S.B. Sawarkar, Member:
1. The instant appeal is against the order of Additional D.C.D.R.F., Nagpur passed in CC No. 39/2010 dated 03/12/2010 granting the complaint and ordering as below.
i.The opposite party (for short O.P.) shall take away the defective lathe machine of 12 feet KMT Panjab Make from the complainant and shall provide him a new machine of the same make.
ii.If not possible, the O.P. shall return Rs.1,75,000/- paid by the complainant with interest at the rate of 12% from the date of acceptance of money and shall also return the ten cheques given by the complainant.
iii.O.P. shall pay Rs.15,000/- as agony compensation and Rs.1,000/- as cost to the complainant. The O.P. shall comply with the order in the span of 30 days.
2. The brief background facts are that the complainant-Gour Kishor alies Kishorbhai Govindchand Raut owner of M/s. Lucky Engineering , Nagpur made a complaint that he works as a turner in the above proprietary firm which he runs for his livelihood at Nagpur.
3. On 04/09/2008 he approached the owner of M/s Apex Tools of Mumbai, one Shri Navdeepshingh Sachdeva and made a deal to purchase 12 feet KMT Panjab Make lathe machine center height 18 inches and width 20 inches with 3 HP Motor RB starter and 20 inches doc chalk for Rs.2,88,750/-. He paid Rs.75000/- in cash, Rs.1,00,000/- by cheque and gave 10 post dated cheques of Rs.13,875/- each.
4. It is the case of the complainant that on 22/09/2008 the opposite party delivered an old painted defective machine to his Nagpur Firm in unpacked condition. The complainant on 23/09/2008 complained to the opposite party about the old machine and requested to replace it with new machine but did not get satisfying replies from the O.P.
5. He therefore, stopped the payment of the 10 cheques issued by him of BandM Cooperative Bank of Andheri Branch, Mumbai. He also sent a notice on 10/10/2008 which was refused to be accepted by the O.P. However, the complainant resent the notice from Nagpur also. He therefore, not getting the delivery of proper machine made a complaint before the Additional D.C.D.R.F., Nagpur requesting as fallows.
i.To direct the O.P. to exchange the old machine delivered to him by the new machine as per the order given on 04/09/2008.
ii.If not, the O.P. be directed to return the amount of Rs.1,75,000/- from the date of payment with interest at the rate of 18%.
iii.The O.P. be directed to return the 10 post dated cheques issued by the complainant.
iv.The O.P. to pay the complainant Rs.3,00,000/- for the mental and physical harassment.
6. The O.P. on notice by the Forum appeared and through written version denied the allegations and complaint made by the complainant. The O.P. countered that the complainant has 4 to 5 lathe machines and therefore he has purchased the machine for the purpose of commerce. Thus the complainant cannot be turned as a consumer. O.P. further objected that the deal of purchase was made at Mumbai and hence the Forum has no jurisdiction to try it at Nagpur. As well, the manufacturer of the machine one KMT Panjab is not impleaded in the complaint. Hence, the complaint be dismissed. The O.P. further denied that the delivered machine was old. O .P. submitted that as the post dated cheques given by the complainant bounced in the Bank it filed a criminal case against the complainant. The complainant has filed the complaint only to escape from the prosecution from the case. O.P. also denied to have received the notice from the complainant.
7. The Forum heard the argument and perused the documents filed by both the parties as evidence and held as under.
i.The machine was delivered at Nagpur. The complainant has paid Rs.1,75,000/- for the new machine.
ii.The complainant is a consumer and the dispute is covered under the Consumer Protection Act and the Forum is competent to hear the complaint.
iii.Though the complainant has signed the order form, which stipulated that all legal complaints to be tried within the jurisdiction of Mumbai, still such stipulation does not nullify the authority of Consumer Forum,Nagpur.
iv.The complainant though has 4 to 5 machines still he works as a turner and there is no evidence that the complainant, had other workers with him. Therefore, such objection of the O.P. does not hold ground.
v.The non impleading of manufacturer is not required as defect in machine is not the complaint of the complainant.
vi.As per the opinion of the Commission, the machine is old and is not good for job work and accuracy
8. Therefore, considering all the evidence, the Forum held the complaint to be proved and fastened the responsibility of deficiency of service to the O.P. and gave orders as above.
9. Aggrieved against the order the original O.P. filed the appeal and hence he is being referred as appellant and the complainant being referred as respondent herein after for brevity.
10. We heard both the Advocates and papers of the appeal filed before us. The appellant has reiterated the same grounds as were raised by him before the Forum stating therein that the deal was finalized at Mumbai and the O.P. has not delivered the machine at Nagpur. The purchase of the machine is for commercial purpose and it is not in the jurisdiction of the D.C.D.R.F., Nagpur, which failed to consider the evidence submitted before it. The Forum passed an unconsidered order and therefore, it needs to be set aside.
11. The appellant also raised objections to the report submitted by the Commissioner appointed by the Fourm stating therein that the Commission did not see the working of the machine as the respondent did not provide the raw material. The Commissioner failed to mention the date of the manufacture. The appellant requested for permission to cross examine the Commissioner which was turned down by the Forum. The Forum did not consider that the respondent had made a complaint to escape from the cheque bounce case filed by the appellant in Mumbai. The appellant further argued that the Forum below failed to order the respondent to return the machine back to Mumbai as appellant does not have any office in Nagpur. The Forum while giving an order to return the 10 cheques did not consider that the matter is pending before the competent Court at Mumbai.
12. The respondent countered the averments of the appellant by the same facts placed by him before the Forum. The respondent submitted vehemently that the machine was delivered in Nagpur and therefore the jurisdiction of D.C.D.R.F. Nagpur was invited. The Commissioner appointed by the Forum gave a clear opinion that the machine is old and has no accuracy. The complainant is engaged in the business for his livelihood and therefore is a complainant within the meaning of the Consumer Act. Thus the Forum appropriately considered the complaint and passed a well reasoned order. Therefore, it needs to be confirmed and the appeal needs to be dismissed.
13. We considered the contentions of both the parties. It is a fact that the machine was delivered at Nagpur. The Machine was inspected by the Commissioner appointed by Forum below. The Commission inspected the machine on 26/10/2010 in the presence of both the parties. The Commissioner Shri A.R. Pandav of Government I.T.I. Nagpur submitted his report in handwriting. In the report the expert officer has recorded many defects in the machine and has specifically mentioned that the machine is of bad quality and not good for job work and from accuracy. This clearly indicates that a new machine was not supplied and one supplied by the appellant is not of good quality and of good accuracy. This can only be possible in the old machine which can have such a battered appearance. This no doubt proves the complaint of the respondent and providing defective machine by the respondent.
14. We find that the Forum below has properly opined on the objections raised by the appellant. The cause of action arose within the jurisdiction of the Forum. It is no where on the record that the respondent has purchased the machine for the purpose of commerce which is not for his livelihood. Thus it has to be accepted that the respondent is covered by the definition of the Consumer as is provided in section 2(i)(d) of the consumer Act.
15. We considered the judgment passed by the Forum below. It is passed on the proper evaluation of the evidence and fact placed before it. It therefore appears to be correct and deserves confirmation.
16. However, we find that the direction passed in the judgment needs proper explanation for appropriate execution. We therefore intend to elaborate and improve it as below.
a) The appellant to supply the same make and specification lathe machine as was ordered by the respondent in new condition and of the same make at Nagpur in the span of 30 days.
b) If the appellant supplies the same make machine to the satisfaction of the respondent as per the original order, the respondent shall pay to the appellant the remaining cost of the machine at the todays price deducting the previously paid Rs.1,75,000/- .This amount shall be paid within 30 days of the delivery of the machine in Nagpur. Failing which the respondent shall pay interest at the rate of 12% p.a. over that amount till its final payemnt.
c) If the appellant opts to refund the amount then the appellant shall return the paid amount of Rs.1,75,000/- with interest at the rate of 12% p.a. from the date of delivery of machine i.e. 22/09/2008, till its realization..
d) The appellant shall return all the remaining cheques (i.e.) given by the respondent to the appellant which are not presented in the Court.
e) We do not pass any order in respect of the alleged Criminal Case initiated by the appellant against the respondent which would achieve its finality in the competent court as per the appropriate law.
f) Appellant to pay the respondent Rs.15,000/- for harassment and Rs.1,000/- as cost as per the order of the Forum.
g) The appellant shall execute the direction of this Commission in the time span of 30 days from the receipt of the order.
Thus elaborating and simplifying the order of the Forum below we pass the order as below.
i. The appeal is dismissed.
ii.The impugned order of the Forum is confirmed but shall be executed as per clause œa? to œg? of para 16 explained as above.
iii. Parties to bear their own cost.
iv. Member copies be returned to the appellant.
v.Copies of the order be given to both the parties.