D.o.F:01/09/2006 D.o.O:14/01/2010 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD CC.103/06 Dated this, the 14th day of January 2010. PRESENT SRI.K.T.SIDHIQ : PRESIDENT SMT.P.RAMADEVI : MEMBER SMT.P.P.SYAMALADEVI : MEMBER T.Ummerkoya,Proprietor, Navabharath Wood Industries, ; Complainant Choyyanmkode, Po.Chayyoth, Via.Nileshwar. (Adv.K.V.Rajendran,Hosdurg) M/s Wel-Tech Engineering Co. N.H.17, Cheruvannur, Feroke, : Opposite party Calicut-673631. (Adv.B.K.Mahin,Kasaragod) ORDER SRI.K.T.SIDHIQ, PRESIDENT (i) Case of the complainant The complainant Sri.Ummerkoya is the proprietor of Navabharath Wood Industries. He has no other avocation and he is earning his livelihood running the said industries. His family members are assisting him to run the firm. He has purchased some machinery namely Band saw machine with accessories. Band saw blade bracing clamp and band saw blade grinder from the opposite party. The price of the said machinery was Rs.5,98,000/-. They were installed on 24/2/2006. But when started functioning, it was found that they were not properly working and on examination it was found that they were quite old and not upto the standards as promised by opposite party. Due to this complainant suffered heavy loss and many of his customers opted other industrial units for their needs. The complainant send a lawyer notice on 1/3/06 to opposite party demanding the refund of purchase price of Rs.598,000/- after taking back the machinery. But in reply opposite party raised false claims. Hence the complainant alleging deficiency in service and unfair trade practice on the part of the opposite party. (ii) Version of opposite party The opposite party contended that the subject matter involved in the case has been seized by the Sub Court, Kozhikode since a civil dispute is pending. The complaint is filed as a counter blast and also to augment the defense of the complainant in the civil proceeding before the sub-court Kozhikode. The complainant had not paid the purchase price of the machinery in terms of the agreement and invoice of the opposite party and violated the convenants of agreement . The complainant is not well versed in the operation of machinery and he is absolutely ignorant about the functioning and use of machinery. The complainant could not take delivery of the machinery in terms of sale agreement for want of payment of balance amount. The complainant is therefore not entitled for the reliefs claimed and the complaint is liable to be dismissed. (iii) Evidence of Parties: Complainant filed affidavit in lieu of examination in chief as PW1 and he was cross examined by the counsel for opposite party. Exts.A1 to A9 and Ext.B1 marked. An expert was appointed to inspect and report about the machinery supplied by opposite party and installed in the firm of complainant . The first report dt.27/1/09 of the Expert is marked as Ext.C1. Since inspection pertaining to Ext.C1 report was in the absence of the opposite party , the report was remitted back to the expert and his subsequent report is marked as Ext.C2. Both sides heard and in addition to that the counsel for opposite party filed notes of argument. (iv). The points arise for determination are: - Whether there is any sale of machinery by the opposite party to the complainant?
- Whether there is any unfair trade practice on the part of opposite party?
- Whether the complainant is entitled to the reliefs?
(v). Points 1 to 3: For the sake of convenience and brevity all the points are discussed together. The contention of the opposite party is that the subject matter of the complaint is seized by the Hon’ble Sub Court Kozhikode in view of the suit filed by he opposite party as plaintiff against the complainant as defendant. Ext.B1 is the copy of the plaint in OS.455/06 pending before Sub court, Kozhikode. On perusal of Ext.B1 it is seen that the suit is filed by opposite party as plaintiff against complainant as defendant for realization of the amount alleged to be due from the complainant. But the instant complaint is against the unfair trade practice of the opposite party for selling old and defective machinery as new. Though both the complaint and the suit is with respect to the same transaction, the cause of action, the relief sought, the matter in issue are entirely different. Hence it cannot be hold that the matter is seized by Sub Court Kozhikode. The Hon;ble Allahabad High Court in the case of Dr.Brijesh Kumar Misro & Another vs. State CDRC UP Lucknow & anr. reported in 2009 CTJ 18 (ALL HC) has held that civil or criminal case even if pertaining to the same subject matter is not a bar to approach the Consumer Forum for necessary reliefs. The other contention of the opposite party is that the complaint is filed as a counter blast to strengthen the defenses set by the complainant as the defendant before the sub court Kozhikode. This is also not sustainable. It is seen that this complaint is filed on 1/9/06 whereas as per Ext.B1 , the suit is seen filed on a later date ie, on 18/12/2006. Therefore it is clear that the opposite party filed the suit only after the complainant initiated the legal proceedings against opposite party. The further contention of opposite party is that the complainant has not produced any document to show that he is the proprietor of the Firm. When the complainant produced ample documents to prove the purchase of machinery for his firm and Exts.A1&A2 that contains the name of his firm and deposed that he is the proprietor of the firm by name Navabharath Wood Industries and thereby discharged his initial burden of proving the ownership, the burden was shifted to opposite party by producing ample documents to disprove the case of the complainant . But no such documents were produced to substantiate this contention. Hence this contention is also not acceptable. The counsel for the opposite party Sri.B.K.Mahin further contended that Ext.A1 is only a sale agreement and there is no evidence as to whether the agreement was performed. According to him hence the complainant has not acquired the ownership of the machine alleged and no delivery was affected in this case and therefore it violates Sec.7 of the Contract Act and there is no evidence regarding the payment of balance amount as stipulated in Ext.A1 and the contention to take delivery as averred in the agreement was not performed and completed and there is no delivery note or records or evidence in whatsoever manner. These arguments are also quite unsustainable and baseless because Sec.7 of the Contract Act only envisages that the acceptance must be absolute in order to convert a proposal in to a promise. Even in Ext.A1 sale agreement what is stated is that the machinery are worth Rs.4,40,000/-and advance paid is Rs.40,000/- and the balance will be paid before 25th November 2005 and take delivery. This agreement of sale became irrelevant when the actual sale was carried out by opposite party as per Ext.A2 invoice. Ext.A2 is dtd 4/1/2006 issued by opposite party to Navabharath Wood Industries Po, Chayoth, Choyyamkode, Nileshwar ie to the firm of complainant. The invoice shows even the reg. No. of carrier vehicle ie KL-10 /B3193 in which the machinery were sent to the complainant. It bears the seals of Sales Tax checkpost ,New Mahe and Commercial Tax check post Azhiyur with the date and signature of the tax officials . So it is clear that machinery noted in Ext.A2 ie, 55” Band Saw machine with accessories, Band saw blade bracing clamp. Band saw blade grinder has been actually and physically delivered to the complainant through carrier. The total amount including VAT as per Ext.A2 is Rs.598,000/-. There is no stipulation for payment of any balance in Ext.A2 invoice. Therefore it is vivid that the sale is concluded and the entire consideration for the sale is passed to opposite party. The contention of the counsel for opposite party that Exts.A1&A2 are contradictory and ExtA1 seen issued to one Ummer of Navabharath Wood Industries and therefore the proper person has not come before the Forum for relief etc are without any basis. Ext.A2 sale invoice nullifies the importance of Ext.A1 agreement of sale as the sale is complete and the goods are delivered. .Ext.A3 is a lawyer notice dtd.1/3/2006 issued at the instruction of the complainant to the opposite party. In Ext.A3 it is stated that the machinery were supplied as per Ext.A2 is installed on 24/2/2006 and while it started functioning was trouble with the functioning of machines when it was checked it was revealed that many parts of the machines were quite old and the machines were not working properly and every now and then there is trouble with the functioning of the machines. Ext.A3 is seen issued after 5 days of installation of the machine in which the complainant clearly alleges that the many parts of the machinery are quite old. Ext.A4 is the reply sent by the counsel for opposite party to Ext.A3 notice in which the sale of machinery and issuance of bill are admitted. In Ext.A4 the opposite party only contends that the machinery were purchased after checking the same and its working condition and no stipulation was there to take back the machine and no old parts are used for the machine. vi) Since the sale and purchase of the machinery are admitted in Ext.A4 reply , this point is found in favour of the complainant. Now the key point to be settled is whether the machinery supplied by the opposite party to the complainant were old or not? To substantiate this allegation complainant sought permission to appoint an expert to inspect the machinery. Accordingly Sri.P.V.Chandran, Lecturer in Mech.Engineering, S.N.Poly Technic College,Kanhangad is appointed as Expert. He filed Ext.C1 report. Since the Ext.C1 report was prepared in the absence of opposite party it was remitted back to the expert and obtained Ext.C2 report. The relevant portion extracted from Ext. C2 report is mentioned below: “”That the commissioner has noted that the complainant is conducting a small industrial unit in the name of Navabharath Wood Industry at Choyyankode. During the inspection it is found that the said industrial unit is engaged in the production of wooden articles and other wood works, such as cutting and shaping of wooden pieces. All these jobs and production activities are carried out with the aid of various machineries. 4.That during the inspection of the disputed machine and its defected parts, the commissioner could see that the parts of the machine such as band saw machine band saw blade, bracing clamp and band saw blade grinder supplied by the opposite party is of old one and of low quality, many broken parts of the machinery and some other accessories are kept in the premises of the complainant’s industrial unit. 5. The present condition of the machine is not good and it is not working properly and accurately as a new machine should work. On perusal of the parts of the machine, it can be seen that the materials used for the manufacturing of the machine and its accessories are of old one and poor quality materials. Since the iron used for the production of the machine is of below quality level, the working condition of the machine is such that it is not giving the required accuracy and finish. 6. That during the inspection the complainant has pointed out certain defects of the machine and on my due perusal of the same, the following defects are found . a) The machine (plate No.38525) is around 25 years old. b) many of the components and accessories of the machine such as moving handle, housing block of the speed varying arrangement, wheels of the trolly etc, are welded and bolted pieces instead of an integral casting. c) The shafts or axies connecting the wheels of the trolly are of inferior quality C.I and hence three wheels are found broken. d) due to the low quality materials and long ageing of the machine, the surfaces of the machine have become rough and more wear and tear occurred. e) Trolly is having a total shake while moving and log clipping handle is broken and welded. f) The surfaces of blade tightening clamp is rough and it is not accurately leveled. g) It is also found that the three wheels of the machine were damaged and the same were installed after carrying out the repair work on them by the complainant. 7. In addition to the above mentioned points which were already mentioned in by first inspection report, the following additional points are also noted. (1) The three metal plates, which contains some details regarding the identification of the machine, which were not affixed with the said machine but these were detached from the machine and shown to me by the complainant. The texts engraved on these mental plates are given below. Plate 1: Importer, Kannoth Gopalan,Tellichery (po), India Plate 2LOOIS BRENTA,SPRL, Constructency 317,Chausseed’Ajivers,38525,5/15 N 17, Bruxelles. But when these metal plates are put or placed at a proper place on the surface of the machine, it was correctly suited. vii) From the above findings of the expert it is clear that the machinery supplied to the complainant by opposite party as per Ext.A2 invoice was not new one but was old used machinery renovated and reconditioned as new and it is imported by some other person formerly. So even if all other allegations and evidence of the complainant are ignored the act of opposite party is an unscrupulous exploitation of a consumer and it amounts to unfair trade practice. Sec.2(1)( r) 1 (II) of the Consumer Protection Act says that the practice of making any statement whether orally or in writing or by visible representation which falsely represents any re-built, second hand renovated reconditioned or old goods as new goods is an unfair trade practice. The opposite party not only made representation but also sold pretty old machinery as new machinery to the complainant for an amount of Rs.5,98,000/-. viii) The learned counsel for opposite party Sri. B.K.Mahin vehemently contended that the complainant had alleged that there was cheating on the part of opposite party but never stated that there was negligence or deficiency in service. But this is a case of unfair trade practice and a mere allegation of cheating in the complaint will not oust the jurisdiction of the consumer Forum if all the other elements of a consumer dispute are present in the complaint . Exts.A5 to A9 are some of bills produced by the complainant to show that the machinery supplied by opposite party were subjected to frequent repairs. Even if they are not taken in to consideration the opposite party cannot escape from the liability of compensating the complainant on account of the unfair trade practice committed by them. ix) The learned counsel for opposite party further attacked the Ext.C2 expert report because the expert has stated in his report that since the Forum has not given any data to identify the machine, there is no other way for him to inspect the machine which is installed at the Navabharath Wood Industry of the complainant. So according to learned counsel for opposite party the identity of the machinery are not proved. This argument is also quite untenable. The opposite party has no case that there are other identical machinery kept or working in the premises of the firm of the complainant to create confusion regarding the identity of the machinery supplied by opposite party especially when the sale of machineries were admitted by opposite party as per Ext.A4. To sum up the discussion, we are of the view that the opposite party had committed grave unfair trade practice by selling old, renovated reconditioned, old second hand machinery as new. The complainant submits that on account of frequent defects to the machinery supplied by opposite party many of his customers opted to go other similar industrial units for their purpose and thereby sustained monetary loss which he estimates as Rs.100,000/-. But the complainant has not adduced any evidence to substantiate this claim. Hence this claim is not acceptable In the result, the complaint is allowed and the opposite party is directed to take back the Band saw machine with accessories, Band saw blade bracing clamp and band saw blade grinder supplied by them to complainant in as is where is condition and refund its purchase price of Rs.5,98,000/- to the complainant with a cost of Rs.10,000/-. Time for compliance is limited to 30 days from the date of receipt of copy of the order failing which the opposite party shall also liable to pay interest for Rs.5,98,000/ @ 9% per annum from the date of complaint ie 1/9/2006 to till the date of payment. MEMBER MEMBER PRESIDENT Exts: A1-22/10/05- Sale agreement A2-4/1/06- Invoice A3-1/3/06-lawyer notice A4-6/3/06- Reply in Ext.A3 A5-15/1/08- Tax invoice A6-toA9—receipts B1- Complaint filed by OP against PW1 before the Sub Court ,Kozhikode PW1- Ummer koya-complainant MEMBER MEMBER PRESIDENT
......................K.T.Sidhiq
......................P.P.Shymaladevi
......................P.Ramadevi | | 
