Kerala

Idukki

CC/99/2019

Nissmon P J - Complainant(s)

Versus

Technomatic Equipments - Opp.Party(s)

Lissy M M

10 Mar 2023

ORDER

DATE OF FILING : 16.5.2019

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the  10^th  day of  March, 2023

Present :

SRI. C. SURESHKUMAR                   PRESIDENT

SMT. ASAMOL P.                             MEMBER

SRI. AMPADY K.S.                           MEMBER

CC NO.99/2019

Between

Complainant                                           :     Nissmon P.J.,

                                                                   Puthenpurackal House,

                                                                   Parappu, Ayyappancovil.

          (By Advs:  Lissy M.M.

&C.J.  Jeneesh.)

And

Opposite Parties                                     : 1. The Manager,

                                                                   Technomatic Equipments,

                                                                   3^rd Floor, Shop No.5,

                                                                   Ramapalace-II, Sector 20B,

          Faridabad – 121001, Haryana.

     2.  The Proprietor / Manager,

                                                                   Global Trading Company,

                                                                   Ground Floor, 16/539,

                                                                   Moonakottungal Building,

                                                                   Nettoor P.O., Ernakulam – 682 040.

 (By Adv: Sibi Thomas)

 

O R D E R

 

SRI. C. SURESHKUMAR, PRESIDENT

          This case originates from a complaint filed under Section 12 of the Consumer Protection Act of 1986 (the Act, for short).  Case of complainant is briefly discussed hereunder :

 

          Complainant had purchased a wheel alignment kit, wheel balancer, tyre changer, portable scissor lift and 1.5 HP air  compressor with a tank of 135 litres and lift in connection with his livelihood, from its dealer, the 2^nd opposite party, on 19.11.2018 for a price of Rs.5,93,540/-.  1^st opposite party is manufacturer of the lift and its accessories.  After one month of purchase, installed machinery consisting of components mentioned above had started malfunctioning.  Matter was informed to 2^nd opposite party. However, 2^nd opposite party had not given proper service.  Before purchase of machinery and                                                                                                                  (cont....2)

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components, opposite parties had ensured prompt service and given warranty for the machinery and components  mentioned above.  Contrary to this, machinery had ceased functioning properly just after one month of its purchase.  When there was no response from opposite parties, complainant had issued a lawyer notice to them.  Even after this, proper service was not provided.  Machinery was given 1 year warranty.  Complainant submits that there is deficiency in service and unfair trade practice on the part of opposite parties.  He seeks a direction against opposite parties to replace the defective machinery in warranty or to return Rs.5,93,540/- to complainant received from him towards its price.  He further seeks a compensation of Rs.1 lakh and litigation costs of Rs.5,000/-.

 

          Complaint was admitted and notice was issued to opposite parties.  Notice issued to 1^st opposite party was returned unserved with an endorsement that there is no such addressee.  We notice that the address given of the 1^st opposite party in the complaint is also contained in the records produced.  There is deemed service of notice by 1^st opposite party.

 

          2^nd opposite party had entered appearance and filed written version.  His contentions are briefly narrated hereunder :

 

          2^nd opposite party contends that complainant is not a consumer as defined under Section 2(1)(d) of the Act.Decision of  Hon’ble Supreme Court in Cheema Engineering Service case is quoted in the written version and it is contended that burden is upon the complainant to prove that the machinery is being used exclusively by himself and members of his family for the purpose of livelihood.  Since such a case is not projected even in pleadings, complaint cannot be maintained.  Opposite party had sold machinery worth Rs.5,93,540/- to complainant on 19.11.2018 and subsequently components worth Rs.1,99,148/- were also sold to complainant on 23.11.2018.  Invoices were  generated for both transactions.  Till date, complainant has made only part payment.  Rs.3,62,414/- is still due from him to 2^nd opposite party.  2^nd opposite party is only a dealer of 1^st opposite party.  It is incorrect to say that the tyre changing machinery and its components had started malfunctioning within one month of purchase.  Further contentions that defects in functioning were informed to opposite parties are also not correct.  As mentioned earlier, Rs.3,62,440/- is due from complainant towards purchase of machinery and components.  Company rule is that no service will be given to customers if payments are due from them towards price of purchased article.  Despite repeated requests, complainant had not paid the balance amount.  Complainant has suppressed this material fact in his complaint.  Owing to non-payment of price, complaint is liable to return the entire machinery purchased along with components.  Opposite party is only a dealer and is not liable to provide service for the machinery.                                                                                                        (cont…..3)

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After appearance of party, as directed by this Forum, 1^st opposite party had sent a technician to rectify the defect pointed out by complainant.  At the time of visit of technician, it was noticed that the complainant did not have trained operators to operate the machinery.  Though the defects were rectified, complainant is yet to pay balance amount towards purchase price.  For these reasons, 2^nd opposite party contends that complaint cannot be maintained and is to be dismissed with costs.

 

          After the filing of written version, case was posted for evidence.  Sufficient opportunity was afforded to both sides to take steps.  On the side of complainant, he himself was examined as PW1 and Exts.P1 to P5 were marked.  Though adjournments were granted to tender further evidence, complainant has not tendered any further evidence.  Hence   case was posted for evidence of 2^nd opposite party.  Proprietor of 2^nd opposite party was examined as RW1 on its side and  Exts.R1 to R7 were marked.  Though complainant was given repeated opportunities for cross examining RW1, he has not chosen to do so.  Hence evidence was closed.  We have also heard the complainant.  No argument notes were filed by opposite party.  Nor were any oral arguments addressed from its side  as neither the party or his counsel was present on 16.11.2022 and thereafter on 1.3.2023, the last posting for hearing.

 

          Now the point which arise for consideration are :

1)  Whether complaint is maintainable ?

2)  Whether there is any deficiency in service or unfair trade practice ?

3)  Whether complaint is entitled for the reliefs claimed for in the complaint ?

4)  Final order and costs ?

 

Point Nos.1 to 3 are considered together :

 

          It is mentioned in the complaint that the machinery was purchased and installed at a total cost of Rs.5,93,540/- by complainant for his livelihood.  During cross examination, PW1 has admitted of having appointed 2 staff members for operating the machinery and to conduct his workshop.  No pleadings are seen addressed in the complaint to the effect that complainant is exclusively using the machinery for earning his livelihood.  As rightly pointed out in the written version filed by 2^nd opposite party, Hon’ble Supreme Court has observed in Cheema Engineering Services Vs. Rajan Singh (1997) 1 SCC 131 that,  it is for the complainant to prove that he alone is using the machinery  by employing himself and his family members exclusively for earning his livelihood.  It was further observed that the term ‘He’ includes members of his family too.  Thus, it was for the complainant to prove that the machinery and workshop were operated by him and member of his family exclusively for the purpose of earning  livelihood.  This aspect is not even completely pleaded in the complaint. There is no                                                                                                  (cont…..4)

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evidence either in this regard.  Under these circumstances, we hold that complainant has not succeeded in proving that he is a consumer as defined under Section 2(1)(d) of the Act, saved by explanation given to the provision.  Hence we find that complaint cannot be maintained by him.

 

          According to complainant, the machinery had started malfunctioning after one month of its purchase.  During his cross examination, he has admitted that there was a password provided for functioning of the machinery.  The technician who had come for rectifying the defect has only entered the key, which is a password, for electronically unlocking the machinery.  Thereafter the machinery had started functioning.  It is also come out in evidence that there is no trained operator for the operation of machinery.  According to 2^nd opposite party, payment were due from the complainant towards purchase price of machinery.  In this context, we notice that Ext.P5 bill pertains to Rs.5,93,540/- and Ext.P2 is for purchase of components worth Rs.1,99,148/-.  Total of both invoices is Rs.7,92,688/-.  Receipts produced by complainant towards payment of purchase price are Ext.P4(a), P4(b) and P4(d) which total to only Rs.5 lakhs.  Even as per  Exts.P2 and P5 invoices, balance payment due from complainant is Rs.2,92,688/-.  Complainant has a case that as per endorsement made by hand upon reverse of Ext.P3, he has paid Rs.6,61,700/- and this payment has been acknowledged by 2^nd opposite party.  However, opposite party has denied this in chief examination affidavit.  During cross examination of PW1, it was  suggested that entries made by hand on the reverse of Ext.P3 are forgeries.  We notice that Exts.P2 and P3 were not produced along with complaint.  There is nothing in the complaint with regard to endorsement on the reverse of Ext.P3, which are now being relied upon by complainant. Ext.P3 is not reliable without corroboration by reliable materials.  A sum of Rs.2,92,688/- is still due to 2^nd opposite party from complainant, towards purchase of wheel balancing machinery and its components.  We notice that 2^nd opposite party,  in its chief examination affidavit, has deposed that complainant had as per the ledger account maintained by 2^nd opposite party, made total purchase of Rs.8,62,414/-.  Towards this, he has only paid Rs.5 lakhs and remaining amount is due.  A copy of this ledger account is not produced.  Proof is only with regard to purchases as per P1 and P2. Yet, amounts are due even as per these bills after considering payments admittedly made. OP2 has contended that machine was locked electronically since entire purchase price was paid.  These contentions are substantiated by the evidence tendered by PW1 himself and documents produced by him.  That being the case, we are of the view that allegations of deficiency in service will not survive, since there is no evidence to show that the consideration in full for the goods and service to be rendered, have been paid by complainant.  We also notice that there was no defect as such.  The machinery was electronically locked due to non-payment of purchase price as agreed upon by complainant.  For these reasons, we find that alleging deficiency in service also not proved.  Hence we  find that on merits also                                                                                                               (cont….5)

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complainant is not entitled for the reliefs prayed for in the complaint.  Point Nos.1 to 3 are answered accordingly.

 

Point No.4 :

 

          In the result, this complaint is dismissed, considering the circumstances, without costs.  Parties shall take back extra sets of copies without delay.

 

                    Pronounced by this Commission on this the   10^th  day of March, 2023

                                                                                          Sd/-

      SRI. C. SURESHKUMAR, PRESIDENT

                                 Sd/-        

      SMT. ASAMOL P., MEMBER

                        Sd/-

     SRI. AMPADY K.S., MEMBER

 

 

APPENDIX

Depositions :

On the side of the Complainant :

PW1         -  Nismon P.J.

On the side of the Opposite Party :

RW1        -  K.C. Thankachan.

Exhibits :

On the side of the Complainant :

Ext.P1      -  Copy of lawyer notice issued by complainant.

Exts.P2 & P3  - Copy of invoice and invoice with endorsement.

Ext.P4      -  Receipts and challan.

Ext.P5      -  Invoice dated 19.11.2018. 

On the side of the Opposite Party :

Ext.R1     -  Copy of tax invoice dated 1.8.2019.

Ext.R2     -  Copy of ticket confirmation letter.

Ext.R3     -  Copy of letter issued by 1^st opposite party to 2^nd opposite party.

Ext.R4     -  Copy of Aadhar Card.

Ext.R5     -  Copy of checking information.

Ext.R6     -  Estimate for Rs.300/-.

Ext.R7     -  Report of service of the machinery by the mechanic.

                                                                                     

                                                                                      Forwarded by Order,

 

 

                                                                                  ASSISTANT REGISTRAR