State Consumer Disputes Redressal Commission
Vijayaben J Javiya vs Trimos Metrology Ind Pvt Ltd. on 6 July, 2022
Details DD MM YY
Date of Judgment 05 07 2022
Date of filing 18 06 2012
Duration 17 00 10
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION,
GUJARAT STATE AT AHMEDABAD.
Consumer Complaint No. 29/2012
Court No.4
Vijyaben Jayantibhai Javiya
Mother of late Hirenbhai Jayantibhai Javiya,
Proprietor of S.K. Solution
1, Amarnagar Street No.3,
Mavdi Main Road, Rajkot. ...Complainant
Vs.
1. Trimos Metrology (I) Pvt. Ltd.
205/207 Hamilton "A" Wing
Hiranandani Business Park,
Ghodbunder Road, Patlipada,]
Thane, Mumbai.
2. Creaform India
124, Lower Ground Floor, Pocket-2,
Jasola, New Delhi. ...Opponents
Appearance: Learned Advocate Mr. R. V. Sakaria, for the complainant
Learned Advocate Mr. Janak Rajpurohit, for the opponent
No. 1 and opponent No. 2 absent
Coram: Mr. I. D. Patel, Judicial Member
Dr. J. G. Mecwan, Member Order by Mr. I. D. Patel, Judicial Member
1. The present Consumer complaint has been filed under section u/s. 17 (A) (i) of the Consumer Protection Act, 1986 (For short "The Act") by Vijyaben Jayantibhai Javiya, Proprietor of S. K. Solution against the opponent No.1 Trimos Metrology (I) Pvt. Ltd. and opponent No.2 K.S.P CC-12-29 Page 1 of 20 Creaform India seeking relief as prayed for in para-8 of the complaint Viz. (1) To direct the opponents to pay jointly and severely Rs. 23,95,472.15/- with 18% annual interest from the date of invoice (2) To direct the opponents to pay Rs. 5,00,000/- for agony suffered by the complainant on premature death of her son because of opponents only (3) To direct the opponents to pay Rs. 1,00,000/- for mental and physical harassment and (4) To direct the opponents to pay Rs. 25,000/- for the costs of this complaint.
2. The conspectus part of the materials facts giving birth to the present compliant may shortly be narrated at the outset so as to appreciate the merit of the compliant and challenged against it. That as per the case of the complainant the complainant is a mother of late Hirenbhai Jayantibhai Javiya, proprietor of S. K. Solution and Mr. Hiren the son of the complainant had purchased from opponent SYS H3D EXA EXAscan Laser Scanner machine from opponent No.1 Trimos Metrology (I) Pvt. Ltd. vide invoice No. 12376 dated 3 March, 2010 for Rs. 23,95,472.15/-. It is further the case of the complainant that the opponent No.1 is a authorized dealer and distributor of products manufactured by opponent No.2. The opponent No.2 is a local office of Canada base Company manufacturing laser scanner. Further it is a case of the complainant that Mr. Hiren the son of the complainant had purchased the said machine relying on the promise of opponent No.1 and trusting him about the quality assured complainant son and finalized the order of purchasing the instrument through opponent No.1 as he was a dealer of the manufacturer of M/s. Creaform India. It is further the case of the complainant that on receiving the scanner from opponent No.1 the son the complainant deceased Hiren installed a various device and software program as per the manual supplied by the manufacturer i.e. opponent No.2. however, he could not get desire result and accuracy as promise by opponent No.1. It is further the case of the complainant that since beginning complainant's son encountered with problem of running a scanner for the purpose it was bought. The first problem among the others was incompatible card. Then after problem persisted continue one K.S.P CC-12-29 Page 2 of 20 after another. And for all the time opponents offered temporary solution but did not care to get it run for longer time with satisfactory accurate result and performance so that he could earn and pay at least installment of his loan.
3. It is further the case of the complainant that every time complainant's son Mr. Hiren contacted opponent 1 and 2 over email narrating problem he encountered but opponent did not offer him a permanent solution and ultimately because of the depression & stress the complainant's son Hiren died on 20.10.2010. It is further the case of the complainant that after the sad demise of Mr. Hiren, the complainant tried to run the machine with the help of her relative Mr. Dipesh Karawadiya but he too could not run the scanner machine effectively. So as per the case of the complainant the problem of machine persisted and continue till 15 November, 2011. And ultimately the machine was handed to opponent no.1 for removing the defects but till date opponent No.1 has not return the said machine to the present complainant and therefore the complainant is constrained to file the present complaint against the opponent since the both the opponents have supplied manufacturing defective machine to the complainant son and both of them have failed to return the machine to the complainant and that amount of deficiency in service on the part of the opponents and unfair trade practice adopted by both the opponents and therefore the present complaint is filed by the complainant against the opponents and prayed for the relief as mentioned in para-8 of the complaint.
4. The opponent No.1 has been dully served with the notice of the complaint and Learned Advocate Mr. Janak Purohit has appeared on behalf of the opponent No.1. The notice of the opponent No.2 is also served but did not remain present before the Commission and therefore complaint is ordered to be heard ex-parte against the opponent No.2.
5. That the opponent No.1 has filed written statement whereby the opponent No.1 has denied all the allegations of the complainant stated K.S.P CC-12-29 Page 3 of 20 by the complainant in her complaint. More particularly the opponent has specifically denied that there was manufacturing defect in the machine in question provided by the opponent No.1 to the complainant. Furthermore the opponent No.1 has also raised contention that the present complainant has no locus to file the complaint as she is not the primary purchaser of the scanner in question. Furthermore opponent no.1 has also contended in their written statement that the complainant's son Hiren had purchased the scanner machine for commercial purpose and as per the definition of "Consumer" as provided in Section 2 sub Section (1) Clause (d) of Consumer Protection Act, 1986 the present complainant is not the "Consumer" and therefore she has no legal and valid right to file this complaint against the opponent, and accordingly the present complaint is liable to be dismissed against the opponent. Furthermore the opponent has also contended in their return statement that opponents are not responsible for mishandling, malfunctioning or irresponsible working of the concerned people of S. K. Solution and therefore the opponent No.1 has prayed for the dismissal of the complaint filed by the complainant.
6. That a complainant in support of their complaint produced the following documentary evidence:
Sr. Description of Document Page No. Mark
No.
1 Quotation of HandyScan Make Model 10-12 1
EXAscan dated 07.01.2010.
2 Pamphlet of sale 13-14 2
3 Copy of Cheques 15 3
4 Copy of Receipt dated 05.02.2010 16 4
5 Copy of Tax Invoice Cum Chalan 17-18 5
6 Copy of complainant's letter dated 19 6
09.04.2010 on opponents complaining the
K.S.P CC-12-29 Page 4 of 20
problem he faced.
7 Copy of Set of Email exchanged between 20-82 7
complainant and opponents
8 Copy of Death Certificate 83 8
9 Copy of Letter dated 18.02.2012 from 84-85 9
Opponent-2 to Opponent-1 and a copy to
complainant
10 Copy of Legal Notice 86-89 10
11 Copy of Birth Certificate of late Mr. Hiren 11
Javiya
12 Copy of Ration Card of complainant's family 12
13 Copy of Consent letter issued by present 13
complainant for using premises for business
14 Copy of certificate issued by VAT authority 14
15 Copy of IT return of Late Mr. Hiren Javiya 15
16 Copy of Mark Sheet of Late Mr. Hiren Javiya 16
17 Copy of IT return of Mrs. Vijyaben Javiya 17
18 Copy of Certificate issued by RMC 18
19 Copy of term loan sanction letter issued by 19
Central Bank of India
20 Copy of IT return of Mr. Ashok J. Javiya 20
21 Copy of Certificates issued by DIC Rajkot 21
22 Copy of Application form filed before DIC 22
Rajkot
23 Copy of Service Quotation given by opponent- 23
1
24 Copy of set of email communication 24
exchanged between opponent-1 & opponent-2
25 Copy of set of email communication 25
exchanged between opponents and the
complainant firm.
7. That the complainant has also filed her rejoinder affidavit and affidavits of Mr. Dipesh Rameshchandra Karavadiya and Mr. Sachin K.S.P CC-12-29 Page 5 of 20 Chindarkar whereas on behalf of the opponent No.1 affidavit of Mr. Sachin Chindarkar is filed.
8. Argument of ld. Advocate of the complainant:
Ld. Advocate Mr. R. V. Sakaria for the complainant and Ld. Advocate Mr. Janak Purohit for the opponent No.1 have submitted their written submission/written argument in this matter. That over and above both of them has also made oral submission in support of their respective cases.
9. That the Ld. Ad. Mr. R. V. Sakaria has submitted that the complainant son late Hiren have purchased SYS-H3D-EXA EXAscan Laser Scanner Machine from the opponent No.1 in Rs. 23,95,472.15/- vide tax invoice dated 3 March, 2010 and the opponent No.1 is the authorized dealer and distributor of the products manufacturer by the opponent No.2 manufacturing company. Furthermore Ld. Ad. Mr. Sakaria has submitted that the complainant's son Hiren had purchased the said machine relying on the sale pamphlet provided by the opponent No.1 regarding high quality performance of the machine. Further more Ld. Ad. Mr. Sakaria has submitted that the complainant son Hiren had purchased the new brand scanner machine from the opponent No.1 for his self-employment to financial assistance from bank and therefore the opponent No.1 and 2 were legally duty bound to suppy him a scanner machine in proper working condition meeting with all technical specification and function that opponents had promised him while canvassing purchased order from him. Ld. Ad. Mr. Sakaria has also submitted that his beginning the complainant son encounter with problem of running a scanner for the purpose it was bought and the first problem above the other words incompatible card thereafter problem consisted continue one after another. For all the times opponent offer temporary solution but did not care to get it run for longer time with satisfactory accurate reason and performance so that he could earn and run his business.
K.S.P CC-12-29 Page 6 of 2010. Ld. Ad. Mr. Sakaria has also submitted that the complainant has also filed rejoinder affidavit against the written statement filed by the opponent No.1 wherein also she has reiterated all the facts stated in the complaint and more particularly manufacturing defects on problem arise in the scanner machine from the beginning provided by the opponent No.1. Furthermore Ld. Ad. Mr. Sakaria submitted that after the demise of Mr. Hiren the complainant tried to run the machine with the help of her relative Mr. Dipesh Karavadiya but he could not run the scanner machine effectively and therefore thereafter as per the affidavit filed by Dipesh Rameshchandra Karavadiya produced at page-153. The machine is handed over to opponent No.1 for removal of the manufacturing defects and as per the said affidavit of Mr. Dipesh Karavadiya, ultimately opponent No.1 it was Trimos Metrology (I) Pvt. Ltd. had decided to send the machine at manufacturers at Canada and accordingly the machine was handed over to Mr. Sachin Chindarkar, the employee of the opponent No.1 at Mumbai by Dipesh Rameshchandra Karavadiya.
11. Ld. Ad. Mr. Sakaria has also drawn the attention towards the various Email exchange between decease Hiren and opponent No.1 employee Mr. Sachin Chindarkar and with the opponent No.2 produced by the complainant in this matter and submitted that as per the said Email also the complainant has successfully prove that there was manufacturing defect from the beginning in the machine delivered or provided by the opponent No.1 to the complainant's son. Furthermore Ld. Ad. Mr. Sakaria has also submitted that in order to prove the manufacturing defect in this said machine of the complainant provided by the opponent No.1, Mr. Sachin the employee of the opponent No.1 who was IT and computer professional working with the opponent No.1 dealer has filed an affidavit dated 10 July, 2017 produced at page-157 to 159 by the compliant. Wherein he has categorically stated that he had exchanged Email with late Mr. Hiren and other concerned person the supplier and manufacturer regarding the problems and difficulties faced by late Mr. Hiren and he has also stated in the said affidavit that despite of good number of Email exchanged with Creaform India and number of efforts K.S.P CC-12-29 Page 7 of 20 made to set right the machine to perform its targeted job of reverse engineering and wire cutting the machine could not be brought to work for targeted job. And ultimately opponent No.1 had decided to send the machine to its manufacturer at Canada. So as per the submission of Mr. Sakaria the affidavit filed by the IT and computer professional opponent No.1 Mr. Sachin Chindarkar has also categorically prove that the opponent No.1 had supplied manufacturing defective machine to the opponent No.1 against the assurance given by the opponent No.1 in their sale pamphlet.
12. Ld. Ad. Mr. Sakaria also submitted that the said Mr. Sachin Chindarkar has also filed another affidavit dated 19.02.2022 wherein has stated that problem occurred in the machine probably or account of mishandling of the product by the person the complainant and product met with all the expectation and requirement of the complainant. But the said Sachin Chindarkar have not stated the above facts in his affidavit filed on 10 July, 2017 and said facts are also not mentioned in the various Email exchanged by Mr. Sachin with late Mr. Hiren and opponent No.2 manufacturing company. And therefore as per the submission of Mr. Sakaria the second affidavit filed by Mr. Sachin Chindarkar cannot be accepted. So in sub and substance of the submission of the Mr. Sakaria is that the opponent No.1 has provided defective machine from the beginning to the complainant against the assurance given in the sale pamphlet and therefore both the opponents are jointly and severely liable to pay the amount of the machine with interest and also liable to pay the other amount claimed in the relief para-8 of the complaint. Accordingly, he has submitted to allow the present complaint against the opponents.
13. Argument of ld. Advocate of the opponent No.1:
Ld. Ad. Mr. Janak Purohit on behalf of the opponent No.1 has submitted that the complainant purchased the machine in question for commercial purpose and therefore as per Section 2 (i) (d) of the Consumer Protection Act, 1986 the complainant cannot be said to be "consumer" and K.S.P CC-12-29 Page 8 of 20 therefore the complaint cannot lie against the opponent. Furthermore he has also submitted that the present complainant is not the original purchaser of the machine and she is also not the proprietor of S.K.Solution who had purchase the machine from the Opponent No.1 and therefore the present complaint has no locus to file the complaint against the opponent.
14. Furthermore the Ld. Ad. Mr. Janak Purohit has submitted that the complainant son Mr. Hiren had purchased the said machine after due inspection and personal test and after due satisfaction from the opponent No.1. Furthermore Ld. Ad. Mr. Janak Purohit submitted that after delivery of the said machine to the complainant, respondent No.1 who is professional provided necessary training to the complainant staff include deceased Hiren to run the machine effectively. Ld.Ad. Mr. Janak Purohit has also submitted that the product being extremely sophisticated and technical required various software and drivers to be installed on the computer which was sought to be connected with the product through which the product was likely to be operated. However on account of the fact that the computers that were used by the complainant and its representatives were extremely outdated. Furthermore Ld. Ad. Mr. Janak has also submitted that the complainant representative lack the professional qualification that was necessary for operative sophisticated equipment such as the product. Hence they had serious issues in handing and operating the product as well as installing, operating and updating the software as well as drivers that were essential for the operation of the product on their own computer. So as per the submission of the Ld. Ad for the opponent Mr. Janak Purohit there was no any manufacturing defect in the machine provided to the complainant by the opponent No.1 and for that he has also place reliance upon the affidavit filed by Mr. Sachin Chindarkar dated19 May, 2022 who is the technical expert of the opponent No.1 company and the said Sachin has also stated in his affidavit that on account of mishandling of the product by the complainant staff the defects occurred in the said machine, the product sold by the opponent No.1 to the complainant met K.S.P CC-12-29 Page 9 of 20 with all the expectation and requirement of the complainant. Furthermore Ld. Ad. Mr. Janak Purohit also submitted that even looking to the Email communication exchanged between late Hiren, Sachin and opponent No.2 has produced by the complainant in this matter. It appears that there was no any manufacturing defect in the machine provided by the opponent No.1 and only on account of the lack of technical knowledge on the part of the complainant staff. The alleged defect occurred in the machine. Ld. Ad. Mr. Janak Purohit also submitted that looking to the email produced by the complainant it appears that in the year 2012 the concerned persons of the complainant was taking training to run the machine effectively and that also shows that staff of the complainant were not able to run the machine effectively.
15. Ld. Ad. Mr. Janak Purohit has also submitted that when there is an allegation in the complaint regarding manufacturing defect in the machine provided by the opponent No.1 to the complainant then as per the settled position of law the burden lies on the complainant to prove the manufacturing defect in the machine by obtaining expert evidence but here in this case the complaint has not produced or obtain any expert evidence to prove the manufacturing defect in the machine and therefore also it cannot be believe that there was any manufacturing defect in the machine and accordingly opponent No.1 has committed deficiency in services. Furthermore Ld. Ad. Janak has also submitted that even Commission comes to the conclusion that there was a manufacturing defect in the machine even that opponent No.1 being a dealer or distributor of the manufacturing company cannot be held liable as per the provision of Section 230 of the Contract Act and therefore the complaint filed by the complainant against opponent No.1 deserves to be dismissed and toto with costs.
16. Merit of the case:
We have given thoughtful consideration to submission made by the ld. Advocate of the parties. We have also perused the complaint, rejoinder affidavit of the complainant, written statement of opponent No.1 and K.S.P CC-12-29 Page 10 of 20 affidavit of Dipesh and Sachin Chindarkar documentary evidence and other material on record including written arguments of ld. Advocate of the parties and their judgment in great details.
17. Ld. Ad. Of the opponent No.1 has first and foremost raised objection that the complainant deceased son Hiren had purchased the scanner machine from the opponent No.1 for their business i.e. for "Commercial purpose" and when the complainant son purchased the said machine for the commercial purpose than as per Section 2 (i) (d) of the Consumer Protection Act, 1986 the complainant is not a consumer and therefore the complaint is required to be dismissed with costs. That as per the documentary evidence produced by the complainant, complainant son decease Hiren had purchased the scanner machine from the opponent No.1 as on 3 March, 2010 as per the tax invoice cum chalan produced at page-17. And as per the sale pamphlet of the machine of the opponent No.1 produced at page 10 to 14 warranty period of the said machine is covered for a period of 12 months from the date of the purchase of the machine that means the warranty period come to and on March 2011. As per the allegation made by the complainant in the complaint and as per the Email communication exchanged between late Hiren with opponent No.1 and 2 produced by the complainant in this matter vide documentary evidence list dated 18.06.2012, it appears that the alleged defects or problem in the machine occurred during warranty period. And late Hiren had been made number of communication to the opponent No.1 ands 2 for removal of the said manufacturing defects from the machine. That means the alleged defect or problem in the machine was found during the warranty period and as per the decision of the Hon'ble National Commission (iii) (2007) CPJ 454, if any defect found in any goods which is in warranty period even though goods purchased from commercial purpose, complaint is maintainable.
18. Furthermore even in the case of Dr. Vijay Prakash Goyal Vs. The Network Ltd., iv (2005) CPJ 206 NC and in case of Jaykay Puri Engineers Vs. Mohan Breweries and Distilleries Ltd. 1997 CTJ 56 (CP), the National K.S.P CC-12-29 Page 11 of 20 Commission held that purchaser of a machine would be a consumer, if the defect in machine develops within warranty period even though the machine was purchased for commercial purpose. So considering the above judgment of the National Commission, in the consider opinion of this commission though the complainant son had purchase the machine for commercial purpose but defect in the machine develop or found within warranty period and therefore the complainant can be said to be a consumer as per the definition of Section 2 (i) (d) of the Consumer Protection Act and therefore present complaint filed by the complainant is maintainable and hence the arguments of the Ld. Ad. Of the oppo. No.1 that the complainant is not a consumer is devoid of merits.
19. Ld. Advocate of the opponent No.1 has also submitted that the machine in question had purchased by late Hiren son of the present complainant being a proprietor of S. K. Solution but the present complainant is not a proprietor of S. K. Solution therefore the present complainant has no locus to file the complaint. But we do not agree with the submission of the Ld. Ad. of the opp. No.1 because complainant has specifically mentioned in the complaint that she is a proprietor of M/s. S. K. Solution and being a proprietor of S. K. Solution, she has filed the present complaint. More over before filling of this complaint, the complainant has also issued legal notice through her Ad. R. V. Sakaria to the oppo. No.1 dated 24 April, 2012. Wherein also Ld. Ad. Sakaria has issued notice to the opp. No.1 on behalf of the complainant being a proprietor of S. K. Solution. Therefore the argument of the Ld. Ad. Of the opp. No.1 cannot be acceptable that the complainant has no locus to file the present complaint.
20. Complainant in her complaint as well as in her rejoinder of affidavit filed against the written statement of opponent has briefly stated that the son of the complainant late Hiren had purchased the machine SYS H3D EXA EXAscan Laser Scanner from the opp. No.1 on 3 March, 2010 in Rs. 23,95,472.15/- on the basis of the sale pamphlet of the said machine provided by the opp. No.1 and relying upon the quality and performance K.S.P CC-12-29 Page 12 of 20 of the machine given by the opp. No.1. Furthermore she has also stated that from the beginning the problems or defects occurred in the machine purchased by the son of the complainant late Hiren and therefore complainant son had enter into number of Email communication with the opp. No.1 representative or technical expert namely Sachin Chindarkar and opp. No.2 representatives. As per the say of the complainant in her evidence of affidavit, the problem of the machine persisted and continued till 15 November, 2011 and lastly when opponents failed to remove the manufacturing defect from the machine opp. No.1 had decided to send the machine to manufacturer at Canada but thereafter said machine has not return to the complainant after removing the alleged manufacturing defects. So as per the contention of the complainant opponents had delivered manufacturing defective machine to the complainant against the sale pamphlet given by the opp. No.1 to the complainant's son and therefore the scanner machine supplied by the opp. Could not be used accurately and effectively for the purpose it was bought.
21. Complainant has also filed an affidavit of one Dipesh Rameshchandra Karavadiya at page 153 to 156 wherein he has deposed that he helped Mr. Hiren Javiya to got the machine set right and he has also helped in exchanging Email with technicians of Trimos Metrology (I) Pvt. Ltd. as well as M/s. Creaform of Canada regarding the problems and difficulties faced by late Mr. Hiren Javiya. He has also stated in his affidavit that he has obtained Bachelor Degree in Computer Application and MBA in Information Technology and despite good number of Email Exchanged with Creaform India and number of efforts made to set right the machine to perform its targeted job and reverse engineering and wire cutting the machine could not be brought to work for targeted work. And ultimately Trimos Metrology (I) Pvt. Ltd. had decided to send the machine its manufacturer at Canada and according the machine was handed over by him to Mr. Sachin Chindarkar at Mumbai on 18.11.2011.
K.S.P CC-12-29 Page 13 of 2022. Complainant has also filed one affidavit of Shri Sachin Chindarkar who happens to be the IT and Computer professional working with the opponent No.1 Trimos Metrology (I) Pvt. Ltd. who has provided machine to the complainant's son Hiren. In the said affidavit he has stated that he was aware of the facts and circumstances leading to this compliant as at that time he was working with Trimos Metrology (I) Pvt. Ltd. and he had exchange Emails with late Hiren and other concerned persons of suppliers and the manufacturers regarding the problem and difficulties face by late Hiren jaiya. Not only that he has also categorically stated in his affidavit that despite good numbers of Email exchanged with Creaform India and number of efforts made to set right the machine to perform its targeted job of reverse engineering and wire cutting the machine could not be bought to work for targeted job. And therefore the opp. No.1 ultimately decided to send the machine to its manufacturer at Canada. So the affidavit filed by the Sachin Chindarkar is very important part of the evidence to prove the allegation made in the compliant that the machine provided by the opponent is having manufacturing defects from the beginning. And this affidavit filed by the opp. No.1 owns employee who is IT and Computer Professional therefore there is no reason to disbelieve the same.
23. That the said Sachin Chindarkar has also filed another affidavit on behalf of the opp. No.1 which is produced at page No. 204 to 205 but the said affidavit filed by the Sachin contrary to his earlier affidavit. And in the second affidavit filed on behalf of the opp. No.1 Sachin Chindarkar has stated that the product has supplied to the complainant was certainly not defective and it was only on account of lack of basic technical competence and knowledge for operation of the sophisticated product on the part of the representative of the complainant alleged defect occurred in the scanner machine. And opp. No. 1 made all earnest attempt to provide all the requirement ad support to the complainant but according to our consider view this affidavit filed by Sachin Chindarkar cannot be believed because if the facts of this affidavit is correct then Sachin Chindarkar ought to have stated the said facts in his earlier K.S.P CC-12-29 Page 14 of 20 affidavit but he has not stated his earlier affidavit. Not only that in this affidavit he has also not stated that the earlier affidavit filed by him is under the coercion and duress and in earlier affidavit on the last para is categorically stated that the contends of this affidavits are true and correct to the best of my personal knowledge and no part of it is false and nothing have been concealed there from so in view of the above facts also the second affidavit filed by the Sachin Chindarkar being employee of the opponent No.1, blaming the lack of basic technical competence of the complainants representative how to run the machine cannot be believe and accepted.
24. That the complainant has also produced the documentary evidence vide list dated 18.06.2012 wherein at page-19 he has produced letter of complaint written by her son late Hiren to the opp. No.1 dated 9.04.2010 and on perusal of the said letter Hiren informed the opp. No.1 that "We are purely into wire cut and tools and dies business, you claim that the scanner accuracy is 0.040mm, we are not yet able to see this accuracy with our wire cut parts, also the STL data quality is very poor. We try high resolution, auto configuration and so many other practices to get our desired results, but not yet able to satisfy our self." So on perusal of the said letter it appears that after installation of the machine by the opp. No.1 and the complainant destination from the beginning the major problem occurred in the machine in question.
25. Furthermore in the complainant has also produced Email exchanged between complainant and opponents at Page-20 to 82 and on perusal of the page-20 communication written by Sachin Chindarkar to the manufacturer wherein it is categorically stated that "We try different techniques and methods to obtain desired STL data, but we falil to maintain the good quality STL data which will meet their expectation." In the said Email it is also written that "Earlier S.K.Solution show me interest to buy one more Exascan, but because of this problems we are loosing trust of our customer. Kindly, co-ordinate all this problems with Mr. Oscar, so that we can satisfy our esteem customer S.K.Solutions."
K.S.P CC-12-29 Page 15 of 20Furthermore on perusal of Email communication of page-33 and 34 dated 17 August, 2010 between Hiren and representative opponent No.2 Julien Marchand and from the said communication also it appears that the card provided by Mr. Sachin to Hiren is not up to the mark. Furthermore on perusal of Email communication of page-36 between Hiren and Julien Marchand the representative of opponent No.2 it appears that Hiren made complaint regarding error related to sensor. Furthermore if we perused the Email communication dated 19.08.2010 page-41 between Juniel Marchand and Sachin wherein Sachin informed to Julien Marchand that "The fire wire card (data card) provided by you was not able to used in their laptop, because the cavity in laptop is straight, and data card from Creaform was step type. So we provide them, the data card used by our south based customers Brakes India Chennai from last 2 years, and it's working very fine. Can you please take help of Team Viwer software, so as you can understand the problem and you can give the perfect solutions." Thereafter if we perused the communication dated 13.06.2011 page-73 between Sachin and representative of opponent No.2 wherein Sachin informed that "S. K. Solution are facing some problems while scanning. The scanning speed to slow and the scanner is not able to identify the object. Also they are not able to Calibrate the same." So on perusal of the above mentioned various Email communication took place between the complainant's son and opponents also categorically leads to believe that the opponents had provided manufacturing defective machine scanner to the complainant.
26. That the Ld. Ad. For the opponent No.1 has submitted that as per the settled position of law, onus lies upon the complainant to prove manufacturing defect in the machine by obtaining expert evidence. But herein this case, the complainant has miserably failed to prove this manufacturing defect in the machine by producing expert evidence and therefore complainant case regarding manufacturing defective machine cannot be accepted.
K.S.P CC-12-29 Page 16 of 2027. That herein this case, complainant has produced two affidavits namely Mr. Dipesh Rameshchandra Karavadiya, who is IT and Computer Professional and Mr. Sachin Chindarkar, employee of the opponent No.1 who is also IT and Computer Professional. And both of them have categorically stated in their respective affidavits filed on behalf of the complainant that despite of good number of Email exchanged with opponent No.2 i.e. Creaform India and number of efforts made to set right the machine to perform its targeted job of reverse engineering and wire cutting the machine could not be bought to work for targeted job. And ultimately Trimos Metrology (I) Pvt. Ltd. had decided to send the machine to its manufacturer at Canada. The said facts stated in the affidavit of both the ITI Computer Professional, coupled with the Email communications produced by the complainant between late Hiren and opponent is ample and sufficient evidence produced by the complainant on record to prove that there was manufacturing defect in the scanner machine from the beginning. And therefore according to our consider opinion herein this case the complainant has successfully established her case about the manufacturing defect in the scanner machine provided by the opponents to S. K. Solution. And therefore the argument advanced by the Ld. Ad. by the opp. No.1 that without expert evidence, the complainant case regarding manufacturing defect in the machine cannot be believed with devoid of merits.
28. That the Ld. Ad. by the opp. No.1 has lastly submitted that if the Commission comes to the conclusion that there was a manufacturing defect in the scanner machine provided to the complainant by the opp. No.1 even than Opp. No.1 being a dealer and distributor of the opp. No. 2 manufacturing company of the machine cannot be held liable for alleged defect in the machine and therefore the complaint against opp. No.1 is liable to be dismissed.
29. That herein this case, it is admitted fact that the complainant's son Hiren had purchased the scanner machine from the opp. No.1 relying on the sale pamphlet of the opp. No.1 wherein it is specifically mentioned K.S.P CC-12-29 Page 17 of 20 that "Introducing the EXAscan, the newest addition to the Handyscan 3D line of self-positioning laser scanners by Creaform. Based on the same breakthrough technology that has made the Handyscan 3D brand so successful, the new EXAscan self-positioning handheld scanner offers increased resolution and accuracy. With the introduction of the EXAscan, it is now possible to carry out EXActing 3D scanning projects with a level of detail and accuracy that no other handheld scanning system can achieve." And opp.No.1 had accepted the amount of machine i.e. Rs. 23,95,472.15/- vide receipt dated 5.02.2010 produced at page-16. And in the said receipt as well as in the tax invoices, it has not been mentioned that the opp. No1 is a dealer of the opp. No.2 manufacturing company and the warranty of the machine was also given to the complainant by the opp. No.1.
30. Consumer is a primarily concerned with the person from who he buys goods as privity of contract is between them and not with the manufacturer ordinarily it is for the dealer to take care of the complainants concern where after he can take up the matter with the manufacturer of securing his own interest. Accordingly dealer cannot wash of his hands after making a sale and shift his burden to the manufacturer. Furthermore as per the decision of Hermohndersingh Vs. Anil Shegal of the National Commission rendered in Revision Petition No. 949 of 1996, dealer could not avoid his liability simply on the ground that he was not the manufacturer and it was his responsibility to carry out the terms of the warranty and in turn he may involved the manufacturer in fulfilling their obligations under the warranty. And as per the decision of M. Subba Ready Vs. AVULAVenkatta Ready, judgment of the National Commission, reported in 2008 CPJ 269, dealer along with the manufacturer is equally liable for poor quality of goods and therefore aggrieved consumer can hold both of them liable and can claim compensation from either of them. Therefore, in view of the above decision of the Hon'ble National Commission's and the facts on record the opp. No.1 cannot escape from his liability for payment of compensation to the complainant.
K.S.P CC-12-29 Page 18 of 2031. That is also appears from the record more particularly Email communication produced by the complainant on page-162 to 187 in the year 2012, opp. No.2 manufacturing company return the scanner machine of the complainant to the opp. No.1 Trimos Metrology (I) Pvt. Ltd. for onwards delivery to the complainant but till date complainant has not delivered the said scanner machine to the complainant and that amounts to the deficiency in service and unfair trade practice adopted by the opp. No.1 to the complainant. Therefore, also complainant is also liable along with the opp. No.2 manufacturing company for providing manufacturing defective scanner machine to the complainant. So according to our consider view both the opponents have provided manufacturing defective scanner machine to the complainant and therefore the machine failed to perform its targeted job of reverse engineering and wire cutting and machine could not be brought to work for the targeted job. Hence both opponents are liable for efficiency in service ad unfair anti consumer trade practice.
32. Now, the complainant has categorically established that both the opponents have supplied manufacturing defective machines i.e. scanner to the complainant and because of that the complainant and her son had suffered a lot of mental harassment and agony and also suffered loss of business therefore next question arose for this Commission to grant the appropriate relief to the complainant. That as per the decision of Hon'ble Delhi State Commission in Jugnu Dhilon Vs. Reliance Digital Retail, reported in 2014 (1) CLT page 588 that in the event when a product is found to be defective at the very beginning, it is always better to order for the refund of the amount because replacement of product will never satisfied consumer because the consumer had lost faith in that company product, if the repaired product is again return to the consumer. That herein this case also since 2012 opp. No.1 had not deliver or return the machine to the complainant, so now there is no meaning or to order the opponents to return the original scanner machine to the complainant and therefore, it would be just and proper to direct the opponents for payment of amount of the machine to the complainant and also payment K.S.P CC-12-29 Page 19 of 20 of some reasonable amount on the head of mental harassment and agony and for the costs of the litigation. That would meet the end of justice. Therefore, herein this case in view of the above discussion we are of the view that the complainant complaints requires to be partly allowed against opponents and accordingly we pass the following final order.
ORDER
(i) The Complaint No. 29 of 2012 filed by the Complainant against Opponents No.1 and 2 is hereby partly allowed.
(ii) Opponents is hereby directed and ordered to pay jointly and severaly Rs. 23,95,472.15/- (Rupees twenty three lakhs ninety five thousand four hundred seventy-two and fifteen paisa only) along with the interest at the rate of 9% from the date of filling of the complaint till its realization to the Complainant.
(iii) The Opponents shall also pay compensation for mental harassment and agony to the Complainant of Rs. 10,000/- and also pay Rs. 5,000/- on the head of costs of litigation to the Complainant.
(iv) It is hereby directed that Opponents shall comply the present order within 30 days from the receipt of the copy of this order.
(v) The Opponents shall bare its own costs.
(vi) Certified copy of the judgment and order be provided to the parties free of costs.
Pronounced in the open Court today on 5th July, 2022.
[Dr. J. G. Mecwan] [Mr. I. D. Patel]
Member Judicial Member
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