BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SHIMLA, H.P.
Consumer Complaint No: 405/2004
Date of presentation: 01.09.2004
Date of decision: 30.06.2009
Shri Pawan Sood S/O Shri Lekh Raj Sood,
R/O Nogli, Rampur Bushaher, Tehsil Rampur,
District Shimla, H.P.
… Complainant.
Versus
1. M/S J.C.B. India Limited
23/7, Mathura Road, Ballabgrah-121004.
2. M/S Krishna Automobiles,
177-E, Industrial Area, Phase-1,
Chandigarh-160002.
3. M/S Kirloskar Oil Engines Limited,
Pune-Maharashtra,
Through its Manager Sales and Marketing.
4. M/S Xcort Power Engineers, SCO-54055,
Sector-34, Chandigarh.
Through its Authorized Signatory.
…Opposite Parties
For the complainant: Mr. Peeyush Verma, Advocate.
For the Opposite Parties: Mr. Vijay Arora, Advocate vice
Mr. Jagat Shyam, Advocate &
Ms. Sunita Sharma, Advocate.
O R D E R:
Sureshwar Thakur (District Judge) President:- The instant complaint has been filed by the complainant by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers that he is a private contractor and in order to supplement his contractor-ship works, purchased one J.C.B. Hydraulic Excavator Loader Machine from the OPs in December, 2003 for a consideration of Rs.15,96,919/-, vide invoice Annexure A-1. The complainant further proceeded to aver that the aforesaid machine was purchased by him after obtaining loan from the bank at a high rate of interest. It is further averred that the machine apart from its engine was manufactured by the OP No.1, while OP No.2 is its authorized dealer. The engine of the machine is averred to have been manufactured by the OP No.3, whereas the OP No.4 is the authorized dealer of the OP No.3 at Chandigarh. It is averred that after purchase of the machine, the complainant got the same insured after entailing further expenditure of Rs.18,928/- from M/S Iffco-Tokio General Insurance Company Limited New Delhi and the machine carried a warranty against any defect arising in the same from faulty design, material or workmanship within the warranty period of 12 months/2000 hours. Besides warranty, the OPs, it is averred were to provide 6 free services of the machine for 2000 hours/365 days. The complainant further proceeded to aver that immediately after purchase of the machine, he engaged an experienced operator having 10 years of experience to operate the same and he took every care and caution for the longer trouble free service of the machine, but the machine did not give the desired service. It is averred that in January, 2004 when the machine had only covered 100 kilometers, the brakes of the machine stopped functions and thereafter the engine and the machine developed trouble in the month of March, 2004 when the gears of the machine stopped functioning properly. It is further contended that in the first week of July, 2004 the engine of the machine broke down when the same had hardly covered only half of the distance under warranty and on inspection by the service engineers of the OPs No.2 & 4 on 02.07.2004 and 03.07.2004 an abnormal sound was noticed from the engine. It is also contended by the complainant that he had to incur expense of Rs.5500/- for transportation of the engine from Wangtu to Chandigarh and further sum of Rs.12,300/- for brining back the engine from Chandigarh to Wangtu. The complainant further proceeded to aver that after effecting repairs, he was of the bonafide belief that the machine would now function satisfactorily without giving further cause for trouble, but despite repairs carried out at Chandigarh the machine failed to function and the defect is still persisting in the machine which is causing great hardship to him in order to supplement his earnings. In nutshell, it is averred by the complainant that the OPs have supplied him either a second hand machine or the machine has inherent manufacturing defects, which despite persistent repairs could not be rectified. Hence, it is averred that there is apparent deficiency in service on the part of the OPs and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.
2. The OPs filed detailed reply to the complaint. In the preliminary objections it was contended on behalf of the OP No.1 that the complainant is not a ‘consumer’ within the definition of Consumer Protection Act, 1986, lack of cause of action to entertain and try the present complaint by this Forum and that the machine was purchased by the complainant for commercial purpose. On merits, it is contended on behalf of the OP No.1 that the complainant has reported the problem of poor brakes on 12.01.2004 which was attended on 13.01.2004 by replacing brake system hydraulic oil and bleeding and the complaint regarding hour meter lodged on 21.01.2004 was attended by replacing the instrument cluster on 23.01.2004. It is also contended that the complainant again reported problem of EVB leakage & brakes heating on 07.03.2004 which was attended on 09.03.2004 replacing spool seat kit. It is denied that problem with regard to breaks heating was found by the service engineer. It is further contended that the problem was attended promptly as and when brought to its notice. It is denied that the machine supplied to the complainant was either second hand or it was having inherent manufacturing defects.
The OP No.2 in its separate reply also raised various preliminary objections vis-à-vis status of the complainant as a ‘consumer’, lack of cause of action to entertain and try the present complaint by this Forum, and the complaint being false and vexatious. On merits, the OP No.2 has almost taken the same stand as taken by the OP No.1 in its reply. However, it is contended on behalf of the OP No.2 that the flaw in the engine, if any, was to be rectified by the OP No.3 being manufacturer of the engine, which flaws were rectified in normal course.
The OP No.4 in its reply also took preliminary objections regarding maintainability of the complaint, and territorial jurisdiction. On merits, it is admitted by OP No.4 that the complainant is a private contractor, but it is denied that he is entitled to maintain the present complaint because the machine was not purchased for earning livelihood as it was purchased for commercial activities. It is contended on behalf of the OP No.4 that regular inspections of the machine was carried out on 19.01.2004, 11.03.2004 and 28.04.2004 and as such question of erupting defects in the machine does not arise. It is admitted that the OPs No.3 & 4 checked the machine on 02.07.2004 and 03.07.2004 and found that due to the over loading of the engine because of brakes and gears of the machine, the disturbance in the engine erupted and every efforts were made to give satisfactorily service to the complainant and when he did not agree with the performance of the engine, the same was replaced with a new one. It is contended that the repairs were done to the entire satisfaction of the complainant but due to jamming of brakes and gears which was the result of over load put on the machine because of the improper operation of the machine by the complainant. It is further contended that they are not liable for the losses incurred by the complainant on account of salary paid to the operators. It is emphatically denied that there was any manufacturing defect in the machine or that second hand machine was supplied to the complainant. It is denied that there was any deficiency in service on their part or that they have indulged in an unfair trade practice by supplying second hand machine to the complainant.
3. Thereafter the parties led evidence by way of affidavits and documents in support of their rival contentions.
4. We have heard the learned counsel for the parties at length and have also thoroughly scanned the entire record of the case.
5. At the very out set, we are required to afford a determination, on the vexed controversy which has erupted between the parties at contest, in as much, as, the OPs seek to divest this Forum of its jurisdiction, to hear and determine the complaint, as, in the light of a verdict of the Hon’ble Apex Court reported in (1995) 3 Supreme Court Cases 583 in case Laxmi Engineering Works versus P.S.G. Industrial Institute, and, in it, the Hon’ble Apex court having upheld the order of the Hon’ble National Commission, appealed before, it, wherein the later had held that any machinery purchased for ‘commercial activities’ would not make the purchaser thereof to be a ‘consumer’. Be that as it may, there is ample as well as clinching evidence, of, a warranty qua the ‘goods’ i.e. JCB machine purchased by the complainant from the OP, issued, by the OP No.1 vide Annexure A-3 encompassing, as well, as obligating the OPs to ensure the workability of the machine, in, case, it, suffered a manufacturing defect, in the engine, if, such defect erupts during the currency of the warranty.
6. It is not disputed by the OPs that the machine had either developed the defect in the engine which had necessitated its being taken for repairs by the complainant to the workshop of OP No.4 who, is, the authorized agent of the OP No.3, for, the said purpose, or, that it had so erupted beyond the period of six months or that it had emerged in the machine after it had been operated for a duration beyond 2000 hours, for lesser duration of which the warranty was alive. Obviously, then when the legally binding warranty was, hence, available, for, its invocation, when, the defect as had erupted within the ambit of the warranty, as also, whereas, at the first instance when the engine was taken for repairs to the OP No.4 and in the job cards issued by the OP No.4, there, is no recital of the defect as having erupted in the engine, having so erupted in it owing, to, its mishandling at the end of the complainant, obviously, for the lack of such endorsement in the job cards bearing Annexures A-10 to 17 respectively, the plea, as, raised by the OPs, that, hence the defect, is, attributable to the mishandling of the engine by the complainant, is merely an after thought. Besides, non-mentioning of the said fact in the above job cards, also, estopps the OPs from contending so at this stage. Resultantly, it is held that the defect as had occurred in the engine of the excavator was a manufacturing defect.
7. Moreover, the amplitude and the scope of the warranty, is, vide enough to cover the defect as had developed, in, the engine, in as much, as the exclusionary clause of the warranty makes a detailed enunciation of the items not falling within the purview of the warranty, obviously, when the exclusionary clause does not include the engine in which the defect had erupted, as a natural corollary for the lack, of, its recital in the exclusionary clause, it has to be held, not only that the warranty covered such a defect, when, it occurs during the currency of warranty period, as also, it, obliged the OPs to rectify it in a manner to make the engine workable. The engine remained unworkable, which, is, not denied by the OPs, hence, the warranty issued by the manufacturer when covering such a defect in the engine and when such a defect occurred during its currency, legally, binds the OPs to make, it, workable. The engine defect obviously having rendered it unworkable, despite, repeated rectification of un-intermittent defects in it, hence, its replacement under the warranty, is, a legal obligation of the OPs.
8. Now, reverting to the fact, whether the complainant is a ‘consumer’ or not, it is, necessary to bear in mind the judgments of the Hon’ble Apex Court relied upon by the OPs in contending, to, the contrary, upon, a judgment reported in 1986 3 section conjunction the view, which judgment, is, to be considered in conjunction with the judgment relied upon by the complainant reported in (2006) 3, Supreme Court Cases 721 in case Indochem Electronic and Another versus Additional Collector of Customs, A.P. wherein, the, defects which had erupted, in, an EPABX telephone exchange system rendering, it, unworkable and when such a defect had emerged during the currency of the warranty, such a defect, was, hence, ordered by the Hon’ble Apex Court to be rectifiable by the supplier, even though, obviously, the, purchaser of the EPBAX telephone exchange system had so purchased the apparatus for a palpable commercial purpose, on, the ground that its mal-functioning necessitating, its, rectification, comprises a “deficiency of service”. Even while in the judgment relied upon by the OPs, the Hon’ble Apex Court, has held, that when any machine or apparatus is purchased for a purpose other than for earning livelihood, its, purchase would imply that, it, was purchased for, a, commercial purpose and its purchaser would not fall within the parameter of the definition of ‘consumer’ as defined in the Consumer Protection Act. However, the facts of the said judgment, as well, as the evidence existing qua the fact whether the purchaser in the said case had purchased the machine for earning his livelihood by self employment cannot be garnered from a reading of the said judgment. The verdict of the Hon’ble Apex Court, hence, would not debar this Forum, to, exercise jurisdiction in this matter, wherein evidence qua the fact of, the machinery as purchased by the complainant being not meant for earning his livelihood from the income accruing from the user by, way of self employment, has, not come to be adduced on behalf of the OPs. The unsubstantiated contention on its part so as, to, divest this Forum to adjudicate the matter cannot sway, us to countenance the contention, especially, when the pointed pleadings of the complainant of its being purchased to supplement his income for his avocation of a contractor, have, not come to be rebutted.
9. For reiteration, when, the complainant avers that he has purchased the machine in question to supplement his income which would obviously, constitute, the purpose of its being purchased, for earning his livelihood by way of self employment from the income accruing from it on its operation by him. Viewed in that context even if, he has employed an operator to run it, in our view, when it is not demonstrated that the definition of ‘consumer’ barred him from engaging an operator for rendering it workable, so, that, hence, the income accruing to him on its operation is available for his sustenance. In construing it in a manner necessitating his being required to possess personal expertise to operate it would be “affording a too rigorous and rigid interpretation to the phrase earning of livelihood by self employment” as also, it would detract from the primary objective of the provision meant to provide livelihood to the purchaser from use of goods purchased by him, unless, it was shown that the machinery purchased was being operated so as, to, result in accrual of income not to him, but, to others which, proof alone would enable us to hold that he, is, certainly not falling within the parameter of ‘consumer’ as enshrined under section 2(1)(d)(ii) of the Consumer Protection Act, 1986. Also the signification, of the term “for earning his livelihood by self employment has to be in consonance with the goods” purchased. The very nature of the commodity purchased in this case being a JCB Excavator requiring a skilled manpower for its operation, which the purchaser may not possess nor is required or obligated to possess under the warranty issued qua its purchase, insistence, of, his being personally skilled to operate it, would render redundant the warranty issued qua it. Moreover, also, it would give latitude to the seller/manufacturer to seek, on, its score an easy exculpation of the liability fastened on it under the warranty, when, in, this case it has been breached. Besides, even otherwise, affording a restrictive interpretation to the phrase “for earning his livelihood by self-employment” qua any goods purchased, hence, limiting it to a purpose other than its use for a, non-commercial purpose, would erode the very objective of the provision and of the purchase of goods by a buyer, for, unless it is put to a commercial use and with a consequent flow of income to run, him on its, use would, not at all enable him to earn his livelihood from it. In this view of the matter, we also draw strength from the authorities as reported in 2006 CTJ 996 (CP) (NCDRC) National Consumer Disputes Redressal Commission, New Delhi in case East India Construction Co. versus Modern Consultancy Services and others and 2006 CTJ 891 (CP) (NCDRC) National Consumer Disputes Redressal Commission, New Delhi in case Pearlite Liners Ltd. Versus Thermo Jarrell Ash Corporation and another, 2007 CTJ 1019 (CP) (NCDRC) National Consumer Disputes Redressal Commission, New Delhi in case Kurji Holy Family Hospital Versus Boehringer Manheim India Ltd. And others and II (2006) CPJ 289 (NC) National Consumer Disputes Redressal Commission, New Delhi in case East India Construction Co. & Anr. Versus Modern Consultancy Services & Ors.
10. Hence, it stands divulges from the authorities quoted above and the overwhelming evidence brought on record by the complainant by way of documents and affidavits that the machine so supplied to him, was having inherent defects which could not be made functional and operation-able by the OPs despite persistent repairs affected to it by their service engineers, which has erupted during the currency of warranty period. This evidence has gone unrebutted on record on behalf of the OPs, hence, we have no hesitation to conclusively believe the assertion made by the complainant in the complaint, which is, duly supported by an affidavit that he was either supplied a second hand machine or it was having inherent manufacturing defect. Though, this assertion has been simply denied by the OPs in their reply, yet, there is no cogent and convincing evidence brought on record to countenance the said assertion. As such, it can conclusively be held that the OPs are guilty of rendering deficient service so as indulging in an unfair trade practice and is, thus, liable to replace the defective engine of J.C.B. Hydraulic Excavator Loader Machine and to pay damages for the mental harassment and pain, he suffered at hands of the OPs.
11. As a result of the above, we allow this complaint and direct the OPs jointly and severally to replace the defective engine of J.C.B. Hydraulic Excavator Loader Machine, with a brand new one of the same make and capacity, within a period of forty five days from the date of receipt of copy of this order by them. Besides, the OPs are also directed to pay damages to the complainant for causing him harassment and mental agony, which compensation in the facts and circumstances of the case is quantified at Rs.1,00,000/-. In addition to this, the OPs are also saddled with litigation cost, which is quantified at Rs.5,000/-. The ordered amount shall be defrayed by the OPs to the complainant within a period of forty five days after the date of receipt of copy of this order. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.
Announced on this, the 30th day of June, 2009.
(Sureshwar Thakur)
President.
NMehta) (Karuna Machhan) (Charanjit Singh)
Member Member.