By: Sri. MOHANDASAN.K, PRESIDENT
Complaint in short is as follows: -
1. The complainant started an industrial unit in the name of Mechart and he purchased a machine called CNC machine and it became defective within 4 months of its purchase and the same was informed to the opposite party. The opposite party made attempt to repair the machine on several occasions. The opposite party taken away certain parts of the machine for the repair work and some of the parts were replaced also. But even after one year the machine is defective and cannot be used. The opposite party stated that they are not in a position to repair the machine and so the complainant called an engineer namely GuruPrasad from Chennai and he attended the machine. The complainant paid the repair cost to the engineer GuruPrasad but even thereafter the machine is not useful and the opposite party could not repair the same. The prayer of the complainant is to refund the cost and other incidental expenses altogether 18,96,990/- rupees.
2. On admission of the complaint notice was issued to the opposite party and the opposite party entered appearance and filed version. The opposite party denied the entire averments and allegations in the complaint.
3. The contention of the opposite party is that the complainant is running an industrial unit which is a commercial establishment and the Computer Numerical Control – CNC machine purchased by the complainant was for the industrial purpose and so complainant is not a consumer as defined under the Consumer Protection Act 1986. There is no unfair trade practice or deficiency in service on the part of opposite party. The opposite party not aware the day on which the complainant commenced the industry namely Mechart. The contention in the complaint that the machine was purchased by the complainant from the opposite party for an amount of rupees more than 10,00,000/-, which became defective from 4thmonth of purchase are incorrect and so the opposite party denied. The opposite party contented that the opposite party delivered CNC machine to the complainant on 08-03-2016 and the warranty of the same was fixed for 24 months. The opposite party admitted that they received service request through e mail on 16-08-2017, within warranty period to rectify a minor error and the same was rectified with free of cost within days by deputing an engineer from Delta, Chennai. The opposite party submitted that the complainant reported only minor defects and that was rectified also but they are not aware of the status of machine as well as the industrial unit of the complainant after rectification of the minor defects. The opposite party denied that the complainant made payment against the bill issued by the engineer who rectified one and only error detected by the opposite party. It is also denied that the opposite party could not rectify the error which is completely incorrect. The opposite party submitted that they are being the manufacturer of CNC machines they are capable to rectify any kind of mechanic and electronic errors and they are prepared to rectify the errors’ if any at the risk and cost of the complainant. According to the opposite party complaint is not sustainable under law or on facts and not entitled to get any relief as prayed in the complaint but only meant to harass the opposite party. So, the prayer of the opposite party is to dismiss the complaint with compensatory cost
4. The complainant and opposite party filed affidavit and documents. The complainant examined as PW1.The documents on the side of complainant marked as Ext. A1 to A12. Ext. A1 is copy of disability certificate of the complainant issued by medical board attached to government district hospital, Tirur,Malappuram district. Ext. A2 is copy of Udyog Aadhaar memorandum. Ext. A3 is GST registration copy dated 20/04/2016. Ext. A4 is copy of KFC financial statement dated 26/12/2015. Ext. A5 is copy of SBI account statement for the period 01/02/2016 to 29/02/2016. Ext. A6 iscopy of cash receipt received by opposite party dated 28/04/2016. Ext. A7 is copy of quotation issued by opposite party to the complainant dated 20/11/2015. Ext. A8 is copy of purchase order placed by the complainant before the opposite party. Ext. A9 is copy of delivery challan dated 23/03/2017. Ext. A10 is receipt for service charge issued by the engineer. Ext. A11 is copy of delivery note. Ext A 12 copy of online transaction for the payment of second-hand machinery. Expert Commission report marked as C1. Documents on the side of opposite party marked as Ext.B1 to B21. Ext. B1 is true copy of the screen shot of the advertisement uploaded in complaint’s firms’ page on 12/05/2018. Ext. B2 is true copy of the screen shot of the advertisement uploaded in complaint’s firms’ page on 05/04/2018. Ext. B3 is true copy of the screen shot of the advertisement uploaded in complaint’s firms’ page on 27/12/2017. Ext. B4 is true copy of the screen shot of the advertisement uploaded in complaint’s firms’ page on 29/09/2017. Ext. B5 is true copy of the screen shot of the advertisement uploaded in complaint’s firms’ page on 29/09/2017. Ext. B6 is true copy of the screen shot of the advertisement uploaded in complaint’s firms’ page on 15/08/2017. Ext. B7 is true copy of the screen shot of the advertisement uploaded in complaint’s firms’ page on 27/07/2017. Ext. B8 is true copy of the screen shot of the advertisement uploaded in complaint’s firms’ page on 04/07/2017. Ext. B9 is true copy of the screen shot of the advertisement uploaded in complaint’s firms’ page on 19/04/2017. Ext. B10 is true copy of the screen shot of the advertisement uploaded in complaint’s firms’ page on 08/03/2017. Ext. B11 is true copy of the screen shot of the advertisement uploaded in complaint’s firms’ page on 09/02/2017. Ext. B12 is true copy of the screen shot of the advertisement uploaded in complaint’s firms’ page on 08/01/2017. Ext. B13 is true copy of the screen shot of the advertisement uploaded in complaint’s firms’ page on 06/10/2016. Ext. B14 is true copy of the screen shot of the advertisement uploaded in complaint’s firms’ page on 30/09/2016. Ext. B15 is true copy of the screen shot of the advertisement uploaded in complaint’s firms’ page on 24/09/2016. Ext. B16 is true copy of the screen shot of the advertisement uploaded in complaint’s firms’ page on 13/09/2016. Ext. B17 is true copy of the screen shot of the advertisement uploaded in complaint’s firms’ page on 19/08/2016. Ext. B18 is true copy of the screen shot of the advertisement uploaded in complaint’s firms’ page on 17/08/2016. Ext. B19 is true copy of the screen shot of the advertisement uploaded in complaint’s firms’ page on 17/05/2016. Ext. B20 is true copy of the screen shot of the advertisement uploaded in complaint’s firms’ page on 23/06/2016. Ext. B21 is True copy of relevant pages of the screenshot of the website of the complainant’s firm.
5. Heard both sides, perused the affidavit and documents and also notes or arguments.
6. The following points arise for consideration: -
- Whether the complaint is maintainable?
- Whether there is any defect to the product?
- Whether there is any deficiency in service on the part of opposite party?
- Relief and cost?
7. Pont No.1
The contention of the opposite party is that the complainant doing business and the machinery involved in the complaint using for commercial purpose and so the complainant is not consumer as defined under Consumer Protection Act 1986. The complainant filed affidavit stating that he is doing the business as self-employment. He met with an accident while he was studying for B Tech in the year 2008 and thereby resulted 50% disability due to the injuries sustained in the accident and so thereafter for his lively hood he availed financial aid from the KFC and started the venture namely Mechart . The contention of the opposite party is that apart from the complainant some other persons also working along with complainant. It can be seen that the work carrying at Mechart includes art and other technical aspects. So, there is no harm availing the assistance of other qualified persons to perform the job under taken. We don’t find that position will exclude the complainant from the definition of consumer defined under the Act. The Commission hold that the complainant was conducting a business establishment under the name and style Mechart as his lively hood and as part of self-employment. There is no merit in the contention of the opposite party that the complainant is not a consumer as defended under the Consumer Protection Act and so we find first point infavor of the complainant.
8. Point No.2 and 3
The case of the complainant is that he purchased a CNC router machine from the opposite party availing loan from KFC about 11,57,000/-. The cost of the machine was 10,00,227/-. The machine became defective within short period and it was found the machinery supplied to the complainant was not as per the specifications ordered by the complainant. The machine became defective in the month of October 2016 and the same was informed to the opposite party without any delay. The complainant contacted several times and one Mr. Antony delayed the repair work and said to the complainant that the machine is installed as new one, accuracy of the work will be obtained after a short period. Thereafter two persons called Jose and Antony along with another mechanic came to the spot and inspected the machinery and some of the parts of the machineries were taken to Ernakulum. They repeated their attempt to repair the work more than 4 occasions. The complainant caused to send some parts of the machinery through courier to the opposite party. Due to failure in rectifying the defect on advice of the opposite party complainant contacted an expert Mr. GuruPrasad belongs to Chennai and he came on 24/11/2017 and inspected the machinery. Complainant paid 6,490/- rupees as service charge to the expert. On seeing the expert report Mr. Anotny and Mr. Jose again came to complainant and one of the motors replaced and it was told that they can rectify the defect. But they could not rectify the defect. While the expert examined the machinery, he talked about service summary note and the complainant came to know that during service there must be service summary note. The submission of the complainant is that the opposite party never issued summary of service and even not prepared to issue summery report on demand.
9. The complainant submits that due to defect of the machineries he was compel to purchase another machine to carry out his work. Due to the defective machinery, he could not perform his work within time limit and thereby he lost several works. His loan amount was defaulted. The allegation of the complaint is that the opposite party issued a substandard machinery which was not in accordance with the specification demanded by the complainant. The complainant could not utilize the machinery purchased spending huge amount that is to through financial aid from KFC.
10. The expert report prepared by Guruprasad endorse the contention of the complainant. He inspected the machinery on 24-11-2017. His report in brief is as follows: -
“Brand : Axixonn Type: CNC Router
Model : Numax 2500 Serial: 1200-38 Manufacturing on: 02/2016
We hereby observe that the CNC Router machine produced by M/s Axiconn – Kochi, has been inspected by us on 24/11/2017, and found that the mechanical aligments of X, Y axis are not matching to the co- ordinate command. So the start point & the end point of a circle machining do not match properly. Machining a circle shape is not confirming the correct circle. During routing of wood, the job finish is not as per the standard requirements.
The machining a circle shape is not consistent on all the 4 corner & center of the ply wood plate. The machine is not suitable for normal speed process like other machines. The machining design gets spoiled on change of cutting feeds well under the maximum machine capacity.
Conclusion:
The machine has not been able to deliver normal, optimal working performance.”
11. The contention of the opposite party is that the complainant made a service request through email on 16-08-2017 with in warranty period to rectify a minor error and the same was rectified free of cost within few days by deputing an engineer from Delta Chennai. Apart from the said minor error no other error has been reported by the complainant to the opposite party and it is submitted by the opposite party that they are not aware of the status of the machine as well as industrial unit of the complainant after the rectification of the minor error which was reported to the opposite party. The opposite party submitted that they being manufacturer of CNC machines is cable to rectify any kind of mechanic and electronic errors and they are ready to rectify the errors if any at the risk and cost of the complainant. The opposite party also submitted that the warranty is only for 24 months and this complaint is filed on experimental basis to harass the opposite party for unlawful monetary gains. The opposite party produced documents which are the print outs of the screen shots from the website of the opposite party firm and they are available in face book page and website of complainant’s firm.
12. It can be seen that the defect to the machine stands reported within the period of warranty. The expert commissioner as reported that the machine has not been able to deliver, normal. It can be under stood that the CNC router machine using by the complainant for obtaining maximum perfection in his work. From the commissioners’ report it can be perused that the purpose of the machine will not be served at present.
13. The opposite party claimed that there was minor error and it was rectified. On perusal of the C1 document it can be inferred the reality is otherwise. Hence, we find that the machine supplied by the opposite party was substandard defective one. The opposite party failed to provide service to the satisfaction of the complainant. Hence, we find that there was defect to the machinery and there is deficiency in service on the part of opposite party.
14. Pont No.3
It can be seen that the complainant is a person of disability of 50%. He started an industrial unit availing loan as self-employment for his lively hood. Due to the defective machine, he could not carry out his work properly. He was in financial crisis also he was constrained to buy new machinery to carry out his work since he could not undertake the work and some work orders might have missed also. The situation caused financial and mental issues to the complainant; hence he is entitled for adequate compensation. It can be seen that the complainant already purchased another machinery to carry out his work in his industry. So, the prayer to refund the cost of the machinery is justified. The financial loss caused due to defective machinery and deficiency in service cannot be quantified from the available documents. So, we allow the compensation of Rs.2,00,000/- on that ground. We allow 15,000/- rupees as the cost of the proceedings.
15. In the light of above facts and circumstances we allow the complaint as follows;
1) The opposite party is directed to pay 10,00,500/-(Ten lakh and five hundred rupees only) rupees as the cost of CNC router machine
2) The opposite party is directed to pay compensation of Rs.2,00,000/- (Two lakh rupees only) to the complainant on account of unfair trade practice and deficiency in service and thereby caused mental agony and financial loss to the complainant
3) The opposite party is directed to pay Rs.15,000/- (Fifteen thousand rupees only) as cost to the complainant.
4) The complainant is directed to return the CNC router machine purchased from the opposite party on refund of cost of the machinery along with compensation as stated above. The refund of cost along with compensation and returning of the machinery shall be done simultaneously.
The opposite party shall comply this order within one month from the date of receipt of copy of this order, failing which the complainant is entitled for interest at the rate of 9% per annum for the above said entire amount till realization.
Dated this21st day of January, 2022.
MOHANDASAN.K, PRESIDENT
PREETHI SIVARAMAN.C, MEMBER
APPENDIX
Witness examined on the side of the complainant: PW1
PW1: Hashim. Kolomban (Complainant)
Documents marked on the side of the complainant: Ext.A1to A12
Ext.A1: copy of disability certificate of the complainant issued by medical board attached to government district hospital, Tirur,Malappuram district.
Ext.A2: copy of Udyog Aadhaar memorandum.
Ext A3: GST registration copy dated 20/04/2016.
Ext A4: copy of KFC financial statement dated 26/12/2015.
Ext A5: copy of SBI account statement for the period 01/02/2016 to 29/02/2016.
Ext.A6: copy of cash receipt received by opposite party dated 28/04/2016.
Ext.A7: copy of quotation issued by opposite party to the complainant dated 20/11/2015.
Ext A8: copy of purchase order placed by the complainant before the opposite party.
Ext A9: copy of delivery challan dated 23/03/2017.
Ext A10: receipt for service charge issued by the engineer.
Ext. A11: copy of delivery note
Ext. A12: copy of online transaction for the payment of second-hand machinery.
Witness examined on the side of the opposite party: Nil
Documents marked on the side of the opposite party: Ext. B1 to B 21
Ext.B1: True copy of the screen shot of the advertisement uploaded in complaint’s firms’
page on 12/05/2018.
Ext.B2: True copy of the screen shot of the advertisement uploaded in complaint’s firms’
page on 05/04/2018.
Ext.B3: True copy of the screen shot of the advertisement uploaded in complaint’s firms’
page on 27/12/2017.
Ext.B4: True copy of the screen shot of the advertisement uploaded in complaint’s firms’
page on 29/09/2017.
Ext.B5: True copy of the screen shot of the advertisement uploaded in complaint’s firms’
page on 29/09/2017. E
Ext.B6: True copy of the screen shot of the advertisement uploaded in complaint’s firms’
page on 15/08/2017.
Ext.B7: True copy of the screen shot of the advertisement uploaded in complaint’s firms’
page on 27/07/2017.
Ext.B8: True copy of the screen shot of the advertisement uploaded in complaint’s firms’
page on 04/07/2017.
Ext.B9: True copy of the screen shot of the advertisement uploaded in complaint’s firms’
page on 19/04/2017.
Ext.B10: True copy of the screen shot of the advertisement uploaded in complaint’s firms’
page on 08/03/2017. Ext
Ext.B11: True copy of the screen shot of the advertisement uploaded in complaint’s firms’
page on 09/02/2017.
Ext.B12: True copy of the screen shot of the advertisement uploaded in complaint’s firms’
page on 08/01/2017.
Ext.B13: True copy of the screen shot of the advertisement uploaded in complaint’s firms’
page on 06/10/2016.
Ext.B14: true copy of the screen shot of the advertisement uploaded in complaint’s firms’
page on 30/09/2016.
Ext.B15: True copy of the screen shot of the advertisement uploaded in complaint’s firms’
page on 24/09/2016.
Ext.B16: True copy of the screen shot of the advertisement uploaded in complaint’s firms’
age on 13/09/2016.
Ext.B17: True copy of the screen shot of the advertisement uploaded in complaint’s firms’
page on 19/08/2016.
Ext.B18: True copy of the screen shot of the advertisement uploaded in complaint’s firms’
page on 17/08/2016.
Ext.B19: True copy of the screen shot of the advertisement uploaded in complaint’s firms’
page on 17/05/2016.
Ext.B20: True copy of the screen shot of the advertisement uploaded in complaint’s firms’
page on 23/06/2016.
Ext. B21: True copy of relevant pages of the screenshot of the website of the
Complainant’s firm.
Ext. C1: Expert Commission report
MOHANDASAN.K, PRESIDENT
PREETHI SIVARAMAN.C, MEMBER
