State Consumer Disputes Redressal Commission
Prasanta Kumar Swain vs 1. Regional Manager, J.C. B. India Ltd. on 1 November, 2022
STATE CONSUMER DISPUTES REDRESSALCOMMISSION,ODISHA,CUTTACK
CONSUMER COMPLAINT NO. 41 OF 2006
Prasanta Kumar Swain,
S/o -Late Banamali Swain,
Vill - Nabadia, Po/Ps - Kujanga,
Dist.-Jagatsinghpur
... Complainant
Vrs.
1. Regional Manager,
J.C.B.India Ltd.,
Unit No. 689, Udayan Chat,
Rodon Street, Kolkata
2. M/s Kalinga Automobiles (P) Ltd.,
Unit - I, Plot No.'B',
Bhubaneswar, Dist - Khurda
3. Area Manager,
J.C.B.India Ltd.,
Nirmala Plaza, Forest Park,
Bhubaneswar, Dist - Khurda
4. G.M.(Service),
J.C.B.India Ltd.,
Mathura Road, Ballab Gorh, Haryana
5. SREI INFRASTYRUCTURE FINANCE LTD.,
A-162, Sahid Nagar, Bhubaneswar, Dist - Khur4da
... Opp.Parties
____________
For the complainant : M/s B.K.Parida & Associates
For Opp.party Nos. 1,3 & 4 : M/s S.Dwivedi & Associates
For OP No. 2 : Mr G.R.Verma, Advocate
For Op No. 5: M/s D.R.Swain & Associates
_____________
P R E S E N T:
HON'BLE DR. JUSTICE D.P.CHOUDHURY, PRESIDENT,
DR P.K.PRUSTY, MEMBER
AND
MISS S.L.PATTNAIK, MEMBER
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DATED THE 01st NOVEMBER, 2022
ORDER
DR. D.P. CHOUDHURY J., PRESIDENT The captioned complaint case is filed u/s 17 of the Consumer Protection Act (hereinafter called the 'Act' in short) by the complainant against the opposite parties seeking direction to opposite parties 1 to 4 to supply new JCB 4D-Hydrautic Excavator failing which cost of the machine, compensation and cost etc. FACTS
2. The unshorn details of the case of the complainant is that complainant has purchased a JCB Hydraulic Excavator from OP Nos. 1 to 4 on 13.1.2005 on payment of Rs.17,53,677/-. It has warranty for 12 months. On 22.4.2005, the complainant found defect in the machine and accordingly informed OPs who deputed Servicing Engineer to check up the machine. The Service Engineer repaired the machine but the machine did not function well and the hydraulic system functions slowly. Thereafter, the Service Engineer on 26.4.2005 again checked the machine and found that the left side hydraulic oil is leaking and advised to give slew seal kit which was not available in the market. However, later on, it was procured and fitted with the machine. Thereafter, again the defect accrued to the machine. On 28.5.2005, the Service Engineer of OP No.2 3 also was deputed and he found the strainer oil was leaking from both sides due to damage in spool seals. The Service Engineer repaired the part but the problem could not be rectified. On 8.6.2005, the complainant found the hydraulic leaking and asked the OPs to repair the machine. In July, 2005, again complainant requested to replace the hydraulic excavator which was not functioning well due to manufacturing defect in the hydraulic system and OPs assured to the complainant to co-operate him and provide necessary advice. After rainy season on 2.3.2006, when the machine started to work the hydraulic leakage was found and the Service Engineer being deputed checked the machine and found that after 20 minutes of working the hydraulic system was overheating. The Service Engineer changed the necessary accessories for good running. Thereafter, the OPs on 22.3.2006, 30.3.2006 and 5.4.2006 repaired the hydraulic system but again the defect occurred. On 8.4.2006, the machine was repaired by changing accessories. Accordingly, on 13.4.2006, complainant informed the OPs but no action was taken. Then lawyer's notice was sent but no action was taken. So the complainant being aggrieved filed the consumer complaint.
3. Per contra, OP Nos. 1, 3 and 4 filed written version refuting all the allegations. They specifically took the plea that the complainant is not a consumer. Moreover, they have contended that the complaint is not 4 maintainable because the complainant has purchased the machine for business purpose. Further, they took the plea that whenever there is request to repair the machine, they have attended the same, even parts also have been replaced. The defects have occurred during the warranty period and that has been removed. Thereafter, also the defects have been attended by the OPs without any delay. They have stated that the Service Engineer has attended 11 times and made the report. There is no manufacturing defect in the machine. So, it is contended that there is no deficiency in service or unfair trade practice on the part of OP Nos. 1, 3 and 4.
ISSUES
4. After going through the pleadings, the following issues emerge for discussion:-
I) Whether complaint is maintainable?
II) Whether there is cause of action to file the complaint?
III) Whether complainant is a consumer under the C.P. Act, 1986?
IV) Whether there is manufacturing defect in JCB machine in question sold to the complainant and as such, there is deficiency in service and unfair trade practice on the part of the OPs?
5V) Whether complainant is entitled to any compensation? VI) Whether the complainant is entitled to any other relief? ANALYSIS & CONCLUSION ISSUE NO.IV
5. This issue being important issue is taken up first for discussion. It is well settled in law that complainant has to prove the deficiency in service and unfair trade practice on the part of the OPs. Complainant has filed the complaint with affidavit and necessary documents.
6. Before going further, it is found that there is admitted fact that the complainant has purchased a JCB hydraulic excavator on 13.1.2005.The necessary written invoice also shows that it has been sold by OP No.1. Complainant has proved the warranty certificate which shows that the warranty is for 12 months or 2000 hours of working of the machine whichever have occurred from the date of sale/installation. Under the warranty, the manufacturer's liability is only to repair, replacement of the parts and adopts no liability for any consequential damage or injury resulting any defect in parts. However, the warranty must be valuable documents for the customer.
7. Evidence of the complainant along with the job cards show that right from 22.4.2005 to 8.4.2006, their regular complaints were with 6 regard to hydraulic system slow and other problems. At every time, Service Engineer comes and attends the work. Most of times the defect occurred in a very short span with regard to hydraulic system slow and there is some lickage of oil. After going through all the documents annexed to the complaint, it is proved that the complainant has suffered from the defects of the vehicle from time to time they passed up. It appears that within 12 months the vehicle remained out of order for about 10 months. When the Service Engineer pointed out the defect and in spite of effort not rectified, the OPs have taken the plea that they have sent the Service Engineer to look after the defect. When the Service Engineer found defect from time to time, there is reason to believe that the excavator is not perfect and it has got manufacturing problem. A person will purchase the machine for the purpose for, it is meant when the Service Engineer sent by OPs failed to remove the defects, there is reason to believe that the complainant has purchased a defective excavator which should be returned to OP No.1. However, the deficiency in service on the part of OP Nos. 1, 3 and 4 has been proved by complainant. It is true that warranty does not also for replacement of excavator as a whole but permits for replacement of parts of it. But OP has sent Service Engineer and remains silent. It shows that he adopts unfair means to overcome the complaint of complainant. So complainant 7 has proved unfair trade practice on the part of OP. Issue No.IV is answered accordingly.
ISSUE NOS.III & V
9. We have already discussed in the above Para that there is deficiency in service proved on the part of the OPs because frequently defect occurred in the JCB machine in question. If the hydraulic system is very slow in every complaint and it is not removed to the satisfaction of the customer, then same amounts to give mental agony and harassment to the complainant. For such mental agony and harassment, OP Nos. 1, 3 and 4 are responsible. Complainant asked Rs.5,00,000/- towards compensation. We are of the view that when complainant is to receive certain compensation because of the regular defect occurred in the machine and the complainant failed to get benefit out of that machine, Rs.3,00,000/- would be sufficient to award compensation. Issue No.III & VI is answered accordingly.
ISSUE NOS. I, II AND VI
10. Since three issues are inter-dependent, we take up the issues as such. The OP Nos. 1, 3 and 4 have taken the plea that complaint is not maintainable because the complainant is a businessman and he has used this machine for his business purpose. On the other hand, learned counsel 8 for the complainant submitted that in order to maintain livelihood the complainant has purchased the excavator for its use in the agriculture sector. No doubt under the Act, the explanation to section - 2 (1) of the Act is clear to show that if there is any business on self employment undertaken by the complainant to maintain livelihood same cannot be taken as commercial purpose to defect the consumer. In this case, complainant has clearly mentioned in Para - 2 of statement of consumer complaint that in order to maintain his livelihood, he started the business at Paradeep area and accordingly purchased hydraulic excavator. OP Nos. 1, 3 and 4 although denied the facts, but it did not place any record to show that the complainant has purchased the machine for business purpose other than self-employment. In the Laxmi Engineering Works Vrs. P.S.G. Industrial Institute, II (1995) CPJ 1 (SC) the Hon'bl Supreme Court of India have held that word "commercial" purpose in Explanation to Section 2(1)(d) clearly allow the person in order to maintain his livelihood can start any business on self-employment and he is a consumer for all purpose. In the instant case as discussed above, complainant has proved that in order to maintain his livelihood, he started business at Paradeep area and for that purchased the JCB machine. OP Nos. 1, 3 and 4 have taken the plea refuting the allegations but at the same time took view that the complainant having purchased 9 the excavator for business purpose is not a 'consumer' and as such the case is not maintainable. When he has failed to prove the plea, we must hold that the complainant has proved that he is a consumer under the Act. When the excavator has kept idle because of time to time repairing, there is cause of action to file the case. Complainant has asked to return the machine or make payment of Rs. 17,53,677/- along with compensation and cost.
11. In view of the answer to the above issues when it has been well decided that complainant has proved the deficiency in service and unfair trade practice on the part of OP Nos. 1, 3 and 4, he is entitled to compensation. On further scrutiny of the complaint and documents it appears that actually the JCB machine in question has been manufactured by OP Nos. 1, 3 and 4 and Service Engineer was deputed by OP No.2 who is a dealer of OP Nos. 1, 3 and 4. In such circumstances all the OPs 1 to 4 are answerable for the deficiency in service and unfair trade practice adopted by OPs. It is prayed in the complaint to replace a new excavator in lieu of that to direct to return the cost. We have already found under the warranty that there is no provision to replace the new machine but there is provision to replace new parts. Since the vehicle has remained idle because of the defects appearing time to time in the machine it will not be proper to direct for retain the machine but to remove the 10 deficiency in service and not to rebuts the unfair trade practice. We hereby direct to return the purchase price of Rs.17,53,677/- to the complainant who is to return the said excavator them immediately. So far compensation is concerned, the complainant is entitled to Rs.3,00,000/- from OPs. Complainant is also entitled to cost of litigation which is fixed at Rs.50,000/-.
12. Learned counsel for the complainant submitted that he is also entitled to financial loss. When the money has been directed to be refunded, the question of financial loss does not arise. Hence ordered.
ORDER Complaint is allowed on contest against OP Nos. 1, 3 and 4 with cost but ex-parte against OP No.2. OP Nos. 1 to 4 are jointly and severally liable to pay Rs.17,53,677/- to the complainant, Rs.3,00,000/- as compensation for mental agony and harassment to the complainant. We have also awarded cost of Rs.50,000/- to the complainant payable by OP Nos. 1 to 4. As such all the payments shall be made by OP Nos. 1 to 4 within a period of 45 days from today failing which they all will carry interest payable at the rate of 12% per annum from the date of this order till date of payment.
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Supply free copy of this order to the respective parties or the copy of this order be downloaded from Confonet or Website of this Commission to treat same as copy supplied from this Commission.
(Dr.D.P.Choudhury J) President (Dr.P.K.Prusty) Member (Miss S.L.Pattnaik) Member