(Delivered on 05/05/2022)

PER SHRI A. Z. KHWAJA, HON’BLE JUDICIAL  MEMBER.`

1.         Appellant  No. 1 Mechtech Engineers, Baroda and appellant No. 2 Sudarshan Trading Corporation, Yavatmal has preferred the present appeal feeling aggrieved by the impugned judgment and order dated 09/06/2008 passed by the learned District Consumer Commission, Yavatmal in Consumer Complaint No. 394/2007, whereby  the  complaint filed by the complainant/appellant came to be allowed and  appellant Nos. 1&2 were directed to  provide a new  stone crushing  machine  or in the  alternative  to pay sum of Rs. 10,69,999/- to the complainant. (Appellant Nos. 1&2 shall hereinafter be referred as Opposite Party Nos. 1&2   and respondent as Complainant for the sake of convenience)

2.         Short facts leading to filing of the present appeal may be narrated as under,

            Complainant Prakash Wamanrao Thakre, claims to be a resident of  Yavatmal and was an educated unemployed person. The complainant had earlier  taken a training of working of Stone Crusher Machine and after necessary training he decided to set up his own business by purchasing Stone Crushing  Machine which  consisted of Jaw Crusher  and Vibrating Screen. The Complainant then approached O.P.No.2 Sudarshan Trading Corporation who  is a dealer in sale of Stone Crushing Machine. The O.P.No. 1- Mechtech Engineers, Baroda is a manufacturer of the machine.  O.P.No. 1 assured to him to  provide one Stone Crusher Machine  of high quality  as per specification given by the complainant. The O.P.No. 1 also assured  to give  warranty  of three years  for the machine. The O.P.No. 1 also assured  to replace the necessary parts  as and  when  needed for  the machine and to repair  parts  if  necessary.  The O.P.No. 1 had assured  the complainant  that  the machine  will not have any problems  for  at least   20 to 25 years . On the basis of assurance given by the O.P.No. 1, the complainant purchased the machine  for  price of 6,78,052/-. The complainant also gave Rs. 1,50,000/- by way of demand draft  on 26/07/2004. The O.P.  No. 1also obtained the amount of Rs. 2,66,887/- and Rs. 1,25,050/- regarding installation of machine. After payment was made the machine was duly installed and was given in the working condition. Complainant  has alleged  that   he  started  his work on the  basis of the machine  installed but he noticed  that  technical defects started emerging  in the machine and  the machine  became  defective  in the  month of May-2006. The complainant then informed  the O.P.No. 1 about the defects of the machine, the O.P.No. 1 then visited the spot and after inspection told the complainant that since there was major fault the same  will   have to be communicated  to  the O.P.No. 2. After  2 , 3 months  one part of the machine  got  crack in the month of October-2006 and machine stopped  functioning. The complainant again informed the O.P.No. 1 as well as O.P.No. 2- manufacturer and O.P.No. 2 asked the complainant to carry out welding of the machine but even after welding the defects were not removed. The complainant then informed the O.P. Nos. 1&2 in the month of December-2006, February- 2007 and March-2007 but the O.P. Nos. 1&2 both did not take the necessary steps. The complainant  has alleged that  there was manufacturing  defect in the machine and  cast iron used  in the machine was of low quality  and as a result  of the same the  main body of the machine as well as vibrating  screen got a crack.  The complainant  has further  alleged that  he was required  to  spent  huge amount in bringing  the parts from Nagpur and  getting the machine repaired  every  now  and then the complainant was therefore convinced that there was manufacturing defect in the machine and there was also deficiency in service on the part of the O.P. Nos. 1&2 and so the complainant filed the Consumer Complaint under Section 12 of the Consumer Protection Act, 1986.

3.         The O.P. No. 1 appeared and filed written version and resisted the complaint by denying all the contentions of the complainant.  The O.P.No.1 has taken a plea that  it had   also  cooperated with  the complainant  in the  repair  of the machine and also informed  about the manufacturing  defect to the  O.P.No. 2. The O.P.No.1 has  therefore, denied the liability   and also denied that there was any deficiency in service or unfair trade practice. The O.P.No. 2 has also appeared and denied all the contentions. The O.P.No.2 has categorically denied that there was any manufacturing defect. The O.P.No. 2 has  also denied  that  the cast  iron  used in the machine was  of in low quality . On the contrary the O.P.No. 2 has also taken a plea that the machine stopped working due to heavy load and also improper handling of the machine. The complainant had not handled machine in proper and professional manner and therefore, the machine was having defects, which cannot be rectified  by the O.P.No. 2. The O.P.No. 2 therefore, contended that the complaint  deserves to be dismissed.

4.         The learned District Consumer Commission, Yavatmal thereafter went through  the  complaint  and evidence adduced on record by the complainant  as well as O.P. Nos. 1&2 The learned District Consumer Commission, Nagpur also went through the written notes of argument filed by both the parties. After appreciating and evaluating the evidence   adduced on record the learned District Consumer Commission, Yavatmal  partly allowed  the complaint and  directed the O.P.Nos. 1&2 to install  a new Jaw Crusher  of the same model by  going  to  place  of the complainant  and in the alternative  to pay sum of Rs.  10,69,999/- along with interest  at the rate of 6% p.a.  Against this impugned order dated 09/06/2008 the present  appellant Nos. 1&2 have come up in appeal.

5.         We have heard Mr. Robin Somkuwar,  learned advocate for the appellants as well as  Mr. Solat, learned advocate for the respondent. We have also gone through the copies of documents which are filed on record.

6.         Before dealing with the contentions advanced  by the  learned advocate for the appellant, we find  it necessary to  mention  that  this appeal  had come  to be  filed  as early  as in the year 2008 and so waiting  for adjudication.  At the outset  the learned advocate for the appellant  has submitted that the learned District Consumer Commission, Yavatmal  had not at all  considered the fact  that  the Jaw Crusher  purchased by the  complainant  was not  suffering  any manufacturing  defect and whatever  defects were  caused  were solely  due to heavy  load of work of crushing stones on the machine.  It is not seriously  disputed   by the appellants  that the respondent  had purchased  one Jaw Crusher  and Vibrating  Screen from the appellants  on 30/08/2004 for sum of Rs. 5,20,787/- and Rs. 1,57,264/- respectively. It is also  not in dispute  that the warranty  of 12 months was   given for the  product by the appellants.

7.         Coming now to the submissions  advanced  on behalf of the appellants. It is submitted  that  the grievance  of the respondent /complainant that  the  crusher had cracked  during  the  warranty   period was not  at all correct. According to  the appellants  cracks  had developed  in the  crusher  not during the warranty  period  of 12 months  but after  around 1 years and  9 months after the date of purchase  and so appellants  were not at all  responsible  for  any repair and replacement  without any cost, but this fact was not properly  considered by the learned District Consumer Commission, Yavatmal. Secondly, it is submitted by the learned advocate for the appellants that whenever the respondent/complainant informed about the cracks in the Jaw Crusher the appellants  had repaired  the same. The appellants has submitted  that  the  stone crusher  machine  and vibrating  screen  cannot be operated by  one  single person but needs  team of more than 6 to 7 persons. The appellants  has also taken  a plea that  when the cracks  had developed  the respondent  had avoided  to take the machine to Baroda but got same welded  locally  from the  ordinary  fabricator  and thereby  machine was   seriously  damaged beyond  the repairs. At this stage it is also necessary to deal with the documents filed on record by the respondent /complainant so as to appreciate the case of the complainant /respondent.  The complainant has placed on record several documents including copies of bills and invoice regarding the purchase of Jaw Crusher and Vibrating Screen for huge sum. The respondent  has taken  a plea that  despite  the fact  that   assurances  were made regarding  the  good quality  of the machine  namely Jaw Crusher  and Vibrating  Screen. The trouble started immediately after the machine was taken to the place of the complainant and was installed.  The complainant has alleged that in the month of May-2006 initially mechanical defects started in the machine and so the complainant also informed the O.P.Nos. 1&2 about the same.  Subsequently, in the October -2006 huge cracks developed on both side of the machine and machine was broken similarly the vibrating screen was also got crack and  had broken. The complainant  has contended that as per  the say of the appellants  the machine was taken  to the fabricator and welding  was done. At that  time  the complainant  came to  know that  the  damage  was caused  to the machine and cracks had developed  because  of  poor quality  of cast  iron. When these facts were  brought to the notice  of the appellants , the appellants  asked  the complainant  to get machine  repaired from outside sources and when  there is bigger damage  they will repair the same.

8.         If we go through the written statement filed by the appellants /O.Ps. they have denied all these   contentions and have taken a specific plea that cracks had developed only due to improper handling of the machine. The respondent  had taken  a plea that   looking to the assurance given by the appellants no such  cracks should  have developed  in the Jaw Crusher  and vibrating  screen and same  had taken  place solely due to  manufacturing  defect in the machine. Secondly the appellants have also  taken a specific plea that  there was no manufacturing  defect  in the machine namely Jaw Crusher and Vibrating  Screen   but despite  this fact an erroneous  findings were given  by the learned District Consumer Commission, Yavatmal  and same was  without  any basis.  However, if we go through  the documents  filed by the respondent /complainant, when the complainant  found that  repeated cracks developed in the machine and thereby damaging  the machine the complainant  himself  sought technical  opinion of Mechanical Engineer  Mr. Rajesh  Burade. The said  Mechanical Engineer paid the visit  to the site of the Stone Crusher  on 30/04/2008 and  gave a report  that  the  steel plate  of the  machinery  had developed  cracks and same cannot  with  stand  heavy  vibration. Further  the Mechanical Engineer also  gave a report  that  the  faults  found  in the machine were  beyond   repairs  and  regular  cracks will be found  in  future. The Mechanical Engineer then submitted report duly signed by him along with photographs of steel plates and machine.  From this report of expert engineer it is very clear that the steel plates had develops crack and same were also beyond the repairs.  We find that the learned District Consumer Commission, Yavatmal has also referred to the same.  The learned District Consumer Commission, Yavatmal  has given  findings that  looking to the fact that  the  stone crusher is a heavy machine  local repairs were not  sufficient  and machine  had gone beyond  the  repair.  These findings are duly corroborated by the report of Mechanical Engineer. It is  needless to mention that  after  having sold  the Jaw Crusher  and Vibrating  Screen   to the complainant  it was necessary  for the appellants  to see that the  same is of high quality  but in the present  case  before us the complainant  has  submitted evidence  to show  that  the machine  developed  the cracks  very soon after purchase  and same also   compelled  the complainant  to take help of the  local vendors and fabricators.  

9.         Bare perusal of Mechanical Engineer Report  go to show that the machine had gone beyond repairs.  As such contention of the appellants that there was no manufacturing defect  in the Stone Crusher  cannot be accepted.  It is relevant  to note that  the appellant Nos. 1&2 both have not placed on record  any documents  or papers  which  would go to show  that the Stone Crusher  sold to the complainant  was of high quality. On the other hand  the complainant  has not only  relied  upon  his own affidavit  but has also  relied upon above  mention  report  of Mechanical Engineer  and several  photographs. As such  the contention of the appellants  that the learned District Consumer Commission, Yavatmal  has not appreciated  the documents  in proper  perspective,  cannot be  accepted.  On the other hand, we find that the learned District Consumer Commission, Yavatmal  has given  findings which are   based  on  not only evidence but also  the material documents.

10.       During the course of the argument the appellants have also relied upon several judgments of Hon’ble National Consumer Commission. At the outset  the  appellants have relied  upon  one judgment  of Hon’ble National Consumer Commission in the  case of  Tata Motors  Vs Deepak Goayl and Ors.,  reported  in I (2015) CPJ 607 (NC). In this case  a plea  was taken  that  the vehicle  was having manufacturing  defect. In that context it was observed by the Hon’ble National Consumer Commission that the complainant has to establish the aspect of the manufacturing defect. Here in the present case before us the respondent/complainant has himself led evidence relating to the same and so the case of  Tata Motors  Vs Deepak Goayl and Ors. (cited supra) will not help the case of the appellants.  Further appellants have also relied upon one judgment  of the Gujarat State Consumer Commission, in the case of Jagrut Nagrik and Anr. Vs. Dailmer Crysler India  Pvt. Ltd. and Anr. reported in III(2015) CPJ 109 (Guj.) , in that case  the complainant had failed  to  produce best  evidence  which was available  which is not the case in the present  case.  Further  appellants have also relied upon  one more judgment of the Hon’ble National Consumer Commission  in the case of Jivrajbhai Bhikhabhai Kakadia Vs. Mega Automobile Pvt. Ltd. & Anr., reported in II(2015) CPJ 715 (NC). In that case   warranty was lapsed and so the claim was not allowed.  However, the said judgment is also not applicable  to the facts of the  present  case.  Further the learned advocate for the appellant  has also relied upon  one judgment  of Hon’ble Bombay High Court in the case of Kishor  H. Desai Vs. Lilawati Virji Chheda and Ors., reported in 1990(1) BomCr 160.  We have carefully gone through these judgments  on which  reliance  has been placed  by the learned advocate for the appellants  but we find  that the same are not  applicable  to the fact  of the present  case.

11.       Lastly, the  appellants have  taken a plea that  the respondent /complainant  had not  purchased  the said  crusher  for  earning  his livelihood  for self  employment. According to the appellants the stone crusher plant cannot be run by single person but requires minimum staff of 6 to 7 persons to operate the plant. On the basis of this  fact alone  the  appellants have taken a vague  plea  that the respondent /complainant  had purchased  stone crusher  machine  for  commercial  purpose. We  are unable to  agree with this submission  as merely because  when the  person  is purchasing  the machine of such type  has Stone Crusher  Machine  and for that purpose  employees  4 to 5 persons, the same  will not be sufficient to draw inference  that the said  machine  was not purchased  for self employment. On the other hand, we are also of the view that the appellant Nos. 1&2 were under an obligation to provide necessary service to the complainant after having sold the machine for the huge sum. As such we do not find any error in the findings given by the learned District Consumer Commission, Yavatmal on all these aspects. In the light of the aforesaid  discussion, we are  unable to accept  the contention advanced  by the learned advocate for the appellants  that  the learned District Consumer Commission, Yavatmal  has given  findings which were  erroneous  in nature  or without  proper application of mind. As such we do not find any substance in the appeal and so we proceed to pass the following order.

ORDER

 i.         Appeal is hereby dismissed. 

ii.          Appellants to bear their own costs as well as costs of the respondent.

iii.         Copy of order be furnished to both the parties, free of cost.