DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD
Dated this the 13th day of January, 2023
Present : Sri.Vinay Menon V., President
: Smt.Vidya A., Member
: Sri.Krishnankutty N.K., Member
Date of Filing: 17.08.2021
CC/130/2021
Hakeem.K.A
S/o Abdul Azeez (Late)
Residing Sidra Rajeev Nagar
Near Kanikkamatha Shool
Pirayiri Road, Palakkad – 678 006
Proprietor, HN Polymers, No.2/1160
New Saryu Nagar, Chemalode
Chandranagar, Palakkad - Complainant
(By Adv. A.V.Arun)
V/s
Muhammed Farooq
The Propreitor, Faroni Enterprises
EP-25, Near Sidco Industrial Estate
Kattankulathur, Marai Malai Nagar
Tamilnadu – 603 209 - Opposite parties
(Ex-parte)
O R D E R
By Smt. Vidya .A Member
1. Pleading of the complainant in brief
The complainant is running a polythene bag making unit in the name and style as “HN Polymers”. The complainant purchased “Polythene Bag making machine with conveyor” from the opposite party on 14/01/2021 for an amount of Rs. 6,19,500/- From the very beginning the machine had problems and it was not working and this matter was conveyed to the opposite party. The opposite party provided the service of experts and all the efforts made by the service personnel were in vain. The opposite party admitted that it may be due to manufacturing defect and promised to refund the bill amount within one week from 15/04/2021; but he did not do and stopped responding to complainant’s call.
The machine was purchased by the complainant as part of up gradation and a mother machine that is Polythene roll making machine was purchased on 17/09/2020 for Rs. 13,57,000/- and installed. The machine purchased from the opposite party is one of the sub plant to the main business unit of the complainant and because of the defect in the machine, his unit was made standstill. Due to this the complainant suffered a loss of Rs. 20 lakhs apart from the cost of the machine. The opposite party being the manufacturer and dealer is responsible for the sale of the defective product. The fault found in the machine is due to manufacturing defect and the act of the opposite party in selling the defective product amounts to unfair trade practice. The complainant caused to issue a Lawyer notice through his counsel; but the opposite party did not respond to that. The complainant suffered mental agony and monetary loss because of the acts of the opposite party. The inaction on the part of the opposite party amounts to clear deficiency in service and they are liable to compensate the complainant for that.
So this complaint is filed to direct the opposite party
- To pay an amount of Rs. 6,19,500/- towards the cost of the machine with interest @ 12% per annum.
- To pay Rs. 20,00,000/- towards compensation for the mental agony and monetary loss suffered by the complainant and also for the deficiency in service and unfair trade practice on the part of opposite party.
- To pay the cost of the proceedings and such other reliefs as deemed fit and proper by the Commission.
2. Complaint was admitted and notice was issued to the opposite party; which was returned “Unclaimed”. So his name was called in open court and set ex-parte.
3. The case was posted for complainant’s Proof affidavit on 23/06/2022. Complainant did not file proof affidavit even after sufficient time being given. So his evidence was closed. Later on he filed IA 497/22 to reopen the evidence and it was allowed. Complainant filed proof affidavit and Exts.A1 to A4 were marked in evidence. The complainant was heard.
4. The main points arising for consideration in this case are
- Whether the complainant has succeeded in proving that the machine supplied by the opposite party was defective?
- Whether there is any deficiency in service/ unfair trade practice on the part of the opposite party?
- Whether the complainant is entitled to the reliefs claimed?
- Reliefs as cost and compensation.
5. Point No: 1
Complaint averment is to the effect that the complainant purchased “Polythene Bag Making Machine with conveyor” from the opposite party on 14/01/2021 for an amount of Rs. 6,19,500/- From the very beginning the machine was not working and this matter was intimated to the opposite party. Eventhough the opposite party sent several experts for curing the defects; it did not work. Complainant contends that the machine supplied by the opposite party suffers from manufacturing defect.
6. The complainant produced the “Quotation” issued by the opposite party which is marked as Ext.A1. Ext.A2 is the Tax Invoice dated 14/01/2021 issued by the opposite party to the complainant showing the purchase of machine for an amount of Rs. 6,19,500/- Ext.A3 is the E-Way bill.
7. As per the complaint, the opposite party admitted that the machine suffers from manufacturing defect and he promised to refund the bill amount; but did not pay the amount. In the orthodox manner when manufacturing defect is alleged, the onus is on the complainant to prove his case by adducing evidence. But in this case, the refusal on the part of the opposite party in accepting the notice issued by this Commission and his non-appearance probabilises the contention put forth by the complainant to be true. Point No: 1 is decided accordingly.
Point No: 2 to 4
8. Since the opposite party remained ex-parte, the evidence adduced by the complainant remains unchallenged. The complainant produced the copy of the Lawyer notice issued by his counsel to the opposite party which is marked as Ext.A4. As per the complaint, the opposite party did not give any reply or comply with the demand in the notice.
9. Since the opposite party refused to accept notice and to appear before the Commission and submit his version and discharge his duty to assist the judicial process, we are left with no option other than to accept complainant’s contention. The purchase of very expensive machine and its non-functioning from the beginning definitely caused monetary loss and mental agony to the complainant. The opposite party’s conduct in non-refunding the amount even after repeated failure of his service personnel to cure the defect in the machine amounts to deficiency in service on his part. The opposite party is bound to replace the machine or refund its cost if the defect in the machine persists; but he failed to do so. So the opposite party is liable to compensate the complainant for that.
In the result, the complaint is allowed.
We direct the opposite party to refund Rs. 6,19,500/-, the cost of the machine to the complainant together with interest @ 9% from 14/01/2021 till realization. We further direct the opposite party to pay Rs. 50,000/- as compensation for their deficiency in service and unfair trade practice, Rs. 25,000/- for the mental agony suffered by the complainant and Rs. 10,000/- as the cost of the litigation.
The opposite parties shall comply with the directions in this order within 45 days of receipt of this order, failing which opposite party shall pay to the complainant Rs. 250/- per month or part thereof until the date of payment in full and final settlement of this order.
Pronounced in the open court on this the 13th day of January, 2023.
Sd/-
Vinay Menon V
President
Sd/-
Vidya.A
Member
Sd/-
Krishnankutty N.K.
Member
APPENDIX
Documents marked from the side of the complainants
Ext. A1 - “Quotation” issued by the opposite party.
Ext. A2 - Tax Invoice dated 14/01/2021.
Ext. A3 - E-Way bill.
Documents marked from the side of opposite parties: Nil
Witness examined from the complainant’s side: NIL
Witness examined from the opposite parties side: NIL
Cost- Rs. 10,000/-
NB: Parties are directed to take back all extra set of documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.
