Before the District Consumer Disputes Redressal Forum, Rohtak.

                                                          Complaint No. : 197.

                                                          Instituted on     : 28.05.2014.

                                                          Decided on       : 12.05.2016.

M/s A.K.Automatics, Hisar Byepass Chowk, Hisar Road, Rohtak through Shri Harinder Dahiya, Manager, H.R.D.

                                                          ………..Complainant.

                             Vs.

M/s Karcher Cleaning Pvt. Ltd. having its registered office at Avanta Business Centre, States House, Connaught Place, New Delhi-110001 through its Chairman/Managing Director.

                                                     ……….Opposite party.

          COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.

BEFORE:  SH.JOGINDER KUMAR JAKHAR, PRESIDENT.

                   MS. KOMAL KHANNA, MEMBER.

                   SH.VED PAL, MEMBER.

Present:       Sh.R.K.Sapra, Advocate for the complainant.

                   Sh. Sameer Gambhir, Advocate for the opposite party.

                                       ORDER

SH. JOGINDER KUMAR JAKHAR, PRESIDENT :

1.                          The present complaint has been filed by the complainant with the averments that complainant is dealing in manufacturing of components and spare parts of automobiles and is supplying the same to numerous industries for the last so many years and M/s A.K.Automatics, Hisar Road, Rohtak in the market of automobile sector. It is averred that the complainant purchased two machines from the opposite party in the month of April 2012 for floor cleaning and prior to purchasing the said machines the sale representative of opposite party when visited the Head office of the complainant at Panchkula, was asked to give the rate for similar type of machine which was purchased by the complainant in the year 2004 from the opposite party. It is averred that the machines were supplied to the complainant in the month of April 2012 and the payment of Rs.178500/- for each machine was paid to the opposite party. It is averred that the machines supplied by the opposite party are of not the same standard which was previously supplied to the complainant as the same are of different type which are not suitable for the need and requirement of the complainant. It is averred that Service Engineer of the opposite party who had come to install the machines had admitted that the said machine shall not serve the purpose of the complainant and the same is not suitable for the unit being run by the complainant.  Still the complainant under bonafide belief got installed the same but the same has not served the purpose for which it has been purchased and are lying idle having of no use at the unit. It is averred that complainant made a complaint to the opposite party and the Senior officer of the opposite party alongwith head of location visited the head office of the complainant and compromised to replace the machines but despite repeated complaints and request of the complainant, opposite party did not honour its words and lingered on the matter on one pretext or the other. It is averred that the opposite party cleverly and to avoid its liability to refund the amount or to replace the machine, got served a legal notice dated 06.06.2013 demanding the balance payment of Rs.21000/- which was duly replied by the complainant through his counsel vide receipt dated 17.07.2013. It is averred that the act of opposite party is illegal and amounts to deficiency in service. As such it is prayed that the opposite party may kindly be directed to replace the machines purchased by the complainant with new one by taking back the machines or to refund the price paid by the complainant alongwith interest, compensation and litigation expenses.

2.                          On notice opposite party appeared and filed its written reply submitting therein that it is very much evident from the records that the complainant as per its own requirement and understanding has placed purchase order at the Noida office of opposite party.  It may be noted that the technology of cleaning machine has improved a lot during 2004 to 2012. It is denied that the complainant has ever asked for 2004 machine which has become outdated with the improvement of technology. It is submitted that the complainant has not paid the entire due amount and till date there is an amount of Rs.42000/- alongiwth interest @ 24% from April 2012 is due and payable by complainant.  It is averred that complainant has purchased the machine as per its own requirement and placed order to this effect and there was no role of OP in choosing the said machine by complainant. It is averred that the true fact is that the complainant is trying to escape from its legal liabilities to pay the dues and therefore is creating all these false stories.  It is averred that though it is denied that the machine is not working even if, any complaint is reported, OP is ready and willing to do all the necessary repair in the machine, but definitely subject to receipt of its dues from the complainant. All the other contents of the complaint were stated to be wrong and denied. It is prayed that the complaint may kindly be dismissed with costs.

3.                          Both the parties led evidence in support of their case.

4.                          Ld. counsel for the complainant in his evidence has tendered affidavit Ex.CW1/A, Ex.CW2/A, documents Ex.C1 to Ex.C3 and has closed his evidence. On the other hand ld. Counsel for the opposite party has tendered affidavit Ex.OP1, documents Ex.OP1/1 to Ex.OP1/3 and has closed his evidence.

5.                          We have heard ld. Counsel for the parties and have gone through the material aspects of the case carefully.

6.                          In the present case the grievance of the complainant is that the complainant had purchased two machines from the opposite party but the same were not supplied by the opposite party as per order placed and the machines are not serving the purpose for which the same were purchased. It is further contended that the Service Engineer of the opposite party who had come to install the machines had admitted that the said machine shall not serve the purpose of the complainant as the same were not suitable for the unit being run by the complainant.  It is contended that the complainant requested the opposite party either to replace the same or to refund the price but the same was not done by the opposite party. In order to prove its contention, complainant has placed on record Installation-cum Service Report Ex.C3 and reply to the legal notice Ex.OPW1/1. On the other hand, contention of ld. counsel for the opposite party is that there was no defect in the machines supplied by the opposite party and the complainant is making false excuses only to escape from its legal liabilities to pay the dues.

7.                          After going through the file and hearing the parties it is observed that regarding the contention of complainant that the machines supplied by the opposite party were not as per order placed by him, complainant has only placed on record copy of Installation cum service report whereby the Service Engineer observed that “The machine was not suitable as per customer requirement and cannot clean the industrial oils and dust from floors and the customer was requested to purchases suitable model according to their application”.  But from this document it is not proved that the opposite party had supplied the model other than ordered by the complainant as no order sheet has been placed on record by the complainant. In this regard reliance has been placed upon the law cited in Vol.CL-(2008-2) 645 titled as Shiv Charan Vs. Siri Ram and another whereby Hon’ble Punjab & Haryana High Court has held that “Plaintiff had to stand on his own legs to prove his case by leading cogent and convincing evidence admissible in evidence to succeed in his claim and he cannot take the benefit of the weakness of the case of the defendant”, as per 2014(2)CLT 34 titled as Tata Motors Ltd. & Ors. Vs. Ashish Aggarwal & Others Hon’ble National Commission, New Delhi has held that “The question as to whether there was or was not any manufacturing defect in the vehicle in question could not have been decided by the allegations and counter allegations by the District Forum and could have been decided effectively and successfully only after obtaining expert opinion in that behalf”. Regarding the report Ex.C3 placed on record by the complainant it is observed that firstly the machine was purchased by the complainant on 23.04.2012 and the report has been given on 08.07.2015 i.e. after 3 years whereas as per complaint filed by the complainant, he had came to know about the non-functioning of machine at the time of installation. Moreover the report is given by Electrical  Engineer who is not authorized to give expert opinion. In this regard reliance has been placed upon the law cited in 2010(2)CPC 126 titled as Merck Ltd. Vs. Hubli Diagnostics Medicate and Research Centre, whereby Hon’ble National Commission, New Delhi had held that : “Mere report of a technician is not sufficient to unless opinion of expert is obtained u/s 13 of the Act-Defect upon basis of mere report of pathologist is not proved”.

8.                          In view of the aforesaid law, which are fully applicable on the facts and circumstances of the case, it is observed in the absence of expert report, complainant has failed to prove the defects of the machine as well as deficiency in service on the part of opposite party. As such present complaint stands dismissed with no order as to costs.

9.                          Copy of this order be supplied to both the parties free of costs.      File be consigned to the record room after due compliance.

Announced in open court:

12.05.2016.                  

                                                          ................................................

                                                          Joginder Kumar Jakhar, President

                                                          ..........................................

                                                          Komal Khanna, Member.

                                                                        …………………………………..

                                                          Ved Pal, Member.