DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE

PRESENT: Sri. P.C. PAULACHEN, M.Com, LLB    : PRESIDENT

Smt. PRIYA.S, BAL, LLB, MBA (HRM) :  MEMBER

Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER

Friday the 30^th  day of August 2024

CC.  CC 170/2019

Complainant

                        Thanveer.U.M,

S/o Moosakoya,

‘Thamanna’ House, Mandady Paramba,

Florican Road, Karaparamba (PO),

Kozhikode – 673 010.

(By Adv. Sri. Anoop.K)

Opposite Parties

1.               M/s Varadom Technologies Pvt Ltd,

Represented by its Managing Director,

Dwaraka Vishal I – 106, Sector 7, Plot No. 88A,

Near Yash Garden, PCNTDA Indrayani Nagar,

Bhosari, Pune , Maharashtra– 411 026.

2.               M/s S.R.C. Transport Company,

Shop No. A-22, World of Mother,

Jai Ganesh Vision, Akurdi, Pune- 411 035.

3.                M/s New India Assurance Co.

New India Assurance Building, 87 MG Road,

Fort, Mumbai – 400 001.

(OP1 – By Adv. Pradeep.M.Dhole –Patil, Adv. Sri. Geore .G. Dsuza and Adv. Sri. Ajay Thakaji Kanawade,

OP3- By Adv. Sri. Molly Varkey)

ORDER         

By Sri. P.C. PAULACHEN  – PRESIDENT

            This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.

2.  The case of the complainant, in brief, is as follows:

The complainant and his brother were looking for opening a vehicle washing facility which is meant to ensure self-employment and to earn livelihood. Lured by the advertisement and the representations and assurances made by the first opposite party, the complainant purchased an automatic bike washing machine MBW 101 on 03/09/2018 paying an amount of Rs. 5,90,000/-. An amount of Rs. 1,70,000/- was also collected by the first opposite party towards transportation and installation charges. The first opposite party had assured that the said device was accompanied by CCTV camera and storage, billing machine etc. But after payment of advance amount, the first opposite party has withdrawn from their promise to ensure free transit, installation and insurance to the product. The transit of the device was carried out by the second opposite party. It was the first opposite party who entrusted the transit to the second opposite party. Insurance amount of Rs. 1,394/- was also collected by the first opposite party from the complainant. But the policy was issued in the name of the first opposite party.

3. On 09/09/2018 the product reached the complainant, but it was delivered in a damaged condition. Moreover, the CCTV and other devices assured by the first opposite party were not delivered. Upon intimating the same, the first opposite party asked the complainant to wait till 30/09/2018, the date which the technicians from the first opposite party fixed to install the device. On 30/09/2018 the technicians of the first opposite party attempted to install the damaged device. The technicians noted serious damage on the machine which was caused by mishandling the device by the first opposite party while packing and by the second opposite party during transit.
4. The damages were duly reported to the first opposite party and the insurance surveyor of the third opposite party inspected the device. The surveyor stated that the insurance claim would not sustain since the damage was caused due to poor packing of the device by the first opposite party.
5. The complainant requested the first opposite party to get the device repaired and to install it properly before the date of inauguration. The complainant had to spend an amount of Rs. 75,000/- towards the cost of damaged spare parts and the expenses of the technicians of the first opposite party. Even then the first opposite party could not repair the device properly. On 02/10/2018, the complainant run a trial of the device and it was found that the device was not working properly. Even though the defects were intimated to the technicians of the first opposite party after the trial run, they left without attending the device. From the inaugural day itself the complainant and his brother could not run the device properly. On 04/10/2018 the complainant sent an e-mail to the first opposite party demanding the replacement of the device before 10/10/2018. Thereafter another e-mail was sent on 10/10/2018. The first opposite party sent a vague reply stating lame excuses. Even though the complainant contacted the first opposite party several times for getting replacement of the device, there was no positive response and the first opposite party kept the complainant wait stating lame excuses.
6. The device reached the complainant in a damaged condition due to the deficiency in service of the first and second opposite parties. Even after reporting the defects, the first opposite party failed to repair the device or replace it in spite of warranty. The first opposite party also failed to deliver the accessories such as CCTV, billing machine etc. The first opposite party insured the device in their name which resulted in repudiating the claim of the complainant. The act of the opposite parties constitutes deficiency of service and unfair trade and business practice. Hence the complaint to direct the opposite parties to replace the defective device with a fresh defect free one along with full set of accessories or to refund the sale price amounting to Rs. 5,90,000/-and installation and transportation charges Rs. 1,70,000/- and also Rs. 1,394/- paid by the complainant to the first opposite party to insure the vehicle. It is also prayed to direct the opposite parties to pay a sum of Rs. 75,000/- spent by the complainant towards the repairing of the device and expenses to employee the technicians of the first opposite party, to pay damages of Rs. 5,00,000/- towards loss of earning and to pay damages of Rs. 2,50,000/- towards mental agony and suffering of the complainant.
7. The first and third opposite parties have resisted the complaint by filing written version wherein all the allegations and claims made against them in the complaint are denied. The second opposite party was set ex-parte.
8. According to the first opposite party, the complaint is not maintainable. The complainant has approached them for opening of franchise of the vehicle wash facility and they offered the complainant the services according to the franchise agreement and had drafted the franchise agreement as well. However, the complainant changed his mind and agreed to purchase the vehicle washing machine. The cost of the device was Rs. 7,60,000/-. However the complainant suggested to bifurcate the bill in to two parts i.e., Rs. 5,60,000/- for the device and Rs. 1,70,000/- for installation and transportation and the bill was issued accordingly.
9. The first opposite party had not assured to provide CCTV and other devices. It was not even in the quotation which was given to the complainant and the bill also does not mention about it. The device was packed in bubble wrap by the second opposite party and transported to the complainant’s location and delivered on 09/09/2018. Two technicians were sent on 30/09/2018 to the location where they repaired the damage and started the device in the presence of the complainant and the video was also taken of the smooth functioning of the device. After smooth running of the device, the technicians asked the complainant to sign the documents of the smooth running of the device, but the complainant insisted that the technicians should stay back till the inauguration day. The first opposite party asked the complainant to pay for the travelling charges of the technicians so that they could stay back. However, the complainant refused and did not sign the document. The technician had to leave the place as the complainant did not take the responsibility of their travel charges. The complainant was negligent while attending the device trial shown by the technician. He remained absent and therefore he faced difficulties in operating the device. The reason stated by the complainant for rejection of the insurance claim is not reliable.
10. The complainant had complaint about the motor of the device. The motor was repaired by the first opposite party and was sent back by courier, but the complainant did not accept the courier. The first opposite party has provided the services regularly, but the complainant deliberately wanted to show that there was deficiency of service in order to claim against the first opposite party.
11. Despite negligence of the complainant at the first trial of the device, the first opposite party had sent one technician on 21/10/2018 and found the device working properly. The company would not be liable for damage in transportation. The damage caused in transportation is not the liability of the first opposite party. With the above contentions, the first opposite party prays for dismissal of the complaint.
12. The contention of the third opposite party in their written version is that they are unnecessary party to the proceedings and that the complainant is not the insured of the third opposite party and that there is no contract or agreement between them regarding the subject matter in dispute. However, it is admitted that the third opposite party has issued a Marine Cargo Specific Voyage Policy to the first opposite party. The insured shipment arrived the destination on 09/09/2018.  No derail, strike, riot or civil commotions reported during the transit of the shipment. Damage or loss caused to the shipment while in packaging as well as in loading and unloading are not the risk covered by the third opposite party. There is no deficiency of service on the part of the third opposite party. The third opposite party repudiated the claim made by the first opposite party since it was not pursued by the insured. They are under no liability to pay any amount to the complainant either as compensation or as cost of the proceedings. Hence, according to the third opposite party, the complaint is liable to be dismissed with compensatory costs.                   
13. The points that arise for determination in this complaint are;

1. Whether there was any unfair trade and business practice or deficiency of service on the part of the opposite parties, as alleged?
2. Reliefs and costs.

14. Evidence consists of the oral evidence of PW1 and Exts A1to A6 on the side of the complainant. The report of the expert was marked as Ext C1. At the time of evidence, the contesting opposite parties 1 and 3 chose to remain absent and did not cross examine the complainant or adduce any evidence.
15. Heard. Brief argument note was also filed by the complainant.
16. Point No 1:   The complainant has approached this Commission alleging unfair trade practice and deficiency of service on the part of the opposite parties. The specific allegation is that the automatic bike washing machine purchased from the first opposite party which was consigned to him though the second opposite party has reached him in a damaged condition and the third opposite party failed to honour the insurance claim lodged by him. It is also alleged that the complainant is unable to run the device due to the defects and deficiencies and the first opposite party failed to repair the device or replace it, as result of which, he was put to intense mental agony and huge monetary loss. The prayer is for replacement of the defective device with a fresh defect free one along with full set of accessories or in the alternative, refund of the sale price of the device and also the installation and transportation charges and insurance premium collected by the first opposite party to insure the device,  along with the expenses met by him for repairing the device and towards the expenses of the employees and technicians of the first opposite party and compensation for loss of earnings and towards mental agony and suffering.
17. PW1 is none other than the complainant and he has filed proof affidavit in terms of the averments in the complaint and in support of the claim. Ext A1 is the copy of the e-mail dated 21/05/2011 sent by the first opposite party to the complainant, Exts A2 and A3 are the invoices dated 03/06/2018, Ext A4 is the receipt dated 03/09/2018 issued by the second opposite party for the transit of the product, Ext A5 is the receipt dated 03/09/2018 issued by the third opposite party and Ext A6 are the copies of the e-mail communications between the complainant and the first opposite party.  
18. Ext C1 is the report filed by Sri. Vidhun V. R, Assistant Professor, Department of Mechanical Engineering, Government Engineering College, Kozhikode, after inspecting the device on 25/09/2023. In Ext C1it is clearly reported that the bike washing machine was indeed damaged during transportation due to improper packing, prior to its installation and that the overall build quality and finishing of the machine are substandard. The learned expert commissioner has observed poor welding works, in appropriately positioned USB ports and that all these quality and safety concerns may not only affect the machine’s performance but also pose potential hazards to users. Thus Ext C1 establishes that the device was damaged during transportation due to improper packaging apart from the fact that the overall build quality and finishing of the machine are substandard. There is no reason to disbelieve or discard Ext C1. The opposite parties have not filed any objection to Ext C1.        
19. The evidence of PW1 stands unchallenged. Though the first and third opposite parties have filed written version and contested the case, they opted to remain absent at the time evidence and PW1 was not even cross examined. The opposite parties have not produced any evidence to disprove the averments in the complaint or to rebut the veracity of the documents produced and marked on the side of the complainant. The evidence of PW1 remains uncontroverted and he was not even cross examined. There is no contra evidence to disprove the claim. It is admitted in the version that the technicians of the first opposite party visited the premises of the complainant and attempted to repair the damaged device. This is an admission on the part of the first opposite party that the product reached the complainant in a damaged condition. Thus from the evidence in hand and the admission of the first opposite party, it has to be held that the device was delivered to the complainant in a damaged condition. From Ext C1 report and the evidence of PW1 it is established and proved that the overall building quality and finishing of the machine are substandard and it is having inherent manufacturing defect.
20. As per Sec. 2(1)(f) of the Consumer Protection Act, 1986 ‘defect’ means any fault, imperfection or short coming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or under any contract, express or implied, or as is claimed by the trader in any manner whatsoever in relation to any goods. Ext C1 establishes defect in the device as defined in Sec. 2(1)(f) of the Act as there is shortcoming in standard which is required to be maintained.
21. As already stated, the machine reached the complainant in a damaged condition and from day one onwards the device began to show complaints and not working properly and that the issue was not properly attended by the first opposite party. The concerns with regard to the device was not properly addressed by the first opposite party. No purchaser of a new device expects this sort of mental agony and inconvenience.
22. To sum up, we hold that the grievance of the complainant is genuine. The device reached the complainant in a damaged condition due to improper packing and the device was a substandard one having manufacturing defect. The first opposite party has committed unfair trade practice in selling a substandard device to the complainant. The service rendered by the first opposite party is also proved to be deficient. Unfair trade and business practice and deficiency of service on the part of the first opposite party stands proved. The complainant is entitled to get refund of the price of the device amounting to Rs. 5,90,000/- and also the installation and transportation charges of Rs. 1,70,000/- and the insurance premium of Rs. 1,394/- collected by the first opposite party.
23. The complainant has claimed Rs. 75,000/- as the expenses met by him for repairing the device and the expenses of the technicians the first opposite party. But the claim is not supported by any evidence. Not even a scrap of paper is produced by the complainant to justify the claim. Hence the claim in this regard is not allowed.
24. Undoubtedly, the complainant thought of opening a vehicle wash facility as self-employment to earn livelihood. That could not be materialised due to the unfair trade practice and deficiency of service on the part of the first opposite party. The complainant was put to intense mental agony and hardship, besides monetary loss due to the act of the first opposite party. The complainant deserves to be compensated adequately. Considering the entire facts and circumstances, we are of the view that a sum of Rs. 1,50,000/- will be reasonable compensation in this regard. The complainant is also entitled to get Rs. 7,000/- as cost of the proceedings.
25. The complainant could not make out a case against the second and third opposite parties. There is no specific allegation against the second opposite party. The complainant is not the insured and the third opposite party cannot be blamed for not considering the claim preferred by him. So the complainant is not entitled to seek any relief against them. The second and third opposite parties are entitled to be exonerated.                       
26. Point No. 2:- In the light of the finding on the above point, the complaint is disposed of as follows;

                  a)  CC.170/2019 is allowed in part.

b) The first opposite party is hereby directed to take back the automatic bike washing machine sold to the complainant and refund the price of the machine amounting to Rs. 5,90,000/- (Rupees five lakh ninety thousand only) and also the installation and transportation charges amounting to Rs. 1,70,000/- (Rupees one lakh seventy thousand only) to the complainant.

c) The first opposite party is directed to pay a sum of Rs. 1,394/- (Rupees one thousand three hundred and ninety four only) to the complainant, being the insurance premium collected from him to insure the device.

d) The first opposite party is directed to pay a sum of Rs. 1,50,000/- (Rupees one lakh fifty thousand only) as compensation to the complainant.  

e) The first opposite party is directed to pay a sum of Rs. 7,000/- (Rupees seven thousand only) as cost of the proceedings to the complainant.

f) The payment as afore stated shall be made within 30 days of the receipt of copy of this order, failing which, the amount of Rs. 5,90,000/- and Rs. 1,70,000/- shall carry an interest of 9% per annum from the date of this order till actual payment.

g) The second and third opposite parties are exonerated.

Pronounced in open Commission on this, the 30^th day of August, 2024.

Date of Filing: 20/05/2019

          Sd/                                                             Sd/-                                                       Sd/-                                                                

PRESIDENT                                              MEMBER                                                    MEMBER                               

APPENDIX

Exhibits for the Complainant :

Ext A1 - Copy of the e-mail dated 21/05/2011 sent by the first opposite party to                   

               the complainant,

Exts A2 - Invoices dated 03/06/2018.

Exts A2 - Invoices dated 03/06/2018.

Ext A4 - Receipt dated 03/09/2018 issued by the second opposite party for the transit of the product,

Ext A5 - Receipt dated 03/09/2018 issued by the third opposite party and

Ext A6 - Copies of the e-mail communications between the complainant and the

               first opposite party. 

Exhibits for the Opposite Party

NIL

Commission Exhibits

Ext C1  - Report filed by Sri. Vidhun V. R, Assistant Professor, Department of Mechanical Engineering, Government Engineering College, Kozhikode.

Witnesses for the Complainant

PW1 -  Thanveer.U.M. (Complainant)

Witnesses for the opposite parties 

NIL    

      Sd/                                                             Sd/-                                                           Sd/-                                                                           PRESIDENT                                              MEMBER                                                    MEMBER                               

                           True Copy,      

                                             Sd/-                                                                                     Assistant Registrar.