IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOLLAM

DATED THIS THE     5^th   DAY OF DECEMBER 2022

Present: -         Sri. E.M.Muhammed Ibrahim, B.A, LLM. President

             Smt.S.Sandhya   Rani. Bsc, LLB ,Member

            Sri.Stanly Harold, B.A.LLB, Member

CC.No.101/2022

Ravisankar, 61 years,

S/o Sreenivasan, Earathu Veettil,

Santhinagar 87, Kureepuzha Cherry,

Kavanad P.O., Kollam West Village,

Kollam 691003.                                                                                   :           Complainant

(By Adv.Anilkumar A.)      

V/s

1. Power Tek Enterprises,

         Opposite Civil Station,

        Pallimukku, Pathanapuram 689695.                                          :         Opposite parties

2. Proprietor Cum Managing Director,

          Power Tek Enterprises, Opposite Civil Station,

          Pallimukku, Pathanapuram 689695.

3. General Manager,

          Power Tek Enterprises,

       Opposite Civil Station,

        Pallimukku, Pathanapuram 689695.

4. Sales Manager,

         Power Tek Enterprises,

        Opposite Civil Station, Pallimukku, Pathanapuram 689695.

ORDER

Sri.Stanly Harold, B.A.LLB, Member

          This is a case based on a complaint filed U/s 35 of the Consumer Protection Act 2019.

The averments in the complaint in short are as follows:-

            The complainant is an ex-gulf employee senior citizen.  At present he is  residing with the family consisting of his wife and unmarried daughter.  Complainant for his livelihood decided to start a production unit of medicine packets for which he made enquiry about the machine used and he had studied about the marketing of the product and he came to know that the opposite party Powertech Enterprises is engaged in producing the said medicine.  The complainant visited the showroom of 1^st opposite party and saw the said machine kept for demonstration.  The opposite party made the complainant to believe that the said machine is having superior quality and quality service for the same is very easily available and that they will give the training to the complainant and the service will be available as and when required by the complainant.  By believing the words of the 1^st opposite party the complainant and trusted him.  The complainant had applied for a loan in the project of PMEGP which is for the small scale industrial unit linked with Industrial Department.  As per the direction of the Industrial Department complainant had produced project report and connected documents along with application.  The Industrial Department had sanctioned the project and granted a loan of Rs.6,00,000/- for the purpose of the Industrial unit for the production of medicine packet.  Thereafter an amount of Rs.1,00,000/- was sanctioned from the bank for the construction of a shed.  Complainant has obtained electrical connection, license, pollution certificate for the said shed and produced before the Kottiyam Central Bank for starting the medicine packets small scale unit.  Primarily Rs.15,000/- was given to the 1^st opposite party and the balance amount of Rs.3,36,050/- has paid by way of cheque to the 1^st opposite party directly on 22.03.2021.  Thus altogether Rs.3,51,050/- was received by the 1^st opposite party.  However the 1^st opposite party did not provide machine to the complainant and on enquiry the 1^st opposite party told the complainant that they will give training to the complainant and they simply started a machine kept for demonstration and told the complainant this is the functioning of a best machine.  The complainant who is not able to understand the meaning of the technical terms in English believed the representation of the 1^st opposite party and the complainant had asked the 1^st opposite party about the training, the 1^st opposite party responded that it will be done at the time of installing the machine at the site.  On 16.04.2021 at about 10.30.P.M the employees of the 1^st opposite party brought the machine to the institution of the complainant and unloaded the same.  At that time no technicians from the 1^st opposite party were present there and while the complainant enquired the 1^st opposite party replied that they will visit the institution within one week.  In spite of repeated requests no technicians was available or visited the complainant’s institution.  At last on 28.04.2021 a technician visited the complainant’s institution but the necessary parts of the machine such as blade, gear, paper guiding stands, wiper blade were not at all produced along with machine.  The machine provided to the complainant does not possessing any features of a brand new one and it looks like a used and old machine where the rust covered portions are concealed by painting so as to make it appear as a new one.  While the complainant made enquiries about this matter to the technicians of the 1^st opposite party they have made the complainant to believe that it is a machine is a brand new one.  But the technicians came from 1^st opposite party firm was incapable to conduct a demonstration by way of trial running.  The machine purchased by the complainant is not at all in a working condition.

          Complainant as a new comer to the small scale industry he was not having any technical knowledge nor even able to understand how 1^st opposite party and his technicians operate the trial run.  Moreover the technicians deputed by the 1^st opposite party has not at all qualified and having no experience or practice in operating the machine.  The technicians had failed to bring appropriate tools in their possession and when the machine was started for working for the trial run of production of paper covers certain parts of the machine spontaneously loosened and fell down as a result a main bolt of the machine was broken the machine cannot be replaced or repaired.  The technicians of the 1^st opposite party had kept the bolt in the machine and the complainant understood that the machine brought by the 1^st opposite party to the small scale industrial unit was defective one which was not suitable for the purpose of industrial unit of the complainant.  The technicians deputed by the 1^st opposite party were unaware about the working of the machine and they had not taken any effort to function the machine for the purpose of trial run.  The complainant had repeatedly contacted the 1^st opposite party firm and  the 4 gear wheels produced by the 1^st opposite party was defective and damaged and 3 of them were not suitable to use in the machine. The spare parts brought by the 1^st opposite parties technicians were defective.  T technicians promised that they would replace the same.  The above said act of the 1^st opposite party caused the complainant severe mental agony. 

On 21.06.2021 there was an enquiry from the office of District Industrial Department about the progress of the work of the small scale industry.  Complainant had visited the 1^st opposite party firm and after conversation with the 4^th opposite party told him that since the machine had brought only within 3 months and he cannot perform the production of the paper covers for a single day and asked to replace the machine by substituting a brand new one.  But the 4^th opposite party was not amenable to the complainant’s demand and he responded in a very harsh manner to the complainant.  The opposite parties had an intention that the complaint can be cheated easily as he is not aware of any technical terms regarding the spares of the paper printing machine.  At last the 1^st and 4^th opposite party directed the complainant to the 3^rd opposite party and complainant had explained the present situation of the machine the 3^rd opposite party assured that he will provide two technicians within 4 or 5 days and solve the problem and make the machine in a perfect working condition.  The complainant has told the 3^rd opposite party to provide most experienced and qualified technicians to the rectify the defects of the paper printing machine.  The 3^rd opposite party assured the complainant and on 08.07.2021 two technicians from the opposite parties firm brought gear wheels but the same were not suitable to  use in the machine.  For removing the broken bolt when the specific portion was removed due to bearing loose all the components in the machine had fallen down and control switch of the machine had also fallen down from the hand of the technicians and become defective.   The damaged parts are taken to the workshop nearby the house of the complainant.  There was a mediation talk with the complainant and 3^rd opposite party as a result of this on 14.07.2021 at about 3 P.M a staff deputed by the opposite party visited the complainant’s institution and brought the spare parts given at the workshop and had installed in the machine and only replaced two damaged springs and grinded the blade feely and on 15.07.2021 the opposite parties technicians had brought all the gear wheels.  Subsequently over sized grinding stand were installed when the complainant demanded the technicians deputed the 1^st opposite party to run the machine for a trial run he uttered filthy words to the complainant and declared that his duty is only to switch on the machine and further challenged the complainant to initiate legal proceeding in the court.  The technicians after installation had taken the photograph of the machine to prove that the machine is working and is in a running condition and obtained the signature of the complainant in the job card stating that the machine is in a good condition.  When the complainant tried to operate the paper printing machine certain component of machine were shaking and loosened as a result of this the motor of paper printing machine excessively over heated and machine stop removing .  This fact was intimated to the 1^st opposite party.  But they responded that the stoppage of the machine is due to fluctuation of voltage and it will be stable within short time.  The complainant in order to check the voltage purchased a volte meter and when reading was taken.  It was found that the reading is normal the 1^st opposite party or other opposite parties did not give any weightage to the grievance of the complainant.  In this circumstances the complainant had contacted several technicians in different companies regarding the defect of the machine installed by the 1^st opposite party they had opined to check the components separately and at last complainant detected that the motor is defective.  This fact was informed to the 1^st opposite party and they told that they will send two  persons to cure the defects but there was no response.     

          At that time complainant demanded the technician to make a trial run but in response to this the technicians used filthy language to the complainant.  The opposite parties had obtained an amount of Rs.6,60,000/- and cheated the complainant without supplying actual machinery .  While starting the business of small scale industries the complainant had canvassed certain orders from different shops and received advance and other amounts from their shops.  Due to the damage of the machine the complainant cannot supply the paper covers and the present machine is not in a working condition even for a single day.  As the customers had filed petitions before the police authorities the complainant has to face much mental agony and financial loss.  Thereafter the complainant filed a petition on 25.08.2021 before the State Industrial Minister.  The complainant several times visited the office of the 1^st opposite party and requested to replace the defective machine by substituting a brand new one but the 2^nd opposite party had told the complainant that they will overhaul the machine and cure the defects.  But complainant was not amenable for the same since there is no need to overhaul a new machine having only 3 months old remains in a not perfect working condition for the last 3 months.  The complainant has a strong belief that the machine brought by the 1^st opposite party is an old one they had falsely demonstrated the machine which was kept in their firm.  The machine which has been supplied by the opposite party to the complainant was inferior and a locally made one.  At the time of purchase of the machine the 1^stopposite party has misleaded the complainant that they had a manufacturing unit of the said machine but on enquiry it was revealed that there was no such manufacturing unit operated by the 1^st opposite party.  The act of the opposite party amounts to deficiency in service and unfair trade practice.  They have assured and offered the complainant that their products are branded and qualified but the spare items supplied by the opposite parties are locally made one.  The complainant  has faced much financial burden since the repayment for the loan amount in the bank has been increasing with 8% interest and complainant had to pay Rs.4,00,000/- further functioning of the machine the essential raw materials like paper roll, transport charge, loading charge, electricity will cost an amount of Rs.3,00,000/-.  The act of opposite parties by supplying a defective machine to the complainant and receiving an enormous amount clearly amounts to deficiency in service and unfair trade practice.  The opposite parties has decieted the complainant who is a new comer to the industry and unaware to the technical knowledge about the paper printing machine had sustained mental agony and financial loss to the complainant.  Hence the complaint.

          Though notice was issued the opposite parties failed to appear and hence they were set exparte.  The complainant filed chief affidavit in lieu of chief examination by reiterating the averments in the complaint and got marked Exts.A1 series, A2, A3, A4 series and A5 series.  Heard the counsel for the complainant, perused the records. 

The unchallenged averments in the affidavit coupled with Ext.A1 to A5 documents would establish prima facie that the complainant by availing loan from the industrial department under PMEGP scheme and purchased a cover manufacturing and financial assistance from Bank.   On 16.04.2021 at about 10.30. P.M the machine was brought by the 1^st opposite party’s technicians by claiming that the machine is a brand new one.  But it appeared like an old aged indicating that the rust of the board has been concealed by pairing in order to convince the complainant that the same is a brand new one.  Moreover the essential parts required for the functioning of the machine such as blade, gear, paper guiding stands, wiper blade were not available at the machine.  The machine brought at the complainant’s institution has not functioned at last for the trial run.  The complainant has several times visited the 1^st opposite party firm and requested to function the machine by demonstrate a trial run.  But they were not amenable to do the same.  It is very pertinent to note that the opposite parties had knowledge that the complainant is a new comer in the business and he is unaware about the technical terms of the spare which are to be used in the printing machine.  So they had cheated the complainant from evading from performing their duty.  As the machine supplied by the 1^st opposite party was a defective one the complainant requested the 1^st opposite party to replace the same with a brand new one.  But they turned deaf ears towards the complainant and used harsh language stating that you can do whatever you like.  After a few weeks there was enquiry from the District Industrial Department about the progress of the project.  Complainant was very much mentally depressed due to the deceitful act committed by the 1^st opposite party.  The complainant has spent huge amount purchase the paper cover manufacturing machine.  But the said machine was not in a working condition even for a single day.  It is clear from the available materials that there is manufacturing defect and also poor workmanship of the manufacturer and technicians for which the complainant had suffered heavy loss.  The 1^st opposite party along with other opposite parties are bound to keep the machine in a imperfect running condition at least for a period of 12 months from the date of purchase .  But they failed to do so.  In Ext.A1 series quotation given by the 1^st opposite party it is specifically mentioned regarding warrantee and guarantee.  But in spite of warrantee clause, the opposite parties failed set right the defect of the machine or to provide a new machine by taking back the defective one.  It is also clear from the available materials that the 1^st opposite party had acted in most negligent manner while dealing with the complaint of the complainant and the complainant had suffered much financial loss apart from mental agony.

On evaluating the entire materials available on record we hold that the machine purchased from the opposite party and installed  at the premises  of the complainant has become defective within the guarantee and warranty period.  It is stated Ext.A1 series offer letter that the company will be liable for manufacturing defect only and will not be liable for any burning or short circuit.  But in spite of bringing that fact that the machine is having manufacturing defect none of the opposite parties have repaired or replace the same though the complainant knocked the door of the each opposite parties with the defective machine.  As the opposite parties had not performed their obligation under the terms of guarantee it is clear that there is deficiency in service on the part of the opposite parties 1 to 3.  It is also clear from the materials available on record as none of the opposite parties have not set right the defect of the medicine paper cover nor replaced.   It is pertinent to note that the admitted defects occurred during the guarantee period as the complainant had sustained mental agony and financial loss.  In the circumstances opposite parties 1 to 4 jointly and severally liable to replace the defective medicine or to return its price shown in Ext.A2 invoice and also liable to pay reasonable compensation and caused to the complainant. 

In the result complaint stands allowed in the following terms.

1. The opposite parties are directed take back the defective machine from the complainant and to refund its invoice price Rs.3,51,050/- to the complainant along with interest 9% per annum from the 22.03.2021 till realization. 
2. The opposite parties are also directed to pay Rs.50,000/- as compensation along with interest @ 9% per annum 22.03.2021 till realization.
3. The opposite parties are also directed to pay Rs.5,000/- as costs of the proceedings.
4. The complainant is directed to produce the defective medicine paper cover machine along with Ext.A1 and A2 documents at the firm of the 1^st opposite party within 30 days from today and after receiving back medicine the opposite parties shall comply with direction 1 to 3 failing which the complainant is liberty to recover amount covered by relief No.1 to 3 with interest @ 12% per annum except for costs from 22.03.2021 till realization from opposite parties  1 to 3 jointly and severally an from their assets.   

Dictated to the Confidential Assistant  Smt. Minimol S. transcribed and typed by her corrected by me and pronounced in the  Open Commission this the 5^th  day of  December 2022.                              

                                                                                                                                                   STANLY HAROLD:Sd/-

                                                                                E.M .MUHAMMED IBRAHIM:Sd/-

                                                                               S.SANDHYA RANI:Sd/-

                                                                                                                              Forwarded/by Order                                                                                                                    

                                              Senior superintendent

INDEX

Witnesses Examined for the Complainant:-Nil

Documents marked for the  complainant

Ext.A1             : quotation given by the 1^st opposite party

Ext.A2             : Tax invoice dated 16.04.2021

Ext.A3                : Bank passbook and Copy of gmail (Ravishankar’s loan disbursement)

Ext.A4 series   : A  petition on 25.08.2021 before the State Industrial Minister and   Acknowledgement card

Ext.A5 series   : Photographs

Witnesses Examined for the opposite party:-Nil

Documents marked for opposite party:-Nil