BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 16^TH December 2010

PRESENT

                                                           SMT. ASHA SHETTY           :   PRESIDENT

   SMT.LAVANYA M. RAI       :   MEMBER

   SRI. ARUN KUMAR.K         :   MEMBER

COMPLAINT NO.123/2010

(Admitted on 9.4.2010)

1. Mr.Daniel Raj Patra,

So Gidian Patra,

Aged about 38 years.

2. Mrs.Lydia Ruth Mary Patra,

W/o Danial Raj Patra,

Aged about 30 years,

(Both are residing at

Demello Compound,

H.No.25 7 436,

Valancia, Ujjodi,

Mangalore.                              …….. COMPLAINANTS

(Advocate for Complainants: Smt. Ambika K.M.)

          VERSUS

1. Usha International Ltd.,

No.6, 5 Cross,

Mysore Road,

Bangalore 560 026.

2. Proprietor, Medha

Pailands Buildings,

P.M.Rao road,

Opp. Post Office,

Hampankatta,

Mangalore-575 001.                         ….. OPPOSITE PARTIES

(Opposite Party No.1: Exparte)

(Advocate for Opposite Party No.2: Sri.Raghuveer Bhandary.M.)

ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:

This complaint is filed under Section 12 of the Consumer Protection Act alleging defective in goods as against the Opposite Parties claiming certain reliefs. 

The brief facts of the case are as under:

The Complainant submits that, the Complainant No.1 has purchased Usha Flora Top Sewing Machine on 9.3.2007 as per invoice No.Cr.1217 and paid a sum of Rs.4,960/- by cash.  The said machine purchased for the purpose of running Tailoring business to his wife i.e. Complainant No.2.  It is stated that, the above said machine had two years guarantee, in the event of any defects the same will be replaced at Opposite Parties cost.  As per the above assurance, the Complainant No.1 had purchased the aforesaid sewing machine from Opposite Parties.  It is stated that, the aforesaid sewing machine before the guarantee period started to troubling the Complainant No.2, she could not use for Sewing, zig-zag and other works.  It is stated that, needles in the said machine broken several times and caused problem continuously.  Thereafter, the Complainant No.1 had approached the Opposite Party No.2 to set right the problems, but the Opposite Party No.2 failed to set right the problems, even after getting service, the problem in the said machine persisted and contended that the above said machine is a defective and issued a legal notice dated 8.3.2010 to the Opposite Party No.2 for replacement of the said sewing machine.  But the Opposite Party failed to comply the same.  Hence, the above complaint filed under Section 12 and 13 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties No.1 for replacement of defective Usha Flora top Sewing Machine to the Complainants and further Opposite Parties No.1 and 2 to pay the Complainant a sum of Rs.25,000/- towards the loss suffered by the Complainant No.2 due to non availability of the defective Sewing Machine for her stitching and other incidental losses and further pay compensation and cost of the proceedings.

2.       Version notice served to the Opposite Parties by RPAD. Opposite Party No.1 despite of serving notice neither appeared nor contested the case till this date.  Hence, we have proceeded exparte as against the Opposite Party No.1. Postal acknowledgement marked as Court Document No.1

Opposite Party No.2 appeared through their counsel filed version submitted that, this Opposite Party sold the above said sewing machine to the Complainant on 9.3.2007.  But it is denied that, the above said sewing machine has manufacturing defect.  It is stated that, the Complainant No.1 purchased the above said machine on 9.3.2007 and the machine carries two years warranty from the 1^st Opposite Party Company and not guarantee as submitted by the Complainants.  As per the warranty conditions in the event of any problem in the machine, the parts will be replaced and if the machine cannot be repaired then only the machine will be replaced.  It is submitted that, the Complainant machine had minor problem during early days of its purchase and the same has been attended by the technician of the Opposite Party in their house and the same is repaired and there is no complaint whatsoever during the period of last three years.  Admittedly, the warranty period has been lapsed and the customer has used the machine for the last three years and the Opposite Party is ready to rectify all the problems of the machine by replacing the parts at the cost of the Complainant and contended that there is no deficiency and prayed for dismissal of the complaint.

3.       In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the Complainants prove that the Sewing Machine purchased by them on 9.3.2007 from the Opposite Party No.2 suffers from manufacturing defect?

2. If so, whether the Complainant is entitled for the reliefs claimed?

3. What order?

4.         In support of the complaint, Mr.Daniel Raj Patra (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him.  Ex.C1 to C5 were produced for the Complainants as listed in the annexure.   One Sri Jayaprakash Shetty, (RW1) Proprietor of the Opposite Party No.2 filed counter affidavit and answered the interrogatories served on him. Both parties are produced notes of arguments.

          We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:

                   Point No.(i) : Negative.

Point No.(ii) to (iii): As per the final order.

REASONS

5.      POINTS NO. (i) to (iii):

          The facts which are not in dispute is that, the Complainant No.1 who is the husband of the Complainant No.2 purchased Usha Flora Top Sewing Machine for the purpose of running Tailoring business on 9.3.2007 as per invoice No.Cr.1217 and paid a sum of Rs.4,960/- by cash to the Opposite Party No.2.  The above said machine had two years guarantee, as per the guarantee conditions, the Sewing Machine guaranteed for two years as against all manufacturing defects from the date of sale.  In case of manufacturing defect, the dealer will repair/replace free of charge any part except needles, bobbins, bobbin cases, Shuttles and belt. 

Now the point in dispute between the parties before this FORA is that, according to the Complainants the said machine was purchased on 9.3.2007 and given two years guarantee in the event of defects, but within the guarantee period Sewing machine started troubling and Complainant No.2 could not use properly. Within the guarantee period needle were broken and the problems arose frequently and contended that the machine is defective.

          On the other hand, the Opposite Party NO.2 interalia contended that, the machine has no manufacturing defect. Some minor problem during earlier day of purchase was attended by the Opposite Parties and the above said machine has guarantee for two years from the date of purchase.  The above said guarantee has been lapsed on 9.3.2009 and machine was used for last three years and there is no justification to replace the parts free of cost after the lapse of period of warranty or guarantee.  And stated that they are ready to repair the sewing machine in case if there is any problem, but not free of cost.

          On perusal of oral as well as documentary evidence placed on record, we find that, the Complainant admittedly purchased the sewing machine on 9.3.2007 as per invoice No.1217 i.e. as per  Ex.C1.  The Opposite Parties given two years guarantee against all manufacturing defects from the date of sale.  The same has been expired on 9.3.2009.  The above complaint came to be filed before this FORA on 9.4.2010. 

However, we have observed that the above said machine was admittedly purchased on 9.3.2007 as stated supra and the guarantee period as assured by the manufacturer in this case is already lapsed.  Further, the Complainant except filing oral assertion nothing has been placed on record to show that during the warranty/guarantee period, the above said sewing machine started to trouble nor the same has been attended by the technician of the Opposite Party and the problem in the said machine is still continuing that means right from the day-1 till this date.  Nothing has been placed on record to establish the same except the legal notice dated 8.3.2010.  On perusal of the legal notice dated 8.3.2010, we have noticed that though the Complainant took a contention that sewing machine started to trouble before the guarantee period and she could not use properly  for sewing and other works, needles were broken many time.  Except the bare allegations nothing has been placed on record atleast a job card drawn by the Opposite Parties to show that problem in the machine was frequently attended by the Opposite Parties.  The Opposite Party sworn to the fact that, they have attended some minor problem in the machine as complained by the Complainant and same has been rectified and the Complainant had used the above said machine up to three years and now there is no warranty and the part cannot be replaced free of cost.  It appears to be reasonable because except the legal notice dated 8.3.2010 the Complainant not produced any material evidence to show that the sewing machine purchased by the Complainant is defective and not in working condition.  In a case of manufacturing defect, the initial burden lies upon the Complainant to satisfy the FORA that, there is a defect in the sewing machine by producing expert opinion in order to show the inherent defect in the machine.  In the instant case, except the oral assertion nothing has been placed on record to show that the sewing machine purchased by the Complainant suffers from any defect as alleged in the complaint.  Further, we have noticed that, the guarantee period issued by the Opposite Party manufacturer has been already expired and the Complainant is not entitled to get service for free of cost as per the terms and conditions of the guarantee card issued by the manufacturer of the above said machine.   However, we observed that, the Complainant has miserably failed to establish the manufacturing defect as alleged in the complaint and the guarantee period issued by the manufacturer to the above said machine has been already expired.  However, we have noticed that the Opposite Party No.2 by filing version stated that they are ready repair the sewing machine in case if there is any problem but not free of cost. Since, the guarantee period has been expired, the Complainant is at liberty to avail the service of the Opposite Party but not free of cost. 

In view of the above discussion, we are of the considered opinion that the Complainants miserably failed to establish the manufacturing defect in the above said machine.  In the absence of the same the complaint has no merits deserves to be dismissed.  No order as to cost.

6.       In the result, we pass the following:                                  

ORDER

The complaint is dismissed. No order as to cost.

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

(Page No.1 to 9 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 16^th day of December 2010.)

    PRESIDENT                 MEMBER                   MEMBER

ANNEXURE

Witnesses examined on behalf of the Complainants:

CW1 – Mr.Daniel Raj Patra – Complainant.

Documents produced on behalf of the Complainants:

Ex C1 – 9.3.2007: Bills issued by the Opposite Party No.2.

Ex C2 – Copy of the Guarantee Card.

Ex C3 – 8.3.2010: Lawyers Notice.

Ex C4 – 9.3.2010: Served acknowledgement.

Ex C5 – 13.3.2010: Reply Notice of Opposite Party No.2.

Witnesses examined on behalf of the Opposite Parties:

RW-1: Sri Jayaprakash Shetty, Proprietor of the Opposite Party No.2. 

Documents produced on behalf of the Opposite Parties: 

- Nil -

Dated:16.12.2010                                      PRESIDENT