IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 25th day of November, 2013.
Present : Sri. Jacob Stephen (President)
Smt. K.P. Padmasree (Member)
C.C.NO.169/2012 (Filed on 03.11.2012)
Between:
S.V. Shaji, Proprietor,
Guruvayoor Brothers Pappadam Works,
KSRTC Road, Pandalam.
(By Adv. R. Chandran) ….. Complainant
And:
The Proprietor,
M/s.Ambika Food Products,
1/1807, Exhibition Road,
West Hill, Calicut – 673 005.
(By Adv. Annie Sweetie) ….. Opposite party
O R D E R
Smt. K.P. Padmasree (member):
Complainant filed this complaint against the opposite party for getting a relief from the Forum.
2. Brief facts of the case is as follows: Complainant is engaged in the occupation of making and selling pappadam and he is depending on the same for his livelihood. Opposite party has supplied a semi automatic pappad machine to the complainant by collecting an amount of Rs.3,66,000/- which was credited to the account of the opposite party by the complainant. The actual price of the machine is Rs.1,10,250/- against which the opposite party has collected an exorbitant amount of Rs.3,66,000/-. The machine was found not functioning and the matter was immediately informed to the opposite party through phone and opposite party sent mechanics, who checked the machine and did some repairs. The said mechanic also collected an amount of Rs.30,000/- from the complainant towards cost of spare parts and service charges.
3. In spite of the repairs the said machine is not at all functioning and the same is not of any use to the complainant. Complainant has purchased the above said machine with the intention of meeting the demand for pappadam during festival season. The above said machine supplied by the opposite party to the complainant is having manufacturing defects and the same is assembled by using defective materials of low quality. In spite of the repeated demands by the complainant, opposite party is not prepared to set right the said machine. Finally complainant issued legal notice to the opposite party. Opposite party received the same and issued reply notice with untenable contentions. The above said act of the opposite party is an unfair trade practice which caused financial loss and mental agony to the complainant. Hence this complaint for getting an amount of Rs.6,02,439/- under various heads along with cost of the proceedings.
4. In this case, opposite party entered appearance and filed version with the following contentions. Opposite party admitted that he had supplied a semi automatic pappad machine to the complainant. The complainant had purchased the said machine for an amount of Rs.1,10,250/- and also paid Rs.10,000/- towards fitting charges. The allegation that the opposite party had collected Rs.3,66,000/- as the price of the machine is false.
5. The allegation that the said machine was found defective is false and denied by the opposite party. Opposite party had supplied the machine in good working condition free from any defect and the complainant was pleased with the said machine. Opposite party had supplied several machines in and out Kerala including Pathanamthitta District and there had been no complaint so far for any machine from any customer. The complaints of the machine if any is only due to the improper use of the machine. If at all there is any complaint, opposite party is prepared to rectify the same under the supervision of the Hon’ble Forum. With the above contentions, opposite party prays for the dismissal of the complaint with their cost.
6. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint can be allowed or not?
7. The evidence of this complaint consists of the oral testimony of PW1, DW1 to 4, CW1 and Exts.A1 to A4, B1 to B4, C1 and C2. After closure of evidence, both sides filed their argument notes and they were heard.
8. The Point:- Complainant’s allegation is that he is engaged in the occupation of making and selling Pappadam and he is depending on the same for his livelihood. Opposite party had supplied a semi automatic pappad machine to the complainant having manufacturing defect. Moreover, opposite party had collected an exorbitant amount of Rs.3,66,000/- from the complainant towards the price in spite of Rs.1,10,250/-, the real price of the said machine. In spite of the repeated demands by the complainant opposite party is not prepared to rectify the defect of the machine. The above said act of the opposite party caused financial loss and mental agony to the complainant and hence opposite party is liable to the complainant for the same.
9. In order to prove the case of the complainant, complainant filed proof affidavit in lieu of his chief examination along with 4 documents. On the basis of the proof affidavit, complainant was examined as PW1 and the documents produced were marked as Ext.A1 to A4. Ext.A1 is the retail invoice dated 26.06.2012 issued by opposite party in the name of the complainant. Ext.A2 is the delivery receipt of the machine dated 30.06.2012. Ext.A3 is the copy of legal notice issued to the opposite party on 23.08.2012. Ext.A4 is the reply notice issued by the opposite party in the name of the complainant on 10.09.2012.
10. On the other hand, the contention of the opposite party is that they had not collected any excess amount from the opposite party towards the price of the machine other than the price noted in the invoice. The other amounts collected is the price of the pappad materials supplied to him. Moreover, opposite party supplied the pappad machine in working condition free from any defects. Technicians were send on the intimation of the complainant regarding the complaints of the machine and they found no complaints. Moreover, the machine is still working. If the said machine has any complaint, opposite party is ready to rectify the same. There is no deficiency in service from the part of the opposite party.
11. In order to prove the case of the opposite party, opposite party filed proof affidavit along with 2 documents. On the basis of the proof affidavit, opposite party was examined as DW1 and documents produced were marked as Ext.B1 and B2. 3 witnesses were also examined from the side of the opposite party as DW2 to DW4. Ext.B3 and B4 are marked through DW2. Ext.B1 is the retail invoice issued by opposite party in the name of the complainant. Ext.B2 is the C.D produced by opposite party. Ext.B3 and B4 are the electricity bill of Con.No.24121 and 21779.
12. Apart from the above evidences, an expert commissioner appointed by this Forum who inspected the machine and filed a report and an estimate. He was examined as CW1 and the mahazar and estimate are marked as Ext.C1 and C2 respectively.
13. On the basis of the contentions and arguments of the parties, we have perused the entire materials on record and found that parties have no dispute regarding the sale of the pappad machine. The dispute is with regard to its prize and manufacturing defects/complaints. The allegation of the complainant is that the opposite party had collected an amount of Rs.3,66,000/- as the price of the machine in spite of its prize Rs.1,10,250/- shown in the invoice issued by the opposite party and the machine is not working due to its manufacturing defect. But according to the opposite party the amount of Rs.3,66,000/- collected from the complainant includes the cost of the machine and the materials supplied by the opposite party and the machine has no manufacturing defect as alleged by the complainant and the machine is still properly working.
14. In view of the above contentions, we have examined the entire evidences adduced by the parties and it is seen that Ext.A1 invoice was issued on 26.06.2012 and the price of the machine is showed in it as Rs.1,10,250/-. The details of the payments made by the complainant seen in his complaint shows that he had paid Rs.40,000/- on 14.03.2012 and Rs.29,000/- on 30.03.2012 and the said payments are made 3 months prayer to the issuance of Ext.A1 invoice dated 26.06.2012. The remaining payments are made in between 26.06.2012 and 30.06.2012 and the said payments are made subsequent to Ext.A1 invoice. The complainant has not adduced any evidence to show the circumstances which leads to the above referred payments. Moreover, why he had paid Rs.3,66,000/- on the basis of Ext.A1 invoice for Rs.1,10,250/-. From the above said facts it is clear that the complainant had some other dealings with the opposite party even before and after the purchase of the machinery, other than the purchase of the machinery. If this facts read together with the contention of the opposite party that the total amount received from the complainant includes the price of the machinery and the materials supplied by him, clearly shows that the allegation of the complainant regarding the price of the machinery is baseless.
15. Then comes the question regarding the defects of the machinery. For proving the allegation of the complainant in this regard he had taken out a commissioner who inspected the machinery and filed his report and he was also examined as CW1. In his deposition he had clearly stated that he had the experience in repairing JCB and Rubber Rollers and he had no experience in repairing pappad machine. Further he stated that in order to ascertain the complaints of machinery it has to be operated and he had not operated the machine in question. Further on a perusal of Ext.C1 it is seen that Ext.C1 is not consistent with the commission application. He had simply noted various defects of the machinery in Ext.C1. The nature of Ext.C1 shows that he had not considered the commission application or the matters sort to be ascertained in the commission application, which shows that he is very much interested in supporting the complainant. His deposition before this Forum and the nature of his report shows that he is not competent for his assignment and he is an highly interested person and hence his evidence cannot be accepted and hence we are discarding the evidence of CW1. In the circumstances, we are compelled to go through Ext.B2 to B4. We have viewed the visuals in Ext.B2 CD. It clearly shows that the machinery in question is seen working at the time of its recording. We find no reasons to disbelieve DW3. That apart Ext.B3 electricity bills shows monthly consumption of above 175 units in the building where the machinery is installed. As per Ext.B3, the connected load in the said premises is 4520 watts. At the same time, as per Ext.B4 the average monthly consumption is 7 units for 180 watts. This premises is also using by the complainant. On a calculation and comparison of average monthly consumption of the said two premises it is seen that if 4250 watts are in use the monthly consumption will be 175 units. The calculation is as follows:
7/180 x 4250 = 175.77 Unit.
16. If the machinery is not working the monthly consumption will not come 175 units in the premises where the machinery is installed. So it is clear that the machinery is working, otherwise there will not come 175 units in that premises. Therefore the allegations of the complainant that the machinery is not working due to its manufacturing defect and the allegation regarding prize of the machinery are found baseless and hence this complaint is not allowable.
17. In the result, this complaint is dismissed. No cost.
Declared in the Open Forum on this the 25th day of November, 2013.
(Sd/-)
K.P. Padmasree,
(Member)
Sri. Jacob Stephen (President) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Shaji
Exhibits marked on the side of the complainant:
A1 : Photocopy of the retail invoice dated 26.06.2012 for Rs.1,10,250/-
issued by opposite party in the name of the complainant.
A2 : Photocopy of the delivery receipt of the machine dated 30.06.2012. A3 : Copy of legal notice dated 23.08.2012 sent by the complainant to
opposite party.
A4 : Copy of reply notice dated 10.09.2012 issued by the opposite party
in the name of the complainant.
Witness examined on the side of the opposite party:
DW1 : Sabareesh
DW2 : Sreedevi. R
DW3 : Jossy Joseph Ciby
DW4 : Shiney George
Exhibits marked on the side of the opposite party:
B1 : Photocopy of the retail invoice issued by opposite party in the name
of the complainant.
B2 : C.D produced by opposite party.
B3 & B4 : Electricity bills of Con.No.24121 and 21779.
Court Witness:
CW1 : Pramodkumar
Court Exhibits:
C1 : Commission Report.
C2 : Estimate.
(By Order)
(Sd/-)
Senior Superintendent
Copy to:- (1) S.V. Shaji, Proprietor, Guruvayoor Brothers Pappadam
Works, KSRTC Road, Pandalam.
(2) The Proprietor, M/s.Ambika Food Products, 1/1807,
Exhibition Road, West Hill, Calicut – 673 005.
(3) The Stock File.
