F.A.No.118  OF 2012 AGAINST C.C.NO.187 OF 2008 DISTRICT FORUM-II VIJAYAWADA AT KRISHNA DISTRICT

Between:

1.   M/s Dr.No.12-487, Opp. Bypass Road, Housing Board Colony

Rep. by its Proprietor Sri PVSP Murthy 2.   Sri M/s D.No.12-487, Bypass Road, Housing Board Colony
        

                                                                                                Appellants/complainants

1.   The General Manager,
ELGI Equipment Ltd.,

2.   The Manager, ELGI Equipment Ltd.,
B-1, Industrial Estate

3.   The Manager
ELGI

1-8-611, Airport Plaza, 3^rd Floor
Hyderabad-016

4.   M/s Coastal Pneumatic Agencies
Authorized Dealer for ELGI Equipment Ltd. Montessori College Street, Opp. All India Radio
Station, Bandar Road, Vijayawada-010
rep. by its Manager

                                                                                                        Respondents/opposite parties

Counsel for the Appellants             M/s   Counsel for the Respondents                 M/s

QUORUM:   SRI R.LAKSHMINARASIMHA RAO, HON’BLE MEMBER

                                        &

                        SRI THOTA ASHOK KUMAR, HON’BLE MEMBER

 MONDAY THE   DAY OF MARCH

                                   TWO THOUSAND THIRTEEN

Oral Order (As per Sri

                                        ***

1.             Unsuccessful complainants   the appellants. They filed complaint seeking relief of refund of the cost of the machine, `9

2.             The case of the appellants is that the second appellant has been running the wheel alignment centre, i.e. the first appellant firm for the purpose of eking out his livelihood and they purchased MIGI JBC V3D Ultra Wheel aligner and FOCUS F-90 wheel balancer  from the respondents no.1 to 3 through the respondent no.4 for consideration of `9,60,000/- on 28.12.2005 and after it being installed by the engineers of the respondents, the machine developed technical snag which was inspected by the respondents and the machine was replaced with a new machine on 28.09.2006 by extending warranty from 28.09.2006 to 27.09.2008.

3.             Further, it is the case of the appellants that the respondents had not furnished rear wheel slip plates at the time of replacement of the machine and there was colour shading in the side line of the reflectors which the engineers of the respondents promised to rectify and the new machine also developed defects in camera, shade in reflectors and improper alignment.  The engineers who inspected the machine informed the appellants that there are manufacturing defects in the machine which cannot be rectified and advised the appellants to get defect free machine and due to non-functioning of the machine the appellants sustained loss of `4,000/- per day.

4.             The respondents resisted the claim on the premise that the District Forum has no jurisdiction as the   It is contended that the wheel aligner machine was installed on 24.03.2006 and the appellants used the machine for their business purpose. When the appellants expressed dissatisfaction, the respondents replaced the machine with new machine with a view to maintain good relations business with the customers. The appellants had not   balance consideration of `4,00,000/- for the machine and accessories .

5.             It is contended that the respondents attended to periodical service of the machine and the appellants used the machine successfully for the purpose of their business and there was no complaint from the appellants or their staff for a period of one year and ten months. As the manager of the appellants refused to endorse on the service report, the respondents had sent the service reports through post to the appellants. The appellants addressed letter dated 15.07.2008 complaining of non-receipt of slip plates and the colour shade occurring on the side reflectors and without giving time to reply, the appellants got issued notice on 21.07.2008. The second appellant is under the impression that the wheel aligner rear slip plates would be supplied with the five essential items of the machine.

6.             It is contended that the rear slip plates are accessories and they have to be purchased by the appellants. As a good will gesture, the respondents supplied them to the appellants. The shading on the reflectors has nothing to do with the functioning of the machine. The service engineers of the respondents inspected the machine in presence of the second appellant and he expressed his satisfaction about functioning of the machine. The appellants mentioned the problems in the   which are not mentioned in the letter which preceded the notice by five days. The respondents had sent fiesta car bearing registration number AP 16AP 2992 for wheel alignment to the first appellant on 24.10.2008 and the appellants made wheel alignment and issued report. The machine is still functioning after expiry period of warranty and there was no defect in it nor there deficiency in service on the part of the respondents. 

7.             The second appellant filed his affidavit and examined  filed his affidavit and examined as RW2 and   and got marked ExB1 and B2.

8.             The District Forum dismissed the complaint on the premise that there is no manufacturing defect in the machine supplied to the appellants and the appellants failed to establish deficiency in service on the part of the respondents.

9.             The complainants have filed appeal contending that the District Forum has not considered the evidence in proper perspective and that the District Forum erred in relying on the version of the respondents and the order is contrary to the object of the Consumer Protection Act.

10.            The appellants have filed written arguments.

11.            The point for consideration is whether the order of the District Forum suffers from misappreciation of facts or law?

12.            The appellants purchased ELGI JBC v3D Ultra Wheel Aligner Focus F-90 Wheel Balancer and accessories manufactured by the respondents no.1 to 3 and sold through the respondent no.4  on 28.12.2005 for consideration of `11,50,000/-.Cash bill dated 28.12.2005 evidences the sale transaction of the Wheel Aligner while cash bills dated 11.01.2006 and 16.01.2006 evidence purchase of accessories. It is not in dispute that the Machine posed problem within 6 months of its purchase and on complaint made by the appellants, the respondents replaced the machine with a new machine on 28.09.2006 furnishing warranty for two years from 28.09.2006 till 29.09.2008. The respondents issued warranty card in respect of the machine.

13.            The appellants contend that the new machine suffers from manufacturing defects and the respondents had not supplied rear wheel slip plates and they found colour shade inside line of left reflectors. The respondents submitted that the appellants had not complained of any problems with machine during the periodical survey conducted by their engineers and as the manager of the appellants refused to sign the service reports the respondents had sent the service reports through post to the appellants.   The plea of the respondents that the appellants had not made any complaint on telephone is not denied by the appellants.

14.            It is not disputed that the following items are basic parts the machine consists of and essentially are to be supplied by the respondents at the time of sale of the vehicle and all other parts are accessories which the purchaser is required to obtain through separate sale transaction.

a)     Wheel Aligner Cabinet with Monitor & CPU, Printer etc., -1 No

b)     Wheel Aligner Cameras with Horizontal & Vertical Beam – 1 no.

c)     Wheel Aligner Targets – 4 nos.

d)     Wheel aligner Target clamps – 4 nos.

e)     Wheel Aligner Turn tables – 2 nos.

15.            After the machinery was commissioned at the premises of the appellant no.1, the service engineer of the respondents demonstrated the functioning of the machine in presence of the second appellant.    The statement of the respondents that the slip plates though are not essential parts of the machine, were supplied to the appellants to maintain good business relations with them is not disputed.

16.            The learned counsel for the appellant has submitted that the contention of the respondents that the appellants had not paid the entire amount and they are due an amount of Rs.4 lakh is incorrect and the appellants filed the receipt in proof of payment of Rs.4 lakh. He has submitted that the respondents disputed improper functioning of the machine whereon the appellants filed application to send the machine for examination by technical officer of RTA and the respondents opposed the application as also the District Forum dismissed the petition.

17.            A perusal of the record would establish the filing of application by the appellants for examination by technical officer of RTA. The District Forum dismissed the application.         RW3 in his cross examination has admitted that the respondents did not visit the premises of the first appellant after receipt of the letter dated 15.07.2008 and notice dated 21.07.2008. He has stated

“…..It is true the complainant addressed a letter to the company on 15/16-7-2008 complaining technical slag in the machinery.  Immediately after receipt of the letter mentioned supra none visited the premises of complainant no.1 on behalf of the company.  It is true that the complainant got issued a legal notice to the company on 21.7.2008 requesting the company to attend on the repairs to the machinery.  There is no documentary proof with me that anybody visited the first complainant office on receipt of legal notice.  After filing of this complaint also the company did not send any technical person to complainant no.1”.

18.            The appellants may or may not have complained of manufacturing defects in the machine and improper functioning of the machine. The respondents branded both problems in one sheath of manufacturing defect of the machine. The second appellant brought to the notice of the respondents the fact of shade on the reflectors which finds support from the evidence of RW3 who in his cross examination deposed

“---I was also present on the second installation of the machine.   It is true that the complainant nO.2 represented that there was a shade in the reflectors at the time of second installation.  We did not replace the reflectors after complaining of shade.  It is true that the machinery has covered with warranty.  It is true if the machine gives trouble within the warranty period the defect has to be rectified if the defect is not rectified new machine was installed within warranty period”.

19.            The respondents stated that though the slip plates are not the basic components of the Machine and the appellants have to purchase them independently, they supplied the slip plates to the appellants with an intention to keep good business relations with the appellants. In the same manner, the respondents could have inspected the machine as regards to the complaint of shade on side reflectors of the machine.  The respondents opposed the application filed by the appellants for examination by technical officer of the RTA. We do not see any reason for the respondents to oppose the application. The technical officer’s report would establish whether the shade on the side line reflector is an inherent problem or could it be developed in the course of time after the machine is commissioned.  The District Forum ought not to have dismissed the application depriving opportunity to the appellants to   whether the machine was not properly functioning.

20.            The learned counsel for the appellants has relied upon the decisions of the

21.            We find substance in the contention of the learned counsel for the appellants that the respondents opposed the application of the appellants for examination of a technical officer as a result of which the appellants were compelled to get the machine inspected by a private engineer who issued the report and gave his evidence before the District Forum. He has submitted that the respondents had not inspected the machine by their technicians. In the circumstances, the report of PW2 has to be given credence or the machine was to be inspected by the technical officer of RTA.

22.            The appellants reported the problems posed by the machine within the warranty period.  The respondents ought to have attended to the complaint at the time the appellant no.2 reported of shade on the side line reflectors at the time the machine was commissioned at the premises of the appellant no.2.  The respondents at least ought to have visited the premises of the appellant no.1 after receiving the letter dated 15.7.2008 or notice got issued by the appellants.  Thus, we are inclined to accept the contention of the counsel for the appellants that the respondents had not attended on the machine in regard to the shade on the side line reflectors of the machine.  The appellants in the absence of any evidence as to the machine being kept

23.            In the result, the appeal is allowed setting aside the order of the District Forum.  The respondents are directed to inspect MIGI JBC V3D Ultra Wheel aligner and FOCUS F-90 wheel balancer by their technicians and rectify the problem relating to shade on the side line reflectors.  There shall be no order as to costs. 

                                                                                                                                                                   MEMBER

                                                                                                                                                                   MEMBER

                                                                            Dt.18.03.2013

కెఎంకె*