ORDER

Mr. Justice J.M. Malik, Presiding Member -The machines have assumed significant place in this modern age. One machine can do the work of about 100 ordinary men, in just a few seconds. A machine is fast, accurate and obeys the commands of man. A machine is beneficial and a boon, when it is functional and sans defects but it is detrimental, harmful and ruinous a bane when it becomes defective and non-functional.

2. Now, we turn to the facts of the case in hand. This is one of the oldest cases filed in this Commission on 21.8.2000. Jan Seva Ashram, the complainant purchased a Backhoe Loader-cum-Excavator , machine to be used for a project on waste management and making compost out of garbage, in District Solan, Himachal Pradesh, from TIL Ltd., OP1. Copy of letter of offer dated 5.12.1998, along with the terms and conditions, including the warranty offered was placed on record as Annexure C-1 (colly). The machine was purchased for a sum of Rs. 14,00,000 as per the purchase order dated 23.12.1998, copy of which was placed on record as Annexure C-2. This is the first machine which is not the machine in dispute. The said machine was commissioned by Service Engineer of OP1 on 21.1.1999, vide Commissioning Report marked as Annexure C-3. The newly purchased backhoe loader was unauthorized operated by a worker who accidentally slipped the machine into a deep ditch. The said worker died in the accident and the machine was damaged beyond repairs. The complainant discovered that the charges for an overhaul of the damaged machine would almost equal the cost of a new machine. Therefore, the complainant decided to purchase a new backhoe loader machine from OP1, on the same terms and conditions.

3. Accordingly, OP1 sold a new backhoe loader machine to the complainant on the previous terms and conditions. This is the second machine, which is the machine in dispute. Further, OP1 agreed to take back the previous damaged machine at salvage value and adjusted this value against the price of the new machine.

4. The said second new machine was delivered on 1.7.1999. Mr. Manish Sharma, Engineer of OP1 arrived for the purpose of commissioning the machine, but could not commission it due to fundamental nature of defects in the same. The said Mr. Manish Sharma, went back to his office on 4.7.1999, without commissioning the machine because of the above said defects. He further promised that he would come again, after a couple of days, with the parts necessary to make the machine functional. After many requests, another Engineer, named Mr. D.K. Bhattacharjee, arrived. He, however, did not bring most of the parts necessary for repairing the machine. He tried to make the machine functional with whatever parts he had brought, however, his attempt failed and other problems cropped up. The Radiator of the machine also burst. When it was not commissioning, a veil of suspicion enveloped the complainant's mind that the machine was a used and an old one . On checking, it was observed that the tyres were old, with numerous cuts and cracks. The tyres supplied with the machine were manufactured in the year 1997. It also came to light that the pre-air cleaner of the engine had been fixed in the year 1997. The machine had the following problems:

"(a) the machine was not taking load ;

(b) the engine was overheating with only a few minutes of operation;

(c) the boom cylinder was not functional. Boom was coming down on its own;

(d) swing cylinder burst on operation;

(e) the diesel filters were completely choked. (Note This is impossible in a new machine);

(f) O ring got damaged on attempting to operate the machine:

(g) an important hose (rubber part) was cracked and leaking;

(h) elbow was cracked and needed replacement;

(i) there were no locks on the cabin doors and windows;

(j) there was only one ignition key. A new machine is always supplied with two keys."

5. Thereafter, correspondence went on between the parties. OP1 assured that they would carry out a comprehensive overhaul of