State Consumer Disputes Redressal Commission
M/S. Deeti Agencies ,No.25, Sivaram ... vs M/S. Sabana Packaging ... on 12 August, 2010
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Tmt. Vasugi Ramanan, M.A.,B.L., MEMBER I Thiru S. Sambandam, B.Sc., MEMBER II F.A.NO.383/2006 (Against order in O.P.NO.330/2004 on the file of the DCDRF, Chennai (North) DATED THIS THE 12th DAY OF AUGUST 2010 M/s. Deeti Agencies Rep. by its Proprietrix No.25, Sivaram Sastri Street Chennai 600 003 Appellant / Complainant Vs. 1.
M/s. Sabana Packaging Systems No.25, Kamaraj Nagar First Street Korattur, Padi Chennai 600 080
2. M/s. Smart Paper and Stationery Stores 22, Anderson Street Chennai -600 001 Respondent / Opposite parties The Appellant as complainant filed a complaint before the District Forum against the Respondents / opposite parties praying for the direction to the opposite parties to replace the vacuum packaging machine or to pay Rs.70000/- with 24% interest, alongwith compensation of Rs.3 lakhs and cost. The District Forum dismissed the complaint. Against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.27.1.2006 in O.P.No.330/2004.
This appeal coming before us for hearing finally on 5.8.2010. Upon hearing the arguments of the counsels on either side, this commission made the following order:
Counsel for the Appellants/ Complainant: M/s. G.R. Associates, Advocate Counsel for the 1st Respondent/ Opposite party: Mr.R. Munusamy, Advocate 2nd Respondent called absent M. THANIKACHALAM J, PRESIDENT
1. The unsuccessful complainant, is the appellant.
2. The complainant being a trader in dry fruits, had purchased a vacuum packaging machine, manufactured by the 1st opposite party, from its dealer, the 2nd opposite party, for a sum of Rs.70000/-, for the purpose of packing the dry fruits. From the date of installation of the machine, it was not performing well, due to manufacturing defect, and the dry fruits packed by the machine, decayed.
Therefore, the complainant requested the 2nd opposite party to rectify the mistake, or replace the defective machinery, for which though there was promise, not put into action. Issuance of lawyers notice also, requesting the opposite parties, to replace or repair the defective machinery, failed to yield any positive result. By the supply of defective machine, the petitioner has undergone loss, amounting to Rs.3 lakhs, which the opposite parties are liable to pay as compensation.
Hence the complainant is constrained to file a case, for replacement of the machine purchased, or in the alternative for the recovery of a sum of Rs.70000/-, in addition to a sum of Rs.3 lakhs, by way of compensation.
3. The 1st opposite party admitting the sale of the machine, would contend, that till the warranty period, they have periodically serviced the machinery, and the same was in good condition, functioning without any defects.
In the month of November 2003, the complainant approached this opposite party to help for the sale of the machine, for which they have also agreed, not materialized, and thereafter alone a false notice has been issued, for which proper reply has been given. The complainant is not a consumer, and as such the petition itself is not maintainable, praying for the dismissal of the complaint, denying further averments also.
4. Based upon the pleadings, supported by affidavits, as well as certain documents, while assessing the materials, the District Forum has come to the conclusion, that the complainant failed to prove the defects in the machine, and that there was no deficiency of any kind, on the part of the opposite parties. In this view, unable to concede the prayer of the complainant, petition came to be dismissed on 27.1.2006, which is under challenge.
5. The learned counsel for the appellant/ complainant would contend, that the District Forum has failed to note about the defect in the machine, which was proved, resulting injustice, by dismissing the complaint, which should be redressed, by this commission, which was opposed.
6. Admittedly, in the month of December 2002, complainant had purchased a vacuum packaging machine, from the 2nd opposite party, who is the dealer of the manufacturer viz. the 1st opposite party. It is the specific case of the complainant, that even from the date of installation, the machine was not performing well, due to manufacturing defect. The alleged manufacturing defect, and non-functioning of the machine, as alleged in the complaint, are stoutly denied, in fact further informing, that the machine was functioning perfectly alright, and the same was also periodically serviced by the 1st opposite party, during the period of warranty. Under the said circumstances, it is for the complainant to make out a case of manufacturing defect, in order to get an order for replacement of the machine, or its value, as the case may be.
7. Sec.2(1)(f) defines the defect. If the defects alleged or complained, is not feasible and it requires investigation, Sec.13(1)( c) makes provision, how it should be unearthed or brought to surface.
Under Sec.13(1)( c) it is said Where the complaint alleges a defect in the goods, which cannot be determined without proper analysis, or test of the goods, what are the procedure to be followed, such as getting expert opinion.
In this case, even in the pleadings, we have no specific averments, informing what was the manufacturing defect, in the vacuum packaging machine. Mere general allegation of the defect, cannot be taken as defect, that too coming within the meaning of manufacturing defect. From the documents filed on behalf of the complainant also, it is not known, what were the defects available in the machine, since the machine was not inspected by anybody, even including the 1st opposite party, who claims that he had serviced the machine also. If really, the machine had not functioned well, from the inception, certainly the complainant would not have waited till the year 2004, without taking any positive steps, to rectify the defects or taking any action, against the manufacturer and supplier. As said above, the machine was purchased on 20.12.2002. The legal notice, complaining deficiency or defect in the machine, emanated from the complainant, only on 3.2.2004, as seen from Ex.A2, and on 16.3.2004, as seen from Ex.A3. The inaction, for such a long period, and absence of any materials, would go to show that there might not have been any manufacturing defect in the machine, supplied by the opposite parties, and that is why the complainant was silent, which should be presumed in this case. Therefore, as rightly recorded by the District Forum, and as urged by the learned counsel for respondent, we are of the considered opinion, that the complainant miserably failed to prove the alleged defect in the machine, and in this view, the question of deficiency in service also will not come to surface, thereby we do not find any legal error in the dismissal of the complaint.
8. It is the submission of the learned counsel for respondent, that the complainant is not a consumer, and as such the case filed before the Fora is not maintainable, which submission should be accepted. The complainant being a trader, dealing in dry fruits, for which purpose of business, packing the same, they have purchased the vacuum packaging machine, not in dispute. It is only a commercial transaction. No where it is said that they have purchased the machine for self employment, and the business was carried out for their livelihood, or something like that, as per the explanation appended to the definition of the consumer.
9. The Act, while defining the consumer, exclude the purchase of the goods, for any commercial purpose. As per the pleadings, the complainant had purchased the vacuum packaging machine, for commercial purpose. Therefore, the defect if any, even assuming, not rectified, the same will not come within the meaning of deficiency in service, as contemplated under the Consumer Protection Act, and if at all the complainant ought to have approached the civil forum for proper remedy, whereas he has chosen a wrong forum, and that is why, his case has been dismissed correctly, in which we are unable to find any error, either on facts or on law. Hence the appeal is devoid of merits, and is liable to be dismissed.
10. In the result, the appeal is dismissed, confirming the order of the District Forum in O.P.No.330/2004 dt.27.1.2006. Considering the facts and circumstances of the case, there will be no order as to cost in this appeal.
S.SAMBANDAM VASUGI RAMANAN M. THANIKACHALAM MEMBER II MEMBER I PRESIDENT INDEX : YES / NO Rsh/d/mtj/FB/Miscellaneous