Sathish Shet,

S/o. N.K. Shet, Aged 40 years,

Proprietor,

Manvith Jewelers,

Door No.12-2-183/8,

Pooja Palace, Car Street,

Mangalore. …….. COMPLAINANT



(Advocate: Sri.K.S. Sharma).



VERSUS



Mr.D.M. Musale,

Managing Director,

Quantum Equipment Co. Ltd.,

301, Rajashree Plaza, L.B.S. Marg,

Ghat Kopar, West,

Mumbai – 400 086. ……. OPPOSITE PARTY


1. The facts of the complaint in brief are as follows:

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

The Complainant is carrying on jewelry business in the name and style “Manvith Jewelers”. It is submitted that the Complainant had placed order through the Bangalore distributor of the Opposite Party for supply of Karatmeter Plus. The said unit was supposed to be dispatched from Mumbai office of the Opposite Party to the Complainant but as against the said order the Opposite Party has sent Karatmeter through his distributor to the Complainant and the said unit was installed on 16.6.2006 in the jewelry shop but the said unit failed to function within 3 days from the date of installation. The Complainant immediately reported the same to the distributor of the Opposite Party and the personnel of the distributor came to inspect and made an attempt to repair by replacing parts but they are unable to rectify the defects in the machine and finally the Opposite Party agreed to replace the machine.

The Opposite Party replaced and installed the machine on 4.7.2006. Even the said unit worked for a period of one month and started giving inconsistent and spurious result which was reported to the Opposite Party. that the Opposite Party deputed one Senior Service Engineer Mr.Paresh, who had informed in writing that the unit supplied to the Complainant was not Karatmeter Plus but it was just Karatmeter. The Opposite Party has deceived and defrauded the Complainant and rendered deficiency in service and committed an act of breach of trust reposed by the Complainant. It is submitted that to cover up the same Opposite Party agreed to replace the machine once again. It is submitted that complainant wanted to personally visit the factory to see the quality but in the meantime without any instructions Opposite Party has dispatched the machine through delivery note and invoice No.16/08/2007-08 by deliberately overlooking the Complainant’s instructions. The Complainant had written letter dated 18.9.2007 and 21.9.2007 to take back the machine. The Opposite Party has taken back the defective machine and also third machine leaving its measuring head in the Complainant’s shop after exchange of notice and reply.

It is submitted that the Complainant has paid a sum of Rs.10,00,000/- for purchasing of the 1st machine but the Opposite Party paid only Rs.8,00,000/- after exchange of notice and reply but not paid the entire amount and hence it is contended that the service rendered by the Opposite Party amounts to deficiency in service and filed the above complaint under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Hon'ble Forum to the Opposite Party to pay Rs.10,00,000/- along with interest at 18% p.a. from 16.6.2006 till 16.7.2007 and further claimed Rs.13,60,000/- as compensation and cost of the proceedings.



2. Version notice served to the Opposite Party by RPAD.

Opposite Party appeared through their counsel filed version contended that there is no cause of action to file the above complaint and there is no territorial jurisdiction and the Complainant is not a consumer.

It is admitted that the Complainant had placed an order for Karat meter plus through the Opposite Party and the said machine was supplied from the Opposite Party’s office at Mumbai.

It is contended that, there was no failure in the machine, the minor discrepancies which were there were carried out by the technicians of the Opposite Party and distributors and submitted that this Opposite Party was made to supply the new machine having higher version to the Complainant against the provisions returning of the first machine along with the payment. However the Complainant failed to do so and as a result the Complainant having the two machine of the Opposite Party which is being used by him for his commercial business activities and submitted that the Karatmeter plus was supplied as per the order of the Complainant.

And further submitted that this Opposite Party had paid the admitted amount to the Complainant at the time of taking back the first machine and later supplied new machine with higher version to meet the Complainant’s requirement and that the Complainant is liable to pay charges for having unauthorized use of the machines for his commercial purpose 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:

(i) Whether the Complainant is a consumer and the machineries purchased by the Complainant for the purpose of commercial purpose and this Forum has jurisdiction to entertain the complaint?



(ii) Whether the Complainant proves that the goods supplied by the Opposite Party suffering from any defects?



(iii) Whether the Complainant proves that the Opposite Party has committed deficiency in service?



(iv) If so, whether the Complainant is entitled for the reliefs claimed?

(v) What order?



4. In support of the complaint, Sri.Sathish Shet (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C8 were marked for the Complainant as listed in the annexure. One Sri.D.M.Musale (RW1), Managing Director of Quantum Equipment Co. Ltd., filed counter affidavit and answered the interrogatories served on him.

We have considered the materials that was placed before the Hon'ble Forum and answer the points are as follows:

Point No.(i): Affirmative.

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



5. Point No. (i):

In the instant case, the Opposite Party taken a first plea that, the Complainant is not a consumer and the machineries purchased by the Complainant for the purpose of commercial purpose. It is a settled position of law that when the defects found within the warranty period irrespective of commercial purpose the Opposite Party obliged to remove defects despite there not being a separate agreement for service thereof.

In the instant case, the Complainant raised a contention that he purchased a machinery called Karatmeter plus to his jewelry shop, the said unit was installed on 16.6.2006, the said unit failed to function within three days from the date of installation and the Opposite Party’s personnel came to inspect and made an attempt to repair by replacing the parts even though they could not rectify the problem and finally the Opposite Party has agreed to replace the machine and installed on 4.7.2006. Even the 2nd replaced unit also developed very same problem within a month. That means the above said unit developed problem within the period of warranty.

We have referred ruling given by the National Commission New Delhi 2005 Vol-IV CPJ 206 NC in the case of Dr.Vijay Prakash Goel vs the Network Limited held as follows:

“Consumer Protection Act, 1986 – Section 21(b) – Plant and Machinery – Machine defective, within warranty – Complaint allowed by majority judgment of District Forum dismissed by State Commission – Hence revision – Purchaser of machine, consumer, if defects develop within warranty, irrespective of commercial purpose – O.I. obliged to remove defects despite there not being a separate agreement for service thereof – Order of State Commission set aside – Compensation for mental agony awarded with interest.”



Similarly in the present case, the defect in the machine found within the warranty period. When such being the case, the Complainant is a consumer and the complaint is maintainable and this Forum has jurisdiction to entertain the complaint. Hence the point No.(i) held in favour of the Complainant.



Point No.(ii) to (v):

On going through the entire pleadings, oral evidence and the documentary evidence both the parties are concealing something. However, the Complainant produced Ex C1 to C8. After careful scrutiny of the documentary evidence available before the FORA it is proved that the Complainant placed an order for a machinery called a Karatmeter Plus but the Opposite Party supplied the machinery to the Complainant and the same was installed on 16.6.2006 and subsequently the said unit developed certain problems. But the Opposite Party in their version as well as the interrogatories and reply affidavit filed by them admitted that the 1st machine was took back and the 2nd machine was supplied and installed on 4.7.2006.

As far as purchase of the 1st machine and replacement of the 1st defective machine is proved by the documentary as well as the interrogatories and the reply affidavit filed by the parties before the FORA. On careful reading of the correspondences between the Complainant and the Opposite Party proved that even the 2nd machine supplied by the Opposite Party also had problem and in the meantime the Opposite Party supplied 3rd machine with higher end version.

But in the instant case, the Complainant specifically contended that he has not placed any order for the 3rd higher end machine supplied by the Opposite Party. When such being the case, the Opposite Party ought to have produced the material/cogent evidence in order to show that the Complainant placed an order for higher end version of the machine. Since there is no documentary evidence we cannot consider that the Complainant placed higher end version of the machine with the Opposite Party. The correspondences made by the Complainant dated 19.9.2007 reveals that the Opposite Party was not supplied the machinery Karatmeter plus but supplied was Karatmeter. We have gone through one more very important correspondence i.e., Ex C5 dated 17.1.2008 issued by the counsel of the Complainant to the Opposite Party in reply to the legal notice dated 9.1.2008, wherein the Complainant in para 17 categorically admitted as follows:

“After telephonic conversations, they had agreed to take back the defective machine along with new measuring head, the amount of refund was agreed at INR 8,00,000/-“.



From the above said paragraph it is made us very clear that there was a oral agreement between the Complainant and the Opposite Party and the Opposite Party had agreed to refund amount of Rs.8.00 lakhs. And further in Ex C7 i.e., one more legal notice dated 14.5.2008 issued by the Complainant counsel states that Rs.8.00 lakhs was paid by the Opposite Party a month back in Complainant’s shop. That means the agreed amount between the parties were paid by the Opposite Party to the Complainant. But there is no documentary evidence available before the FORA when exactly the agreement took place between the Complainant and the Opposite Party. But on overall reading of the correspondences it is made us clear that Rs.8.00 lakh was agreed between the parties and the said amount has been paid by the Opposite Party.

When the Complainant admitted in his legal notice that he has agreed for Rs.8.00 lakhs the question of Rs.10.00 lakhs does not arise. The entire correspondences do not reflect the exact date of the payment but we can presume that the legal notice dated 17.1.2008 issued by the Complainant reflects that the amount agreed between the parties was of Rs.8.00 lakhs and another legal notice dated 14.5.2008 in page No.3 para 3 reflects that Rs.8.00 lakhs was paid a month back. However, the amount agreed between the parties are paid and the matter was closed. But it could be seen that there is a delay on the part of the Opposite Party while paying the amount but it is not forthcoming when exactly the payment was made. In the absence of any cogent/ material evidence, we are unable to consider the claim of the Complainant. Hence the complaint deserves to be dismissed. No order as to costs.



6. In the result, we pass the following:


ORDER

The complaint is dismissed. No order as to costs.