BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, VELLORE DISTRICT AT VELLORE. PRESENT: THIRU. A. SAMPATH, B.A., B.L., PRESIDENT TMT. G. MALARVIZHI, B.E. MEMBER - I THIRU. K. DHAYALAMURTHI,B.SC. MEMBER – II CC. 2 / 2007 TUESDAY THE 26TH DAY OF JULY 2011. M/s. Sandiya Oil Store, Rep. by its Proprietor Saravanan, No.4/70, Elango Street, Kalinjur, Vellore. … Complainant. - Vs – M/s. T.R.S. Marketing Rep. by its Proprietor L. Thiyagarajan, 2nd Ground Floor, Sivaram Complex, No.10, Thennamaram Street, Vellore – 632 001. … Opposite party. …… This petition coming on for final hearing before us on 29.6.11, in the presence of Thiru. R. Nepolean, Advocate for the complainant and Thiru. T. Surendran, Advocate for the opposite party, and having stood over for consideration till this day, the Forum made the following: O R D E R Pronounced by Thiru. A. Sampath, President of the District Consumer Disputes Redressal Forum, Vellore District. I. The brief facts of the case of the complainant is as follows: The complainant is running a Oil Store under the name and style of M/s. Sandiya Oil Store at Kalinjur, Vellore and he is the sole proprietor of M/s. Sandiya Oil Store. The complainant purchased a Electronic Scale namely “Alpa Digital Scale from the opposite party on 14.11.05, which is cost of Rs.11,000/-. The complainant paid Rs.500/- on 14.11.05 to the opposite party as a initial payment and further on 19.12.05 the complainant paid a sum of Rs.5500/- for installation purpose and also the complainant paid Rs.300/- as weekly installments successively to the opposite party. The receipts given by the opposite party is the ample evidence for the above said facts. At a point of honour the complainant hereby agrees that he has to pay Rs.500/- to the opposite party towards the outstanding amount. The electronic scale namely “Alpa Digital Scale” purchased from the opposite party is a defective one from the very beginning. The digital display in the Electronic Scale shows the incorrect weight of measures and it did not work properly. Immediately the complainant lodged a oral complaint to the opposite party for setting out the mal-functioning of the Electronic Scale. The opposite party sent its mechanic who repaired the defect in the electronic scale. Unfortunately after some time again there was mal-functioning in the Electronic scale and its display was not working properly which shows the incorrect weight of measures. He has made to run helter and skelter by the opposite party without repairing the Electronic scale. After several remainders given by the complainant the opposite party sent its mechanic on 20.2.06. On the perusal of the service report given by the opposite party dt. 20.2.06 clearly go to show that ther was on / off problem in the Electronic Scale. As per the opposite party’s service report the initial observation made by the opposite party’s mechanic reported that there was “Transformer Battery Card Problem” in the Electronic Scale and the same was also mentioned in the service report dt. 20.2.06. However the opposite party’s mechanic repaired the defect on 20.2.06 and also claimed Rs.500/- as separate service charges for removing the defect in the electronic scale. It is highly unbusiness like claiming separate service charges by the opposite party within the warranty period. It was again shocked and surprised to see that within two days from the service dt.20.2.06 i.e. on 23.2.06 again the Electronic Scale was malfunctioning. The complainant several times complained to the opposite party to set the Electronic scale in perfect workable condition. The opposite party neither repaired the defective scale nor replace the electronic scale. The complainant was driven from pillar to post because of the dereliction of duty and deficiency in service of the opposite party which causes needless expenditure of money and unprofitable waste of time to the complainant. The defect in the electronic scale could not be repaired by any mechanic and it required substantial replace of certain parts, which shows crystal clearly there is deficiency in service on the part of the opposite party. In view of the aforesaid the opposite party is bound to take back the defective electronic scale and refund the purchase price thereof or replace the defective scale because the warranty period for the electronic scale is not lapsed. 2. The complainant sent a lawyer’s notice on 2.6.06 calling upon the opposite party to remove the defective in the electronic scale or in alternative replace the electronic scale with new scale. The opposite party received the notice and issued a reply notice dt. 9.6.06 stating several recriminations against the complainant and placed entire blame on the complainant. the electronic scale is not functioning well the complainant’s business will be put to irreparable loss and hardship and also it would degrade the complainant’s business name among the customers. Therefore the opposite party has committed deficiency in service without repairing the malfunctioning electronic scale. Hence the complainant pray this Forum for directing the opposite parties to refund of Rs.10,500/- paid as consideration for the said electronic scale or in alternative to replace the defective electronic scale and to pay the interest from the date of payment of the said consideration money till realization at 24% p.a. and to pay a sum of Rs.50,000/- towards loss and damages caused to the complainant by the wrongful acts of the opposite party and to pay the costs of Rs.2000/- to this complaint. 3. The averments in the counter filed by the opposite party are as follows: At the outset it denies all the allegations, averments contained in the complaint as frivolous, vexatious besides being false. The complainant put to strict proof of each and every averment except those that all specifically admitted hereunder. The complainant had not made out any case against the opposite party falling under the purview of the C.P. Act more particularly under sec.2(1) (g) as hence the complaint is neither maintainable in law nor on facts. TRS marketing is a dealer for Alpha digital scale that is the electronic scales for the past 7 years and it is a dealer for the entire Vellore District. The complainant purchased digital scale of 150 kgs for a sum of Rs.11000/- on 14.11.05 on weekly installment basis. The complainant paid an advance of Rs.500/- on 14.11.05 and on 19.12.05 Rs.5500/- has been paid to the opposite party and opposite party supplied the digital scale in good condition after thorough and good checking. The averment contained in the para-4 are baseless and frivolous. The averments of the complainant are quite unbelievable that the digital scale was had defective from the date of purchase and it showed an incorrect weight and did not work properly. The digital scale was supplied to the complainant with full condition. The weekly installments was not paid by the complainant as accepted and after making several reminder he paid the installments and he was irregular payee. For the complainant’s digital scale for warranty period was given as per the company’s agreement and during the period on 20.2.06 a complaint was lodged by the complainant to the opposite party stating that there is an on off problems in the digital scale and immediately the call was attended on 20.2.06 at 12.45 p.m. and it was tested to the shock and surprise the Alpha digital scale was placed on a movable trolley which does not allow the battery cord to be fixed with the scale promptly and it was advised by the Service Engineer to keep the digital scale on flat surface which does not disturbing battery connection. Even though the advice was given by the service engineer the complainant requested for the board to be replaced and the engineer replaced and after the complainant’s satisfaction the engineer left the place. On 23.11.06 one year warranty period was over and again the complainant made several representations by lodging complaint about the digital scale and when the service engineer inspected the place he found that a) since the Sandiya Oil Company that is the complainant herein is dealing with the Rice brawn and cattle feed, the shop is full of dust and when the people who uses the digital scale is touching the on – off button with their oily hands and over the dust the power button becomes fault. b) as per the complainant’s averment that there is a fault of weightage is due to the movable trolley over which the digital scale was fixed and since on the backside of the digital scale the trolley was narrowed down so that the machine rest over the trolley there is incorrect display of weight. c) Due to the continuous voltage fluctuations in the area and with the E.B. connection there are some default. d) The complainant had not followed any of the usage procedure advised by the opposite party during the sale of digital scale. 4. The opposite party is only a dealer of Alpha digital scale and he is not a manufacturer of the digital scale. If in case of any defective in the electronic weighing scale and it if is a manufacturing defect the company is responsible for the replacement and as a dealer we cannot replacing the weighing scale and it is the duty of the complainant to approach the company Alpha Weighing Solutions Private Limited and the complainant as to approach the above said company for the manufacturing defects and the above said company has to be made as a first opposite party. The complaint itself is not maintainable since the necessary parties were not made as a party in the complaint. The Forum should not entertain the complaint and it has to dismiss the complaints with compensation and damages. Hence this Forum may be pleased to dismiss the above complaint with costs. 5. Now the points for consideration are: a) Whether there is any deficiency in service, on the part of the opposite party? b) Whether the complainant is entitled to the reliefs asked for?. 6. Ex.A1 to Ex.A21 were marked on the side of the complainant and Ex.B1 & Ex.B2 (S) were marked on the side of the opposite party. Proof affidavit of the complainant and Proof affidavit of the opposite party have been filed. No oral evidence let in by either side. 7. POINT NO. a) It is admitted case of the parties that the complainant purchased a Electronic Scale namely Alpha digital scale from the opposite party on 14.11.05 which is cost of Rs.11,000/- on weekly installments basis. The complainant paid Rs.500/- on 14.11.05 as a initial payment and on 19.12.05 paid a sum of Rs.5500/- for installation purpose to the opposite party. From the perusal of cash receipts Ex.A1 14.11.05, Ex.A2, Dt. 19.12.05, Ex.A8, dt. 2.1.06, Ex.A9 dt. 23.1.06, Ex.A10, dt. 30.1.06, Ex.A11, dt. 6.2.06, Ex.A12, dt. 13.2.06, Ex.A13, dt. 20.2.06, Ex.A14, Dt. 27.2.06, Ex.A15, dt. 6.3.06, Ex.A16, dt.13.3.06, Ex.A17, dt. 20.3.06, Ex.A18, dt. 27.3.06, Ex.A19, dt.3.4.06, Ex.A20, dt. 10.4.06 and Ex.A21, dt.29.7.06 it is seen that the complainant has paid a total cost of Rs.11000/- to the opposite party. 8. The complainant contended that the Electronic Scale namely Alpa Digital scale purchased from the opposite party is a defective one from the very beginning and it did not work properly. Immediately the complainant lodged a oral complaint to the opposite party for setting out the mal-functioning of the Electronic scale. The opposite party sent his mechanic on 20.2.06. who repaired the defect in the electronic scale. After some time again there was mal-functioning in the Electronic Scale and its display was not working properly which shows the incorrect weight of measures. Inspite of several times complained to the opposite party, he neither repaired the defective scale nor replace the electronic scale. Therefore the opposite party committed deficiency in service without repairing the mal-functioning of electronic scale or replace the defective scale. 9. The opposite party contended that during the period on 20.2.06 a compliant was lodged by the complainant to the opposite party stating that there is an on off problems in the digital scale and immediately the call was attended on 20.2.06 at 12.45. p.m. The said Alpha digital scale was placed on a movable trolley which does not allow the battery card to be fixed with the scale promptly and it was disturbing battery connection. On 23.11.06 one year warranty period was over and again the complainant made several representations by lodging complaint about the digital scale, and when the Service Engineer inspected the place he found that the shop is full of dust, when the people who uses the digital scale is touching the on- off button with their oily hands and over the dust the power button becomes fault. The complainant had not followed any of the usage procedure advised by the opposite party during the sale of digital scale. Hence there is no deficiency in service on the part of the opposite party. 10. The complainant stated in his proof affidavit that the electronic scale namely “Alpa Digital Scale purchased from the opposite party is a defective one from the very beginning and it shows the incorrect weight of measures and it did not work properly. After several complaints given by the complainant, the opposite party sent his mechanic on 20.2.06 who repaired the defect in the electronic scale. After some times again there was mal-functioning in the electronic scale and its display was not working properly which shows the incorrect weight of measures. From the perusal of Ex.A3, dt. 20.2.06 it is seen that the complainant reported to the opposite party about on/ off problem in the Electronic scale. The Service Engineer tested and observed that the transformer battery card problem and it was repaired and new board replaced. The opposite party stated in his proof affidavit that when the Service Engineer tested the Electronic Scale on 20.2.06, the Alpa Digital Scale placed on a movable trolley which does not allow the battery card to be fixed with the scale promptly and it was advised by the Service Engineer to keep the digital scale on flat surface which does not disturbing battery connection. But there are no documents or proof affidavit of Service Engineer to prove that the said Alpa Digital Scale placed on a movable traveling which does not allow the battery card to be fixed with the scale promptly. 11. According to the complainant even though the Service Engineer repair the defect on 20.2.06 it was again mal-functioning, inspite of several demands made by the complainant, the opposite party neither repaired the defective scale nor replace the electronic scale. Then, he sent a lawyer notice Ex.A4, dt. 2.6.06 calling upon the opposite party to remove the defective electronic scale or in alternative replace the electronic scale with new scale. The opposite party issued a reply notice Ex.A6, dt.9.6.06 stating that his mechanic immediately attended the call, and finds that there is a on / off problem in the said machine, and also rectify the same. Because of improper handling of the said machine only the alleged fault had occurred, and the opposite party is not responsible for the same. From the perusal of Service’s report Ex.A3, dt. 20.2.06, it is seen that the opposite party’s mechanic deserved the scale and reported that there was transformer battery card problem in the electronic scale. According to the complainant even though it was repaired the defect on 20.2.06 by the Service Engineer, it was again shocked and surprised see the complainant that within two days from the date of service i.e. 20.2.06 on 23.2.06 again electronic scale was mal-functioning. Inspite of several complained to the opposite party to set the electronic scale in the prefect workable condition, the opposite party neither repaired the defective scale nor replace the electronic scale within the warranty period. Then, he sent a legal notice Ex.A4, dt. 2.6.06 calling upon the opposite party to remove the defect in the electronic scale or in alternative replace the electronic scale with new scale. The opposite party stated in his reply notice Ex.A6, dt. 9.6.06 that because of improper handling of the said machine only the alleged fault had occurred. 12. It is admitted fact that the complainant purchased the Electronic Scale on 14.11.05. Within two days from the service dt.20.2.06 i.e. 23.2.06 again the Electronic scale was mal-functioning. Inspite of several complained to the opposite party to set the Electronic scale in perfect workable condition, the opposite party neither repaired the defective scale nor replace the electronic scale. Thereafter, he issued the legal notice to the opposite party on 2.6.06 i.e. within the warranty period. From the perusal of Service Report Ex.A3, legal notice Ex.A4 issued by the complainant, and reply notice Ex.A6 sent by the opposite party, it is clear that the opposite party bound and duty to repair the defective electronic scale or replace the defective electronic sale with new scale, because the warranty period is not lapsed. Further, there is no document or evidence of Service Engineer, to prove that the complainant did not know how to handle the said machine and because of improper handling of the said machine only the alleged fault had occurred. Therefore it is clear that the defective Electronic scale could not be repaired within the warranty period by the Service Engineer of opposite party, which shows that there is deficiency in service on the part of the opposite party. Hence we answer this point (a) in favour of the complainant. 13. Hence, taking into account with regard to the contention of the complaint and the counter, as well as proof affidavit of the both the parties, and from the documents Ex.A1 to Ex.A21 & Ex.B1 & Ex.B2 (s), we have come to the conclusion that the attitude of the opposite party herein, would have certainly committed deficiency in service. In such circumstances, we have come to the conclusion that the complainant herein has clearly proved the deficiency in service on the part of the opposite party herein. Hence we answer this point (a) is accordingly. 14. POINT NO. (b): In view of our findings on point No.(a) & (b), the opposite party is directed to refund a sum of Rs.10,500/- (Rupees ten thousand and five hundred only) for the cost of Electronic scale or in alternative to replace a the defective Electronic scale to the complainant and the opposite party is also directed to pay a sum of Rs.2000/- (Rupees two thousand only) as compensation for the loss and damages in view of the deficiency in service on the part of the party. Hence we answer this point (b) is also accordingly. 15. In the result, this complaint is partly allowed. The opposite party is directed to refund a sum of Rs.10,500/- (Rupees ten thousand and five hundred only) for the cost of Electronic scale or in alternative to replace a the defective Electronic scale to the complainant. 2 The opposite party is also directed to pay a sum of Rs.2000/- (Rupees two thousand only) as compensation for the loss and damages in view of the deficiency in service on the part of the party. 3. and also to a pay a sum of Rs.1,000/- (Rupees One thousand only) towards the cost of this complaint. The opposite party is hereby directed to pay the above said amounts within one month from the date of receipt of copy of this order, failing which, the complainant is also entitled to interest on the above said sum @ 9 % p.a from the date of default till the date of payment. Dictated to the Steno-typist and transcribed by her, corrected and pronounced by the President, in Open Forum, this the 26th day of July 2011. MEMBER-I MEMBER-II PRESIDENT. List of Documents: Complainant’s Exhibits: Ex.A1- 14.11.05 - X-copy of Cash Receipt. Ex.A2- 19.12.05 - X-copy of Cash Receipt. Ex.A3- 20.2.06 - X-copy of Service Report. Ex.A4- 2.6.06 - X-copy of Legal notice. Ex.A5- -- - X-copy of served Ack. Card. Ex.A6- 9.6.06 - X-copy of legal notice. Ex.A7- 23.12.05 - Cash Receipt. Ex.A8- 2.1.06 - Cash Receipt. Ex.A9- 23.1.06 - Cash Receipt. Ex.A10- 30.1.06 - Cash Receipt. Ex.A11- 6.2.06 - Cash Receipt. Ex.A12- 13.2.06 - Cash Receipt. Ex.A13- 20.2.06 - Cash Receipt. Ex.A14- 27.2.06 - Cash Receipt. Ex.A15- 6.3.06 - Cash Receipt. Ex.A16- 13.3.06 - Cash Receipt. Ex.A17- 20.3.06 - Cash Receipt. Ex.A18- 27.3.06 - Cash Receipt. Ex.A19- 3.4.06 - Cash Receipt. Ex.A20- 10.4.06 - Cash Receipt. Ex.A21- 29.7.06 - Cash Receipt. Opposite party’s Exhibits: Ex.B1 - 14.11.05 - Bill by Alfa Weighing Solutions Pvt. Ltd., Chennai. Ex.B2 (s) – 12.9.06 } - Service Reports. - 28.7.06 } 20.2.06 } MEMBER-I MEMBER-II PRESIDENT.
| | [ Hon'ble Tmt G.Malarvizhi, B.E] MEMBER[ Hon'ble Thiru A.Sampath, B.A., B.L] PRESIDENT[ Hon'ble Tr K.Dhayalamurthy, Bsc] MEMBER | | 
