KERALA STATE CONSUMENR DISPUES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM APPEAL NO.955/03 JUDGMENT DATED.08.08.08 PRESENT:- SMT.VALSALA SARANGADHARAN : MEMBER SRI.M.V.VISWANANTHAN : JUDICIAL MEMBER Mr.Subramanyan, Managing Director, M/s.Equipment Agencies(Calicut), : APPELLANT 38, Kallai Road, Kozhikode. (By Adv.Parippally R.Raveendran) Vs 1. S.Girija Kumary, M/s.G.K.Industries, Kalluvathukkal.P.O., Kollam. : RESPONDENTS 2. Sing Engineering Works, C-2 Industrial Estate, Satpur – Nasik, Maharashtra (By Adv.Kallada P.Kunjumon) JUDGMENT SRI.M.V.VISWANATHAN : JUDICIAL MEMBER The above appeal is preferred from the order dated.08.10.03 of the CDRF, Kollam in OP.No.774/99. The complaint in the aforesaid original petition was filed by the first respondent as complainant against the appellant and the second respondent as opposite parties claiming replacement of the defective machinery namely metal crusher, in the alternative to refund the price of the metal crusher that is, Rs.4,46,176.50/- The claim was based on the deficiency in service on the part of the opposite parties 1 and 2 in supplying the defective metal crusher. The first opposite party entered appearance and filed the written version contending that there was no deficiency in service on their part and that the complainant is not a consumer coming within the ambit of the Consumer Protection Act. The second opposite party, the manufacturer remained absent. The forum below accepted the case of the complainant to some extent and thereby directed the first opposite party, the dealer/supplier of the machinery to pay the complainant Rs.1,62,000/- with interest at the rate of 9% per annum from the date of the order with further direction to pay Rs.10,000/- as compensation. No liability is fastened on the second opposite party manufacturer. Hence the present appeal is preferred by the first opposite party therein. 2. We heard the counsel for the appellant/first opposite party and the first respondent/complainant. The second respondent/second opposite party remained absent. The learned counsel for the appellant submitted his arguments based on the grounds urged in the memorandum of the present appeal. He also challenged the quantum of compensation of Rs.1,62,000/- ordered by the forum below and also the loss assessed by the expert commissioner in his C1 expert report. The appellant has also challenged the correctness of the order passed by the forum below in not fastening liability on the manufacturer/second opposite party. Thus, the appellant requested for setting aside the impugned order passed by the forum below. 3. On the other hand, the learned counsel for the first respondent/complainant supported the findings and conclusions of the forum below. He also relied on Ext.C1 report. It is also pointed out that no objection was filed by the opposite party to the C1 commission report and that the expert inspected the machinery in the presence of both the parties with due notice. Thereby, the first respondent/complainant requested for the dismissal of the present appeal. 4. The points that arise for consideration are:- 1.Whether the complainant can be considered as a consumer coming within the ambit of the Consumer Protection Act, 1986? 2.Is there occurred any deficiency in service on the part of the opposite parties in OP.No.774/99? 3.Is there any sustainable ground to interfere with the impugned order passed by the forum below in OP.No.774/99? 5. For the sake of convenience, the parties to this appeal will be referred to according to their status before the forum below in OP.No.774/99. 6. Point No:1 There is no dispute that the complainant purchased a metal crusher from the first opposite party on a total sale consideration of Rs.4,46,176.50/- and the same was installed on 8.10.98. It is covered Ext.P6 receipt issued by one K.V. Hussain, the service specialist. It would show that the errection was completed in October 1998. Ext.P2 and P5 invoice would also establish the fact that the sales of the machinery with accessories was completed by September 1998. Admittedly the aforesaid machinery namely metal crusher was having one year warranty. According to the complainant the warranty was provided from the date of delivery of the machinery. But according to the complainant the warranty was from the date of errection of the machinery. It can be seen that the entire machinery was supplied by September 1998. If that be so, the machinery had warranty up to September 1999. It is the case of the complainant that the machinery developed so many defects including the manufacturing defects during the warranty period itself. The aforesaid case of the complainant has been established by the proof affidavit and the supporting documents filed by the complainant. It is to be noted that the complainant has been examined as PW1 and Ext.P1 to P15 and C1 were marked on her side. Another important aspect to be noted is that the failure on the part of the opposite parties to cross examine the complainant who was examined as PW1. Thus, the evidence of PW1 and the averments in her proof affidavit would stand incontrovertible. It is also to be noted that no evidence was adduced by the opposite parties. Ext.P12 and P13 letters dated.12.7.99 and 18.2.99 would show that there were defects in the machinery during the warranty period itself. If that be so, the complainant who purchased the metal crusher for commercial purpose would come under the purview of the Consumer Protection Act and the complainant as purchaser of the machinery can be treated as a consumer coming within the ambit of the Consumer Protection Act. Unfortunately the forum below did not consider this aspect of the case put forward by the first opposite party. At any rate, it can be safely concluded that the complainant is a consumer coming within the ambit of the Consumer Protection Act. This point is found in favour of the complainant. 7. Points 2 and 3:- The proof affidavit filed by the complainant and the documents marked through the complainant (PW1) would establish the fact that the first opposite party supplied defective machinery to the complainant. Ext.P12 and P13 letters would also show that there was negligence on the part of the first opposite party in rendering service facility to the complainant as and when the service was required by the complainant. Ext.P12 and Ext.P13 letters would make it clear that the first opposite party being the dealer and supplier of the machinery failed to rectify the defects in the said machinery and neglected to render necessary and effective services to the complainant. There can be no doubt about the fact that there was deficiency in service on the part of the first opposite party, the dealer and supplier of the metal crusher. 8. Second opposite party is the manufacturer of the metal crusher. The second opposite party manufacturer remained absent through out the proceedings. The manufacturer has also neglected to appear before this appellate authority. Ext.C1 expert commission report would also establish that there was manufacturing defect in the machinery. So, the second opposite party being the manufacturer of the metal crusher is answerable and liable for supplying the defective machinery to the complainant through the first opposite party dealer. But, the forum below omitted to make the manufacturer also liable to pay compensation. So, this commission is of the view that the forum below committed an error in not fastening the liability on the second opposite party also. So, the impugned order passed by the forum below is modified to that effect. Thereby, the opposite parties 1 and 2 the supplier cum dealer and the manufacturer are made jointly and severally liable to pay compensation to the complainant. 9. Ext.C1 expert report would show that a total of Rs.1,62,000/- is required to cure the entire defects in the machinery including replacement of the defective parts. C1 report stands un challenged. Opposite parties have not filed any objection to the expert report. Moreover, the expert report was deputed by the forum below to note the condition of the machinery and also to assess the damage caused to the complainant including the cost for effecting the repairs or rectifying the defects. So, the expert commissioner is fully justified in assessing the cost for rectifying the defects including the manufacturing defects in the machinery namely, metal crusher. We do not find any ground to discard Ext.C1 expert report filed by the competent expert who was appointed by the forum below. 10. The forum below has directed the first opposite party to pay the aforesaid sum of Rs.1,62,000/- with interest @ 9% per annum. So, the aforesaid compensation of Rs.1,62,000/- is to be paid by the opposite parties 1 and 2 jointly and severally and the said amount would carry interest at 9% per annum from the date of the impugned order in OP.No.774/99. 11. The forum below has also awarded further sum of Rs.10,000/- as compensation to the complainant. We are of the view that the aforesaid compensation of Rs.10,000/- awarded by the forum below is unwarranted. The complainant is adequately compensated by awarding payment Rs.1,62,000/- with future interest at 9% per annum. So, that part of the order directing payment of Rs.10,000/- as general compensation is set aside. These points are answered accordingly. In the result the appeal is allowed partly. The impugned order dated.8.10.03 passed by the CDRF, Kollam in OP.No.774/99 is modified. Thereby the opposite parties 1 and 2 namely the dealer/supplier and the manufacturer are made jointly and severally liable to pay the compensation of Rs.1,62,000/- to the complainant with interest at 9% per annum from the date of the impugned order (8/10/03) till realization. The parties are directed to suffer their respective cost throughout. M.V.VISWANANTHAN : JUDICIAL MEMBER VALSALA SARANGADHARAN : MEMBER R.AV
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