Full Judgment
SMT. A. RADHA : MEMBER
Dissatisfied by the order of dismissal passed by the CDRF, Ernakulam in C.C. 451/05 the complainant /appellant came up in this appeal.
2. The complainant purchased a pappad manufacturing unit at a price of 5,54,000/- availing a loan from Canara Bank. It is the case of the complainant that the machinery supplied was of inferior quality and defective. The motor supplied was not as per the specification and supplied 3.75HP motor. It is also alleged that the machines were not working properly and were not semi automatic and without any cooler. It is also the allegation that the complainant was charged extra 40% for the machine as against the prevailing market rate and huge bill was issued to him. By delivering inferior quality and defective machine to the complainant the opposite party committed unfair trade practice and deficiency in service. The act of the opposite parties caused loss and damages and hence filed complaint before the Forum below praying for Rs. 5,54,000/- with 12% interest. He also claimed damages for Rs. 50,000/- , cost of Rs.2,500/- and Rs.2,000/-per month claimed for the rent of the room where the machine installed.
3. The opposite party filed version contending that the complaint is not maintainable as the complainant is not a consumer under the Consumer Protection Act. It is also stated that the complaint is bad for non joinder of necessary parties. The opposite parties are not the manufacturer of the machine. They are only the dealers. It is also contended that the manufacturer is to be impleaded for proper adjudication of the case. There is no deficiency in service or any negligence on the part of the opposite parties as they are only the dealers. It is admitted that the appellant approached the opposite party for purchase of machinery and agreed as per the quotation for Rs. 5,54,000/- The opposite parties delivered a brand new pappad flour mixing machine with two standard accessories and electrical motor, one brand new semi automatic pappadam making machine with electric motor and cutting die and thread Roll and one brand new pappadam Dryer with electric motor and conveyer belt as per invoice No 052 dtd. 19.11.2004 and the receipts were also acknowledged by the husband of the complainant. The bill amount was Rs.4,46,697.10 and thereafter the complainant placed orders for 2 numbers unit text dol Motor starter etc which were supplied as per invoice bill No. 306. The opposite parties issued bill for the supplied items only. The machines were of good quality and brand new ones. The complainant placed the orders on piece meal and each and every order were complied in time. No deficiency in service or wilful negligence can be attributed on the part of the opposite parties. The opposite parties denied the liability for the payment of the rent for the premises or any loss incurred for the machinery. The opposite parties provided the machinery as per the order placed by the complainant and they are merely dealers of JAS Enterprises, Ahamadabad.
4. The complainant sought for expert commission to inspect and report the defects in the machinery and to quantify the damages caused to the machinery. As per the Commission report the machinery was found in a dismantled condition kept near the premises of another building. Since the complainant had vacated her industrial building the machinery was covered by plastic sheet to protect from sun and rain. It is reported that most of the parts used in the machinery were of poor quality. It is also stated in the report that the flour mixing machine was made out with low quality stainless steel. The electric motors were not branded items and of different types. The conveyor clothes were also damaged. The motor fixed in the flour mixing unit was seen in stucked condition. It is also found by the commissioner that the defects cannot be rectified with the normal repairs. The objection filed against the commissioner report was that his report was not based on any test or authoritative data. It was also stated that the machine was lying in the neighbouring compound in a dismandled state exposed to weather in the open yard without any proper security. The Commissioner also not reported the grade of the stainless steel and he ought to have reported regarding the long exposure of machinery to weather which caused the painting of the body withered giving the machine a coronal appearance. In the objection, it is stated that the body and frames of the machine were manufactured with high grade steel.
5. Evidence consisted of the oral testimony of the expert commissioner as DW1 and the second opposite party as Dw2 Exts. marked on the side of the complainant as Ext. A1 and A2 and on the side of the opposite party marked Exts. B1 to B7. The Forum came to the conclusion that the machinery was supplied by the second opposite party in December, 2004 and the complaint was filed in 2005. The expert commissioner visited the place on 14.9.2010 and filed the report on 20.9.2010. By that time the condition of the machinery certainly deteriorated and the Forum came to the conclusion that the complaint does not deserve any merit and the liability cannot be fastened on the opposite parties for highly belated complaint.
6. Aggrieved by the order the appellant/complainant came up in this appeal. The counsel for the appellant submitted that the complainant purchased the machine for her livelihood under self employment scheme, she took a loan from the bank and the machinery was installed in a rented building. Due to the defects in the machinery she could not repay the loan nor she could earn her livelihood from the income out of the machinery, The grievance highlighted by the counsel was also to the effect that she is a sick and poor lady who solely depended on this unit for her livelihood. It is also argued that the machinery was of poor quality and cost of the machinery was very high compared to the market value of similar machinery. The respondents took advantage by selling defective machinery which amounted to unfair trade practice and it is to be compensated. He also submitted that as the machinery was not in a position to carryout the repairs locally, the machines had to be kept in a dismantled condition. It is also submitted that the appellant/ complainant was not in a position even to let out a building to house the machinery. He also pointed out that the appellant purchased the machinery from the respondents and she is liable to be compensated for the loss caused to the appellant/ complainant.
7. The counsel for the respondent submitted that the complaint is bad for non joinder of necessary party. It is also stated in the version that the machinery was manufactured by JAS Enterprises, 60, SHREENETAJI Estate, PANNA ESTATE ROAD, RAKHIAL, Ahamadabad. Even after filing the version, the complainant was reluctant to implead the manufacturer in the party array. The second opposite party is only a dealer of the above mentioned manufacturer. The counsel also submitted that the appellant was using the machinery for commercial purpose and the machinery was operated by engaging people from outside . It was a brand new item and of good quality. He also pointed out that the machinery was purchased in 2004 and no defect was reported to the opposite parties. There occurred inordinate delay to depute expert commissioner for inspection of the machinery. The inspection took place only in 2009. From the report of the expert commissioner, it is very clear that the machinery was exposed to weather and it was lying in an open space and exposed to sun and rain and that aggravated the dilapidated condition of the machinery. Further contention raised by the counsel for the respondent is that the appellant had not opted to implead the manufacturer and he cannot get over the fact of non joinder of necessary party which is fatal to the complaint while alleging manufacturing defects. The defect is to be satisfactorily established and for manufacturing defects in the product, it is the liability of the manufacturer and for that the dealer could not be held liable. He placed his reliance in the case of Ramashankar Yadav Vs JP Associate Ltd. 1( 2012) CPJ 110 NC. He also argued that the Commissioner had not taken any machinery to assess the quality of steel used in the machinery also. He also had not ascertained or produced in evidence the cost of the machinery. The report of the expert commissioner was objected and argued that it cannot be taken in to account.
8. Heard both sides in detail and gone through the evidence and documents on record.
9. This Commission find that the machinery was purchased in 2004. The complainant was not diligent in conducting the case and it is after a long lapse of time the expert commissioner was appointed to examine the defects of the machinery. It is not possible to assess the defect in any machinery which is in a dismandled position. No material is produced by the complainant to establish that the cost of the machinery is high and it is also evident that the machinery was brought on piece- meal basis. Further the contention that the machinery unit was not functioning for commercial purpose was not established properly. Moreover, while alleging manufacturing defect the manufacturer is to be impleaded in the party array. Here, even after filing the version, giving the details of the manufacturer the complainant was not diligent to implead the manufacturer. In the facts and circumstances of the case, the finding of the Forum is absolutely right and does not require any interference of this Commission and uphold the order of the Forum below.
In the result, the appeal is dismissed.