SURAJ PARKASH vs JOGI REFRIGERATORS

THIS is a complaint filed by Sh. Suraj Parkash against M/s. Jogi Refrigerators, 9, Industrial Area, Phase II, Chandigarh, through its proprietor, Sh. Joga Singh seeking issuance of direction to the opposite party to replace the defective machine or refund the cost of machine amounting to Rs. 28,300/- along with interest @18% p.a. w.e.f. 22.5.2000 till the date of payment and to pay a sum of Rs. 5 lacs as compensation for loss of earning, mental agony and harassment. A sum of Rs. 5,500/- has been claimed as costs of the complaint.

THE averments made in the complaint dated 7th March, 2001 stated briefly are that the complainant purchased a new Ice-cream making machine from the opposite party for a sum of Rs. 28,300/- vide Cash Memo No. 245 dated 22.5.2000. THE photocopy of the cash memo was placed on record as Annexure C-1. It is alleged that the opposite party assured about the best after-sale service and gave written warranty for one year against the workmanship. THE Ice-cream Machine was installed at village Balongi. After a few days, it has been contended the machine started giving problems and failed to function properly. THE complainant informed the opposite party, firstly on phone and subsequently during personal visits about the non-working of the machine but the opposite party did not take any steps to check, repair or replace the defective machine. It has been contended that the complainant suffered irreparable loss to the tune of Rs. 5 lacs on account of loss of earning including expenditure on raw material, payment of interest and other expenses like rent, electric charges etc. According to the averments made in the complaint the opposite party was deficient in providing the promised services. A complaint had been filed initially before the District Consumer Disputes Redressal Forum, Ropar on 14.9.2000, which was returned to the complainant on 16.12.2000 for want of jurisdiction vide copy Annexure C-2. It was mentioned that the cause of action arose in the first week of June, 2000, thereafter from day to day. The opposite party, in response to the notice of the complaint filed written reply. It was alleged that the machine has been purchased for commercial purpose and as such the complaint is not maintainable before the Commission. It has also been contended that the averments made in the complaint are vague as the complainant has not specified any particular defect in the machine. The complainant, it was alleged runs business of selling softy ice-creams and he has not suffered any loss due to alleged non-functioning of the Ice-cream Machine. The allegation of deficiency in service has been denied. It has also been denied that there was any defect of any kind in the machine.

The complainant filed his own affidavit in evidence. The opposite party filed affidavit of Sh. Joga Singh. Along with the reply affidavit Annexure R-2 was annexed which has been signed by the complainant on 12.6.2000, wherein, the complainant certified that the aforesaid Ice-cream Machine was in perfect order and to his satisfaction.

THE learned Counsel for the complainant and the learned Counsel for the opposite party made their submissions. We have perused the affidavits and the documents placed on record. Undisputedly, the complainant purchased Ice-cream Machine for a sum of Rs. 28,300/-, which included the sales tax and surcharge at the cost price of the machine. Annexure C-1 is the certified copy attested by the Notary. The complainant has in his affidavit in Para 6 tendered in evidence, deposed, inter alia as under : "6. That after a few days of installation, the machine started creating problems and failed to function properly. The deponent informed the opposite party on telephone and through personal visits regarding non-working of the machine properly...."

It is significant to note that the complainant did not specifically mention about the time or the date when the Ice-cream Machine started creating problems and also particular defect or problem created by the Ice-cream Machine.

IT is further mentioned in Para 10 of the affidavit that the cause of action arose in first week of June, 2000 and is a continuing cause of action since then. The machine was purchased on 22.5.2000 and first week of June is described to be the time when the cause of action arose. This is indicative of the fact that after some days of the installation of the machine, it created problems and did not function properly. The complaint had been filed before the District Consumer Disputes Redressal Forum, Ropar on 14.9.2000 and was returned for presentation to the State Commission on 6.12.2000. After careful perusal of the evidence on record, we find that the complainant miserably failed to point out any specific defect much less a manufacturing defect in the Ice-cream Machine. The opposite party has categorically denied the averments and Sh. Joga Singh, proprietor of the opposite party has in his affidavit deposed in Para 6, inter alia as under : "2.... It is submitted that there is no defect of any kind whatsoever in the machine, which is supported by a certificate given by the complainant to the opposite party on 12.6.2000, which is annexed with the affidavit."

It is also relevant to mention that the complainant did not ask for the cross-examination of Sh. Joga Singh with reference to the contents of his affidavit or with reference to the Annexure referred to in the affidavit and enhanced his Annexure R-2, wherein the complainant himself gave a certificate that the Ice-cream Machine was in perfect and good order to his satisfaction and the same was sent by him on 12.6.2000.

HOWEVER, the learned Counsel for the opposite party, Mr. Atul Aggarwal, stated at Bar that the opposite party with a view to help the complainant and proper functioning of the Ice-cream Machine is ready to offer the assistance of the opposite party in getting the machine properly examined and repaired, if necessary, to the satisfaction of the complainant. The complainant has failed to substantiate his allegation regarding the Ice-cream Machine having any defect, much less manufacturing defect. After this offer was made by the learned Counsel for the opposite party, we asked Mr. Rajan Gandhi, learned Counsel for the complainant to seek instructions of the complainant and inform the Commission accordingly. The complaint case was further reserved for orders after hearing arguments of both the sides. HOWEVER, the learned Counsel for the complainant did not inform this Commission about any instruction from his client. We have already referred to above evidence lead by the complainant and the opposite party.

SO far as the non-maintainability of the complaint is concerned, it may be mentioned that the complainant has purchased the said machine for earning his livelihood by means of self-employment. The complainant is a consumer as defined in Section 2(1)(d) of the C.P. Act read with Explanation appended thereto. The objection raised by the OP has, thus, no merit. In our considered opinion, the complainant has failed to substantiate the allegations made in the complaint regarding any deficiency on the part of the opposite party. The complaint deserves to be dismissed. However, as has been very fairly offered by the learned Counsel for the opposite party, the complainant can approach the opposite party regarding the examination of the Ice-cream Machine sold by the opposite party to the complainant and the opposite party as per the offer made before this Commission would extend all the help and assistance in the proper functioning of the Ice-cream Machine. With these observations, the complaint is dismissed. There shall, however, be no order as to costs. Copy of this judgment be communicated to the parties free of charges. Complaint dismissed.