Per Mr.P.N. Kashalkar, Hon’ble Presiding Judicial Member

          This consumer complaint has been filed by Mr.Vilas Sasane, resident of Shirdhon, Tal. Shirol, District Kolhapur against the Sales Manager, Charles Wilson Pualitej Machine Tools, Pune and Mr.Ajitsingh Chawla, Managing Director, Fort, Mumbai, alleging deficiency in service on their part.  According to the complainant, he had purchased two Lathe machines from opponents on 25/10/1991 vide Bill No.23438 for total consideration of `1,58,400/-.  As per terms of the sale, said machines carried guarantee of 18 months from the date of supply or 12 months from the date of commencement which was earlier, provided that defects were due to faulty workmanship or design.  The machines were commissioned by the opponents’ representative on 06/05/1992.  At the time of fitting of the machines by the representative of the opponents, it was noticed that two face plates, two back plates as well as an electric motor of the machines, three extremely vital components of the machines were not of proper quality.  Opponents had even replaced those parts on 06/05/1992, 09/05/1992 & 01/06/1992.  Thereafter, operation of the machines started, but the complainant found that they were of poor quality and broke down regularly.  Mechanic of the opponents was summoned from Pune or Mumbai.  Machines broke down in December 1992 and opponents were informed on 03/12/1992 that the spindles were loose and they were rectified by the Company’s representative.  Cone pully shaft was loose in the bore, which was replaced by them after material was given to them by the complainant.  The gears did not fit properly, the auto seal did not fit properly and they were required to be fitted by spanning.  There was no threading dial indicator parking to which opponents merely stated that it was proper.  There is no degree marking to the compound rest and gear guards, which are there to ensure safety of the operators.  Thus, defects were brought to the notice of Manager of the opponents.  Opponents asked the complainant to send Check Report, which was sent on 19/12/1992 and also the steps taken by the opponents to rectify the same.  Complainant pleaded that on 25/02/1993 when the machines were being operated, the machines stopped working all of a sudden.  Company sent representative on 03/03/1993, who just tightened the Allen Bolt of the spindle and left.  The machines again stopped functioning just four days later, but for 15 days nobody was sent by the Company.  Resultantly, complainant removed the spindle and found that there were a lot of abrasions on it, which was very shocking and surprising to the complainant.  The complainant, therefore, took the spindle of the lathe machine No.2 and gun metal bearings to the Pune Office of opponent for necessary action on 24/04/1993.  The complainant got the spindles of other lathe machine examined from M/s.Fuel Instruments and Engineers Pvt. Ltd. to know the exact cause of such wear and tear of such a critical part like spindle.  It was revealed that the part was not at all heat treated and therefore, hardness was very low.  According to the complainant, they have not been able to work on machines continuously since for fear of further damage to the machines.  The machines carried 18 months guarantee from the date of supply and 12 months guarantee from the date of commissioning.  The machines were purchased on 25/10/1991 and was commissioned on 06/05/1992 and machines faced umpteen number of problems and were useful for over all period of 6 months.  During the guarantee period, the complainant had reported this matter to opponents, but opponents wasted time in rectifying the defects.  The complainant pleaded that such guarantee period is absolutely of no use.  Complainant pleaded that each time when the problem was brought to the notice of opponents, they took their own time to send representative to rectify the error.  According to the complainant, it was only because of opponents having supplied sub-standard machines and avoided to provide after sales service to the complainant who is in miserable condition and is facing a lot of difficulties.  He had purchased machines by taking loan from the Sangli Bank of Ichalkaranji Branch.  He could not repay the loan because of faulty machines and ultimately, Bank filed civil suit against him and said civil suit has been decreed on 28/09/2000 by the Joint Civil Judge, Senior Division, Kolhapur.

          According to the complainant, he had filed consumer complaint in District Consumer Forum, Kolhapur being No.4/1993.  District Consumer Forum was pleased to pass a judgement and award on 26/12/1994 directing opponents to carry out repairs of the machines within two months, but no replacement or compensation was allowed.  Against the order passed by District Consumer Forum, opponents preferred an appeal before the State Consumer Commission, Mumbai denying the liability to carry out the repairs.  The State Consumer Commission, Mumbai heard the appeal and directed the opponents at the interim stage to submit report of repairs to the machines.  The Engineer of the opponents accordingly prepared report and submitted to the State Consumer Commission.  The State Consumer Commission directed the opponents to repair the machines within two months by sending machines to Rajkot for the repairs. Accordingly, State Consumer Commission, Mumbai passed the order in appeal Nos.68/1995, 305/1995 & 488/1995.  Complainant pleaded that as per the directions of the State Consumer Commission, machines are repaired at Rajkot.  Complainant gave certificate of good condition at Rajkot and thereafter, he brought machines to Kolhapur but, grievance of the complainant is that in spite of machines being repaired, it was not commissioned till today and for lack of commissioning of the machines, complainant suffered heavy loss.  The complainant pleaded that being aggrieved by the judgement and award dated 26/12/1994 complainant preferred appeal before the State Consumer Commission at Mumbai and this Commission was pleased to pass order directing the complainant to approach the appropriate Forum for considering of his complaint.  Exhibit-E is the copy of said order.  Thereafter, complainant filed consumer complaint No.669/1999 in the District Consumer Forum, South Mumbai and claimed compensation of more than `10 Lakhs.  The complainant thereafter moved an application on 13/10/2000 seeking permission to withdraw the complaint with liberty to approach the appropriate Forum with appropriate reliefs.  Accordingly, on 13/10/2000 vide copy Exhibit-F, complainant was allowed to withdraw the complaint by order passed by District Consumer Forum, South Mumbai.  The complainant was directed to approach the appropriate Forum within two months from 13/10/2000.  Complainant thereafter filed the present consumer complaint claiming compensation of `10,50,000/- from the opponents.  Complainant pleaded that he is suffering loss till date and therefore, complaint as filed is within limitation.

          Opponents filed written version and pleaded that complaint filed by the complainant is absolutely false, frivolous, malafide and should be dismissed with compensatory costs.  Opponents further pleaded that complaint is absolutely barred by limitation and also barred by principle of estoppal and should be dismissed in limine.  Opponents denied that they have supplied defective machines to the complainant.  According to the opponents, these machines were operated by the complainant with the help of unskilled persons and without laying foundation.  Complainant was aware and knew that the parts were going to be heat treated.  They denied that they were not giving service to the complainant for rectifying the defects.  They admitted that the complainant had filed an application before the District Consumer Forum and then the matter was taken up to the State Consumer Commission.  The State Consumer Commission had given directions in the pending appeal that the machines should be sent to Rajkot to carry out repairs.  Opponents accordingly carried out repairs to those machines, trials were carried out by the complainant.  On 17/08/1998 complainant issued a certificate wherein he stated that he had inspected the machines thoroughly and taken trial of both machines and certified that the machines were Okay in all respects.  It was running in good condition at Rajkot and further recorded that he had no complaint as regards quality and condition of the said machines.  In the said letter dated 17/08/1998 complainant further recorded that he would not complain before any Court about the machines supplied.  According to the opponents, said letter operates as estoppal to the complainant from contending that machines were not functioning or there was any deficiency in service.  Opponents pleaded that they were not aware that in spite of machines having been repaired, machines were not commissioned till date.  Opponents pleaded that they were not also responsible if the complainant had not commissioned the machines till date.  Opponents pleaded that they were not responsible for the loss suffered by the complainant for non-commissioning of said machines.  According to the opponents, since positive statement has been made in the certificate dated 17/08/1998, there is no cause of action surviving in favour of the complainant.  They denied that complainant is entitled to get `10 Lakhs or more for the loss sustained by the complainant.  Opponents pleaded that the complainant is not entitled to get any compensation and complaint should be dismissed with cost. 

          Complainant filed affidavit in rejoinder and disputed contentions raised by the opponents. 

          We heard submissions of Mr.A.A. Garg, Advocate for the complainant and Mr.B.G. Wadhawa, Advocate for the opponents.

          Only point that arises in this complaint is whether complainant is entitled to file consumer complaint when he had issued certificate in favour of opponents that the lathe machines were properly repaired and on trial, lathe machines were found running properly and he had no complaint against the opponents.

          We are of the view that the consumer complaint as filed in this Commission by the complainant is appearing to be frivolous litigation initiated by the complainant.  It appears that complainant is in the habit of filing consumer complaints or appeals, etc. against the same parties.  Initially, he had filed consumer complaint in the District Consumer Forum, Kolhapur.  District Consumer Forum, Kolhapur allowed the complaint No.04/1993 by passing order on 26/12/1994.  Opponents were directed to carry out repairs to the machines as per warranty within two months.  Aggrieved by the said judgement, opponents as well as complainant preferred appeals.  Complainant’s appeal was Appeal Nos.488 & 305/1995 and opponents’ appeal was Appeal No.68/1995.  The appeal of the opponents was allowed and complainant’s appeals were dismissed and complainant was permitted to approach the appropriate Forum for consideration of his complaint.  So, the award passed by the District Consumer Forum, was quashed in these appeals and appeals filed by the complainant for the reliefs not granted were also dismissed and complainant was simply directed to approach appropriate Forum for consideration of his complaint.  Thereafter, complainant filed consumer complaint No.669/1999 in the District Consumer Forum, South Mumbai.  Complainant withdrew that complaint since he sought withdrawal by filing application to file consumer complaint in another Forum (i.e. State Consumer Commission).  So, permission was granted by the District Consumer Forum, South Mumbai to withdraw the complaint No.669/1999 by order dated 13/10/2000 and within two months he was supposed to file consumer complaint.  It is thereafter on 08/11/2000 this consumer complaint came to be filed before this State Commission.  However, it is the grievance of the complainant that there has been deficiency in service on the part of opponents.  Opponents placed on record a letter written by the complainant who is proprietor of Ratnadeep Engineers and Steel Fabricators and addressed to M/s.Quality Machine Tools, Fort, Mumbai, wherein he had mentioned that –

“We have inspected both the machines thoroughly and taken the trial of both the machines.  We hereby certify that machines are O.K. in all respects.  We have carried out trials of both the machines in running condition at Shreerang Engineers, Rajkot, Gujarat.  Hence, we don’t have any complaint as far as quality & functioning of these machines is concerned.  Also we assure you that we will not complain in any court about the machines supplied by you.”

This letter is the proving death nail to the complainant in question.  This letter was given on 17/08/1998 and complaint is filed on 08/11/2000.  This letter was suppressed by the complainant.  So, it appears that the complainant has not approached this Commission with clean hands.  It is nowhere mentioned by the complainant that after the lathe machines were repaired on 17/08/1998 and complainant certified that the machines were okay in all respects, it was the duty of the opponents to bring those machines back to complainant’s premises and to re-commission them.  In that respect, the letter on record produced by the opponents dated 08/08/1998 clearly stipulated that the machines were repaired at Rajkot as per the directions given by the Hon’ble State Consumer Commission and complainant was satisfied with the working of the said machines and said Shrirang Enterprises, Rajkot called upon the complainant to issue certificate to that effect, but the complainant avoiding to issue such certificate.  It was further mentioned in that letter sent by the registered post to the complainant dated 08/08/1998 that as per the mutual understanding/arrangement of loading and unloading and transport from Rajkot to complainant’s workshop was to be at his cost.  Thus, it was the duty of the complainant to take back those lathe machines from Rajkot to his own place of workshop and it appears that there was further correspondence between the parties that those lathe machines were when brought back were again having defects in the functioning.

          We are of the view that when it was the complainant who had given satisfaction certificate about the proper repairing of the machines by going to Rajkot and after full inspection, it cannot lie in the mouth of complainant to say that when these machines were brought back to complainant’s premises, they were again found to be defective.  No evidence has been adduced by the complainant to substantiate that claim.  In this view of the matter, we are of the view that the complainant has filed false case because he had incurred expenses of taking those lathe machines to Rajkot at the manufacturer’s premises and of bringing back those machines to his own place of workshop.  From the rejoinder of the complainant, it is pertinent to note that after reading written version filed by the opponents, complainant in para 9 categorically mentioned that “it is true that the complainant issued a certificate on 17/08/1998, but it was stated in the said certificate that machines are Okay in all respects at Shreerang Engineers at Rajkot, Gujarat, but he mentioned in that para further that the grievance of the complainant is that in spite of machines being repaired, it was not commissioned till filing of the complaint and because of non-functioning of the machines, complainant has suffered huge loss”.  Once machines are repaired and made defects free, it is the duty of the complainant himself to get commissioned the said lathe machines or seek further help from the opponents for commissioning the same.  No such prayer was made at any time by the complainant before he filed consumer complaint in this Commission.  It appears that the complainant was prompted to file this consumer complaint in the year 2000 after Sangli Bank had obtained decree against the complainant by filing Special Civil Suit No.170/1999.  In any view of the matter, we are finding that the complainant has failed to establish that opponents had rendered defective service or they were guilty of deficiency in service or they were guilty of supplying defective lathe machines as alleged by the complainant.  We are therefore finding that there is no substance in the complaint filed by the complainant.  Hence, we pass the following order :-

                   -: ORDER :-

1.       Complaint stands dismissed.

2.       Parties are left to bear their own costs.

3.       Copies of the order be furnished to the parties.