NATIONAL SPORTS CLUB OF INDIA vs MUKESH GANJAWALA

THE complainant, National Sports Club of India approached this Commission with the allegations that Ice-cube making machine (hereinafter referred as ''machine'') purchased was defective. THE opposite party no. 1 is the local dealer of the machine. THE opposite parties Nos. 2, 3 and 5 are the manufacturers of the machine. THE opposite party no. 4 was having a service contract of the said machine with the complainant According to complainant he purchased the machine, viz. "Refco" Ice Cube making machine for a consideration of Rs. 1,05,406/- on 10.7.90 from opposite party no. 1. THE said machine was delivered to complainant on 6.11. 1990. THEre was guarantee for the effective working of the machine for a period of 12 months. THE documents of guarantee are at Ex. ''A'' and ''8'' of the complaint THE complainant alleged that the machine was delivered to him without proper checking and testing which fact was complained by the complainant. However, the said machine was commissioned on 12.11.90 for the first time. Ex. ''C'' is the report as regards the starting of the machine. According to complainant, from the very inception, the machine was not in a proper working condition. THE complainant, therefore, on 19.11.90 communicated to opposite party no. 1 about the unsatisfactory results of the machine. On 23.11.90, the Opposite Party no. 4 attended the servicing of the said machine. However, the result was unsatisfactory. It was noticed that raw ice was coming out of the machine instead of ice cubes. THE letter and the service report are collectively marked as Ex. ''D''. Again on 6.12.1990, the complainant wrote to Opposite Party no. 1 about the defective nature of the machine and requested to replace the said machine with a new one or to refund the purchase price. THE said letter is at Ex. ''E''. THE complainant further alleged that despite the efforts made by Opposite Party no. 1 and 4 to repair the said machine, it could not yield satisfactory results in as much as it was not producing ice-cubes but was giving out raw ice. THE complainant, therefore, filed his complaint claiming refund of the cost of the machine with 18% P.A. interest. THE complainant also claimed the amount of compensation for Rs. 11,760/- towards the loss suffered due to the non-functioning of the machine. THE complainant also claimed costs.

THE opposite parties were served with a notice u/Sec. 13(2) of the Consumer Protection Act individually. All of them received the aforesaid notices along with the copy of the complaint. However, on the date of hearing on 9.3.92, except opposite party Nos. 1 and 4, rest of the opponents did not appear before this Commission. THE Commission therefore, proceeded ex-parte against opposite parties Nos. 2,3 and 5 who are the manufacturers of this machine. THE complainant as well as the opposite parties 1 and 4 filed their documents, affidavits and were also heard through the respective Advocates. The opposite parties Nos. 1 and 4 in their joint written version admitted the sale of the machine to the complainant manufactured by opposite party no. 2 at Delhi. According to opposite party Nos. 1 and 4 they were mainly local dealers and service contractors and that they did their job of rendering necessary service to the complainants. It has been further stated that the manufacturer, opposite party no. 2 manufactured the machine in question at Delhi and sold the machine to the complainant through them. Thus, the opposite parties Nos. 1 and 4 denied their responsibility to 35 refund the purchase price to complainant. The other contentions raised by the opposite parties Nos. 1 and 4 are not of any consequence.

After carefully going through the allegations made by the complainant in the complaint and the documents placed on record, it is abundantly clear that the machine was not properly functioning as per the advertisement and the representation made by the manufacturer to the complainant. The complainant wanted ice-cubes for the use of the club members and did not want the raw ice. The complainant has stated in his complaint as well as in the affidavit that from the beginning and even after some repairs, the machine was not producing the required results viz. to produce ice-cubes. These facts are clearly reflected in the correspondence of the complainant with the opposite parties. In Ex. ''B'', the delivery challan dated 6.11.90 it is clearly mentioned that the machine was not checked and tested. In the Ex- ''D-2'' dated 23.11.90 the mechanic has written that little gas was being released and it was giving unsatisfactory results. The letters sent by the complainant at Ex. ''G'' dated 19.11.90, Ex ''E'' dated 6.12.90 Ex. ''F'' dt. 1.4.91. Ex.''G'' 19.4.91, Ex. ''H'' 25.4.91. Ex. (I) 8.8.91. Ex.J 12.9.91, Ex- J-2'' 24.9.91. Ex. ''K'' 8.10.91 and Ex. ''L'' dt 23.10.91 clearly demonstrate that the machine was not working properly. In other words, the aforesaid letters clearly established that the machine was defective. The allegations made in the complaint are also supported by the affidavit filed by the complainant through its General Manager dated 11.3.92. Thus, we find that the complainant has satisfactorily proved that the machine sold to him by opposite party no. 1 manufactured by Opposite Parties Nos. 2,3 and 5 was defective. The complainant is, therefore, entitled to the refund of the purchase price of the machine with interest. The complainant had paid for the machine, which could not work over the period from beginning till the date of filing of the present complaint

THE complainant has claimed Rs. 11,716 as compensation since the club had to purchase the required ice-cubes for the members of the club by spending Rs. 200/- per day from 12.11.90 i.e. the date of the installation till the date of the filing of this complaint on 21.1.92 fairly for a long period. Shri V.P. Sawant, the learned Advocate for the complainant argued that the loss suffered by complainant is due to the negligence of the manufacturer who sold defective goods to his client. In our view, Shri Sawant is correct in his submission as regards the loss suffered by complainant which is proved on the basis of affidavit and documents Ex.1 on record. We, therefore, find that the payment of Rs. 11,716 towards compensation for the loss incurred by the complainant is justified. THE Club was forced to purchase the ice-cubes from outside as the machine in question was not working satisfactorily. The opposite parties Nos. 2,3 and 5 who are the manufacturers remained absent through out and were proceeded ex-parte. They did not file their written version. The opposite parties Nos. 2, 3 and 5 did not bother to attend the proceedings in this complaint and did not answer any of the allegations contained in the complaint. In our view, this is a fit case where the manufacturer, the opposite parties Nos. 2,3 and 5 are liable to refund the price of the machine with compensation and costs to the complaint. The price of the machine ultimately goes to the manufacturer. The local dealer receives the commission only. Hence, we pass the following order. ORDER

THE opposite parties Nos. 2,3 and 5 shall refund the price of the machine amounting to Rs. 1,05,406/- with 18% p.a. interest from 6.11.90 till payment to the complainant. THE opposite parties Nos. 2,3 and 5 shall also pay Rs. 11,716/- towards compensation and Rs. 2,000/- as costs of this complaint to the complainant. THE entire amount shall be paid to the complainant within 30 days from the date of receipt of this order by the opposite parties Nos. 2, 3 and 5 jointly and severally. Complaint allowed with costs.