BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 18^th of February 2011

PRESENT

        SMT. ASHA SHETTY           :   PRESIDENT

                        SMT.LAVANYA M. RAI       :   MEMBER

                        SRI. ARUN KUMAR K.        :   MEMBER

COMPLAINT NO.311/2010

(Admitted on 12.11.2010)

Ms.Durgamba Construction,

Represented by its Proprietor,

Sri. N.Santhosh Kumar Shetty,

Aged about 38 years,

Having its office at Thara Tower,

M.R.P.L. Road, Surathkal,

Mangalore.                                       …….. COMPLAINANT

(Advocate for the Complainant: Sri.K.Krishna Moorthy)

          VERSUS

Ms.Sidharatha Road Equipments,

Represented by its Managing Partner,

119 to 122, 135  1& 2GIDC,

Estate  1, Mehsana  384 002,

Gujarath, India.                                  ……. OPPOSITE PARTY

(Opposite Party: In person).

                                      ***************

ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:

1.       This complaint is filed under Section 12 and 13 of the Consumer Protection Act alleging defect in goods against the Opposite Party claiming certain reliefs. 

The brief facts of the case are as under:

The Complainant submitted that, he is a registered Class I PWD contractor engaged with private and Government contracts including the contract in formation of roads and matelling and tarring the same.  The Complainant purchased Four Bin Feeder, Load Out Slinger, Vibrating Screen with Acce and paid Rs.24,40,005/-.  The Opposite Party has installed the above said equipment during the period from 07.12.2008 to 24.12.2008 and promised to maintain the said equipment for a period of three years and told the Complainant that, he will undertake and see that no defect is caused to the equipment and the parts installed by him.   

It is stated that, due to the deficiency in installation of the equipment, same was collapsed causing the death of one of the worker and huge loss to the Complainant.  The work has to be stopped several days and the Complainant requested the Opposite Party to come to Mangalore and get the same repaired.  The Opposite Party instead of coming down to Mangalore, getting the same repaired by sending person, the Opposite Party has delayed the work and ultimately sent a quotation dated 11.06.2010 for a sum of Rs.9,60,000/-.  The above defect is due to the defective manufacturing, materials and workmanship.  The Complainant issued a lawyer’s registered notice but the Opposite Party not complied the demand made therein and stated that, the machinery sold by the Opposite Party is a defective and the Complainant has suffered loss and hardship which is not less than Rs.16,25,000/- and filed the above complaint under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to pay Rs.16,25,000/- for the loss suffered by the Complainant and also claimed Rs.25,000/- as compensation.

2.       Version notice served to the Opposite Party by RPAD. Opposite Party appeared in person filed version, denied the manufacturing defect and stated that, Opposite Party had given quotation for Rs.24,40,000/- and the Complainant had admitted the quotation, terms and conditions, then the Opposite Party got the plant prepared and got it fitted by the persons of the Opposite Party on 17.12.2008.  As per the quotation and agreement, the Opposite Party had given one year warranty for it which is referred in the quotation and not for three years.  The above alleged accident caused due to careless, negligent of unskillful workers of the Complainant.  The Opposite Party immediately sent person for checking and repairing the plant work and issued an estimation but the Complainant refused it and expected to repair without paying any amount for which the Opposite Party is not agreed.  Further stated that, the transaction and agreement were made in Mehsana, the Complainant would file or lodge FIR related to any dispute with the Opposite Party before the Mehsana jurisdiction and this FORA has no jurisdiction to try the matter and stated that, the complaint is frivolous, vexatious and liable to be dismissed.

3.       In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the Complainant proves that the Hot mix plant purchased by him from the Opposite Party is defective?

2. Whether the Complainant proves that the Opposite Party has committed deficiency in service?

3. If so, whether the Complainant is entitled for the reliefs claimed?

4. What order?

4.         In support of the complaint, Sri.N.Santhosh Kumar Shetty (CW1) filed affidavit and produced four (4) documents as listed in the annexure. Opposite Party not filed counter affidavit but produced five (5) documents as listed in the annexure.   

          We have considered the materials that was placed before this Forum by the parties and answer the points are as follows:                          

                       Point No.(i): Negative.

                       Point No.(ii) to (iv): As per the final order.  

Reasons

5.  Point No. (i) to (iv):

The facts which are not in dispute is that, the Opposite Party issued a quotation for plant.  The Complainant had admitted the quotation and the Opposite Party prepared the plant and got it fitted by the persons of the Opposite Party on 17.12.2008 at Kukkedi Villge of Belthangady, Dakshina Kannada District.

The grievances of the Complainant is that, the above said plant installed by the Opposite Party is defective, due to the deficiency in installation of the equipment, the same was collapsed causing in death of one of the worker and the work has stopped for several days and suffered loss and caused hardship.  Further stated that, the Opposite Party promised the Complainant that in case if any defect is found, he will rectify the same at his cost but now the above said plant was collapsed.  The Opposite Party issued a quotation for Rs.9,60,000/-, because of the defective manufacturing, materials and workmanship, the Opposite Party is liable to repair the same.  Since the Opposite Party denied to repair the same, came up with this Complaint.

The Opposite Party on the other hand contended that, the above said plant was installed by the Opposite Party and had given one year warranty not three years warranty.  The Opposite Party after receiving the information from the Complainant about the accident, immediately sent Opposite Party’s person for checking and repairing the plant work and gave an estimation for repairing the same but the Complainant refused it and expected to repair without paying the amount for which the Opposite Party is not agreed and stated that, the above said accident caused due to careless, negligent work of the unskilled workers of the Complainant and not the manufacturing defect.

The Complainant filed oral evidence by way of affidavit and produced 4 (four) documents. Opposite Party also filed oral evidence by way of affidavit and produced 5 (five) documents.

On scrutiny of the oral as well as documentary evidence placed on record, we find that, admittedly the Complainant purchased the above said plant from the Opposite Party by paying Rs.24,40,005/- and the above said equipment was admittedly installed on 07.12.2008.  The Complainant stated that, the Opposite Party promised to maintain the said equipment for a period of three years but the Opposite Party denied the same and stated that they had given the warranty only for one year not for three years.  When that being the case, it is the bounden duty of the Complainant to prove before the Forum that, the above said equipment has three years warranty.  In the absence of the same, we cannot consider that the above said equipment has three years warranty.  Generally, the equipments are provided with one year warranty.  In the instant case, the above said plant was installed on 07.12.2008 but the estimation issued by the Opposite Party dated 11.06.2010 reveals that, the accident to the above equipment caused after one year.  Since the Complainant failed to produce any warranty card to show that the above said machinery has three years warranty, it cannot be repaired free of cost.  But on the other hand, the Document No.5 i.e., terms and conditions reveals that, the equipment supplied by the Opposite Party is covered by the manufacturer’s standard warranty for twelve calendar months from the date of dispatch.  That could be seen in terms and conditions provided by the Opposite Party to the Complainant.  Since there is no warranty for the above said equipment, the Complainant cannot expect the Opposite Party to do free of cost.

Further, it is a settled position of law that, where the Complaint alleges a defect in goods which cannot be determined without proper analysis or test of the goods to find out whether such goods suffer from any defect alleged in the Complaint or suffer from any other defect, the Complainant shall produce an expert opinion in order to substantiate their case.  In the instant case, the Complainant failed to produce any expert opinion to show that the plant supplied by the Opposite Party has manufacturing defect.  In the absence of the same, we cannot consider that the plant supplied by the Opposite Party in this case is defective or the alleged accident caused due to the deficiency on the part of the Opposite Parties.   On the other hand, the warranty to the above said equipment also expired and there is no warranty to repair the above said machine at free of cost.  Moreover, the Complainant not answered the interrogatories served by the Opposite Party despite of taking sufficient opportunity.  Even in this count also, the Complainant is miserably failed to establish that the plant sold by the Opposite Party to the Complainant is a defective and the accident is caused because of the manufacturing defect.

In view of the above discussion, we hold that, there is no merit in the Complaint, deserves to be dismissed.  No order as to costs.   

6.       In the result, we pass the following:                          

ORDER

The complaint is dismissed.  No order as to costs.

The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.

(Page No.1 to 8 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 18^th day of February 2011.)

PRESIDENT                    MEMBER                              MEMBER

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 – ri.N.Santhosh Kumar Shetty – Complainant.

Documents produced on behalf of the Complainant:

Doc. No.1: 30.06.2010: Copy of the notice sent by the Complainant to the Opposite Party.

Doc. No.2:                : Postal acknowledgement.

Doc. No.3: 07.12.2008: Copy of the summary invoice sent by the Opposite Party with quotation.

Doc. No.4: 03.10.2008: Xerox copy of the sale agreement.

Witnesses examined on behalf of the Opposite Party:

RW1 –  Nil.

Documents produced on behalf of the Opposite Party:   

Doc. No.1 – 21.07.2010: Reply of the Opposite Party to the Complainant.

Doc. No.2 – 26.07.2010: Postal acknowledgement.

Doc. No.3 -                 : Photograph after fitted plant.

Doc. No.4 -                 : Photograph after the accident.

Doc. No.5 – 11.06.2010: Copy of the quotation.

Dated:18.02.2011                            PRESIDENT