INDIAN SEWING MACHINE CO. LTD. vs SUPRIYA MUKHERJEE

THIS is an application under Section 15 of the Consumer Protection Act by the Appellant being aggrieved by and dissatisfied with the order dated 4.5.93 passed by the Calcutta District Forum.

BRIEFLY the fact of the case is that the Complainant/Respondent purchased one Singer-Fashion Maker Automatic Sewing Machine from M/s. Indian Sewing Machine Co. Ltd. of 1, Park Street, Calcutta-700007 with a cost of Rs. 5,472.80 on 27th July 1991. As per the allegation made by the Complainant/Respondent before the Calcutta District Forum the Complainant/Respondent got electric shock from the body of the machine in question at the time of using the same. The relief wanted by the Complainant/ Respondent before the Ld. Calcutta District Forum was that to replace the machine in question with a hand-sewing machine and some other articles in lieu of that. In the said petition the Complainant/Respondent further stated that she earlier prayed to the Appellant/Opp. Party to replace the motor in question with a new one and the Appellant/O.P. was given verbal assurance of changing the same. Ld. Court after hearing both parties was pleased to pass an order directing the Appellant/O.P. Company to refund the entire amount paid by the Consumer with a compensation to a tune of Rs. 500/-. The Appellant/O.P. company has preferred this appeal challenging the aforesaid order dated 4.5.1993 with a prayer that the judgment is devoid of jurisdiction and has been passed to abuse of the process of law. As much the said judgment is liable to be set aside and/or quashed.

The Learned Counsel Mr. P. Bakshi who appeared on behalf of the appellant has challenged the findings of the Calcutta District Forum on the following grounds:- (i) There is no evidence forthcoming to prove that the sewing machine in question was not functioning satisfactorily due to manufacturing defect. And also the defect which the complainant/Respondent had been alleged before the Calcutta District Forum was not at all an allegation in respect of any manufacturing defect.

(ii) To find out if the machine had any manufacturing defect, the District Forum, Calcutta ought to have restored to the procedure prescribed under Section 13(1)(c) of the Consumer Protection Act.

(iii) The Calcutta District Forum have failed to note the Section 14 of the Consumer Protection Act does not authorise to pass any order without conferring that the defect of the machine in question is in the manufacturing.

(iv) That before given any relief as stated in Section 14 of the C.P. Act, necessary procedure should be maintained as per Section 13 of the Act for conferring the alleged defect.

(v) That it would open the floodgates of complaints if the consumers are allowed to seek redressal at any point of time for alleged manufacturing defects without mantained the procedure which has been stated in the Consumer Protection Act and that thus would defeat the very purpose of warranty/guarantee given by manufacturer.

THE respondent contested the complaint in person on various grounds. In the written statement the respondent stated that it was a fact that the said sewing machine was defective from the very beginning of the purchase and the said manufacturing defect was discovered by the respondent at the time of using it at her house. At the time of using of the said machine the respondent got electric shocked from the body of the machine. THE respondent further stated that at the time of purchase the machine in question was not properly checked by the respondent/consumer and at the same time it was not properly demonstrated by the technicians of the applicant company. Learned Advocate on behalf of the appellant argued that the respondent purchased the Singer Fashion Maker Automatic Sewing Machine after paying a cost to a tune of Rs. 5,472.80 paise without testing the same in good condition. In the complaint which was filed before the Calcutta District Forum on 24th November, 1992 vide C.D.F. Case No. 1636 of 1992 the complainant/respondent has already stated that the electric motor which was/is affixed on the machine was short and she reminded the appellant company to replace the same with a new one. The Complainant further stated in the aforesaid application that she had told to the appellant company to replace the machine in question with a new hand sewing machine and some other articles in lieu of that.

LD. Advocate Mr. Baksi also pointed out Section 14 and Section 13 of the Consumer Protection Act. He stated that the Consumer disputes are to be settled under this Act as stated in Sections 14 and 13 of the Act. The defect of the machine if any could be proved only by testing the same by an expert Registered technician. In the absence of the evidence of any technician either in the form of any affidavit or examination on oath there is no material to ensure that the machine in question has a manufacturing defect. As such learned Counsel for the appellant argued that the main question to be considered is whether the machine in question suffered from any manufacturing defect or not. This Commission may ascertain this point only after issuing a Technical Commissioner to examine the machine in question properly and to consider the report of Commissioner. JUDGMENT Upon the allegations of the parties the State Commission had framed the following issues:- (1) Whether the machine in question suffered from any manufacturing defect or not. (2) Whether the motor of the machine is defective or the sewing machine suffered from any other defect. (3) If so, whether the complainant is entitled to get relief as per Section 14 of C.P. Act, without any proof that the machine is not functioning due to manufacturing defect.

Before we proceed further, we will have to decide the main question to be considered whether the machine in question suffered from any manufacturing defect or not. To find out the same the Calcutta District Forum out to have resorted to the procedure as prescribed under Section 13(1)(c) of the Consumer Protection Act. That provision reads as follows:- The Learned Counsel for the appellant/ manufacturer had argued before them that no manufacturing defect of the machine was established since no such test was conducted.

WE find substance in this submission in as much as Section 13(1)(c) of the Act very clearly provides that whether the complainant alleges the defect in the goods which cannot be determined without proper analysis or test of the goods. The Calcutta District Forum could get it examined and tested by an authorised body. It has not been done in the present case and there is no other material on record to incidate that the sewing machine became defective because of manufacturing defect. But in the absence of evidence of any technician either in the form of any affidavit or examination on oath there is no material to ensure that the sewing machine had manufacturing defect.

AS such this Commission had appointed one Sk. Amir Uddinasa Technical Commissioner in the present case to investigate about the condition of the motor and the sewing machine and submitted the report of the Commissioner on 27.1.94. The Ld. Commissioner was present before the Court on that day. From the aforesaid report this State Commission came to a conclusion that the motor of the sewing machine is suffering a minor defect. Before the Ld. C.D.F. the appellant company already stated that they are ready to exchange the electric motor, if there any defect, after thorough examination of the motor as per condition of warranty. Hence, we are of the opinion that there is no satisfactory evidence or any sufficient cause in the present case for holding that the sewing machine in question suffered from any manufacturing defect.

In view of the above finding, we do not think it necessary to go into the question of the alleged defects for not functioning the sewing machine in question for any manufacturing defect. As there is no proof to establish that the alleged defect is due to any manufacturing defect no relief can be granted to return the price of the sewing machine to the complaint as stated Section 14(1)(c) of the Consumer Protection Act.

UNDER the circumstances the impugned order passed by the Calcutta District Forum can not be sustained. The appeal is allowed. The impugned order passed by the Calcutta District Forum on 4.5.93 is hereby set aside. . We therefore order as follows:- (a) The appellant/company shall replace the motor of the sewing machine in question with a new one of similar description which shall be free from any defect within 15 days after receiving this order. That function should be done at the premises of the respondent and in her presence. (b) The warran ty period for the machine and the motor should be extended two years from the date of installation of the motor. (c) Free demonstration should be rendered to the respondent in the registered service centre of the appellant/ company as usually given to the other customers. (d) The appellant company should pay Rs. 600/- as cost.

Appeal allowed.