DATE OF FILING : 19.4.2010

BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 18^th day of October, 2010

Present:

SRI.LAIJU RAMAKRISHNAN PRESIDENT

SMT.SHEELA JACOB MEMBER

SMT.BINDU SOMAN MEMBER

C.C No.81/2010

Between

Complainant : K. Padmanabhan,

Hotel Sree Aryas Vegetarian,

Koyas Tower,

P.O. Junction,

M.C. Road, Moovattupuzha,

Ernakulam District.

(By Advs: K.M. Sanu & Tom Joseph)

And

Opposite Parties : 1. M/s. Scale India,

Vegetable Market Road,

Vattappally, Changanacherry,

Kottayam District.

2. Ratheesh,

M/s Hidustan Weighing Systems & Services,

Room No.28/193, Padinjarekara Building,

Opposite Mundamattom Pump,

Moovattupuzha Road, Todupuzha,

Idukki District.

(Both by Adv: Muhammed Abbas M.I.)

O R D E R

SRI. LAIJU RAMAKRISHNAN (PRESIDENT)

The complainant placed an order for two 150 Kg coin machines from the 2^nd opposite party's shop at Kottayam on 16.6.2008. The complainant paid Rs.500/- as advance and estimate for Rs.29,000/- (Rs.14,500 x 2) was also given. The machine was delivered after 2 months and one year guarantee was provided to the machines. After some days from the date of purchase of the machine, it became defective. One machine was replaced on 6.4.2009 and the other one was repaired. The opposite party collected Rs.7,000/- more towards price difference of the replaced machine. But soon after the replacement, the machine also went out of order. Now both the machines have been kept idle due to non functioning. Though the matter was brought to the notice of opposite parties, nothing was done by them to redress the grievance of the complainant. The machine supplied to the complainant went defective due to manufacturing defect. The opposite parties failed to rectify the same. So the complainant is entitled for the refund of Rs.36,500/- along with interest at the rate of 12% from the date of purchase till realisation. He also entitled for Rs.10,000/- towards compensation for mental agony and hardships suffered by him due to the supply of defective machine. The 1^st opposite party being the distributor and the second opposite party being the dealer of the first opposite party are liable to compensate the complainant.

2. As per the objection filed by the opposite parties, there is no connection between M/s Scales India company at Changanacherry and Hindustan Weighing System and Services. It is admitted that the complainant booked for a DSonic machine with the sales representative of the Hindustan Weighing System on 16.6.2008, costs Rs.14,500/- and paid an advance of Rs.500/-. But after that, the 2^nd opposite party several times approached the complainant for the delivery of the machine, but the complainant was not ready to purchase the same. The complainant never paid Rs.29,000/- to the opposite party. On 6.4.2009, the complainant approached the 1^st opposite party and purchased an "Alexandria" weighing machine costs Rs.10,000/- by paying an amount Rs.7,000/- after bargaining and telling that he never want any guarantee for the same. It was purchased by the complainant directly from the 1^st opposite party. There is no exchange of the machine was done by the opposite party to the complainant. So the opposite parties are not liable to repair or replace the machines because there is no warranty for the same. 1^st opposite party is ready to service the machine if any defect to the same, if the complainant pays the service charge to the 1^st opposite party. The 2^nd opposite party is no way connected to the 1^st opposite party. So there is no deficiency from the part of the opposite party and may be dismissed.

3. The point for consideration is whether there was any deficiency in service on the part of the opposite parties, and if so, for what relief the complainant is entitled to?

4. The evidence consists of the oral testimony of PW1 and Exts.P1 to P6 marked on the side of the complainant and oral testimony of DW1 on the side of the opposite party.

5. The POINT :- The complainant deposed as PW1. As per PW1, he paid Rs.500/- to the 1^st opposite party in advance for the purchase of two coin weighing machines of 150 Kg each having a price of Rs.14,500/-, on 16.6.2008, through the agent, 2^nd opposite party. It was duly supplied by the opposite parties after 2 months, and a guarantee of 1 year was given to the same. Ext.P1 is the Order Form for the same and Ext.P2 is the visiting card of the 2^nd opposite party. The balance payment for the price of the machine were done through weekly instalments and it was collected by the 2^nd opposite party, who was the collection agent of the 1^st opposite party. Ext.P5 is the pass book supplied for the same. After several weeks of the purchase of the machine, the

machine became defective and the matter was informed to the 2^nd opposite party. So on 6.4.2009, one machine was replaced by the opposite party with 200 Kg machine and Rs.7,000/- was charged for the difference of price. The other machine was duly repaired by them. Ext.P3 is the bill for payment of Rs.7,000/-. Unfortunately, both the machines became defective within short period. But the opposite party never tried to repair or replace the same. Ext.P6 is the order form and receipt for advance payment of Rs.1000/- for the coin operator machines of 200 Kg which worth Rs.16,000/-.

As per the opposite party, even though they have received an advance of Rs.500/- for the order for a DSonic weighing machine for an amount Rs.14,500/- through the 2^nd opposite party, who is the representative of 1^st opposite party on 16.6.2008, but the complainant was not ready to purchase the same when the opposite party was ready to supply the same. The 2^nd opposite party deposed as DW1. DW1 was the representative of the Hindustan Weighing Systems and Services and now he is running a shop at Thodupuzha. So there is no connection with the 1^st opposite party and PW1. Even though the order was received by DW1, he never received any other payment other than Rs.500/-. DW1 was working at Hindustan Weighing Systems for 3 years. But DW1 is not aware of the transaction done on 6.4.2009. DW1 is not working with the 1^st opposite party for the last 3 years. As per the opposite parties, the complainant purchased an “Alexandria” machine worth

Rs.10,000/- by paying an amount of Rs.7,000/- agreeing that he never want any guarantee for the same. Ext.P3 is the receipt for the purchase of the same and they never exchanged any weighing machine from the complainant.

As per the complainant, he paid Rs.36,500/- to the opposite party for the purchase of two weighing machines. But there is no such a bill or receipt produced by the complainant to show the same. Ext.P1 is only an order form for the purchase of two DSonic coin machine worth Rs.14,500/- each and an advance of Rs.500/- was received. The name of the 2^nd opposite party and phone number is also written in the top of the order form. The order was given to the Hindustan Weighing Systems at Kottayam and Ext.P3 is the bill issued from Scales India at Changanacherry for the purchase of a coin operator “Alexandria”, of 200 Kg capacity weighing machine with an amount of Rs.7,000/-. Ext.P1 order was given on 16.6.2008 and the Ext.P3 bill was issued on 6.4.2009. Ext.P5 is the pass book from Scales India at Changanacherry, in which the machine value was paid as instalments of Rs.500/- each and about Rs.10,800/- has been paid through Ext.P5, by the complainant. But the address of the complainant is written as Pathmanabhan, Geethanjaly Book House and the price is written as Rs.14,000/-. Another order form which is produced by the complainant which is marked as Ext.P6, for a coin operator machine worth Rs.16,000/-, which is ordered by B. Prakash, Royal Bakery, Kaniyachira, Thripunithura, which is no way connected to this case. So we think that as per the complaint, it is written that the complainant paid Rs.29,000/- for two number of weighing machines and one was replaced after paying Rs.7,000/- again. But Ext.P1 shows that the complainant paid Rs.10,800/- to the opposite party. In Ext.P5 also, the address is written as Pathmanabhan, Geethanjali Book House. Ext.P3 receipts shows that the complainant purchased a 200 Kg coin operator machine for Rs.7,000/-. So the evidence of the complainant are in contradiction with the documents produced by the complainant. There is no evidence produced by the complainant to show that he purchased two machines worth Rs.14,500/-. There is no receipt produced by the complainant to show that he purchased two 150 Kg of Weighing machine. No warranty card is produced by the complainant to show that the machine is having one year warranty as per the complaint. As per the complainant, both of the machines are having manufacturing defect and they are not working. But no evidence produced by the complainant to show the same. No expert evidence or never filed a petition for appointing a commissioner to point out the same. The machines are also not produced before the Forum. Ext.P4 is the copy of the certificate issued from Legal Metrology showing the machines were verified by the Legal Metrology Department. The certificate is dated 10.11.2008, even though it is not clear to read properly. So it means that the machines were working properly on 10.11.2008. As per the complainant, both of the machines were became defective after some days from the purchase and the purchase was two months after the order on 16.6.2008. Even though it was defective, it is verified and certified by the Legal Metrology on 10.11.2008, it means that it was working on 10.11.2008. As per the 2^nd opposite party, he is not an agent of the 1^st opposite party, here the 1^st opposite party is Scales India, Changanacherry and the machine was ordered through 2^nd opposite party, to the Hindustan Weighing Systems and Services at Kottayam. Ext.P3 is the bill for the price of 200 Kg coin operator machine which was supplied by the Scales India Ltd., Changanacherry and the order was given to Hindustan Weighing Systems and Services at Kottayam. As per DW1 they are no way connected with the 1^st opposite party. So we think that there is no deficiency is proved against the opposite parties.

Hence the petition dismissed.

Pronounced in the Open Forum on this the 18^th day of October, 2010

Sd/-

SRI. LAIJU RAMAKRISHNAN (PRESIDENT)

Sd/-

SMT. SHEELA JACOB (MEMBER)

Sd/-

SMT. BINDHU SOMAN (MEMBER)

APPENDIX

Depositions :

On the side of the Complainant :

PW1 - K. Padmanabhan

On the side of the Opposite parties :

DW1 - Ratheesh

Exhibits :

On the side of the Complainant :

Ext.P1 - Order form for the DSonic weighing machines dated 16.6.2008.

Ext.P2 - Visiting card of the 2^nd opposite party.

Ext.P3 - Bill issued by the 1^st opposite party dated 6.4.2009.

Ext.P4 - Copy of the certificate issued from Legal Metrology.

Ext.P5 - Statement card issued by the 1^st opposite party, for the payment of instalments.

Ext.P6 - The order form and receipt for advance payment dated 6.8.2010

On the side of the Opposite party :

Ni.