BEFORE THE DAKSHINA KANNADA DISTRICT  CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE

Dated this the 20^th December 2016

PRESENT

SRI. VISHWESHWARA BHAT D         : HON’BLE PRESIDENT

SRI. T.C. RAJASHEKAR                      : HON’BLE MEMBER

ORDER IN

C.C.No.38/2012

(Admitted on 11.01.2012)

Mr. Muneer,

Proprietor, S.K. Paper Products,

S/o Abdul Kareem,

Of age 24 years,

Neralakatte House,

Kuvettu Village,

Maddadka,

Belthangady, D.K.

                                                                                                                 ….. COMPLAINANT

(Advocate for the Complainant: Sri.DS)

VERSUS

V. Chakravarthy M.B.A.

Proprietor,

Ramakrishna Traders,

6.A, Nedumaran Nagar,

Dharmapuri Nagar,

Dharmapuri 636701,

Tamilnadu.

                                                                       ......OPPOSITE PARTY

(Advocate for the Opposite Part: Sri. DVM)

ORDER DELIVERED BY HON’BLE MEMBER

SRI. T.C. RAJASHEKAR:

I.       The above complaint filed under Section 12 of the Consumer Protection Act alleging deficiency in service against claiming certain relief opposite party to refund the amount of Rs.6,70,000/ the cost of the paper cup manufacturing machine with 12% interest, to pay a sum of Rs.3,50,000/ towards monetary loss and sell the damaged coffee cups to the customers and for the damage caused to the coffee cups, loss of paper product, loss of income and cost of the proceedings Rs.10,000/.

     2.  In support of the above complainant Mr. Muneer filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents marked Ex.C1 to C18 detailed in the annexure.  On behalf of the opposite party Mr. V. Chakravarthy (RW1) Proprietor, Ramakrishna Traders also filed affidavit evidence and answered the interrogatories served on him. 

                  The brief facts of the case are as under:

     On perusal of the complaint and the version of the parties we under stood the dispute is with regard to defect in the paper cup manufacturing machine purchased by the complainant. the complainant states that he had purchased paper cup manufacturing machine from the Opposite party for his lively hood on self employment and the said machine turned defective within four months and the Opposite party not responded in repairing the machine and even the free service is not given as agreed upon in spite there is guarantee period of 1 year  and hence alleges deficiency in service. The Opposite party in contention states that, the machine was perfectly alright and worked for four months and from their part they have given free service in spite the complainant forgone the free service by taking Rs 30000/ as discount. Also the machine handled by unauthorized persons for which guarantee do not apply and the guarantee period already lapsed hence they are not liable for any deficiency in service. Since these are the facts of dispute  in resolving it we consider the following

POINTS FOR ADJUDICATION

     We have traversed through the documents produced and the considered the evidence produced. The admitted facts are, the purchase of machine from the opposite party. The guarantee given for one year and the amount paid in full. The denied facts are the defect in the machine and the defect within the guarantee period. The Opposite party also denies the not giving of free service, and the complainant as consumer for lively hood. The complainant denies the forgoing of free service on availing discount of  Rs  30000/ and the free service given by the Opposite party. On précising the admissions and the denials we opine the following points may be considered for adjudication of the dispute.

1. Whether the complainant is a consumer under the Consumer Protection Act 1986?
2. Whether there is deficiency in service on the part of the Opposite party?
3. Whether the complainant is entitled for the prayed relief?
4. What order?

     We have critically examined the evidence adduced and the documents produced and the heard the rival contentions. Our answer for above points as under:

1. In the affirmative.
2. In the affirmative.
3. In the affirmative.
4. As per delivered order.

REASON:

POINT NO 1:  The complainant produced the EX C7 to C9 which established the purchase of machinery from the Opposite party which is not disputed. But the disputing point is the complainant states that the machinery purchased for his lively hood on self employment scheme but the Opposite party denies and states that it is a commercial purpose and will not come under the per view of the Consumer Protection Act 1986. This point already raised in an application dated 27.05.2012 and decided on 08.10.2012 holding the complaint is maintainable in this Forum under the Consumer Protection Act 1986 and the application rejected. Hence the answer to the point no 1 in the affirmative.

POINT NO 2:  The main facts of dispute for our consideration are whether there is defect in the machine and are it with in the guarantee period. The complainant produced the EX C8 the TERMS AND CONDITIONS of sale issued by the Opposite party where in under the WARRANTY caption it is specifically stated that  one year from the date of successfully finishing test-run at your factory. 3 free services for 1^st year i.e. once in four months after installation.  We also scanned the documents carefully and find nothing with regard to forgoing of free service on availing discount of Rs 30000/ by the complainant. The complainant pleaded and sworn in that the deduction given for returning a mold. But these facts will not take the case in either way as the main dispute is related to defect in the machine but not free  service. The complainant produced an expert opinion and examined CW 2 on 21.01.14 to establish his case that the machine is defective. The Opposite party not presented himself on 21.01.14  and cross examined him and disproved the CW 2 witness. Also the Opposite party filed his note of arguments in the next hearing date 05.02.14 but not moved any application for praying for the opportunity for cross examining the witness. The CW 2 the GIRI ENGENEERING WORKS has given a report (EX C1) dated 06.05.2012 on inspecting the machine and stated that, the disputed paper machine  producing excess heat, the gear box is not functioning properly and producing sound, the produced cups are malformed due to heat and specifically states the machine appears to be newly purchased and is within warranty period since this evidence is not controverted it established that the machine is defective and it is within warranty period. Also the Opposite party produced marked as EX R3 to R5 admittedly a declaration by the complainant given the transport authorities declaring the transport of gear box is not for sale but for repair. This was on 05.01.2012 which also establishes there is guarantee still persists at the time of defect in the machine and also defective gear box of the machine. It is to be remembered that the expert opinion also narrates the defective gear box.

     2.  The another point relied by the Opposite party to waive the guarantee is the machine is operated by the unauthorized person. The contention will not survive as there is no any condition in the TERMS AND CONDITIONS which stipulate exclusion for applicability of guarantee for unauthorized handling. Yet another fact which proves the defect in the machine  and it is within guarantee period is the Opposite party in his version para 6 while they came second time in the month of December 2011 visited the business place at Belthangadi, the machine was visible dismantled and the machine was tempered by the unauthorized person with the knowledge of this complainant. This also proved the machine was defective in the month of December 2011 itself. It is to remember here that the complainant case is the Opposite party in spite of promised free service did not turn up to serve. The Opposite party even though contends that they have given service in the month of Aug 2011but not produced any documents for having done service. We presume since the Opposite party not given proper service the complainant inevitably approached third party technicians and there is no bar in the TERMS AND CONDITIONS for the third party handling. With these much discussion we are now confident to hold the machine is defective and it is within warranty period and the Opposite party is liable for deficiency in service for not attending the problem or defect as promised and required under law.  Hence the point no 2 in the affirmative.

POINT NO 3: in view of the discussion above we held the opposite party sold a machine which has turn defective and not responded as per guarantee given hence liable for deficiency in service. The complainant prayed for the refund of the machine value of Rs 670000/ for which we subscribe his entitlement for the amount with an interest at 9% per annum from the date of complainant till the date of  payment. The complainant had asked for an amount of Rs 350000/ as monetary loss but not substantiated actual loss. However it is grasped from the pleadings of the complainant that he had availed a loan for the purpose of running his business through the machine and spent some amount in repairing and transporting of the machine for no fault of him and the production and sale are affected and their by lively hood. Hence we consider an amount of Rs 70000/ towards damages and loss of income. No compensation awarded as not prayed for. We also consider an amount of Rs 10000/ towards litigation expenses as prayed for. The opposite party is entitled to take back his defective machine on his cost from the complainant and the complainant shall hand over as soon as payment received.

POINT NO 4: In the result of above adjudication of points we pass the following

ORDER

     The complaint is allowed. The Opposite party shall pay an amount of  Rs 6,70,000/ (Rupees Six lakh Seventy thousand only) with an interest of 9 % per annum from the date of complainant till the date of payment and an amount of  Rs 70,000/ (Rupees seventy thousand) towards damage and loss of income and the litigation expenses of  Rs 10000/ (Rs Ten thousand ) within 30 days from the date of order received. Failure to comply attracts penal interest at the rate of 2%  extra from the date of order.   The complainant shall handover the defective machine as soon as payment received.         

     Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.

(Page No.1 to 9 directly typed by member revised and pronounced in the open court on this the 20^th December 2016)

             MEMBER                                           PRESIDENT

(SRI. T.C. RAJASHEKAR)         (SRI. VISHWESHWARA BHAT D)

D.K. District Consumer Forum              D.K. District Consumer Forum

 Additional Bench, Mangalore                Additional Bench, Mangalore

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1  Mr. Muneer

Documents marked on behalf of the Complainant:

Ex.C1: Inspector report dated 6.5.2012

               Ex.C2: Business license

               Ex.C3: Certificate issued by Prime Minister Employment Generation Programme

               Ex.C4: Communication of Syndicate Bank

               Ex.C5: Form No.7

               Ex.C6: Delivery Note

               Ex.C7: Quotation

               Ex.C8: Terms & Conditions of the quotation

               Ex.C9:  Invoice

               Ex.C10: Registration  and turn over for M.C

               Ex.C11: Bill of lading

              Ex.C12: Consignment of goods notes

              Ex.C13: Reservation Ticket

              Ex.C14: Certificate dated 9.2.2009

              Ex.C15: Coloured photograph

              Ex.C16: Ticket dated 16.12.2011

             Ex.C17: Letter dated 9.12.2010 given by opposite party

             Ex.C18: Letter dated 11.1.2011

Witnesses examined on behalf of the Opposite Party:

RW1  Mr. V. Chakravarthy,  Proprietor, Ramakrishna Traders

Documents marked on behalf of the Opposite Party:

Nil 

Dated: 20.12.2016                                    MEMBER