IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR

Present: Sri.K.Gopalan                 :       President

  Smt.K.P.Preethakumari              :       Member

  Smt.M.D.Jessy                           :       Member

Dated this,  the   19^th day of  February,  2010.

C.C.No.245/05

Ramesh.T.V.,

Proprietor,

M/s.Vijay Furniture,

Ambalappuram                         :                       Complainant

P.O;Cherukunnu-670301,

Kannur District.

Vs.

1. M/s.Prompt Machines & Tools,

Opposite Chamber of Commerce,

Cannanore - 670002.

(Rept.by Adv.O.K.Saseendran)

2. M/s.Jai Industries,

Near Soni’s Chawl,                              :                       Opposite Parties          

Old Odnav Tolnaka,

Rakhial – Odnav Main Road,

Rakhial, Ahammmadabad – 380023.

3. M/s.Quality Machine & Spares,

39/1385, 4 Star Building,

Chittoor Road, Valanjambalam,

Ernakulam-16.

((Rept.by Adv.Sakiria.K.)

                                                                        O R D E R

Sri.K.Gopalan, President

This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the Opposite Party to return the purchase price Rs.2,13,600/- with interest from the date of purchase and an amount of Rs.75,000/- as compensation together with Rs.300/- as notice charge and  cost of this proceedings.

The facts in brief of the Complainant are as follows: Complainant had purchased a Jai brand Auto Spiral Lathe Machine with electric Motors worth Rs.2,13,600/-.  The order was placed through the dealer 1^st Opposite Party.  2^nd Opposite Party is the manufacturer.  The machine is an atomized Lathe machine and if the automatic system is disconnected it would only work as an ordinary machine.  The cost of the ordinary machine is only Rs.1,00,000/-.  The Complainant purchased the same for his furniture workshop which is the source of his livelihood.  The machine showed symptoms of complaint within few days of its operation.  1^st Opposite Party was informed and the authorized mechanic made some repair works and so again it started working for few days and then again became faulty.  The process of informing the complaint to 1^st Opposite Party and the visit of this mechanic for repair became a regular affair.  The Complainant thus became fully fed up with the regular complaints of machine.  During middle of June the machine became totally defective.  Mechanic visited on 09.07.05 but unable to do repair.  At last he disconnected the automatic system and connected it directly just like an ordinary machine of its kind.  The similar machine without automatic system are available for Rs.1,00,000/-.  Now the above machine is repaired for functioning only as an ordinary machine.  The machine is totally defective and having manufacturing complaints.  The Complainant was cheated by Opposite Party by supplying defective machine.  Complainant sent a lawyer notice calling up  to take back the machine and to return the purchase price Rs.2,13,600/-  with interest and compensation.  Opposite Party replied with cooked up averments.  The reply of 2^nd Opposite Party to rectify the mistake after getting the control panel and face plate at the cost of Complainant is not acceptable since it is to put the Complainant in trouble after getting the machine at their site.  The warranty period of the machine is not yet over.  There is no other way except approaching the Forum for the redressal.

Pursuant to the notice 1^st Opposite Party entered appearance and 2^nd Opposite Party remained absent and set ex parte. 1^st Oppsoite Party filed version.  Subsequently 3^rd Opposite Party impleaded and he also filed version.  3^rd Opposite Party later became absent and  no instruction reported.  Thereafter 3^rd Opposite Party was called absent and set ex parte.

The brief facts of the contentions of the 1^st Opposite Party are as follows: The purchase of machine manufactured by 2^nd Opposite Party is admitted.  It was purchased from 1^st Opposite Party is not correct.  It was purchased from M/s.Quality Machine and spares Ernakulam dtd. 18.09.04. The 1^st Opposite Party is only a sub agent of the dealer, Quality Machine & Spares.  It is false to say that there is delay in supply of machinery.  There was no promise to deliver it within one month.  If any delay caused that is due to the delay in furnishing the ‘C’ form by the Complainant in time.  It took much time to obtain power of attorney and necessary documents from the Sale Tax Department for which Opposite Party could not be blamed.  The payment was made to the 2^nd Opposite Party through the dealer 3^rd Opposite Party.  The machine developed complaints after two days of work and it continued even after repair is against facts.  Machine worked perfectly but developed complaints due to defective handling where complaint was reported Opposite Party attended immediately and rectified the defect.  The mechanic pointed out the defective operation due to the inexperience.  So at the request of the Complainant the operation system modified from electric into mechanical.  After the notice of Complainant on 16.07.05 mechanics from Ahammadabad came to the Complainant’s place and offered to attend and rectify the complaint but Complainant did not allow them to attend the machine.  The Opposite Parties are ready and willing to redress the grievances.  The averments that the machine is totally defective and is having manufactural defects and that the Opposite Parties have cheated the Complainant etc. are contrary to facts.  This Complainant is only to harass the Opposite Party.  Hence prays to dismiss the complaint. 

The contents of the contentions of the 3^rd Opposite Party in brief are as follows:  The Complainant is not a consumer and the machinery was brought for the commercial purpose.  The charge levelled against Opposite Party is cheating and thus the proper Forum is the Magistrate Court and not the Forum.  The relief sought is of the nature of recovery of money and for damages which entails the jurisdiction of a civil court.  This Opposite Party is the authorized dealer of 2^nd Opposite Party.  Neither this Opposite Party nor the 2^nd Opposite Party has cheated the Complainant.  There is no privity of contract between 2^nd and 3^rd Opposite Parties with the Complainant.  The order for the machinery was placed by the 1^st Opposite Party and machinery has been delivered to the Complainant as requested by the 1^st Opposite Party.  This Opposite Party delivered the machinery at the workshop of the Complainant, erected the machinery, and demonstrated the functioning.  The Opposite Party’s service employees spent considerable time for the Complainant since they were not entitled with the use of such advanced machineries capable of woodcarving, designing and shaping automatically.  No complaint was reported till the month of June 2005.  Some complaints pertaining to the control panel was reported by 1^st Opposite Party and the service personnel of this Opposite Party attended and serviced machinery at the Complainant’s workshop free of charge.  Same complaint was reported in July 2005.  It was attended without delay.  The control panel consists of push ‘button’ switches controlled by electric relays.  The electronic relays got damaged due to careless handling and inconsistent                  and recurring voltage fluctuations. The equipment’s components were tainted with dust particles making things worse.  For the smooth functioning of the machinery this Opposite Party replaced the control panel and push button with mechanical switches.  The Complainant was taken into confidence that electronic control panel is not suitable for his purpose on account of the hazardous voltage fluctuations and upon his connivance only he was provided with manually operated switches.  Thereafter the machinery is functioning without any error till date to the information of this Opposite Party.  The allegation that the machinery fell with repeated complaints is baseless.  This Opposite Party timely attended all the defects reported.  The machine does not cease to be automatic because the electronic push button switches are replaced with manually controlled switches.  The automatic function of the machine is with regard to its tools, which are still functioning automatic.  The automatic system is not disconnected.  The averment that the automatic system is disconnected and the machine is functioning like an ordinary machine of its kind is false.  Complainant has not taken out commission with notice to this party.  The price comparison of automatic and non automatic machinery is false.  The present manually operated condition is best suited for the machine considering the lack of expertise of the Complainant and the problem of voltage variation prevailing at the place where machine is kept. This Opposite Party has no inhibitions in rectifying the defect in the control panel and for attending any services required for the machinery.  The Complainant lacks bona fides and hence to dismiss the complaint.

On the above pleadings the following issues have been taken for consideration.

1. Whether there is any deficiency of service on the part of the Opposite Party?
2. Whether the Complainant is entitled for the remedy as prayed in the complaint?
3. Relief and cost.

The evidence consists of oral testimony of PW1, DW1, Exts.A1 to A6,Exts.B1 to B7 and the commission report Ext.C1.  2^nd Opposite Party never appeared and so declared exparte at the preliminary stage itself.  3^rd Opposite Party though impleaded declared ex parte since remained absent on receiving notice.  Subsequently exparte order  against 3^rd opposite party was set aside on application and thus filed   version.  But at the evidenced stage counsel reported no instruction for 3^rd Opposite Party.  3^rd Opposite Party was given opportunity again for appearance but he remained absent on the next posting date also and thus his name was called absent and set him ex parte.  2^nd and 3^rd Opposite Parties did not adduce any evidence.

Issue 1 to 3:

Admittedly Complainant is the purchaser of Auto Spiral Lathe Machine size 7 feet with electric motor manufactured by 2^nd Opposite Party.  The order was placed through 1^st Opposite Party.  1^st Opposite Party contented that the machine is purchased from 3^rd Opposite Party and not from 1^st Opposite Party.  His case is that he is a sub agent of the dealer, 3^rd Opposite Party M/s.Quality Machine & Spares.  3^rd Opposite Party contents that Complainant is not a consumer since the Complaint preferred is borne out of a transaction which is commercial in nature.  Lathe machine being purchased for the furniture workshop of Complainant which the source of his livelihood there is no meaning in saying that he is not a consumer raising the ground of commercial purpose on the one hand and on the other it is not applicable especially for the reason that the machine started showing complaint within few days of its purchase.  The Complainant’s case is that he has purchased from 1^st Opposite Party.   He has paid a sum of Rs.30,000/- ad advance to No.1 and obtained receipt No.124 dtd. 05.04.04. Moreover, he has remitted a sum of Rs.3,96,972/- to 1^st Opposite Party by way of pay order issued by the Catholic Syrian Bank Ltd., Kannur branch dtd. 25.06.04.   It was promised to deliver within one month but machinery was delivered only during September ’04.  There is manufacturing defect for the machinery.  Within a few days the machine started showing symptoms of complaint.  It was immediately informed to 1^st Opposite Party and authorized mechanic made some repair and started working but it became again faulty.  Repair was conducted several times but in vain and finally the machine stalled its functioning.  The mechanic deputed by No.1 visited the workshop on 09.07.05 but was unable to repair and at last disconnected the automatic system and it is just like an ordinary machine of its kind.  For an ordinary machine the market price is about Rs.1,00,000/-.  At last Complainant sent lawyer notice to 1^st Opposite Party calling upon to take back the machine and to return the purchase price with interest and compensation.

            1^st Opposite Party has contented that it is not correct to say that the machine showed is defective due to manufacturing defect and Opposite Parties are always ready to inspect the machinery and to get it repaired to set up the machinery alright.  It is pertinent to note that the defect occurred within the guarantee period.  The 1^st Opposite Party further contented that the machine had been worked perfectly for some moths and due to improper operation the electrical device of machine got developed some complaints.  Though 1^st Opposite Party defending the manufacturer Ext.A3 shows the defence is so weak. Ext.A3 sent by Jai Industries, the 2^rd Opposite Party admitted that their service engineer has observed that the control panel and the face plate has some problem which needs to be rectified at their end and requested to Complainant to send the control panel and face plate at their workshop in Ahammedabad so that the necessary repair could be done.  It is also admitted that they have given warranty of one year for their machines from the date of dispatch.

            It is to be noted that the reply notice Ext.A3 sent by 2^nd Opposite Party Jai Industries did not raise any sort of allegation against the Complainant in the case of handling/managing the machineries though the main contentions of 1^st Opposite Party remains that it is the defective e handling of the workers of the Complainant that caused defects to the machine.  Ext.A3 makes the contention of 1^st Opposite Party is baseless.  Ext.A2 reply sent by 1^st Opposite Party raised contention quite different from that of 2^nd Opposite Party.  While Opposite Party admits the defects and requesting the Complainant to send the machinery to their workshop at Ahammedabad, 1^st Opposite Party contended  that machine worked properly and defects developed due to handling by inexperienced hands.  There is no whisper about such a handling in Ext.A3.  They have admitted the fact that their service engineer attended the machine and observed that the control panel and the face plate has problem which needs to be rectified at their end.  This expert service engineer who was able to observe the defects did not make any comments with respect to the wrong handling.  It is quite clear that there is  no substance in the contention of 1^st Opposite Party.

            Moreover it cannot be ignored the fact that the defects started to play within a short period of its purchase.  Complainant started his workshop during March 2005.  Mechanic of 1^st Opposite Party repaired the machine again and again.  During the middle of June 2005 the machine stopped its functioning.  The mechanic deputed by 1^st Opposite Party visited the workshop on 09.07.2005 but failed to repair and at last disconnected the automatic system and naturally it is just like an ordinary machine.  Complainant is in need of automatic machine and not ordinary machine.  He spent huge money for an automatic machine.  If that become not possible such machinery cannot be placed for the purpose for which it has been brought and naturally that will spoil the entire endeavor of the Complainant.  

            Ext.C1 is the report filed by Sri.K.Gangadharan Nair, Assistant Professor in Mechanical Engineering Government College, Kannur, who has been appointed as an expert commissioner.  He has inspected the machine in dispute in  the presence of Complainant and 1^st Opposite Party.  Ext.C1 points out the following defects to the machine – Jai Brand Auto Spiral Lathe machine:

1. The chuck in the lathe is physically imperfect.
2. The chuck is having vibration and face out problem during operation.
3. The panel board of the automatic system is not in working condition.

Ext.C1 also undoubtedly makes it clear that the machine is defective.

            It can be seen that Complainant could not use the machine to earn an income since the machine became defective within a short period of its purchase.  There is no meaning in telling to repair the same after such a long period.  Hence we are of opinion that the Opposite Parties are liable to refund the purchase amount Rs.2,13,600/- taking back the faulty machine.  Ext.B5 proves that Complainant has availed a machinery loan.  Hence the Opposite Parties are also liable to pay interest @ 12% from the date of complaint.  It is quite natural that the Complainant might have suffered mental agony with respect to the loss of money and that of his failure in achieving the successful endeavor he has entered into.  Hence the Complainant is also entitled for an amount of Rs.25,000/- as compensation and Rs.1,000/- as cost of this proceedings.  The Opposite Parties are liable for jointly and severally.  The issues 1 to 3 are found in favour of Complainant and order passed accordingly.

            In the result, the complaint is allowed directing the Opposite Parties who are jointly and severally liable to pay Rs.2,13,600/- (Rupees two lakhs thirteen thousand and six hundred only) as the price of the machinery with interest at the rate of 12% from the date of filing the complaint together with Rs.25,000/- as compensation and Rs.1,000/- as cost of this proceedings within one month from the date of receipt of this order, failing which the Complainant is entitled to execute the order as per the provisions of Consumer Protection Act.

        Sd/-                                       Sd/-                           Sd/-

Member                                   Member                       President

APPENDIX

Exhibits for the complainant

A1.Copy of the lawyer notice sent to OP

A2.Reply Notice

A3.Letter dt.3.8.05 sent by OP

A4.Agreement

A5.Statement of account from 25.6.04 to 31.1.09

A6.Copy of the rate of interest issued by Catholic Syrian Bank, Kannur

Exhibits for the opposite parties

B1.Lawyer notice sent by complainant

B2. Copy of the reply notice

B3. & 4Copy of the order confirmation.

B5 to B7.Cash receipts dt.3.7.04 and 18.9.04

Exhibits for the court

C1.Commission report

Witness examined for the complainant

PW1.Rema

Witness examined for the opposite parties

DW1.Baburaj.K.K

                                                /forwarded by order/

                                                 Senior Superintendent

Consumer Disputes Redressal Forum, Kannur