C.F. CASE No. : CC/10/82
COMPLAINANT : Manik Ghosh
S/o Late Nityananda Ghosh
Vill. Tehatta Cinema Hall Para
P.O. + P.S. Tehatta, Dist. Nadia
OPPOSITE PARTIES/OPs: 1) Proprietor,
Biswas Enterprise,
Chapra High Scholl Road,
Vill. Chapra, P.S. Chapra
P.O. Bangaljhee, Dist. Nadia
2) Distributor,
Premisan Electronic Instrument Co.
H – 45, Udayan Nagar,
Delhi – 41
PRESENT : SHRI KANAILAL CHAKRABORTY PRESIDENT
: SMT SHIBANI BHATTACHARYA MEMBER
DATE OF DELIVERY
OF JUDGMENT : 16th September, 2011
: J U D G M E N T :
In brief, the case of the complainant is that he purchased one weighing machine from the OP No. 1 on 08.08.09 at a price of Rs. 16,000/- bearing model No. GTEP, capacity 500 KG, DE 509, SL No. 090612044 and DC No. 799682. It is his further case that since purchase the machine was not functioning properly as a result of which proper weight of article was not available. Rather it was 500gm less or excess at the time of weighing any article. The complainant is the owner of his hardware shop and it is his only source of income to lead his livelihood. Due to malfunctioning of the machine his customers complained to him regarding not having proper weight of any article. He at once put this problem before the OP No. 1 who sent his mechanic three times for repairing the machine but in vain. Finally, his mechanic intimated that the machine had inherent defect which was not curable. Thereafter on 19.06.10 he sent a letter to the OP No. 1 about the defect of the machine with a request to exchange it with a new one. On receipt of the same letter the OP No. 1 did not take any step. So having no other alternative he has filed this case praying for the reliefs as stated in the petition of complaint.
The OP No. 1, Biswas Enterprise has filed a written version in this case, inter alia, stating that the case is not maintainable in its present form and nature. It is also alleged that the complainant is not a consumer in the eye of law, as he used the machine for commercial purpose. There is no denial by him regarding purchase by the complainant at a price of Rs. 16,000/- from him. He has also stated about the warranty period of 12 months since the date of purchase. He also submits that as per warranty condition the complainant is to intimate about the defect of the machine within three days since the date of purchase. But the complainant intimated him after a long gap of purchase. Besides this, Controller of Metrology, West Bengal issued a certificate about the quality of the machine prior to purchase by the complainant. He has also stated that as per request of the complainant he sent mechanic three times to repair the machine. He also alleges that the complainant weighed iron rod more than 500kg due to which the machine became defective. If there is any discrepancy at the time of weighing any article by the machine, it is the duty of the complainant to examine the machine by a metrological inspector and on the basis of his report the complainant can file a case. But in the present case the complainant has not followed that rule. The manufacturer company has authorized this OP only to sell the machine not to repair it. It is the liability of the OP No. 2 to repair the machine after any defect occurs. In spite of that this OP No. 1 offered the complainant to deliver a new machine without any cost, at which the complainant was not ready. So he has no cause of action to file this case and the same is liable to be dismissed.
The OP No. 2 has filed a separate written version in this case, inter alia, stating that this case is not maintainable in its present form and nature. He also submits that the complainant is not a consumer in the eye of law as the machine was used by the complainant for commercial purpose. As per the terms and conditions of the warranty it is the duty of the complainant to intimate about the defect of the machine within three days which the complainant has not done. Besides this, the Metrology Department issued a certificate regarding the quality of the machine. As per warranty condition the machine may be repaired, but no new machine can be replaced nor price money can be refunded. The complainant remained silent till 19.06.10, though it is his contention that machine was not rendering proper service since inception. So the complainant has no cause of action to file this case and the same is liable to be dismissed against him.
POINTS FOR DECISION
Point No.1: Has the complainant any cause of action to file this case?
Point No.2: Is the complainant entitled to get the reliefs as prayed for?
DECISION WITH REASONS
Both the points are taken up together for discussion as they are interrelated and for the sake of convenience.
On a careful perusal of the petition of complaint along with the annexed documents and the written versions filed by the OPs it is available on record that admittedly this complainant purchased one weigh machine bearing model No. GTEP, capacity 500 KG, DE 509, SL No. 090612044 and DC No. 799682 on 08.08.09 from the OP No. 1 at a price of Rs. 16,000/-. It is the specific complaint of the petitioner that since purchase the machine was not giving proper service, rather it was defective due to which his customers complained for less or excess weight of any article which hampered his business. He, thereafter, moved before the OP No. 1 with a request to repair the machine and at per his request the OP sent mechanic three times to repair the machine, but the defect was not cured. There is no denial by the OP No. 1 regarding sending of mechanic by him three times to repair the machine. As the machine was defective and no service was provided by the OPs, so the complainant sent a letter to the OP No. 1 on 19.06.10 with a request to supply a new machine against this old defective one or to repay the purchase money. The OP No. 1 has stated in his written version that as per that request he sent one machine to the complainant without having any cover which the complainant declined to accept, who rather asked for delivering a new machine which was not possible for him to accept, because as per law after payment of vat and registration it was not possible for the OP to replace a new machine. But in the warranty condition there is no such condition that the weighing machine cannot be replaced in place of a defective one. On perusal of the petition of complaint and the written versions filed by OPs, it is clear to us that since inception of using the machine, it was not giving proper service due to which the OP No. 1 sent the mechanic three times to repair the machine till 19.06.10. After filing this case the complainant prayed for examination of the machine by the inspector of Legal Metrology which was allowed by the Forum. Mr. N.R. Das, Inspector of legal Metrology examined the machine and submitted his report before the Forum on 01.09.11 which speaks, “After re-verification and testing I noticed that the above mentioned machine is not in working condition, for this reason I rejected the machine. I issued a rejection certificate, this certificate of verification in original is in the custody of Sri Manik Ghosh, Tehatta. I attached a photocopy of the verification certificate with this intimation letter carrying V.C. No. GP 1596253 dtd. 01.09.11.” The copy of the detailed report of the inspector is also filed along with this letter which shows that the machine was rejected by him as the machine was not in working condition and so no test is possible by him.
So considering this report of the Inspector of Legal Metrology, it is available that at present the machine is not in working condition due to which he could not test the machine. So considering the pleadings of both the parties and the report of the mechanic it is clear to us that since very beginning the machine was defective for which it could not render proper service to the complainant who used it for weighing articles of his shop-room. It is the contention of the OPs that the complainant did not intimate about the defect of the machine within 3 days since the date of purchase as per condition of the warranty. It is not at all possible to intimate the company this defect of the machine within 3 days of purchase because after using it some time is required to test the proper functioning of the machine. But the fact is that within a short period since purchase the complainant reported the defect of the machine before the OP No. 1, who sent his mechanic three times to remove the defect. Besides this, the OP No. 1 was ready to supply a new machine to this complainant without having any cover which is not a legal procedure. Rather we hold that it is his duty to supply a new machine to the complainant in place of the old defective one which he did not do. Complainant by a letter dtd. 19.06.10 requested the OP No. 1 to supply a new machine in place of a defective one or to refund the purchase money which the OP No. 1 did not act. So we find that there is gross deficiency in service on the part of the OP No. 1, who practically admitted the defect of the machine sold by him.
Both the OPs have agitated in the written versions filed by them that the complainant is not a consumer in the eye of law as the machine was used for commercial purpose. The complainant used the machine for commercial purpose which is revealed from the recitals of the petition of complaint. But at the same time at ‘para-4’ of the petition of complaint, the complainant has categorically stated that he is the owner and employee of his shop-room and this shop-room is the only source of his income and livelihood to maintain his family. The petition of complaint is supported by an affidavit. Section 2(d)(ii) of the CP Act clearly speaks that “commercial purpose does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment.” In the instant case the complainant has categorically stated in the petition of complaint that he is the owner-cum-employee of his shop-room and this shop-room is the only source of his income to lead his livelihood also. There is no documentary or oral evidence adduced by the OPs to contradict this statement of the complainant. So considering this we hold that the complainant is a consumer in the eye of law.
In view of the above discussions our considered view is that the complainant is a consumer in the eye of law and he has become able to prove his case regarding the defect of his machine and the deficiency in service on the part of the OPs. Thus in result the case succeeds.
Hence,
Ordered,
That the case, CC/10/82 be and the same is decreed on contest against the OPs. The complainant is entitled to get Rs. 16,000/- as the price of the machine plus Rs. 3,000/- as compensation for the mental harassment caused to him along with litigation cost of Rs. 1,000/-, i.e., in total Rs. 20,000/-. The OP No. 1 & 2 are jointly and severally liable to pay the decretal amount to this complainant within a period of one month since this date of passing this judgment after taking back the old defective machine from the complainant, in default, the decretal amount will carry interest @10% per annum since this date till the date of realization of the full amount.
Let a copy of this judgment be delivered to the parties free of cost.
