NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
(From the order dated 22.7.06 in Appeal No.947/05 of the State Commission, M.P.)
Through the partner
Kamal Kumar Bardia
Having works at :
38-A Industrial Area
No.1 Behind Tata Exports
Dewas 455 001. (M.P.) Petitioner
HONBLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HONBLE MR. B.K. TAIMNI, MEMBER
For the Petitioner : Mr.B.S. Banthia, Advocate
For the Respondent : Mr.Jay Savla and Ms.Meenakshi
The Opposite Party (petitioner herein) has filed this Revision Petition against the order dated 22.7.2006 of the State Consumer Disputes Redressal Commission, Madhya Pradesh in Appeal No.947/2005.
The complainant (respondent herein) along with her husband does the work of supply of construction materials for earning their livelihood. She purchased a loading machine from the petitioner by taking a loan of Rs.4,95,000/-. The machine was supplied to her at Seoni for which a guarantee of one year was given. Soon after the purchase, day-to-day problems started coming up in the machine and it stopped working. The respondent telephonically complained regarding the defects in the machine to the petitioner and requested for rectifying the defects, to which the petitioner responded by its letter dated 15.3.2004 stating therein that because of the recondition, transmission and new type of design, normally in the first year, some problems do arise and the machine stops working of and on and after one year, when the driver gets trained and experienced, the loader starts working without casual stoppage. The petitioner offered to co-operate with the respondent and agreed to send the mechanic to remove the defects at its own cost. The petitioner also agreed that after the starting of the hot mix plant, it would depute a person for a period of one month to ensure that the machine does not stop suddenly. But the machine was not got rectified by the petitioner.
After waiting for a period of three months, the respondent issued a Legal Notice through an advocate on 25.6.2004 to the petitioner by Registered Post, which the petitioner refused to accept. Thereafter, the respondent filed a complaint before the District Forum, Seoni for grant of Rs.4,95,000/- as the price of the machine along with interest at the rate of 12% per annum, Rs.75,000/- as compensation, Rs.2,500/- towards legal expenses and costs.
The petitioner filed its reply to the complaint taking the objection that (i) the petitioner was never informed by the complainant with regard to the defects in the machine; (ii) the defects, if any, occurred because the machine was not operated upon by a trained driver; (iii) the machine was supplied to the complainant in Dewas and, therefore, the District Forum at Seoni did not have the jurisdiction to hear the complaint; (iv) the complaint was not maintainable as the complainant had purchased the machine for commercial purpose. Therefore, the complainant would not fall under the category of a consumer.
The District Forum allowed the complaint by its order dated 8.4.2005 and directed the petitioner to pay the sum of Rs.4,95,000/- as the price of the machine and Rs.50,000/- by way of compensation. Costs of Rs.500/- were also awarded.
The petitioner, being aggrieved, filed an Appeal before the State Commission, which has been dismissed by the impugned order thereby affirming the order of the District Forum. Hence, this Revision Petition.
Learned counsel appearing on behalf of the petitioner initially raised three-fold submissions before us (i) that the District Forum at Seoni did not have the territorial jurisdiction; (ii) that the respondent was not a consumer; and (iii) that the defects in the machine had not been proved. During the course of arguments, learned counsel for the petitioner did not press his second submission that the respondent was not a consumer. We need not, therefore, dilate upon this submission.
In so far as the territorial jurisdiction is concerned, suffice it to mention that the machine was sent by the petitioner to the respondent at Seoni. The machine was sent by Pithampur-Rajasthan Transport Company on 26.11.2003 to Seoni. The name of the consignor is shown to be the petitioner and that of the consignee is the husband of the respondent. The machine was received by the respondent at Seoni and, therefore, in our opinion, the District Forum at Seoni had the jurisdiction to hear the complaint. The first submission is, therefore, rejected.
Learned counsel for the petitioner vehemently contended that the finding recorded by the State Commission that On seeing the documents produced on record it is clearly proved that the machine sold by the non-applicant to the complainant remained continuously defective and in regard to which the complainant had informed the non-applicant from time to time but the defects of the machine were not rectified by the non-applicant is incorrect because there is no document on record to show that the machine sold by the petitioner to the complainant was defective. It was also submitted that the State Commission erred in recording the finding contrary to the record that the complainant had informed the petitioner from time to time regarding the defects in the machine which the petitioner failed to rectify. We do not find any merit in this submission. The respondent/complainant in her complaint as well as in her affidavit has categorically stated that on many times she had informed the petitioner on telephone with regard to the defects that had crept in the machine and the petitioner had responded to her complaint by its letter dated 15.3.2004 in which it had promised that with mutual cooperation steps would be taken to rectify the defects, if any, in the machine. The petitioner had also promised to depute a person from his factory for a period of one month to see that the machine did not stop suddenly. This letter supports the finding recorded by the State Commission that on several occasions, the respondent/complainant had informed the petitioner and lodged a complaint regarding the defects in the machine right from its inception. But no steps were taken by the petitioner to get the machine repaired. We are, therefore, of the opinion that the machine did not function properly right from its inception and a defective machine was supplied to the complainant by the petitioner. There was deficiency in service by the petitioner as it failed to get the machine rectified in spite of having assured the complainant that it would do so. Apart from this, the petitioner refused to accept the Legal Notice sent by the complainant. The explanation given by the Managing Director of the petitioner that he was out of Dewas form 3.7.2004 to 9.7.2004 hardly justifies the refusal to accept the Legal Notice as the same had been sent in the name of the company. The plea taken by the Managing Director that, in his absence the company remained closed completely and no person was available for receiving the letters, cannot be accepted. It is clearly an after-thought.
Even in the written statement filed by the petitioner, it is not stated that the petitioner was prepared to get the machine repaired. In the grounds of Appeal before the State Commission as well as in the grounds of Revision Petition before us, it has not been stated that it would get the machine repaired.
For the reasons stated above, we are of the opinion that a defective machine was supplied by the petitioner to the complainant. There was a deficiency in service on the part of the petitioner as it failed to get the defects removed in spite of having assured the complainant to get the defects removed by its letter dated 15.3.2004. The respondent suffered financial loss and mental agony because of the defective machine. We find no reason to differ with the view taken by the District Forum or the State Commission. The Revision Petition stands dismissed accordingly.
Vide order dated 1.11.2006, this Commission had directed the petitioner to deposit Rs.2,50,000/- with this Commission. If the said amount has been deposited, the Registrar is directed to release the same in favour of the respondent/complainant along with accrued interest thereon.
(ASHOK BHAN J.)