2.       Complainant is doing work of engineering, fabrication and also job work at Ahmednagar.  Complainant purchased two special purpose machines for the aforesaid work from the opponent namely M/s Trimurti Engineers of Kolhapur for a total consideration of Rs.16,02,000/-.  Complainant had initially placed an order with the said opponent for said two machines on 26.2.2010 by submitting quotation.  After great persuasion also as stated in the complaint in several words, the opponent did not provide the said two machines as per their design.  On 28.8.2010  the opponent intimated the complainant about change of the machine design.  Having no other option, complainant accepted the same change in machine design.  Thereafter also the opponent did not supply said two machines to the complainant inspite of making further great persuasion by the complainant from time to time.  Lastly, the opponent supplied one machine on 6.1.2011 and second machine on 15.1.2011 to the complainant.  After installation of both the said machines, it was found that the said machines were not working as per expectation.  Therefore one of the representative of opponent namely Mr.Suhas carried out their repairs.  Thereafter also tool holders of that machine started breaking down during operation. Hence the job work of complainant used to be stopped from time to time.  In all 6 tool holders and 50 inserts  broke down and therefore they had to be replaced at the expenses which were incurred by the complainant.  Due to non-working of said two machines the goods delivered to the complainant for job works were required to be returned to the respective customers.  The complainant gave intimation of breaking down of those machines from time to time to the opponent.  The appellant  took no proper steps for smooth working of both these machines.  The opponent also did not provide chip conveyors along with machines as per agreement to the complainant. The complainant suffered  loss of Rs.1,50,000/- per month due to non-working of those machines. Therefore there is deficiency in service provided by the opponent to the complainant.  Complainant accordingly claimed refund of Rs.16,02,000/- from opponent towards price of the said two machines, Rs.9,25,411/- towards loss of profit due to returning of the goods without doing job work, price of replaced six tool holders and fifty inserts, expenses incurred by complainant for phone, fax, communication, stay and traveling while persuading opponent to carry out the proper repairs of machines  and doing needful and towards loss sustained by complainant during five months due to non-working of the said two machines.  Complainant also claimed compensation of Rs.10,000/- towards physical and mental harassment and Rs.5000/- towards cost of the complaint. 

3.       Notices were issued by this Commission to the opponent by Speed Post A.D.  The acknowledgement about service of that notice signed by opponent is placed on record.  It shows that the opponent has been duly served with the notice of this Commission. The opponent did not appear before this Commission inspite of service of notice.  Therefore Commission has passed order on 19.1.2012 to proceed exparte against the opponent. The complaint was then adjourned for adducing evidence by the complainant.

4.       Complainant filed three affidavits by way of evidence and produced documents to prove the deficiency in service provided by the opponent to it. Advocate of complainant filed written notes of argument after closing the evidence of complainant.  The said written notes of argument taken on record on 8.2.2012. 

5.       We have perused the aforesaid affidavits and documents produced by complainant before this Commission.  We have also considered the submission made by the complainant in written notes of argument.  Following issues arise for our consideration.  We have also recorded our findings against them for the reasons given next thereunder.

Sr.No.         ISSUES                                                       FINDINGS

1.                Whether complainant has proved that

                   it is a consumer as per defined

                   under section 2(1)(d)(ii) of Consumer

Protection Act?                                                     …Yes.

2.                Whether complainant has proved that there is

                   deficiency in service provided to it by opponent? …Yes.

3.                Whether complainant is entitled to the

                   relief sought for?                                        …As per final                                                                                              order.

                                      R  E  A  S  O  N  S

As to all issues:

6.       The advocate of complainant in her written notes of argument has reiterated in brief the case of complainant which is put forth above.  She  further submitted that from the evidence adduced by the complainant, it has proved the allegations made in the complaint and therefore complainant is entitled to amount claimed in the complaint.

7.       We have found as above that despite service of notice opponent has not appeared before this Commission.  Ashok Malikarjun Kore and Amol Ashok Kore in their respective affidavits have specifically stated that they are doing aforesaid job work and work of engineering and fabrication for earning their livelihood by means of self-employment. There is also averment in complaint to that effect.  Said pleadings and evidence of the complainant went unchallenged.  Therefore considering the facts and circumstances of the present case we are inclined to rely on the same and thus we hold that complainant is a consumer as defined U/s 2(1)(d)(ii) of Consumer Protection Act. 

8.       Complaint is filed by Manakoj Engineer and Fabricator through it`s proprietor Ashok Malikarjun Kore who filed one of the aforesaid affidavit making the same allegations as made by him in aforesaid complaint. Moreover his son Amol Ashok Kore reiterated in his affidavit all those allegations which are made in the aforesaid complaint.  In short, it is alleged by them that they had purchased two special purpose machines from the opponent for a total consideration of Rs.16,02,000/- and said huge amount was paid by way of two cheques to the opponent.  But opponent supplied both the said machines belated to them.  They also alleged that those two machines, could not work properly and during their operation there was breakage of six tool holders and 50 inserts i.e. material parts of both said machines.  They also alleged that though intimation of non-working of those two machines was given from time to time to the opponent, it`s representative namely Suhas came only on two  times but he did not carry out proper repairs of those machines.  They also alleged that the opponent avoided to remove the defects of those machines though several communications were made to opponent by from time to time to it.  Therefore complainant incurred huge loss.

9.       Complainant has claimed compensation as follows.

i)        Towards goods returned without job work

to customers Indian Simless Company                -   Rs.46,793.00

ii)       Towards six tools holders breakage                      -   Rs.44,112.00

iii)      50 inserts breakage goods                                    -   Rs.34,505.00

iv)      Towards phone, fax, stay, travel expenses.           -   Rs.50,000.00

v)       Towards loss sustained for five months

          due to non-working of the machines                    -   Rs.7,50,000.00

-                                                                  Total :          -   Rs.9,25,410.00

vi)      Complainant further  claimed Rs.16,02,000/- towards the price of both the said machines.

10.     As regards first count about returning of the goods by the complainant without doing job work, complainant has produced two challans/invoice numbers 106 dated 1.2.2011 and 61 dated 9.3.2011 at page 32 & 33 respectively on record of this complaint.  In view of said challans/invoice we hold that complainant is entitled to get amount Rs.46,793/- towards loss sustained by him due to returning of the goods without doing job work, to it`s customer.  

11.     As regards second and third counts about break down and replacement of six tools and fifty inserts during operation of those two machines, complainant has produced nine bills dated 14.2.2011, 18.2.2011, 21.2.2011, 28.2.2011, 27.3.2011, 10.2.2011, 21.2.2011, 31.3.2011 & 26.2.2011 which are at page No.35 to 42 respectively of the record of this complaint. They show that complainant incurred total expenses of Rs.44,112.25 & Rs.34,505.45, respectively for replacing six tool holders and 50 inserts.  Therefore complainant is entitled for the said amounts towards price of said tool holders and inserts.

12.     As regards forth count about expenses incurred by complainant towards phone, fax, stay and traveling amounting to Rs.50,000/-, complainant produced no documents.  Therefore in absence of documents, we hold that complainant is not entitled to the said amount of Rs.50,000/-. 

13.     As regards fifth count about loss sustained by complainant to the extent of Rs.7,50,000/- as claimed by it, there is no document showing as to how the said amount of Rs.7,50,000/- is assessed by the complainant.  In the complaint as well  in the affidavits of aforesaid two witnesses it is vaguely stated that there is loss of Rs.1,50,000/- per month due to non-functioning of the machines.  There is no document showing that work of the complainant was totally stopped during the period of five months as claimed by the complainant. In the absence of any such document and cogent evidence about totally non-working of said two machines, we are not inclined to rely on aforesaid two affidavits of Ashok Malikarjun Kore and his son Amol Ashok Kore.  Moreover there is no evidence-affidavit of independent witness in support of the case of complainant about loss of Rs.7,50,000/- sustained due to complete non-functioning of the said two machines for five months. In the absence of any such affidavit of independent witness we are not inclined to grant compensation of Rs.7,50,000/- to the complainant on that count.  Reasonable inference can be drawn that as there was breakage of six tools and fifty inserts during operation of said two machines, complainant must have sustained some loss.  Therefore considering nature of job work and other facts and circumstances of the present case we are inclined to grant lump-sum compensation of Rs.50,000/- to the complainant on the aforesaid fifth count.

14.     As regards sixth count about refund of Rs.16,02,000/- towards price of two machines complainant has relied upon the affidavit of Vijay Chandrashekhar Bhogaonkar and his opinion in writing dated 16.5.2011 to establish that the said two machines purchased by them from opponent cannot serve the purpose for which they were purchased and supplied for.  The aforesaid witness Shri.Vijay Bhogaonkar stated in his affidavit that he is having required qualification and he is well conversant with the parting and machining activities of bearing rings. He visited to the workshop of complainant on 12.5.2011 and in his presence Shri.Ashok Kore the proprietor,  operated the said two machines.  Those two machines could not work properly and housing of the said machines got tremendously hot.  Therefore said machines were to be stopped by switching them off.  He also stated in his said affidavit that he  inspected the broken and damaged tool holders and inserts and he also examined the drawing of the said two machines.  However he further observed that prima-facie it appears that the concept of supplied machines is entirely different than the drawing.  He also observed that Shri.Kore did not have the conceptual drawing of the present machines supplied to him.

15.     The complainants case is that it had agreed to purchase machines of changed designed as suggested by opponent.  Moreover, in our view when no compensation is claimed by the complainant on account of supplying different machines than drawing of machine and when it is only prima-facie view of Shri.Vijay Bhogaonkar, his said opinion about change of design carries no weightage.

16.     Moreover Shri.Vijay Bhogaonkar also observed that machines have manufacturing defects, as result of which, there is tool holder and insert breakage and the machines got tremendously hot. He also stated in his affidavit that Shri.Kore did not open the machine and unless and until the machines, particularly cutting mechanisms are completely open, it is not possible to comment on changed design but as per knowledge and experience he assured that those machines cannot be served purpose they were supplied for.

 17.    It is evident from the said affidavit that both machines were not completely opened in presence of Shri.Vijay Bhogaonkar. Without opening the said machines and inspecting the internal parts of the machine, opinion given by him cannot be said to be reliable piece of evidence.  It is not known as to how said witness Shri.Vijay Bhogaonkar has come to the conclusion that these two machines are having manufacturing defect and they cannot serve the purpose for which they have been purchased and supplied for.  It is also not specific affidavit and opinion of said witness that those two machines cannot be operated as designed.  It is also not stated in his affidavit that those machines automatically stopped their functioning during operation. It is also not specific case of the complainant in the complaint that these two machines cannot be operated any more due to manufacturing defects. It is also nowhere stated in the complaint or in any aforesaid affidavits as to what are actual manufacturing defects in those two machines. In the absence of any cogent evidence to prove that those machines have got any manufacturing defects, we hold that complainant is not entitled to refund their price of Rs.16,02,000/- as claimed in the complaint. 

18.     However as observed that complainant is entitled to recover compensation on aforesaid heads at Sr.Nos. I, II, III, IV & V respectively as   Rs.46,793 + 44,112 + 34,505 + 50,000/- = total Rs.1,75,410/- Say 1,75,500/-.  We also find that besides the compensation as observed above, complainant is also entitled to compensation of Rs.10,000/- towards mental harassment and Rs.5000/- towards cost of the complaint, since opponent did not supply those two machines within reasonable time after receiving their price of Rs.16,02,000/- and did not carry out the repairs promptly as desired.  Accordingly there is deficiency in service provided by the opponent to complainant.  Thus we decide the aforesaid issue No.1 & 2 in affirmative and proceeded to pass the following order.

                                                 O   R    D    E     R

1.                 Complaint is partly allowed.

2.                 Opponent shall pay to the complainant compensation of Rs.1,75,500/- (Rs.One lakh seventy five thousand and five hundred only) towards the loss sustained by the complainant within one month from the date of this order. In case of default the said compensation shall carry interest @ 6% p.a. from the date of this complaint i.e. 3.8.2011 till it`s realization.

3.                 Opponent shall also pay to the complainant compensation of Rs.10,000/- towards physical and mental harassment and Rs.5000/- towards cost of complaint.

4.                 Copies of the order be sent to both the parties.

Pronounced on 14.09.2012.

Mane