PRAHLADBHAI KADIA vs SAYAJI IRON WORKS PVT. LTD.

THE complainant is a mason doing masonry work and he has purchased a concrete mixer for maintenance of his family. Mr. S.K. Patel, learned Advocate for the complainant states that previously the complainant was serving in a Mill company and on closure of. the Mill company he had become jobless and had purchased this machine for the purpose of maintaining his family. He has paid Rs. 49,667/- advance by instalments. THE Opposite Party has given guarantee for one year. However, according to the complainant, within 1 week of the purchase of the machine, some faults were detected. THErefore, the complainant made a complaint to the Opposite Party on 12.2.90 and the Opposite Party sent a Foreman on 15.2.90 who found that there was a defect in the diesel engine and was not capable to repair unless several parts were changed. THE complainant pointed out that he had purchased the machine before a week and since the trouble started within that period he cannot trust the machine. THE company therefore replaced the diesel engine. THEreafter several defects were found in the mixer and had totally stopped on or about 24.2.90. THE Opposite Party was informed and the company, after changing several parts put the machine in order. However, after three months the machine developed faults again and the company''s foreman attended and changed certain parts. In this way, this machine was not giving continuous satisfactory services and on account of defect the machine had to be reparied from time to time. THE complainant had purchased a new machine and if the machine does not give satisfactory services and was required to be repaired and parts were required to be replaced, it cannot be said to be a new machine. It was a defective machine. THEre are several defects which have been pointed out in the complaint viz. (1) machine required clutch setting several time (2) lever was jumping (3) jumbing lever alignment (4) defects in drim lever, radiyor fan, brake pulley etc. etc. Again, there were defects in the machine such as brake jumping lever, fault in clutch etc. THE Opposite Party was informed and the Opposite Party changed several parts of the machine. According to the complainant, on account of the defect in the machine, the complainant has suffered damages. He informed the company and the company informed him that the complainant shall have to pay Rs. 800/- per day for sending the foreman and he shall have to deposit Rs. 1600/- before the foreman could be sent because the guarantee period was over. THE complainant has, therefore, prayed for replacement of the machine and Rs. 74,100/- as damages and cost.

THE Opposite Party has filed the written statement and has raised preliminary contention that the complainant was originally filed before the District Forum and in appeal the order of the District Forum was set aside by this Commission since the relief prayed before the District Forum was exceeding Rs. 1 lakh and, therefore, the second complaint is not maintainable. This objection of the Opposite Party has no merits because this Commission has passed the order as under:- "THE appeal is allowed. THE order of the District Forum is set aside. THE plaint is returned to the complainant to present the same in the proper Forum if he so desired. In the circumstances there will be no order as to costs."

The plaint was returned by the Commission to file in proper Forum because District Forum was not the appropriate Forum to hear and decide a complaint where the prayer was exceeding Rs. 1 lakh. Hence, the complainant has filed the present complaint before this Commission which has a jurisdiction to hear the same. The preliminary objection therefore is rejected. It is further contended that when the complaint was filed against the opponent i.e. when the opponent joined in the complaint, amendment in Consumer Protection Act came into force and, therefore, this Commission has no pecuniary jurisdiction and the complaint is required to be dismissed. This submission has no substance in view of the decision of the honourable National Commission that the Commission can dispose of the matter which when filed, the Commission had a pecuniary jurisdiction. So far merits are concerned, there is no doubt that one year guarantee was given by the Opposite Party. The machine developed defects in the engine. The engine was replaced and thereafter several times machine has been repaired and several parts have been changed. In doing the reparation and change of parts, one year has been passed and that is not the fault of the complainant. The machine appears to be defective from the beginning and either the Opposite Party ought to have extended the guarantee/warranty period or ought to have replaced the machine. If the machine cannot be repaired within the period of guarantee/ warranty, it is the obligation of the Opposite Party to repair it till it gives continuous services for a reasonable time. In the instant case, the machine has been replaced more than once and it has never worked continuously for a satisfactory period because the machine had a manufacturing defect which could not be repaired even by replacing the parts by the engineer sent by the Opposite Party. The complainant was not bound to take such machine for such a high price. The machine was purchased by him for maintaining his family. We are of the opinion that the purpose for which the machine was purchased was not for commercial purpose but for maintenance of his family. The machine was defective from the beginning. The burden to prove that the machine was purchased for commercial purpose is on the Opposite Party and the Opposite Party has not discharged this burden by cogent evidence. We are, therefore, of the opinion that the purpose of purchasing the machine was not comercial but for maintenance of his family.

So far the defects are concerned, we are satisfied that it had defects from the beginning which could not be satisfactorily repaired inspite of several attempts made by the Opposite Party. We are, therefore, of the opinion that the complainant is entitled for replacement of the machine or the cost thereof. The complainant has asked for the damages but it also appears that he has taken work from this machine and must have earned sufficiently. We are, therefore, of the opinion that this is a fit case for replacement of the machine and, therefore, on damages should be awarded. We, therefore, reject the claim for damages. If the machine is not replaced, the complainant would be entitled to the cost of the machine plus interest @ 15% p.a. from the date when the payments are made and cost of this complaint. ORDER The Opposite Party is directed to replace the machine within 8 weeks from the receipt of this order by giving a new machine of the same type with guarantee of 1 year and if the machine is not replaced within the time mentioned above, the complainant will been titled for the refund of the amount of Rs. 49,667/- with interest @ 15% from the date when the payment was made till the full amount is refunded. The complainant is also entitled to cost which we quantify at Rs. 500/-. If machine is not replaced, the decretal amount should be paid within two weeks thereafter. Complaint allowed.