By Sri. K. Gheevarghese, President.<br /> <br /> The complaint filed under section 12 of the Consumer Protection Act.<br /> <br /> <br /> The allegations in the complaint are in brief as follows. <br /> <br /> The Complainant purchased 100 kg Sharma Brand 6 Bolt Double Geared Oil Expeller from the 1st Opposite Party on 26.4.1999 for an amount of Rs.60,000/- . On 26.4.1999 the amount Rs.60,000/- given to the 1st Opposite Party. Towards the payment of amount cash bill<br /> (Contd...... 2)<br /> - 2 -<br /> No.8 was given to the Complainant. The term agreed by the 1st Opposite Party and the Complainant was that the oil expeller sold to the Complainant is having the capacity of 100 kg/hr. The quotation issued by the 1st Opposite Party to the Complainant also shows that the capacity of the oil expeller is 100 kg/hr. In addition to that there was an assurance from the 1st Opposite Party, if the machinery had any defect or inefficiency it would be replaced. Oil expeller when operated found that it did not come to level 100 kg/hr instead the expelling capacity was only 25 to 30 kg/hr. The Complainant approached the 1st Opposite Party several time afterwards to rectify the defects or to replace the oil expeller. The oil expeller was neither rectified nor replaced by the 1st Opposite Party. The Complainant installed the machinery anticipating heavy work. If the expeller had the capacity of 100 kg/hr the Complainant could have done the work properly expelling copra and needs of the customers could have been met with. <br /> <br /> The Opposite Parties had committed the deficiency in service and unfair trade practice. The lawyer notice was sent to the 1st Opposite Party on 15.3.2000 to call upon the rectification or the return of the amount received towards the price of expeller ie Rs.60,000/- along with the compensation and cost. The 1st Opposite Party received the lawyer notice and sent a reply denying the demands showing frivolous grounds. The Complainant prayed for an order directing<br /> the 1st Opposite Party to replace the oil expeller or to rectify the expeller to the efficiency of 100 kg/hr or to pay the Complainant Rs.1,30,000/- including the cost of expeller compensation and other damages.<br /> <br /> The 1st Opposite Party filed version upon their appearance. Later the Opposite Parties No.2 and 3 were supplemented and versions were filed by them. The 1st Opposite Party contents that the Complainant is not the genuine consumer. The purchase of Sharma Brand 6 Bolt Double Geared Oil Expeller at the cost of Rs.60,000/- is false and untrue. The 1st Opposite Party was<br /> (Contd....... 3)<br /> - 3 -<br /> approached by the Complainant for the supply of the items in the order form dated 24.3.1999 as per the items ordered are one Sharma Brand 6 Bolt Double Geared Oil Expeller capacity 100 kg/hr <br /> <br /> 1.Sharma Brand 6 Bolt Double Geared Oil Expeller.<br /> Capacity- 100 kg/hr. Rs: 68500.00<br /> <br /> 2.Comption Greaves Make 30 HP 1440 Rpm<br /> Motor. Rs: 45089.00<br /> <br /> 3.30.HP.Oil Starter(1) 8 KVAR Capacitor (1),<br /> Main switch (1) Rs: 19750.00<br /> <br /> 4.Counter Shaft Arrangements Rs: 12000.00<br /> <br /> 5.Panel Board with Accessories Rs: 12500.00<br /> -----------------<br /> Total Rs: 157836.00<br /> <br /> KGST 10% Rs: 15783.60<br /> -----------------<br /> Grand Total Rs: 173619.60 <br /> ==========<br /> <br /> <br /> The order was later changed by the Complainant to cut short the amount and another order was given as per the bill dated 28.4.2000. According to that the items ordered are: <br /> <br /> 1.Cromption greaves make 20 HP 1440 RPMTEFC<br /> motor. Rs: 30500.00<br /> 2.Sharma brand 6 bolt double gear Oil Expeller Rs: 72050.00<br /> 3.63 Ampere Main Rs: 2150.00<br /> 4.Kilburn make 20 HP Oil Immersed star Delta starter Rs: 7250.00<br /> 5.Concap – 6 KVAR Capacitor Rs: 1800.00<br /> 6.Starter Oil Rs: 630.00<br /> 7.Transporting Charge Rs: 2500.00<br /> -----------------<br /> Total Rs: 116880.00<br /> ==========<br /> (Contd....... 4)<br /> - 4 -<br /> <br /> The machinery and the accessories were supplied to the Complainant on 28.4.1999 at Pulpally. Rs.60,000/- was given by the Complainant as an advance towards the cost of the machinery and other accessories. The averment in the Complainant that the machinery was sold for the cost of Rs.60,000/- is absolutely false and untrue. The Complainant was not given any assurance on the capacity of the expeller as such 100 kg/hr, there was no promise from the part of the 1st Opposite Party that the expeller is having the capacity of 100 kg/hr. The capacity of the expeller is steered by several factors such as stable voltage steady ampere proper drying of copra and it's size, similarly the bolt used in expeller also affects the capacity. All the requisites which control the efficiency was informed to the Complainant rightly prior to the installation of the machine. On the very same day of delivery of the Machinery the 1st Opposite Party gave the bill to the Complainant for Rs.1,16,880/- and the balance amount deducting the advance was to be paid, the Complainant did not clear the liability even after the demand in several occasions. On 28.1.2000 the 1st Opposite Party sent a lawyer notice to the Complainant. Reply was also sent by the Complainant showing false and frivolous reasons for the evasion of the payment. The 1st Opposite Party filed suit numbered O.S. 116/2000 in the Hon'able Munsiff Court, <br /> Kalpetta to recover the amount due from the Complainant. The delivery of the expeller and other accessories was effected on 28.4.1999. But till the middle of march 2000 there was no allegation regarding the reduced capacity of the expeller. The allegation on the part of the Complainant was only after the receivel of lawyer notice sent by the Opposite Party No.1. The Opposite Party when got the information of lesser capacity of the machinery, sent the mechanic to the Complainant to rectify those defects. The conditions of the Complainant are untenable. The complaint filed is nothing other than defending the suit filed in the Munsiff Court, Kalpetta. The 1st Opposite Party denied all the loss and damages claimed by the complainant. The complaint is to be dismissed with compensatory cost to the Opposite Party. <br /> (Contd......5)<br /> <br /> 5 -<br /> The Opposite Parties No.2 and 3 are supplemented and version were filed by them. The Opposite Party No.2 averred that they are only the dealer. They are in use of replacing the defective parts during the warranty period. The Complainant had not so far intimated them such manufacturing defect during the warranty period or afterwards. The assurance of 100 kg capacity cannot be assessed in an hour to hour basis. It should be taken from an average of continuous operation. Apart from that the good results of production is obtainable depending on different aspects. The erection of machinery should be properly done for better result. In normal case the service Engineers of the dealers are sent for the installation of the machinery. The erection of machinery was not within awareness of the Opposite Party No.2 if any defect or any latches in effectiveness effected in installation the Opposite Party is not responsible for it. A period of 22 months over after the starting of operation of the machine. The parts of the machinery would have been worn out and it is high time to over hole and change some parts of machinery. The deficiency could not be estimated in such a delayed stage. Any shortage in <br /> capacity in the work of the expeller, the Opposite Party is ready to cure it sending the qualified <br /> and expert Engineers if the relevant expenses are met with the Complainant. The Opposite Party No.2 also reiterated that the Sharma Brand Expeller is one of the best quality machine effect. <br /> <br /> The Opposite Party No.3 filed version. According to them the Opposite Party No.2 is the distributor on their product the sales and service are done by the Opposite Party No.2. <br /> <br /> The points in consideration are:<br /> 1.Is there any unfair trade practice in purchase of the oil expeller and its accessories?.<br /> 2.Relief and costs.<br /> <br /> (Contd....... 6)<br /> - 6 -<br /> Point No.1: <br /> The Complainant is examined as PW1. Ext.A1 is the voucher of Rs. 60,000/- given to the Complainant. It shows that Rs.60,000/- is given to the Opposite Party No.1 as advance payment for the machinery as per the invoice. Ext.A2 is the quotation, five items including Sharma Brand Six Bolt Double Geared Oil Expeller capacity 100 kg/hr, Comption Greaves Make 30 HP 1440 Rpm Motor are detailed in it. The amount written in quotation including the tax is Rs.1,73,619/-. According to the Complainant the price of the machinery and it is accessories are only Rs.60,000/- and that amount was given by the Complainant in ready cash. Ext. A1 specify that the amount given is only as the advance payment. The Opposite Party No.1 is examined as OPW1. The Opposite Parties No.2 and 3 did not tender any oral evidence. The document B1 to B9 are marked from the side of the Opposite Party No.1. Ext.B7 is the letter given by the Complainant to the Opposite Party No.1, it is categorically expressed in that the <br /> machinery supplied by the Opposite Party no.1 is not giving result as assured. It is admitted by the Complainant in the Ext. B7 that if the defect of the machinery if rectified, the Rs.50,000/-<br /> due from the Complainant will be paid without proper functioning of the expeller the due amount will not be paid. The assertion of the Complainant that the machinery was purchased for the price of Rs. 60,000/- is incorrect. The Complainant has not paid the entire amount as agreed in terms. The machinery whether incapacitated from giving the actual result in function is not aptly and properly verified. The capacity of the machine expelling oil per hour is 100 kg per hour. The Commissioner inspected the machinery. Ext.C1 is the Commission Report, the Commissioner on examination found that the oil expeller is having 4 pulley. The full result of the expeller will be received if the 4 pulling are worked at a time. The Commissioner worked the machinery with 3 pulley and the actual defect of the machinery could not be find out without opening the machine. The defect of the machine was only assessed by the commissioner. The Opposite Party no.1 also filed objection to the commission report in this regard. It is stated that<br /> (Contd.....7)<br /> - 7 -<br /> <br /> the expeller was operated in proper and sufficient voltage and the 'Copra' used was to be dried sufficiently. The water content of the 'coppra' could not be assessed by the commissioner. In this circumstances, the averment of the Opposite Party No.2 is to be duly weighed. The offer of the 2nd Opposite Party for the perfect and proper erection of the machinery was not utilized by the Complainant. The dealer is responsible for the replacement of the defective parts of the machinery. During the warranty period steps were not taken by the Complainant. The witness examined on the side of the Complainant also deposed that he is ignorant of the dealings of the Complainant and the witness is having close connection with the Complainant. In that respect the witness examined as PW2 cannot be considered as an unbiased witness. The Opposite Party No.1 filed suit for money in the Hon'ble Munsiff Court, Kalpetta No. O.S.116/2000 for the amount due to him. The certified copy of the plaint is the Ext.B5. The date of the document is 31.3.2000. The complaint is filed on 05.05.2000, the contention of the Opposite Party No.1<br /> that the complaint filed is nothing but to resist the suit for money filed by the Opposite Party No.1. From the above inferences it is to be considered that there is no deficiency on the part of the Opposite Parties. As a beneficiary of the purchaser the Complainant could not stick to his responsibility for the rectification of the machinery in the warranty period. The point No.1 is found against the Complainant.<br /> <br /> Point No.2:<br /> The Complainant cannot establish his case. The Opposite Parties cannot be attributed with deficiency in service or unfair trade practice. In such a circumstances detail analysis the point No.2 is not necessary.<br /> <br /> (Contd....... 8)<br /> <br /> - 8 -<br /> <br /> In the result the complaint is dismissed no order upon cost.<br /> <br /> <br /> Pronounced in open Forum on this the 23rd day of November 2007.<br /> <br /> <br /> PRESIDENT: Sd/-<br /> <br /> MEMBER: Sd/-<br /> <br /> /True Copy/<br /> <br /> <br /> <br /> PRESIDENT, CDRF, WAYANAD.<br /> <br /> <br /> APPENDIX<br /> <br /> Witnesses for Complainant:<br /> <br /> PW1. K.J. Mani. Complainant.<br /> PW2. Scaria. Agriculture<br /> <br /> CW1. Siji. Commissioner.<br /> <br /> <br /> Witnesses for Opposite Parties:<br /> <br /> OPW1. Eapen. Business.<br /> <br /> Exhibits for Complainant:<br /> <br /> A1. Cash receipt. dt:26.11.1999.<br /> A2. Copy of Quotation. dt:24.03.1999.<br /> A3. Copy of Lawyer Notice. <br /> A4. Photo copy of lawyer notice. dt:23.03.2000.<br /> <br /> C1. Commission Report. dt:18.01.2001.<br /> <br /> Exhibits for Opposite Parties:<br /> <br /> B1. Photo copy of the Cash Bill. dt:28.04.1999.<br /> B2. Photo copy of the Order Form. dt:26.02.1999.<br /> (Contd......9)<br /> - 9 -<br /> <br /> B3. Copy of the Lawyer notice. dt:28.01.2000.<br /> B3.(a) Photo copy of the Postal Receipt.<br /> B4. Copy of the Reply notice. dt:24.02.2000.<br /> B5. Photo copy of the Plaint dt:31.03.2000.<br /> B6. Copy of the written statement. dt:24.10.2000.<br /> B7. Photo copy of the letter.<br /> B8. Catalogue of the Expellor. <br /> B9. Copy of the Quotation. dt:24.03.1999.<br /> <br /> <br /> <br /> PRESIDENT, CDRF, WAYANAD. <br /> <br /> <br /> <br /> <br /> <br /> <br /> Compared by:<br /> <br /> <br /> M/<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />