IMPORTANT POINT
Sale of defective machine invites compensation.

S. Coari, Member—The present petition of complaint has been filed by the complainant, Sri Omprakash Sharma being the sole proprietor of M/s. Pioneer Earth Movers & Equipments against the OPs, who are the Managers of Telco Construction and Equipment and Authorised Dealer of P.S. Earthmovers Pvt. Ltd. (OP Nos. 1 and 2 respectively) and the OP No.3, who is the Manager of HDFC Bank Ltd. thereby praying for a restraint order against the OP Nos. 1 and 2 from taking and/ or removing the J.D.R. Tata John Dere Model Hydraulic Backhoe Loader (hereinafter referred to as ‘Machine’) till the disposal of the present case and also for a direction upon the OPs for supplying a fresh machine with engine without any defect along with other equipments together with a compensation to the tune of Rs. 50,00,000.

2. The case of the complainant, in brief, is that the complainant, who had already purchased two similar types of Machine, purchased a third one i.e. the machine under dispute, valued at Rs. 17,61,000 and in the process paid an advance of Rs. 2,48,346.15 together with 17 installments amounting to Rs. 8,82,674 thereby totalling a sum of Rs. 11,31,020.15 in favour of the OP Nos. 1 and 2. According to the comp-lainant’s case, immediately after receipt of the machine it stopped working. The machine so purchased carried a warranty for a period of one year and 50 hours on hire purchase system. Within a couple of days of the aforesaid purchase of the machine it developed complications and not working properly. The complainant immediately informed the OPs whereupon the engineers and other employees of the OPs attended the machine in the absence of the complainant and in doing so without any prior intimation or information the employees of the OPs dismantled the engine and found the same defective. The agents/employees of the OPs after accepting a substantial amount from the complainant towards repairing charges certified the machine to be in proper working condition, but immediately thereafter the machine stopped working once again. The complainant once again intimated the OPs for taking effective measures for the repair of the faulty machine and/or replacement of the same. But in spite of repeated requests and demands the OPs did not care to take any positive steps in this regard. Rather the OPs demanded further money for effecting repair of the machine. Finding no alternative the complainant

has approached this Commission for redressal.

3. The OPs are contesting the case by filing separate written versions thereby denying all the material allegations and averments of the petition of complaint contending inter alia that the petition of complaint is not maintainable under the law. The complainant is not a Consumer in true sense of the term as per provisions of the Consumer Protection Act, 1986. There were no manufacturing defects in the machine in question. The engineer and/ or the men of the complainant attended the machine in question and found some minor fault/defect, which has been mended by taking adequate steps and/ or replacement of the machineries, etc. According to the OPs, the complainant having accepted the proposal of the OPs in the matter of repairing the machine in question by expending a further sum and the complainant having paid part of the repairing cost, question of replacing the machine by a new one does not arise at all. In the absence of any case of manufacturing defect, there is practically no merit in the petition of complaint and the subject matter of the dispute being outside the purview of the Consumer Protection Act the petition of complaint is liable to be dismissed with cost.

4. Upon pleadings of the parties the following issues are framed for proper adjudication of the case:

(1) Is the petition of complaint maintainable?

(2) Is the complainant a Consumer as per provisions of the Consumer Protection Act?

(3) Are the OPs liable to compensate and/ or replace the machine in question as prayed for by the complai