Kerala

Idukki

CC/15/384

Mr.Biju S/o Mathew - Complainant(s)

Versus

The Manager R Tech Masters Choice - Opp.Party(s)

16 Aug 2022

ORDER

DATE OF FILING : 29.12.2015

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the  16^th  day of   August, 2022

Present :

SRI. C. SURESHKUMAR                   PRESIDENT

SMT. ASAMOL P.                               MEMBER

SRI. AMPADY K.S.                            MEMBER

CC NO.384/2015

Between

Complainants                                                  :  1.  Baiju, S/o. Mathew,

           Nellikkunnel House,

 Thekkinthandu,

 Vathikkudy.

       2.  Preethi W/o. Baiju,                                       Nellikkunnel House,

 Thekkinthandu,

 Vathikkudy.

 (By Adv: Shiji Joseph)

And

Opposite Parties                                              :  1.  R-Tech the Masters the Choice,

                                                                                      Represented by

 The Manager, Reji Mathew,

 Chakkittayil House,

 Chellarkovil, Kumili.

            (By Adv: N.K. Vinodkumar)

2.  Blessymol K. Mathew, W/o. Reji,    

     Chakkittayil House,

                                                                       Chellarkovil, Kumili

       3.  Anju, W/o. Johny,

                                                                       Kochuparambil House,

                                                                       Chellarkovil, Kumili.

                                                                   4. Thomas Varghese,

                                                                       Kalarickal House,

                                                                       Kunthalampara,  Kattappana.

 

                                                                                                              (cont....2)

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O R D E R

 

SRI. C. SURESHKUMAR, PRESIDENT

 

1. This is a complaint filed under Section 12(1) of the Consumer Protection Act, 1986 (the Act, for short).  Complaint averments are briefly narrated here under :

 

First complainant is husband of  2^nd complainant.  1^st opposite party is a firm, R-tech the Masters  Choice, by name, represented by its manager.  Opposite parties 2 to 4 are partners of 1^st opposite party firm.  Both complainants are educated and unemployed.  They had participated in an employment programme run by Kerala Government, known as Uva Kerala Nava Kerala.  The programme is aimed at selecting unemployed youth for training conducted by the Kerala Financial Corporation.  1^st complainant had participated in the training program conducted by KFC at Kattappana.  In fact, he was the team leader of his team.  He had intended to start a goat farm and had joined the training programme for the said purpose. Incidentally, opposite parties 1 and 2 were also participants of the same program. Complainant had met them and soon they have  become very close.  Both opposite parties had made the complainant believe that running a cocoa drier unit would be more profitable than conducting goat farm and believing their words, 1^st complainant had changed his project to cocoa beans drier unit.  KFC was offering interest free loans for feasible projects like the one chosen by complainant.  Hence a project was submitted by complainants 1 and 2 for starting  cocoa beans drier unit as means of self-employment. After culmination of training, to start the unit, complainants had availed a loan of Rs.6,66,000/-  from KFC, Kattappana.  Thereafter 1^st complainant had met 1^st opposite party and placed an order for a fully automatic cocoa drier unit costing Rs.5,84,850/- with his firm.  Quotation was given at the time when 1^st complainant and his friends had visited the manufacturing unit of opposite parties.  It was approved by KFC also.  As per quotation, 1^st opposite party had agreed to supply a fully automatic cocoa beans drier unit which could dry 1200 kg of wet beans in 4 to 5 hours.  Opposite parties had assured the complainant that consumption of fire wood will be only 160 kg for drying 1200 kg wet beans.  Opposite parties had given 5 years warranty for the machine.  Complainant had paid the entire price of the unit The unit was put up in the premises of complainant’s brother at Thekkinthandu, which was taken on lease by complainants, for getting near access to raw materials.  After erection of                                                                                                                              (cont....3)

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machine, complainants, to their disappointment, found that drier could dry only  smaller quantity of beans than what was mentioned by  opposite parties.  So also, it required 9 to 10 hours for drying 1200 kg wet beans.  Fire wood consumption was also more than what was represented, being 650 kg.  Complainant had to spend more than Rs.2.5 per kilogram for drying beans.  For drying cocoa beans seeds, drier unit should be heated up to a temperature ranging between 80 to 120 degrees.  However, maximum temperature which could be attained by the unit supplied by opposite parties was below 60 degrees.  Upon enquiry, complainant had come to know that the drier supplied by opposite parties was not a cocoa beans drier, but only a semi automatic cardamom drier.  Despite repeated demands, opposite parties have not replaced the machine, though assurances were given by them, to the contrary.  Opposite parties have cheated complainants by supplying a cardamom drier, by misrepresenting it as a cocoa beans drier.  A cardamom drier of the same size and capacity would costs only Rs.3 lakhs. Opposite parties,  have charged Rs.5,84,850/- for the unit which was only a semi automatic one.  Due to supply of defective drier, complainant was unable to run the project and to repay the loan. Complainants had to take an OD loan for repaying the loan taken for purchasing the unit.  So also, they had to employ labourers for drying cocoa beans in open space.  An amount of Rs.3 lakhs was so spent by them.  Complainants hence pray for a direction against opposite parties 1 and 2 to take back the machine supplied by them and repay Rs.5,84,850/- with 12% interest from the date of receipt of amount from complainants, till the date of repayment.  They are also seeking an award of Rs.3 lakhs from opposite parties as compensation for financial loss, pain and mental agony caused due to defective product, along with Rs.10,000/- as litigation cost.

 

2. Opposite parties 1 to 4 have appeared and filed joint written version.  Their case is briefly narrated here under :

 

According to them, complaint is not maintainable in law or upon facts.  Complainants are not consumers as defined under Section 2(1)(d)(ii) of the Act, since purpose of the project was commercial.  There is no defect in the goods supplied or deficiency in service provided by opposite parties.  It is true that opposite parties had participated in the training program conducted by KFC and that the 1^st complainant also attended the same program at Kattappana.  However, it is incorrect to say that the 1^st complainant had changed his project to a cocoa beans drier unit upon instigation by opposite parties 1 and 2.  After training program was over, at the request of 1^st complainant, opposite parties had selected                                                                                                                  (cont....4)

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him as staff of their drier manufacturing unit.  1^st complainant had also represented the manufacturing unit of opposite parties as their sales representative in Uva Kerala Nava Kerala programme, conducted by KFC, at Kazhakkoottam, Thiruvananthapuram in 2015 along with opposite parties 1 and 2 and their staff Abraham Chacko, Kachanam and Aneesh.  1^st complainant had approached KFC seeking a loan of Rs.6,60,000/- after submitting a project report for the same amount for beginning a cocoa beans drier unit. Complainant had worked with opposite parties from the very inception of their manufacturing unit.  He has knowledge about the configuration and specification of units and uses of various driers.  1^st opposite party had never offered a fully automatic cocoa beans drier unit as alleged in complaint for an amount of Rs.5,84,850/-.  In fact, complainant and his brother had, on two occasions, purchased cocoa seeds at Anakkara and tested whether cardamom drier manufactured by opposite parties can be utilised for drying cocoa beans also.  After having so tested the unit, they had ordered for a  unit to be installed in the house premises of 1^st complainant’s brother at Thekkinthandu.  Intention, actually was only to enjoy / obtain an interest free loan from KFC.  In fact, 1^st complainant himself had prepared the quotation pertaining to the drier unit for Rs.5,85,000/- and given it to the Corporation.  All documents submitted before KFC were in fact prepared and signed by 1^st complainant.  1^st opposite party along with 1^st complainant Abraham Chacko, Kachanam and Aneesh had installed the drier unit in the residential premises of 1^st complainant’s brother.  It is incorrect to say that 1^st opposite party and others had agreed to supply a fully automatic cocoa beans drier unit capable of drying 1200 kg beans in 4 to 5 hours, using only 150 kg of fire wood as fuel.  No such assurances were given by opposite parties.  1^st complainant had purchased the drying unit based upon the experiment done by him along with his brother using cardamom drying unit manufactured by opposite parties at their premises. Opposite parties had received only Rs.3,04,850/- from KFC, Kattappana branch, though quotation was for Rs.5,84,850/-.  Remaining amount was transferred to the bank account of 1^st complainant, since he was  craftsman of the unit.  Secondly, opposite parties have taken only the actual material cost of drier.  Even from this amount i.e., Rs.3,04,850/-, 1^st opposite party had returned Rs.1,44,000/- to 1^st complainant through his bank account as per terms previously agreed between them and 2^nd opposite party. An invoice for Rs.5,84,850/- was issued only to assist the 1^st complainant in availing interest free loan.  Before installing drier unit, 1^st complainant had twice visited the manufacturing unit of opposite parties, experimented drying of cocoa seeds in the drier unit manufactured there and after being fully satisfied of its functioning, 1^st complainant had installed the drier unit                                                                                                                   (cont.....5)

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manufactured by opposite parties, as mentioned earlier, in his brother’s property at Thekkinthandu.  Drier supplied by opposite parties was fully functional under  specified conditions.  In fact, the unit was installed 4 months prior to invoice date and the complainant was using the unit during this period.  It was initially installed only with a 2HP single phase motor as the complainant did not have 3 phase connection.  Subsequently, 3 phase connection was obtained by 1^st complainant and 2 HP motor was replaced with 5HP 3 phase motor.  Accessories like fan, shaft, glover motor etc. were also changed for Rs.50,000/-.  Before inspection of KFC engineers, 1^st opposite party along with 1^st complainant had cleaned and repainted the unit.  Complainants have not contacted opposite parties for any defect in manufacturing or otherwise of the drier.  Complainants have not sustained any injury or irreparable loss as claimed by them.  Drier unit supplied was free of manufacturing defect.  There was no deficiency in service either.  Opposite parties have not resorted to unfair trade practice either.  Complainants are not entitled for any of the reliefs claimed in the complaint.  Same is to be dismissed with costs and compensatory costs of opposite parties.

 

3.  After filing of written version, case was posted for evidence after affording sufficient opportunity to both sides for taking steps.  During the pendency of proceedings, upon application by complainants, an Expert Commissioner was deputed for inspection of the drier unit.  Expert had, after carrying out inspection with notice to both sides, submitted a report accompanied by 4 photographs of the machine.  Objections were filed by opposite parties to the Commission report.  During trial, 1^st complainant himself and 2 others were examined as witnesses,  along with Expert Commissioner, on his side as PWs1 to 4.  Exts.P1 to P7 were marked on his side.  PW4 is the Commissioner.  He had deposed of having prepared the report and of having taken 4 numbers of photographs appended to report. However these were not marked . Hence report is marked as C1 and photographs as C2 series 4 in numbers now. On the side of opposite parties, 1^st opposite party and one witness  were examined as RWs1 and 2 and Exts.R1 to R3 were marked.  Thereafter evidence was closed and case was posted for final hearing.  At this juncture, complainant had filed an application to amend the complaint since there was a clerical mistake, in showing the cause of action as such.  Opposite parties had objected to this petition.  After hearing both sides, this Commission had, as per Order dated 2.11.2021, allowed the prayer for amendment, upon costs of Rs.1000/-.  Accordingly complaint was amended and cause of action was amended, by showing that it had first arisen on 18.6.2014, 17.11.2014, 23.1.2015and continuously thereafter. 

                                                                                                    (cont....6)

-  6  -

4. Opposite parties had filed an additional written version contending that amendment has been prejudicial to them, since complainants had after evidence was over, shown the dates to suit their case. After filing of additional written version, further opportunity was given to both sides to give evidence.  However, both sides submitted that they are not adducing any further evidence.  Hence evidence was closed.  Both sides have filed argument notes and addressed oral arguments also.  Now the points which arise for consideration are :

 

1)  Whether complaint is maintainable ?

2)  Whether goods / product supplied by the opposite parties was defective  or not in accordance with the specifications promised by them, as agreed between the parties ?

3)  Whether there was deficiency in service on the part of opposite parties in not, replacing the machine with a proper one or returning the price paid by complainant after taking back the machine ?

4)  Whether there was any defect in the drier supplied by opposite parties or deficiency in their service ?

5)  Whether opposite parties had resorted unfair trade practice ?

6)  Whether complainants are entitled to get any of the reliefs claimed against opposite parties ?

7)  Final Order and costs ?

 

5.  Point Nos.1 to 6 are considered together :

 

          Before considering the rival contentions, it would be apposite to consider documentary evidence tendered in this case.  Of the 7 documents admitted from the side of complainant, Ext.P1 is sanction communication from the bank addressed to 1^st complainant, dated 19.9.2014.  It is accompanied by 4 annexures.  Ext.P2 is quotation dated 18.6.2014 issued from the concern of 1^st opposite party addressed to the Manager of the firm constituted by complainants and 2 others.  Ext.P3 series are a letter addressed to the 1^st complainant from KFC dated 25.7.2016 containing information requested by him under RTI Act and copies of 4 documents.  Ext.P4 is an acknowledgement issued by General Manager of District Industries Centre, Idukki, dated 15.12.2014, regarding cocoa processing unit of the firm represented by complainants.  Ext.P5 is a quotation from Kuttamthadathil Traders and Manufacturers, Kumily, given to 1^st complainant with regard to a cocoa drier of 1250 kg capacity.  Ext.P6 is another quotation given to 1^st complainant from a concern Aayush Engineering Works, Kumily, dated 12.7.2016,                                                                                                            (cont....7)

• 7  -

for supply of semi automatic cocoa seeds drier machine.  Ext.P7 is copy of a pamphlet issued by concern of opposite parties regarding cardamom drier with energy saving technology.  There are 2 photographs in this pamphlet.  Of  the persons shown in the photographs, 1^st complainant has been identified as one of the persons therein by RW1 and 2 as staff of opposite parties concern. 

 

          From the side of respondents, as mentioned earlier, Exts.R1 to R3 were admitted in evidence.  Ext.R1 is photograph showing persons at work at a work site.  Ext.R2 is photograph of the drier unit involved in this case.  Ext.R3 is statement of account pertaining to the concern of 1^st opposite party.

 

          Ext.C1 and accompanying photographs are the remaining documents.  As  mentioned earlier, Ext.C1 is the Commission Report.

 

          Coming to the notes, able counsel for complainant has briefly adverted to the case of  complainant as narrated in their complaint.  Paragraph 8 refers to the contentions advanced in the written version filed initially.  Dispute is seen dealt with in paragraphs 7 to 16. It is contended that purchase of the drier unit was for the purpose of self-employment of complainants 1 and 2 and that being so, transaction cannot be considered as a commercial one.  It is further contended in the notes that DW1 has given evidence that he has no experience in manufacturing cocoa drier and further that he has no technical knowhow or expertise in manufacturing drier units.  When questioned about his qualification, DW1 would only say that he has an ITC qualification from a private institution in Kattappana.  However, no diploma or certificate issued from said institution was produced.  PW4, the Commissioner has given evidence that cocoa drier and cardamom drier are different types of drying units.  Material used for manufacturing both are different.  There is nothing to prove that complainant was an employee of 1^st opposite party except for a photograph, wherein he is shown to wear the uniform of the workers of 1^st opposite party’s concern, for exhibition purposes, in the stall of Uva Kerala Nava Kerala. It was done only for publicity and upon request by opposite parties. That intention of raising such a contention is dubious.  PW4 has deposed that drier was defective.  These defects are evident from Ext.C1 report also.  Complainant has proved his case by examining PWs1 to 4 and also by proving Exts.P1 to P7 documents along with Ext.C1.  Drier unit supplied by opposite parties is not suitable for drying cocoa beans.   Complainants were unable to use the drier and resultantly they sustained financial loss and mental agony.  Therefore complaint is to be allowed. 

                                                                                                              (cont....8)

• 8  -

          In the notes filed by learned counsel appearing for opposite parties 1 to 4, rival pleadings are disclosed at length.  In pages 1 to 5 and pages 6 to 13, learned counsel has disclosed the evidence tendered in this case at length and pointed out inconsistencies in the evidence of witnesses for the complainants, in particular, evidence of PW4, Commissioner, with regard to his Ext.C1 report about defects noted in the machine.  It is contended that evidence tendered during cross examination by PW1 and evidence of PW2 would probabilise the contention of opposite parties that the 1^st complainant was a worker in the concern of 1^st opposite party which had manufactured the drier, which was allegedly purchased by him.  According to opposite parties, in fact, the invoices were raised only for the purpose of assisting the 1^st complainant in securing loan from KFC, as he was their employee.  Allegations are levelled to the effect that loan documents, including quotation were prepared by the 1^st complainant as he was a worker of the institution and has free access to the office.  It is also contended that as per evidence tendered by PW4, the Commissioner, drying unit was installed in open space.  That C1 would  show that the cocoa beans used for testing the unit were wet and contained in a sack.  Fire wood from rubber trees was used in the furnace. According to opposite parties, these are factors which would effect the temperature inside the drying unit.  Commissioner has not removed the fire wood and examined them.  He has also not examined whether the beans took 10 to 12 hours to dry as mentioned in the complaint either.  As far as, Exts.P5 and P6 are concerned, these quotations are not relevant for consideration. 

 

          Thus, these are the rival contentions advanced.  As far as question of maintainability is concerned, it is mentioned in the complaint that the unit was intended for self-employment of complainants 1 and 2 who were educated and unemployed. Therefore complaint will not be hit by explanation of Section 2(d) of the Act.

 

          However, we notice that evidence tendered to establish that the drying unit supplied was defective or not suitable for the purpose of complainants and also to prove that there was deficiency in service on the side of opposite parties is far from being sufficient.  Firstly, complainant does not mention the date on which drier unit was installed.  Going by Exts.P1 to P3 series, it would appear that the unit was installed either in last month of 2014 or in January 2015.  Complaint was thereafter filed before this Commission on 29.12.2015.  Though it is mentioned in the complaint that there were repeated requests from the side of complainants for replacing the machine, specific dates or even month in which these requests were                                                                                                                       (cont.....9)

• 9  -

made are not seen mentioned in the complaint.  No evidence has been tendered with regard to specific request made in the proof affidavit of PW1 either.  According to 1^st opposite party, he had once gone there to see whether the drying unit was functioning or not and that there were no repeated request for repair or replacement of the unit.  There is no evidence to show, what was the condition of the machine, when it was installed.  Apparently, it was installed in the premises of the brother of complainant as required by the 1^st complainant himself.  If there were to be any defects in the unit installed or if the drier was not of requisite specifications, obviously, the complainant would have informed the opposite parties about the same.  However, no such case is projected, in complaint.                            That apart,  the complaint does not even mention when the unit was installed in the premises of complainant’s brother.  Therefore it is to be presumed that drying unit had no quality or  maintenance issues at the time when it was installed.  There is no evidence to show that there were repeated requests from the side of complainants for replacement of the machine or for any kind of maintenance as such.  It is trite law that the burden is upon complainants  to prove defect in goods when he files a consumer complaint alleging the same.  In the instant case, complainant has not succeeded in proving that the machine was wanting in quality or that it was unsuitable for their purpose.  Their case that the machine was not  of specifications given by them and that replacement was repeatedly requested is also unbelievable, for the reasons mentioned above.  What the complainant is now relaying upon is the Commissioner’s report which details the defects of the drier unit.  It is seen from the proceedings of this case that after the filing of complaint, on 29.12.2015, complainant has moved an application for examination of the machine by expert Commissioner only on 13.8.2016.  Thereafter machine was examined by the Commissioner only on 25.1.2017.  We have already observed that the machinery was installed either in December 2015, or in the first month of 2015.  Commission inspection of machine was after 2 years, of its installation.  PW4, the Commissioner (rank as wrongly shown as PW3 in the notes filed by opposite parties) has reported that the machinery was installed in an open space.  He has also opined that it should be installed only in a closed room.  There is nothing to show that machinery was secured from ravages of nature or pilferage.  What ever defects the Commissioner has noticed could be caused due to climatic conditions also,  in particular, rusting of iron parts.  We also notice that the Commissioner has reported of that a PVC pipe was being used as an inlet pipe.  As mentioned earlier, we are not aware, what was the nature of machinery when it was installed in 2015, without their being evidence regarding nature of machinery installed as on the date of installation, it cannot be said that parts found to be corroded and the PVC pipe                                                                                                                  (cont.....10)

• 10  -

noticed by him in 2017 were the same ones which were installed in 2015.  We have also noticed that there are admissions by PW4 to the effect that nature of fire wood used and wet sack used for containing beans, may also effect the temperature inside the drier.  Apart from this, the manner in which the unit is being maintained will also tell upon its functioning and condition of its parts.  When  all the factors are considered, it cannot be said that the machinery installed was defective from its inception or that it was unsuitable for the purpose of complainants as claimed by them.  If it were totally unsuitable, then ordinarily the complainant would have sought for its replacement or return of their sale price soon after installation, at least within a week of its installation, if not earlier.  In the instant case, no such request is seen made, except this complaint which comes more than eight months after installation of unit.

 

          Yet another contention advanced is that 1^st complainant had attended the training programme of KFC in connection with his initial project of goat farm.  He has given evidence that he had met opposite parties 1 and 2 in the course of training program and was in fact induced by them into changing his project to that of a cocoa beans drying unit.  Evidence tendered by PW1 in this regard is far from convincing.  PW2 is the manager of KFC branch from where loan was availed for the unit, by complainants.  PW2 has given evidence that he had attended training programme of KFC at Thiruvananthapuram in his capacity as manager of KFC.  1^st complainant was also a participant and that the complainant was present in the stall of 1^st opposite party wherein other employees of 1^st opposite party concern were also present.  PW2 has also given evidence that both 1^st complainant and 1^st opposite party were friends and they had come together to the bank for availing the loan.  During cross examination, PW2 would clarify that representatives who will be manning the stall would be  employees of the concern or persons who is conducting the stall. That the 1^st complainant was present in the stall of 1^st opposite party.  That in fact, 1^st complainant was leader of the staff there.  RW2 has also given evidence in support of case projected by RW1 that 1^st complainant was a staff in the concern of 1^st opposite party.  RW2 have given evidence that 1^st complainant had worked in the concern of the 1^st opposite party from April 2014 onwards.  That he along with 1^st complainant had together manufactured cocoa and cardamom drying units. That they had also helped in distributing those manufactured units to various concerns.  He would further depose that R1 photo has been taken from the work place where 1^st complainant along with others were engaged in manufacture of drying units.  That in September 2014, he had gone to the premises of complainant’s brother where the drying unit involved in this                                                                                                                                (cont....11)

• 11  -

dispute was installed.  In 2015 January, installation was completed.  During his further chief examination, RW2 has stated that 1^st complainant was present in Ext.R1 photograph, which was taken from the engineer workshop of 1^st opposite party.  He has also identified 1^st complainant as one of the persons in the photograph contained in Ext.P7 which was proved during cross examination of RW2. He has admitted that the 1^st complainant was posing as a customer in the photograph contained in Ext.P7.  It is pertinent to note that Ext.P7 is only a pamphlet  copy which was meant for advertisement, in the training cum exhibition program by KFC wherein R-Tech, the concern of 1^st opposite party, had maintained a stall.  The fact that 1^st complainant had admittedly posed as a customer in the said photo would itself go to show that he was associated with the concern of opposite party.  As far as Ext.R1 is concerned, there is virtually no cross examination regarding evidence of RW2 that 1^st complainant was one of the workers shown to be working at the work place of 1^st opposite party.  He was also wearing the uniform of factory workers in the concern of opposite parties.  This evidence of RW2 along with that of PW2 would go to show that the 1^st complainant had also worked in the concern of opposite parties as their worker.

 

          However, the question here is whether a sale has taken place of a drying unit between complainants and opposite parties.  Complainant is a concern of which 1^st and 2^nd complainants along with 2 others are partners.  1^st opposite party, his concern R-Tech by name, is represented by its manager and other partners 2 to 4.  It may be that 1^st complainant was probably an employee of the concern run by opposite parties, but the fact that there was a sale of drying unit by opposite parties to his firm, is evidenced by Exts.P1 to P3 series.  Ext.P1 is a loan sanction letter.  It is mentioned therein that the purchase of machinery as per annexure 3 should be that of R-Tech cocoa C1, which is the machinery manufactured by the concern of opposite parties.  Ext.P3 series are documents and information obtained from KFC by the 1^st complainant under the RTI Act.  First 2 documents appended to the letter of KFC dated 25.7.2016 are photo copies of receipts purportedly issued by 1^st opposite party as manager pertaining to R-Tech for Rs.2,80,000/- and Rs.3,04,850/-.  Though during his cross examination, RW1 has disputed of having issued receipt dated 17.11.2014, in the written version filed initially, he has admitted that quotation showing cost as Rs.5,85,000/- for the unit was issued by him.  He has also admitted that a tax invoice was issued for purchase of machinery for a total of cost of Rs.5,84,850/-.  Though RW1 would contend that this invoice was raised only to assist the 1^st complainant who was also an employee of his concern, the fact that a quotation was given and later invoice was also drawn                                                                                                         (cont.....12)

• 12  -

up for sale of unit will prove that there was  sale of machinery worth Rs.5,84,850/- from his concern to the concern of 1^st complainant.  It may be that he has given an inflated invoice, probably at the instance of complainants.  Evidence of PW2 that both complainant and 1^st opposite party had come to bank for getting loan is relevant.  When all these things are considered together, it is evident that 1^st opposite party had issued quotation and invoice with regard to sale of drying unit manufactured in his concern to the concern of complainants.  There is also evidence to the effect that drying unit was installed in the property of 1^st complainant’s brother by opposite parties and their employees.  It may be that 1^st complainant had also taken part in installation of the unit.  However, this is not sufficient to prove that there was no sale of the machinery to him from the concern of opposite parties.  We also find that the quotation does not speak of any guaranty which the complainant claims so given to him by opposite parties at the time of purchase.  Opposite parties had denied of having issued any warranty.  It is also pertinent to note that the quotation submitted is quite brief which does not contained the details of machinery like its parts and the materials used for the construction of furnace, drying platform, inlet and exhaust pipes.  There is no evidence to prove that assurances were given that only 150 kg of fire wood is necessary to dry 1200 kg of wet cocoa beans and that too within a time span of 4 to 5 hours by the drier as claimed in the complaint, except the interested testimony of PW1.  Evidence of PW2 and RW2 reliably proves that 1^st complainant was a worker of opposite parties and had fair knowledge about manufacturing process of driers and their functioning. As contended by opposite parties he was also involved in the making of drier unit purchased by him and must have also assisted in it’s installation. He was well aware of it’s specifications and functioning for which no assurances were required from opposite parties. Hence his evidence that opposite parties had duped him by giving a semi automatic cardamom drier which was much cheaper that the disputed drier is not at all convincing. Evidence of RW1 that inflated price was shown in invoice is reliable, considering the fact that 1^st complainant was his worker. As far as Exts.P5 and P6 are concerned, these are obviously priced below the unit which is shown to cost Rs.5,84,850/- in Ext.P3 series. But it is pertinent to note that the unit was overpriced at the instance of 1^st complainant so that  more amount could be obtained from bank as loan.         

         

          Contentions advanced that 1^st and 2^nd opposite parties had made the complainant believe that cocoa processing unit will be far profitable from goat farming are also far from convincing and defy logic.  1^st complainant was admittedly adjudged as best participant in the training programme conducted by                                                                                                                       (cont.....13)

• 13  -

KFC for young entrepreneurs. For if he had really intended  to start a cocoa drying unit as claimed by him, he would have made enquiries regarding the cost of cocoa drying units from other concerns also before purchasing it from opposite parties.   The alertness exhibited  by him in collecting Exts.P5 and P6 specifically to prove that unit manufactured by opposite parties was over priced would go to show that he was quite capable of doing this even before purchasing the same.  Yet he had not done so. That apart, he was an employee of opposite parties and had knowledge about manufacture of drier units. Evidently, the price of machine was shown as Rs.5,84,850/- at the behest of  1^st complainant himself.  May be his purpose was only to hoodwink the Corporation and to pocket the loan amount. That is probably the reason to install the drier in open space. In so far as this Commission is concerned further discussions in this regard are not necessary.  However, we do suspect that there is a shady part to the loan transaction to which 1^st complainant was a party with active assistance of 1^st opposite party.  Though it is proved that there was  sale of  machinery, namely, a drier unit by the concern of 1^st opposite party to that of the complainants, there is no evidence to prove that the drying unit installed by opposite parties was  unsuitable for their purposes as contended by complainants.  Evidence tendered is also not sufficient to prove that there was any deficiency in service or that opposite parties had resorted to unfair trade practice to defraud the complainants.  Therefore, we find that complainant is not entitled for the reliefs prayed for.  Point Nos. 1 to 6 are answered accordingly. 

 

6.  Point No.7:

 

In the result, this petition is dismissed, under the circumstances, without costs.

 

            Pronounced by this Commission on this the   16^th  day of August, 2022

 

 

                                                                                          Sd/-

SRI. C. SURESHKUMAR, PRESIDENT

                                                                      Sd/-

SMT. ASAMOL P., MEMBER

                                                                      Sd/-

SRI. AMPADY K.S., MEMBER

 

 

• 14  -

APPENDIX

 

Depositions :

On the side of the Complainant :

PW1         -  Baiju Mathew.

PW2         -  Mohanan V.G.

PW3         -  Joby Jose.

PW4         -  Avarachan K.P.

On the side of the Opposite Party :

RW1        -  Reji Mathew.

RW2        -  Aneesh M.V.

Exhibits :

On the side of the Complainant :

Ext.P1      -   loan sanction communication.

Ext.P2      -  quotation given by 1^st opposite party.

Ext.P3      -  letter from KFC, dated 25.7.2016.

Ext.P4      -  acknowledgement from District Industries Centre, Idukki.

Ext.P5      -  quotation from Kuttamthadathil Traders & Manufacturers, Kumili.

Ext.P6      -   quotation from Aayush Engineering Works, Kumili.

Ext.P7      -  pamphlet of opposite party.

On the side of the Opposite Party :

Ext.R1     -   photograph.

Ext.R2     -   photograph.

Ext.R3     -   statement of Account.

 

 

                                                                                Forwarded by order,

 

 

                                                                         ASSISTANT REGISTRAR