RAM SULZ FAB (P) LTD. vs JUPITER ENTERPRISES

-THIS complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter referred to as "the Act of 1986") has been filed by the complainants against the opposite party M/s. Jupiter Enterprises on 30.4.2007 with the prayer that the complainants be awarded a sum of Rs. 17,32,640 towards cost of the warping machine in question along with interest @ 12% p.a. from 26.5.2006, Rs. 25,00,000 towards loss of business, Rs. 10,00,000 towards mental agony and Rs. 50,000 towards pecuniary loss.

THE necessary fact giving rise to this complaint are as follows: THE complainant No. 1 M/s. Shree Ram Sulz Fab (P) Limited, is a company registered under the Companies Act, 1956 and is engaged in manufacture of fabric and textile work and the complainant Nos. 2 to 4 are its Directors. It was further stated in the complaint that for the purpose of manufacture of fabric and clothes, the complainants have decided to purchase a new Japiter Sectional warping machine with individual tension control creel model JM-100 (for short "the warping machine") from the opposite party-Jupiter Enterprises and through letter Annex. 2 dated 22.2.2006, the opposite party sent the sales agreement dated 22.2.2006 for supply of the said warping machine along with technical details, price and terms and conditions and as per the terms and conditions annexed with the sales agreement Annex. 2, the machine was guaranteed for a period of one year from the date of dispatch against any defect in workmanship and if any part was found defective during this period, the same shall be repaired or replaced by the opposite party free of cost. It was further stated in the complaint that the opposite party assured that the warping machine, which was going to be supplied by it, was based on new technology and it would fulfil the requirements of the complainants and after its installation, the production would be considerably increased and it would give better results and more profits and it would also save time, labour and power. On that assurance of the opposite party, the complainants have placed order on the opposite party to supply the warping machine in question. It was further stated in the complaint that the warping machine in question was purchased by the complainants from the opposite party for Rs. 17,32,640 and the bills of that warping machine dated 10.5.2006, 23.5.2006 and 26.5.2006 are marked as Annex. 3, Annex. 4 and Annex. 5 respectively and for purchase of that warping machine, the complainants took loan from the State Bank of India, Branch Bhilwara. It was further stated in the complaint that the warping machine in question was installed by the opposite party in the factory premises of the complainants at Bhilwara on 10.5.2006 and according to the complainants, since then, it was not working properly and it was in extremely bad state and it was generating damaged goods/clothes and, thus, there was some defect in it and for that, the opposite party was orally informed and despite repeated oral requests for removing defects and repairing the warping machine in question, no heed was paid by the opposite party and, therefore, on 1.11.2006, the complainants wrote a letter (Annes. 6) to the opposite party stating that the warping machine supplied by it was not working properly since the date of installation and it was defective one as it was generating defective goods/clothes and because of that, it could not be used and it was lying idle for the last six months and, thus, a request was made to the opposite party to arrange to get the warping machine repaired or replace it with new one within seven days. It was further stated in the complaint that when no reply was received from the opposite party, the complainants again wrote a letter dated 15.11.2006 (Annex. 8) to the opposite party with a request to either repair the warping machine in question or replace it by new one within 15 days failing which the opposite party would be held liable for the loss suffered by the complainants. It was further stated in the complaint that thereafter, through letter dated 15.11.2006 (Annex. 10), the opposite party asked the complainants to confirm the following charges, so that the service engineer could be deputed along with spare part: "1. To and fro actual bus fare. 2. Free lodging and boarding. 3. Rs. 250 per day per Erector as out of pocket expenses. Pedestal without bearing and sleeve Price: Rs. 1,250 each."

It was further stated in the complaint that thereafter, on 18.11.2006, the opposite party replaced the drum pedestal, bearing and other parts of the warping machine, but despite that, the warping machine was not working properly and clothes could not be made by it. It was further stated in the complaint that housing drum of the warping machine was not working properly and it was defective one and, thus, a request was made to the opposite party to replace the warping machine in question, but that request of replacing the warping machine was rejected by the opposite party through letter dated 25.11.2006 (Annex. 11). It was further stated in the complaint that since the warping machine in question supplied by the opposite party was defective one as it was generating damaged goods/clothes and it was not working properly and there were problems in it and threads and clothes could not be got prepared by it thereby causing loss to the complainants, therefore, through letter dated 12.12.2006 (Annex. 12), the complainants again made a request to the opposite party to either replace it by new one or fully repair it failing which the complainants would be compelled to take legal action against opposite party. It was further stated in the complaint that thereafter, through letter dated 19.12.2006 (Annex. 14), the opposite party informed the complainants that if they wanted to again get the warping machine repaired, then they were required to send to the opposite party a demand draft for Rs. 15,000 in advance towards engineer''s to and fro traveling expenses, lodging and boarding, etc. It was further stated in the complaint that thereafter, on 27.12.2006, the service engineers of the opposite party came Bhilwara and checked the warping machine in question and as per field service report (Annex. 15) dated 27.12.2006, the service engineers of the opposite party assured to instal a new drive with latest programme on 28.12.2006. It was further stated in the complaint that on 28.12.2006, the warping machine was again checked and a new drive with new and latest programme was installed which is evident from the field service report Annex. 16. It was further stated in the complaint that on 29.12.2006, after installing new drive with latest programme, the warping machine was again checked by the service engineers of the opposite party, but still warping machine was not run empty, which is evident from the field service report Annex. 17. It was further stated in the complaint that on 30.12.2006 and 31.12.2006, the warping machine was again checked by the service engineers of the opposite party, which is evident from the field service report Annex. 18. It was further stated in the complaint that on 1.1.2007, the warping machine was again checked by the service engineers of the opposite party and switch for creel slop motion was installed in the warping machine and 250 mt. length programme was given, which is evident from the field service report Annex. 19. It was further stated in the complaint that on 2.1.2007, the warping machine was again checked by the service engineers of the opposite party and on checking at the programme of 250 metres length, the machine stopped two times and, thus, after laying beam, 20 mm gap was done, which is evident from the field service report Annex. 20. It was further stated in the complaint that on 3.1.2007, the warping machine was again checked by the service engineers of the opposite party and some repair work was done and warper was called for 2nd beam with yarn trial and since warper was busy in other work, therefore, he told to run the warping machine for 2nd beam tomorrow morning, which is evident from the field service report Annex. 21. It was further stated in the complaint that on 4.1.2007, the second trial of the beam was taken and at that time, the machine was stopped and it was not re-started and, thus, machine run relay was changed by new one. Further, while preparing second beam, the warping machine was once stopped and it was repaired and it was found that in the section, there was gap overlap, which makes damaged clothes, which is evident from the field service report Annex. 22. It was further stated in the complaint that the warping machine was being checked by the service engineers from 27.12.2006 after taking threads/yarns from the complainants, but still they could not manage to repair it fully and on 5.1.2007 and 6.1.2007, the warping machine was again checked by the service engineers of the opposite party and after taking yarn from the complainants, two beams were prepared, but both beams were damaged and since the warping machine could not get repaired fully by the service engineers of the opposite party, therefore, the complainants asked them to take back it and they also asked that now they would supply yarn only on making payment by them, which is evident from the field service report Annex. 23. It was further stated in the complaint that the warping machine was again checked by the service engineers on 8.1.2007 and since they were not being able to repair the warping machine in question fully despite supply of yarns/threads from time-to-time, therefore, the complainants asked them to take it back and replace it by new one. THE field service report dated 8.1.2007 is Annex. 24. It was further stated in the complaint that since the warping machine was not working properly and it was generating damaged goods/clothes and it could not get repaired fully by the service engineers during checking from 27.12.2006 to 8.1.2007, therefore, there was manufacturing defect in the warping machine in question and since it was under guarantee period, the opposite party was under obligation and bound to replace it by new one and when it was not fully repaired or replaced by new one, therefore, a legal notice dated 16.1.2007 (Annex. 25) through Advocate was served by the complainants upon the opposite party asking to replace the warping machine by new one within 10 days. It was further stated in the complaint that thereafter, a reply and counter notice Annex. 26 dated 5.2.2007 was received by the complainants from the opposite party through Advocate in which false and vague allegations have been made that since the complainants were not being able to deposit the instalments in the Bank, therefore, they wanted to return the warping machine to the opposite party. It was further stated in the complaint that on 28.2.2007, the warping machine in question was got checked and inspected by Chartered Engineer Mr. Radhey Shyam Rathi and after thorough examination and checking, through report Annex. 27 dated 28.2.2007, he opined that since inception the warping machine in question was giving allied problems mechanically and electronically and though Service Engineers of the opposite party remained for long time and tried to rectify the faults in brand new machine, but they could not start the machine satisfactorily. He further opined that the warping machine needed rectification/renovation in both mechanical and electronic system and its operating desk PLC based controller system was not functioning properly. Thus, it was submitted by the complainants that since the date of installation i.e. 10.5.2006 the warping machine in question was not working properly and it was causing problems and generating damaged goods/clothes and, therefore, it was defective one and despite repeated requests, the warping machine was not got checked and repaired by the opposite party and, thereafter, though service engineers were sent by the opposite party for repairing the warping machine in question and they checked the warping machine for a long time from 27.12.2006 to 8.1.2007 after taking yarns from the complainants and tried to repair it, but they could not manage to repair it fully and, thus, it is very much clear that the warping machine was having manufacturing defect and since the warping machine was under guarantee period, therefore, the opposite party was under legal obligation to either replace it by new one or refund the cost of it and by not doing so, the opposite party has committed deficiency in service. Apart from this, when the warping machine in question was guaranteed for a period of one year and when the defects and problems in it were pointed out within guarantee period, therefore, charging/demanding of amount for making its repair was not justified and that act also shows deficiency in service on the part of the opposite party. Hence, the present complaint was filed with the prayers as stated above. A reply was filed by the opposite party on 18.7.2007 denying the averments made in the complaint. THE main submissions of the opposite party are as follows- (i) That this State Commission has no jurisdiction to entertain the present complaint as the cause of action had arisen at Ahmedabad and as per terms and conditions of the bills of the warping machine in question, if any dispute arises between the parties, the same shall be subject to the jurisdiction of Ahmedabad (Gujarat) and, thus, the complainants should have filed the complaint before the Gujarat State Commission and the present complaint before the Rajasthan State Commission was not maintainable and the same was liable to be dismissed as no cause of action arose within the territorial jurisdiction of this State Commission.

(ii) That the warping machine in question was purchased by the complainants for commercial purpose and to earn profits and, thus, the complainants cannot be regarded as "consumers" within the meaning of Section 2(1)(d) of the Act of 1986 and from that point of view also, the present complaint was not maintainable and the same deserves to be dismissed as such.

(iii) That apart from the above, it was further submitted that the complainants have purchased the warping machine in question in May, 2006 and after six months on 30.10.2006, the complainants came to the office of the opposite party and requested to take back the warping machine and upon this, opposite party asked the complainants whether there was any problem in it and at that time, complainants requested that there was no problem in the warping machine and it was OK and was in working condition and speed was also high, but before purchasing that machine they were under the impressions that they would receive bulk orders from the market and earn more profits and, therefore, they purchased the machine after taking loan from the bank, but since orders were not materialized, therefore, they were facing difficulty to pay instalment of the loan to the Bank and upon this, opposite party told that it was ready and willing to replace that machine if there was any manufacturing defect in it and therefore, in these circums-tances, the complainants have got up the story after 30.10.2006.

(iv) That no doubt the warping machine was under guarantee period, but as per terms and conditions annexed with the sales agreement Annex. 2, the complainants were required to arrange free lodging and boarding, ''to and fro'' bus/rail fare to two Engineers, Rs. 250 per day per person as local conveyance out of pocket expenses. On receiving the call from the complainants, the opposite party sent service engineers to Bhilwara to check the warping machine in question, but the complainants had not provided necessary assistance and required tools to them and despite their non-cooperation, the warping machine in question was repaired by the service engineers on their own efforts and even the service engineers were not paid the travelling expenses by the complainants. Apart from this, on one hand, the complainants have stated that the warping machine was not operational and lying idle since long and on the other hand, they have complained regarding damage of housing of the main drum and, thus, they have made contradictory statement. THE damage of the housing could not occur without running the machine.

(v) That the opposite party was always ready and willing to repair or remove the alleged defects in the warping machine in question and for that, the opposite party had sent their service engineers to the factory premises of the complainants at Bhilwara for checking and repairing the machine in question and they fully repaired the warping machine and put it in operational and working condition and, thereafter, they requested the complainants to supply some meters of yarn to prove that the machine was in working condition, but the complainants had not cooperated and they had not provided yarn to the service engineers and, thereafter, the opposite party had asked the complainants on phone and also on fax to supply the yarn for demonstration and it was also made clear that if there would be any wastage of yarn the opposite party would bear the whole expenditures of the yarn, but in spite of that assurance, the complainants had not supplied the yarn and even they had not provided labour, lodging and boarding facilities and travelling expenses to the service engineers. Thus, when the service engineers of the opposite party have repaired the warping machine in question fully and put it in operational and working condition, therefore, it cannot be said that there was deficiency in service on the part of the opposite party.

(vi) That there was no manufacturing defect in the warping machine in question and whatever defects and problems were pointed out by the complainants, the same were rectified and solved and the warping machine was put in fully operational and working condition by the service engineers of the opposite party. Hence, deficiency in service could not be attributed on the part of the opposite party.

(vii) That the defects and problems pointed out by the Chartered Engineer of the complainants in his report Annex. 27 dated 28.2.2007 cannot be said to be manufacturing defects and they were minor caused due to only non-use of the machine in question and since the complainants were not receiving bulk orders from the customers, therefore, they were not interested to keep that machine with them and by alleging bogus or immaterial defects, the complainants wanted to get refund of the money of that machine. THE chartered engineer in his report Annex. 27 has also stated that it was a second machine sold by the opposite party, but that does not mean that it was a defective machine and it was not manufactured properly with care and technology. THE opposite party had also sold warper machine to other customers also and till date nobody has complained about that machine. Thus, from the above submissions, it is very much clear that there was no manufacturing defect in the warping machine in question and whatever defects and problems pointed out by the complainants, the same were got removed and solved by the opposite party and the warping machine was put in fully operational and working condition and, thus, it cannot be said that the opposite party had committed deficiency in service or adopted unfair trade practice and hence, the present complaint deserves to be dismissed with costs.

We have heard the learned Counsel appearing for the complainants and the learned Counsel appearing for the opposite party and gone through the entire materials and documents available on record.

There is no dispute on the point that the complainants have purchased the warping machine in question from the opposite party for Rs. 17,32,640 and the same was installed at the factory premises of the complainants at Bhilwara on 10.5.2006.

THERE is also no dispute on the point that as per terms and conditions annexed with the sales agreement Annex. 2 date 22.2.2006, the warping machine was guaranteed for a period of one year from the dated of dispatch against any defect in workmanship. The relevant portion providing guarantee is quoted here: "Guarantee our machine is guaranteed for a period of one year from the date of dispatch against any defect in workmanship and any party found defective during this period shall be repaired or replaced by us free of cost. However, these do not include electrical/electronic items for which no guarantee is received by us."

There is also no dispute on the point that through letters Annex. 6 dated 1.11.2006 and Annex. 8 dated 15.11.2006, the complainants pointed out some defects and problems in the warping machine in question and requested the opposite party to either repair it or replace it by new one. There is also no dispute on the point that through letter Annex. 10 dated 15.11.2006, the opposite party asked the complainants to confirm free lodging and boarding and to and fro actual bus fare and other expenses to the service engineers so that they could be deputed along with spare parts.

THERE is also no dispute on the point that on 18.11.2006, the drum pedestal, bearing and other parts of the warping machine in question were changed and replaced by the opposite party. There is also no dispute on the point that thereafter, the complainants again pointed out that the housing drum of the warping machine in question was defective and it was not working properly and made a request to the opposite party to replace the housing drum. There is also no dispute on the point that through letter Annex. 11 dated 25.11.2006, the opposite party informed the complainants that they cannot offer any compensation and replacement.

THERE is also no dispute on the point that, thereafter, the complainants through letter Annex.12 dated 12.12.2006 again pointed out some defects and problems in the warping machine in question and made a request to the opposite party to repair the machine in question within 7 days failing which the opposite party would be held liable for the loss of production.

THERE is also no dispute on the point that through letter Annex. 14 dated 19.12.2006, the opposite party informed the complainants that the opposite party was ready to again do the work and attend all the points as mentioned in the letter Annex. 12, but in that case, they need demand draft for Rs. 15,000 in advance towards engineer''s to and fro travelling expenses, lodging and boarding, etc. There is also no dispute on the point that thereafter, the opposite party deputed their service engineers at the factory premises of the complainants at Bhilwara and they checked the warping machine in question from 27.12.2006 to 8.1.2007, which is evident from the field service reports Annex. 15 to Annex. 24.

From the field service report Annex. 22 dated 4.1.2007, it appears that the warping machine in question was making damaged clothes as there was over lap in the section.

AS per field service report Annex. 23 dated 5th and 6th January, 2007, two beams were prepared by the service engineers of the opposite party, but both were damaged and thus, the complainants asked the service engineers that next time they would supply the yarn only on payment basis and they also requested the service engineers to take the machine back. As per field service report Annex. 24 dated 8.1.2007, the warping machine in question was ready to produce quality beam without any problem and the complainants refused to provide yarn to the service engineers of the opposite party, but it does not bear the signatures of the complainants and it only bears the signatures of the service engineers.

THERE is also no dispute on the point that on 28.2.2007, the complainants have got the warping machine in question checked by chartered engineer Mr. Radhey Shyam Rathi, who through report Annex. 27 dated 28.2.2007 opined that since inception the machine started giving allied problems mechanically and electronically and service engineer of the opposite party remained for long time and tried to rectify the faults in brand new machine, but they could not start the machine satisfactorily. Thus, in the facts and circumstances just narrated above, the following points arise for consideration and determination: (i) Whether this State Commission has jurisdiction to entertain the present complaint? (ii) Whether since the machine was purchased for commercial use, therefore, the complainants cannot be regarded as "consumers" within the meaning of Section 2(1)(d) of the Act of 1986? (iii) Whether there was any manufacturing defect in the warping machine in question supplied by the opposite party to the complainants in the month of May, 2006? (iv) Whether the warping machine in question was having any defect and problem other than manufacturing defect and if that is so, to what extent, the complainants are entitled to get compensation from the opposite party?

Point No. 1-regarding jurisdiction On that point, the case of the learned Counsel for the opposite party is that since the cause of action had arisen at Ahmedabad (Gujarat) as the complainants had placed order for purchase of warping machine in question at Ahmedabad (Gujarat) and they had also made payment of that machine at Ahmedabad (Gujarat) and furthermore, opposite party is doing business at Ahmedabad (Gujarat) only and its registered office and factory are also situated at Ahmedabad (Gujarat) only and apart from this, as per terms and conditions of the bills of warping machine in question, if any dispute arises between the parties, the same would be subject to the jurisdiction of Ahmedabad (Gujarat), therefore, in these circumstances, this State Commission has no jurisdiction to entertain the present complaint and the same is liable to be dismissed, as no cause of action arose within the territorial jurisdiction of this State Commission and, furthermore, the opposite party has no Branch Office in the territorial jurisdiction of this State Commission.

ON the other hand, it has been submitted by the learned Counsel for the complainants that no doubt warping machine in question was purchased from Ahmedabad (Gujarat), but the same has been installed at Bhilwara (Rajasthan) where the warping machine had become defective and the complainants are having registered office and factory at Bhilwara (Rajasthan) and they are resident of Bhilwara (Rajasthan), therefore, in such circumstances, this State Commission has jurisdiction to try the present complaint as the cause of action had arisen at the place where the contract came to be performed i.e. Bhilwara, which was within the territorial jurisdiction of this State Commission.

IT may be stated here that in suits arising out of contract, the cause of action arises within the meaning of Section 20 (C) of the CPC out of any of the following places- (i) the place where the contract was made; (ii) the place where the contract was to be performed or came to be performed; (iii) the place where in performance of the contract, any money due thereunder expressly or impliedly has to be carried out.

In suit for damages for breach of contract, cause of action consists of making of contract and of its breach so that suit may be filed either at the place where contract was made or at the place where it could have been performed or where breach of contract occurred. In suit for damages for breach of contract, the venue for filing suit on contract is determined on the aforesaid aspects and principles. IT may also be clarified that suit on contract can be filed at a place where cause of action has arisen in whole or in part of the cause of action. In the present case, no doubt warping machine in question was purchased by the complainants from Ahmedabad (Gujarat), the place where contract was made, but it has been installed at Bhilwara (Rajasthan), the place where the contract was to be performed or came to be performed and where some defects and problems were found in the warping machine in question, therefore, this State Commission has jurisdiction to try the present complaint as the cause of action arose at the place where the contract came to be performed i.e. Bhilwara (Rajasthan), which was within the territorial jurisdiction of this State Commission. Furthermore, the complainants are resident of Bhilwara (Rajasthan) and their factory and registered office are also situated at Bhilwara (Rajasthan).

No doubt in the bills of the warping machine in question, there is expression "subject to Ahmedabad jurisdiction", but it does not oust the jurisdiction of Courts/Consumer Fora elsewhere competent to try the suit/complaint. The exclusion of jurisdiction has to be unequivocal, total, perfect, straight and down-right. The clause "subject to Ahmedabad jurisdiction" without the words "alone" or "only", the exclusion of the jurisdiction at other places is not implied.

THUS, it is held that this State Commission has jurisdiction to try the present complaint and, accordingly, the point No. 1 is decided in favour of the complainants and against the opposite party. Point No. 2-whether complainants are consumers or not On that point, the case of the learned Counsel for the opposite party is that since the warping machine in question was purchased by the complainants for commercial purpose and the same was being used to earn more profits, therefore, the complainants cannot be regarded as consumers within the meaning of Section 2(1)(d) of the Act of 1986.

ON the other hand, it has been submitted by the learned Counsel for the complainants that even though the warping machine in question was purchased for commercial purpose, but since there was defect and deficiency in service during guarantee period, therefore, the complainants are entitled to approach Consumer Fora under the Act of 1986 and they should be treated as consumers within the meaning of Section 2(1)(d) of the Act of 1986. In this case, there is no dispute on the point that the complainants have purchased the warping machine in question from the opposite party in May, 2006 and there is also no dispute on the point that there was a guarantee of one year of the warping machine in question and there is also no dispute on the point that the defects and problems in it were pointed out by the complainants within the guarantee period. It is settled law that even if the goods are purchased for commercial purpose and if there was a guarantee, then the purchaser becomes a consumer for the service to be rendered by the manufacturer/supplier during the guarantee period.

IN East INdia Construction Co. & Anr. v. Modern Consultancy Services & Ors., II (2006) CPJ 289 (NC)=2006 (2) CPR 66 (NC), the Hon''ble National Commission has held that even though the machine/equipment was used for commercial/industrial purposes if any defect occurred during the warranty period then the issue would be covered under the Act of 1986 and for that purpose, purchaser of the equipment/machine would be entitled to file a complaint under the Act of 1986.

IN Pearlite Liners Ltd. v. Thermo Jarrell Ash Corporation and Another, IV (2006) CPJ 375 (NC)=2006 (1) CPR 4 (NC), the Hon''ble National Commission has also held that even though equipment was purchased for a commercial purpose, if there was a defect or deficiency in service during the warranty period, the buyer would be deemed to be a consumer within the meaning of Section 2(1)(d) of the Act of 1986. Thus, in view of the above decisions of the Hon''ble National Commission, even though the warping machine in question was purchased by the complainants for commercial purpose, but since it suffered the defects during its guarantee period of one year, therefore, the complainants are well within their right to approach the Consumer Fora under the Act of 1986, they being consumers in respect of services rendered or to be rendered by the opposite party (seller) for the proper functioning of the warping machine in question during the period of guarantee.

Hence, it is held that the complainants are consumers within the meaning of Section 2(1)(d) of the Act of 1986 and, accordingly, the point No. 2 is also decided in favour of the complainants and against the opposite party. Point No. 3-regarding manufacturing defect

ON that point, the case of the learned Counsel for the complainants is that the warping machine in question was installed in their factory premises at Bhilwara on 10.5.2006 and since then it was not working properly and it was causing problems and generating damaged goods/clothes and on making complaint, its drum pedestal, bearing and other parts were changed and replaced by the opposite party on 18.11.2006, but even then, the warping machine in question was not working properly and causing problems and generating damaged goods/clothes and thereafter, it was again checked by the service engineers from 27.12.2006 to 8.1.2007, which is evident from field service reports Annex. 15 to Annex. 24, and they tried to repair it, but they could not rectify the faults in the brand new machine and even after repair, the warping machine in question was making damaged clothes and, thus, it is evident that there was manufacturing defect in the warping machine in question and since it was under guarantee period, the opposite party was under obligation to either replace it by new one or to refund the price of it and by not doing so, the opposite party had committed deficiency in service. On the other hand, it has been submitted by the learned Counsel for the opposite party that there was no manufacturing defect in the warping machine in question and it was OK and functioning properly since the date of its installation at the factory premises of the complainants at Bhilwara on 10.5.2006. Whatever defects and problems were pointed out by the complainants in the warping machine in question, the same were got removed and solved by the opposite party and the machine was put in fully operational and working conditions. Apart from this, it was further submitted that after six months of installing the warping machine in question, the opposite party received complaint from the complainants that the machine was having some problems and upon this, the opposite party sent its service engineers, who checked the machine in question and repaired it fully and also replaced some parts, etc. and as per the terms and conditions annexed with the sales agreement Annex. 2, the complainants were required to arrange free lodging and boarding, to and fro bus/rail fare to two engineers, Rs. 250 per day per person as local conveyance out of pocket expenses, but the complainants did not make such arrangements and they also did not pay the expenses and despite that the machine in question was repaired by the service engineers of the opposite party and, thereafter, the opposite party had also sent its service engineers to Bhilwara for checking and repairing the machine, but they were not provided cooperation and necessary assistance and even yarn for testing the machine was not given to them by the complainants, but still they made the repair work and put the machine in OK and fully working and operational condition with their own efforts. Furthermore, the defects pointed out by the chartered engineer of the complainants in his report Annex. 27 dated 28.2.2007 cannot be regarded manufacturing defect and they are very minor caused due to non-use of the machine and since the complainants were not receiving expected bulk orders from the customers, therefore, they alleged bogus and immaterial defects and wanted to get back the price of the machine in question. As a matter of fact, there was no manufacturing defect in the warping machine in question.

THE words "manufacturing defect" means an unintended aspect of a finished product due to error or omission in assembly or manufacture, that causes injury. In our considered opinion, looking to the entire facts and circumstances of the case and looking to the fact that the warping machine in question was installed at the factory premises of the complainants at Bhilwara in May, 2006 and the defects in it for the first time were pointed out by the complainants in November, 2006 i.e. after about six months of its installation, it cannot reasonably be inferred or presumed or concluded that the warping machine was having manufacturing defect at the inception. If there would have been manufacturing defect in the warping machine in question, the same should have been pointed out by the complainants at the very inception of its installation. Furthermore, there is no evidence of any expert to show that there was any manufacturing defect in the warping machine in question. No doubt field service reports have been produced, which show that there was some defect and problems in the warping machine in question, but from the field service reports, it cannot be said that there was manufacturing defect in the warping machine in question.

THUS, it is held that the warping machine in question supplied by the opposite party to the complainants in May, 2006 was not having any manufacturing defect and, accordingly, the point No. 3 is decided against the complainants and in favour of the opposite party. Point No. 4-whether warping machine was having any defect other than manufacturing defect

AS already stated above, the warping machine in question was installed at the factory premises of the complainants at Bhilwara in May, 2006 and as per terms and conditions annexed with the sales agreement Annex. 2 dated 22.2.2006, the warping machine was guaranteed for a period of one year and the complainants through letters Annex. 6 dated 1.11.2006 and Annex. 8 dated 15.11.2006 pointed out some defects and problems in the machine in question and on 18.11.2006, the opposite party replaced drum pedestal, bearing and other parts of the machine in question, but again through letter Annex. 12 dated 12.12.2006, the complainants pointed out some defects and problems in the warping machine in question and, thereafter, the opposite party sent its service engineers to Bhilwara for checking and repairing the warping machine in question and they checked the warping machine in question from 27.12.2006 to 8.1.2007, which is evident from the field service reports Annex. 15 to Annex. 24 and during that period, the service engineers installed new drive with latest programme and made changes in the programme for better performance of the warping machine, but machine was not run empty, which is evident from the field service report Annex. 17 dated 29.12.2006 and, thereafter, switch for creel slop motion was installed in the machine in question and problem of first beam was solved and on 4.1.2007, 2nd trial beam was taken and at that time, machine was stopped and problem was solved by changing machine run relay by new one and while preparing second beam, machine was stopped and it was got repaired by the service engineers, but there was gap over-lap in the section, which makes the damaged clothes, which is evident from the field service report Annex. 22 dated 4.1.2007. Thereafter, machine in question was again checked by the service engineer on 5th and 6th January, 2007 and two beams were prepared, but both were damaged and, thus, the complainants asked for payment of yarns supplied by them to the service engineers and they also asked the service engineers to take the machine back, which is evident from the field service report Annex. 23 and as per field service report Annex. 24 dated 8.1.2007, which does not bear the signatures on behalf of the complainants, the complainants refused to provide the yarn and the machine was ready to produce quality beam without any problem. Apart from this, there is a report dated 28.2.2007 (Annex. 27) of the chartered engineer Mr. Radhey Shyam Rathi, who opined that since inception, the machine started giving allied problems mechanically and electronically and service engineers of the opposite party tried to rectify the faults in brand new machine, but they could not start the machine satisfactorily. The relevant observations made by Mr. Rathi in his report Annex. 27 are quoted here: "Warp yarn and its number of sections is not homogeneously laid on warping drum as overlapping and gapping problem in warp yarn. This will create similar type of problem in beam drum. Because of this problem there may be possibility of frequent breakages of yarn on looms, quality of fabrics damaged, efficiency of looms decreased. This problem is mainly as PLC System (Programme Logic Control) and PID Control System provided on m/c is not functioning properly. Even at 400 rpm of warping roller speed, due to centrifugal force uneven Torsional stresses developed hence brake alignment problem. Alignment of waxing motor problem, caused failure of frequent mechanical parts due to improper design and mis alignment in mechanical system/accessories provided to new machine. It has been observed due to mis-alignment in new machine main warping drum and beam drum pedestals broken/damaged. The purpose for which client has intended/procured this latest version PLC System warping m/c has been vanished because its operating desk PLC based controller system is not functioning properly. Hence in my opinion, machine needs rectification/renovation in both mechanical and electronic system to meet the customer need of textile market and globalization. On inquiry we have observed that supplier has introduced this m/c 1st time and this is his 2nd machine being supplied to client. For safe and efficient performance of other similar types of m/c available with PLC based version system in market I am of the considerate opinion that if supplier want to stand in competitive textile market machine need suitable renovation/rectification in the existing new machine as per the salient features and system facilities written in their sales agreement and leaflet provided."

In our considered opinion, looking to the entire facts and circumstances of the case and looking to the field service reports Annexes. 15 to Annex. 24 and looking to the report Annex. 27 dated 28.2.2007 of Chartered Engineer Mr. Radhey Shyam Rathi, it can reasonably be inferred or presumed or concluded that there was some defect and problem other than manufacturing defect in the warping machine in question and since the same occurred during the guarantee period, therefore, the opposite party was under obligation to rectify the defects and problems and repair the warping machine fully to the satisfaction of the complainants free of cost and since the opposite party had not removed and solved the defect and problems in the warping machine in question fully to the satisfaction of the complainants, therefore, in these circumstances, it can easily be concluded that there was deficiency in service on the part of opposite party.

THUS, it is held that the warping machine in question was having defect other than manufacturing defect and, accordingly, the point No. 4 is decided in favour of the complainants and against the opposite party. On point of compensation As already held above, there was some defect and problem other than manufacturing defect in the warping machine in question and the same occurred during the guarantee period and the service engineers of the opposite party tried to remove the defect and problems in it, but it appears that they could not rectify the defects and problems fully to the entire satisfaction of the complainants thereby causing mental agony, harassment and loss to the complainants and, thus, there was deficiency in service on the part of the opposite party. Apart from this, though the defect and problems in the warping machine in question were to be removed and solved by the opposite party free of cost as the same were pointed out during guarantee period, but the opposite party refused replacement of some parts and also demanded expenses even in advance and such attitude and act on the part of the opposite party also reflects deficiency in service.

THE complainants have purchased the warping machine in question for Rs. 17,32,640 and for that, they took loan from the bank, but they could not make its maximum utilization as it was not got repaired by the opposite party satisfactorily and though it was under guarantee period, the opposite party refused replacement of some parts of it and also demanded advance expenses for sending the engineers for repair thereby causing mental agony, harassment and loss to the complainants. It may be stated here that measure of damages is the determination of how much money is to be ordered to be paid by a defendant to a plaintiff in compensation for loss or harm caused by the former''s breach of duty. In general, damages are measured by fair compensation, not punishment, but in a few cases English law allows exemplary or punitive damages. The guiding principle of damages is a corollary of the fault principle. And the principle is that the blameworthy should compensate the blameless in commensurate to the injury sustained so that it is repaired.

IN our considered opinion, looking to the entire facts and circumstances of the case and looking to the fact that the complainants have invested Rs. 17,32,640 to buy the warping machine in question and for that, they took loan from the bank, but they could not make its maximum utilization as it was not got repaired by the opposite party satisfactorily and for the period from 27.12.2006 to 8.1.2007, the service engineers of the opposite party continuously tried to repair the machine in question and it was under their control, but they could not fully repair it to the entire satisfaction of the complainants and because of that, the complainants could not use the machine for that period, which has not only caused mental agony and harassment, but also financial loss to the complainants, ends of justice would be met if a lump sum compensation to the tune of Rs. 3 lacs, which appears to be just, proper, reasonable and equitable, in the fitness of things, is awarded to the complainants and to that extent this complaint deserves to be allowed partly. Accordingly, this complaint filed by the complainants is allowed partly to the extent and in the manner that the opposite party is directed to pay to the complainants a sum of Rs. 3 lacs (Rs. three lacs only) as lump sum compensation within two months from today and the opposite party is further directed to pay to the complainants a sum of Rs. 10,000 (Rs. ten thousand only) as cost of litigation. It is made clear that in case the above amount was not paid by the opposite party to the complainants within two months from today, then the complainants would be entitled to get interest on the above amount at the rate of 9% p.a. from the date of filing this complaint till payment was made. Complaint partly allowed.