DATE OF FILING : 09.06.2009

BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 8th day of March, 2010

Present:

SRI.LAIJU RAMAKRISHNAN PRESIDENT

SMT.SHEELA JACOB MEMBER

SMT.BINDU SOMAN MEMBER

C.C No.104/2009

Between

Complainant : The President/Secretary,

TASH Group Reg.No.I.67/09,

Thudanganadu P.O,

Muttom P.O,

Idukki District.

(By Adv: Jose Thomas)

And

Opposite Parties : 1. The Managing Partner,

Asian Agencies,

Municipal Bus Stand Complex,

Thodupuzha P.O,

Idukki District.

(By Adv: M.Hallaj)

2. Ratnagiri Impex Private Limited,

Annapurna House,

1/1G, 7^th Cross,

New Guddadhally,

Mysore Road,

Bangalore – 560 076.

(By Adv: K.M.Sanu)

O R D E R

SRI.LAIJU RAMAKRISHNAN(PRESIDENT)

The petition is filed for getting compensation for the defects caused to the weed cutter machine purchased from the opposite party. The complainant is the President/Secretary of Tash Group which is registered under the Social Welfare Society, Pala running as Reg.No.16/64. The said society is working as a charitable society. In order to help the two BPL members of the society named Boby Sebastian and Benny Thomas, the society purchased a weed cutter named Oleomac weed cutter SPARTA – 42 from the Ist opposite party which is manufactured by the 2^nd opposite party. The machine was purchased in August 2008 by paying an amount of Rs.19,800/-. After the free service on 30.09.2008, the said machine was not working properly. So again it was serviced on 16.10.2008. But it was noticed that the machine was not working. After that when the complainant approached the Ist opposite party for the repair of the same, the opposite party told that the carburetor of the machine should be changed. It need Rs.2,000/- for the repair. The complainant constrained to pay the amount and repaired the machine because it was needed for completing the work which was taken as contract from several people. On 12.11.2008 the machine was repaired by paying an amount of Rs.2,450/- and started the work again. But unfortunately after some time the machine became defective. So the complainant hired another machine and completed the work taken by them. The machine is purchased for getting income for the BPL members of the society and due to the defect of the machine, the complainant and the members suffered a lot because of the non-completion of the work and a heavy loss caused to them. Hence the petition is filed for getting compensation for the loss caused to the complainant to the tune of Rs.97,046/-.

2. The opposite party filed a written version stating that the complainant is using the machine for commercial activities and hence the petitioner is not a consumer as envisaged in the Consumer Protection Act. The opposite parties are not aware of the organizational set up of the TASH Group. It is admitted that a “Sparta weed cutting machine” was purchased by the complainant for TASH Group from the shop of the Ist opposite party at Thodupuzha. If there is any manufacturing defect occurred in the warranty period, it was safe for the opposite parties to replace the machine. The third time petitioner came to the opposite party only for routine check up. It is true that after the third service the petitioner brought the machine with a specified complaint that the carburetor and the fuel filter requires repair. After the inspection it was revealed that the inside parts of the carburetor got sandwiched by melting, the fuel filter also damaged and also seen chemical body inside the carburetor. This will happen only if the fuel got mixed up with chemicals. The said complaint is possible when fuel for the machine carrying pot or can that was been using for carrying acid or chemicals. Since the carburetor was out of repair due to the said reasons,the Ist opposite party asked the petitioner to replace the damaged carburetor and fuel filter. Since the petitioner got convinced about their mistake they accepted the ground reality and replaced the damaged carburetor with fuel filter against payment. The Ist opposite party was also told that the petitioner circulated the machine among their members and well wishers. So the above problem was due to the use of the machine by persons who are not having prior experience with the machine. At that juncture, the petitioner even confessed that they are not in a position to continue the work with the machine as the members lack experience with the machine. Certain amount of expertise and care are required for the operation of the machine as the machine is a new generation one. The petitioner had approached the Ist opposite party and expressed their inability to use the equipment properly. When the equipment returned to the petitioner after service and replacing of the damaged parts, it was working properly and there was no complaint whatsoever after the replacement of the parts. But the petitioner sent a legal notice dated 4.03.2009. Before the said notice the petitioner not placed any complaint before the opposite parties and they even failed to convince the opposite parties that the machine is having any trouble. They even failed to brought the machine to the opposite parties. If the allegation of the petitioner is true that the machine is not working, they would have brought the machine to the opposite parties. It is reliably known that the petitioner is using the machine, the same is still working properly and the petitioner is enjoying the fruits. Hence the petition may be dismissed.

3. 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 ?

4. The evidence consists of the oral testimony of PWs 1 and 2 and Exts.P1 to P11 marked on the side of the complainant and the oral testimony of DW1 on the side of the opposite parties.

5.The POINT :- The complainant, which is a society has purchased a weed cutting machine from the Ist opposite party. But it became defective after the free service of the opposite party. The President of the society is examined as PW1. Ext.P3 is the bye-law of the society. Ext.P9 is the copy of the membership minutes of the Society. Ext.P10 is the true copy of the minutes book, decided to purchase the said machine for helping two of the members of the society who are in the BPL list. Ext.P1 is the bill for the purchase of the machine. Ext.P2(series) is the warranty and free service coupons of the Oleomac machine supplied by the 2^nd opposite party through the Ist opposite party. Two of the members of the society are living with the income from the machine. The machine became defective and the Ist opposite party told that the carburetor of the machine was melted. After changing the carburetor, the same defect repeated. PW1 has ready to produce the machine before the Forum. PW2 is the Secretary of the society who purchased the machine. Ext.P11 is the copy of the ration card of one member of the society. The machine was became defective during the warranty period. The can for the purchase of the fuel was supplied by the Ist opposite party himself. The person who operating the machine has got training from the opposite party. The Technical Manager of the opposite party was examined as DW1. He inspected the disputed machine at the Ist opposite party's shop. The carburetor of the machine was made up of aluminium, the aluminium melted and found inside the carburetor of the machine. The fuel filter was also damaged. The reason for the same may be because some chemical in the fuel may have added or contaminated into the fuel, which goes to the carburetor. The warranty is only for manufacturing defects. The warranty card is provided for the maintenance. The carburetor has to be replaced, the fuel filter also should be replaced. On cross examination of the learned counsel for the complainant, DW1 deposed that the warranty is only for manufacturing defects. In Ext.P2 warranty card, the word 'manufacturing defect' is not written. But it is explained like that the warranty is for 6 months. The equipment has serviced by the opposite party before the warranty period. On 30.09.2008 and 16.10.2008, the machine was repaired by the opposite party. In October 2008, DW1 inspected the machine and advised to change the carburetor.

As per PW2, the complainant decided to purchase the machine for helping the BPL members of the society. Ext.P11 is the copy of the ration card of the member named Benny. So the contention of the opposite party that the machine is used for commercial purpose is not sustainable.

The only dispute is that whether the defects caused to the machine was because of the manufacturing defect or due to the use of unexperienced hands. As per DW1 some foreign particles in the fuel, which is caused damage to the machine. These particles goes into the carburetor, the fuel got mixed with chemicals and the carburetor was melted. It can be due to the use of the unexperienced hands. As per the opposite party, the can used for bringing acid was used for purchasing fuel for the machine and the same was contaminated in the fuel. But PW2 stated that the fuel “can” was supplied by the Ist opposite party himself. Once the machine was defective and the the carburetor was changed by the opposite party as per the advice of DW1 and the complainant paid Rs.2,450/- for the same. It was on 12.11.2008. But after changing the carburator, again, the same complaint repeated. Exts.P4, P5 and P7 are the service estimates of the machine on 30.09.2008, 16.10.2008 and on 16.12.2008 respectively. Ext.P6 is the service receipt of the machine dated 12.11.2008 for Rs.2450/-. So it is clear that the defect was started in the warranty period itself. The machine was purchased on 8.08.2008. As per the opposite party the machine used by unexperienced hands and that may be the one reason for the defect of the machine. But DW1 deposed that the opposite parties are giving some training to the users of the machine. A service manual is also supplied by them. As per DW1, the carburetor of the machine is made up of aluminium, the aluminium melted and found inside the carburetor of the machine. That may be because of some chemical contaminated in the fuel. The carbure tor was changed as per Ext.P6. Again the same complaint repeated. It means that there is some manufacturing defect to the machine and the opposite party is bound to clear the defect of the machine or replace the machine with a new one. That was denied by the opposite party and it is a gross unfair trade practice on their part. So we think that the opposite parties should replace the old Oleomac Weed Cutter SPARTA-42 with a new machine of the same quality or pay Rs.19,800/- to the complainant. There is no evidence to show that the complainant has sustained heavy loss because of the defect caused to the machine and the contract works were lost by them.

Hence the petition allowed. The opposite parties are directed to supply a new Oleomac Weed Cutter SPARTA-42 machine of the same quality or pay Rs.19,800/- to the complainant within one month. The opposite parties are also directed to pay Rs.1,000/- as cost of this petition within one month of receipt of a copy of this order, failing which the amount shall carry 12% interest per annum from the date of default.

Pronounced in the Open Forum on this the 8^th day of March, 2010

sd/-

SRI.LAIJU RAMAKRISHNAN(PRESIDENT)

sd/-
 

I agree SMT.SHEELA JACOB(MEMBER)

sd/-
 

I agree SMT.BINDU SOMAN(MEMBER)

APPENDIX

Depositions :

On the side of Complainant :

PW1 - George Joseph

PW2 - Binoy Joseph

On the side of Opposite Parties :

DW1 - G.R.Chandramohan

Exhibits:

On the side of Complainant:

Ext.P1 - Cash Bill dated 8.08.2008 for Rs.19,800/-

Ext.P2(series) - Warranty Card with Free Service Coupons

Ext.P3 - Bye law of SHG

Ext.P4 - Service Estimate dated 30.09.2008 for Rs.75/-

Ext.P5 - Service Estimate dated 16.10.2008 for Rs.80/-

Ext.P6 - Service Estimate dated 12.11.2008 for Rs.2,450/-

Ext.P7 - Service Estimate dated 16.12.2008 for Rs.316/-

Ext.P8 - Notice published by the Tash Group in relation to the

Gandhijayanthi day celebration

Ext.P9 - Photocopy of Membership Minutes Book of Tash Group

Ext.P10 - Photocopy oft Minutes of the Meeting held on 10.07.2008

at Veechattu House

Ext.P11 - Photocopy of Ration Card of one member of Tash Group

named Benny Thomas showing that he included in the

BPL List

On the side of Opposite Parties :

Nil