Back
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Dr. S.M. Kantikar, Presiding Member
Nagpur Agriculture Equipment
Engineers Private Ltd. and Anr. —Petitioners
versus
Premnath —Respondent
Revision Petition No.342 of 2015
(Against the Order dated 17/09/2014 in Appeal No. 629/2008 of the State Commission Maharashtra)
Decided on 2.7.2020
Counsel for the Parties:
For the Petitioners:Mr. Salil Paul, Advocate
For the Respondent:Ms. M. N. Hiwase, Advocate with Respondent in person
IMPORTANT POINTS
(1) If Complainant is able to create a high degree of probability of deficiency on part of Opposite Party, onus would shift on to Opposite Party to discharge onus to prove his denial.
(2) It is a misconceived notion that any machine or vehicle for that purpose any goods can be ordered to be replaced or cost can be ordered to be refunded only if they suffer from manufacturing defect.
Headnote:
(A) Consumer Protection Act, 1986 – Section 21 – Machinery – Manufacturing defect – Sale of defective Thresher Machine – Manufacturer as well as the supplier has duty to exercise due care and caution in providing a product/ machine which is fit for the purpose for which it is sold – Throwing of dust from feeding hole, in it shows that there is manufacturing defect in machine and no need to prove it – Technical certification was not absolute in this case. (Paras 5, 10 and 11)
(B) Consumer Protection Act, 1986 – Section 2(1)(f) – Machinery – Manufacturing defect – Sale of defective Thresher Machine – State Commission directed OPs to pay Rs. 1,02,500/- jointly and severally with 9% interest, to pay to complainant Rs. 5,000/- as compensation for mental and physical torture and Rs. 3,000/- towards cost – OPs were further directed to pay jointly and severally Rs. 100/- per day as loss of earning from date of purchase till date of payment – It is a misconceived notion that any machine or vehicle for that purpose any goods can be ordered to be replaced or cost can be ordered to be refunded only if they suffer from manufacturing defect – Generally, whenever a consumer goes for brand new goods like a thrasher in this case has minimum expectation that he would not encounter or face any inconvenience or hardship for few months or a year or within warranty – In case if he had to take the machine time and again to workshop or call technician time and again for removing one defect or other, certainly he suffers immensely loss of time, loss of business, physical discomfort and emotional sufferings for purchasing such new machine by paying heavy amount – Defect in thrasher in instant case continues for months together and erupts time and again – No other inference can be drawn than that machine suffers from manufacturing defect as defect which is not of manufacturing nature can be rectified or removed without its recurrence or without giving any further inconvenience to consumer – Onus shifts to manufacturer to show that machine does not suffer from manufacturing defect once complainant has proved and discharged initial onus that machine was defective – For such type of manufacturers and service providers, Consumer Forum and Commissions have to not only compensate consumer as to actual loss suffered by him but also to compensate him as to mental agony, harassment, emotional suffering, physical discomfort, loss of business, loss of time by taking vehicle time and again to workshop – Order passed by State Commission upheld. (Paras 12 to 17)
Result: Revision Petition dismissed.
ORDER
Dr. S.M. Kantikar, Presiding Member—This Revision Petition has been filed under Section 21(b) of the Consumer Protection Act, 1986, hereinafter referred to as the “Act 1986”, challenging the Order dated 17.09.2014 passed by the Maharashtra State Consumer Disputes Redressal Commission (for short “State Commission”) in First Appeal No. A/629/08 arising out of the Order dated 09.06.2008 in C.C. No. 559 of 2007 passed by the District Consumer Disputes Redressal Forum, Nagpur, (for short, ‘The District Forum”) wherein the appeal was partly allowed.
2. Briefly stated facts relevant for the disposal of this Petition, are that the complainant Premnath purchased a Sonalika thresher machine from Nagpur Agriculture Equipment Engineers Private Ltd. (OP-1) for Rs. 1,02,500/-. The machine was manufactured by M/s Sonalika Agro Industries Corporation (OP-2). It was alleged that due to the throwing of dust from the feeding hole, the machine could not work efficiently. The thresher work could not be done. The complainant alleged that it was due to manufacturing defect in the machine. The OP-1 did not heed attention to the repeated complaints of the complainant. The complainant sustained a loss of his earnings at Rs. 3,000/- per day. Alleging deficiency in service on the part of the OPs the complainant filed a complaint before the District Forum, Nagpur seeking compensation and replacement of the machine.
3. The OPs filed their respective replies and raised preliminary objection that the complainant was not a consumer; he purchased the machine for business purpose. The OP- 1 filed a civil suit against the complainant for recovery of unpaid price of the machine in question. The complainant has not filed any expert report to show that there was defect in the machine. The OPs denied any manufacturing defects in the thresher machine.
4. The District Forum, after taking into account the averments of the parties held that the complainant was using the machine for business purpose, thus not consumer and there was no expert report to prove defective machine and dismissed the complaint.
5. The Complainants filed Appeal under Section 15 of the Act before the State Commission. The Appeal was partly allowed by the State Commission with observation in its paras 10 and 11 as below:
10. The complaint shows that the appellant does not have any land in his name, so as to support his livelihood. He has filed the 7/12, extract showing name of some other person. This shows that the purchase of machine was only to support his livelihood. It’s a common experience that the persons from village always claim their profession to be farming though they may not have sufficient land which alone can sustain their livelihood so that any other extra profession can be termed as an extra commercial activity. Also the respondents have not produced any evidence to show that the appellant was dependent on another profession like farming and the thresher was purchased purely for commercial activity to earn profits. Thus, we see that the thresher was purchased only to earn livelihood by the appellant and can not be claimed to be an extra commercial activity so as to throw him out of the definition of Consumer. We feel the Forum erred in considering the livelihood activity to be the commercial activity.
11. The major contention raised by the respondent in the absence of technical report regarding defect in the thresher machine. But as a consumer, the appellant has filed the complaint with his experience of working on the machine that , it was throwing dust through feeding hole thereby making difficult to feed the raw material for processing. The appellant’s experienced difficulty in the functioning of the thresher. It then becomes the responsibility of the manufacturer and the seller i.e respondent Nos. 1&2 to give the reasons for the same and remove said defect. We do not find any cogent explanation, evidence or reason, to disbelieve the case of the appellant while operatin
