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Mohini Wheat Product v/s Nalanda Agro Work & Others

    First Appeal Nos. 350 of 1999 & 40 of 2000

    Decided On, 31 October 2007

    At, National Consumer Disputes Redressal Commission NCDRC

    By, MEMBER

    For the Appellant: Madan Mohan, Advocate. For the Respondent: S.K. Sharma, Advocate.

Judgment Text

B.K. Taimni, Member:

1. These two appeals arise from a common order passed by the State Commission on a complaint filed by Mohini Wheat Products (Appellant in FA 350/1999) against Nalanda Agro Works (Appellant in FA 40 / 2000) as also the National Small Industries Corporation (hereinafter referred to as NSIC).

2. The undisputed facts of the case are that the complainant firm M/s. Mohini Wheat Products after entering into a ‘Hire-Purchase’ agreement with NSIC purchased a wheat processing plant, manufactured by Nalanda Agro Works. It was the case of the complainant before the State Commission that the equipments supplied by Nalanda Agro Works never worked and started giving troubles from the very beginning, for which Nalanda Agro Works sent their ‘Mistry’ more than once but still it could not be repaired. The matter was taken-up with the District Industries Centre (DIC), whereafter, a meeting took place between all the parties and finally an expert team from Central Food Technology Research Institute (CFTRI) and other technical people came on 26.2.1991 they found that the CFTRI team earlier had removed the defect and machine was running smoothly but according to the complainant machine never worked properly and it is in these circumstances a complaint was filed before the State Commission, which in the first round was dismissed by the State Commission as not being maintainable against which the complainant filed appeal before this Commission and the case was remanded back to the State Commission to pass the orders on merit. The State Commission after hearing the parties and perusal of material on record allowed the complaint in following terms:

'In view of the above discussion, we direct the OP No. 1 to take back the defective plant supplied to the complainant and replace it with defect-free plant. OP No. 1, on installation of the defect-free plant under the technical supervision of OP No. 1 will demonstrate for one week that the plant is giving trouble free smooth service. The machine shall be covered by guarantee period of one year from the date of demonstration of the machine. We further direct OP No. 1 to pay Rs. 50,000 to the complainant as compensation and Rs. 5,000 as cost. The aforesaid amount of compensation and cost shall be paid and the plant shall be replaced within one and a half months from the date of receipt of the copy of this order failing which he (OP No. 1) would be liable to pay interest on the aforesaid compensation and cost amounts @ 12% p.a. from due date.'

3. While disallowing other claims relating to interest and outstanding amount against NSIC, liability towards bank, possible business loss and other expenditure like construction of building etc. incurred by the complainant to instal the factory for wheat processing. Not satisfied with the reliefs given/aggrieved by this order these two appeals have been filed. First Appeal No. 350 of 1999, is by the complainant for allowing the compensation not granted by the State Commission as prayed for in the original complaint, while the other appeal, i.e., FA No. 40 of 2000 had been filed by Nalanda Agro Works for setting aside the order of the State Commission.

4. We heard the learned Counsel for the parties at considerable length.

First Appeal No. 40 of 2000

5. This appeal has been filed by the machine supplier, i.e., M/s. Nalanda Agro Works for setting aside the order of the State Commission. It is the case of the appellant that the machinery supplied was without any defect. It is on account of untrained staff of the complainant as also erratic supply of power, which were responsible for the frequent breakdowns of the machinery. In support of the latter contention they have filed a certificate from the Assistant Engineer Electric that no electric connection has been given to the complainant.

6. We like to reject the latter contention for the simple reason that there is no affidavit of any electric engineer and whatever has been produced is on a plain piece of paper and all hand written. Its veracity remains under cloud, in the absence of which we see no merit in this contention, especially when the machinery has been running and the ‘Mistry’ of the appellant does not mention anything to this effect as also the factum that CFTRI staff and other people, who visited the factory on 26.2.1991 nowhere say in the report that there is no electricity connection.

7. A plea is also advanced before us by the learned Counsel for the appellant that the complainant was running the factory after taking a direct unauthorised connection from the electricity wire of Bihar State Electricity Board. There is no such report from any quarter about theft of electricity by the complainant, brought on record by any party, hence we see no merit in this plea as well.

8. As far as other plea related to the complainant not having trained staff, we are afraid that we see no merit in this plea either for the simple reason that the ‘expert’ team which visited the spot nowhere mentions that the staff was not trained or defects were anywhere relatable to untrained staff running the factory. In the absence of any evidence or proof to substantiate the allegation of untrained staff running the factory, we are unable to sustain this plea.

9. In the aforementioned circumstances, we find no merit in this appeal, hence dismissed.

First Appeal No. 350 of 1999

10. This appeal has been filed by the complainant, i.e., M/s. Mohini Wheat Products.

11. Before us, a new case is attempted to be made by fixing the responsibility and involvement with ulterior motive on the part of the Sr. Branch Manager, NSIC, Patna, namely, Shri B.S. Azad, as also the fact that since the machinery really never worked thus, resulting in associated loss as also his inability to pay back the amount payable to NSIC

12. We have very carefully gone through the material on record. The fact remains that as per the complaint filed by the complainant he has clearly stated that he is the ‘consumer’ within the meaning of Section 2(1)(d) of the Consumer Protection Act as also that the fact that the aforesaid consideration amount was paid by the complainant from the loan sanctioned by the OP Nos. 2 and 3 as also from personal sources after execution of the ‘hire-purchase agreement’. Since this has been plea in the complaint that he himself is a ‘consumer’ and it has been the ground on which the complaint is filed, we now see an attempt to divert the main issue by taking a plea that he is only a hirer and the ownership is with the respondent Nos. 2 and 3. We have gone through the ‘hire-purchase agreement’ and are unable to satisfy ourselves that if he is not a owner then in what context he has pleaded in the complaint that he is a ‘consumer’? This plea is negated also by the fact that as per para 3 of the complaint, the payment was made by him after obtaining loan from OP Nos. 2 and 3 along with own sources to Nalanda Agro Works. There was no allegation in the complaint against respondent Nos. 2 and 3 in view of which we do not find that case can be proceeded against respondent Nos. 2 and 3.

13. As far as deficiency in service on the part of the respondent No. 1 is concerned, as per material on record especially the report of the ‘Mistry’, he visited three times for carrying out the repairs between August 1990 to December 1990. The report filed by Shivnandan Prasad, the Turner Trade Mistry of the Nalanda Agro Works is on record and he has clearly reproduced the defects noticed in the machine. When the matter was taken up through the DIC as well as with the NSIC and matter was not getting resorted to it was decided to by a team from CFTRI whose report is on record and is clearly recorded in the report dated 26.2.1991 that the machine was examined by scientist from CSIR Poly Technology Transfer Centre, Patna and they had examined the equipment. The defects were removed by CFTRI and the machine was found to be in running condition. As per material on record, plant was purchased and delivered in March 1990 and installation was completed in August 1990. The report of the ‘Mistry’ of Nalanda Agro Works, as also the joint report dated 26.2.1991 would clear show that the machine had been continuously having problems of breakdown, not working properly, in view of which, it could not be said that machine supplied by Nalanda Agro Works was without defects. All these defects occurred during the warranty period. We have repeatedly held that where a person buys expensive equipment and in this case for self-employment purposes, a person does not buy a headache, in this case witnessed by frequent failures and breakdowns resulting in non-payment of instalments to the NSIC as per the terms and thus, making the complainant liable to pay penal interest on the outstanding amount. This happened clearly on account of deficiency in rendering service by M/s. Nalanda Agro Works to M/s. Mohini Wheat Products, in view of which we find that State Commission was quite correct in directing the first respondent M/s. Nalanda Agro Works to replace the machine as also pay compensation of Rs. 50,000, along with cost of Rs. 5,000. The other prayers have been suitably and properly dealt in by the State Commission in its order and we are in full agreement with the reasoning given in the order in disallowing other claims of the complainant. Nothing has been shown to us to take any view different than the one taken by the State Commission in this regard, hence we see no merit in this appeal, which is also dismissed.

14. However, at this stage the learned Counsel for the Nalanda Agro Works, stated that they are in no position to supply a new machine as directed by the State Commission. In the above circumstances, it is directed that if M/s. Nalanda Agro Works is unable to supply a new machine then they are at liberty to refund the &lsquo

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;purchase’ amount, along with all the amount of interest, which the complainant had to pay to the NSIC, from the date of purchase to the date of payment, along with penal interest. The order passed by the State Commission would stand modified to this extent. 15. In case the payment is made by ‘M/s. Nalanda Agro Works’ then the amount so worked out in above terms shall be paid directly to NSIC under advice to the complainant. In case the amount so paid by the supplier is more than the amount due to M/s. Mohini Wheat Products, then the excess amount shall be refunded to the complainant along with details of the amount found payable by the complainant within four weeks of the receipt of the amount from M/s. Nalanda Agro Works. 16. It is also ordered that upon payment of the above amounts, ‘Nalanda Agro Works’ shall be free to take back the plant from ‘Mohini Wheat Products’. 17. Both the appeals stand disposed of in above terms. In the peculiar facts and circumstances of the case, no order as to costs. Appeals disposed of.