Karnataka

Bidar

CC/75/2015

Syed Galib Hashmi - Complainant(s)

Versus

Sri Mrutunjaya Shettar Sales Manager - Opp.Party(s)

P.M.Deshpande

31 Mar 2017

ORDER

::BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT BIDAR::

 

 

                                                                                                         C.C.No. 75/2015

 

                                                                                           Date of filing: 16/10/2015

 

                                                                                       Date of disposal : 31/03/2017

 

P R E S E N T:-              (1) Shri. Jagannath Prasad Udgata,

                                                                                         B.A., LL.B

                                                                                                       President.

    

                                         (2) Shri. Shankrappa  (Halipurgi),

                                                                      B.A.LL.B.

                                                                                  Member

 

                                   

               

COMPLAINANT:              Syed Galib Hashimi,

                                           Age:  Major, Occ: Self Employment,

                                        R/o C/o G.H.Emission, Idga Complex,

       Opp: New Bus stand,Bidar. 

 

                                       (By Shri. P.M. Deshpande, Advocate)

 

 

                                                      VERSUS

 

OPPONENT/S   :-          1.   Sri. Mrutunjay Shettar,

                                                Sales Manager,C-22, Industrial Estate,

                                             Thattanchavady Pandicherry-605009.  

 

                                          2.   Ramesh, Sales Manager

                                                (for Bidar District) no.24, 2^nd Floor,

                                               Kota complex, Opp.Hotel Mayura,

                                                 J.C. road,Banglaore-560 002.

 

 

 

                                       3.   Syed Ajin Ahmed,

                                             Manatec, No.24, 2^nd floor, Kota complex,  

                                             Opp. Hotel Mayura,

                                             J.C. road, Bangalore-560 002.

 

                                       4.   Manager,

                                             IDBI Bank Ltd., 8-9-265/314 Plot no.1,        

                                             Padmakuj Complex, Udgir road,

                                             Bidar-585401.                                       

                                                             

 

                                           (O.Ps.no.1,& 2 By Shri.Mathpathi S.Adv.)         

                                           (O.P.no. 3 & 4 – Exparte)

 

 

 

 

 

 

::   J U D G M E N T  : :

 

 

 

By Shri. Jagannath Prasad Udgata, President.

 

    The complainant has filed the complaint u/s.12 of the C.P.Act, 1986, alleging  deficiency of service in the part of the O.Ps.  The origin and genesis of the case is as follows:

2.            The complainant is native of Bidar district.   He  had Small Scale Industry (SSI) unit of G.H Emission in Bidar.  The complainant was earning for his livelihood from the said unit, except this unit the complainant had no source of income.  The complainant had purchased two machines of ECO (Pollution) namely Petrol Machine (Petrol Smoke Eco Gas 100) MC SL. No.FG1000123 and another Diesel Machine (Diesel smoke Eco smoke) each costing Rs. 15,832/- both the machines purchased on dated: 11/07/2014 from the O.P.no.2.  The complainant has also paid other charges for the additional equipments required for installing the machines in the rented premises.  The rent charges for the equipment and other deposits were paid to the premises owner.

3.                   The complainant further avers that, after receiving the machines they were  found   defective and   were not properly functioning despite   installing properly and the machines were totally functionless and it was notified to the O.P.no.1, 2 & 3.  Thereafter a gap of 3-4 months, one official of the O.Ps’ visited the complainant and he had observed material malfunctioning and he had advised the complainant the said machines to carry to Hubli for repairs and the transportation  charges had to be paid by the complainant.    The complainant had transported the said machines to carry out the repairs, but, O.Ps neither   repaired it nor rectified the defects.  It clearly shows that, there was inherent defect in manufacture and it was seen that it was not repairable.  The complainant had represented  to the O.Ps on several occasions and the complainant had issued legal notice, but no proper response was ever  given by the O.Ps.  Due to the defective machines provided by the O.Ps, the complainant suffered financially and mentally.   The complainant was compelled to pay the regular rent to the owner for the rented premises.  The rent to the extent of Rs.24,000/- for one year was paid by the complainant and electricity charges were paid separately.  As well as some accessories brought by the complainant required for the machines installation and for which extra charges were paid by the complainant to the extent of Rs.3,00,000/-.  The complainant had sustained loss to the extent of Rs.3,75,000/-.   Apart from due to heavy tensions and mental worries, the complainant had got skin disease, the same is called as psoriasis.  The said disease is attached to the complainant for whole life, and it would not be curable permanently for which, simultaneous treatment  has started in the hospital at Hyderabad for which, the complainant had spent huge money to the extent of Rs.4,00,000/- .  Hence, the complainant filed the complaint before this Forum claiming compensation against the O.Ps.

 

4.                The O.P no.3 and 4 in spite of service of the Court’s notices  have failed to attend before this Forum hence, the O.P.no.3 & 4  were placed exparte.  The O.P.no. 1 and 2 have appeared through their advocate and filed written version.  Therein it is  claimed the complaint has been filed by the complainant is false and frivolous  and  misconceived, bad in law and not maintainable.   
The complainant is not a Consumer as defined under section 2(d) of the Consumer Protection Act.  The complainant has purchased the said ECO pollution machine for commercial purpose.    The C.P.Act categorically excludes the person purchasing the goods for commercial purpose from the purview, scope and ambit of the Act.  The very purpose of the Act, is to protect the interest of the Consumer and not a trader. The averments made in para no.1 of the complaint is denied by the O.P no.1 and 2.  The averments of para no.2 are incorrect, except the averments of purchase of two machines of ECO (pollution) one is petrol machine and another one is Diesel machine from the company of the O.P.no.1 and 2 herein.  In reply to para no.3 of the complaint the allegations are incorrect. The complainant had purchased the 1) Petrol  Machine Diesel Smoke ECO Gas 100 and 2) Diesel Machine  ( Diesel Smoke ECO Smoke) from the Mantec Electronics Pvt. Ltd. Pondicherry on dated 15/05/2014 and the machines were delivered at Bidar on 10/06/2014.  As per purchase order placed by the complainant the guarantee period was one year against manufacturing defects only.  Before delivery of the said machines the company had narrowly examined the said machine and found the machines in good conditions.  Along with the said machines the company has provided the user manual and official of the company given appropriate instruction regarding mode of operation and maintenance of the said machine.  After installation of the said machines again in the presence of the Regional Transport officer Bidar, the machines were examined and found in good condition.   After all verifications the RTO Bidar has issued licence to carry on business to the complainant.  The said machines were in good conditions and there were no manufacturing defects.

 

5.                 In reply to the para 4 of the complaint it is stated to be false, baseless and far away for the real facts.   Compulsorily the filters of the said machines should be changed at least in interval of  three months and if not done so, water moisture enters into gas Bench and causes damage to Bench.  The complainant had used the said petrol machine in improper way i.e. not in accordance with the instructions mentioned in the user manual and the complainant had not re-placed the filter, within the recommended duration, due to which the moisture has entered into the gas bench and caused damage.  The complainant informed about the said problem in the month of July, then, officials of the company came to Bidar and observed damages to Bench.   Thereafter machines were sent to Hubli and thereafter same were sent to Pondicherry.  In Pondicherry  the said machine was repaired and delivered to the complainant and the said company borne all the expenses of the repairing and delivery of said machine.  Now the complainant is using the said machine for business purpose.  Indeed there was no any manufacturing defect in the said machine, and the damage to the bench is caused only due to negligence and improper use and maintenance of the said machine by the complainant.  The averments of para 7 and 8 in the complaint are incorrect.  In reply to para 9 of the complaint, as per terms and conditions of purchase order the complainant agreed that any dispute in relation to the transaction between the parties that “Any dispute relating to the order shall be under Pondicherry/Puducherry jurisdiction”.  It is settled position of law that when there is an agreement between the parties, there is a concluded contract.  Wherein the defendant put an exclusion clause in the agreement in categorical terms specifying in the event of any dispute arising between the parties herein a particular Court shall have the exclusive jurisdiction, then such accepted notions of contract shall bind the parties and the same is also not against public policy and is not in any way contravenes section 28 of the Indian contract Act.  The company desired an exclusion clause in the warranty settlement, the present complainant had also agreed to restrict himself to the Courts at Pondicherry by virtue of his express written offer which the opponent had accepted and cause it mentioned in the sale invoice.  Apart from this company is having its registered office at Pondicherry.  The O.P.no.1 is working as sales Man to Bangalore area, the O.P.no.2 is working as service Engineer to Bangalore area and the O.P.no.3 herein is service Manager at Pondicherry.  The company is having its branch office at Bangalore.  The company is not having its Branch office at Bidar.  The O.P.no.4 is not at all concern to the dispute involved in this case andits presence before this Forum not at all necessary for adjudication of the matter.  In view of aforesaid facts and reasons this Forum is not having territorial jurisdiction to try this complaint. 

 

6.               All averment made in para no. 9 to 15 of the complaint are incorrect.  In the entire complaint, the complainant did not disclose as to what is the manufacturing defect in the product and also failed to explain as to how and in which manner the company has rendered the deficiency in service, at least for maintaining the present complaint before this Forum.  In the absence of the said important condition the present complaint is not at all maintainable and deserves to be dismissed.

 

 

7.         Considering the rival contentions of the parties, the following points arise for our consideration:-

 

 

1. Does the O.Ps. prove that, this Forum has no jurisdiction to entertain this complaint?

 

2. Does the complainant prove that, there has been a deficiency of service in the part of the Opponents?

 

 

3. What order ?

 

 

 

 

8.           Our answers to the points stated above are as follows:-

 

1. In the negative.
2. In the affirmative

                3.   As per final orders owing to the following:

 

 

                                                                    

 

                                                                                            :: REASONS ::

 

9. Point No.1.   In the versions, the O.P. has basically raised three objections to the effect that, there was a clause in the terms and conditions of the purchase specifying that, any dispute that may arise between the seller and the purchaser would be resolved by a Court of competent jurisdiction at Pudducherry.  The other objection raised is, the company ( O.P.) having no branch at Bidar, this Forum is precluded to entertain the present complaint.  A tell tale reference to section 28 of the contract Act. has been made by the O.Ps.  The third objection has been raised by the O.Ps that, the machineries were obtained by the complainant for commercial purpose and hence the complainant cannot claim the status of a  Consumer.   

 

10.               Herein, the complainant is b efore us under section 12 of the C.P.Act, 1986.  Section 3 of the C.P.Act, 1986 specifies that, the provisions of the Act shall be in addition and not in derogation of the provisions of any other law for the time being in force, which ipso facto means not withstanding the objections of the O.Ps drawing reference to section 28 of the contract Act, this Forum has the  jurisdiction to try this case. 

 

11.                Secondly, it is forthcoming from the versions of the O.Ps that, the machines were delivered at Bidar on 10/06/2014 and hence, part of the cause of action arising at Bidar, this Forum would derive jurisdiction U/s.11(2)(c) to try the case.

 

12.           As far as the third point raised to the effect that, the complainant had purchased the machines for commercial purpose, it is only a name sake preposition.  There has been no serious contest to the claim of the complainant that, he had purchased the machines to utilise the same to earn his day to day living.  Therefore, we answer the point no.1 accordingly.

 

13.  Point no.2 :   The complainant has levelled allegations that, the machineries supplied by the O.P.  were defective.  Per contra, the later asserts that, the complainant has used the petrol machine improperly not in confirmity with the user manual provided.  Albeit about the Diesel machine, the O.Ps have maintained a stoic silence all along.  It is further claimed by the O.Ps that, the filters of the machine(s) must be altered every three months and if not done so, water moisture entering into the machine spoils the gas bench, rendering it useless.

 

14.         Amazingly, in the versions, the O.Ps claim that, the machines were delivered at Bidar on 10/06/2014, and further that, the complainant informed about the defects in the month of July, where upon the officials of the O.Ps arriving at Bidar, examined the machines and found the bench(s) damaged.  That being the case, the defects have been developed in about a month, well within the warranty period and it is the bounden duty of the O.Ps                               (manufacturers) to rectify the defects to the satisfaction of the customer.   Having not done so, even after three years has elapsed, is a clear deficiency in service and we hold the point no.2 in the affirmative.

 

15. Point no.3:   Striving to arrive at a just entitlement of the complainant, we find that, he has claimed mind bungling figures adopting peculiar methods of calculations.  He claims rent of the premises @ Rs.24,000/- a year, Rs.3,00,000/- towards extra repair charges, claims loss of earning capacity @ Rs.1,20,000/- per year.  He further claims hospital charges to the tune of Rs.4,00,000/-for alleged skin ailment of psoriasis, which is justified by allegation of  heavy tensions and also the cost of the machines at Rs.3,75,000/-.  In our opinion, all these fanciful claims are quite irrelevant to the issue in hand.  Psoriasis is an obstinate fungal affliction of the dermis, which has no connection with the mental tensions as alleged.  Secondly, no repair bills worth the name has been submitted by him evidencing repair charges to the extent of Rs.3,00,000/-.  Only analysis(s) of the faults in the machines by M/s Vaishnodevi Equipments, Haveri has been produced.  A rent receipt amounting to Rs.7,800/- ( from August 2014 to December 2014) granted by the Idgah committee is filed but from that, nothing is forthcoming to connect with the Emission Testing Centre.  Loss of earning capacity to the extent of Rs.1,20,000/- per year is also calculated fancifully without any justification and hence we are not inclined to grant any reliefs(s) as discussed herein.

 

16.           Then remains the cost of the defective emission testing machines.  We find from the two invoices issued by M/s MANATEC Electronics (p) Ltd, from which it is evident that, the complainant has remitted a sum of Rs. 3,09,999/- altogether with taxes to the manufacturer.  The said products having developed defects and being non functional out right within a month almost of the supply, it is incumbent upon the O.Ps to rectify the defects in confirmity to the warranty.  Additionally the complainant undergoing business loss for the last more than two years, suitable compensation is deserved by him and hence we proceed to pass the following.

 

 

 

 

 

 

: :   ORDER : :

 

1.  The contesting O.Ps no.1 and 2 are hereby directed to rectify the defects in the emission testing machines and render it fully operational to the satisfaction of the complainant at it’s premises at their own cost or in the alternative would be liable to pay back the sum of         Rs. 3,09,999/- ( cost of machines in two invoices dated 30/05/2014) along with interest @ 12% p.a. calculated from the date of delivery i.e. 10/06/2014, till the date of realisation.

 

 

2. The O.Ps.No.1 & 2 are further directed to defray a global sum of Rs.1,00,000/- to the complainant, towards in conveniences, deprival of wealth and mental agonies, together with a sum of Rs.10,000/- towards litigation expenses.
3. Eight weeks time granted to comply the order.

 

             

 

 

 

   ( Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this  31^st  day of March-2017 )

 

 

 

   Sri. Shankrappa H.                                             Sri. Jagannath Prasad                               

           Member                                                                        President

  

Documents produced by the complainant

                                                                                                                              

1. Ex.P.1-Invoice dt. 30/05/2014 of O.Ps in respect of Gas analyser        

ECO. Gas and accessories.

2. Ex.P.2-Invoice dt. 30/05/2014 of O.Ps. in respect of smoke Metre 

ECO smoke 100 B accessories.

3. Ex.P.3- Licence ( copy) of Transport department.
4. Ex.P.4- to P.7- series of E correspondences touching machinery defects.
5. Ex.P. 8 to P.11- Fault analysis of machines (copies) of M/s Vaishno Devi Equipments, Haveri.
6. Ex.P.12- Brochure (copy) of O.Ps.
7. Ex.P.13- Transport receipt ( Copy)
8. Ex.P.14- Rent receipt.
9. Ex.P.15- Broad band receipts.
10. Ex.P.16- Bank notice.
11. Ex.P.17-Medical prescription ( copy )
12. Ex.P.18- Office copy of legal notice.
13. Ex.P.19- Bank’s notice.
14. Ex.P.20-Bank’s notice dt.30/06/2015.
15. Ex.P.21- and 22 Service installation reports ( copies )
16. Ex.P.23- Service invoice of Avil India (P) Ltd.
17. Ex.P.24 to P.30- Colour Photos of equipments.

 

Documents produced by the Opponent/s

         

              -  Nil -

 

 

 

 

   Sri. Shankrappa H.                                           Sri. Jagannath Prasad                               

           Member                                                                     President.

 

Rulings of Higher Foras relied upon by the parties.

Complainant

1. 2015 (I) CPR 222 (NC)

M/s Pressweld Engineers V/s Sri Jayaram Reddy & Anr.

 

Consumer Protection Act, 1986-Sections 15,17,19 and 21-Machinery Manufacturing defect- Supply of defective Hydraulic Press Brake Machine-Supplied machinery had serious working limitation/problem which technician sent by O.P.1 had not been able to rectify-Even after replacement of several parts, machine could not reach its designed capacity-complainant is competent to invoke jurisdiction under provisions of Consumer Protection Act, 1986-O.Ps held jointly and severally liable to refund price of Hydraulic Press Brake Machine to complainant/respondent with 9% interest from date of delivery of machine

 

 

 

 

2.  2015(I) C.P.R. 140 ( NC)

M/s Vindhya Pipes and plastics Ltd. V/s Angrez Singh & ors.

Consumer Protection Act, 1986-Section 13(1)(c),15,17,19 and 21-Sanitary products-PVC Pipes-Manufacturing defect-Expert opinion-complaint pertains to bursting of pipe and its leakage and as such by its very nature alleged defect for which analysis or testing in laboratory could be ordered can not be said to be absolutely essential to arrive at a conclusion regarding alleged defect-Two Fora below have returned their concurrent finding of fact in favour of respondents/complainants-Petitioner has not produced anything which could justify interference with concurrent findings of both Fora below-Revision Petition dismissed.

 

Opponent/s

 

• Nil-

 

 

 

 

   Sri. Shankrappa H.                                           Sri. Jagannath Prasad                                

           Member                                                                     President.

 

 

mv.