State Consumer Disputes Redressal Commission
Sudhir Genset vs Navneet Overseas Pvt. Ltd. on 23 March, 2007
IN THE STATE COMMISSION: DELHI IN THE STATE COMMISSION: DELHI (Constituted under section 9 clause (b) of the Consumer Protection Act, 1986) Date of decision: 23.03.2007 First Appeal No.1289/2006 (Arising from the order dated 03.07.2006 passed by District Forum(North West) Shalimar Bagh, Delhi in Complaint Case No.924/2004) M/s. Sudhir Genset . Appellant. 507, International Trade Tower through Mr. A.K. Aggarwal, Nehru Place, New Delhi advocate Versus M/s. Navneet Overseas Pvt. Ltd. Respondent 2602, 1st Floor, Nai Basti through Mr. O.P. Kejriwal, Naya Bazar, Delhi. advocate. CORAM: Justice J.D. Kapoor, ... President Ms. Rumnita Mittal Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
Justice J.D. Kapoor, President(ORAL)
1. Since the counsel for the respondent has appeared on his own and has argued the matter, the matter is being decided on merit.
2. On account of having sold defective Genset against consideration of Rs.4,00,000/-, the appellant has been vide impugned order dated 03.07.2006 held guilty for selling defective goods and directed to replace the D.G. Set of 125 KVA with new one of the same specification or in the alternative refund the entire cost of said D.G. Set amounting to Rs.3,50,000/- on return of the D.G. Set by the respondent, to the appellant besides Rs.25,000/- as compensation and Rs.10,000/- as cost of litigation,.
3. The allegations of the respondent leading to the impugned order in brief were that the respondent had purchased one Cummins diesel 125 KVA D.G. Set from the OP. The said D.G. Set was installed at the sortex of the respondent on 05.06.2003. However the said D.G. Set started mal-functioning/non-functioning from the very first day. The said D.G. Set had started giving day to day problem while on some day its alterator did not function. On so many occasions the generator had stopped working after running a few hours and had to be taken to the workshop of M/s. Own Trading Engineers Pvt. Ltd. Within the span of three months of purchasing the said D.G. Set complainant had to lodge the complaint 12 times between 05.06.2003 to 18.08.2003 as a result of which the respondent not only suffered financial losses due to non-functioning of the said D.G. Set but also it became source of mental torture, distress and agony to him. The grievance of the respondent was that appellant in collusions with respondent No2 and 3 as arraigned in the complaint, knowingly and wilfully supplied the defective, adulterated and locally assembled D.G. Set of inadequate and inferior quality as a result of which within three months whole D.G. Set had to be overhauled.
4. The impugned order has been assailed firstly on the following ground that the D.G. Set was purchased for commercial purpose and therefore the respondent is not a consumer as per Section 2(1)(d)(ii) of Consumer Protection Act 1986; secondly that the District Forum lacks jurisdiction as out of three OPs only one of the parties resides at Delhi and carries its business, thirdly that the District Forum did not take into consideration various test reports, as well as, service reports to the effect that as and when the problem was brought to its notice for removing defect it was attended to and fourthly that the District Forum has wrongly held that the D.G. Set was of substandard quality. As a matter of fact the defects developed in the D.G. Set because of the use of spurious oil, which was not the fault of the appellant and further there was no breach of term of the warranty at any given point of time as whenever D.G. Set was brought to the appellant for removing defects the complaints were attended to and the defects were removed and even if it is assumed that there was breach of term of warranty still as per sections 12 and 59 of the Sale of Goods Act 1930 the D.G. Set cannot be ordered to be replaced by a new D.G. Set.
5. As regards the contentions that the D.G. Set was purchased for commercial purpose, there is no merit as when a person purchases goods for its personal use or may be for running factory, the purpose is not commercial, if a person purchases goods for further sale to earn profit only then the purpose becomes commercial. Here only one D.G. Set was purchased by the respondent and to treat purchase of a single set as a purchase for commercial purpose is difficult to accept. The respondent is neither a dealer nor deals in sale and purchase of the D.G. Sets and therefore comes within the definition of Consumer
6. As regards the contention that the D.G. Set was attended to whenever brought for removal of defects during the warranty period, the same is against record and as such devoid of merit. Concept of warranty is independent of goods article suffering from defects including manufacturing defects. The import of warranty is only to the extent that person who purchases goods and complains of defects during the warranty period the defects shall be removed without charging him and its only after the expiry of warranty period that if the goods are brought for removal of defects the seller can charge expenses incurred for removal of defects.
7. So far as the question whether the goods sold were defective or not is concerned it has to be independently determined on the anvil of definition of word defect as defined by section 2(1)(f) of the Act. If the defect continues after warranty period, the goods have to be held as defective.
8. Consumer purchases new goods or new article with a view that he would not face problem which second hand goods and if after purchasing brand new goods and having spent considerable amount faces the problem of defect every day and takes goods to the manufacturer or dealer for removal of one defect or the other the goods have to be held to be defective which in terms of Section 2(1)(g) of Consumer Protection Act 1986, means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or (under any contract, express or implied or} as is claimed by the trader in any manner whatsoever in relation to any good.
9. The chronological history of defects pointed by the respondent shown in the job card of D.G. Set which is as under, manifestly demonstrates that the D.G. Set was a defective set in terms of Section 2(1)(g) of the Consumer Protection Act 1986.
i) 05.06.2003 Generator Installed
ii) 09.06.2003 Sparking Problem
iii) 10.06.2003 Sparking Problem in Alternator. Alternator was taken to the workshop. It was repaired there and fitted again.
iv) 27.06.2003 RPM Meter not working properly on load. Engine used to sink down after 2 - 4 hours.
v) 28.06.2003 Adjusted RPM Meter.
vi) 01.07.2003 Unusual Sound. When the speed of radiator fan increases sound increases and vice-versa. Adjusted MPV for hour meter reading.
vii) 02.07.2003 RPM Meter and hour meter not working properly Instrument Panel needs to be changed.
viii) 03.07.2003 Instrument Panel Changed as hour meter not working.
ix) 25.08.2003 Generator Stopped working automatically after running a few hours on 24.08.2003. Turbo was removed from the generator.
x) 26.08.2003 Turbo was taken is the workshop and it was repaired there and handed over back.
xi) 27.08.2003 Turbo was fitted. Generator tried to take start but it was seen that there was some more failure in the generator so the generator could not be started.
xii) 28.08.2003 Head of the Generator was taken in the workshop it was repaired there and brought back but it was not fitted to the Generator Set.
xiii) 28.08.2003 The OVN Trading Co. people came and opened up the whole set and took the whole set leaving only the oil tank and panel board with the Respondent.
10. As regards the contention that the respondent has been using spurious oil which resulted in development of defect in the D.G. Set, the plea has neither been proved by any expert opinion nor is available to the manufacturer as no consumer would intentionally purchase spurious oil from the market. He purchases the oil whatever is available in the market. So far as the provisions of Section12 and 59 of Sale of Good Act are concerned these are independent provisions and as per section 3 of the Consumer Protection Act 1986 the remedy is an independent and additional remedy and is not in derogation of any other law for the time being in force. Thus every case under the Consumer Protection Act has to be dealt with in terms of the Section 14 of Consumer Protection Act 1986. According to this provisions the consumer Forum has four options if it holds goods sold as defective goods:
(a) to remove the defect pointed out by the appropriate laboratory from the goods in question;
(b) to replace the goods with new goods of similar description which shall be free from any defect;
(c) to return to the complainant the price, or, as the case may be, the charges paid by the complainant;
(d) to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer, due to the negligence of the opposite party;
11. In our view the best feasible solution in such type of cases is to direct the party to refund the cost as replacement of defective good by a new goods is not a guarantee that new goods would be free from any defect and therefore to relegate the parties to approach Consumer Forum is neither tenable nor appropriate nor in the interest of manufacturer nor in the interest of consumer. Problem of consumer should always be solved once for all. In the instant case, we deem that appropriate order would be for refund of the cost of the D.G. Set.
12. In the result we allow the appeal by directing the appellant to refund a sum of Rs.3,50,000/- towards cost of the D.G. Set and award Rs.25,000/- as lump sum compensation which shall include the cost of litigation. Payment shall be made within one month from the date of receipt of this order.
13. Bank Guarantee/FDR, if any, furnished by the appellant be returned forthwith.
14. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.
Announced today on 23rd day of March 2007.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member Tri