DOF.11.5.2009 DOO.5.9.2010 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR Present: Sri.K.Gopalan: President Smt.K.P.Prethakumari: Member Smt.M.D.Jessy: Member Dated this, the 5th day of August 2010 C.C.No.125/2009 Augustine Mathew, Pulichamakkal House, Mangara, P.O.Chapparappadavu, Taliparamba Taluk (Sri.Joji John) Complainant Proprietor, J Support Industries, Pothanicad.P.O., Kothamangalam, Ernakulam. (Rep. by Adv.Sanalkumar) Opposite parties O R D E R Sri.K.Gopalan, President This is a complaint filed under section12 of the consumer protection Act for getting an order directing the opposite party to pay an amount of Rs.15, 000/-. The case of the complainant in brief is as follows: Complainant purchased a milk extracting machine named as J.S Milker from the opposite party for an amount of Rs.8, 250/- on 25.10.2008. Opposite party canvassed the complainant promising that the machine could be used life long without any defect so also the same will increase the yielding of milk and health of the cow. He offered guarantee but from the very outset the machine had not been working properly and soon became useless. It was informed to opposite party and the agent of the opposite party came and carried out certain repairs. But even after the repair the machine was not worked properly. The machine that supplied to the complainant was one that could not be used. Opposite party s cheating the complainant for appropriating money. Though complainant asked to take back the machine and return the amount opposite party was not ready to do so. Lawyer notice was sent on 4.2.09 calling upon to pay the price of the machine together with the expense Rs.9000/- and to take back the machine. Opposite party received the notice but did not send even a reply. Complaint suffered a loss of Rs.6000/- due to providing this useless machine. Hence opposite party is liable to pay the total amount of Rs.15, 000/- including the price and other expenses. Hence this complaint. Pursuant to the notice opposite party entered appearance and filed version. Denying the main allegations of complainant. The brief facts of the contentions of opposite party are as follows: Complainant purchased low cost milk extracting machine from him for Rs.8250/-. Opposite party is the manufacturer of J.S Milkier distributing through out India. It is admitted that the sales representatives of the opposite party visited complainant and explained the virtues of the product. On this impression complainant placed order but it is untrue that this opposite party offered any guarantee as alleged by the complainant. But on a matter of policy this opposite party was providing six months free services. It was untrue that the machine was not working properly. It is true that complaint had informed that the machine was not working properly. He sent experts and according to him the problem is not that of machine but of complainant who did not operated it properly. The expert again demonstrated the operating method and the complainant were fully satisfied that the machine was fully functioning. It is not because of any kind of mechanical problem but the ignorance of the complaint how to use the machine created problems with the machine sold to him. This opposite party is still ready to demonstrate that the machine sold is fully viable and properly functions even now, if the complaint is not distracted the machine. Complainant is not entitled for any compensation as there was no deficiency of service on the part of opposite party. Hence to dismiss the complaint. On the above pleadings the following issues are raised for consideration. 1. Whether there is any deficiency in service on the part of the opposite parties? 2. Whether the complainant is entitled for remedy as prayed in the complaint? 3. Relief and cost. The evidence consists of oral testimony of PW1and documentary evidence Exts.A1 to A3. Opposite party has no oral or documentary evidence. Issue No. 1 to 3 Admittedly complainant purchased milk extracting machine from opposite party. Complaint alleged that the machine was not functioning properly from the very outset. Even after the repair done by the expert sent by the opposite party the machine had not been functioning properly. Ext.A2 proves that complainant purchased the hand operated milk machine for Rs.8250/-. Ext.A3 is the legal notice sent by the complainant to opposite party calling upon to take back the defective machine by paying the purchase price and other expenses estimated to be Rs.9000/- together with notice charge Rs.300/-. It is alleged in the notice that the machine supplied by the opposite party is totally useless and he has deceitfully induced complainant to purchase the same to get unlawful gain. Complainant adduced evidence by way of evidence affidavit in tune with the pleadings. Complainant was cross examined for opposite party. He has deposed in cross examination that “ sajn³ {]hÀ¯n-¸n-t¡-p¶ hn[T a\-Ên-em-¡n-bn-cp-¶p. Cu ]cm-Xn-sIm-Sp-¡m³ Dt±-in¨ ka-b¯v ]ip-hns\ hn¡m³ Dt±-in-¨n-cp¶p F¶p ]d-ªm icn-b-Ó. The main contention of the opposite party is that it is not the fault of the machine but the ignorance of the complaint how to operate the machine is the problem. The opposite party has brought out in cross examination that complainant knows to operate the machine. Opposite party has not adduced any evidence to prove that the operation of the machine in question requires special skill. Hence the contention that the mistake in operating of the milker machine by the complainant is the reason for improper functioning of the machine is not sustainable. It has to be noted that the opposite party has taken the contention that the opposite party is still ready to demonstrate that the machine sold is fully viable and properly functions even now. Opposite party blamed the complainant contending that complainant did not produce the machine before the Forum. Accepting the challenge complainant produced the machine before the Forum. Thereafter opposite party’s demonstrator Mr. Pious appeared before the Forum for demonstrating the machine. But he failed to demonstrate the machine and submitted in the open Forum that demonstration is possible only after repair. Anyhow Forum suggested settling the matter amicably and complainant expressed his willingness in settling the matter. The case was posted for settlement to another day. But settlement could not be achieved since opposite party has not taken initiative. Thereafter opposite party reported no evidence and thus evidence closed. Opposite party has neither adduced evidence orally nor by way of documentary. The expert of opposite party undoubtedly convinced the Forum that the Milker machine is useless and defective at present. Complainant adduced evidence that the machine was in disorder from the very beginning. Opposite party failed to establish his contention that the machine is in working condition even now. In the version opposite party has stated that “this opposite party is still ready to demonstrate that the machine sold is fully viable and properly functioning even now”. But opposite party miserably failed to prove this contention. His expert Mr. Pious miserably failed in the open court to conduct the demonstration. It is quite evident that there is manufacturing defect in the machine. It cannot be ignored that the expert of the opposite party repaired the machine within a few days of purchase. The opposite party did not sent reply to the legal notice of the complainant. The entire allegation in the complaint raised in the notice also. Opposite party is bound to give reply. Non reply of legal notice definitely amounts to deficiency in service. The available evidence on record with the existing circumstances it could be concluded that the machine in dispute is useless and defective we are of opinion that the suitable remedy to settle the dispute is to return the purchase price together with a reasonable amount of expense including the cost of this proceedings and to take back the defective machine. Hence we hold that opposite party is liable to return the purchase amount Rs.8250/- together with a sum of Rs.2000/- towards expense including the cost of this proceedings. The issues 1 to 3 are found infavour of the complainant and order passed accordingly. In the result, complaint is allowed directing the opposite party to return the purchase amount of the milking machine a sum of Rs.8250/-(Rupees Eight Thousand Two hundred and Fifty only) together with Rs.2000/- (Rupees Two thousand only) as expense including the cost of this proceedings to the complainant within one month from the date of receipt of this order, failing which the complainant is allowed to execute the order against the opposite party under the provisions of consumer protection Act. Complainant has to return the milking machine on receiving the amount. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the complainant A1.Palmphlet and notice issued by OP A2. Cash Receipt issued by OP A3.Copy of the lawyer notice issued by OP Exhibits for the opposite parties: Nil Witness examined for the complainant PW1.complainant Witness examined for opposite parties: Nil /forwarded by order/ Senior Superintendent Consumer Disputes Redressal Forum, Kannur
| | [HONORABLE PREETHAKUMARI.K.P] Member[HONORABLE MR. GOPALAN.K] PRESIDENT[HONORABLE JESSY.M.D] Member | | 
