DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD
Dated this the 16th day of November 2016
Present : Smt.Shiny.P.R. President
: Smt.Suma.K.P. Member Date of filing: 04/03/2016
: Sri.V.P.Anantha Narayanan, Member
(C.C.No.33/2016)
Liju Paul
S/o.C.M.Poulose,
Chirakattil House,
Thenari Post, Para
Elappully Palakkad - Complainant
(By Adv.G.Ananthakrishnan)
V/s
The Manager
M/s.United International Marketers
D-102, First Floor,
Town Bus Stand, Complex,
Palakkad - Opposite party
(By Adv.T.Reena)
O R D E R
By Smt.Shiny.P.R. President.
Brief facts of complaint.
The complainant is conducting an engineering workshop in the name and style “The Periyar Engineering Products” at NIDA, Kanjikkode, Palakkad Dist. and is fully depending on this workshop for his livelihood. He had purchased two gas operated welding sets i.e. 1 GBT MIG 3201 (Gas operated welding set) as per Invoice No.52, dated 31/10/2012 for Rs.50,000/- and another gas operated MIG 3151 for Rs.40,000/- as per invoice No.96 dated 5/8/13 from the opposite party for conducting his work shop. At the time of purchasing the welding sets the opposite party had promised one year guarantee and service for these welding sets thereafter. Unfortunately after a short while these sets started giving troubles and both the sets stopped working due to some defects or others and this was intimated to the opposite party. But the repair was not carried out by the opposite party properly attributing lame excuses and the complainant is not able to perform his jobs and he is suffering heavy financial due to the non functioning of these welding sets.
On 5/1/2016 the complainant had caused to issue a lawyer notice to the opposite party requesting him to repair the welding sets or to refund the cost of the sets. The complainant had received a reply from the opposite party stating untrue and unreasonable facts.
There is clear deficiency of service on the part of the opposite party as they are not repairing the welding sets and making them useful to carry out the welding work in the complainant’s workshop.
Complainant prays for an order directing the opposite party to carryout repairs to the welding sets immediately and make them useful to the complainant or else refund the value of the sets i.e. Rs.90,000/- and to pay Rs.1,00,000/- towards mental agony stress, strain and financial loss suffered by the complainant and also the entire cost of this petition.
After admitting the complaint issued notice to opposite party. After receiving the notice filed their version contending the following:
Opposite party admitted that the complainant had purchased 1 GBT MIG 3201 and a gas operated MIG 3151 from this opposite party on 31/10/12 and 5/8/13 respectively. This opposite party is not aware of any such defects as is mentioned in the complainant nor did the complainant informed about the defects to this opposite party either on 13/8/2014 or any date thereafter. They also contended that the warranty period expired in both cases and hence this opposite party has no legal liability or any legal obligation to replace the equipments or to refund the value of the same to the complainant. No deficiency of service can be attributed against this opposite party in this case.
The opposite party expressed his willingness to effect the repairs of the machines, if at all there is any damage, if the complainant is prepared to bear the expenses and costs of the said repairs. Hence dismiss the complaint with costs to this opposite party.
Both parties filed their respective chief affidavit and Ext A1 to A4 marked. As per the order in IA.196/16 expert commissioner was appointed and commissioner filed report which was marked as Ext C1
The following issues are considered
1.Whether there is any deficiency in service on the part of opposite party?
2.If so, what is the relief?
Issues 1 & 2
Opposite party admitted that the complainant had purchased two welding sets from them for Rs.90,000/-. Ext.A1and A2 proves these facts. Complainant submitted that one year guarantee was promised by the opposite parties and within a short span of time both welding sets were stopped working. Complainant further submitted that this matter was informed to the opposite party on 13-8-2014 itself. To prove this the complainant did not produce any documents. At the same time opposite party contended that no such information was received from the complainant. Ext.A3 shows that on 5-1-2016 complainant send a lawyer notice to opposite party. In the reply notice sent by the opposite party ie Ext.A4 it is mentioned that since the warranty period was over they were ready to repair the welding sets at the cost of complainant. Opposite party has taken the same contention in their version also. On the perusal of the documents it is revealed that till the date of 5-1-2016 complainant did not inform the opposite party about the complaint. From the contentions raised by the opposite party we came to the conclusion that even now they are ready and willing to repair the defective welding sets at the cost of the complainant. If the Complainant had informed about the defects of welding sets within the warranty period the opposite party could have repaired the same free of cost. No evidence was adduced before the Forum to prove that complainant had informed about the defect within warranty period to the opposite party. So there is contributory negligence on the part of complainant.
In order to prove the manufacturing defect of the welding sets complainant has taken expert commission and in Ext C1 commissioner reported that GIBT power source inside the 1st welding set IGBT MIG3151 was defective and IGBT module in the 2nd welding set MIG 3201 was taken by the opposite party for repair. 2nd welding set MIG 3201 was taken by the opposite party for repair is new information to the Forum. No such allegation was made either in the complaint or in the chief affidavit. However the opposite party has the liability to provide better after sale service to its customers. As per the available documents it is revealed that complainant had purchased welding sets in the year 2012 and 2013 and defects were informed to the opposite party through lawyer notice dated 5-1-2016. In the above circumstances we are of the view that the defects were occurred within 2-3 years. Moreover commissioner reported that there were defects in the GIBT power source inside the 1st welding set IGBT MIG3151. IGBT module in the 2nd welding set MIG 3201 was not shown by the commissioner. Complainant purchased the costly machines for his lively hood and it shows defects with 2-3 years which will definitely cause mental agony to the complainant. Opposite parties should have sold the defect free welding sets to the complainant. By selling defective machines opposite party committed deficiency in service. So the opposite party has the liability to pay compensation for mental agony caused. But we cannot direct opposite party to replace the welding sets with new sets because the complainant used the alleged welding sets nearly 2-3 years. On the perusal of Ext A4 reply notice, version and affidavit it is revealed that they were ready to repair the welding sets at the cost of the complainant. Since the warranty period is over we direct opposite party to repair the defective welding sets at the cost of the complainant.
In the above circumstances, we partly allow the complaint.
We direct opposite party to repair the welding sets at the cost of complainant and also direct to pay a sum of Rs.5,000/- (Rupees Five thousand only) as compensation for mental agony. No order as to cost.
Order shall be complied within a period of one month from the date of receipt of order, failing which complainant is entitled to realize an amount of Rs.50,000/- (Rupees Fifty thousand only) in addition to the above compensation amount of Rs.5000/- (Rupees Five thousand only) along with 9% interest from the date of order, till realization.
Pronounced in the open court on this the 16th day of November 2016.
Sd/-
Shiny.P.R.
President
Sd/-
Suma.K.P.
Member
Sd/-
V.P.Anantha Narayanan
Member
Appendix
Exhibits marked on the side of complainant
Ext.A1 – Invoice No.52 dated 31-10-12 issued by opposite party
Ext.A2 – Invoice No.96 dated 05/08/2013 issued by opposite party
Ext.A3 series - Lawyer notice dtd.5/1/2016 sent to opposite party alongwith
acknowledgement and postal receipt
Ext.A4 – Reply to lawyer notice dated 17/1/16
Exhibits marked on the side of Opposite parties
Nil
Commissioner Report
Ext.C1 – A.R.Peter, Prof.(Retd) Mechanical Engg.
Cost
No cost allowed
