KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION  VAZHUTHACADU  THIRUVANANTHAPURAM

                              APPEAL  NO: 314/2008

                     JUDGMENT DATED. 07-09-2010

PRESENT

SMT.VALSALA SARANGADHARAN               : MEMBER

SHRI.M.V. VISWANATHAN                              : JUDICIAL MEMBER

SHRI. S. CHANDRAMOHAN NAIR                  : MEMBER

R. Ethirajan,

Managing Partner,

Acufil Machines, S.F.120/02,                                      : APPELLANT

Kalappatty.P.O, Coimbatore.

(By Adv:Sri.S.Abraham)

          Vs.

Sulaika Aspin,

Mulamkadakam.P.O,

Thirumullavaram, Kollam-12.

Addl. R2.

                                                                             : RESPONDENTS

Sivakumar,

Managing Partner,

M/s Equipment Agencies,

SEICO House, 1062,

Bharathiar Road,

Pappanaickanplayam,

Coimbatore-37, Tamilnadu.

(R2 by Adv: Sri.N.Kesavakurup)

                                                JUDGMENT

SHRI.S. CHANDRAMOHAN NAIR : MEMBER

The order dtd:30/6/2008 of CDRF, Kollam in OP.5/05 directing the 1^st opposite party to pay to the complainant the sum of Rs.75,600/- with 7.65% Central excise duty and 4% tax along with Rs.25,000/- as compensation and cost of Rs.5000/- is being challenged in this appeal by the 1^st opposite party calling for the interference of this Commission as to the sustainability of the order passed by the Forum below.

2. It is the complainant’s case that she has purchased a semi automatic filling and sealing machine from the opposite parties on 6/1/2003 at a cost of Rs.75,600/- excluding tax duty and installation charges.  Installation was done by the opposite parties and the complainant has alleged that from the date of installation itself the performance of the machine was not at all up to the mark and that the quantity of materials of filling by the weight was only 470 grams as against the weight of 500 gms.  The filling was also very slow, which according to the complainant was 3 times than compared to manual filling of each pouch.  The matter was informed to the 2^nd opposite party and the 2^nd opposite party after inspection sent a letter to the 1^st opposite party on 26/3/2004 to cure the defects which was left uncared by the 1^st opposite party, the manufacturer.  Alleging deficiency of service and manufacturing defect in the product, the complaint was filed praying for directions to the opposite parties to return the price of the machines with compensation and costs.

3. Though the 2^nd opposite party remain absent in the proceedings, the 1^st opposite party filed version contending that the 2^nd opposite party had supplied a filling and sealing machine to the complainant and the same were manufactured by the 1^st opposite party.  But it was denied that the machines had any defect and also that the 1^st opposite party had supplied the machine for filling 500 gms of powder using a measuring cup and it was also convincing of the functioning of the machine that the complainant had ordered for the purchase of the machines.  Another contention taken by the 1^st opposite party was that there would be variations in weight if there was moisture in the powder content.  It was also contended that the complainant had not made any complaint about the working mechanism of the machine which would show that there was no manufacturing defect.  The 1^st opposite party had also contended that it was to evade the repayment of the loan to the bank that the complainant was filed which was only frivolous and vexatious.  Thus, the 1^st opposite party prayed for dismissal of the complaint with cost.

4. The evidence consisted of the oral testimony of the complainant as PW1 and Exts.P1 to P15.  The 1^st opposite party was examined as DW1 and Ext.B1 was marked.

5. Heard the counsel for the appellant/1^st opposite party and the 1^st respondent/complainant.  There was no representation for the 2^nd respondent.

6. The learned counsel for the appellant vehemently argued before us that the order of the Forum below is per-se illegal, unsustainable and against the facts of the case.  It is his case that the Forum below had not appreciated the evidence in its proper perspective and also that it had passed the order which is only be set aside.  It is also his case that there was no manufacturing defect to the machine supplied by the 1^st opposite party and also that the filling machine had no defect and if at all there was any defect it was due to the moisture content in the powder and the sealing machine had no defect at all.  Relying on the Commissioner’s report marked as Ext.P13, the learned counsel advanced the contention that even in the commission application the complainant had asked for inspecting the sealing machine only.  The learned counsel has also argued before us that there was no deficiency of service on the part of the opposite parties and the Forum below had taken a view that was mostly infavour of the complainant.  According to him Ext.D1 was conclusive proof to show that the appellant was not at fault and that the order is liable to be set aside.

7. On the other hand the learned counsel for the 1^st respondent/complainant supported the findings and conclusions of the Forum below.  It is his very case that the Forum below appreciated all the evidence in its correct perspective and has passed the order fastening liability on the 1^st opposite party/appellant to refund the amounts collected from the complainant with compensation and costs.  It is also argued by him that though the appellant would depend upon Ext.D1 it is found that the appellant has taken no action to rectify the faults in the machine.  The learned counsel further argued that the purpose of buying the filling and sealing machine from the opposite parties was defeated as she could at no point of time used the machine satisfactorily.  He has also submitted that though the appellant would argue that during the trial run the machine was working properly and perfectly, there is no evidence produced by the appellant to show that the appellant had conducted the trial run.  He has also relied on the commission report wherein it is stated that both the machines were not working properly and the machines were not useful to the complainant. The learned counsel invited our attention to the decision of the Tamilnadu State Consumer Disputes Redressal Commission in Appeal-846/98 where the present appellant is the appellant in that appeal also.  (ACUFIL MACHINES Vs. SAKTHI TRADING COMPANY, II (2003) CPJ 57) and where the commission had upheld the order directing the refund of the value of the machines purchased by the complainant.  Thus, he advanced the contention that the appeal is liable to be dismissed with compensatory costs.

8.  On hearing the learned counsel for the appellant and the 1^st respondent and also on perusing the records it is seen that the complainant has purchased the machines from the 2^nd opposite party which are manufactured by the 1^st opposite party for the sum of Rs.75,600/- though it is observed that as per ext.P2 the amount shown is Rs.75,700/-.  It is also noted that the complainant has raised serious allegations regarding the functioning of the machines.  The main allegation is that while filling the materials in the pouch it weighed only 470 gms instead of expected weight of 500 gms.  Though this lapse was brought to the notice of the opposite parties especially the 1^st opposite party, it is seen that no efforts were made to rectify the defects.  It is to be found that the complainant has purchased the machines to fill and seal the product to be sold in the open market and if the packet does not contain the required and assured weight, the fate of the complainant can only be imagined.  It is sure that she would be forced to face serious consequences for selling packets containing lesser quantity of materials.  Though the appellant would argue that during the trial run the machine was showing correct weight, it is also to be found that no evidence to that effect had been adduced by the opposite parties.  The complainant has a definite case that even at the time of trial run the result was not satisfactory.  The commissioner who had inspected the sealing and filling machines had reported that the filling machine was dripping due to jamming of the rotating head while the filling spouts are fixed.  It is also stated by him that filling machine was not in an operable condition.  He has pointed out that both the filling and sealing machines were not working properly.  Thus, on an appreciation of the entire facts and circumstances of the case we are inclined to uphold the finding of the Forum below that the opposite parties had delivered defective machines to the complainant and the complainant is entitled to get back the amount paid by her.

9. The Forum below has also ordered for a compensation of Rs.25,000/- apart from the refund of the value of the machines.  We find that the said amount is very much on a higher side. The complainant has not adduced any evidence to show that she has suffered any loss due to the defects of the machine.  May be it is true that she had to repay the loans taken by her in connection with the purchase of the machine.  But no evidence has been adduced by her to show such loss.  As the refund of the value of the machines has been ordered by the Forum below, we feel that the award of compensation of Rs.25,000/- is unwarranted.  However the cost of Rs.5000/- ordered by the Forum below is sustainable in the light of the fact that the complainant has also taken out the commission to inspect the machines and get the report.

In the result the appeal is allowed in part with the above modification.  Thereby the appellant is liable to pay back the amount of Rs.75,600/- with 7.65% of central excise duty and 4% tax with cost of Rs.5000/- to the complainant/1^st respondent within 2 months from the date of receipt of the order failing which the amounts shall carry interest at 12% per annum from the date of complaint till the date of payment.  In the facts and circumstances of the present appeal parties are directed to suffer their cost.

S. CHANDRAMOHAN NAIR : MEMBER

VALSALA SARANGADHARAN: MEMBER

M.V. VISWANATHAN  : JUDICIAL MEMBER

VL.