CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD
Dated this the 25th day of July 2014
PRESENT : SMT. SEENA. H, PRESIDENT
: SMT. SHINY. P.R, MEMBER
: SMT. SUMA. K.P, MEMBER Date of filing : 23/05/2013
CC / 93 / 2013
Kannan.V.V,
S/o.Velayudhan,
Vadakoot House, : Complainant
Puthurkavu,
Palakkad, Kerala
(Adv.Shiju Kuriakose)
Vs
The Proprietor,
K.S.Rajasekharan,
Lakshmi Machinery : Opposite party
Sales and Service, Premier Building,
Bye-pass Junction, Coimbatore Road,
Palakkad, Kerala
(Adv.V.Rajan)
O R D E R
By Smt. Suma. K.P, Member,
Brief case of the complaint :-
The complaint was filed seeking damages for the defect of a drilling machine. The case of the complainant is that he is a carpenter and he bought a drilling hammering machine of BOSCH Company from the respondent’s shop for Rs.6500/- on 7/3/2013. But the opposite party gave him a drilling machine of another company named Einhell. The complainant states that the opposite party convinced that the Einhell Company is a part of BOSCH Company. The opposite party did not gave the bill or guarantee paper to the complainant. The opposite party gave the cash bill in a white paper and the same was lost from the complainant. After two months of use the machine got damaged. Then the complainant contacted the opposite party and asked him to provide a new drilling machine. But opposite party was not prepared to give a new drilling machine to the complainant. Then the complainant lodged a complaint before the Sub Inspector, Town North Police Station, Palakkad. The Sub Inspector of Town North Police Station instructed the complainant to file a complaint before the Consumer Disputes Redressal Forum. Hence he filed the complaint. Now the complainant brought a new drilling machine of HITACHI Company for Rs.7,050/-. The complainant had claimed an amount of Rs.25,000/- for the mental agony and financial loss along with a new drilling machine of BOSCH Company from the opposite party.
Complaint was admitted and notice was issued to opposite party for appearance. Opposite party entered appearance and filed version stating the following contentions.
Opposite party is a merchant and the proprietor of LAKSHMI Machinery Sales and Service at Palakkad. Opposite party states that the complaint is filed with malafide intentions. Opposite party denies the entire allegations contained in the complaint. The opposite party never sold a drilling machine to the complainant on or before or after 7/3/2013. The opposite party states that the drilling machine of good quality will fetch an amount of Rs.3,500/-. But the complainant states that he had paid an amount of Rs.6,500/- to the opposite party. The averment in the complaint that the drilling machine is 1000cc is also not correct. The capacity of a drilling machine is measured in watts and not in cc. Contentions of the complainant that the opposite party issued cash bill in a white paper and the same is lost is a false allegation. The opposite party never convinced the complainant that he has the dealer ship of BOSCH Company and he had provided drilling machine of Einhell Company which is made in Germany is also incorrect. The allegation that the complainant approached the opposite party to replace the machine and the opposite party behave irresponsibly and asked the complainant to repair the machine in any other shop and opposite party will make the payment, is fully incorrect. The allegations in the complaint that when the complainant approached a mechanic for repairing the machine he was told that the machine is of a bad company and it is a duplicate one and cannot be used for a long period was all denied by the opposite party. The complainant is suppressing the true facts of the case. Actually the said drilling machine was owned by the opposite party and it is used for his personal use. Complainant asked the opposite party to give him the drilling machine for some days. After a long time the complainant did not return back the machine. When the opposite party asked to return back the machine the complainant filed a false complaint before the Forum. The amount of compensation claimed is highly excessive. The complaint is devoid of any merit and it has to be dismissed.
Complainant filed chief affidavit along with documents. Opposite party filed application to cross examine the complainant. Complainant was cross examined as PW1. Exts A1 and A2 was marked. Opposite party also filed chief affidavit. Complainant filed an application for appointment of expert commissioner. Prof.Rajesh Menon, Mechanical Dept. NSS Engg. College was appointed as Expert Commissioner. He inspected the machine and filed a detail report which was marked as Ext.C1. Complainant also filed a petition to cross examine the opposite party. Opposite party was examined as DW1. Opposite party’s documents was marked as Ext.B1 and Ext.B2. Evidence was closed and the matter was heard.
Issues to be considered are;
- Whether the complainant is a consumer?
- Whether the alleged drilling machine is defective?
- If so, what is the relief and cost?
Issue No.1:
The complainant states that the opposite party issued a white paper cash bill and the same is lost from him. But the opposite party had completely denied the allegations of the complainant and states that he had not sold any drilling machine to the complainant. The drilling machine was owned by the opposite party and opposite party gave him to use it for some days. Hence the consideration aspect had to be proved by the complainant. The complainant ought to have called for the day book or any other records maintained by the opposite party to show that the said machine was sold to the complainant on that particular day. The complainant had not taken any steps to prove the alleged transactions. Moreover, the opposite party had deposed that he had no dealership of drilling machines. He used to arrange drilling machines for the customers along with other machineries, but used to maintain accounts regarding such sales. He also used to file sales tax returns regarding such sales. He also states that he knows the complainant for more than 3-4 years before this transactions and he had purchased many other machineries from his shop. He always used to issue printed bill for those purchases. This drilling machine was handed over to the complainant for using it for some days. There was no consideration or lease arrangement with regard to this drilling machine. In this context it was the burden of the complainant to prove that he had purchased the drilling machine from the opposite party for the alleged consideration. Since there is no evidence to prove the alleged transactions complainant will not come within the definition of consumer defined under consumer protection Act. Hence issue no.1 is answered in the negative.
Isseue No.2: We had perused the Expert Commission Report filed before the Forum. It is stated that the drilling machine was seen dismantled at the time of his inspection and was not working. The problem do not seem to be due to any physical damage, abuse or neglect from the worker. The machine is of China make and the availability of its spares for this brand will be difficult locally. If the spares are not available locally or in the absence of the service centre, it is difficult to work with such equipment where replacement of brushes are very frequent and the unavailability of spares will make the machine unproductive and incur subsequent losses to the worker. Hence it is inferred that defect caused to the machine cannot be cured due to the unavailability of spares which turned the machine defective.
From the above discussions we are of the view that the complainant failed to establish the allegations in the complaint. Hence he is not entitled for any of the relief claimed in the complaint.
In the result complaint is dismissed without any cost.
Pronounced in the open court on this the 25th day of July 2014
Sd/-
Smt. Seena. H
President
Sd/-
Smt. Shiny. P.R
Member
Sd/-
Smt. Suma. K.P
Member
A P P E N D I X
Exhibits marked on the side of complainant
Ext.A1 - Police Station Petition Receipt.
Ext.A2 - Tax Invoice Dt.17/05/2013.
Exhibits marked on the side of opposite parties
Ext.B1 - Annual Return Form No.10
Ext.B2 - Statements of accounts of Punjab National Bank.
Commission Report
C1 - B.Rajesh Menon, Associate Professor, N.S.S.Engg.College, Palakkad.
Witness marked on the side of complainant
PW1 - Kannan.V.V
Witness examined on the side of opposite parties
DW1- Rajasekharan.K.S
Cost Allowed
Nil
