1. The brief history of the case of the complainant is that he being an unemployed youth wanted to purchase an Agarbati Making machine for eking his livelihood and accordingly contacted the OP who is in the business of selling such machine. The OP assured that the installation of machine, training to the complainant and the periodical maintenance of the machine is his look out and being influenced the complainant purchased the machine at Rs.1, 35,000/- along with raw materials to produce Agarbat worth Rs.53, 000/- from OP vide Bill No.136 dt.10.4.15 and the complainant has paid Rs.9000/- to the OP extra towards transportation charge of the machine from Bhubaneswar to Jeypore and all the payments were made from the accounts of the complainant and others at SBI, Jeypore to the accounts of the OP through money transfer from ATM Cards. It is submitted that on 12.4.15 the OP sent the machine through his technician but the technician could not run the machine and instructed the complainant to purchase a Stabilizer for the machine to which the complainant complied by spending Rs.9000/-. In spite of efforts the machine did not run and finally the technician came to the conclusion that the Panel of fully auto Agarbati machine is defective and contacted the OP over phone who advised the technician to bring the Panel for replacement within a couple of days. It is further submitted that the technician turned up with Panel on 05.05.2015 and tried to fit with the machine but he could not do. As per advice of OP as well as the technician, the complainant took the entire machine to Bhubaneswar for replacement of the same with a new one. The OP received back the defective set and agreed to send a new machine within a week but in vain. It is also further submitted that on 30.5.15 when the complainant requested the OP for refund of his money, the OP sent a small machine instead of fully automated machine. The technician of the OP tried to install the machine in spite of protest but after a brief run the machine with big sound stopped working and the technician with some plea left the place without giving instruction and the machine is lying unused. The complainant also submitted that when he demanded refund of his money as the machine was not working, the OP warned the complainant to recall the agreement dt.10.4.15 signed between them and the OP is not returning the money of the complainant till date and the complainant is suffering mental agony with huge loss. Thus alleging deficiency in service and unfair trade practice on the part of the OP, the complainant has filed this case praying the Forum to direct the OP to refund Rs.1, 88,000/- towards cost of the machine and materials and Rs.9000/- towards transportation charge plus Rs.9000/- towards cost of Stabilizer and to pay Rs. 2.00 lacks towards compensation besides Rs.10, 000/- towards costs to the complainant.
2. The OP in spite of notice, received by him on 02.7.15 (A.D. available on record), neither preferred to file counter nor participated in this proceeding in any manner. On failure to be present on all the dates fixed, the OP was declared exparte on 16.9.15 and the matter was heard from the complainant alone on 28.9.15. The complainant has filed certain documents in support of his case. We perused the documents available on record.
3. In this case the complainant submitted that he is an educated unemployed youth and aiming self employment for eking his livelihood he purchased a fully automatic Agarbati machine along with raw materials worth Rs.1, 88,000/- from the OP vide agreement dt.10.4.15. In the said agreement it has been stated that the OP deals with supply of machinery for micro industries to eradicate unemployment problem and that will facilitate the unemployed fellows to earn livelihood. It is further stated in the said agreement that the complainant is an unemployed fellow and wishes to establish a fully automatic Agarbati machine for eking his livelihood. In view of above facts it became clear that the complainant being an unemployed fellow had purchased the machine to be run by him for eking his livelihood and hence the complainant is a consumer of the OP coming well within u/s.2 (1)(d)(i) of C.P. Act and the OP is a trader.
4. The complainant has purchased the machine and materials worth Rs.1, 88,000/- and made payment to the OP by transferring money through ATM Card of SBI, Jeypore and the OP through its technician installed the machine at Jeypore. From the above facts it became clear that the major part of cause of action arose at Jeypore and hence 5. The complainant in this case stated that the technician of the OP on 12.4.15 installed the machine but the machine did not run. As per advice of the technician the complainant also purchased a Stabilizer to run the machine by spending Rs.9000/- but again the machine did not run and the technician came to the conclusion that the Panel of the machine is defective and in consultation with the OP at Bhubaneswar, the technician took away the Panel with assurance that he will be coming back with a new panel within a couple of days. The complainant stated that after 22 days i.e. on 05.05.15 the technician turned up with an old panel but the said panel could not be fitted with the machine and the technician after consulting the OP over phone advised the complainant to bring the machine to Bhubaneswar for its replacement with a new one. The complainant took the machine to Bhubaneswar on the same day and the OP also received back the defective machine and assured to send new machine within a week.
6. In absence of counter and participation of OP in this proceeding we lost opportunity to know anything from the OP and as such the allegation of the complainant remained unchallenged. As the OP received back the machine for its malfunctioning, it can be safely concluded that the machine supplied by the OP bears inherent manufacturing defect for which the complainant suffered.
7. The complainant further stated that the OP received back the machine on 06.5.2015 and promised to send a new one within a week but in vain. On 18.5.15 the complainant met the OP at Bhubaneswar for a new machine but the OP stated that the new machine has been booked and reaching Jeypore on 21.5.15 through M/s. V. Transport, Koraput vide Chalan No.1629 but on enquiry the complainant could know that there is no such Transport Co. at Koraput.
8. On 30.5.15 the complainant demanded refund of his money over phone as the machine could not be installed in spite of full payment and the OP assured to send a new machine on the same day. The technician of the OP came with an old and small machine instead of original one. In spite of protest, the technician installed the machine which was not auto feeder but after a brief run the machine with a big sound stopped working. It is also stated that the technician with some pea or other left the place without giving any instruction and the machine is lying unused. When the complainant demanded refund of his money, the OP bluntly denied any refund and warned the complainant to recall the agreement signed on 10.4.2015 between the parties.
9. We have carefully perused the agreement dt.10.4.2015. It was revealed that the OP Company works with motto to establish some micro industries which will facilitate the unemployed fellows to earn livelihood. The OP shall provide training and installation of the unit after full settlement of dues. In this case the complainant has paid all the dues to the OP but the OP failed to install the machine and impart training to the complainant in spite of efforts by his technician and finally the machine was taken back by the OP. When the OP failed to fulfill his part of conditional agreement, he would not be entitled to retain a single pie of the complainant.
10 Para-2 of the agreement stipulates that machinerie and accessories sold to the complainant cannot be returned to the OP at any point of time but in this case the original machine meant for installation has been taken back by the OP himself with assurance to install a new one but failed to provide and install a new machine of same specification. Hence in this case, the complainant has not returned the machine for his fault; rather the OP has taken back his machine having inherent manufacturing defect. As such the OP is legally bound to refund the cost of the machine and materials to the complainant.
11. Further at Para-3 of the agreement, it is stated that the machine is for one year warranty and the OP shall provide regular service and for any misuse the OP is not liable. It is seen that the machine supplied by the OP has not been installed till date and hence question of misuse by the complainant does not arise. Further the OP violated the terms of agreement by supplying an old and small machine to the complainant which was not working during installation and the machine is lying unused.
12. The complainant has stated that he demanded refund of his money as the OP failed to install the machine but the OP turned down the demand of the complainant. Further it is alleged that the OP short supplied the Premixing Powder and stick for preparation of Agarbati. The machine supplied by the OP for the second time is not showing any make and specification and the complainant believes that the machine supplied by the OP is a used one. Due to non participation of the OP in this proceeding, all the allegations of the complainant remained unchallenged. The contents of Clause 2 & 3 of the agreement are not conducive and acceptable under C. P. Act and have been violated by the OP only. The short supply of materials as alleged by the complainant in our opinion amounts to unfair trade practice on the part of the OP.
13. From the above discussions we come to the conclusion that the machine sold to the complainant is having manufacturing defect for which the machine has been taken back by the OP. Further the machine sent by the OP for the 2nd time was not original one but a second hand small size machine which also did not work during installation. It is also not disputed fact that the complainant has paid Rs.1, 88,000/- towards cost of machine and materials and also has paid Rs.9000/- each towards transportation charge and purchase of stabilizer. The stabilizer was of no use which was purchased for smooth functioning of machine. For the unfair trade practice and supply of defective goods by the OP, the entire effort and zeal of the complainant to earn livelihood became spoil. In the above circumstances, the complainant is entitled to get back Rs.1, 88,000/- towards cost of machine and materials plus Rs.18, 000/- towards transportation of machine and cost of stabilizer with interest @ 12% p.a. from 10.4.2015 besides suitable compensation. The OP is to take back his old machine and materials on as is where in basis from Jeypore after compliance of this order.
14. Regarding compensation claimed by the complainant, it is seen that the complainant has made all efforts to purchase the machine for eking his livelihood. He has also taken defective machine to Bhubaneswar with a hope to bring a new machine but the OP did not supply and took time. In this process more than 2 months has been elapsed but the unit of the complainant could not run. Due to such inaction of the OP, the complainant demanded return of this money but the OP did not agree. The complainant then filed this case but the OP in spite of valid notice did not respond. In spite of lot of efforts the unit of the complainant could not run and he sustained heavy loss. In the above circumstances, the complainant must have suffered sufficient mental agony and has filed this case incurring some expenditure. Considering the sufferings of the complainant we feel a sum of Rs.50, 000/- towards compensation and cost in favour of the complainant will meet the ends of justice.
15. Hence ordered that the complaint petition is allowed in part and the Opp. Party is directed to refund Rs.1, 88,000/- towards cost of machine and materials, Rs.9000/- towards transportation charges of machine and materials, Rs.9000/- towards cost of Stabilizer with interest on all the above sum @ 12% p.a. from 10.4.2015 and to pay Rs.50, 000/- towards compensation and cost to the complainant within 30 days from the date of communication of this order. The OP is further directed to take back his old machine with materials on as is where is basis from the place of the complainant at his own cost after due compliance of the order of the Forum.
(to dict.)
