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P.V. Shaji v/s The Proprietor, M/s. Ambika Food Products

Company & Directors' Information:- B. P. FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15311MP1994PTC032994

Company & Directors' Information:- S P P FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15412DL2004PTC128666

Company & Directors' Information:- J S FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15314OR1991PTC002964

Company & Directors' Information:- H R B FOOD PRODUCTS PVT LTD [Active] CIN = U15146WB1988PTC045281

Company & Directors' Information:- V D FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15400DL2012PTC231717

Company & Directors' Information:- P R FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U74899DL1989PTC030483

Company & Directors' Information:- S S FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15310MH2003PTC142530

Company & Directors' Information:- B K FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15312OR1996PTC004541

Company & Directors' Information:- O H P FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U52205DL1999PTC100269

Company & Directors' Information:- K V FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15122DL2007PTC162739

Company & Directors' Information:- K. C. FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15431JK1982PTC000554

Company & Directors' Information:- K I C FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15316DL1979PTC009757

Company & Directors' Information:- R B FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15313DL2010PTC202753

Company & Directors' Information:- R K B FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15490KL2013PTC033500

Company & Directors' Information:- S K G FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15419UP1991PTC013771

Company & Directors' Information:- B H FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15134DL1997PTC084273

Company & Directors' Information:- N S FOOD PRODUCTS PVT LTD [Strike Off] CIN = U15412WB1992PTC055591

Company & Directors' Information:- H N FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15146UP1990PTC011540

Company & Directors' Information:- V K FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15412UP1988PTC010023

Company & Directors' Information:- AMBIKA INDIA PRIVATE LIMITED [Active] CIN = U15549TN2012PTC088846

Company & Directors' Information:- B M FOOD PRODUCTS PVT LTD [Strike Off] CIN = U15419WB1993PTC060386

Company & Directors' Information:- I K FOOD PRODUCTS PVT LTD [Strike Off] CIN = U15412WB1991PTC051852

Company & Directors' Information:- S S V FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15499AP1982PTC003547

Company & Directors' Information:- S Q P FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15100MH2003PTC139217

Company & Directors' Information:- F S FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15311MH2000PTC126031

Company & Directors' Information:- Z K FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15400MH2010PTC209818

Company & Directors' Information:- M B S FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U01112WB2003PTC096375

Company & Directors' Information:- N D FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15131DL2002PTC115754

Company & Directors' Information:- C K M FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U51909KL1998PTC012358

Company & Directors' Information:- G S C FOOD PRODUCTS PVT LTD [Strike Off] CIN = U15316WB1985PTC038398

Company & Directors' Information:- A K G FOOD PRODUCTS PVT LTD [Under Liquidation] CIN = U15412WB1990PTC049789

Company & Directors' Information:- J M D FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15419DL1998PTC097578

Company & Directors' Information:- L K FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15200TG2016PTC103411

Company & Directors' Information:- FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15431JK1966PTC000304

Company & Directors' Information:- R R FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15490PN2015PTC154753

Company & Directors' Information:- A N FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15400TG2013PTC091969

Company & Directors' Information:- R V S K FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15490DL2012PTC245851

Company & Directors' Information:- K G Y FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15400KA1984PTC005909

Company & Directors' Information:- FOOD PRODUCTS (INDIA) PVT. LTD. [Strike Off] CIN = U15311HR1994PTC032356

Company & Directors' Information:- M K FOOD PRODUCTS PVT LTD [Strike Off] CIN = U15209DL1979PTC009924

    Appeal No. 10 of 2014

    Decided On, 18 December 2015

    At, Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram

    By, MEMBER

    For the Appellant: R. Narayan, Advocate. For the Respondent: T. Geenakumari, Advocate.

Judgment Text

Santhamma Thomas, Member

By means of the present appeal, under Section 15 of the Consumer Protection Act, 1986, appellant has approached this Commission for setting aside the order dated 25/11/2013, of learned District Consumer Disputes Redressal Forum, Pathanamthitta, in CC No.169/2012 filed on 03/11/2012, whereby the complaint, under Section 12 of the Consumer Protection Act, 1986, has been dismissed.

2. The appellant for his livelihood by preparing and selling of pappadam and in order for the same he purchased a semi automatic pappad machine from the opposite parties for an amount of Rs.3,66,000/-. The appellant claims that the price is actual Rs.1,10,250/- but respondent have collected exorbitant amount of Rs.3,66,000/- from appellant and also the purchased machine was not functioning properly. On informing the respondents about the machine complaints, a mechanic was sent and repairs were conducted costing the appellant another Rs.30,000/- as service charges and cost of spare parts. The machine still was not functioning and in spite of repeated demands from the appellant to respondent, there was no favourable response from respondent. The appellant sole intention of purchasing the machine was for meeting the demand for pappadam during festival season but due to the malfunction of machine, he faced loss. The appellant alleges the machine is made of low quality components and hence prayed in the Learned Forum below for financial loss and compensation for mental agony, a total amount of Rs.6,02,439/-. Respondent admitted that he had supplied a semi automatic machine for pappad making to appellant, but the price was of Rs.1,10,250/- only along with Rs,10,000/- as fitting charges and the allegation of appellant that Rs.3,66,000/- had been paid is false. The respondent also denied that the machine was defective and alleges that the sold machine is in good working condition. The respondent stated that if the machine had any problems it will be only due to the misuse of the machine and hence prayed for the dismissal of the complaint.

3. The Learned forum below based on the Ext.A1 invoice and on comparing the payment dates came to a conclusion that the allegation relating to the price of machinery of Rs.3,66,000/- is baseless. In order to find if the machinery had defects a commission was appointed, but however during examination the Ld. Forum found that the commissioner was not qualified enough or had the experience in finding the defects of the machinery. The Ld. Forum also noted that the commission report was not based on the commission application where as it was found to be written favouring the appellant. Hence the learned Forum completely relied on Exts.B2 to B4 for concluding the matter, which were a CD containing the visuals of the machine and electricity bills in the building where the machine was installed. Based on the electricity consumption the Ld. Forum concluded that the machine was defect free and functioning properly. Based on these findings the Ld. Forum below dismissed the complaint.

4. Hence this appeal.

We have perused documents on file and heard both the parties.

There is no dispute as to the fact that appellant have purchased a pappad making machine from the respondent. The appellant have given details of payment in his affidavit but have not produced documents pertaining to the transaction of money. Without sufficient proof the allegations that the appellant had paid Rs.3,66,000/- to the respondent shall not stand and above all the invoice states the total amount of Rs.1,10,250/- which is the actual price even accepted by the appellant. The onus of proof lies on the appellant who alleges that the machine had problems or defects, and hence the appellant approached the Ld. Forum seeking to appoint the Commission for examining the machine. In accordance to the commission report and evidence, the commissioner have stated the machine is defective primarily. The respondents in the counter notes have stated the commission report cannot be accepted as the commissioner is not qualified to conduct the inspection. The respondents stated commissioner have only repaired or worked on JCB and rubber rollers. The learned Forum below have even accepted these arguments and based on the conclusion have dismissed the complaint. The respondent once made an allegation against the credibility of the commissioner, the onus of proof shifts from appellant to respondent in proving that the marking made by the commissioner in his report is false. However learned forum also considered these arguments and as well as felt that while making his deposition in witness box and as well as in his report, his depositions were not which were asked in specific in commission application. The fact stated by the appellant that initially when there was problem with the machine, the same was been reported to respondent and respondent had sent a mechanic to repair the same was never been declined expressly by the respondent. Appellant alleges that even he had made payments for the repair.

5. There is no dispute with regard to the proposition of law relating to onus of proof but there is an exception contained in Section 106 of the Indian Evidence Act. According to Section 106 of the Indian Evidence Act, a person within special means of knowledge and possession of a particular fact must prove the same, but producing the primary evidence. Here the respondents while rebutting the commission report and on the fact that they are more experienced, should have appointed a different commissioner in order to prove their contentions. The video evidence provided by the respondent does not contain date or specific details such as time of recording of the video. The electricity consumption summary issued by the electricity office was submitted as evidence, is seen tampered by writing on the top of the consumer number and hence it is unjustifiable on the part of the Learned forum below considering the electricity report as the primary reason for their conclusion. The onset of issued between the appellant and respondent occurred while appellant made multiple requests for repairing to the respondent and to which the respondent did not respond, the machine sold by respondent when requires service or repair the respondent has a vested duty in rectifying the same and hence consumer service is complied.

As a result of the above discussion, appeal is allowed and impugned order is set aside. Consequently, the respondent is directed to repair

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, make functional and deliver the Pappad making machine in question, within forty five days from the date of receipt of certified copy of this order and if required to be delivered at the business place of respondent, the transportation cost must be borne by the respondent itself. Respondent is directed to pay Rs.5,000/- as compensation for mental agony. It is further ordered that in case the machine, in question, is not repaired within forty five days as aforesaid, the respondents shall replace the machine, in question, by a new one of the same model and in case if replacement is also not given within forty five days, then the price of the machine, i.e. Rs.1,10,250/- shall be refunded without interest to the appellant.