Kerala

Idukki

CC/15/104

Mr Jacob Daniel - Complainant(s)

Versus

The Managing Director Jadayu - Opp.Party(s)

30 Mar 2023

ORDER

DATE OF FILING : 17.3.2015

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the  30^th  day of  March,  2023

Present :

SRI. C. SURESHKUMAR                   PRESIDENT

SMT. ASAMOL P.                             MEMBER

SRI. AMPADY K.S.                           MEMBER

CC NO.104/2015

Between

Complainant                                           :    Jacob Daniel,

                                                                  Grace Wood works and carving,

                                                                   Keecheripadi, Moovattupuzha P.O.,

                                                                   Ernakulam District. 

          (By Adv: P.M. Johny)

And

Opposite Parties                                     : 1. The Managing Director,

                                                                   Jadayu, Heavy Machines and Designers,

                                                                   Corporate Office, Alfiya Building,

                                                                   Opposite RBI, Kochi.

                                                                 2. Deepak Thomas,

                                                                   Manager – Marketing,

          Jadayu, Heavy Machines and Designers,

          Registered Office,  VII/15/6,7,8,

          Edasseril Building, Thekkumbhagom,

          Thodupuzha.

      3. Saneeshkumar K.K.,

                                                                   Manager – Marketing,

          Jadayu, Heavy Machines and Designers,

          Registered Office,  VII/15/6,7,8,

          Edasseril Building, Thekkumbhagom,

          Thodupuzha.

                                                                 4. Renjith,      

                                                                    Manager,

          Jadayu, Heavy Machines and Designers,

          Registered Office,  VII/15/6,7,8,

          Edasseril Building, Thekkumbhagom,

          Thodupuzha.

 (All by Advs: V.A. Biju & Sogi Joseph)

 

 

 

                                                                                                                                         (cont....2)

• 2  -

O R D E R

 

SRI. C. SURESHKUMAR, PRESIDENT

 

1. This case originates from a complaint filed under Section 12 of the Consumer Protection Act of 1986 (the Act, for short).  Complaint averments are briefly discussed hereunder :

 

          Initially, complainant had pleaded that he is conducting a business of wood carving and designing, in the name and style ‘Grace wood works and carving’.  Subsequently, he had filed I.A.177/15 for amending the pleadings whereby the aforesaid first sentence in the 2^nd paragraph of the complaint was deleted and the following was substituted : ‘complainant is a self employed man.  He is earning his livelihood from the  wood works conducted in the name and style as ‘Grace wood works and carving’ at Keecheripady, Muvattupuzha in Ernakulam District’.  1^st opposite party is Managing Director of a concern, namely, Jadayu Heavy machines and designers, Kochi.  2^nd and 3^rd opposite parties are managers of 1^st opposite party in charge of marketing products of company represented by 1^st opposite party.  4^th opposite party is also a manager, working in the same office situated at Thekkumbhagam, Thodupuzha, wherein opposite parties 2 and 3 are also working.  According to complainant, opposite parties 2 to 4 had represented that they are designing, manufacturing and distributing machinery in the name and style, ‘Jadayu’.  It is further contended that 2^nd and 3^rd opposite parties had approached complainant and made an offer to supply a CNC Rooter, Model No.JD8440R, which is a CCNC wood engraver with dust collector, for a sum of Rs.8,66,250/-.  They had also offered to train one of the employees of complainant for free, so as to make him proficient in operating the machinery.  Complainant had accepted the offer and agreed to pay price of the machine in 4 instalments.  On 6.6.2014, he had given a cheque for Rs.3/- lakhs towards advance for the purchase to 2^nd and 3^rd opposite parties.  After one month, 2^nd and 3^rd opposite parties had delivered a machine which was different from the one ordered by complainant.  When complainant had enquired about the same, both had offered to replace the machinery with the ordered one within a short span of time.  They had requested complainant to operate the machine supplied, for a short span until the ordered machine arrives.  However, the installed machine had started showing complaints within one month from the date of installation.  Upon being informed, opposite parties had sent a technician to repair the machine.  Due  to manufacturing defect, installed machine could not function properly.  Machine is not properly aligned and its servo motor was not of the required specification.  Complainant had paid a total amount of Rs.8,30,000/- as agreed price of the machinery.  However, machinery delivered to him was different from the one ordered.  Opposite party have resorted to unfair trade practice by not supplying the correct product after receiving                                                                                                                        (cont…..3)

• 3  -

payment, by misrepresenting that they are actual manufacturers of offered machinery, in fact they are not manufacturers, but only agents and had supplied a defective machine.  Due to manufacturing defect of machine, complainant had sustained heavy loss due to wastage of wood, loss of his goodwill and reputation among customers.  Complainant had to pay damages to some of his customers and many other had cancelled their orders due to defect of machine.  When complainant had raised a complaint regarding machinery with opposite parties, they had canvassed complainant’s trainee, Sudheesh, without any information to complainant.  Initially, when there were complaints with regard to working of machine, opposite parties used to send their technicians.  Off late, they had stopped sending their technicians and are not attending to his complaints.  Complainant estimates loss sustained by way of wastage of wood, loss of goodwill and reputation at Rs.10 lakhs.  He also contends that he is entitled to get the sale price paid by him, which is Rs.8,30,000/-  towards purchase of machinery which was defective along with   interest at the rate of 12% per annum.  He also submits that he is entitled for a further loss of Rs.1 lakh as compensation for mental agony owing to latches of opposite party and Rs.15,000/- towards litigation costs.  A lawyer notice was sent by complainant on 14.1.2015 to opposite party claiming the aforesaid amounts.  Though opposite parties 2 to 4 were in receipt of notice, they have not responded to the same.  Registered notice addressed to 1^st opposite party was returned unserved with an endorsement that there was no such concern at the given address.  Complainant, on these premises, prays for grant of monies mentioned above as per this complaint. 

 

          2.  Opposite parties 1 to 4 have appeared and filed a joint written version.  Their contentions are briefly discussed hereunder :

 

          According to them, complaint is false and vexatious.  There is no cause of action for the complaint. This for a has no jurisdiction to entertain this case That 1^st opposite party is not managing director of the concern, ‘Jadayu’ and other opposite parties are not working under the 1^st opposite party.  Opposite parties 2 to 4 are not managers of 1^st opposite party and they have not represented to complainant that they are designers, manufacturers and distributors of machineries, functioning under the name and style ‘Jadayu’.  It was the complainant who had, upon hearing about the reputation and quality of machines supplied by opposite party, approached them with a request for supply of a CNC wood engraver.  Opposite parties had not canvassed for business either with the complainant or others.  Opposite parties are engaged in supplying required machineries only upon getting orders from prospective purchasers.  As requested by complainant, opposite parties had supplied one CNC wood engraver model No.JD8440R for a total cost of Rs.8,66,250/-.  Complainant had placed order for the machinery after verifying and inspecting it with the aid of an expert and had made an initial payment of Rs.3 lakhs alone on 7.6.2014 towards advance. As agreed, opposite party had supplied                                                                                                              (cont….4)

• 4  -

the machinery and had installed it on 8.7.2014 in the premises of complainant.  Complainant and his labourers were taught about methods of operating the machinery in the presence of complainant’s experts, thereafter one month training was given to one Mr. Sudheesh, a worker of complainant as agreed by complainant and opposite parties.  Opposite parties have not offered training for 1 year as mentioned in complaint.  One year training is not necessary to operate this machine.  Neither have opposite parties offered to deliver the machinery within 20 days of order.  Opposite parties have delivered the same machine, which was ordered by complainant.  Machine was supplied and erected by opposite parties and it was operated in the presence of complainant and his experts at the time of installation.  After being fully satisfied with functioning of machine, complainant had given a cheque for Rs.4 lakhs dated 11.7.2014, a cheque for Rs.1 lakh on 19.7.2014 and cheque for remaining balance Rs.66,250/- on 15.9.2014.  Last cheque had bounced upon presentation.  Hence opposite parties had issued a lawyer notice dated 24.12.2014 with regard to dishonour of cheque.  Upon receiving this notice, complainant had filed a petition before the Sub Inspector of Police, Muvattupuzha.  On enquiry, police had come to know that the petition filed by complainant was without bonafide.  After this, complainant had filed this complaint before this Forum making false allegations.  Present complaint is only for escaping liability in the case filed against complainant by opposite parties with regard to dishonour of cheque mentioned above.  This case is pending as ST 728/15 before JFCM Court, Muvattupuzha.  Opposite parties further submit that it is not possible to supply or erect machinery of this nature temporary measure.  Total length of the machine is 11’, its width  6’ and its height is 4.5’.  Weight is more than 1 ton.  It is not possible to lift the machine without the aid of a crane.  In such circumstances, no ordinary person will offer to erect such a machine as a temporary measure.  These opposite parties have not offered to replace the machine installed upon receipt of ordered machinery.  Complainant has not raised any complaint with regard to functioning of machine.  No technicians were sent by opposite parties for repairing the machine within one month of its installation.  There is no manufacturing defect.  Machinery is functioning properly.  It is properly aligned and machinery has requested specifications.  As per the terms and conditions of the business transaction between opposite parties and complainant, opposite parties are not responsible for the defects occasioned to machinery by incorrect operation or by deliberate attempt to cause damage.  Supplied machine is a computer operated machine.  Software installed in it is U.S. based software, known as Mac 3.  Machine is functioning as per the program installed in computer.  Machine cannot be operated without UPS.  Complainant operated the machinery without proper supply of electricity.  He had taken an electricity connection for the machinery by way of an extension from nearby building using extension cord.  Regular supply of electricity for machine was obtained by complainant after 3 months of its installation.  If the machine is made to function at low voltage, its efficiency and quality of work will be affected.  Machine supplied by opposite parties                                                                                                                    (cont….5)

• 5  -

had worked even in the adverse atmosphere and this will prove its strength and capability.  Opposite parties are ready to demonstrate the capacity and good performance of the product as assured in its catalogue.  As in case of any machine, there is possibility of wear and tear due to normal usage. The machine supplied, requires change of worn out parts like rubber mat, placed for bed protection and cutting tools.  Handling of machine by unskilled and untrained workers will also affect it’s efficiency.  There are chances of virus attack also as the machine is computer operated.  Opposite parties have reinstalled the software in computer on three occasions.  This was due to wrong operation of machine by untrained and unskilled workers.  After few months of installation, complainant had informed opposite party that there is an error in the computer of machinery.  Upon this, technician of opposite party had inspected the machine and computer and found that a cartoon game was installed in the computer.  This had caused some error in the functioning of computer.  This was corrected by opposite party.   Upon enquiry, complainant had admitted that the video game was installed by his son.  Technician of opposite parties advised the complainant not to install video games in the computer of the machine.  It is incorrect to say that complainant had paid Rs.8,30,000/- towards purchase of machinery. In fact, only  Rs.8 lakh was paid by complainant.  Machine was supplied within 30 days of order.  Opposite parties have not committed any unfair trade practice.  Opposite parties are not agents.  Complainant has not made any specific allegations of deficiency in service or unfair trade practice.  A general statement regarding deficiency or unfair trade practice is not sufficient.  Opposite parties again contend that the machine has no manufacturing defects.  Wastage of wood was not occasioned due to use of machine.  It is functioning with the aid of specially designed software installed in the computer.  Loss of goodwill and reputation if any is not due to use of machinery.  Opposite parties had not canvassed any trainee of complainant.   These allegations are made in advance anticipating that the said Sudheesh, may depose true facts before this Forum.  Opposite parties had sent mechanics to repair the machine even after the filing of this complaint, for rectifying minor defects.  Allegations that no mechanics or experts were sent are not correct.  No loss or damage was caused by complainant due to usage of machine supplied by complainant.  Loss estimated is highly excessive and with no basis.  Opposite parties are not liable for the loss, if any, suffered by complainant.  They are not bound to return the price of the machine to complainant.  Neither are they liable to pay interest for the said amount.  No mental agony or hardship was caused to complainant by acts of opposite parties.  They are not liable for litigation costs either.  Complaint is experimental in nature, filed only  to avoid the penal consequences of dishonour of cheque issued by complainant regarding which a case is pending under Section 138 of NI Act, before JFCM Court, Muvattupuzha.  No notice was issued to 1^st opposite party in correct address.  This was the reason for it being not served.  Opposite parties lastly contended that there is no cause of action for the complainant and that the complaint is to be dismissed with compensatory costs.                                                                    (cont….6)

• 6  -

3. During the pendency of these proceedings, an advocate commissioner was deputed with the assistance of two technical experts for inspection of machine.  Learned commissioner had, after inspecting the machine with the aid of experts, filed his report along with reports of experts before this Commission in 2016. He had filed a second report after a subsequent inspection in 2019.Case was then posted for evidence.  On the side of complainant, PWs 1 to 4 were examined and Exts.P1 to P10 series 4 in numbers were marked.  Earlier commission report and report of experts were admitted as Ext.C1 and C1(a) and C1(b).  DW1, Mr. Jibin Philip is one of the experts who had assisted PW4, the advocate commissioner.  It has come to our notice that same commissioner is again deputed on 20.12.2019 for a 2^nd inspection.  2^ndreport is not seen marked.  It is marked as Ext.C2 presently.  After examination of PW4, evidence was closed.  On the side of opposite parties, DWs1 and 2 are examined.  DW1 is one of experts who had assisted PW4.  RW2 is the 4^th opposite party who has given evidence on behalf of opposite parties.  Exts.R1 to R5 were proved by him. 

 

PW3, Mr. K.B. Pyarilal is the 2^nd expert who had accompanied PW4 along with DW1.  Ext.C1(a) is a report submitted by PW3 and Ext.C1 is the first report of PW4. 

 

Though repeated opportunities were given to complainant for cross examining RW1, complainant had not cross examined RW2.  Case was adjourned to 6.1.2023 for cross examination of RW1, who was present on that date and on earlier posting too. Adjournment to 6.3.2023 was upon payment of nominal cost of Rs.5,00/- which was not paid.  It was under these circumstances that this Commission was constrained to close evidence without cross examination of RW2.  IA filed for reopening evidence by complainant was dismissed by us for non-availing of repeated opportunities given for cross examination of RW2.

 

Both sides were heard.  Now the points which arise for consideration are :

1)  Whether complaint is maintainable ?

2)  Whether there was any manufacturing defect in the machine ?

3)  Whether complainant is entitled for the reliefs prayed for in the complaint ?

4)  Final order and costs ?

 

4.  Point No.1 :

 

          In the joint version filed by opposite parties, they have contended that complaint is not maintainable in law or upon facts.  In the initial complaint filed before amendment, it is specifically mentioned in paragraph 2 that the complainant is conducting a business of wood carving and designing in the name and style as ‘Grace Wood works and carving’ at Keecherippady, Muvattupuzha in Ernakulam District.                                                                                                                       (cont…7)

• 7  -

Written version was filed by opposite parties on 10.8.2015.   Thereafter IA 177/15 was filed by complainant to amend the complaint by deleting first sentence contained in paragraph 2 of the complaint which we have reproduced above.  It was sought to be substituted by incorporating the following :  ‘Complainant is a self-employed man.  He is earning his livelihood from wood works conducted in the name and style as ‘Grace wood works and carving’ at Keecheripady, Muvattupuzha in Ernakulam District’.  This amendment was allowed as per order dated 7.12.2015.  Amendment petition is seen filed on 16.11.2015, after filing of written version by opposite parties.  It is evident that amendment was sought for to bring complaint within the ambit of explanation given to Section 2(d)(ii) of the Act.  We are fortified in our observations by the evidence tendered by complainant, in as much as though he has no case that the machine is being operated by himself along with his workers.  To claim benefit of explanation, complainant will have to plead and prove that the goods bought  by him is exclusively for the purpose of earning livelihood by means of self-employment. Mere plea and evidence to the effect that complainant had purchased the machine for his livelihood is not sufficient. Decision of Apex Court in Laxmi Engineering works vs. P,S.G. Industrial Institute (1995(3) SCC 583) is relevant here. Paragraphs 24 and 25 in the judgement are the beacons which throw light upon this controversy. Complainant  should specifically plead and give evidence that purchase of machinery was exclusively for earning his livelihood.  Pleadings to this effect as such are lacking. Despite the amendment, complainant has also not tendered evidence to prove that the machine purchased was exclusively meant for earning his livelihood either. He has no case that he does not have any other business or means of livelihood.  Considering the nature of machine, it is not possible for the complainant to operate the same by himself.  He has admitted during his cross examination that, one of his workers was given training to operate the machine.  This evidence would disclose that there is more than one worker under the employment of complainant working in his concern.  This should be considered in the light of earlier pleadings that he was doing business in the name and style ‘Grace Wood works and carving’.  Incorporation of amendment to the effect that the business was being run for earning his livelihood as a means of self-employment, lack conviction as complainant has no case that it was meant exclusively for earning his livelihood. As mentioned earlier, there is more than one worker in the concern.  Complainant himself has admitted that he has no knowledge or competence to operate the machine by himself.  He has no case that he is working in his concern.  Therefore, we are of the view that the machinery was purchased for commercial purposes as mentioned by him earlier before amendment.  That being so, complainant is not entitled for the protection of such explanation given to Section 2(d)(ii) of the Act.  He is not a consumer and therefore his complaint cannot be treated as one made by a consumer as such.  For these reasons, we find that the complaint cannot be maintained before this Forum.  Point No.1 is answered accordingly.

 

                                                                                                          (cont….8)

- 8  -

5.  Point No.2 and 3 :

 

          PW1 is the complainant.  Apart from tendering evidence with regard to alleged defects of the machine, Exts.P1 to P10 series were also proved by him to substantiate his contentions.  Ext.P1 is a photocopy of cash receipt dated 6.6.2014, issued in the name of complainant from the manufacturing unit of opposite parties.  It discloses payment of Rs.3 lakhs as advance towards purchase of machinery worth Rs.8,66,250/-.  Ext.P2 is a copy of lawyer notice sent to opposite parties upon instruction by complainant, before the filing of this consumer complaint.Ext.P3 is photocopy of postal receipt evidencing sending of Ext.P2 lawyer notice to 1^st opposite party.  Exts.P4 to P6 are photocopies of postal A/D cards with regard to receipt of Ext.P2 by opposite parties 2 to 4.  Ext.P7 is a brochure issued by the concern represented by 1^st opposite party.  Ext.P8 is information received from Kochi Municipal Corporation dated 14.12.2015 as per Right to Information Act by complainant, which reveals that concern Jadayu, which is the institution represented by 1^st opposite party has not taken a D& O licence for the period between 2012 – 15 from Kochi Municipal Corporation.  Ext.P9 is photocopy of licence issued to 1^st opposite party with regard to demonstration and sale of computer numeric control machine dated 11.12.2013.  Ext.P10 series 4 in numbers are 4 photographs of the machine, which according to complainant was supplied by opposite parties 1 to 4 to him.

 

          PW2 is the photographer who had taken Ext.P10 series of photographs.  He has deposed that he had gone to the concern of complainant and taken photographs of the machine as shown to him by complainant.  PW3 is one of experts Mr. K.B. Pyarilal, who had accompanied PW4 commissioner on 27.7.2016 along with DW1, 2^nd expert, Mr. Jibin Philip.  PW4, as mentioned earlier is advocate commissioner who had carried out inspection on 2 occasions.  RW2 is 4^th opposite party who has not been cross examined.  We have already dealt with evidence of DW1, Mr. Jibin Philip, who has proved his Ext.C1(b) report.  Exts.R1 to R5 were proved by DW2.  Ext.R1 is print out of retail invoice dated 8.7.2014 pertaining to sale of the  machinery to complainant.  Ext.R1reveals that the said machine is a CNC Wood Engraver with Dust collector.  Total cost is shown as Rs.8,66,250/-.  Ext.R2 is photocopy of delivery note in Form 15 with regard to delivery of said machinery to the premises of complainant.  Ext.R3 is copy of lawyer notice sent at the instance of 1^st opposite party to complainant with regard to dishonour of a cheque for Rs.66,250/-,  under Section 138 of NI Act.  Ext.R4 is computer print of the complaint preferred before the JFCM Court, Muvattupuzha by 1^st opposite party against complainant with regard to cheque mentioned in Ext.R3 notice and it bears the   seal of the Court.  Ext.R5 is an estimate purportedly issued by complainant dated 1.7.2016 for doing  cutting work for Rs.900/-. 

 

                                                                                                                   (cont….9)

 

• 9  -

          Coming to the allegations in the complaint, complainant has stated that machinery initially supplied was  one which was not ordered by him.  He has a case in his pleadings and evidence that after going through Ext.P7 brochure, he had ordered CNC rooter machinery model JD8440R.  However, the machine supplied actually by opposite party was different from model No.JD8440R.  According to him, after one month of purchase, opposite parties delivered a machine, different from that of ordered one.  When he had enquired about the same, opposite parties 2 and 3 had informed him that they would replace the same with the machine actually ordered, within a short span of time.  That the machinery initially delivered was meant only for temporary use till the actual machine arrives.  According to opposite parties, this is impossible since such types of machinery cannot be installed temporarily.  Installation of this kind of machine would involve much effort, man power and expenses.  These contentions appear to be convincing in the light of evidence tendered by PW1 himself during his cross examination.  PW1 has given evidence that he was shown a brochure which contains photographs of several types of machinery by opposite parties, before purchase.  He had ordered a machine which he thought which was suitable for his purpose.  That he had opted to purchase a machine by expending maximum amount which could be spent for the purchase.  He has deposed that the model number is JD8440R.  Complainant further deposed that the machinery has a length of 11’ width of 6’ and height  4’.  Its weight is more than 1 ton.  He has also admitted that the machine could be lifted only by using a crane.  It is admitted that the machine costs more than Rs.8 lakhs, going by Ext.R1 and also by Ext.P1.  Considering the cost of machine, its dimensions and weight, we are unable to accept the contentions of complainant that a different type of machine was brought and installed by opposite parties 2 and 3 than what he has ordered for the purpose suitable to him.  It will be impossible to dismantle the machine again after installing it and thereafter to reinstall the machine which the complainant claims as  initially ordered by him.  Complainant would rely upon the evidence of advocate commissioner and Ext.C2 in this regard.  He would say that in Ext.C2, it is specifically reported that Ext.P10 series are not that of model JD8440R.  Though commissioner has reported that the model shown in the brochure is not that of machine shown in Ext.P10 series of photographs, he does not say what was the difference noticed by him.  Commissioner has no case that he had noticed model number of the machine affixed upon it, on both occasions, when he had carried out inspection in 2016 and again in 2019.  Model number was not found by the experts either, upon the machine.  Ext.P10 series discloses that there is an operation panel for the rooter machine also.  Apparently, the panel is meant for operating the machine as such.  Evidence of the complainant is to the effect that the machine is computer operated and the computer will be installed along with panel for operating purposes. Ext.P10 series were taken after the machine was used in the complainant’s premises.  Small differences which may appear in the frame of the machine could be attributed to its use so also. Admittedly, complainant himself had                                                                                                                    (cont….10)

• 10 -

chosen the machine which he had intended to purchase. Ordinarily, if the machine supplied was not the one which he had ordered, considering the cost of machine, it’s dimensions and installation costs and process, he would not have taken delivery of machine and permitted opposite parties to install it in his business premises, were it to be a different one than the one he had ordered. Installation was not for temporary use.  Complainant’s evidence would reveal that he had started functioning the machine also after installation was over.

 

          In this connection it is also pertinent to note that PW1 has admitted during his cross examination that he had paid Rs.3 lakhs as on 7.6.2014, which he had later correct during his re-examination as 6.6.2014.  We do not think that he had paid such an advance without even verifying the machine he wanted.  Again 2^nd instalments of Rs.4 lakhs was paid on 11.7.2014.  This was paid after the installed machinery was tested in his presence and after he was convinced of its functioning.  Again on 19.7.2015, complainant had paid Rs.1 lakh towards price of machinery.  Considering this evidence of complainant, we do not think that there was any offer by opposite party that the installed machinery will be replaced with another one as sought by complainant.  What was installed initially was the machine in fact the complainant had intended to purchase and had purchased also.  We have already considered Ext.P10 series and C2 report. Report is not sufficient to prove that a different machine than the one ordered by complainant was supplied by opposite parties. The nature of machine shown as model JD8440R in Ext.P7.  This difference do not appear to us as evidence of a different machine being supplied to complainant and what has been ordered by him.  According to complainant, he has ordered a CNC rooter model which is a CCNC wood engraver with dust collector.  Ext.P1 cash receipt copy discloses that purchase was of CNC wood engraver with dust collector model JD8840R.  Ext.R1, does not contain the model number, but discloses that the item purchased is CNC wood engraver with dust collector.  Both the experts were accompanied by the commissioner have no case that the machinery examined by them is not a wood engraver with dust collector.  There was no model number upon the machinery installed.

 

          It is also pertinent to note that the complainant has admitted that he does not know how to operate the machine.  It is a computer operated machine and requires a technical expert who is familiar with computers.  Though the complainant has stated that there was promise by opposite parties that one of his workers will be given training for one year, opposite parties have denied this and stated that training period was only for one month.  However, both would concur upon one point that the machine requires training for its operation.  In fact one of the workers was given training for the purpose also.  Complainant has a case that the trained worker was hijacked by opposite parties and therefore he obtained the service of another trained worker from a different concern.

                                                                                                                   (cont….11)

• 11  -

          Opposite parties have a case that faulty functioning of the machine can be attributed to its operation by unskilled workers and lack of periodical maintenance.  They have a case that the machine requires periodical maintenance to operate to its full capacity.  Similarly, required quality for the work will be reflected only if the machine is kept in perfect condition.  However, Exts.C1 and C1(b) would reveal that there was no proper bedding or rather installation.   Evidence of complainant himself tendered during his cross examination is to the effect that rubber mat used for bedding would get wasted or destroyed due to functioning of engraver.  Dust collector is to be cleaned after use.  According to both experts, there is no proper maintenance of the machine as such.  PW4 has mentioned in his initial report that there was no accuracy or finishing for the work carried out using the machine.  There was difference in the measurement shown in computer and the machine works actually executed.  As there was difference in alignment, machine was vibrating and jerking when it was being operated.  This caused cutting and engraving to be done in different measurement than what is set in the computer.  He has further reported that mat affixed to CNC rooter machine for level difference was not being changed periodically.  As the machine was working with damaged mats, level difference caused would affect the quality of work.  Machine was often switching off also.  Dust collector which was mandatorily to be used was not being used.  Machine was not been periodically serviced.  These findings of the commissioner in Ext.C1 is supported by C1(a) and C1(b) reports submitted by both experts who had assisted him.  Evidence in its totality is to the effect that machine was not being periodically serviced.  Parts which required change due to wear and tear like the rubber mat were not being changed.  DW1 has reported that the machine was designed for using wood, ply wood, multi wood, aluminium and composite panel.  However, DW1 has noticed that it was used for doing work in a brass plate having a thickness of 15 mm, a name board of District Collector for use in Collectorate.  The work done in brass plate was shown by the complainant himself to the expert.  It is further stated in the report that if such hard materials are used, it will cause damage to the tools and machine alignment.  It was not meant for designing thick brass place as one shown to him.  He has further reported that no problems or defects were noticed in engraving work done in multi wood.  At the time of inspection, it was also noticed that power supply was high by 40 voltage.  This was due to lack of earthing.  According to expert, this will affect quality of work as excess power supply may result in sending wrong signals to the computer.   DW1 has also noticed that dust collector was not being used and this has also affected the smooth functioning of machine.  Besides, complainant had admitted of having serviced the machine by unauthorized service personnel also.  Ext.C1(b) is more detailed than Ext.C1(a) report.  As mentioned earlier, commission report and evidence tendered by PW1 during cross examination, unchallenged evidence of RW1 prove that defect does not ly in the machine or in its installation, but in all probability due to improper functioning of the machine.  Unskilled workers were operating the machine which was                                                                                                                    (cont….12)

• 12  -

not been serviced properly.  Parts which are prone to wear and tear were also not being changed.  All these had affected the quality of the work.  Manufacturing defect as alleged by complainant is not proved.  Complainant has no case that there was any lack of response from the side of opposite parties in providing necessary service as such.  For these reasons, we find that the machine is not proved to be defective.  It was the one which complainant had ordered and purchased. 

 

          During cross examination, PW1 had admitted that last cheque for Rs.69,000/- dated 15.9.2014 given by him towards price of machinery was dishonoured due to lack of funds.  However, he would correct this and say that the cheque was not honoured as he had given instruction to the bank not to pay the same.  A copy of this intimation has not been produced by complainant.  Ext.R3 is copy of lawyer notice sent by opposite party to complainant with regard to dishonour of last cheque drawn for Rs.66,250/-.  The amount is wrongly mentioned as Rs.69,000/- by complainant and this only appears to be a memory lapse.  Present complaint is even after 11.2.2015, the date on which 1^st opposite party had filed complaint under Section 138 of NI Act against the complainant.  Under these circumstances, it appears to us that the present complaint as such is only an attempt to wriggle out of the liability to pay the balance sale price.    Goods ordered by complainant were received by him and there are no defects in them as alleged by him either.  Point Nos.2 and 3 are answered accordingly.

 

6.  Point No.4 :

 

          In the result, this complaint is dismissed, under the circumstances, with costs of Rs.10,000/- payable to opposite parties 1 to 4 within 45 days from today.  Parties are directed to take back extra copies. 

 

                             Pronounced by this Commission on this the  30^th  day of March, 2023

 

 

                                                                                           Sd/-

        SRI. C. SURESHKUMAR, PRESIDENT

 

                                  Sd/-       

      SMT. ASAMOL P., MEMBER

 

                              Sd/-

     SRI. AMPADY K.S., MEMBER

 

 

                                              (cont....13)

 

• 13  -

 

APPENDIX

Depositions :

On the side of the Complainant :

PW1         -  Jacob Daniel.

PW2         -  Shiyas K.B.

PW3         -  K.B. Pyarilal.

PW4         -  Vishnu S.

On the side of the Opposite Party :

DW1        -  Jibin Philip.

DW2        -  Renjith P. Krishnan.

Exhibits :

On the side of the Complainant :

Ext.P1    -  Photocopy of cash receipt dated 6.6.2014.

Ext.P2   - Copy of lawyer notice sent to opposite parties.

Ext.P3   - Photocopy of postal receipt of Ext.P2 lawyer notice to 1^st opposite party.  Exts.P4 to P6 - Photocopies of postal AD cards with regard to receipt of Ext.P2.

Ext.P7    -  Brochure issued by the concern represented by 1^st opposite party. 

Ext.P8    -  Information received from Kochi Municipal Corporation dated 14.12.2015.  Ext.P9    -  Photocopy of licence issued to 1^st opposite party  dated 11.12.2013. 

Ext.P10 series -  photographs of the machine 4 in numbers.

Ext.C1      -  1^st report of Advocate Commissioner, Vishnu S.

Ext.C1(a) -  Report of 1^st Expert, K.B. Pyarilal.

Ext.C1(b) -  Report of  2^nd Expert, Jibin Philip.

Ext.C2      -  2^nd  report of Advocate Commissioner, Vishnu S.

On the side of the Opposite Party :

Ext.R1     -  Print out of retail invoice dated 8.7.2014.

Ext.R2     -  Photocopy of delivery note in Form No.15.

Ext.R3     -  Copy of lawyer notice sent under Section 138 of NI Act. 

Ext.R4 -Computer print of the complaint before the JFCM Court, Muvattupuzha.  Ext.R5- Estimate issued by complainant dated 1.7.2016 for doing work for  Rs.900/-. 

 

 

 

                                                                                      Forwarded by Order,

 

 

 

                                                                                  ASSISTANT REGISTRAR