National Consumer Disputes Redressal
M/S. Saubhagya Kalpataru Pvt. Ltd. vs M/S. Sucheta Diesel Sales Service on 4 January, 2010
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI ORIGINAL PETITION NO.298 OF 1998 M/s. Saubhagya Kalpataru Pvt. Ltd. (A Pvt. Ltd. Company Incorporated Under the Companies Act, 1956) Through the Managing Director Shri Rajendra Daga S/o Shri Sobhagmalji Daga, R/o Sarafa Line, Hinganghat, District Wardha, Maharashtra Complainant Versus 1. M/s. Sucheta Diesel Sales Service (A registered firm) 543, Parvati Sainagar, Building NO. B-3, Block No.16, Opp. Sahyadri Dye Stuff Company, Singhad Road, Pune-411 030 2. S.P. Joglekar, Partner C/o M/s. Sucheta Diesel Sales Service (A registered firm) 543, Parvati Sainagar, Building NO. B-3, Block No.16, Opp. Sahyadri Dye Stuff Company, Singhad Road, Pune-411 030 3. M/s. Kirloskar Oil Engines Ltd. (Registered) Laxman Rao Kirloskar Road, Pune 411 003 Opposite Parties BEFORE: HONBLE MR. JUSTICE R.K. BATTA, PRESIDING MEMBER HONBLE DR. P.D. SHENOY, MEMBER For the Complainant : MR. NAVEEN SHARMA, ADVOCATE For Opposite Parties 1 & 2 : MR. ALOK AGGARWAL, ADVOCATE For Opposite Party No.3 : MS. SUREKHA RAMAN, ADVOCATE Pronounced on: 4th January, 2010 ORDER
PER DR. P.D. SHENOY, MEMBER This is a case of highly exaggerated baseless claim without any supporting documents filed by a private limited company against the dealer and manufacturer of diesel generating set.
CASE OF THE COMPLAINANT The complainant M/s Saubhagya Kalpataru Pvt. Ltd. is an agriculture unit which develops and researches in different varieties of tissue culture plants in controlled atmospheric conditions with the use of scientific methods. The day-to-day affairs of the company are looked after by the Managing Director Mr. Rajendra Kumar Daga.
The company has a well-equipped laboratory with latest scientific equipments. As uninterrupted power supply is required, the company decided to purchase one diesel generator set. (100 KVA Kirloskar Cummins Make NT 495-BC) from M/s. Sucheta Diesel Sales Services as per their quotations dated 26.12.1994, after making full advance for Rs.3,26,000/- as per proforma invoice No.108 dated 25.3.1995.
As the opposite party No.1 was unable to supply the same within time, the company purchased the D.G. Set of Kirloskar Oil Engines Ltd. on 4.5.1995. Opposite party No.1 charged Rs.38, 000/-, more than the quoted price, which was also paid. However, the set was supplied without alternators and panel board drawings, which was brought to the notice of opposite party No.1. The D.G. Set was finally installed on 21.11.1995. The complainant informed opposite party No.1 on 4.3.1996 that regular operation has started on 1.3.1996 and requested for supplying energy meter and hour meter.
The D.G. Set started giving trouble i.e. oil engine leakage from head, over heating and over sound. The opposite party No.1 demanded Rs.2,000/- towards service charges plus to and fro expenses for rectifying the defects though the D.G. Set was under the guarantee period. Subsequently, D.G. Set was examined by a local mechanical engineer, who observed that the engine part Rocket Support was in broken stage. As per the request of the complainant, service engineers of opposite party No.1 visited on 27.7.1996 and serviced and repaired the D.G. Set and replaced some spare parts. For that, complainant paid Rs.12,576/- When trial was taken, it was found to be satisfactory. After some hours, D.G. Set again developed some problems.
When no one attended to complaint, the complainant wrote to M/s. Kirloskar Oil Engines Ltd. (opposite party No.3), on 7.10.1996, the manufacturer of the D.G. Set in question and informed the problems faced due to manufacturing defects in the D.G. Set due to non-cooperation of the opposite parties Nos. 1 and 2.
After the complainant contacted Sri S.P. Joglekar (opposite party No.2), partner of opposite party No.1, the company contacted M/s. Dickson Engineering Company Pvt. Ltd., Nagpur for rectification of the problem which completed the work on 16.2.1997, for which the company paid Rs.52,542/- towards repairs and spares. On 15.3.1997, complainant had sent a letter to the opposite party No.1 to compensate them for the loss of Rs.50 lakhs (due to loss one lakh cultures) and Rs.30 lakhs towards bank interest as their production has been affected. Due to non operation of the D.G. Set, the company incurred loss to the tune of Rs.80,27,750/-, which the opposite parties are liable to pay. According to the complainant, there is manufacturing defect in the D.G. Set, which has been verified by M/s. R.R. Katariaya and D.K. Khedkar. Accordingly, complaint was filed praying for following reliefs: -
A) The respondents be jointly and severally ordered to pay Rs.81,29,750/-
as sated in para-20.
b) The cost of the proceedings be also awarded to the complainant.
c) Pass such other orders as considered appropriate in the circumstances of the case.
CASE OF OP-1 & OP-2 The case was contested by all the opposite parties. The learned counsel for opposite parties Nos. 1 and 2 submitted that complainant is not a consumer within the meaning of Section 2 (d) of the Consumer Protection Act, 1986 as the D.G. Set was purchased for commercial purpose by the complainant-company which is engaged in business activities and by no stretch of imagination this can be construed that purchase of D.G. Set put to commercial use was a source of livelihood or earning of the complainant. Hence it is gross misuse of the machinery provided under the Consumer Protection Act, 1986.
Though the complainant has claimed to have paid Rs.38,000/- in excess, in fact, this amount was paid as the complainant brought another model of D.G. Set which was costlier by Rs.38,000/- and this was paid without any protest and grievance on 6.6.1995 and the present claim is filed seeking refund of the amount on 27.11.1998. Hence it is time barred. The complainant has also sought refund of the amount of Rs.12,000/- paid for providing service and carrying out repairs for the D.G. Set. This amount was paid on 27.7.1996 whereas the complaint was filed on 27.11.19998. Further, the complainant has claimed Rs.52,000/- towards expenses for repairs and spares, which was paid to M/s. Dickson, Engineering Private Ltd., though the M/s. Dickson Engineering Private Ltd. has not been made a party to the present complaint. Therefore, the complaint is liable to be dismissed for non-joinder of the proper and necessary parties.
Though the complainant has claimed a sum of Rs.80,27,750/- for the loss alleged to have been suffered, the complainant has not filed even an iota of evidence on record to corroborate his claim. This has been intentionally inflated to bring the complaint within the pecuniary jurisdiction of this Commission to cause unjust enrichment. In fact, the opposite parties Nos. 1 and 2 have brought to the notice of the complainant that the defects have been pointed out after running the D.G. Set for 200 hrs. due to which the warranty period had expired. If it was brought to the notice during the currency of the warranty period, it would have been rectified by the manufacturer. Further, it is observed that the complainant has got the D.G. Set dismantled by an unauthorised local mechanic. Therefore, the opposite parties Nos. 1 and 2 will depute their representative on chargeable basis only. Learned counsel further brought to our notice an extract of the affidavit on behalf of opposite parties Nos. 1 and 2, which reads as follows: -
The technical person of the deponent had visited the site where the DG Set had to be commissioned twice. However, the complainant did not complete the masonry work which included floor mounting, laying down electrical lines, DG Set room, connections, etc. On completion of the installation of the DG Set the complainant was specifically informed that in the event of any problem arising, the same may be immediately intimated to the opposite party and the first servicing be done after 50 hours of running. The complainant was using the DG Set day and night and did not service the set on completion of 50 hours of running. A complaint was made of silencer leakage, oil leakage and filter to be changed after running the DG Set for 200 hours. It is apparent that prior to the said request for carrying out the servicing of the DG Set, the complainant had got the DG Set examined, checked and may permitted repairs to be carried on by a local technician who was not conversant with the technical know-how of the machine. In fact the deponent had later learnt that the complainant had got the DG Set (main engine) opened, and dismantled by an unauthorised technician, who had no knowledge about the machine. As a result thereof, the machine was substantially damaged and was, therefore referred to be repaired at the workshop of M/s. Dickson Engineering Pvt. Ltd.
Though the order was placed on opposite party No.1 for DG Set, the warranty was issued by opposite party No.3. The complaint of the complainant that DG Set has manufacturing defect is ex-facie falsified from the fact that the complainant continued to utilise the DG Set till date. The complainant in order to save the cost of regular maintenance has got the DG Set repaired by some unskilled person for which opposite parties Nos. 1 and 2 cannot be held responsible.
CASE OF OPPOSITE PARTY NO.3 Learned counsel for opposite party No.3, Ms. Surekha Raman submitted that opposite parties Nos.1 and 2 are not connected with opposite party No.3 as they are not the authorised dealer of opposite party No.3. During the warranty period, the complainant got the DG Set repaired by third party/unauthorised party. Despite that, necessary repairs were carried out by the authorised dealers of the opposite party No.3 viz Dickson Engineering Company Pvt. Ltd. (DECL). Subsequently, during the meeting held in the office of the complainant, opposite party No.3 as a gesture of goodwill offered to waive off Rs.6,500/- from the repair bill and assured payment to M/s. DECL by the last week of April, 1997. It is further submitted that the complaint is not maintainable under the provisions of Section 2 (1) (d) of the Consumer Protection Act, 1986. The complaint is also not maintainable qua opposite party No.3 as there is no privity of contract between the complainant and opposite party No.3 as the purchase of the DG Set was an independent transaction from opposite parties Nos. 1 and 2, who are not the authorised dealers of opposite party No.3. Hence opposite party No.3 is not liable for the alleged deficiency.
As per terms and conditions of warranty provided by opposite party No.3, the warranty on the DG Set was for 15 months from the date of receipt and 12 months from the date of commencing whichever is earlier i.e. upto 4.7.1996. Improper handling and fair wear and tear and damage due to negligence are excluded from the warranty. Opposite parties Nos. 1 and 2 are not covered by the warranty as they are not authorised sales and service dealers of opposite party No.3. The complainant has not filed any report of any expert to establish manufacturing defects in the DG Set which is mandatory as per provisions of Section 13 (1) (c) of the Consumer Protection Act, 1986.
Further before changing the scope of supply and the actual product as per purchase order, no customer clearance for the supply of 100 KVA DG Set in place of 125 KVA Cummins Set was sought or taken by the complainant or opposite party No.1. Though the complainant has claimed loss of 1,60,555 cultures to the tune of Rs.80,27,750/- due to failure of electric supply due to faulty DG Set, the complainant had not approached opposite party No.3 during warranty period for repairs. Learned counsel for opposite party No.3 has also quoted several judgments in support of her case, which are as under: -
(a) MRF Ltd. vs. Jagdishlal and another reported in 1999 (4) SCC 315
(b) The Manager Tata Engineering & Locomotive Co. Ltd.
vs. Bachchi Ram Dangwal decided on 16.3.2009 para 7 (d) (iv) and para 8.
(c) National Seeds Corporation Ltd. & Anr. Vs. Nalia Narsimha Rao & Ors. decided on 11.2.2009 para 19 and 12.
(d) Tata Engineering and Locomotive Co. Ltd. & Anr. Vs. Sunil Bhasi & Anr. Reported in 2008 CTJ 715 (CP) (NCDRC) para 7 page 716.
ANALYSES AND FINDINGS Section 2 (d) of the Consumer Protection Act reads as follows: -
(d) "Consumer"
means any person who, -
(i) Buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised or under any system of deferred payment when such use is made with the approval of such person but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) [Hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other then the person who 8[hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose];
[Explanation. For the purposes of this sub-clause "commercial purpose" does not include use by a consumer of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood, by means of self-employment;] In this case, the complainant is a private limited company and not an individual. It has purchased a DG Set and the complainant had alleged defects in the said DG Set. So, the complainant is covered by Section 2 (d) (i)of the Consumer Protection Act, 1986. Secondly, the complainant has brought the DG Set for commercial purposes. In the complaint, the complainant has not averred that it had bought the DG Set exclusively for the purpose of earning livelihood by means of self-employment. Hence, it would be difficult to hold the complainant as consumer under the Consumer Protection Act, 1986. Further in this case, the complaint was filed in the year 1998, at which point of time Section 2 (d) was not amended to include the following words: -
but does not include a person who avails of such services for any commercial purpose Assuming that the complaint is for deficiency in service, this complaint was maintainable for not rendering service during the warranty period. This Commission has held in a catena of judgments that not providing effective service during the warranty period would entitle the buyer of the goods to file a consumer complaint. Hence we have decided to examine whether there is, in fact, any deficiency in service.
This is clear from the records that the complainant did not buy a DG Set from the manufacturer M/s. Kirloskar Oil Engines Ltd. or from their authorised dealer M/s. Dicksons Engineering Pvt. Ltd. This was purchased from the opposite parties Nos.1 and 2, which are not authorised dealers. However, records of the case show that a guarantee has been given by M/s. Kirloskar Oil Engines for a period of 1000 running hours or one year whichever is earlier. They also supplied maintenance manual. Para-2 of the guarantee reads as follows: -
This guarantee shall not apply to fair wear and tear or to damage due to negligence or improper handling by the purchaser, or his employees or agents, or in the case of repairs or alterations carried out by the purchaser without our knowledge or approval, or due to damage by any cause beyond our control. This guarantee does not apply to reconditioned or second-hand combination sets or Engines.
In this case DG Set was purchased on 6.6.1995, whereas opposite party No.3, the manufacturer was informed about the problem only on 7.10.1996 much after the period of warranty. Accordingly, the manufacturer is not liable. Even then the manufacturer asked the complainant to approach M/s. Dicksons, who rectified the defects and issued a bill. When the complainant wanted reduction in the same, manufacturer used its good officers to reduce the bill by Rs.6,500/-.
Further, as opposite parties Nos. 1 and 2 are not the authorised dealers of opposite party No.3, for any alleged deficiency in service rendered by opposite parties Nos. 1 and 2, opposite party No.3 cannot be held liable. In this connection, it is worthwhile to peruse the judgment of this Commission in Bhopal Motors Pvt. Ltd. vs. Saudan Singh and another 2008 CTJ 601 (CP) (NCDRC) wherein it was held that if a dealer makes a purchase of a motor vehicle for re-sale, it cannot escape from the liability of even a manufacturing defect in the vehicle. Since at the time of taking its delivery it had to ensure that it was free from such defects. Therefore, the manufacturer cannot be held liable.
The letter written by opposite party No.1 on 4.4.1997 to the complainant is quoted in extenso: -
Ref No. SDSS/SKL/97-001 Date:4.4.97 To, M/s. Sau bhagya Kalpataru Pvt. Ltd.
Sarafa Lane, Hinganghat, Dist:
W A R D H A PIN: 442 301 Dear Sirs, We re in receipt of your letter ref. No.SDSS/96-97/522 Dt.15.3.97 regarding GENSET and wish to inform you as follows:
1. We have supplied you the D.G. Set in the month of May, 1995.
2. After supplying the DG Set, we have twice visited to your plant in the month of June and Nov.05. However till that time neither your room was completed nor your load connections were completed.
3. Therefore our both visits were wasted. During our second visit, we have informed you that before starting the set and putting it on load inform us so that if there will be any problem that can be solved. We have also inform you that first servicing is necessary after running of 50 Hrs. However you have not informed us before putting the set on load, nor the servicing was completed.
You have informed us after completion of running of 200 Hrs. In the meanwhile you have run the set on your risk. Till that time warranty period was expired. If you should have informed in warranty period, the problem should have been solved by the Manufacturer. Even though after your call we have attended the complaint and rectified the problem, and given you satisfactory trial. It is also observed that you have dismantled the set by unauthorised local mechanic. Therefore we are not responsible for any of your losses and Engine damage. As it is you have repaired your set from Nagpur party advice them to connect the same and get the set started.
However even if you required our services, we will depute our person on chargeable basis only, and thereafter you can make an Annual Maintenance Contract, so that Quarterly visits can be made.
Thanking you, we remain.
Yours faithfully (S.P. Jogalekar) It is clear from this that the complainant had not informed opposite party No.1 after running 50 hrs. for providing the first service whereas the complainant had informed only after running 200 hrs. It was also found out that the complainant had got the DG Set dismantled by an unauthorised local mechanic for which opposite parties Nos. 1 and 2 cannot be held responsible. That the complainant was advised not to commission or start the set unless the engineers of opposite party No.1 are present is evident from the letter issued by opposite party No.1 on 10.7.1995 to the complainant. Opposite party No.1 was also advised to complete all necessary electrification work at the earliest to enable opposite party No.1 to depute their Engineers, who will complete erection and commissioning of the DG Set. On 21.11.1995, opposite party No.1 advised the complainant to follow the maintenance instructions and complete the brackets of exhaust pipe, fuel tank & battery charger. The letter dated 8.7.1996 from the complainant to opposite party No.1 indicates that some oil leakage has been observed from DG Set which has been checked through local engineers and it has been observed that engine part rocket support were in a broken stage.
The complainant had engaged Sri D.K. Khedkar, who has given a report. Extract of his report is reproduced below: -
As per terms & conditions the Set received with the warranty of 15 months from t he date of receipt and 12 months from the date of commissioning whichever is earlier. Thus the warranty period is upto 4.7.1995.
As per telephonic discussions with M/s. Sucheta Diesels, the party was advised to contact Nagpur office of the dealer M/s. Dicksons Engineering Co. Pvt. Ltd.
It is unfortunate & unwarranted breakdown of Rocker Arm bracket just after 200 Hrs of running, which can be termed as manufacturing defect. In this case the Supplier should not have charged being in warranty period.
This Charted Engineer was not appointed by the Consumer Forum nor he has filed any affidavit.
The complainant has also produced a report of R.R. Katariya, Mechanical Engineer dated 7.7.1998 and he has listed the following deficiencies: -
(1) Heavy oil leakages from Engine Head (2) More smoky while running (3) Diesel leakage from Engine and Joints (4) Incorrect sound was found, while running During these inspections the complainant could have asked the representatives of the manufacturer and the dealer to be present, which was not done. Further, R.R. Katariya has also not filed any affidavit in support of his contentions. Hence, evidentiary value of these documents gets eroded considerably. Nothing prevented the complainant in asking the representatives of the opposite parties to be present during the inspection by the Engineers appointed by him. The complainant should have performed his part of the contract by not allowing the DG Set to be tinkered by unauthorised mechanics. He should have gone for free service after 50 hrs. of running. He should have also followed all the requirements as per the maintenance manual. The complainant could have requested the District Forum to appoint an expert Engineer to inspect the DG Set in the presence of all the three parties so that it would have become authentic part of the evidence to prove the defects in the DG Set and deficiency in service by the opposite parties and strengthen the case as provided under Section 13 (1) (c) of the Consumer Protection Act, 1986.
In this connection, it is worthwhile to go through some of the judgments.
In M.R.F. Ltd. vs. Jagdish Lal and another (1999) 4 Supreme Court Cases 315, the Honble Supreme Court has held as follows: -
A bare reading of clause (c) would show that the District Forum, with a view to get proper analysis or test done, should obtain the sample of goods from the complainant and then follow the procedure prescribed in the said clause. In this case, the material on the record shows that the complainant had given the tyre and the tube which had burst to the dealer, who in turn had sent it to the appellant. The procedure prescribed under Section 13 (1)
(c) of the Act was, therefore, not capable of being followed because the complainant was not in possession of the tyre and the tube. There is no material to show that the appellant had returned the tyre and the tube to the respondent. That being the factual matrix, we do not see how any fault can be found with the District Forum, the State Forum or the National Commission in the matter of not following the procedure under Section 13 (1) (c) of the Act.
Accordingly, the Honble Supreme Court did not find any fault with the Consumer Fora for not following the procedure under Section 13 (1) (c) of the Act. In the case under consideration, the DG Set was available for inspection by an expert acceptable to all the concerned, which facility was not utilized by the complainant. In fact, the complainant has been using the DG Set even till date and complainant did not mention about any defect from the date of filing the complaint till the date of arguing the matter before us.
In Manager Tata Engineering and Locomotive Co. Ltd. vs. Bachchi Ram Dangwal MANU/CF/0022/2009 it was held as follows: -
Therefore, given the rival contentions of the parties of the parties, it was necessary for the State Commission to require an examination of the truck by an independent and technically competent agency to determine the issues, as specifically mandated under the Act. This was not done.
In National Seeds Corporation Ltd. vs. Nalia Narsimha Rao and others MANU/CF/0010/2009, The National Commission gave credence to the report of Dr. Reddy, who had inspected fields of eight farmers and held that seeds supplied by the petitioner to the complainant/respondent were defective. The Commission observed that the report submitted by this expert can certainly be taken into consideration even if there was no analysis of the seeds from a laboratory. Non-examination of the seeds from the laboratory is not fatal to the case of the complainants whose fields were inspected by Dr. P. Sesha Reddy. So the relief was confined to only eight complainants and not to the other 12 complainants, whose fields were not inspected by the expert and this expert had inspected the fields alongwith a local Advocate Commissioner, who was appointed by the District Forum as he was a technically qualified person.
Lastly in the case of Tata Engineering & Locomotive Co. Ltd. and another vs. Sunil Bhasin and another 2008 CTJ 715 (CP) (NCDRC) it was held by this Commission that the vehicle was neither directed to be sent to any workshop nor independent expert opinion obtained regarding the alleged defects, especially the manufacturing defect. Therefore, the impugned order was set aside and the case was remanded back to the State Commission to give an opportunity to refer the vehicle to an expert. The ratio given in above judgements are applicable to the case under consideration.
In view of the above analysis, we do not hold that there was any deficiency in service rendered by the opposite parties. Hence, the complainant is not eligible for reimbursement of expenses on repairs to the tune of Rs.12,000/-. Complainant has also claimed expenses for repairs and spares to the tune of Rs.52,542/- as per bill given by Dickson Engineering Pvt. Ltd.(DECL ). DECL had repaired the DG Set after the warranty period as per the advice of opposite party No.3, the manufacturer as DECL was their authorised service and sales service dealer. As the expenses were incurred after the period of warranty, we reject this claim.
Averting to the claim of Rs.38,000/-, it is crystal clear from the records that the complainant had bought DG Set from Kirloskar Oil Engines Ltd. in place of 125 KVA Cummins Set which is of a different impact and it is clear from the invoices produced before us. Therefore, this amount is not payable.
The complainant has claimed Rs.80,27,750/- towards loss suffered due to loss of 1,67,557 cultures @ Rs.50/- per culture (sugarcane cultures 1,46,545, bamboo cultures 4899 and banana cultures 9111). Though the complainant has claimed this much, he has not filed any certificate from either an agricultural officer or a horticultural officer or from any agricultural scientist of repute. We see from the record that no Panchnama has been drawn to prove/certify/assess the loss. The complainant has also not filed any report from the suppliers of raw material for the tissue culture.
The complainant has produced some unsigned typed sheets of papers indicating this loss. These sheets are at pages 61 and 62 of the paper book. This claim suffers, inter alia, from following defects: -
a.
They are not on the letter heads of the Company ;
b.
They are not signed ;
c.
They are not certified by a Chartered Accountant/Auditor ;
d.
They are not certified by any expert in the field of agriculture or horticulture or by any Scientist ;
e.
They are not attested by concerned government officer.
We are surprised how a private Ltd. Company can claim such a huge amount without any supporting documents. The grant of such a claim would result in unjust enrichment of the complainant. Hence, this claim is rejected.
Accordingly, we do not find any merit in this complaint. Therefore, the complaint is dismissed. However, there shall be no order as to costs.
..J (R.K. BATTA) (PRESIDING MEMBER) .
(DR. P.D. SHENOY) MEMBER Raj/