Punjab

Moga

CC/15/74

Gurpiar Singh - Complainant(s)

Versus

Vishwavkarma Agricultural works - Opp.Party(s)

G.S Hayer

24 Nov 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MOGA.

 

                                     C.C. No. 74 of 2015

                                                                Instituted On: 11.09.2015

                                                  Decided On: 24.11.2015

Gurpiar Singh, aged about 56 years son of Bihal Singh, resident of Village Kalyan Sukha, Tehsil and District Moga.

Complainant 

Versus

 

1. Vishwavkarma Agricultural Works, Majestic Road, Moga, through its Proprietor Sohan Singh.

2. Sohan Singh, Proprietor of M/s Vishwavkarma Agricultural Works, Majestic Road, Moga.

 

Opposite Parties

 

 

Complaint under section 12 of the

Consumer Protection Act, 1986.

 

 

 

Coram:      Sh.S.S.Panesar, President

                   Smt.Vinod Bala, Member

                   Smt.Bhupinder Kaur, Member

Present:      Sh.G.S.Hayer, Advocate Counsel for complainant.

Sh.Sohan Singh, Proprietor for opposite parties.

 

 

ORDER

(S.S.Panesar, President)

                  Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘Act’) against Vishwavkarma Agricultural Works, Majestic Road, Moga, through its Proprietor Sohan Singh and others (herein-after referred to as opposite parties)- directing them to pay Rs.2.00 lacs on account of compensation to the complainant and to replace the defective straw reaper with new one or in the alternative to refund the price of straw reaper to the tune of Rs.2,15,000/- alongwith interest @ 18% p.a. till actual realization of the complaint.

2.                Briefly stated the facts of the case are that complainant is an Agriculturist and he has purchased one Straw Reaper 56' with differential and tyres and Seven Feet Cutter complete bearing code no.M/cd/gr/109 dd no.803025 from opposite party no.1 against a consideration of Rs.2,15,000/- in cash, vide bill no.327 dated 10.03.2014. At the time of purchase of Straw Reaper in question, it was informed by opposite party no.2 that it is of best quality and would give best services to the complainant. After purchase of abovesaid Straw Reaper complainant started using it for the purpose, it was meant and could make 200 trolleys of wheat chaff and thereafter Straw Reaper broke down and rendered unserviceable and complainant could not use it as it developed some technical snag. The complainant had booked 450 trolleys for making wheat chaff in village, but due to technical problem in Straw Reaper, the complainant could make 200 trolleys only. The complainant moved an application before the Chief Agriculture Officer, Bathinda to inspect the Straw Reaper in question and to give report regarding defect in the machine. The said Straw Reaper was inspected by Assistant Agriculture Engineer (Implements) Bathinda, who reported that sheets of all the three fans of Straw Reaper had corroded and the sheet facilitating wheat chaff, out of machine, is also corroded and main bearing of drum has gone out of order. It was apparent that machine having manufacturing defect has been sold to the complainant by the opposite parties and opposite parties are liable for the same. Due to defective machine the complainant could not reap straw to the optimum and had to suffer loss of Rs.2.00 lacs during wheat harvesting season. In view of the above, complainant is entitled for compensation to the tune of Rs.2.00 lacs from the opposite parties besides replacement of defective Straw Reaper with a new one or in the alternative to refund of the price of the Straw Reaper alongwith interest. The complainant also served a Registered Notice to opposite parties on 3.11.2014, through his counsel, but the opposite parties did not pay any heed. The services rendered by the opposite parties are deficient and complainant has been harassed unnecessarily. Hence this complaint.

3.                Upon notice, Sh.Sohan Singh, Proprietor appeared on behalf of opposite parties and filed written reply contesting the same and took up preliminary objections that the instant complaint is not maintainable; the complainant is not a consumer; the complainant used the machinery for commercial purpose. So, the complaint is liable to be dismissed on this score alone. The present complaint has been filed only to harass, blackmail and to humiliate the opposite parties. On merits submitted that perfect and best machine was sold by the opposite parties to the complainant and there was no manufacturing defect or any other defect in the machine. No warranty or guarantee of the machine was ever given by the opposite parties to the complainant. If any defect has occurred in the machine, that is not the fault of the opposite parties, but is due to negligence and fault of the complainant itself. The machine was being used for commercial purpose and the complainant had taken 450 trolleys for making wheat chaff. So, the complaint is liable to be dismissed on this score alone. Further submitted that the complainant in order to harass and humiliate the opposite parties has produced a false report from the Chief Agricultural Officer. Moreover, opposite parties were not called at the time of inspection of the machine. Rather false evidence has been created by the complainant in collusion with the said officer to harass and extract money from the opposite parties. Denying the contents of all other paras of the complaint, opposite parties prayed for the dismissal of the complaint.

4.                In his evidence, the complainant Gurpiar Singh appeared in witness box as his own witness and filed his duly sworn affidavit Ex.C-1 in support of his allegations made in the complaint. The complainant also produced on record photocopies of the documents Ex.C-2 to Ex.C-9 and closed his evidence.

5.                To rebut the evidence of the complainant, Sh.Sohan Singh, Proprietor of opposite parties tendered into evidence his affidavit Ex.OP1 and closed the evidence on behalf of opposite parties.

6.                We have heard both the parties and have also carefully gone through the record.

7.                 On the basis of evidence on record, learned counsel for complainant has vehemently contended that complainant purchased one Straw Reaper 56' from opposite party no.1 for a consideration of Rs.2,15,000/- vide bill/cash memo no.327 dated 10.03.2014, copy whereof is Ex.C2 on record. At the time of purchase of Straw Reaper opposite parties intimated the complainant that Straw Reaper is of best quality and would provide best service to him. After the purchase of Straw Reaper in dispute complainant started using the same, but the Straw Reaper could make 200 trolleys of wheat chaff only and thereafter, it broke down and rendered unserviceable. The complainant could not use the same as it developed some technical snag. The complainant moved an application before the Chief Agriculture Officer, Bathinda for getting the Straw Reaper in question inspected from him and further requested him to give technical report regarding the defects in the machine, copy of the application accounts for Ex.C-4. On the application, Assistant Agriculture Engineer (Implements) Bathinda inspected the Straw Reaper in dispute and found that sheets of all the three fans of straw reaper have corroded and the sheet facilitating wheat chaff out of machine is also corroded while main bearing of drum has gone out of order, copy of the technical report accounts for Ex.C-3. It is apparent that machine was having some manufacturing defect at the time when it was sold to the complainant by the opposite parties. Due to defective machine complainant could not reap straw to the optimum and had to suffer loss of Rs.2.00 lacs during wheat harvesting season. It is further contended that complainant served legal notice upon the opposite parties on 3.11.2014, through his counsel, copy of the notice accounts for Ex.C-5, while copy of the postal receipt accounts for Ex.C-6. Despite service of the notice opposite parties did not pay any heed. It is further contended that service rendered by the opposite parties are deficient and complainant has been harassed unnecessarily, therefore, opposite parties may be directed to replace the defective straw reaper with new one or in the alternative to refund the price of the straw reaper to the tune of Rs.2,15,000/- alongwith interest @ 18% p.a. and it is contended that complaint may be allowed accordingly.

8.                On the other hand, Proprietor of opposite parties has vehemently contended that complaint is not maintainable; the complainant had used the machine in dispute for commercial purpose, therefore, the complainant does not come within the purview of section 2 (i) (d) of the Consumer Protection Act and he cannot be termed to be a consumer and the complaint is liable to be dismissed on this score alone. It is further submitted that perfect and best machine was sold by the opposite parties to the complainant and there was no manufacturing defect or any other defect in the machine. No warranty or guarantee of the machine was ever given by the opposite parties to the complainant. If any defect has occurred in the machine, the same was on account of negligent use and default of the complainant himself. No negligence or deficiency in service was attributable to the opposite parties. The machine was being used for commercial purpose; the complaint is false and frivolous and the same has been filed just to harass or extract money from the opposite parties. It is further contended that the complaint may be dismissed with cost.

9.                We have given thoughtful consideration to rival contentions.

10.              There is no denying the fact that the complainant had purchased one Straw Reaper 56' from opposite party no.1 for a consideration of Rs.2,15,000/- vide bill/cash memo no.327 dated 10.03.2014, copy of bill/cash memo accounts for Ex.C2. It has come on record that the straw reaper in dispute went out of order, after few months from the date of purchase. It has further come on record that the straw reaper developed some technical snag, when put in use during harvesting season of wheat in the year, 2014. The complainant moved an application before the Chief Agriculture Officer, Bathinda for getting the straw reaper in dispute inspected and the Assistant Agriculture Engineer (Implements) Bathinda submitted the report, copy whereof is Ex.C3. Though, from the appraisal of the technical report in dispute no technical/manufacturing defect has come to the fore. But however, it was the duty of opposite parties to ensure that the machine in dispute worked well when put to use by the consumer.

11.              The contention that complaint does not fall within the purview of the term consumer does not hold good, because, it is the case of the complainant that he had purchased Straw Reaper in dispute for earning his livelihood and there is no evidence on record to the contrary. The contention that no warranty or guarantee was given to the complainant at the time of purchase of straw reaper in dispute, therefore, for developing any defect in the machine in dispute, the opposite parties cannot be blamed for the same or that the complainant was not entitled to any of the reliefs claimed vide instant complaint also do not arguer well. The very fact that the machine developed defects when put to use for the first time, shows that it was suffering from the defect at the time of sale itself. The said defect could not be detected by the complainant, because he was a layman. The opposite parties have charged a huge amount of Rs.2,15,000/- from the complainant at the time of selling the Straw Reaper in dispute and it also was promised that the machine would work well when put to use. But however, on the very first season of operation in the year, 2014 itself, the machine broke down and did not perform harvesting properly. The complainant also issued legal notice calling upon the opposite parties to look into the matter and repair the straw reaper in dispute and make the same work worthy, copy of the notice accounts for Ex.C-5, while postal receipt accounts for Ex.C6. It was a registered notice even then the opposite parties did not pay any heed to the request of the complainant. The contention that no warranty or guarantee was given at the time of sale of the machine in dispute, therefore, the opposite parties are not responsible for the defect, if any occurred subsequently, cannot be accepted without a pinch of salt. Since opposite parties were monopolists and as such, they were in a commanding position. They wrongly confided the complainant knowing fully well that the machine was not going to work satisfactorily. As such, opposite parties cannot be absolved of their liability of repairing the Straw Reaper at their own costs. Moreover, the act and conduct of the opposite parties in not providing the warranty/guarantee for the sold straw reaper amount to unfair trade practice and opposite parties cannot be allowed to get benefit of their own default.

11.              In our considered opinion, the opposite parties are duty bound to effect the requisite repair by replacing the sheets of all the three fans of straw reaper and sheet facilitating, wheat chaff out of the machine, and to repair the main bearing of drum of the machine and make the Straw Reaper in dispute work worthy at their own costs. The complaint stands allowed accordingly. The complainant shall approach the opposite parties within a period of 15 days of the receipt of the copy of this order and hand over the Straw Reaper in dispute to the opposite parties against receipt and the opposite parties shall repair the Straw Reaper in dispute as stated above to the satisfaction of the complainant within a further period of two weeks, failing which the complainant shall be entitled to get the order enforced, through indulgence of this Forum. Copies of the order be sent to the parties free of cost immediately and thereafter the file be consigned to the record room.

 

 

                   (Bhupinder Kaur)          (Vinod Bala)        (S.S. Panesar)

                      Member                          Member                President

 

Announced in Open Forum.

Dated:24.11.2015.