District Consumer Disputes Redressal Commission, Hooghly
PETITIONER
VS.
OPPOSITE PARTY
Complaint Case No.CC/105/2021
(Date of Filing:-24.08.2021)
Dildar Ali Khan, residing at
Village:- Beurgram,
P.O. Kapshit and P.S Arambagh
District:- Hooghly-712613
-Versus -
- The General Manager
Preet Agro Industries Pvt. Ltd.
Patiala Road, Nabha, Punjab, Pin-147201
- M/S khan Barkat Traders
Chaknerta, Goghat, District:- Hooghly, Pin:- 712602
- Indusind Bank Ltd.
Duckback House, (2nd floor)
Tractor and Firm Equipment Financier
41, Shakespeare Sarani
………Opposite Parties
Before:-
Mr. Debasish Bandyopadhyay, President
Mrs. Babita Choudhury, Member
Mr. Debasis Bhattacharya, Member
PRESENT:
Dtd. 10.05.2024
Final Order/Judgment
Debasis Bhattacharya:- Presiding Member
Having been aggrieved over and dissatisfied with the purchase of a ‘Combine Harvester’ machine worth Rs.25,00,000/- from the opposite party 2, selling dealer, its failure to operate since installation, post sales services of the OPs and indifference of OP 1 manufacturing Company and OP 2 seller of the machine, towards replacement of the defective machine, the instant complaint petition has been filed by the complainant u/s 35 of the Consumer Protection Act 2019.
The fact of the case as depicted by the Complainant is that the complainant being a cultivator having some landed property was desirous of purchasing a ’Combine Harvester’ machine for easy and quick harvesting and also for saving labour charges. For this, he approached to the OP 2 selling dealer, an authorized dealer of the OP 1 manufacturing company.
Financial assistance in the form of a loan was arranged by OP 2 through OP 3 Bank.
Accordingly, loan agreement was executed and the machine was purchased. The purchase was made under the invoice and delivery challan dtd.08.11.2020, with one year warranty period and free servicing.
However, as the machine was delivered to the complainant’s place, the OP 1’s men turned up for the purpose of imparting the operating procedure to the Complainant. But they failed to operate the machine and finally left the place.
As subsequent attempts also by OP1’s men to operate the machine proved to be a failure, OP 2 was requested to replace the machine by a new one and reportedly OP 2 agreed to that proposal.
But thereafter OP2 informed that the developments were intimated to OP 1 and the matter would be resolved by them.
But both OP1 and OP2 tried to keep away from the imbroglio and in fact denied that there was any defect in the machine.
Thus on one hand, replacement of the machine was a remote possibility so far OP 1 and OP 2 were concerned and on the other the OP financial institution was pressing hard for repayment of the loan.
Finding no other alternative, the Complainant finally approaches to this Commission with a prayer to impose directions upon the OP 1 and 2 either to replace the machine or to pay back the consideration money with applicable interest, to pay Rs.2,00,000/- as compensation for causing mental agony and harassment, litigation cost of Rs.20,000/- and other relief or reliefs as per entitlement.
Whether the Complainant can be treated as a consumer will be discussed in the concluding part of the order.
The Complainant and OP2 are resident/having office within the district of Hooghly. The claim preferred by the complainant does not exceed the limit of Rs.50,00,000/-
Thus, this Commission has territorial as well as pecuniary jurisdiction to proceed in the instant case.
Now, the issues whether there was any deficiency of service on the part of the opposite parties and whether the Complainant is entitled to get any sort of relief will be taken together as the issues are mutually inter-related.
The Complainant has annexed copies of certain documents viz. invoice, delivery challan etc. along with the complaint petition.
Evidence on affidavit and brief notes of argument filed by the Complainant are almost replicas of the Complaint petition.
Defense case:-All the OPs contested the case by filing written version, evidence on affidavit and brief notes of argument.
OP 1 in their representations submitted at different points of time denied all the material allegations leveled against them. They put stress on the issue that they had no seller consumer relationship with the complainant as the machine was not sold by them. They also pointed out that initially when the item in question was sold by them to OP 2 it was noted in the invoice that ‘received the above goods to my entire satisfaction along with tool kit. I will be responsible for all kinds of damages, accidents and other losses after taking delivery from the Company’. The invoice was counter signed by OP 2. OP 1 further points out that the invoice raised on OP 2 incorporated the condition that ‘goods once sold are not returnable’
From this, OP 1 draws the inference that as and when the machine was delivered to the OP 2 Khan Barkat Traders, from that point of time the entire liability and responsibility should have been shouldered by OP 2.
Besides, OP 1 also questions the maintainability of the complaint petition in connection with the appropriate territorial jurisdiction as it was mentioned in the tax invoice that ‘all subject to Nellore jurisdiction’
OP 1 also denies to admit the fact that the Complainant is a consumer under the Consumer Protection Act 2019.
They also deny the fact that the non-functioning of the machine was intimated to them either by the complainant or by the OP 2 reseller.
Now OP 2 clarifies in their representations that they are the authorized dealer of the OP 1 manufacturing Company.
OP 2 admits that the machine was purchased by the Complainant from them and the machine was not functioning. It is also admitted by OP 2 that ‘experts’ went to the Complainant’s place but failed to operate the machine. OP 2 claims to have intimated OP1 manufacturing Company the entire development through e-mail for necessary replacement but OP 1 refused to act accordingly.
OP 1 makes an attempt to pass over the responsibility by claiming that the defect was a manufacturing one and the remedy for the same should be expected from the manufacturing dealer only and it is the manufacturing dealer only who is under obligation to refund the consideration money.
As OP 3 Bank was the financier only in the instant case and as the Complainant has not prayed for imposition of any direction upon OP 3, the representations of OP 3 are not required to be discussed in elaborate details.
However while advancing the arguments, OP 3 Bank points out that a financial assistance of Rs.12,00,000/- in the form of a loan was approved in favour of the Complainant for purchasing the machine and a loan agreement was executed in this regard.
Simultaneously the Complainant entered into an Arbitration agreement in terms of the Arbitration and Conciliation Act, 1996.
However, allegedly the Complainant/ Borrower failed and neglected to repay the installments in terms of the said agreement. Thus the loan agreement was terminated.
OP 3 brings attention to the issue that the Complainant is not a consumer within the meaning of the term ‘Consumer’ as defined u/s 2(1) (d) of the relevant Act as it transpires that the machine was purchased for business purpose and no document was produced to substantiate that the earning from the use of the machine was the only source of livelihood of the Complainant.
Decision with reasons:
Firstly it will be worth mentioning that no OP has filed any petition on the ground of maintainability point, jurisdiction point and cause of action issue.
These issues have only been raised in the written versions of the OPs in routine manners without assigning any specific reason or clarifications.
Thus the Commission does not find any reason to discuss on these issues at length.
Now so far as the merit of the case is concerned there are two vital issues which are required to be discussed before coming to the decision that whether there was any deficiency of service and whether the Complainant is entitled to any relief.
Firstly the Complainant could not establish by producing conclusive evidence that earning made out of deployment of the machine was the sole source of his livelihood. Thus the question remains that whether the Complainant can be regarded as a consumer in terms of the extant provision of the Act.
Therefore possibility of purchasing the machine for commercial purpose cannot be ruled out.
Secondly in the additional brief notes of argument, in the third paragraph the Complainant states that the machine started non-functioning after working about 13 hours and referring to service cards of OP 2 it is further claimed that that the machine was defective since purchase.
The Complainant claims that as the service cards mention the defects of the machine, there is no need of expert opinion.
However, in no circumstances this District Commission can entertain these almost unauthenticated service cards as expert opinion. The Complainant on the other hand at no stage of the hearing of the case insisted for authenticated opinion of any technical expert to substantiate that the machine was defective and was not operating right from the date of delivery.
In absence of any expert opinion in this regard the Commission is not in a position to ascertain whether the machine was a defective one and defective since delivery.
In the result it is accordingly
ORDERED
that the complaint case bearing no.105 of 2021 be and the same is dismissed on contest.
However there is no order as to costs.
Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand against proper acknowledgement or sent by ordinary post for information and necessary action.
The final order will be available in the respective website i.e. www.confonet.nic.in.
