BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI. A : MEMBER

SMT. S.K. SREELA : MEMBER

O.P. No. 316/2001 Filed on 01..08..2001

Dated: 15..12..2008

Complainant:

G. Chandra Babu, “Sree Dhanya”, T.C.IX/875, Sasthgamangalam, Thiruvananthapuram – 10.

(By Adv. C. Mohana Kumar)

Opposite party:

The Proprietor, M/s. Hindustan Engineering Corporation, Near Ammankovil, Karamana, Thiruvananthapuram.

(By Adv. T. Sambasivan Chettiar)

This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 13..09..2004, the order was not prepared accordingly. This Forum assumed office on 08..02..2008 and re-heard the complaint. This O.P having been heard on 29..11..2008, the Forum on 15..12..2008 delivered the following:

ORDER

SMT. S.K.SREELA, MEMBER:

Briefly stated the facts of the complaint are that the complainant purchased a 12” thickness-cum-surface planner with circular saw attachment, table attachable etc fitted with 4 blades with 5 HP 3 phase motor etc.from the opposite party on 20..04..2000 for a sum of Rs.50,000/-. The complainant had purchased the costly equipment, on the basis of sales description and representation given by the opposite party that the same is very much useful and much labour saving in carpentry works. The equipment was intended for cutting and planning wood surfaces etc.during the period the complainant was constructing a residential building at Jawahar Nager, Thiruvananthapuram. Immediately on putting the equipment in operation, it developed serious complaints, which were proved to be rather manufacturing defects. On the very first day of its operation itself, the equipment became defective. Immediately the complainant contacted the opposite party for necessary remedial action, and in turn the opposite party requested the complainant to take the equipment to his workshop for repair. Accordingly the heavy equipment was taken to the opposite party for repairs incurring huge expenses. The opposite party returned the same after two months stating that the defects have been attended and corrected. The equipment returned to the complainant was completely defective and useless. The complainant could not use the equipment even a single day. Though several reminders and requests were made to the opposite party to cure the defects, the opposite party turned a deaf ear only. As a result the complainant had to give up the equipment for ever. The act of the opposite party tantamounts to unfair trade practice and deficiency in service making him liable to compensate the complainant all the losses and damages sustained to him in this regard. Hence this complaint has been enunciated.

2. The opposite party has filed their version contending that a defect free equipment was supplied to the complainant. At the time of purchase, the equipment was taken by the complainant in full satisfaction. It had a guarantee for six months and the complainant had sent the advocate notice on 22..05..2001. Before this notice, a defect was informed and on inspection it was found due to rough and unskilled use. The defect was cured immediately. The opposite party received oral complaints regarding the functioning of the equipment in the beginning stage, and the opposite party gave necessary instructions regarding the use of the equipment by skilled workers. The equipment is surface cum thickness planner with circular saw attachment, table adjustable etc fitted with 4 blades with 5 HP3 phase motor etc. The 4 blades to be fitted were not supplied by the opposite party. The opposite party had advised the complainant to purchase costly foreign blades and to run it by skilled mechanic carpenter. The complainant has not complied with these instructions. The equipment is fitted with second hand motor under the instructions of the complainant. If such second hand motor is used for a long time with heavy load, the equipment would become defective. There is no defective service on the part of the opposite party. If there is no breach of condition of the contract of sale, the seller is not liable to replace the goods or refund the value of the equipment. If any inconvenience is caused due to the mismanagement of the complainant the opposite party is not liable for the same. The opposite party has never committed any unfair trade practice. The complainant is not entitled to any of the reliefs and the opposite party prays for dismissal of the complaint with costs.

3. An expert Commissioner has been appointed by this Forum and he has been examined as CW1 and he has filed a detailed report which has been marked as Ext.C1.

4. Complainant has been examined as PW1, marked Exts.P1 to P3. The opposite party has filed affidavit and marked Ext.D1.

5. On the contentions raised, the following issues are raised for consideration:

1. Whether there is deficiency in service on the part of the opposite party?

2. Whether the equipment in dispute suffers from manufacturing defect?

3. Whether the complainant is entitled for any of the reliefs claimed?

6. Points (i) to (iii): Undisputedly, the equipment in dispute has been fitted with a second hand motor. As per Ext.P1, there is a guarantee for six months from the date of supply. It was argued by the learned counsel for the complainant that the equipment became defective from the very first day of its operation and when the complainant contacted the opposite party for remedial action, the complainant was asked to take the heavy equipment to the opposite party for repairs. Accordingly the complainant took the same to the opposite party and after 2 months the opposite party returned the same stating that the defects have been rectified. But according to the complainant it was completely defective and useless. The opposite party has admitted that in the beginning they received oral complaints and on inspection the opposite party gave necessary instructions regarding the use of the same by skilled workers. The learned counsel for the opposite party vehemently argued that the equipment became defective due to rough and unskilled use. At this juncture, the aspect that the equipment had shown defects during guarantee period is not in dispute. What is to be ascertained is whether this defects occurred due to manufacturing defect or due to rough and unskilled use.

7. CW1, the Commissioner has reported that the machine is in partially dismantled and fully in rusted condition. CW1 further reports that the machine required major overhauling, servicing and replacing of parts and hence the mechanical viability of the machine is very poor, the mechanical quality, feasibility, grade, composition style of the equipment was not satisfactory because it is a locally fabricated and assembled machine; the alignment of pullies and surface plates are not correct hence the defects of the machine have not been cured by the opposite party. The Commissioner has further reported that all the belt pullies are highly shakable and the rotar is rotating eccentrically on shaft, the alignment of the belt pullies and the surface plates are not correct – which according to the Commissioner are the manufacturing defects with the machine. The Commissioner has deposed that 'ഏകദേശം ഒന്നര വര്‍ഷമായിട്ട് പ്രവര്‍ത്തനരഹിതമായിരിക്കും, rusting conditionവച്ച് പറഞ്ഞതാണ്'. One of the main contention of the opposite party is that this equipment has been operated by an unskilled person. The Commissioner has deposed that 'Technical ബോധം ഇല്ലാത്ത carpenterഈ machineഉപയോഗിച്ചാല്‍ repairആകാം. But the opposite party has produced no evidence or put a suggestion with regard to the same to the Commissioner to substantiate their above referred contention. There is no evidence adduced by the opposite party on record to prove that the equipment has been operated by an unskilled person. The Commissioner has further deposed that 'manufacturing-ല്‍ ഉള്ള defectകൊണ്ടാണ് machineകേടായത്'.

8. The opposite party has admitted that they have received complaints with regard to the equipment during the guarantee period. We have duly considered the matter. The machine was sold to the complainant by the opposite party with a warranty for 6 months. Initially the machine suffered from various defects which admittedly were duly brought to the notice of the opposite party. This being the position, if within 6 months of the purchase of the equipment, the equipment becomes defective in the course of normal use, it reflects nothing but substandard quality of the machine. A mere accusation that the complainant has used unskilled person to operate the same cannot be relied upon since the defects have arisen within the guarantee period itself. Moreover there is no corroborative evidence to support the said contention of the opposite party. In the absence of evidence for the same, there seems to be no reason to disbelieve the Commission Report. As per Ext.C1 report, the equipment cannot serve the purpose for which it has been purchased.

9. By now, the equipment may have become junk and will be of no use. The specific case of the opposite party is that the machine has been operated by an unskilled person. The complainant has nowhere in the affidavit or during the examination of the expert commissioner has brought out in evidence with regard to the operation of the machine by a skilled person. The complainant has not established or resisted the above fact. The Commissioner has deposed that defect can aise by use by unskilled person. The complainant has failed to establish that the equipment was operated by a skilled person. Now we are in the midst of a situation wherein the defect in the equipment may be due to manufacturing defect or due to operation by an unskilled person. Both parties have not corroborated their contention with ample evidence and failed to substantiate their arguments.

10. During all these period the equipment was kept idle. The life and performance of such a machine which has been fitted with a second hand motor has to be taken into consideration. Since this being the position, taking the facts and circumstances into consideration and in order to meet the interest of justice we hold that the complainant will keep the machine with him and the opposite party shall pay an amount of Rs.15,000/- to the complainant by way of compensation which we consider as just and proper.

In the result, the opposite party is directed to pay an amount of Rs.15,000/- (Rupees Fifteen thousand only) to the complainant within a period of two months failing which the amount shall carry interest at 12% from the date of order.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, on this the 15^th day of December, 2008.

G.SIVAPRASAD, PRESIDENT.

BEENA KUMARI. A : MEMBER

S.K. SREELA : MEMBER

ad.

O.P.No.316/2001

APPENDIX

I. Complainant's witness:

PW1 : Chandrababu

II. Complainant's documents:

P1 : Photocopy of bill dated 20..04..2000 issued to the complainant

P2 : " of advocate notice

P3 : " of acknowledgment card

III. Opposite party's witness: NIL

IV. Opposite party's documents: NIL

V. Court witness:

CW1 : Natarajan

VI. Court Exhibit:

C1 : Commission Report

PRESIDENT

ad.

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI. A : MEMBER

SMT. S.K. SREELA : MEMBER

O.P. No. 316/2001 Filed on 01..08..2001

Dated: 15..12..2008

Complainant:

G. Chandra Babu, “Sree Dhanya”, T.C.IX/875, Sasthgamangalam, Thiruvananthapuram – 10.

(By Adv. C. Mohana Kumar)

Opposite party:

The Proprietor, M/s. Hindustan Engineering Corporation, Near Ammankovil, Karamana, Thiruvananthapuram.

(By Adv. T. Sambasivan Chettiar)

This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 13..09..2004, the order was not prepared accordingly. This Forum assumed office on 08..02..2008 and re-heard the complaint. This O.P having been heard on 29..11..2008, the Forum on 15..12..2008 delivered the following:

ORDER

SMT. S.K.SREELA, MEMBER:

Briefly stated the facts of the complaint are that the complainant purchased a 12” thickness-cum-surface planner with circular saw attachment, table attachable etc fitted with 4 blades with 5 HP 3 phase motor etc.from the opposite party on 20..04..2000 for a sum of Rs.50,000/-. The complainant had purchased the costly equipment, on the basis of sales description and representation given by the opposite party that the same is very much useful and much labour saving in carpentry works. The equipment was intended for cutting and planning wood surfaces etc.during the period the complainant was constructing a residential building at Jawahar Nager, Thiruvananthapuram. Immediately on putting the equipment in operation, it developed serious complaints, which were proved to be rather manufacturing defects. On the very first day of its operation itself, the equipment became defective. Immediately the complainant contacted the opposite party for necessary remedial action, and in turn the opposite party requested the complainant to take the equipment to his workshop for repair. Accordingly the heavy equipment was taken to the opposite party for repairs incurring huge expenses. The opposite party returned the same after two months stating that the defects have been attended and corrected. The equipment returned to the complainant was completely defective and useless. The complainant could not use the equipment even a single day. Though several reminders and requests were made to the opposite party to cure the defects, the opposite party turned a deaf ear only. As a result the complainant had to give up the equipment for ever. The act of the opposite party tantamounts to unfair trade practice and deficiency in service making him liable to compensate the complainant all the losses and damages sustained to him in this regard. Hence this complaint has been enunciated.

2. The opposite party has filed their version contending that a defect free equipment was supplied to the complainant. At the time of purchase, the equipment was taken by the complainant in full satisfaction. It had a guarantee for six months and the complainant had sent the advocate notice on 22..05..2001. Before this notice, a defect was informed and on inspection it was found due to rough and unskilled use. The defect was cured immediately. The opposite party received oral complaints regarding the functioning of the equipment in the beginning stage, and the opposite party gave necessary instructions regarding the use of the equipment by skilled workers. The equipment is surface cum thickness planner with circular saw attachment, table adjustable etc fitted with 4 blades with 5 HP3 phase motor etc. The 4 blades to be fitted were not supplied by the opposite party. The opposite party had advised the complainant to purchase costly foreign blades and to run it by skilled mechanic carpenter. The complainant has not complied with these instructions. The equipment is fitted with second hand motor under the instructions of the complainant. If such second hand motor is used for a long time with heavy load, the equipment would become defective. There is no defective service on the part of the opposite party. If there is no breach of condition of the contract of sale, the seller is not liable to replace the goods or refund the value of the equipment. If any inconvenience is caused due to the mismanagement of the complainant the opposite party is not liable for the same. The opposite party has never committed any unfair trade practice. The complainant is not entitled to any of the reliefs and the opposite party prays for dismissal of the complaint with costs.

3. An expert Commissioner has been appointed by this Forum and he has been examined as CW1 and he has filed a detailed report which has been marked as Ext.C1.

4. Complainant has been examined as PW1, marked Exts.P1 to P3. The opposite party has filed affidavit and marked Ext.D1.

5. On the contentions raised, the following issues are raised for consideration:

1. Whether there is deficiency in service on the part of the opposite party?

2. Whether the equipment in dispute suffers from manufacturing defect?

3. Whether the complainant is entitled for any of the reliefs claimed?

6. Points (i) to (iii): Undisputedly, the equipment in dispute has been fitted with a second hand motor. As per Ext.P1, there is a guarantee for six months from the date of supply. It was argued by the learned counsel for the complainant that the equipment became defective from the very first day of its operation and when the complainant contacted the opposite party for remedial action, the complainant was asked to take the heavy equipment to the opposite party for repairs. Accordingly the complainant took the same to the opposite party and after 2 months the opposite party returned the same stating that the defects have been rectified. But according to the complainant it was completely defective and useless. The opposite party has admitted that in the beginning they received oral complaints and on inspection the opposite party gave necessary instructions regarding the use of the same by skilled workers. The learned counsel for the opposite party vehemently argued that the equipment became defective due to rough and unskilled use. At this juncture, the aspect that the equipment had shown defects during guarantee period is not in dispute. What is to be ascertained is whether this defects occurred due to manufacturing defect or due to rough and unskilled use.

7. CW1, the Commissioner has reported that the machine is in partially dismantled and fully in rusted condition. CW1 further reports that the machine required major overhauling, servicing and replacing of parts and hence the mechanical viability of the machine is very poor, the mechanical quality, feasibility, grade, composition style of the equipment was not satisfactory because it is a locally fabricated and assembled machine; the alignment of pullies and surface plates are not correct hence the defects of the machine have not been cured by the opposite party. The Commissioner has further reported that all the belt pullies are highly shakable and the rotar is rotating eccentrically on shaft, the alignment of the belt pullies and the surface plates are not correct – which according to the Commissioner are the manufacturing defects with the machine. The Commissioner has deposed that 'ഏകദേശം ഒന്നര വര്‍ഷമായിട്ട് പ്രവര്‍ത്തനരഹിതമായിരിക്കും, rusting conditionവച്ച് പറഞ്ഞതാണ്'. One of the main contention of the opposite party is that this equipment has been operated by an unskilled person. The Commissioner has deposed that 'Technical ബോധം ഇല്ലാത്ത carpenterഈ machineഉപയോഗിച്ചാല്‍ repairആകാം. But the opposite party has produced no evidence or put a suggestion with regard to the same to the Commissioner to substantiate their above referred contention. There is no evidence adduced by the opposite party on record to prove that the equipment has been operated by an unskilled person. The Commissioner has further deposed that 'manufacturing-ല്‍ ഉള്ള defectകൊണ്ടാണ് machineകേടായത്'.

8. The opposite party has admitted that they have received complaints with regard to the equipment during the guarantee period. We have duly considered the matter. The machine was sold to the complainant by the opposite party with a warranty for 6 months. Initially the machine suffered from various defects which admittedly were duly brought to the notice of the opposite party. This being the position, if within 6 months of the purchase of the equipment, the equipment becomes defective in the course of normal use, it reflects nothing but substandard quality of the machine. A mere accusation that the complainant has used unskilled person to operate the same cannot be relied upon since the defects have arisen within the guarantee period itself. Moreover there is no corroborative evidence to support the said contention of the opposite party. In the absence of evidence for the same, there seems to be no reason to disbelieve the Commission Report. As per Ext.C1 report, the equipment cannot serve the purpose for which it has been purchased.

9. By now, the equipment may have become junk and will be of no use. The specific case of the opposite party is that the machine has been operated by an unskilled person. The complainant has nowhere in the affidavit or during the examination of the expert commissioner has brought out in evidence with regard to the operation of the machine by a skilled person. The complainant has not established or resisted the above fact. The Commissioner has deposed that defect can aise by use by unskilled person. The complainant has failed to establish that the equipment was operated by a skilled person. Now we are in the midst of a situation wherein the defect in the equipment may be due to manufacturing defect or due to operation by an unskilled person. Both parties have not corroborated their contention with ample evidence and failed to substantiate their arguments.

10. During all these period the equipment was kept idle. The life and performance of such a machine which has been fitted with a second hand motor has to be taken into consideration. Since this being the position, taking the facts and circumstances into consideration and in order to meet the interest of justice we hold that the complainant will keep the machine with him and the opposite party shall pay an amount of Rs.15,000/- to the complainant by way of compensation which we consider as just and proper.

In the result, the opposite party is directed to pay an amount of Rs.15,000/- (Rupees Fifteen thousand only) to the complainant within a period of two months failing which the amount shall carry interest at 12% from the date of order.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, on this the 15^th day of December, 2008.

G.SIVAPRASAD, PRESIDENT.

BEENA KUMARI. A : MEMBER

S.K. SREELA : MEMBER

ad.

O.P.No.316/2001

APPENDIX

I. Complainant's witness:

PW1 : Chandrababu

II. Complainant's documents:

P1 : Photocopy of bill dated 20..04..2000 issued to the complainant

P2 : " of advocate notice

P3 : " of acknowledgment card

III. Opposite party's witness: NIL

IV. Opposite party's documents: NIL

V. Court witness:

CW1 : Natarajan

VI. Court Exhibit:

C1 : Commission Report

PRESIDENT

ad.