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.