ACUFIL MACHINES vs SAKTHI TRADING COMPANY

THIS appeal is directed against the order dated 4.8.1998 in O.P. 88/1996 on the file of the District Consumer Disputes Redressal Forum, Coimbatore.

THE appellant is the opposite party while the respondent is the complainant. Short facts may be related in order to understand the crux of the issue arising for consideration in this action.

The complainant purchased one Form Fill and Seal Machine (with Base Hopper Vat) for a sum of Rs. 2,45,700/- from the opposite party on 4.5.1994 under an invoice issued by the opposite party. Ever since the purchase of the said machine, it was stated to be not functioning properly due to manufacturing defect. Consequently, the complainant was unable to use the machine for the purpose for which it was purchased.

THE complainant would say that he had suffered a huge loss in his business as a consequence of the non-functioning of the machine for pretty long. THE manufacturing defect, he would say, was brought to the notice of the opposite party. However, the manufacturing defect was not at all rectified by the opposite party. Consequently a legal notice dated 26.4.1996 had been issued to the opposite party. The machinery, it appears, had been purchased by the complainant by getting financial assistance by way of a loan from the Tamilnadu Industrial Investment Corporation Limited (TIIC). He also intimated the fact to TIIC, which in turn, it appears, also sent a communication to the opposite party requiring them to effect repairs or cure the manufacturing defect of the machine purchased by the complainant.

THE complainant would say that the act of the opposite party in not rectifying the defect occurred to the machine during the warranty period would amount to deficiency in service on their part. He would say that the warranty is for a period of one year. In such a backdrop and setting, the complainant knocked at the doors of the Forum below for certain reliefs as prayed for in the complaint. The opposite party in pith and substance would contend that the complaint as filed is not maintainable inasmuch as the machinery purchased by the complainant was admittedly for a commercial purpose. There is no dispute that the warranty is for a period of one year from the date of the purchase. To say, that the machinery purchased by the complainant from them for the price of Rs. 2,45,700/- was suffering from any sort of defect right from the date of the purchase is not at all correct. As and when any defects minor or major occurred to the machine purchased by the complainant, the same had been rectified by the opposite party at their cost. As such there is no deficiency in service on their part. The complaint is liable to be dismissed.

THE Forum below after taking into consideration the materials placed on record, however, recorded a finding that the defect to the machinery purchased occurred during the warranty period and the attempt made by the opposite party in curing the defect even free of cost did not at all cure the defect and the defect occurred to the machine continued and as such there was deficiency in service on the part of the opposite party notwithstanding the fact that the machinery was purchased for a commercial purpose. Consequently the Forum below directed the opposite party to pay to the complainant a sum of Rs. 2,45,700/- being the value of the machinery purchased by them from the opposite party, to pay a sum of Rs. 5,000/- by way of compensation for mental agony and hardship besides payment of Rs. 500/- towards cost.

AGGRIEVED by the order as above, the opposite party resorted to the present action by engaging a Counsel of their choice namely, learned Counsel M/s. V. Ramasubramanian and P.V. Raghavan. On service of process, the respondent/complainant entered appearance through a Counsel of his choice namely, learned Counsel M/s. R.G. Narendhiran, V. Vasista and P.S. Vasanthakumar.

When this matter came up for hearing before us today, learned Counsel appearing for the respondent/complainant were called; absent and no representation was made on their behalf. The fact that the said learned Counsel were absent does not mean that we cannot dispose of the appeal on merits, of course, after hearing arguments of learned Counsel Mr. B. Venugopal representing learned Counsel M/s. V. Ramasubramanian and P.V. Raghavan appearing for the appellant/opposite party and on perusal of the materials placed on record and that is exactly what we have done in this action.

THERE is no pale of controversy that the complainant purchased one Form Fill and Seal Machine (with Base Hopper Vat) for a sum of Rs. 2,45,700/- from the opposite party on 4.5.1994. Yet another fact about which there is no dispute is that the said machine had been purchased by the complainant for a commercial purpose. It is also an undisputed fact that the guarantee for a period of one year was given by the opposite party from the date of the purchase of the machinery from them. The argument of learned Counsel B. Venugopal that the complaint filed is not maintainable cannot at all be expected to commend acceptance at our hands on the face of two decisions emerging from Superior Courts of jurisdiction namely, III (CCC & Anr., and I (1996) CPJ 324 (NC) of the National Commission in Amtrex Ambience Ltd. v. M/s. Alpha Radios & Anr.

IN Koyenco Feeds Pvt. Ltd. (supra), the Kerala State Commission took the view that "the failure to remove the defects during warranty period amounts to deficiency in service and even if the purchase is for commercial purpose the complainant is a consumer in respect of service to be rendered during the warranty period". This decision derives support from Amtrex Ambience Ltd. (supra), decided by the National Commission. IN the said decision, the National Commission took the view that "where the allegations of the complainant was that there was manufacturing defect of the machinery/equipment during the period of warranty when the manufacturer had undertaken to keep the machinery in good working condition, even if sold for commercial purpose, the purchaser will certainly be a consumer under Section 2(1)(d)(ii) in respect of services rendered or to be rendered by the seller for the proper functioning of the machinery/equipment, system during the period of warranty". In the case on hand as already stated the machinery had been purchased by the complainant from the opposite party on 4.5.1994 as evidenced by Ex. A1 invoice. Within two months of the purchase of the machinery by the complainant from the opposite party, manufacturing defect had been complained of by the complainant to the opposite party as evidenced by Ex. A2 dated 22.7.1994. The defect to be rectified is relatable to a part valued about Rs. 1,00,000/-. It is not as if the opposite party did not remain quiet without attending to the repairs as complained of by the complainant. But the fact remains for rectifying the defect admittedly the opposite party took about six months time and subsequently the rectified part has been sent to the complainant. Even after the receipt of the rectified part, the complainant would say, that the defect which occurred during the warranty period continued to persist and such being the case, to say, as has been said by the opposite party that the defect occurred during the warranty period had been rectified by the opposite party cannot at all be expected any sort of an acceptance at our hands. The machinery purchased is for a sizeable sum of Rs. 2,45,700/-. The defect occurred to such a machine within a few months of the purchase and despite a long period of six months taken by the opposite party to rectify the defect, it was, however, not rectified and the defect was allowed to continue. Can such an act on the part of the opposite party be called as an act tantamounting to deficiency in service ? The answer to such a question cannot be anyone other than an emphatic "Yes" on the facts and in the circumstances of the case. The Forum below had taken all these aspects of the matters into consideration and rendered a finding that there was deficiency in service on the part of the opposite party and, therefore, such a finding cannot at all be found fault with. Consequent to the finding, the Forum below issued a direction to the opposite party to refund the amount of Rs. 2,45,700/- representing the value of the machinery purchased by the complainant from them. That sort of a finding is also in order. The Forum below awarded compensation quantified in a sum of Rs. 5,000/- for the mental agony and hardship suffered by him. The amount of the award so made, we rather feel, on the facts and in the circumstances of the case is not unreasonable calling for interference. We also confirm that part of the award. The Forum below also awarded costs in a sum of Rs. 500/-, which we feel, is reasonable not calling for interference. That part of the award is also confirmed. The appeal as such deserves to be dismissed.

IN fine, the appeal fails and the same is dismissed. We, however, make no order as to costs on the facts and in the circumstances of the case. We shall, however, make it crystal clear that the order of the Forum below as confirmed by us is required to be complied with by the opposite party within a month from the date of receipt of our order or otherwise the complainant would be perfectly at liberty to invoke the provision of Section 27 of the Act, 1986 (for short, "the Act, 1986"). Appeal dismissed.