BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.

                                                          Consumer Complaint no. 320 of 2016                                                               

                                                           Date of Institution         :          23.12.2016

                                                          Date of Decision   :          26.10.2017     

Raja Ram aged about 55 years son of Shri Hema Ram Meghwal, resident of 1, B.L.M. Tehsil Sri Vijay Nagar, District Sri Ganganagar (Rajasthan).

                      ……Complainant.

                   Versus.

Sheopat Ram son of Shri Devi Lal, caste Meghwal, resident of village Neemla, Tehsil Ellenabad, District Sirsa (Haryana), the proprietor Jagdamba Agroworks, near Railway Fatak, Hanumangarh Road, Ellenabad, District Sirsa (Haryana).

                                                                                      ...…Opposite party.

            Complaint under Section 12 of the Consumer Protection Act,1986.

Before:        SHRI R.L. AHUJA, PRESIDENT.

      SMT. RAJNI GOYAT, MEMBER.

                SHRI MOHINDER PAUL RATHEE, MEMBER.        

Present:       Sh. M.L. Bishnoi, Advocate for complainant.

     Opposite party exparte.

ORDER

          The case of the complainant in brief is that complainant is agriculturist by occupation and is wholly dependent upon the agricultural income in all respects. That opposite party is working for manufacturing of combine machine to be used for agricultural work in Ellenabad, District Sirsa under the name and style of Jagdamba Agroworks. The op by meeting with the villagers in village to village provides them combine machine. The op came to the house of complainant and assured him that he is a good mechanic of making combine and manufactures new machine of combine and sells it. The op had taken the total responsibility of the above said machine that in case any kind of defect develops in the machine he shall repair the same free of costs and in the event it is not repaired, he shall return the cost of the same to the complainant. The above said discussions and assurances were made in the presence of Satpal son of Khyali Ram, resident of Chak No.2 BLD and his brother Kashi Ram and other persons of the village were also present there. On 21.8.2013, the total amount of Rs.3,40,000/- i.e. the price of the said combine machine was fixed for making above said machine Sutta Thresher New Model with the op and out of which Rs.1,00,000/- was received in cash by the op and a receipt of which was issued by him. It was decided that the delivery of the above said machine to the complainant shall be given to him at his house on 25.8.2013. It is further averred that on 8.10.2013, the op brought the above said Sutta Machine at the residence of the complainant. The above said machine was to harvest the wheat, mustard, gram, gawar etc. grains from the fields. The complainant asked the op that he should start at first to harvest the grains through the above said machine and when it was operated, the machine started breaking the grains and net to sieve the grain was also broken on which the op took the net from the machine and brought it back after getting it welded from Chak 4 BLD and asked to fit the net and operate the machine and he shall later come and check the machine. At that time also, Satpal, Sahab Ram, Bhadar Ram, Kashi Ram and many other persons of the village were present. That the complainant fitted the net in the machine and operated this and was sieving the gawar crop but machine started breaking the grain and it was stopped. Thereafter, the complainant again contacted the op on which he came there and repaired the machine and started it but again the same defect developed in it. It is further averred that complainant several times called the op and op again and again repaired the said machine but every time it was doing malfunctioning and was not working properly upon which the complainant asked the op that he has sold a defective and cheap machine and asked him to take it back from him and to return his money to the complainant. The op brought another combine from chak 1 BLM and asked to sieve his crop from that combine machine and it was time of harvesting crop but the said machine was also defective one and went out of order. On complain to the op, he did not give any satisfactory reply because he had received the total amount and clearly stated that he has spent total money and cannot give anything and refused to return the amount of the said machine to the complainant. That the complainant brought the machine of his known Satpal and harvested his crops of gawar, wheat etc. It is further averred that complainant has suffered loss to the income and he got checked the machine from mechanics Pawan and Chet Ram and they told that the parts in the above said machine have been fitted of cheap quality and low standard which cannot be repaired in which there is manufacturing relating defect. It is further averred that complainant had filed a consumer complaint No.509/2014 before the District Consumer Disputes Redressal Forum at Sri Ganganagar (Rajasthan) which was accepted vide judgment dated 6.5.2015 and as per the order, the op was ordered to return the cost of the said machine alongwith interest and compensation etc. to the complainant. Thereafter, the op filed an appeal before the Hon’ble State Consumer Commission, Rajasthan at Jaipur which was accepted vide order dated 29.3.2016 on the ground of territorial jurisdiction  and complainant filed a revision petition no.2261 of 2016 against the order dated 29.3.2016 before the Hon’ble National Commission, New Delhi but the same was withdrawn with permission to file the complaint on same cause of action before the appropriate forum. Hence, this complaint. Alongwith the complaint, an application for condonation of delay in filing the present complaint was also filed which was condoned.

2.                On notice, opposite party appeared and filed reply submitting therein that the complaint is neither maintainable nor sustainable in the present form as there is no deficiency in service in the alleged combine harvester machine purchased by the complainant from the replying op, rather the fact remains that the complainant gaining the belief of the replying op purchased the combine harvester on credit basis as the total cost of the combine harvester is Rs.3,40,000/- and the complainant has paid only a sum of Rs.1,00,000/- and a sum of Rs.2,40,000/- still payable by the complainant which liability has been acknowledged by the complainant with specific date in the letter pad/ endorsement signed by the complainant. When the replying op raised demand of due amount, then the complainant firstly filed the false and frivolous complaint before the police at Sri Ganga Nagar but the complainant could not succeed there and when the op asked the complainant that in case of non payment of said amount, he would file a civil suit before the civil court at Ellenabad, then the complainant in order to over power the op has filed this false and frivolous complaint, hence the complaint of the complainant is not outcome of any consumer dispute rather the same is the outcome of clever tactics adopted by the complainant. It is further asserted that complaint does not cover the ingredients of Section 12 of the Act as the complainant has simply stated about non functioning of the machine but failed to annex any documentary proof that the machine is actually not working as no report of Expert mechanic in this regard has been placed on file and this shows that complaint has been filed only to put the undue pressure upon the op. While raising certain other preliminary objections regarding locus standi; cause of action and suppression of material facts, it is submitted that it is wrong to say that the machine was sold out to the complainant at his native village rather complainant of his own approached the answering op and out of his free consent and with pre-determined mind purchased the harvester machine. It is also wrong to say that when the machine was operated the machine was breaking the grains, rather the machine was thoroughly checked and operated by the complainant and the machine was quite OK and that’s why the complainant purchased the machine to his entire satisfaction and now the complainant just in order to avoid the payment of Rs.2,40,000/- has filed this false complaint. The machine was working very efficiently at the time of purchase and same is even quite OK. Remaining contents of complaint have also been denied.

3.                The complainant produced his affidavit Ex.C1 and opposite party produced his affidavit Ex.RW1/A.

4.                It is pertinent to mention here that on 23.10.2017 when the case was fixed for remaining evidence of op, if any, none appeared on behalf of op and therefore, op was proceeded against exparte.     

4.                We have heard learned counsel for the complainant and have perused the case file carefully.

5.                The perusal of the record reveals that complainant in order to prove his case has furnished his affidavit Ex.C1 in which he has reiterated all the averments made in the complaint. He has specifically deposed qua the purchase of the combine machine for a consideration of Rs.3,40,000/-. He has further deposed that the machine was suffering from some manufacturing defect and was not working properly and was not giving expected result of the harvesting crop. He approached many times to the opposite party for replacement of the machine or to return cost of the machine but to no effect. On the other hand, op has furnished his affidavit Ex.RW1/A and has reiterated the averments made in his reply. He has deposed that complainant has paid only an amount of Rs.1,00,000/- and remaining amount of Rs.2,40,000/- is still payable by the complainant which liability has been acknowledged by the complainant with specific date in the letter pad. He has further deposed that machine does not suffer from any manufacturing defect. The perusal of the record reveal that on 23.10.2017 when the case was fixed for remaining evidence of op, neither op nor counsel appeared as a result of which op was proceeded against exparte. Though, op has taken plea that only sum of Rs.1,00,000/- was paid by complainant while taking delivery of the machine in question and remaining amount of Rs.2,40,000/- is still payable by the complainant, but however, op has not led any evidence to this effect in order to prove his defence plea nor he has summoned any record in support of his pleadings qua the non payment of the remaining amount towards the cost of the machine.

6.                Though, the complainant has alleged in the complaint that machine is suffering from manufacturing defect and it is not working properly but however, the record reveal that complainant has not placed on record any expert opinion qua the manufacturing defect in order to prove the alleged manufacturing defect in the machine nor he has moved any such application to this Forum in order to get appointed an expert to ascertain the manufacturing defect in the machine. In these circumstances, it can not be presumed without expert opinion that machine is suffering from some manufacturing defect and needs total replacement. But, however, it is proved fact on record that complainant purchased machine which was not working properly due to some defect in the machine and it is legal obligation of the op to carry out necessary repairs and make machine in question defect free and to provide proper services to the complainant which op has not provided which clearly amounts to deficiency in service on the part of op.

7.                In view of the above, we allow this complaint and direct the opposite party to carry out necessary repair in the machine in question within 30 days from the date of production of machine for repair by the complainant even by replacement of the part of the machine, if any without cost and in case it is found by the experts of the op that machine is irreparable due to any manufacturing defect, in that situation the op is directed to replace the machine with new one of same make and model without any cost within further period of 15 days and further in case the machine of same make and model is not available, the op is directed to refund the cost of the machine within further period of 30 days, failing which the complainant will be entitled to interest @9% per annum from the date of order till actual payment. We also direct the op to pay a sum of Rs.5000/- as composite compensation and litigation expenses to the complainant. A copy of this order be supplied to the parties free of costs. File be consigned to the record room.

Announced in open Forum. Member          Member                  President,

Dated: 26.10.2017.                                                               District Consumer Disputes

                                                                                          Redressal Forum, Sirsa.