the work carried out by the appellant is predominantly commercial purpose.  The appellant has been a defaulter and in terms of her admission that the respondentno.3 having lent the amount for purchase of the machinery, the respondent no.3 could have any grievance had the machinery supplied by the respondents no.1 and 2 was found to be defective.  The respondent’s no.1 and 2 had categorically stated that the appellant had never complained nor did she requested them to inspect the machinery after the same was installed on 16.9.2003.  The appellant failed to establish any deficiency in service on the part of the respondent.  The statement of the respondent no.1 that the husband of the appellant had borrowed an amount of rs.65,000/- from them and the filing of the complaint by the appellant was the result of his brain child as he was demanded to pay the amount by respondent no.1, has not been denied by the appellant.  All these circumstances go to show that the respondent had not committed any deficient in service.  We do not find any reason to interfere with the order of the District Forum.

In the result this appeal is dismissed confirming the order of the District Forum.  No costs. 

                                                                   PRESIDING MEMBER

                                                                             MEMER

                                                                   Dated: 30.06.2009