BHARAT INDUSTRIAL COMPLEX vs Dilip Kumar Ghosh

THIS is an appeal against an order of the Calcutta District Forum, Unit-II disposing of a complaint regarding the supply of a defective machine and allowing the complaint in part. The complainant Dilip Ghosh is an educated unemployed youth and he took Entrepreneurship Development Programme Training (E.D.P.) organised by the West Bengal Consultancy Organisation Limited. He was, thereafter, sanctioned a loan for production of poly propylene films and packets. The complainant accepted the quotation of opposite party No. 1 that is the present appellant and asked for bank loan as per quotation. The bank paid the loan and the appellant delivered a machine of 45 M.M. PP BLOWN FILM PLANT on 2.2.94. The machine was installed by the Company on 30.3.94. It has been alleged that the machine did not operate normally from the very first day due to defect and as a result the complainant had sustained a loss of Rs. 2 lakhs. The defect was reported to the appellant/ Company who did not attend to the complaint. On account of the non-functioning of the machine there was no production in the complainant''s plant and he had to bear the heavy, burden of loan.

THE case was contested by M/s. Bharat Industrial Complex who by a written objection denied that the machine was not working properly due to the defects in the machine. THE Company further stated that they had removed all the defects in barrels and screw which happened due to mis-handling of the machine by the unskilled hand of the complainant. THEy denied that they had any deficiency on their part regarding the repair of the machine and asserted that the machine was delivered in a good working condition. THE opposite party Bank who sanctioned the loan in favour of the complainant supported the complainant and stated that the loan was sanctioned to the complainant under the head - Self Employment Scheme by their New Entrepreneurship Development Agency Cell under which the Bank financed 100 percent of the project cost to the educated unemployed to establish in the society. THE Bank further stated that the complainant was sanctioned a loan of Rs. 8,74,000/- under the Self Employment Scheme and for this purpose he was trained in the machine from the opposite party No. 1''s office-cum- factory. After obtaining a certificate as a successful candidate the machine was purchased and installed but it was not running as per specification/quotation. The learned District Forum considered the submission of both the parties and after hearing them allowed the case in part directing the opposite party No. 1 to rectify the defects of the machine at his own cost and placed the same in the custody of the complainant, or in the alternative to replace the machine by a new one. The Forum also directed the opposite party No. 1 to pay Rs. 20,000/- as compensation to the complainant for the mental pain and agony and loss of reputation. The present appeal has been filed against the aforesaid order of the Calcutta District Forum.

The District Forum discussed the case thoroughly in its order. It observed that the opposite party No. 1''s contention that the machine became defective on account of mis-handling of the same by unskilled labourer was not proved. It also noted the admitted fact that the machine had developed defects and was repaired from time to time by the opposite party No. 1. The disputed machine was inspected by a team of S.I.S.L, Government of India, and a report was submitted by the Deputy Director of the Establishment. From the report it appears that the machine was found running and producing 8" width (200 Gauge) P.P. Film with the help of 8" sizer and 5" dia pulley system. It further appears from the report that some parts of the machine were changed for getting higher production rate but unfortunately the desired result would not be obtained.

THE District Forum considered the above report and examined the case of the complainant in its back ground. According to the Forum it was proved that there was inherent defect in the machine. That the machine is not working satisfactorily is an admitted position. THE opposite party No. 1 has tried to explain this position by alleging that the machine was handled by unskilled worker. But this allegation has not been sought to be proved. It was a valuable machine and the complainant was to earn his living by utilising the machine. But the machine evidently did not work. For purchasing the machine a heavy amount of loan was taken from the Bank and the complainant also took training for operating the machine. It was in his best interest to keep the machine working and it cannot be believed that the machine became defective for mishandling of the same by unskilled worker. So we are inclined to accept the finding of the Forum that the machine was defective from the very inception. Arguments were made that the case was not maintainable and that the machine was purchased for commercial purpose. Apart from the fact that the machine was utilised by the complainant on a Self Employment Scheme the District Forum has referred to a decision of the National Commission reported in 1 (1996) CPR 102 (NC) wherein it has been held that where goods were purchased even for commercial purpose, if there was a warranty for its maintenance, the purchaser becomes a consumer in respect of the services rendered. We are in agreement with the reasoning of the lower Court and hold that the case was maintainable before the District Forum.

IN effect we agree with the finding and conclusion of the lower Court and also hold that the amount of compensation awarded is reasonable. This appeal is, therefore, dismissed with a cost of Rs. 500/-. The appeal is thus disposed of. Appeal dismissed with costs. ______________