Kanpur Kantewala vs Jairam Kushwaha

THE present revision petition has been filed by M/s Kanpur Kantewala (hereinafter referred to as the ?Petitioner?) being aggrieved by the order of the State Consumer Disputes Redressal Commission, Gujarat (hereinafter referred to as the ?State Commission?) in favour of Jairam Kushwaha and another (hereinafter referred to as the ?Respondents?).

THE facts of the case according to the Respondent who was the original complainant before the District Forum are that on 01.07.1998 he had purchased a weighing scale of 5 Tonne capacity for a total amount of Rs.50,000/- for which he paid Rs.15,000/- as advance to the Petitioner and the remaining Rs.35,000/- were to be paid at the time of delivery. THE carriage charges for the same were to be paid separately. Respondent stated that he paid the advance and thereafter on delivery the remaining amount of Rs.35,000/- which included a cash component of Rs.5,000/-. THE weighing scale machine was sent to the Respondent through M/s Bhagwati Transport to whom he paid Rs.2,000/- as carriage charges. In addition, he also incurred other expenses including in the installation of the said machine. According to the Respondent, the weighing scale machine being defective did not work properly and a complaint was, therefore, lodged with the Petitioner who sent his mechanic on a number of occasions to try to get it to work but despite this it stopped working and according to the mechanic, it could not be repaired because of inherent manufacturing defects. It also transpired that Petitioner had deliberately and intentionally fixed 3 channels instead of 5 channels for the support of the plate in the weighing machine and the thickness of the plate was 8 mm instead of 12 mm which was perhaps cause of various problems. Respondent suffered huge losses right from August, 1998 which were as high as Rs.10,000/- per month. THE Petitioner neither heeded the request of the Respondent to replace the weighing scale machine nor did he refund the cost of the machine being Rs.50,000/-. Aggrieved by this, Respondent filed a complaint before the District Forum requesting that the Petitioner be directed to either provide a new weighing machine by replacing the old and defective weighing machine to the Respondent or refund him Rs.50,000/- with 18% interest from the date of purchase till realization of the payment, Rs.60,000/- as compensation for losses suffered and Rs.1,500/- as litigation cost. Petitioner on the other hand has denied that the weighing scale machine sold to the Respondent cost Rs.50,000/-. According to the Petitioner, in fact, the Respondent only collected the quotation of a weighing scale machine which cost Rs.50,000/- but the weighing scale selected by him had cost only Rs.27,200/- plus sales tax of Rs.2,720/- and loading charge of Rs.80/-, totaling to Rs.30,000/- which he paid. Further, no guarantee was given by the Petitioner to the Respondent and he was only informed of a reasonable warranty which is given on behalf of the manufacturer. Petitioner also denied that the weighing scale machine sold by him had any defects. In fact, on receiving a complaint from the Respondent, Petitioner sent his engineer to the Respondent?s premises where he found another weighing scale machine and not the one sold by him but on humanitarian ground, the engineer repaired the same even though he was not required to do so. Therefore, there was no deficiency in service on the part of the Petitioner. The District Forum after hearing both parties and on the basis of evidence produced before it allowed the complaint by concluding that the Respondent had in fact paid Rs.50,000/- for the weighing scale machine and there is also no doubt from the documents on record that it had manufacturing defects. The Petitioner was, therefore, directed to provide a new weighing scale machine to the Respondent in replacement of the old one within 20 days or pay Respondent Rs.50,000/- as the cost of the weighing scale machine along with interest at the rate of 14% from 21.08.1998 till realization of the payment.

Aggrieved by this order, Petitioner filed an appeal before the State Commission which by a majority order dismissed the appeal and directed the Petitioner to comply with the directions of the District Forum within one month as also to pay Rs.2,000/- as costs. The dissenting Member of the State Commission allowed the appeal on grounds that as per the documents on record i.e. bank draft, only Rs.30,000/- had been paid for the weighing machine and further Respondent had failed to prove that there was any manufacturing defect in the machine because the machine which had gone out of order was not the one purchased by the Respondent.

HENCE, the present revision petition. Learned Counsel for both parties made oral submissions. Learned Counsel for Petitioner stated that it is totally incorrect that the Respondent had paid Rs.50,000/- for the weighing machine purchased by him. In fact, he had only collected the quotation for this amount and he had not paid any advance as contended by him. The Respondent paid Rs.30,000/- for which a proper receipt was issued. Further, as already contended before the Fora below but unfortunately not appreciated by them, the engineer(mechanic) deputed by the Petitioner following complaints by the Respondent had clearly stated that the weighing machine which was sold was not found in the premises of the Respondent and a different machine having 3 levers was found whereas the machine which was sold by the Petitioner had 5 levers. Therefore, there is no deficiency in service on the part of the Petitioner and the revision petition deserves to be accepted.

COUNSEL for Respondent on the other hand stated that there is adequate evidence on record that he had in fact paid Rs.50,000/- for the weighing machine. In this connection, he pointed out a letter issued by the Petitioner which clearly states that he would first have to pay an advance of Rs.15,000/- and the remaining Rs.35,000/- on delivery. In compliance with this, he paid an advance of Rs.15,000/- in cash and on delivery Rs.30,000/- by bank draft and the remaining Rs.5,000/- by cash. Further, the Fora below being courts of fact have on the basis of evidence produced before them concluded that the weighing scale machine suffered from manufacturing defects and rightly gave due relief to the Respondent. We have heard the learned Counsel for both parties at length and have gone through the evidence on record. It is clear from the letter dated 02.07.1998 (which was in evidence before the Fora below) of the Petitioner that Rs.15,000/- was to be paid in advance and remaining amount after the weighing scale machine was delivered. Since, it is not in dispute that the weighing scale machine was delivered on 21.08.1998, it is obvious that unless the Respondent had paid Rs.15,000/- prior to the delivery of the weighing scale machine, it would not have been delivered by the Petitioner. It is also not in dispute that an amount of Rs.30,000/- was paid in the form of a bank draft to the Petitioner after delivery of the weighing scale machine. Thus, from these two facts, it is clear that the Respondent had paid Rs.45,000/- for the machine. Respondent further contends that he had paid Rs.5,000/- by cash. The Fora below on the basis of evidence filed before them have stated that Rs.5,000/- had also been paid by the Respondent to the Petitioner and thus concluding that Respondent had in fact paid Rs.50,000/- for the weighing scale machine and not Rs.30,000/- as contended by the Petitioner. The Fora below also concluded that the Petitioner had not been able to provide adequate evidence to prove that another weighing scale machine was sought to be repaired by the Respondent from the Petitioner?s mechanic and not the one bought from the Petitioner. A mere statement of the engineer is not sufficient evidence and no affidavit of the engineer to this effect was produced in evidence. On the other hand, the Fora below being courts of fact had after going through the entire evidence produced before them concluded that there was no reason to dispute the facts as stated by the Respondent and the Petitioner had failed to prove his case. We in our revisional jurisdiction see no reason to refute these findings of the Fora below which were based on credible evidence and facts produced before them.

IN view of the above, we find no merit in the present revision petition and uphold the majority order of the State Commission in toto. The revision petition is accordingly dismissed with no order as to costs.