DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD
Dated this the 22nd day of June 2013
Present : Smt.Seena H, President
: Smt.Preetha.G. Nair, Member
: Smt.Bhanumathi.A.K. Member Date of filing: 30/07/2012
(C.C.No.143/2012)
Prema,
Proprietrix,
Sree Durga Coir Works,
Kavungal House,
Kizhakkemuri Post,
Elavanchery, Peringottukavu,
Palakkad - Complainant
(By Adv.P.Gopinath)
V/s
M/s.Metal Forms,
Rep.by its Manager,
9/36, Krishna Gardens,
Chandranagar,
Palakkad – 678 007 - Opposite party
(By Adv.T.R.Anil Venugopal)
O R D E R
By Smt.SEENA.H, PRESIDENT.
Complaint in brief:
Complainant purchased an automatic spinning machine worth Rs.1,20,000/- from opposite party. Though the order was given on 13/03/2011 on the assurance that the delivery will be made within 45 days, the machine was delivered only on August 2011. The machine was purchased by taking loan from State Bank of India. The machine which was delivered was not working and the same was intimated to the opposite party with a request to replace the same. Opposite party has not replaced the machine. Lawyer notice dated 18/02/2012 was caused to opposite party for which reply was sent, stating untrue facts. After receiving the notice, opposite party replaced the machine which is also not working. Complainant incurred huge loss on account of the non working of the machine. Further complainant has to remit the loan amount also. The machine suffers from manufacturing defect. According to the complainant, this amounts to deficiency in service on the part of opposite party. Hence the complaint. Complainant prays for an amount of Rs.1,20,000/- being the value of the machine, Rs.1,00,000/- being the compensation for mental agony, Rs.24,000/- being the loan amount paid and Rs.15,000/- per month as the loss of income from August 2011.
Opposite party filed version contending the following:
Opposite party admits that the complainant has placed an order for the supply of single conveyor coir spinning machine in the month of March 2011. It is also agreed that as per the terms of the agreement, machine has to be delivered within 45 days on payment of advance amount. Complainant after placing the order in March 2011, requested for the supply of double conveyor machine in the place of the earlier ordered one in the 1st week of April itself. Opposite party informed the complainant that immediate delivery of the same is not possible. Eventhough the single conveyor machine was ready for delivery in the month of April 2011, complainant took delivery of the same only on 11/08/2011 by making balance payment. The machine was properly working from the date of delivery. Later after 6 months on 23/02/2012, it was replaced with a new double conveyor coir spinning machine without charging any excess amount. Later a lawyer notice dated 18/2/2012 was issued by the complainant on 22/02/2012 for which a reply was sent stating true facts. The double conveyor machine was also properly working and there is no manufacturing defect for the same. Further complainant has no expertise in the field. According to the opposite party the machine supplied is not a defective one and there is no deficiency in service on their part. Complaint is liable to be dismissed with cost.
Complainant and opposite party filed their respective chief affidavits. Ext.A1 to A6 marked on the side of the complainant. Commission report marked as Ext.C1.
Issues for consideration :
1. Whether the machine supplied by the opposite party is a defective one?
2. Whether there is any deficiency in service on the part of opposite party ?
3. Whether the complainant is entitled for any relief ?
Issue No.1 &2
Heard both parties and has gone through the entire evidence on record. Complainant has placed an order for the supply of single conveyor spinning machine in the month of March 2011 and the same was delivered on August 2011 is an admitted fact. The only difference is with respect to the reason for the belated delivery. According to the complainant contrary to the terms of the agreement there was an inordinate delay in the supply of the machine by opposite parties, but the stand of the opposite party is that complainant has changed the order to double conveyor machine which the opposite party expressed their inability to supply immediately and hence complainant made a delay in taking delivery of the machine by making balance payment.
The evidence on record shows that there is absolutely no evidence to prove the stand of the opposite party. There is no evidence to show that complainant further changed the order, no evidence to show that the machine was ready for delivery in the month of April 2011. But it is seen that complainant has accepted the machine without any protest.
Now whether the first machine supplied by opposite party is defective or not, both parties has not taken any steps to prove the same. It is an admitted fact and also born out by Ext.A4 that the said machine was replaced with a double conveyor spinning machine without payment of extra cost. Ext.A4 also evidence the fact that it is made as part of a settlement arrived between the parties. The relevant portion of Ext.A4 is noted below:
“Moreover your client and my client had a meeting on 18/02/2012 at my client office. Your client was ready to take the double conveyor spinning machine and my client also agree to supply the same without any extra cost. My client had already delivered the machine as per the settlement and your client is efficiently running the machine now. The machine was delivered on 23/2/2012. Since the matter is settled under required machine is supplied there cannot be any further claim from the side of your client”.
The supply of new machine that too a double conveyor in the place of a single conveyor machine without any extra cost will definitely lead to a condition that the earlier supplied machine is a defective one. But once a settlement has arrived at by the parties for the supply of a new machine, there ends the matter. Now the question to be looked into is whether the 2nd machine supplied by opposite party is defective or not. The expert Commissioner has examined the said machine and has filed report, wherein it is clearly stated that the spinning machine is in good working condition. It is also stated that yarn produced from the said machine is of good quality. It is also stated that Smt. Prema, the complainant is not familiar to operate the machine and no essential tools have been supplied by the supplier of machine. Complainant has no case that specific instructions regarding the operation of the machine is not supplied by opposite party or no essential tools have been supplied by the operators.
In view of the above discussions, we are of the view that the machine supplied does not have manufacturing defect and there is no deficiency in service on the part of opposite parties.
In the result, complaint dismissed.
Pronounced in the open court on this the 22nd day of June 2013.
Sd/-
Seena H
President
Sd/-
Preetha G Nair
Member
Sd/-
Bhanumathi.A.K
Member
APPENDIX
Exhibits marked on the side of the complainant
Ext.A1 –Photocopy of the receipt issued by the opposite party to the
complainant dated 24/3/11
Ext.A2 – Photocopy of the Proforma Invoice issued by the opposite party to the
complainant dated 12/3/11
Ext.A3series – Photocopy of Lawyer notice dated 18/2/12 sent to opposite party
alongwith postal receipt and acknowledgement card
Ext.A4 –Reply to lawyer notice dated 6/3/12
Ext.A5 – Photocopy of letter dated 13/7/11 issued by the Coir Board to the
Joint Secretary, of Palakkad Coir Cluster Development Society
Ext.A6 – Photocopy of lawyer notice dated 6/10/12 sent to complainant.
Exhibits marked on the side of the opposite parties
Nil
Commission Report
C1 - T.A.Rejendra Babu
Cost
No cost allowed.
Forwarded by / By order
Senior Superintendent
Fair copy on : 04/07/2013
Despatched on:
