Date of Filing : 07.03.2022
Date of Disposal: 12.05.2023
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
THIRUVALLUR
BEFORE TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law) .…. PRESIDENT
THIRU.P.VINODH KUMAR, B.Sc., B.L., .....MEMBER -I
THIRU.P.MURUGAN,.MCom., ICWA(Inter)., B.L., ....MEMBER-II
CC. No.14/2022
THIS FRIDAY, THE 12th DAY OF MAY 2023
Ms.S.Chitra,
No.2/186, 5th Cross Street,
Pulliline, Red Hills, Chennai 52. .........Complainant.
//Vs//
SS Creations,
No.2/2, Lakshmi Nagar East Extension,
Lakshmi Nagar Main Road,
Tiruppur, Tamil Nadu. ...Opposite party.
Counsel for the complainant : Party in person.
Counsel for the opposite party : Mr.K.Gowrishankar. Advocate.
This complaint is coming before us on various dates and finally on 17.04.2023 in the present of complainant who appeared in person and Mr.K.Gowrishankar counsel for the opposite party and upon perusing the documents and evidences of both sides, this Commission delivered the following:
ORDER
PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI, PRESIDENT.
This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service on the part of the opposite party with respect to the purchase of a JULI brand computerized embroidery machinery along with prayer to direct the opposite party to refund a sum of Rs.4,00,000/- cost of the machine and to pay a sum of Rs.10,000/- as compensation to the complainant along with cost.
Summary of facts culminating into complaint:-
The complainant had purchased a JULI Brand Computerized Embroidery Machine from the opposite party and paid the cost of machine Rs.3,90,000/- on 19.04.2021. The machine was installed on 23.04.2021. As the machine had to be shifted, the service Engineer demanded Rs.3,500/- for disassembling the head of the machine though the machine was in warranty. Thus the complainant after paying Rs.1,000/- to a local Engineer dismantled the head of the machine. After 15 to 20 days the machine started giving trouble and an error message popped up on the display. The complainant contacted the customer care but got a threat that the warranty has been vitiated as the machine was relocated without the opposite party‘s Service Engineer. The opposite party kept on threatening the complainant to pay Rs.2,000/-. The complainant was harassed and cheated by the opposite party. Thus aggrieved by the act of the opposite party the present complaint was filed to direct the opposite party to refund a sum of Rs.4,00,000/- the cost of the machine and to pay a sum of Rs.10,000/- as compensation to the complainant along with cost.
Crux of the defence put forth by the opposite party:-
The opposite party filed version disputing the complaint allegations contending interaila that the opposite party was the Sole Proprietor of M/s.SS Creations carrying on business in sales and service of JULI brand computerized embroidery machinery at Lakshmi Nagar East Extension, Tirupur. It was submitted that prior to the delivery of the machinery by the opposite party his engineers would clearly explain the terms and conditions of SS Creations and only after fully going through the terms and conditions the customers would sign in the invoices. The terms and conditions of opposite party were clearly mentioned behind the bill and the machinery would be delivered under one- year free warranty service and it was also to be mentioned that only experienced Service Engineers of SS creations would service the machinery during the warranty period and if any of the terms and condition are violated, the customers would not have the previlege of free warranty service. The complainant approached the opposite party in order to purchase the JULI branded computerized machinery on 25.02.2021 and the quotation for the same was also given to the complainant on the same date and the service engineers had clearly explained about the terms and condition of SS Creations. Having fully satisfied about the opposite party’s concern and agreeing to the terms and condition of SS Creations, the complainant purchased the JULI brand computerized machine from the opposite party on 19.04.2021. As per request of the complainant the machine was originally installed by the service engineers of the opposite party at No.1/1091, GNT Road, Padlyanallur, Red Hills, Chennai 600 052 and a demo for the same was also given to the complainant after the installation. The complainant utilized the same and had also booked online complaint on 22.06.2021, 07.07.2021 and on 17.07.2021. As all complaints were covered under the warranty period, the problems were resolved to the complainant free of cost. On 24.12.2021 the complainant booked online request to shift the machinery from No.1/1091, GNT Road, Padlyanallur, Red Hills, Chennai 600 052 to No.2/186, 5th Cross Street, Pulliline, Red Hills, Chennai. The opposite party had also agreed but wanted the complainant to bear the cost of shifting the machine from one place to another. When the complainant questioned regarding the cost of shifting, the opposite party had clearly explained that the warranty for the machine will cover only for the faults in the machine and it will not cover to shift the machine from one place to another. The complainant had shifted the machine after dismantling the same with the help of local engineers. It appears that the local service engineers could not fix the voltage in the machine and due to the wrong connection, the machine did not function. Hence the complainant again contacted the service engineers of the opposite party on 13.01.2022 to clarify regarding the voltage problem and the same was also explained to the complainant. The complainant again on 25.01.2022 booked online service request stating an error message was popping up on the display of the machine. The opposite party had also allotted and fixed the date to the engineers to service the machine and informed the complainant to bear the cost of the same stating the complainant had breached out the terms and conditions of the contract as such the warranty will not applicable for the same. The complainant herself had admitted in her legal notice that she had shifted the machine with the help of local engineer. Hence the service will not cover under warranty. The opposite party had also clearly explained that they are ready to service the machine provided the complainant bear the cost. The complainant had not chosen to produce the original invoice dated 19.04.2021 and thus they sought for the complaint to be dismissed.
On the side of complainant proof affidavit was filed and submitted documents marked as Ex.A1 to Ex.A44. on the side of opposite party proof affidavit was filed and submitted documents marked as Ex.B1 to Ex.B9 on their side.
Points for consideration:-
Whether the complaint allegations as to the act of deficiency in service committed by the opposite party with respect to the purchase and service of the product JULI brand computerized embroidery machinery was proved by the complainant successfully with by admissible evidence?
If so to what relief the complainant is entitled?
Point No.1:-
On the side of the complainant the following documents were filed in support of the complaint allegations;
Legal notice issued by the opposite party’s counsel to the complainant’s counsel dated 18.02.2022 was marked as Ex.A1;
Proforma Invoice of the opposite party dated 25.02.2021 was marked as Ex.A2;
Tax Invoice issued by the opposite party in the name of complainant dated 19.04.2021 was marked as Ex.3;
Installation bill issued by the opposite party dated 23.04.2021 was marked as Ex.A4
Booking payment receipts issued by the opposite party was marked as Ex.A5 to Ex.A8;
Complaint against the Ramesh Engineer 12.02.2022 was marked as Ex.A9;
Warranty card for Servo Stabilizer was marked as Ex.A10;
Delivery Challan of Stitchcare controls private limited dated 03.03.2022 & 10.06.2022 was marked as Ex.A11 & Ex.A12;
Photograph of control Box was marked as Ex.A13;
Professional courier bills were marked as Ex.A14 to Ex.A17;
Chinese warranty card was marked as Ex.A18;
Juli brand machine back side plug photo was marked as Ex.A19;
Letter issued by the complainant to the opposite party regarding the misguidance to purchase a servo voltage stabilizer was marked as Ex.20;
Tract consignment for proof of delivery was marked as Ex.A21;
Legal notice issued by the complainant dated 02.09.2022 was marked as Ex.22;
Rejoinder notice issued by the complainant dated 16.03.2022 was marked as Ex.A23;
Rejoinder from opposite party dated 05.04.2022 was marked as Ex.A24;
Delivery note issued by the opposite party dated 19.04.2021 was marked as Ex.25;
NCH complaint details was marked as Ex.A26;
Photo was marked as Ex.27;
Whatsapp screen shot was marked as Ex.28;
Delivery note issued by the opposite party dated28.06.2021 was marked as Ex.29;
E-way bill was marked as Ex.30;
Pen Drive was marked as Ex.A31;
Pen Drive details was marked as Ex.32;
Whatsapp screen shot was marked as Ex.33;
Machine front side and Back side was marked as Ex.A34 & 35;
Rusted machine external shaft was marked as Ex.36;
Whatsapp screen shot was marked as Ex.37;
Servo stabilizer back side with serial number was marked as Ex.38;
Mictrotek stabilizer bill copy was marked as Ex.39;
Whatsapp screen shot was marked as marked as Ex.40;
Complainant’s shop bill copy was marked as Ex.41;
Tirupur Court summon was marked as Ex.42;
Screen shots was marked as Ex.A43 & 44;
On the side of opposite party the following documents were submitted in proof of thier defence;
Photo copy of Juli brand computerized machine was marked as Ex.B1;
Copy of photo of July Brand Computer Embroidery machine model, serial number and date plate fixed in the machine was marked as Ex.B2;
Petitioners message to the respondent regarding the power problem was marked as Ex.B3;
Letter issued by Zhejiand Sheli Mechanical & Electrical Company limited was marked as Ex.B4;
Stitch care controls private limited company’s Proforma invoice copy was marked as Ex.B5;
Dahao Office enquiry details regarding the petitioner’s machine was marked as Ex.B6;
Reviews posted by the complainant against the opposite party was marked as Ex.b7;
Tax invoice issued by the opposite party with warranty terms and conditions was marked as Ex.B8;
Affidavit of opposite party was marked as Ex.A9;
Heard both party in person and the learned counsel appearing for the opposite party.
The sum and substance of the arguments of the party in person is that she had purchased JULI brand computerized embroidery machinery from the opposite party for a sum of Rs.3,90,000/- on 19.04.2021 and when she wanted to shift the machine, the opposite party’s engineer demanded a huge sum though the machine was within the warranty and hence she shifted the same with the help of local engineers. Within 10 to 20 days the machine got repaired and when the opposite party was contacted they refused to attend the same. Thus the complaint was filed for refund of the sale price along with compensation.
On the other hand, the opposite party argued that though the product was under warranty, the complainant being aware of the terms and conditions shifted the machine without their engineers which amounted to acting against the terms and conditions and hence they were not liable for the errors in the machine.
The factum of purchase of the machine and shifting of the same was admitted by both parties. The only question to be decided is that whether the complainant was made aware of the terms and conditions and that by shifting the machine without the help of the opposite party’s Engineer amounts to waiver of the warranty given by the opposite party at the time of the purchase to the product.
The complainant had not produced the original invoice is one of the defence raised by the opposite party. However, it is alleged by the complainant that she was not provided with the original invoice at the time of purchase of the product. An interim application was also filed by the opposite party for production of the original invoice before this commission and the same was allowed however the original invoice produced as Ex.B8 belongs to one Vijayalakshmi and not the complainant. When it is the specific case of the complainant that she was not provided with the original invoice and that she was not aware of the terms and conditions it is the duty of the opposite party to produce at least the carbon copy of the original invoice issued to the complainant. But no such document was produced by the opposite party. In such facts and circumstances we are of the view that the allegations of the complainant that she was not provided with the original invoice with the terms and conditions gains significance and has to be accepted. Further though it is stated by the opposite party that even before the purchase of the produce the complainant was clearly explained about the terms and conditions and working of the machine, no evidence was produced by them for the same. No terms and conditions was found even in the profoma invoice/quotation which was supplied to the complainant.
With regard to the defects in the machine the opposite party himself admits in their written version that after the installation of the product online complaints dated 22.06.2021, 07.07.2021 and 17.07.2021 was filed by the complainant which were duly attended by them. This leads to the inference that the machine supplied to the complainant has some errors/ defects. Hence when the complainant alleges manufacturing defects in the product supplied to her, the alleged earlier defects in the machine has to be taken into consideration. Thus we are of the view that merely shifting of the machine as such would not have resulted in the present error/repair.
Thus, on appreciation of the entire pleadings and materials this commission could conclude that the opposite party had committed deficiency in service in not providing the terms and conditions to the complainant before and at the time of purchase of the product enabling her to take a decision on the aspect of purchase of the product. Further the defect of the product was also not proved to have occurred only due to the shifting of the machine by the opposite party. In the said facts and circumstances we answer the point hold that the opposite party had committed deficiency in service as alleged by the complainant with respect to purchase and service the product.
Point No.2:-
As we have held above that the opposite party had committed deficiency in service we direct the opposite party to rectify the defect in the machine without demanding any extra cost within six weeks from the date of receipt of copy of this order. Further we direct the opposite party to pay a sum of Rs.25,000/- towards compensation for the mental agony and hardship caused to the complainant. We also award Rs.5,000/- towards cost of the proceedings to the complainant.
In the result, the complaint is partly allowed against opposite party directing them;
a) To rectify the defect in the machine without any extra cost within six weeks from the date of receipt of copy of this order;
b) To pay a sum of Rs.25,000/- (Rupees twenty five thousand only) towards compensation for the mental agony and hardship caused to the complainant;
c) To pay a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses to the complainant.
Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 12th day of May 2023.
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MEMBER-II MEMBER-I PRESIDENT
List of document filed by the complainant:-
Ex.A1 Legal notice issued by the opposite party’s counsel to the complainant’s counsel. Xerox
Ex.A2 Proforma Invoice of the opposite party. Xerox
Ex.A3 Tax Invoice issued by the opposite party in the name of complainant. Xerox
Ex.A4 Installation bill issued by the opposite party. Xerox
Ex.A5 Booking payment receipt. Xerox
Ex.A6 Booking payment receipt. Xerox
Ex.A7 Booking payment receipt. Xerox
Ex.A8 Booking payment receipt. Xerox
Ex.A9 Complaint against the Ramesh Engineer. Xerox
Ex.A10 Warranty card for Servo Stabilizer. Xerox
Ex.A11 Delivery Challan of Stitchcare controls private limited. Xerox
Ex.A12 Delivery Challan of Stitchcare controls private limited. Xerox
Ex.A13 Photograph of control Box. Xerox
Ex.A14 Professional courier bill. Xerox
Ex.A15 Professional courier bill. Xerox
Ex.A16 Professional courier bill. Xerox
Ex.A17 Professional courier bill. Xerox
Ex.A18 Chinese warranty card. Xerox
Ex.A19 Juli brand machine back side plug photo. Xerox
Ex.20 Letter issued by the complainant to the opposite party regarding the misguidance to purchase a servo voltage stabilizer. Xerox
Ex.A21 Tract consignment for proof of delivery. Xerox
Ex.A22 Legal notice issued by the complainant. Xerox
Ex.A23 Rejoinder notice issued by the complainant. Xerox
Ex.A24 Rejoinder from opposite party. Xerox
Ex.A25 Delivery note issued by the opposite party. Xerox
Ex.A26 NCH complaint details. Xerox
Ex.A27 photo Xerox
Ex.28 Whatsapp screen shot. Xerox
Ex.A29 Delivery note issued by the opposite party. Xerox
Ex.A30 e-way bill Xerox
Ex.A31 Pen Drive. Xerox
Ex.A32 Pen Drive Details. Xerox
Ex.A33 Whatsapp screen shot. Xerox
Ex.A34 Machine front side. Xerox
Ex.A35 Machine Back side. Xerox
Ex.A36 Rusted machine external shaft. Xerox
Ex.A37 Whatsapp screen shot. Xerox
Ex.A38 Servo stabilizer back side with serial number. Xerox
Ex.A39 Mictrotek stabilizer bill copy. Xerox
Ex.A40 Whatsapp screen shot. Xerox
Ex.A41 Complainant’s shop bill copy. Xerox
Ex.A42 Tirupur Court summon. Xerox
Ex.A43 Copy of Screen shot. Xerox
Ex.A44 Copy of screen shot. Xerox
List of documents filed by the opposite party:-
Ex.B1 …………….. Photo copy of Juli brand computerized machine. Xerox
Ex.B2 …………….. Copy of photo of July Brand Computer Embroidery machine model, serial number and date plate fixed in the machine. Xerox
Ex.B3 …………….. Petitioners message to the respondent regarding the power problem. Xerox
Ex.B4 ……………. Letter issued by Zhejiand Sheli Mechanical & Electrical Company limited. Xerox
Ex.B5 ……………… Stitch care controls private limited company’s Proforma invoice copy. Xerox
Ex.B6 ……………… Dahao Office enquiry details regarding the petitioner’s machine. Xerox
Ex.B7 ……………… Reviews posted by the complainant against the opposite party. Xerox
Ex.B8 ……………. Tax invoice issued by the opposite party with warranty terms and conditions Xerox
Ex.B9 …………… Affidavit of opposite party. Xerox
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MEMBER-II MEMBER-I PRESIDENT
