Punjab

Ludhiana

CC/14/355

nitu Mittal - Complainant(s)

Versus

Virpaljit Grewal - Opp.Party(s)

31 Mar 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

                                                          C.C. No.355 of 09.05.2014

                                                          Date of Decision:31/03/2015

Mrs.Neetu Mittal, Prop.M/s Saraswati Industries, D-164, Phase-VI, Focal Point, Ludhiana. 

                                                                                      Complainant

                             Versus

1.Sh.Nirpaljit Grewal, Prop.M/s J.V.Exports, K-274, Phase VIII, Focal Point,        Ludhiana.                                                                                              

2.M/s Gurukaiji Industries through its authorized person WZ-171, Lajwanti Garden, New Delhi-110046.     

                                                                                      Opposite parties

COMPLAINT UNDER SECTION 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Quorum:    Sh. R.L. Ahuja, President

                   Sh.Sat Paul Garg, Member

                   Ms.Babita, Member.

 

Present:       Sh.S.S.Sekhon, Adv. For complainant.

                   OP1 ex-parte.

                    Sh.Nitin Kapila, Adv. for OP2.

                                                ORDER

 

R.L. AHUJA, PRESIDENT.

 

1.                Present complaint under Section 12 of the Consumer Protection Act, 1986 has been filed by Mrs.Neetu Mittal being the proprietor of M/s Saraswati Industries, D-164, Phase-VI, Focal Point, Ludhiana(hereinafter in short to be described as ‘Complainant’) against Sh.Nirpaljit Grewal, Prop.M/s J.V.Exports, K-274, Phase VIII, Focal Point, Ludhiana and others(hereinafter in short to be described as ‘OPs’) directing them to remove the defects or to replace the machine supplied by them i.e.CZ40 alongwith  compensation of Rs.5 lakh to the complainant on account of deficiency in service and for the huge loss caused to the complainant.

2.                Brief facts of the complaint are that the complainant placed an order with OP for the supply of a new machine being called as CZ40 and paid the price to the OP. The aforesaid machine which has been supplied by the OP is not as per the specifications and order placed by the complainant and there is no combination and it creates alarm and drive and system is not working properly. The machine supplied by the OP is having manufacturing defect and no output is being delivered by the machine as required. Despite repeated notice to the Ops to rectify the defects, Ops failed to do so. The complainant also served a legal notice upon the Ops through her counsel on 28.1.2014 but despite receipt of said notice, Ops failed to exchange the machine or to remove the manufacturing defects. Hence, this complaint..

3.                Upon notice of the complaint, OP2 was duly served and appeared through Sh.Nitin Kapila, Advocate and filed the written statement, whereas, notice of the complaint was sent to OP1 through registered post on 18.11.2014, but the same was not received back and as such, after expiry of 30 days of period, Op1 was proceeded against ex-parte vide order dt.19.12.2014 by this Forum.

4.                In the written statement filed by the OP2, in which, it has been submitted in the preliminary objections that the present complaint is not maintainable as the complainant does not come under the definition of consumer as she had placed an order for the supply of machine called as CZ40 with the OP1. The complainant is not a consumer of answering OP and as such, the present complaint is liable to be dismissed against the answering OP. Moreover, there are number of machines installed in the factory of M/s Saraswati Industries for commercial purpose and it cannot be defined under the Consumer Protection Act. The complainant has not approached this Hon’ble Forum with clean hands and has suppressed the material facts from this Hon’ble Forum and as such, she is not entitled to any relief prayed for in the present complaint. The present complaint is bad for misjoinder of necessary parties because the answering OP is neither necessary nor proper party to the present complaint. The present complaint is nothing but a ploy adopted by the complainant to cause illegal harassment to the answering OP and to extract money from the answering OP. No machine was ever sold by the answering OP to the complainant and it is the OP1 who had purchased the machine from answering OP and the complainant had purchased the machine from OP1. On merits, it is submitted that the concern of the complainant is a commercial unit and is engaged in the business and as such, the complainant does not come under the definition of Consumer as alleged. Further, it is submitted that the machine in question was supplied by the OP1 and not by the answering OP. The machines are supplied to the OP1 by the answering OP from time to time. The OP1 has been using the said machines before its supply to the actual customers and thus, there is no fault on the part of the answering OP, if there is any defect in the machine so alleged by the complainant. New machines are supplied to OP1 as the OP1 is a sole distributor of the machines so manufactured by the answering OP and it is obligatory on the part of the OP1 to remove the defect if there is any alleged defect as alleged. As a matter of fact, there was no manufacturing defect in any of the machine sold to the OP1. No alleged notice was ever served upon the answering OP and moreover, there was no correspondence of the complainant with the answering OP. Rather, the dealing was directly made by the complainant with OP1, who was the sole distributor of the machines so manufactured by the answering OP. Moreover, the complainant has failed to supply the copy of the invoice to the answering OP. Further, it is submitted that the answering OP is a private limited company duly incorporated under the Indian Companies Act. At the end, all other allegations of the complainant made in the complaint are denied being wrong and correct and answering OP made prayer for dismissal of the complaint with costs.

5.                Learned counsel for the complainant in order to prove the case of the complainant adduced evidence by tendering into evidence affidavit of complainant as Ex.CA, in which, she has reiterated all the allegations made by her in the complaint. Further, learned counsel for the complainant has placed on record documents Ex.C1 to Ex.C4.

6.                On the contrary, learned counsel for the OP2 adduced evidence by placing on record affidavit Ex.RA of Sh.Harnek Singh, its authorized representative, in which, he has reiterated all the contents of the written reply filed by the Op2 and refuted the case of the complainant. Further, learned counsel for the OP2 has placed on record document Ex.R1.

7.                We have heard the learned counsel for the complainant as well as learned counsel for the OP2 and have also gone through the record on the file very carefully.

8.                Perusal of the record reveals that it is an admitted fact on record that the complainant had purchased the machine in question from OP1 vide invoice NO.433 dated 17.2.2013 Ex.C1 which was manufactured by OP2. As per the allegations of the complainant that the machine in question which had been supplied by the OP is not as per the specifications and order placed by her and there is combination and the same creates alarm and drive and system of the machine is not working properly. The machine is having manufacturing defect and no output is being delivered by the machine in question as is required by her. Further, as per the allegations of the complainant that despite repeated bring on notice of the Ops, they failed to rectify the defects in the machine in question.

9.                On the other hand, though, OP2 who appeared and contested the complaint has admitted to the extent that OP2 is the manufacturer of the said machine. But he has no knowledge about the sale of the machine in question and there is no manufacturing defect in the machine in question. Though, OP1 did not come forward and was proceeded against ex-parte. However, the complainant has proved on record documents Ex.C1 copy of sale invoice No.433 dated 17.2.2013 qua the purchase of the machine in question from the OP1, copy of legal notice dated 28.1.2014 served by the complainant upon the Ops and Ex.C3 and Ex.C4 copies of postal receipts.

10.              So, it is proved fact that the complainant had purchased the machine in question from the OP1 which was manufactured by the OP2 and it is the legal obligation on the part of the Ops to provide the better services for the maintenance of the machine in question to the complainant, for which, they are failed to do so. As such, complaint deserves to be allowed and complainant is liable to be compensated.

11.              Hence, by allowing this complaint, we hereby direct the Ops to carry out the necessary repair in the machine in question of the complainant by repairing or replacing the defective parts of the same and make the same proper functional to the entire satisfaction of the complainant without any costs. Further, Ops are burdened to pay compensation and litigation costs compositely assessed as Rs.2000/-(Two thousand only) to the complainant on account of mental pain and agony suffered by her. Order be complied within 30 days of receipt of copy of the order, which be supplied to the parties free of costs. File be completed and consigned to the record room.

 

    (Babita)            (Sat Paul Garg)              (R.L.Ahuja)

               Member             Member                         President. 

Announced in Open Forum

Dated:31.03.2015

GurpreetSharma.