Present         (1)    Nisha Nath Ojha,   

                              District & Sessions Judge (Retd.)   

                                President

                    (2)     Sri Sheo Shankar Prasad Singh,

                              Member

Date of Order : - 17.07.2015

                    Sheo Shankar Prasad Singh

1. In the instant case the Complainant has sought for following reliefs against the Opposite party:-

1. To refund defective goods forthwith or to pay Rs. 14,000/- ( Rs. Fourteen Thousand only ) with 12% panel interest.
2. To pay Rs. 10,000/- ( Rs. Ten Thousand only ) as compensation.
3. To pay Rs. 5,000/- ( Rupees Five Thousand only ) as litigation cost.

2. Brief facts of the case which led to the filing of complaint are as follows:-

1. The complainant has purchased a Zig Zag Swing machine Usha Stitch Magic bearing serial no. 130439815 on 23.07.2012 at the rate of Rs. 13,800/- ( Rs. Thirteen Thousand Eight hundred only ) from the opposite party no. 1. The opposite party no. 1 issued warranty card on behalf of the opposite party no. 2 with regards to the machine. The machine has two years warranty. ( Vide Annexure – 1 )
2. Within a week the said machine become defective, the complainant lodged complaint to the opposite party for removing defects in machine. The opposite parties did not take care. The complainant lodged written complaint to the company as well as the dealer for removing the defect in machine but they have ignored complaint of the complainant without mentioning reason. Time and again the complainant lodged complaint and requested for removing the defect in machine. All efforts went in vain. Now the complainant has no option but to file a complaint case, therefore this case has been filed. ( Vide Annexure – 2 )
3. On examination, the complainant found that the goods delivered by the opposite party no. 1 is defective. The complainant informed to the service dept. & company, ( Opposite party no. 2 ) as to defective goods. The Engineer of the opposite party no. 2 came and examined the goods under the eyes of expert. After consideration all the facts, he came to conclusion that the supplied goods is not perfect on various angle. The expert opinions that some parts of the goods is not ok. The complainant is not satisfied with the opposite party no. 1, therefore he prayed for refund the defective goods or refund the money. The opposite parties are not ready to refund the goods or money.
4. It is case of unfair trade practice under the law of consumer. Perhaps the opposite party has supplied second hand machine or defective machine to the complainant due to bad intention or to cheat. It is wrong under the law. The opposite parties have not cared about the complaint lodged by the complainant. It is violation of sell contract under the law of the contract.

3. The Opposite Party no. 1 in his Written Statement has submitted as follows :-

1. The present complaint is wholly misconceived, groundless and unsustainable in law and is liable to be dismissed as such.
2. The complainant has misused the Consumer Protection Act and the machinery setup under the Act to prosecute the present complaint on the basis of false and incorrect statements with ulterior motive to squeeze money from the opposite party no. 1. He has not disclosed all true facts in his complaint. The statement made in complaint petition filed on behalf of complainant above named and the statement made in application dated 17.11.2012 and application dated 02.11.2012 of the complainant is totally contradictory. The complainant never lodged a complaint with the opposite party no. 1 and never reported to the opposite party no. 1 that the sewing machine supplied to the complainant is Second Hand machine or defective machine. The complainant has not produced any substantial evidence before this Forum which shows that the sewing machine supplied to the complainant is totally defective and Second Hand machine. Actually only for squeezing money from the opposite party no. 1, the complainant has made false and incorrect statement before this forum by filing complaint. It is further submitted that the Consumer Protection Act provides cheap and quick redressal of genuine consumer’s grievances and no person should misuse the remedies available under the Act for lodging false complaint with ulterior motive to squeeze money from the opposite parties and to harass the person who supply goods or render services.
3. It is submitted that the complainant approached the opposite party no. 1 for purchasing Zig Zag sewing machine. He after thoroughly examining the sewing machine selected Zig Zag sewing machine bearing serial no. 130439815. The opposite party no. 1 issued invoice dated 23.07.2012 in favour of complainant. After receiving the amount of Rs. 13,800/- ( Rs. Thirteen Thousand eight Hundred only ) from the complainant delivered totally new and defect free sewing machine to the complainant along with dully filled warranty card. The sewing machine delivered to the complainant was totally defect free and new and the complainant also found at time of purchasing the said sewing machine easy, okay and running condition and same is totally new. After purchasing the said sewing machine the complainant never reported to the opposite party no. 1 that the said sewing machine is totally defective and of inferior quality.
4. The forum has no jurisdiction to entertain and adjudicate upon the dispute involved in the complaint is as such as it is not a consumer dispute under provision of Consumer Protection Act 1986. It is further submitted that the complainant alleged that cheating and bad intention in the complaint. Thus, the for a constituted has no jurisdiction to entertain such complaint. It is well settled that the Consumer protection Act and the machinery there under cannot be effectively utilize for determining complicated question of fraud, cheating and bad intention.
5. It is relevant to mention that as per warranty card it is obligation upon the opposite party no. 2 to provide the benefit of warranty to the purchaser.
6. It is relevant to mention that the imaginary and excessive claim made by the complainant is not supported by any logic. So it liable to be rejected.
7. The complainant bad for non joinder of necessary and proper party is liable to be dismissed on this score alone.
8. The present complaint is baseless and a flagrant abuse of process of law to harass the answering the opposite party.
9. The definition of complaint nad consumer dispute as defined in section 2(1) of the said Act, do not cover claims arising under the present dispute and that from the aforesaid definition, the complainant is not consumer and the controversy involved in the complaint is not a ‘ Consumer Dispute’.
10. The present complaint has not been verified in accordance with law.
11. The present complaint is frivolous and vexatious and liable to be dismissed under section 26 of the Act.

4. The Opposite Party no. 2 in his show cause sum objection petition has submitted as follows :-

1. The opposite party no. 2 is a registered company under Company’s Act 1956, undisputedly deals in manufacturing and marketing of sewing machine, auto parts, electrical fan, home appliances etc. Since long years in all over the India and abroad.
2. Present complaint petition filed by the complainant is wholly misconceived, fabricated without basis and not maintainable and fit to be rejected ought rightly.
3. The complainant was fully enquired the details of sewing machine and with full satisfied purchased the sewing machine from the opposite party no. 1 shop, at the time of purchase of sewing machine there was no complaint lodged by the complainant to opposite party no. 1, it shows that there were no manufacturing defects in the sewing machine. The sewing machine was running successfully.
4. It is unfair that the sewing machine was defective at the time of delivery by opposite party no. 1. The complainant is not an expert to say that, it is only said by expert engineer of company. It is pertinent o mention that the machine in question was running successfully at the time of purchase.
5. At first time the complainant after one month on 25.08.2012 complaint about the machine was not working smoothly after complaint the mechanics of opposite party no. 2 went to the complainant’s house and inspected the machined found the machine in question was badly handled by the complainant and his family members due to the reason the waiver soft was not working smoothly which was a minor defects and immediately removed the defect and wife of the complainant namely Priya Singh signed the job sheet with full satisfaction. ( Vide Annexure – A )
6. Thereafter the complainant again complain about non functioning about the machine in question on 15.09.2012 and after the complaint the complaint’s mechanic went to complainant’s house and after inspection found that the machine in question was badly handled as a result the gear shaft was not working. The mechanic advised the complainant that the gear shaft of machine is not functioning and without removing the gear shaft the machine did not work and for replacement of gear shaft the machine be sent to work shop at opposite party no. 2 but the complainant did not do it and mischievously filed this complaint before the forum.
7. It is pertinent that the machine in question was not defective at the time of purchase of the machine. The opposite party no. 1 demonstrated the machine with full satisfaction. The opposite party no. 1 also explained about the warranty of the machine and also informed the complainant the replacement of machine only for major manufacturing defects.
8. The said machine was covered two years warranty. It has also pertinent to mention here all conditions are any purchased of sewing machines are mentioned in warranty card and the opposite party no. 1 were explained about warranty of machine to complainant and also give him warranty card.
9. According to warranty card that  the opposite party no. 1 company has allowed warranty only repair or replace any part shown defective attributable to faulty material or workmanship at the time of manufacture, if the company so acknowledges, as described hereunder for a period of 2 years against defects of sale receipt is proof of purchase of the product and the warranty period commences from the date. The said warranty shall be provided against the presentation of sale receipt. The warranty is valid only when failure of the products does not arise due to use for any untended purpose. A defective product/part will be repaired within the warranty period provided it is properly packed sent to and collected from authorized Usha Service Centre along with this card duly filled in and stamped by the company/ company showroom selling dealer. Incase of absence of an authorized dealer or a service centre in a city, and there arises an unlikely event of defect, you are requested to get in touch with the company directly along with a photocopy of warranty card.

Company’s list price will be changed for worn out or broken parts claim for missing parts should be made/notified within a specified time period ( within 30 days from the date of delivery or as the company may deem fit ) exceeding which the claim shall stand denied.

The above warranty shall not apply.

1. If the sewing machine and its parts have not been services maintained and operated in accordance to the printed instructions accompanying the machine.
2. For normal wear and tear again effect or chipping, peeling off or any other damage to the painted, plated metalized or plastic parts.
3. The defect or fault has been caused through ignorance, accident or negligence.
4. Attempts have been made by parties other than Usha Shops/ Authorized dealers/ sub – dealer to repair or service.
5. To needle, bobbins, bobbin case, shuttle, belt and bulb. This warranty is in lieu of all other expressed or implied and does not cover :

1. Modification of the product not authorized by Usha,
2. Improper and unprofessional use,
3. Change in factory setting of the product,
4. Accident and damage,
5. Usage other than as prescribed by the user manual,
6. Fire, flood and other acts of god.

10. It crystal clear that above mentioned rules/instruction are mentioned in warranty card provided with every purchase of sewing machines to the purchaser to facilitate them for use of machine.
11. They had not followed the instructions of warranty card also he would followed the request of mechanics and had not send his machine in question at service centre of opposite party no. 2 company in that circumstances the opposite party no. 2 company is not responsible for any deficiency in its service as well as manufacturing defects as such the compensation sought by the complainant is not applicable against this opposite party no. 2.

Both the parties have been heard and all the available documents have been perused by us.

Upon consideration of the entire facts we are of the opinion that the complainant had made complaints to the opposite parties about non – functioning of the sewing machine and the mechanics of service centre had visited his residence. Minor defects was removed but on another opinion the mechanics advised the complainant to send the machine to the service centre so that defective parts be repaired there which is not possible to be repaired at residence but the complainant failed to adhere the advise.

Thus, it cannot be construed that the opposite parties are responsible for deficiency in service.

Accordingly, this case stands dismissed but without any cost.

                                                                    Member                                                        President