Haryana

Ambala

CC/1/2018

Ikram Khan - Complainant(s)

Versus

Sodhi Trading Co. - Opp.Party(s)

Rohit

12 Mar 2019

ORDER

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA

 

 

                                                                      Complaint case no.        : 01 of 2018

                                                          Date of Institution         : 01.01.2018

                                                          Date of decision    :  12.03.2019

 

 

Ikram Khan son of Yasin Mohammad, resident of VPO Dhanana, Tehsil Naraingarh, District Ambala.

……. Complainant.

 

 

Sodhi Trading Co.(Regd.) building No.111, near Local Bus Stand, Sadar Bazar, Ambala Cantt. Through its Prop. Shri Maninder Singh Sodhi s/o Sh. Jaipal Singh Sodhi, r/o H.No.59-A, Gobind Nagar, Ambala Cantt. 

 

         ….…. Opposite Party.

 

Before:        Ms. Neena Sandhu,  President.

                    Ms. Ruby Sharma, Member.

Sh. Vinod Kumar Sharma, Member.

                  

                            

Present:       Sh. Puneet Sirpaul,  counsel for complainant.

Sh. Pawan K.Mundan, counsel for OP.

 

 

 Order:        Smt. Neena Sandhu, President.

Complainant has filed this compliant under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Party(hereinafter referred to as ‘Op’) praying for issuance of  following directions to it:-

1. Either to replace the machine of complainant with new machine of the same amount or to refund a sum of Rs. 2,00,000/-  along with interest 24 p.a. from the date of purchase till its realization. 
2. To pay Rs. 25,000/- for causing mental agony and physical harassment and financial loss.
3. To pay Rs. 11,000/- as litigations cost.

In nutshell, brief facts of the present complaint are that the OP purported  himself  to be the manufacturer  of Plastic  Molding Machines  having Zero defect and in the month of May,2016  allured  the complainant to purchase  a Semi Automatic plant Double Lever  Machine worth Rs. 2,00,000/-, to earn  handsome amount by running  the said machine and received a sum of Rs. 10000/- as an advance money  from the complainant. On 01.06.2016 on the persuasion of OP, the complainant  purchased the above said machine from him and apart from the costs of machine i.e. Rs.2,00,000/- the OP had charged Rs.19,000/- extra  as the costs  of raw material, as such the complainant had paid  a total sum of Rs. 2,19,000/-,  in cash,  to the OP for the above said machine and raw material, the OP did not issue any invoice/bill  to the complainant  at the time of selling but only issued receipt  of payment received by him. An agreement to this effect was also reduced in writing between complainant and OP on 01.06.2016 and it was signed by both of the parties. In the said agreement, the OP had given warranty of machine for five years and warranty of motor for one year.  After installation of the machine, the machine started malfunctioning due to some inherent manufacturing defect in the Nozzle of machine and thereafter, the complainant  made several  complaints  to the OP in this regard but inspite  of efforts made by it, to rectify  the defect, the same could not be removed  due to which the complainant has faced  great financial  hardships  as the huge investment  of the complainant in shape of machinery and raw material stands blocked  due to mal-functioning of the said defective machine supplied  by the OP. The OP from the very beginning supplied him a defective machine and further failed to rectify the defect inspite of his repeated requests. Thus, this act of supply of defective machine shows a great deficiency in service as well as unfair trade practice on the part of OP. He also served a legal notice registered AD dated 19.05.2017, upon the OP but OP has not taken any action in the matter. The complainant also reported the matter to the police of PS Ambala Cantt on 06.06.2017 but before the police, OP gave evasive statement, hence the present complaint.    

2.                 Upon notice, OP appeared through counsel and tendered written version raising preliminary objections qua complaint is not maintainable, not come with clean hands. On merits, it is stated that OP never allured  the complainant to purchase a semi automatic  plant double lever machine. The complainant  had approached  the OP to purchase  a machine  and being satisfied with the working  of the machine, in demo,  the complainant  agree to purchase  the machine and a proper agreement dated 01.06.2016 was entered into between  the complaint and the OP, whereby  the OP  has promised  to take the finished  goods from the complainant  and in exchange would give raw material and Rs. 0.80 paise  per piece  of the finished fan cap. It was also promised that the OP would take the finished goods in a good condition and would not take broken  and bad goods. The complainant had purchased the machine alongwith raw material of Rs. 19,000/- under a proper receipt issued by the OP. It is further submitted that the alleged amount of Rs. 2.00 lakh was never paid by the complainant which is evident from the receipt  issued by the OP and placed on record by the complainant. The complainant never made any complaint regarding any defect in the machine. It is also submitted that the complainant is not paying the balance amount of Rs. 1,49,000/- and causing  huge loss to the OP and  prayed that the complaint may be dismissed with cost.

3.                 To prove his version complainant tendered his affidavit as Annexure C/A along with documents as Annexure C-1 and C-5 and closed his evidence. On the other hand, Counsel for OP tendered affidavit as Annexure R/A and closed their evidence.

4.                 We have heard the learned counsel for the parties and carefully gone through the case file.

5.                The learned counsel for the complainant has argued that complainant purchased the machine in question worth Rs. 2,00,000/- from the OP. He  paid in total a sum of Rs. 2,19,000/- to the OP i.e. Rs.2,00,000/-, cost of the machine and Rs. 19,000/- for the cost of raw material in cash but the OP did not issue any invoice/bill  and agreement was executed between him and OP on 01.06.2016. As per agreement, machine was having warranty for 5 years and warranty for motor was of one year. The said machine got defective from the very beginning of its purchased. Despite many efforts made by mechanic of the OP, the defect(s) could not be removed which shows that machine had some inherent manufacturing defect. Therefore, the OP be directed to either to replace the same with new one or to refund the price thereof. On the contrary, the learned counsel for the OP has argued that in fact complainant has still to pay the balance amount of Rs. 1,49,000/-to OP. No doubt the OP has given warranty of five years for the machine and one year for the motor but the complainant never made any complaint regarding any defect in it. The allegation of the complainant that it has manufacturing defect is baseless. Therefore, the complaint filed by the complainant deserves dismissal.

The complainant in the complaint has stated that the machine in question has manufacturing defect and despite the repeated repairs the OP failed to set it right but in the complaint made to the Police Annexure C-3, the complainant has stated that the OP refused to rectify the defect(s). Whereas the stand of the OP is that the complainant has never complained about any defect in the machine in question. Facing with the situation where of the view that the onus is on the complainant to prove that the machine in question is having any manufacturing defect. But the complainant has not placed on record, report of some expert or any other document to prove that the machine in question has any inherent manufacturing defect. Thus, in the absence of any documentary evidence, we hold that complainant has failed to prove that there is any manufacturing defect in the machine in question. Thus, the prayer made for replacement of the machine in question or refund of the price thereof cannot be accepted. However, at the same time this fact cannot be ignored that the complainant is agitating the matter that the machine is not working properly from the very beginning of its purchase. From the agreement Annexure C-2, it is clear that the OP has given a five year warranty and one year warranty for motor. Since, the complainant has alleged that the machine in question was defective from the very beginning of its purchase, therefore, it is the bounded duty of the OP to set it right either by repairing or replacing the defective part(s), free of cost. It is pertinent to mention here that the OP cannot refuse to repair the machine of the complainant with this plea that the complainant still has to pay the remaining amount of cost of the machine. If any amount is due against the complainant then, OP can receive the same by adopting a proper procedure as per law. In this view of the matter, we hereby dispose of the present complaint with the direction to the complainant to approach the OP for rectification of the defect(s), if any, in the machine within 10 days from the date of receipt of certified copy of this order and thereafter the OP shall remove the defect(s), if any, either by repairing or replacing the defective part(s), free of cost, within 20 days. Certified copies of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on : 12.03.2019

 

 

 

 

          (Vinod Kumar Sharma)            (Ruby Sharma)    (Neena Sandhu)

                      Member                  Member              President