BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 30th day of March, 2009

Present:

SRI.LAIJU RAMAKRISHNAN PRESIDENT

SMT.SHEELA JACOB MEMBER

SMT.BINDU SOMAN MEMBER

C.C No.193/2008

Between

Complainant : Joseph Mariyel

Mariyil House

Mrala Kara,

Karimkunnum Village,

Thodupuzha Taluk.

And

Opposite Parties : 1. Managing Partner,

Asian Agencies

Private Bus-stand Complex,

Thodupuzha.

(By Adv: P.A.Suhas)

2. The Manager,

Ratnagiri Impex Private Ltd

Annapourna House,

# 1/1G, 7th Cross, New Gudhadahally,

Mysoor Road, Bangloor.

(By Adv: G.K.Purushothaman)

O R D E R

SRI.LAIJU RAMAKRISHNAN(PRESIDENT)

The complaint is filed against the unfair trade practice of opposite party and also for getting back the cost of a chain saw.

On 29.04.2008, the complainant purchased an OLEO MAC Chain Saw 965 HD-18 cutting machine from the Ist opposite party. It was used for cutting the branches of trees and cutting the rubber wood. The complainant paid Rs.42,900/- and a certificate of 6 months guarantee was provided to the machine by the Ist opposite party. The machine became defective after 9 days and it was repaired by the opposite party. After repairs, the same defect continued on several times. So the complainant approached the opposite party for getting back the amount of the machine. The complainant suffered a loss of more than 50,000/- due to the defect of the machine. The complainant was not able to finish the contract works engaged by him. So the petition is filed.

2. The Ist opposite party filed written version and admitted the sale of the chain saw. The 2^nd opposite party is the manufacturer of the equipment. But the price of the equipment is only Rs.38,091/-. During September 2008, the petitioner had approached the Ist opposite party and expressed his inability to use the equipment properly. Due to lack of experience and careless use of the petitioner, the chain saw became damaged. When the equipment handed over to the opposite party for repair, it was working properly but due to the abandon caution, the Ist opposite party sent it over to the 2nd opposite party at Bangalore. After a proper check up the equipment was returned to the Ist opposite party without any repair as the machine was in good working condition. The Ist opposite party informed the petitioner about the same and returned the equipment to the petitioner on 29.10.2008, the petitioner acknowledged the same. The Ist opposite party never offered to return the price of the machine to the complainant. So there is no deficiency in service on the part of the Ist opposite party.

3. The 2nd opposite party filed written version and admitted that they are the sole distributors of OLEO MAC equipments from Italy. The said equipments are sold through the dealers and distribution network. M/s.Asian Agency is also one of the authorized dealer in Kerala state. It is the duty and obligation of the dealer to attend to the service problems of the consumer except in case of warranty claims due to manufacturing defect. The machine is free from manufacturing defect. Once the machine was send over to the 2nd opposite party, as there was no problem seen, it was returned to the complainant himself after an ordinary service check up. The alleged problems that complained of are due to the careless use of the equipment by persons who does not have experience in handling the same. The complaint of the machine is due to the over use of the machine in large size trees. The machine can be used for timbers having a particular girth in tune with the length of the blade. If the machine used in large size timbers in disproportionate of the size of the blade, the machine will give trouble and exactly that is what happened to the machine purchased by the complainant. So there is no manufacturing defect and there is no deficiency in the part of the 2nd opposite party.

4. The point for consideration is whether there was any unfair trade practice on the part of the opposite parties, and if so, for what relief the complainant is entitled to ?

5. The evidence consists of the oral testimony of PWs 1 to 3 and Exts.P1 to P4 marked on the side of the complainant and the oral testimony of DW1 and Ext.R1 marked on the side of the opposite parties.

6. The POINT :- The complainant purchased one”OLEO MAC Chain saw 965 HD-18” from the Ist opposite party for cutting wood, but the same became defective within 10 days. The complainant was examined as PW1. Complainant is a coolie, engaged in the work of cutting of wood. The chain saw purchased from the Ist opposite party was became defective while working with the same. Ext.P1 is the copy of the bill for the same. While working with the machine, it becomes over heat. The complainant approached the Ist opposite party for repairs. They have repaired the same after one month. But again it showed the same problem. The mechanic from the company when

arrived, came to the complainant's work field. While watching the working of the machine, the frame and the saw fell down from the machine. They assured the complainant to replace the machine. Ext.P2 is the warranty card of the machine. PW2 was working with PW1 for the operation of the disputed machine. He is an expert in the operation of the same. PW2 approached three times to the opposite party for the repair of the machine. The opposite party has repaired the same. After repair when a nut was replaced with a larger one, the petrol tank started leaking. The opposite party cured the leakage by using gum. Now the machine becomes over heat while working and also functions slowly. Ext.P4 is the brochure of the machine. PW3 is the person who accompanied PW1 to the Ist opposite party's shop for getting the cost of the machine. But the opposite party denied the payment.

7. Ist opposite party was examined as DW1. Ist opposite party admitted the sale of the machine and also the defect of the machine. They have repaired the same. When a screw was changed, a leak was caused on the petrol tank, but it is caused due to the untrained use of the complainant. The defect was caused only because of the use of the complainant without care. When the machine from the company arrived, the Ist opposite party called the complainant to show the working of the machine to them. There will be a normal heat to the machine, because it is working by the fuel petrol. The complainant is working the machine with the help of an expert. The defect of the machine is admitted by the Ist opposite party. But the defect is only the leakage of fuel from the petrol tank. It was cured by the opposite party. As per the complainant, the machine showed defect within 10 days of the purchase. That is also not challenged by the opposite party. Ext.R1 is the letter produced by the opposite party in which it is written that “ The chain saw has received from the opposite party on 29.10.2008 from the Ist opposite party's shop after the repair from the company”. It clearly states that there was repair in the machine. The complainant is entitled to get a defect free machine, he has incurred a heavy loss because of the defect of the machine, many works are pending. So we think it is fit to replace the machine with a defect free new machine to the complainant.

Hence the petition allowed. The opposite parties are directed to replace a new OLEO MAC Chain Saw 65 HD-18 to the complainant by taking back the old one, or pay Rs.42,900/- to the complainant as per Ext.P1 bill. The opposite party is also directed to pay Rs.2,000/-for the cost of this petition within one month of receipt of a copy of this order, failing which the amount shall carry further interest at 12% per annum from the date of default.

Pronounced in the Open Forum on this the 30th day of March, 2009

Sd/-

SRI.LAIJU RAMAKRISHNAN(PRESIDENT)

Sd/-

SMT.SHEELA JACOB(MEMBER)

Sd/-

SMT.BINDU SOMAN(MEMBER)

APPENDIX

Depositions :

On the side of Complainant :

PW1 - Joseph M.M

PW2 - Raju

PW3 - Jacob Mathew

On the side of Opposite Parties :

DW1 - Tomy Sebastian

Exhibits:

On the side of Complainant:

Ext.P1 - Copy of Bill No.B 278 dated 29-04-2008

Ext.P2 - Copy of warranty card of the machine

Ext.P3 - Brochure

Ext.P4 - Brochure of the machine

On the side of Opposite Parties :

Ext.R1 - Letter produced by the opposite party.