Date of Filing:18.09.2007<br /> Date of Order:25.06.2008<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> <br /> Dated: 25TH DAY OF JUNE 2008<br /> PRESENT<br /> <br /> <br /> <br /> Sri. S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Sri. BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> <br /> <br /> <br /> <br /> COMPLAINT NO: 1936 OF 2007<br /> <br /> <br /> Chandru,<br /> S/o Late Motegowda,<br /> Proprietor,<br /> Sri. Siddarameshwara Tiles,<br /> III Cross, Kuvempu Nagar,<br /> Kanakapura,<br /> Bangalore Rural District. Complainant<br /> <br /> <br /> V/S<br /> N.P. Srinivasan,<br /> Father’s name not known,<br /> Proprietor, <br /> M/s Sreeja Enterprises,<br /> No.5, 5th Main, 5th Cross,<br /> Opp: Micronova,<br /> Kanteerava Studio Main Road,<br /> Bangalore-560 096. Opposite Party<br /> <br /> <br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> <br /> This is a complaint filed U/Sec.12 of the Consumer Protection Act, 1986 claiming refund of Rs. 68,000/- with interest. <br /> The facts of the case are that, the complainant approached the opposite party for the purchase of 40 Tones capacity Hydraulic press for making mosaic tiles and requested the opposite party to give quotation for the same. Accordingly, the opposite party has given quotation vide his letter No.300/SE/HP/2006-07 dated 26/6/2006 for a sale price of Rs.68,000/- with one year guarantee from the date of purchase. The complainant paid a sum of Rs.20,000/- in cash on 23/6/2006 as advance to the opposite party towards purchase of the above said machine. The opposite party has acknowledged the receipt of the above said sum vide receipt No.055 dated 23/6/2006. Again on 10/8/2006 the opposite party received a sum of Rs.20,000/- from the complainant and the receipt was issued by the opposite party on the back side of the office business card by endorsing in his own handwriting and affixing his signature and date. The opposite party has received total sum of Rs.40,000/- from the complainant and delivered the Hydraulic press with 5 HP motor power pack unit on 24/8/2006 vide Invoice No.265 and delivery challan bearing No. 261. The opposite party has received further sum of Rs.22,000/- and sum of Rs.2,750/- being VAT on 24/8/2008. The opposite party installed the Hydraulic and 5 HP motor at the premises of the complainant’s factory by receiving Rs.6,000/- in cash and final settlement of the sale price and has not issued any receipt for Rs.6,000/-. The complainant totally paid Rs.68,000/- towards sale price of the machineries as full and final settlement. Unfortunately, the said machine started giving trouble from the date of installation. The complainant contacted the opposite party over phone and in person and explained the problems occurred in the said machine. Though the opposite party has attended once and made some repair works, the same problem is recurring till this day. The opposite party promised the complainant that he will exchange the entire machine for a new one, since the problem occurred within the guarantee period. The request made by the complainant to repair or to exchange the machine has fall deaf ears and the opposite party has failed to fulfill his contractual obligation till this day, since there is a guarantee of any manufacturing defect as per the quotation dated 26/6/2006. The complainant got issued legal notice on 11/7/2007. To that notice the opposite party issued untenable reply on 24/7/2007. Hence, the complaint.<br /> 2. Notice was issued to opposite party. Opposite party put in appearance through advocate and filed defence version stating that, the opposite party visited the complainant’s place after sale service of the machine, the machine was used by unskilled person and it was overloaded to 50 tones, it was working at the limit of 200 kg/cm2 and 3000 PSI. As the working condition of the machine is 40 tones and limit is 160/KG/CM2 of 2200 PSI, and it was explained and advised to the complainant, not to overload the machine. The price of the machine is Rs. 68,000/- including the machinery with extra fittings, servicing, transportation oil charges, labour and after sale services charges for one year and it was explained at the time of giving quotation. It is false that the complainant had given guarantee for one year from the date of purchase, but it was explained to complainant that free service will be provided for one year from the date of supply. The complainant had paid Rs.20,000/- on 10/8/2006. The complainant had paid Rs.2,000/- and Rs.2,750/- for VAT. The complainant is due of Rs.26,000/- to the opposite party. The complainant never intimated at any time from the date of installation that the said machine was giving trouble. In view of all these reasons stated above, the opposite party prayed to dismiss the complaint.<br /> <br /> 3. Affidavit evidence of both the parties filed. Arguments heard. <br /> 4. The points for consideration are:- <br /> 1. Whether there was any deficiency in service <br /> on the part of the opposite party? <br /> 2. Whether the complainant is entitled for replacement of Hydraulic Power press mosaic machinery or alternatively for refund of Rs.68,000/-? <br /> REASONS<br /> <br /> 5. It is an admitted case of the parties that, the complainant has purchased Hydraulic Pressing Machine, 5 HP Motor mosaic machinery from the opposite party on 24/8/2006. The machinery was fixed at complainant’s factory at Kanakapura on 25/8/2006. The complainant submitted that machine started giving trouble from the day of its installation. The opposite party has attended once and made some repairs. The opposite party submitted that the problem is recurring again. The opposite party could not repair the machine. The request of the complainant that to repair the machine has fallen on deaf ears of the opposite party. The complainant submitted in para-7 of the complaint, because of the irresponsible attitude of the opposite party and because of the defects in the machinery, the complainant did not delivery the goods to its customers and most of the customers have cancelled their orders. Thereby the complainant suffered mental agony, inconvenience and financial loss. Admittedly, the machine was installed to the factory of the complainant at Kanakapura. It is not the case of the complainant that he has purchased the machine to earn his livelihood. In the absence of his pleading and proof as per the admission of complainant himself in his complaint that the machine was installed to his factory at Kanakapura and he could not deliver the goods to his customers and most of the customers have cancelled their orders. This itself goes to show that the complainant is not a consumer U/Sec.2 (1) (d) of the C.P Act, 1986. A consumer means any person who buys goods for consideration.................. but does not include a person who obtains such goods for resale or for any commercial purpose. Therefore, under this definition the machinery in question was purchased for commercial purpose since it had been installed to the factory at Kanakapura and the complainant himself has admitted in para-7 of his complaint that he could not deliver the goods to his customers and most of his customers have cancelled the order. No doubt under the explanation to the definition of consumer “commercial purpose” does not include use of goods exclusively for the purposes of earning his livelihood by means of self employment, but the complainant has not pleaded in his complaint that he had purchased the machine for the purposes of earning his livelihood by means of self employment. So, under the circumstances, the complainant has failed to prove that he is a consumer under the Act. Therefore, on this ground itself the complaint is liable to be dismissed. Secondly, on merits also the complainant has made use of the machine for 11 months and thereafter, he issued legal notice to the opposite party complaining defects. The complainant has not produced any records or documents to show that he had complained or informed the opposite party for the defects of the machine within a reasonable period from the date of installation. Having made use of the machine for 11 months now the complainant has come forward demanding replacement of machine or alternatively refund of amount paid by him. This prayer of the complainant cannot be allowed without their being any proof or expert opinion to show that the machine purchased by the complainant has got manufacturing defect. Therefore, on this ground also, the complaint is liable to be dismissed. However, the opposite party has come forward to attend the repairs if any to the machine. Therefore, it can be observed that in spite of dismissal of the complaint the opposite party may attend the repair works and try to remove the defects if any. The opposite party shall also properly instruct the complainant, the proper use of the machine. With this observation, I am of the opinion that complaint is liable to be dismissed. In the result, I proceed to pass the following:- <br /> ORDER<br /> <br /> 6. The complaint dismissed. No order as to costs.<br /> 7. Send the copy of this Order to both the parties free of costs immediately. <br /> <br /> 8. Pronounced in the Open Forum on this 25TH DAY OF JUNE 2008.<br /> <br /> Order accordingly,<br /> <br /> PRESIDENT<br /> I concur the above findings. <br /> <br /> MEMBER <br /> <br /> <br /> <br /> <br />