Hon’ble Mr. Haradhan Mukhopadhyay, President.
The basic fact of the case of the Complainant is that the Complainant Abhijit Debnath purchased one Osaka Combine Harvester Half Feed Machine for Rs. 21 Lakhs on the basis of quotation of the OP, the Proprietor, Osaka International INC, South City-II, Gurgone, Haryana vide quotation No.2020-05-8488 dated 07.09.20. After issue of quotation the Complainant paid 1st booking money for Rs.3 Lakhs on 09.09.20. The OP stated that within very short period the machine would be delivered to Complainant’s residence. Accordingly the Complainant paid Rs.5 Lakhs on 23.09.20, Rs.3 Lakhs on 02.11.20, Rs.6 Lakhs on 12.11.20 and lastly Rs.4 Lakhs on 24.11.20, total Rs.21 Lakhs through RTGS. After receiving the full amount the OP, Osaka International INC intentionally did not deliver the said machine immediately and lastly delivered the said machine on 10.01.21. Due to delay in delivery of the machine the cultivation of 1st season was lapsed and the Complainant suffered financial loss. The Complainant is a cultivator and he purchased the machine for cultivation work for his self-employment and earning livelihood. The Complainant contacted with the OP to send engineer/ operator for demonstration of the machine for cutting paddy in the next season but the OP told that he would send it on 04.05.21. Therefore the Complainant hired one operator from U.P. namely Bhupesh. The OP did not send any engineer/ operator for demonstration. After 4 days the OP sent one engineer but due to delay the demonstration could not be done properly. Due to Eid festival people did not cut paddy in that period. Subsequently the Complainant managing the operator from U.P. done cutting of paddy/ grass but it was found that the machine was not binding grass after cutting paddy straw. The Complainant informed the matter to the OP but the OP did not send any engineer to cure the defect within the warranty period. The Complainant also sent several whatsapp massage for defective machine with request to change the machine but the OP intentionally did not cure the defect. Due to defective machine, the said machine did not work properly for which the Complainant suffered metal pain and agony. The aforesaid activities of the OP amounts to deficiency in service for which the Complainant sent legal notice through Mr. Santosh Kr. Sah, Advocate, Cooch Behar on 28.06.21 which the OP received on 06.07.21 but did not take any positive step. The Complainant came to know that some customer purchased same type of Osaka Combined Harvester Half Feed Machine at a very low rate. Then the Complainant contacted one customer namely Md. Noushad vide quotation No. 2021-05-8746 dated 29.06.21 for Rs. 8 Lakhs for same model No.OS-4LBZ-150 BT of Osaka Combine Harvester Half Feed Machine. Thus the OP charged extra price for Rs.3 Lakhs from the Complainant illegally. The aforesaid activities of the OP amounts to unfair trade practice. The cause of action arose on 09.09.20 and on subsequent dates. The Complainant therefore prayed for an award for Rs.21 Lakhs with direction for either give proper service of the said machine by the OP or refund the said sum of Rs.21 Lakhs to the Complainant with up to date interest or replace a new Osaka Combine Harvester Half Feed Machine of same model, Rs.3 Lakhs for extra money received by the OP with up to date interest, Rs.5 Lakhs for deficiency in service, Rs.5000/- per day as loss for non-working of machine till today and Rs.20,000/- towards cost of litigation.
The OP contested the case denying each and every allegation of the complaint. The positive defence case of the OP in a few words is that the Complainant filed quotation of the Osaka Combine Harvester Half Feed Machine for Rs.21 Lakhs and the Complainant paid the entire consideration money in due course of time but the OP did not promise that after advance of money or part payment the delivery of the machine shall be done. Only after payment of full price the machine shall be delivered. The last payment was made on 24.11.20 but due to Lockdown in Haryana for Corona Virus there was multiple restrictions for interstate movements of goods. The O.P’s business is situated in Gurgone. The delivery of goods were delayed due to Lockdown. So also travelling of engineer and Office staff of the OP were disrupted. However the OP delivered the said machine to the Complainant on 07.01.21. The OP is well acquainted that an engineer is required for operating the said machine but due to restriction of movement and cancellation of interstate train the OP could not send engineer just after delivery. However the trained engineer was sent on 01.02.21 for training of the procedure but shockingly he came to know that the said machine was operated by some mechanic and it was found deficient due to carelessness and reckless attitude of the Complainant as the said machine works on advance technology which requires skill and expert engineer to operate. The said engineer of the OP found on 01.02.21 that the cutting blade of the said machine had already been broken due to mishandling. Due to the obstruction by the Complainant and his men it was not possible for engineer to repair the error and he had to return back. It is admitted that the Complainant sent certain massage through Whatsapp. Due to wrongful handling and negligence the Complainant had damaged the machine. The machine which was purchased by the said Md. Noushad of Darbhanga, Bihar was an old model and as such the price was lower than the machine of the Complainant. The OP is bound to give proper service to the Complainant. There is no cause of action. The OP claimed that the case is liable to be dismissed.
The conflicting pleadings of the parties and the evidence on case record suggest this Commission to frame the following points for ascertaining the real question in controversy.
Points for Determination
- Whether the present case is maintainable in law and form?
- Whether there is any deficiency in service by the OP?
- Whether the Complainant is entitled to get the relief prayed for?
- To what other relief if any the Complainant is entitled to get?
Decision with Reasons
Point No.1.
It is the admitted position that the Complainant paid the full amount for the Osaka Combine Harvester Half Feed Machine to the OP, Proprietor of Osaka International INC, South City-II, Gurgaon, Haryana. Whether the OP delivered the said machine within reasonable time and sent the engineer for training and operation of the machine that would be decided under the point No. 2 & 3. But after perusing the pleadings of the parties and the evidence on the case record it is found that there is relation of customer and seller between the Complainant and the OP. The Complainant reasonably can claim a service from a seller for the goods purchased by him. The OP could not adduce sufficient evidence or any specific point to establish that the present case is not maintainable.
Thus having considered the material in the case record and given due consideration to the argument advanced by Ld. Advocate for both the parties the Commission is of the opinion that the present case is maintainable in its present form and prayer.
Accordingly, point No. 1 is answered in affirmative on behalf of the Complainant.
Points No. 2, 3 & 4.
All these points have close link amongst each other. Accordingly these are taken up together for brevity and convenience of discussion.
If we began the judgment with the most tragic comment of the Ld. Defence Counsel that the Complainant is the victim of the circumstance, then one thing comes into forefront that the Complainant is a victim. But it is important to consider that the Complainant has to prove his case on its own strength and not on the weakness of the defence case. It is the specific allegation that the Complainant purchased one Osaka Combine Harvester Half Feed Machine vide model No. OS-4LBZ-150 BT for Rs.21 Lakhs. Despite payment of the full amount of Rs.21 Lakhs the OP is alleged to have delayed the delivery of the said machine. After purchasing the machine the Complainant found some defect but the OP further delayed in sending any operator/ engineer for demonstration of the new machine. So the Complainant was compelled to hire operator from U.P. but it was found that the machine was not binding the straw after cutting the paddy, due to the machine being defective.
Although the Complainant proved the documents of purchase of the machine from the OP, yet the OP did not challenge it. The OP categorically admitted that the Complainant paid Rs.21 Lakhs to the OP on 24.11.20 as entire consideration which the OP acknowledged.
It is the defence plea that due to the prevailing state Lockdown for Covid-19, delivery was delayed and the said machine was delivered on 07.01.21.
The Complainant alleged that the said OP caused inordinate delay in sending the machine and operator/ engineer, so he was compelled to hire an engineer from U.P.
If we accept the defence plea that due to Covid-19 and Lockdown engineer could not be sent, then how an operator/ engineer came from U.P. to Cooch Behar.
Second important point for consideration is that, when a big machine with foreign (Japanese) technology is sold it is the bounden duty of the seller to give proper demonstration within reasonable time so that the machine can run or be utilized for the purpose for which it was purchased.
It is the settled position of law that if the benefit of the transaction is taken its burden also has to be taken.
The price of the machine is very costly which is Rs. 21 Lakhs. It is wrong to think that such a costly machine would be purchased to keep it idle.
Another aspect of the business deal in question discloses that the said machine was delivered on 10.01.21. Delivery of a machine means that it would be fit for operation. It is the admitted fact that the machine was made with Japanese Technology. So it was bounden duty of the OP to send one competent engineer alongwith the disputed machine for demonstration and give primary training to the Complainant or his agent for running the machine otherwise the purpose for purchasing the machine becomes frustrated.
The OP categorically admitted in Para- 2 of the written version that the Complainant paid the entire consideration money. The Complainant proved all the documents for payment of the said Rs. 21 Lakhs. So it stands proved that final payment was made on 24.11.20. But the machine was delivered after one and half month of the final payment. So, the OP had taken sufficient time for delivery of the purchased good i.e. harvesting machine. But the OP delivered the machine in incomplete condition because the machine alone cannot run without a trained operator. So, the OP caused deficiency in service in supplying the disputed machine.
It is defence plea that due to operation of the said machine by the Complainant recklessly and negligently it became deficient. It was caused due to carelessness and reckless attitude of the Complainant. Other than a mere allegation upon the Complainant, the OP could not prove any expert report as to why the machine became defective.
For the sake of argument if it is presumed that the machine became defective for the fault of the Complainant, then it raises some question. The said machine became defective within three months of purchase. Every machine must have a warranty period. The OP had an obligation to give proper service to make the machine operationalize and fit for use. Failure to do so or take appropriate step on the part of the OP should be considered as deficiency in service.
The OP also failed to prove any document between the parties regarding the time limit for supplying machine and demonstration after full and final payment of the price for the said machine.
The Complainant also proved some screenshot of dialogue between the Complainant and the OP in WhatsApp. Ld. Defence Counsel argued that WhatsApp screenshot are not acceptable evidence. But the pleadings of the parties discloses that the OP in Para- 13 admitted that the Complainant sent certain message through WhatsApp. Therefore admitted facts need not be proved. After perusing the said WhatsApp message, filed by the Complainant in printed form it is found that the Complainant repeatedly requested the OP for taking appropriate step for getting service of the new machine and sending engineer.
It is reasonable inference that in common parlance after full payment of price for goods a customer must expect its delivery within reasonable time and its proper service after delivery. Any exception to that system would certainly make him worried and he would try to raise his grievance to the seller. Nowadays cell phone is most convenient medium for the conversation. But the OP could not prove anything that he informed the reasons for delay in supply of the goods/ machine and engineer through any other mode than the cell phone.
Ld. Advocate for the Complainant argued that due to filing of the case the OP after 3 years now pleaded for giving service. So it is deficiency in service. The argument is acceptable. Annexure- A,B,C,D,E,F, & G being different documents filed by the Complainant supports the contention of the Complainant.
Ld. Advocate for the Complainant also referred to a decision reported in 2019(1) CPJ 427 NC wherein it was held that manufacturing defect in machine within 1 year- respondent is liable to refund the money.
The case law is relied on.
In another case law reported in Vol. iv (2020)CPJ 282NC referred by Ld. Advocate for Complainant it was held that Complainant could not be expected to visit the workshop with hope that defect be a removed by the workshop. The manufacturer and dealer are jointly and severely responsible.
The said case law is also applicable here.
Ld. Advocate for the Complainant further referred to another ruling reported in Vol. I(2019)CPJ 193 Gujarat, wherein it was held that for manufacturing defect in car, manufacturer and dealer are liable, the case law is relied on.
The OP could not give any counter ruling against the aforesaid three case laws. The Complainant also argued that the OP took excess price for the machine as another customer purchased same machine for Rs.18 Lakhs. He proved Annexure-1 wherefrom it is found that same Osaka Combine Harvester Half Feed Machine was sold to Md. Noushad for Rs. 18 Lakhs.
The defence plea is that it is an old machine but the OP could not prove any document to establish that it is an old machine. Therefore its stands proved that the OP charged excess Rs. 3 Lakhs for the said disputed machine from the Complainant. The critical analysis of the facts of the case and the defence plea and the assessment of the evidence made in the foregoing paragraph vis-a-vis the observation made herein above, the Commission comes to the finding that the Complainant Proved the case against the OP up to the hilt.
Points No.2, 3 & 4 are accordingly answered in affirmative in favour of the Complainant.
In the result the complaint case succeeds on contest with cost.
Hence, it is
Ordered
That the complaint case No. CC/32/2021 be and the same is allowed on contest with cost Rs.5,000/-.
The Complainant, Abhijit Debnath do get an award against the OP, the Proprietor Osaka International INC with a direction to repair the Osaka Combine Harvester Half Feed Machine within one month from the date of passing the Final Order and give proper services within one month failing which he shall refund Rs.21 Lakhs with up to date interest after taking back the said machine or in the alternative replace the old Osaka Combine Harvester Half Feed Machine with a new Osaka Combine Harvester Half Feed Machine of same model within one month from the date of Final Order to the Complainant.
The OP, the Proprietor Osaka International INC is further directed to refund Rs.3 Lakhs towards excess price charged from the Complainant against the said machine to the Complainant, Rs.2 Lakhs towards deficiency in service and mental pain and agony and Rs.500/- per day for not working the machine from the date of delivery till the date of repairing/ servicing. The OP is directed to comply with the order within 30 (thirty) days from the date of passing the Final Order failing which the entire award money shall carry an interest @ 8% per annum.
D.A. to note in the trial Register.
Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule.
The copy of the Final Order is also available in the official website: www.confonet.nic.in.
Dictated and corrected by me.
