<br /> COMPLAINT FILED: 29.05.2008<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> <br /> 04th AUGUST 2008<br /> <br /> <br /> PRESENT :- SRI. A.M. BENNUR PRESIDENT<br /> SRI. SYED USMAN RAZVI MEMBER <br /> SMT. M. YASHODHAMMA MEMBER <br /> <br /> COMPLAINT NO.1213/2008<br /> <br /> <br /> COMPLAINANT Smt.Amala,<br /> Propreitroix,<br /> M/s.Genesis Engineering Works,<br /> No.59/1, Maheshwari nagar,<br /> 2nd Cross, Singenapalya,<br /> Mahadevapura Post,<br /> White Field Road,<br /> Bangalore – 560048.<br /> <br /> Advocate – Sri.B.S.Ravindra<br /> <br /> <br /> <br /> <br /> V/s.<br /> <br /> <br /> <br /> <br /> OPPOSITE PARTY M/s.Rajkot Machine Tools,<br /> No.591/A, <br /> Opp:Sathya’s Petrol Bunk,<br /> Dr.Rajkumar Road,<br /> Rajajinagar,<br /> Bangalore – 560 010.<br /> <br /> Advocate – Sri.T.Muniraju<br /> <br /> <br /> <br /> <br /> O R D E R<br /> <br /> <br /> This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction to the Opposite Party (herein after called as O.P) to replace the defective machine and pay a compensation of Rs.90,000/- and for such other relief’s on an allegations of deficiency in service. <br /> <br /> The brief averments, as could be seen from the contents of the complaint, are as under:<br /> <br /> Complainant in order to eke her lively hood engaged in manufacturing some product, in that regard she purchased Union Fly Presses from OP on 25.07.2007 for a sum of Rs.33,800/-. OP gave one year warranty. Complainant utilized the said machine nearly for about 5 months or so but in the month of February 2008 she noticed the crack in the machine. The repeated requests and demands made by the complainant to OP to rectify the said defect or replace or refund the cost of the machine went in vain. OP knowing fully well that there is an crack earlier to the sale some how concealed the same by applying metal paste on the crack and sold it to the complainant. There is an unfair trade practice on the part of the OP. Since February 2008 complainant kept the said machine idle, hence for no fault of her she is made to suffer both mental agony and financial loss that too to the tune of Rs.90,000/-. She even got issued the notice to OP to rectify the same but it went in vain. Thus complainant felt deficiency in service on the part of the OP. Under the circumstances she is advised to file this complaint and sought for the reliefs accordingly.<br /> <br /> 2. On appearance, OP filed the version denying all the allegations made by the complainant in toto. According to OP complainant has not approached the Forum with clean hands. When OP delivered the said machine the husband of the complainant who is experienced in the field of such kind of machines for the last 25 years examined it thoroughly checked it, inspected it then took the delivery. So the allegation of the complainant that there was a crack earlier to the sale is false. Complainant utilized the said machine for more than 7 – 8 months. The crack if any occurred is due to the over loading, bad handling, improper usage and management, for that OP can’t be blamed. There is no mechanical defect as such in the said machine. It is further contended that complainant purchased the said machine for a business purpose to accrue more benefit and profit. So she can’t claim herself as a ‘consumer’ because the said purchase is made for commercial use. The other allegations are false and frivolous. Complaint is devoid of merits. Among these grounds, OP prayed for the dismissal of the complaint.<br /> <br /> 3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced some documents. OP has also filed the affidavit evidence and produced the documents. Then the arguments were heard.<br /> <br /> 4. In view of the above said facts, the points now that arise for our consideration in this complaint are as under:<br /> <br /> Point No. 1 :- Whether the complainant has Proved <br /> the deficiency in service on the part of <br /> the OP?<br /> <br /> Point No. 2 :- If so, whether the complainant is <br /> entitled for the relief’s now claimed?<br /> <br /> Point No. 3 :- To what Order?<br /> <br /> <br /> <br /> 5. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:<br /> <br /> <br /> Point No.1:- In Negative<br /> Point No.2:- Negative<br /> Point No.3:- As per final Order.<br /> <br /> <br /> R E A S O N S<br /> <br /> 6. At the outset it is not at dispute that the complainant purchased one Union Fly Presses machine from OP for a valid consideration of Rs.33,800/- on 25.07.2007. The said machine carried one year warranty. According to the complainant she used the said machine nearly for 7 months or so without any problem. But in the month of February 2008 she noticed the crack in the machine. Due to the said crack she is unable to use the said machine for the purpose for which she purchased it. Immediately she brought the said defect to the notice of the OP and asked the OP to rectify the machine, replace the machine or refund the cost but it went in vain. So she felt deficiency in service on the part of the OP.<br /> <br /> 7. It is further contended by the complainant that prior to the sale of the said machine there was already a crack. OP with ulterior motive applied metal paste on the crack of the machine and sold it to her. Thus there is an unfair trade practice. According to the complainant her husband who is dealing with such a machine has got an experience of 25 years in the field of lathe machine and instrument like Union Fly Presses machine purchased by the complainant. He opined that there was a crack earlier to the sale. Unfortunately complainant has not got filed the affidavit of her husband to support her contention.<br /> <br /> 8. As against this it is contended by the OP that the husband of the complainant who has got 25 years of experience in the filed of lathe machine as well as the instrument on hand has thoroughly examined the said machine, inspected it, being satisfied with the quality, accepted the said machine and acknowledged the same. When OP has taken up such a specific defence, non examination of the husband of the complainant is fatal to the allegations set out by the complainant. If really there is such an inherent manufacturing defect, complainant would have got examined the said machine through an expert in the field. No such steps are taken. No expert opinion is produced so as to speak to the fact that there is an inherent manufacturing defect in the said machine.<br /> <br /> 9. Admittedly complainant used the said machine for more than 7 – 8 months. If there was a crack prior to the sale of the machine we don’t think in the ordinary course of time complainant would have used the machine for 7 – 8 months without any problem. So this is another circumstance which supports the defence of the OP that the said crack has occurred due to the over load, due to improper usage and management of the machine. On going through the photograph of the machine we don’t think in the ordinary course of time it will be handled by the complainant as claimed by her. Definitely it must have been managed by her husband and some other workers. Again no such corroborative evidence is filed.<br /> <br /> 10. We find there is a substance in the defence set out by the OP that complainant purchased the said machine for the commercial purpose though she says in order to eke her lively hood she has purchased the said machine. On the plain reading of the complaint it can be made out that for the business purpose, for accruing the profit for commercial purpose it is purchased by the complainant. So the contention of the OP that the present complainant doesn’t come under the purview of a ‘consumer’ holds force.<br /> <br /> 11. Any how having considered the facts and circumstances of the case we are of the opinion that complainant has utterly failed to prove the so called unfair trade practice, much less deficiency in service. There is no iota of evidence to show that the said machine had crack earlier to the sale or that the said crack is a inherent mechanical defect. On the other hand we do find force in the defence of the OP that the said crack occurred due to over loading, mis management and bad handling. Under such circumstances OP can’t be blamed for the said crack which occurred due to the negligence of the complainant. Hence complainant is not entitled for the relief claimed. Thereby we answer point Nos.1 & 2 in negative and proceed to pass the following: <br /> <br /> O R D E R<br /> <br /> The complaint is dismissed. In view of the nature of dispute no order as to costs.<br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 04th day of August 2008.) <br /> <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br /> <br /> <br /> Vln* <br /> <br /> <br />