BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, CHITRADURGA.

CC.NO:53/2020

DATED:24^th November 2022

PRESENT: -     Kum. H.N. MEENA., PRESIDENT., B.A. LL.B.,

                       Sri. G. SREEPATHI, B.COM., LL.B., MEMBER       

                        Smt. B.H. YASHODA. B.A., LL.B., LADY MEMBER

:ORDER:

Smt. B.H. YASHODA.    B.A., LL.B., LADY MEMBER.

The above complaint has been filed by complainant U/s 35 of the Consumer Protection Act, 2019 for seeking the relief of to direct the opponent to pay the entire cost of machines amounting to Rs.3,25,000/- with interest thereon @ 2 % from the date of Booking the Machines till its realization and Rs.1,06,000/- towards various charges paid to technicians and others and Rs.3,00,000/- towards frustration and mental agony and grant relief under the product liability clause as per the New Act 2019.

The brief facts of the complaint:

        1. It is stated by the complainant is a consumer, as per the Act and satisfies the requirement of section 2 (1) (d) of the Act. The complainant in order to earn a livelihood out of manufacture and sale of paper plates and donnas, has ventured to purchase from the opposite party the machine for self use. The complainant has purchased the machine for self-employment and thus she is a consumer entitled to approach this commission in respect of defective machine.

        2. The opponent company on 29/11/2018 through one of their executive by name Ms. Sonia called upon the complainant and narrated various details as per the Pamphlet delivered to their whatsapp number for supply of Four Die Fully Automatic Thali (paper plates) Machine. The performance of the machine were shared by way of an Video along with the machine details. She also told that this Machine would generate the complainant an income for livelihood and decent Standard of Living. Believing these statements, the complainant has finalized the placement of the order for the said Machine. This complainant was lured and told by Opponent Company that the company will give discount, instalment and buy one and get one after if booked within 5^th December 2018.

3. It is stated by the complainant in his complaint that the Opponent Company has priced the machine at Rs.3,00,000/- and an Extra Machine by way of Offer to cost at Rs.25,000/-. The Company has stated that with this investment an income of Rs.400/- can be generated per every production of 1000 Nos. of paper plates and a daily output of 40,000 plates at the rate of Rs.450/- per thousand plates by first machine would fetch Rs.18000/- and 20,000 plates would be produced by the second machine at the rate of Rs.400/- per thousand plates would fetch Rs.8000/- totally to Rs.26000/- per day from both the machines on an assurance the finished products shall be repurchased by opponent Company. With all these promises, this complainant was made to believe the same and accordingly placed orders for purchase of the said machines

        4. That on 4-12-2018 the complainant has deposited an amount of Rs.10,000/- sent by RTGS as a confirmation of the booking of the machine for the said Four Die Full Automatic Thali manufacturing machine (Paper plates and Donnas).  Further, this complainant was also told by opponent Executive Ms.Sonia, that there is ample opportunity for production of various sizes of paper plates which would earn not less than Rs.10000/- per day. Accordingly the complainant believing all these statements has sent an amount of Rs.1,50,000/- through RTGS from Bank of Baroda, Chitradurga on 10-12-2018. Further, the complainant has deposited the balance of Rs.1,65,000/- on 27/12/2018 through RTGS from Bank of Baroda, Chitradurga and on 03/01/2019, the said machines were delivered to the complainant.

        5. The complainant was astonished to see that the machines which were supplied were of 4^th  or 5^th  plan machines as per pamphlet and requested the opponent to give information as to the same. He was surprised to receive a reply that the Buy back of finished products were only for Donne (paper bowls) and not for Paper plates.  On 06-01-2019, the consignment was opened for installation by one Mr. Raghavendra has installed the machine and demanded Rs.15000/- for installation charges. However negotiated and finalized for Rs.8,000/-. He has not waited till the machines were started and left the place at 7.00 p.m. stating that the machines were intact and function well. When on 07-01-2019 at about 8.00 am. The complainant has switched on the machine after heating for about 30 to 45 minutes as per directions given by OP Company to start the production of the plates. The machine once started made a ratting sound and came to a halt. The papers inserted jammed inside and crushed into a mass of debris. No production could not be done on that day. On the next day morning i.e, on 08-01-2019 the complainant has called the Opponent to check. The Opponents electrician submitted and noticed that the entire Wiring system was burnt out and all efforts to start the machine and start production of plates was not at all possible. The Opponent’s technician promised to solve this problem, but absconded from the scene and never tuned up again.

        6. Again on 10-01-2019 another team of technicians of the opponent arrived and told the complainant that they will attend to the problem in a couple of days and left the place without solving the issue since they could not locate the problem precisely besides charging the complainant Rs.13000/- which was duly paid by the complainant. Again on 24-01-2019 one team of technician arrived and confirmed the failure of wiring system and directed the Complainant to put a new wiring and also put a new energy meter to take the load otherwise this problem would persist for ever. Thereafter the complainant decided to shift the machines to a new location.  Where there is ample power supply and other amenities as suggested by the Opponent Company. That on 27-01-2019 the coils attached to the machine was heated again in order to start the production. Due to the faulty machine the papers got crunched in between and the movement of the paper halted. The problem was conveyed to the Opponent’s Company executive Ms.Sonia. She again promised to send a technician to resolve this problem. The Complainant with all frustration contacted the Opponent’s Company executive on the following date’s i.e, on 08-03-2019, 11-03-2019,
15-03-2019, 27-03-2019. The Opponent have failed to arrange for the technicians to resolve the issues relating to the above machines. In the meantime, the complainant has to incur heavy sums of money in order to set right the problems associated with the machine. He has incurred an amount of Rs. 75,000/- toward extras apart from the cost of machine and Opponent technician’s expenses. On 10-05-2019 Ms.Sonia picked the call and again the same old convincing, after which she did not pick up the calls by the complainant. This shows and clearly indicates the adamant nature of the Opponent Company and their executives. But ultimately Opponent’s Executive Ms.Sonia picked the call on 04/09/2019 and promised to send the technician again. In the meantime the complainant has sought for replacement of machines or else take back the machines by Opponent Company and also sought for a refund of the amount so paid by him. Further alleged by the complainant that in spite of several follow up, the opponent company has utterly neglected the service aspects which were promised at the initial stage and after the supply of machines there by luring the complainant with a colourful earning and standard of living. This has lead to the deficiency of service, unfair trade practice and false assurance by the opposite party. Also started that the complainant has incurred losses to the tune of Rs.3,25,000/- apart from the cost of procurement of the machine. Further, it is stated by the complainant that the complaint without alternative got issued legal notice dated 22/06/2020 against the opponent, the same has been delivered, but, on 16/07/2020 the opponent company has complied the Notice by denying all the allegations made in the Notice. Hence, the complainant has filed this complaint.

        7. After registering the complaint, The Hon’ble Commission has issued Notice to Opponent Company and it were duly served to the opponent and filed their version by denying the allegations of the complaint. The complaint under reply is denied in entirely as the same is based on vague, false and misconceived notion and thus liable to be dismissed as frivolous and vexations complaint. The complaint is not maintainable as it miserably fails to bring on record any defect in the goods or deficiency of service or unfair trade practice by the opposite party and the same is merely an attempt by the complainant to grab the money from the company. Further stated that the opponent by quoting that the complainant has not comes under the perview of the term “consumer” under section 2 (7) of the Act.

8. The opponent in their version stating that by denying each and every allegations, averments and claim made in the complaint. The complainant’s allegations are disingenuous and are only a device to procure her illegal demands from the opponent company. Further states that the culpable acts and conduct of the complainant as would be evident from the complaint paragraphs would conclusively show that she has not acted in good faith. The opponent company also states that the company has delivered the machines safely to the complainant’s location, within the stipulated time. Within 3 days of delivery of the machines, the company technician visited the complainant’s site and successfully installed the machines. The Machines were working fine. Moreover, the company technicians have impart training to the complainant as to the working and functioning of the machines. Further, the technician advised the complainant that the machines required power source of 15 AMP.  Thereafter, on request of the complainant, the company technicians visited the site and advised about the poor electric connection which has been changed consequently and which no issue was ever raised by the complainant.

9. Further, despite entering into the Agreement, the complainant never approached the complainant either for purchasing of raw material or selling paper donne, which in fact caused the opponent company huge business loss. The complainant has failed to supply the finished products to the company in terms of the Agreement and likewise, the company has fulfilled their obligations without any breach from all the above material facts mentioned in the version, the OPs requested that there is no deficiency of service or negligence on the part of OP, so OP company not liable to pay any compensation as claimed by the complainant and prayed for dismissal of this complaint.

10. The complainant got himself examined as PW-1 by filing his affidavit as a part of examination-in-chief and the documents Ex.A-1 to Ex.A-13 were got marked and closed their side evidence. (Out of which Ex.A-1 to 3.3(a) and 8,9,10, and 11 are one and the same).

11. The opponents got examined as D.W. 1 and documents were marked as Ex.B-1 to 8 and closed the evidence on their side. Complainant and opponent have filed their version and written arguments of complainant and OP were heard.

12. After perusal of the complainant and OP evidence and all documents the points that arise for our consideration for decision of above complaint are that:

1. Whether the complainant proves that she is the consumer?
2. Whether the complainant proves that the OPs have committed deficiency of service on the part of the OP?
3. Whether the complainant is entitled to the reliefs claimed in the complaint?
4. What order?

13. Our finding on the above points are as follows:

a) (i) Affirmative.

b) (ii) & (iii) Affirmative.

c) (iv) As per final order.

REASONS

14.Point No.1: The complainant examined as P.W.1, and documents marked as exhibits A-1 to A-13 viz., Ex.A-1: Attested certified copies of pamphlet containing description of machine. Ex.A-2: Certified copies of the Invoice No.785 dated 19/12/2018 raised by the opponent. Ex.A-3: Certified copies of consumer Receipt Tax Invoice, Ex.A-3 (a):  Certified copy of the E-way Bill system, Ex.A-4: Xerox copy of the photo of the under finished goods by the machine with a copy of the photos of view materials which rendered useless after production. Ex.A-5: Copy of the extract of various call details on various dates made with the opponent company Ex.A-6: Copy of Legal Notice sent to opponent and the postal receipt Ex.A-7: Copy of Reply Notice, Ex.A-12: Attested copy of the Agreement for supply of finished products, Ex.A-13: Attested copy of details payments made on various dates to the opponent company.

        15.The opponent No.1 has examined as D.W. No.1 and documents marked as Ex.B-1 to Ex.B-8 i.e., Ex.B-1:Copy of letter of Authorization, Ex.B-2:Copy of the photograph, Ex.B-3: Copy of GST details, Ex.B-4: Copy of the website screenshot of Siri pavers, Ex.B-5:Copy of the amount statement of OP of ICICI Bank, Ex.B-6: Copies of GST Details, Ex. B-7:Copy of the Legal  Notice dated 26/06/2020 of the complainant Ex.B-8:Copy of the agreement dated 18/02/2019, as such there is no dispute that the complainant has purchased the machine by remitting the cost of machine to the opponent. Hence, the issue No.1 is affirmative.

16. Point No.2 & 3: As per the Act section 2 (1) (d) the complainant that the consumer. The complainant in order to earn a livelihood out of manufacture and sale of Paper plates and donnas, she had ventured to purchase the machine for self use. As per the complaint, after receiving the machines from OP and start, but the products were only for Donne (paper bowls) and for paper plates on 06/01/2019, the complainant opened the consignment for installation by one Raghavendra, Technician of the opponent, Mr. Raghavendra has installed the machine on 08/01/2019, the complainant has called the opponent to check. The opponent technician submitted and noticed that the entire wiring system was burnt. The opponent technician promised to solve this problem on 10/01/2019. And another technician of the opponent arrived and told the complainant that they will attend the problems in a couple of days, but not problem solved appeared the machine. After the complainant has tried to contact the opponent company and their executives several times on various dates from 04/04/2019 to 06/06/2020 for all these calls there was no response from their side with a blatant and adamant answers with an indication of escapism. The complainant has produced call details i.e., Ex.A-5. The opponent also admitted in their version and in written Arguments about these problems and send the technicians, the OP technician attended the work on several times and received the technician fees, but not solved the problem. It shows that there is negligence and deficiency in service of OP.

        17. That there is no dispute in the complaint and version, the company has priced the machine at Rs.3,00,000/- and an Extra Machine by way of offer to cost at Rs.25,000/- The company has started that with this investment an income of Rs.400/- can be generated per every production of 1,000 Nos. of paper plates and a daily output of 40,000/- plates at the rate of Rs.450/- per thousand plates by first machine would fetch Rs.18,000/- and 20,000/- plates would be produced by the second machine at the rate of Rs.400/- per thousand plates would fetch Rs.8000/- totally to Rs.26,000/- per day from both the machines on an assurance that the finished products shall be repurchased by the opponent company as per Ex.A-12-Agreement entered between the complainant and opponent, both the parties have agreed and signed the Agreement by accepting the terms and condition valid upto 1 year, but in this case, the machine problem was occurred within one year. It shows that there is manufacturing defect in the machine purchased from the OP.

        18. Further opponent stated in the version, chief affidavit and written arguments, during the installation of the machines the complainant was informed by the technician that a 15 Ampere power source would be required to operate the machines and he had also instructed the complainant to run the machines only when the requisite power source was available. It is further submitted that the complainant, for reasons best known to her, plugged the machine to an inappropriate power source (not being 15 Amp) in complete derogations for the express instructions of the technician. But there is no mentioned 15 Amp used at the time of the products paper plates of Machine, in Ex.A-1, Ex.A-2, & Ex.A-12. There is no lead the evidence electric technician in favour of OPs with regard to 15 Ampere Power source would be required to operate the machines. It is shows that deficiency in service of OP.

19. Further OP stated in version there was no defect, imperfection or short coming in the machines supplied by the opposite party and the complainant has conveniently twisted the facts in its complaint before this Hon’ble Commission. Nonetheless, damage to the internal wiring system has no relation to the malfunctioning or defect of the machines. It was caused due to the complainant’s own fault /negligence. Thus, opposite party cannot be held liable for the negligence of the complainant. But if the internal Home Wiring system was damage, no products were only for Donne (paper bowls) therefore, it is shows that problem and defect of machine not problem of internal wiring.

20. The OP submitted Authorities to defend the case as follows:

1. Air 1995 S.C: Lakshmi Engineering Works V/s P.S.G. Industrial Institute.
2. CPJ 2013 page 146 (NC)-Bhardwaj Industries V/s premier Limited and others.
3. CPJ 2017 page 41 (55)-para (9) Narendra hameed V/s Dodia dryotech and others.
4. Civil Appeal No.5476 of 2013 S.C.- Jagmittar Sain Bhagat  V/s Dir. Health services, Haryana and others.
5. Civil Appeal No.7335 of 2008 S.C.- Chief Administrator, H.U.D.A. and others V/s Shakuntla Devi

21. The above citations are change of facts and circumstances, so they are not applicable to this case.

22. In the above circumstances, perused the Chief Affidavit and written Arguments filed by the complainant and opponents, it shows that there is deficiency in service on the part of opponent. As such, the point No.2 and 3 taken into consideration as Affirmative.

23. Point No.4: As discussed on the above points and for the reasons stated there in we pass the following as per the points.

::ORDER::

        The complaint filed by the complainant U/s.35 of Consumer Protection Act, 2019 against the opponent is partly allowed.

        It is ordered to refund the entire cost of Machines amount to Rs.3,25,000/- with interest thereon at the rate of 2 % p.a. from the date of booking the Machine till realization.

It is ordered to pay Rs.10,000/- towards various charges paid to technicians and others.

It is ordered to pay Rs.10,000/- towards frustration and mental agony.

After receiving the amount complainant return defective Machine to opponent.

It is further ordered that the opponent has to settle the claim within 1 month from the date of this order or otherwise, the above said compensation amount and award will carry 6% p.a. on award amount.

        Communicate the order to parties.

(Typed directly on the computer to the dictation given to stenographer, the transcript corrected, revised and then pronounced by us on 24^th November 2022.)

LADY MEMBER                   MEMBER                    PRESIDENT

-:ANNEXURES:-

Witness examined on behalf of Complainant:

PW-1:- Shyla C W/o Rajashekar B.S., by way of affidavit   

           of evidence.

Wetness examined behalf of opponent:

DW-1:-Nejamudin Ansari S/o Mahamud Ansari, by way of affidavit   

           of evidence.

Documents marked on behalf of Complainant:

Documents marked on behalf of opponent:

LADY MEMBER                   MEMBER                    PRESIDENT

GM**