State Consumer Disputes Redressal Commission
1. M/S. Terex Equipment Pvt Ltd., vs 1. Mekala Srinivasa Rao on 21 September, 2022
CONSUMER DISPUTES
TELANGANA STATE
BEFORE THE
REDRESSAL COMMIsSION:HYDERABAD
cC No.107/2006
ON
AGAINST
FA NO.262/2017 KHAMMAM.
DISTRICT FORUM,
THE FILE OF
Between
Limited
1.M/s.Terex Equipment Private
(Formerly Terex Vectra Equipment Private Limited),
Towers,
H.No.5-2-220, 3rd Floor, Sri Padmavathi
Distillery Road, Hyderbasti, Raniganj,
Hyderabad - 500 003, India.
2. M/s.Terex Equipment Private Limited,
Plot No.22, Udyog Vihar,
Greater Noida, P.O.Surajpur,
Gautam Budh Nagar, U.P.-201 306.
(Both represented by its authorized representative,
K.Vijaya Simha S/o.Shri K.N.Murthy,
Aged about 47 years) .. Appellants/
Opposite party
Nos.4 & 5
And
1. Mekala Srinivasa Rao, S/o. Venkateswarlu,
Ageed about :45 years,
Occupation: Business, R/o.H.No.5-10-102,
Civil Lane, Yellandu Town and Mandal,
Khammam District. Respondent/
Complainant
2. M/s.Anukanp Engineers Private Limited,
Door No.9-3-119 /A, Old Club Road,
Bommana Centre, Khammam.
3. M/s.Kirloskar Oil Engines Limited,
Laxman Rao Kirloskar Road,
Khadki, Pune - 411 003.
4. M/s.Vegha Engineering Company,
Door No.29-1-16, 1st Floor,
Seshadri Sastry Street, Behind Vijaya Bank,
Eluru Road, Governorpet,
Vijayawada -520 002. Respondents/
Opposite party
Nos.1 to 3.
Counsel for the Appellant M/s.Ravinder Sharma
Counsel for the Respondents : Mr.N.V.Anantha Krishna R1
M/s.T.V.L.Narsimha Rao -R2
M/s.CH.Chandra Kishore -R3
M/s.Haribabu-R4
FA NO.264/2017 AGAINST CC No. 107/2006 ON
THE FILE OF DISTRICT FORUM, KHAMMAM.
Between
M/s. Anukamp Engineers Pvt. Ltd.,
Door No.9-3-119 /A, Old Club Road,
Bommana Center, Khammam.
Present Address since theyear 2003
M/s.Anukamp Engineers Pvt. Ltd.
Plot No.5-A/1,Road No.1,
Industrial Development Area, Nacharam,
Hyderabad - 500 076, Telangana State. ...Appellant/
Opposite party
No.1
And
Srinivasa Rao, S/o.Venkateswarlu
1. Mekala
Aged :35 years,
Occu: Business, R/o.H.No.4-10-102,
Civil Lane, Yellandu Town and Mandal,
Khammam District. . Respondent/
Complainant
2. M/s.Kirloskar Oil Engines Ltd.,
Laxman Rao Kirloskar Road,
Khadki, Pune - 411 003.
3. M/s.Vegha Engineering Company,
Door No.29-1-16, 1st Floor,
Seshadri Sastry Street, Behind Vijaya Bank,
Eluru Road, Governorpet,
Vijayawada -520 002.
4. M/s.Terex Vectra & Equipment Pvt. Ltd.,
Door No.6-3-1191/6, 2nd Floor,
Green Lands, Begumpet,
Hyderabad, A.P.
5. M/s.Terex Veetra,
Plot No.22, Vidyagrihar,
Greater Noida,
U.P. Respondcnts/
Opposite party
Nos.2 to 5
Counsel for the Appellant M/s.T.V.L.Narasimha Rao
Counsel for the Respondents Mr.N.V.Anantha Krishna - R1
M/s.CH.Chandra Kishore -R2
M/s.M.Hari Babu-R3
M/s.Ravinder Sharma-R4 & R5
FA NO.276/2017 AGAINST CC No.107/2006 ON
THE FILE OF DISTRICT FORUM, KHAMMAM.
Between
Vegha Engineering Company,
Door No.29-1-16, First Floor,
Seshadri Sastry Street,
Behind Vijaya Bank,
Eluru Road, Governorpet,
Vijayawada -520 002 ....Appellant/
Opposite party no.3
And
1.Mekala Srinivasa Rao,
S/o.Venkateswarlu,
Aged about :35 years,
Occ: Business, R/o.H.No.5-10-102,
Civil Lane, Yellandu Town and Mandal,
Khammam District. ... Respondent/
Complainant 2.2.
2.Anukamp Engineers Pvt.Ltd.,
Rep. by its Managing Director,
Door No.9-3-119/A, Old Club Road,
Bommana Centre, Khammam Dist.
3. M/s.Kirloskar Oil Engineers Ltd.,
Laxman Rao Kirloskar Road,
Khadki, Pune - 411 003.
4.M/s.Terex Vectra & Equipment Pvt. Ltd.,
Door No.6-3-1191/6, 2nd Floor, Green Lands,
Begumpet,
Hyderabad
5. M/s.Terex Vectra,
Plot No.22, Vidhyagrihar
Greater Noida,
U.P. Respondents/
Opposite parties
1,2,4 & 5.
Counsel for the Appellant M/s.M.Hari Babu
Counsel for the Respondents Mr.N.V.Anantha Krishna - R1
M/s.T.V. L.Narasimha Rao -R2
FA NO.385/2018 AGAINST CC No.107/2006 ON
THE FILE OF DISTRICT FORUM, KHAMMAM.
Between
M/s.Kirloskar Oil Engines Ltd.,
Laxman Rao Kirloskar Road,
Khadki, Pune 411 003. Appellant/
Opposite party
No.2
And
A
1. Mekala
Srinivasa Rao,
Aged about :45 years, S/o.Venkateswarlu,
Occ: Business, R/o.H.No.5-10-102,
Civil Lane, Yellandu
Town and Mandal,
Khammam District.
Respondent/
2.
M/s.Anukamp Engineers Pvt. Ltd., Complainant
Rep. by its Managing
Door No.9-3-119 Director,
/A, Old Club Road,
Bommana Centre, Khammam
Dist.
3.
Vegha
Engineering Company,
Door No.29-1-16, 1st Floor,
Seshadri Sastry Street,
Eluru Road, Governorpet,Behind Vijaya Bank,
Vijayawada -520 002.
4. Terex Vectra
&
Door No. Equipment Pvt. Ltd.,
6-3-1191/6, 2nd Floor, Green Lands,
Begumpet,
Hyderabad.
5. M/s.Terex Vectra,
Plot No.22, Vidhyagrihar,
Greater Noida-U.P.
.. Respondents/
Opposite parties
183 to 5
Counsel for the
Appellant :M/s.K.Parandhamachari
Counsel for the
Respondents Mr.N.V.Anantha Kirshna -R1
M/s.T.V.L.Narasimha Rao -R2
M/s.M.Hari Babu-R3
cORAM: Hon'ble Sri Justice M.S.K.
Hon'ble Smt. Meena Jaiswal, President.
Ramanathan, Lady Member,
And
Hon'ble Sri K.Ranga Rao, Member.
WEDNESDAY, THE TWENTY FIRST DAY OF
TWO THOUSAND TWENTY SEPTEMBER,
TWO
Common Order:( Per Hon'ble Smt. Meena Ramanathan, Lady Member).
1. These appeals are filed u/s.15 of Consumer Protection Act,1986 against the order dt.29.5.2017 of the Dist. Consumer Forum, Khammam made in C.C.No. 107/2006.
The appellants in F.A.No.262/2017 are the opposite parties no.4 & 55, the appellant in F.A. No.264/2017 is the opposite party no.1, Appellant in F.A. No.276/2017 is opposite party no.3, the appellant in F.A.No.385/2018 is the opposite party no.2 and the respondent no.1 is the complainant in C.C.No.107/2006 on the file of Dist.Forum, Khammam.
aas
2. For the sake of convenience, the parties are described arrayed in the complaint.
order in As all the appeals arise out of one and same C.C.No.107/2006 dt. 29.5.2017, these appeals are being disposed of by a common order.
are
3. The brief facts of the case as set out in the complaint as follows:
The complainant for eking out his livelihood purchased an from the Excavator Loader Back Hoes Terex TX 760 Machine 10.10.2005.
opposite party no.1 for a sum of Rs.18,52,113/- on authorised dealer for opposite party Opposite party no.1 is the of the engine in the no.5. Opposite party no.2 is the manufacturer said excavator and opposite party no.3 is the dealer of opposite party no.2. Opposite party no.5 is the manufacturer of the external body and other parts of the said machine and opposite no.5 situated at party no.4 is the sole distributor of opposite party Hyderabad.
machine i.c. from
Soon after the purchase of the
November,2005 onwards, the complainant experienced severe
defects in the machine and though the service engineers of the
opposite party no. 1 attended to rectify the problems in tthe
machine, they were not rectified. On complaint given by the
service engineers of opposite party no.3 after
complainant,
inspection informed that the machine failed. The
thorough
opposite party no.3 assured that a new engine would be replaced, but they failed to do so . Vexed with the attitude of the opposite parties, the complainant issued legal notices dt.13.4.2006 and 30.5.2006 to the opposite parties, but the opposite parties did not choose to rectily the delects in the machine. Hence the complaint seeking direction to the opposite parties either to replace the defective Excavator Loader Back Hoex Terex TX 760 Machine or to pay Rs.9,52,760/- towards compensation and other charges.
4. Opposite party no.1 filed counter denying the allegations made in the complaint and contending that the complainant is not a consumer as he has purchased the machine for business purpose. The Forum has no territorial jurisdiction as the 6 complainant had already conceded the jurisdiction of courts in Noida. The complaint is beyond the monetary jurisdiction of the Forum as the relief sought by the complainant aggregates to Rs.28,04,873/-. The opposite party no.l submits that no serious problem ever existed with the machine and at the instance of opp.parties 4 & 5 keeping in view the objective of market promotion has replaced several items of maintenance whose cost is to be borne by the complainant with new items. The opposite party no.1 submits that there is no def+ciency in service on their part and prayed to reject the complaint.
5. Opposite parties 2 & 3 filed their counter denying the allegations made in the complaint and contending that on 15.5.2006 when it was brought to their notice about failure of the machine, they have immediately replaced with the new engine and there is no further complaint regarding the engine. The opposite parties submit that there is no privity of contract between them and the complainant as they have not given any warranty. The complainant is not a consumer as he is using it for commercial purpose. The opposite parties finally contend that there is no deficiency of service and prayed t0 dismiss the complaint.
6. Opposite parties 4 & 5 filed written version denying the allegations made in the complaint and contending that on receiving the complaints from the complainant they have rectified the problems in the machine. The complainant has not maintained the vehicle as per the instructions given in manual and violated the terms and conditions of warranty. Even though the complainant is not eligible to claim the benefits of warranty in view of the violation of terms and conditions, they have fairly acceded to the demand of complainant by replacing with new parts in order to maintain their reputation. The opposite parties prayed to dismiss the complaint with exemplary costs.
7. Before the District Commission Evidence affidavits filed on behalf of the complainant and opposite parties 1 & 2. Exs.Al to A14 are marked on behalf of the complainant. Exs.Bl & B2 are marked on behalf of the opposite party no.1.
During the pendency of the appeal LA.no.1094/2022 has been filed to receive and mark additional documents. This Commission has noticed that during the pendency of the complaint in the Forum below I.A.No.70/2015 was filed by the complainant and allowed by the Forum on 30.9.2015 and to Al14.
accordingly documents filed were marked as Exs.All filed 1.A.No.48/2016 which Subsequently opposite party no.1 was allowed by the Forum below on 23.2.2017 to receive and mark the documents proposed to be filed . However, inadvertently this was not done. Hence the opposite parties preferred the to mark present Interlocutory Application bearing no. 1094/2022 the same. This Commission on perusal of the Docket proceedings in the main complaint noticed the lapse committed by the Forum below and after due consideration has marked the documents as Exs.B3 to B7.
Dist. Forum allowed the complaint in part directing the the opposite parties 1 to 5 to pay Rs.5,38,200/- which is paid by complainant to his financier Magma Fin Corporation through Ex.A14 within one month from the date of order, failing which the said amount shall carry interest @ 9% p.a. till realisation.
8. Aggrieved by the above said order, the appellant/opposite party No.1 preferred F.A.No.264/2017 with the following grounds:
The District Forum overlooked several discrepancies in the complaint and held that the machine was purchased by the respondent/complainant for earning his livelihood and also the fact that part of cause of action was within its jurisdiction.
The Forum below failed to isolate the involvement of appellant/opposite party no.1 vis a viz the other opposite parties and also failed to notice that this appellant/opposite party no.1 is not the manufacturer of the Excavator or the Kirloskar Engine.
The Forum below failed to understand the role of this appellant/opposite party no.l as an agent of respondents/opposite party nos.4 & 5 to render free maintenance during the warranty period I n the event ol uny specific deficirncy in the muintenance support services extended by this appellant/opponite parly, then the rempondent/complainant would be ehgible for Compensalion for such deficiencicw.
9) AKKrieved by the above said order, the appellant/opposite party No.2 prelerred F.A.No.385/2018 with the following Brounds:
The District Forum overlooked several discrepancies in the complaint and held that the machine was purchased by the respondent/complainant for carning his livelihood and also the fact that part of cause of action was within its jurisdiction The appcllantis only a dealer and is not responsible for the alleged defects in the machine as he is not a manulacturer. The Forum ought to have considered that the respondent/complainant has not proved any defect in the machine by way of cxpert opinion and awarded huge amounts towards compensation.
10). Aggrieved by the above said order, the appellant/opposite party No.3 preferred F.A.No.276/2017 with the following grounds:
The District Forum overlooked several discrepancies in the complaint and held that thc machine was purchased by the respondent/complainant for earning his livelihood and also the fact that part of cause of action was within its jurisdiction.
The appellant/opposite party no.3 is only a dealer and is not responsible for the alleged defects in the machine as it is not a manufacturer.
that the The Forum ought to have considered respondent/complainant has not proved any defect in the machine by way of expert opinion towards and awarded huge amounts compensation.
11). Aggrieved by the above said order, the appellant/opposite F.A.No.262/2017 with the following party Nos. 4 & 5 preferred grounds:
Forum overlooked several
The District
held that
discrepancies in the complaint and the machine was purchased by the for earning his respondent/complainant livelihood and also the fact that part of cause of action was within its jurisdiction .
.The District Forum overlooked the admission that the machine is of the respondent to give trouble even after continuing replacement of new engine.
.The District Forum erred in concluding that there was a manufacturing defect without any and also that the expert opinion respondent/complainant had made the hour meter' of the machine dysfunctional to evade warranty limitations.
12) Heard both sides and perused the entire material on record.
13) The point that arises for consideration is whether the
Forum is liable be
impugned order passed by the District to confirmed, set aside, modiíied or interfered with in any manner? To what relief?
14). Admitted facts are:
authorised dealer for
i).Opposite party no.1 is the opposite party no.5;
i).Opposite party no.2 is the manufacturer of the engine in the said excavator;
10ii). opposite party no.3 is the dealer of opposite party no.2
iv).opposite party no.4 is the sole distributor of opposite party no.5 situated at Hyderabad; and
v).Opposite party no.5 is the manufacturer of the external body and other parts of the said machine.
15). The Forum in the
impugned order has elaborately
answered the objections raised
by the opposite parties with regard to territorial and pecuniary jurisdiction. Further more the impugned order has also referred to the law laid down by the Hon 'ble Supreme Court in Laxmi Engineering Works vs. PSG Industrial Institute (1995) 3 SCC 583 and hasexplained that a person who purchases a machine to operate it himself for earming his livelihood is a Consumer.
From the observations made in the impugned order, we are of the opinion that the Forum below had taken these issues into consideration and satisfactorily observed that they possessed the pecuniary and territorial jurisdiction to entertain this complaint. We find the discussion in the impugned order satisfactory and as such the point is answered in favour of the respondent/complainant.
16). Upon perusal of the material available on record, the following points need to be emphasised The said excavator was purchased on 10.10.2005 as evidenced vide Ex.A2 for a total sum of Rs.18,52,113/-.
The respondent/complainant has filed number of service reports vide Ex.A10 dated from 14.3.2006 to 29.5.2006. In some of these reports, the maximum log hours is recorded as 655 but in the service report dated 23.6.2006 the log hours is recorded as 727+ 1225 HMR/Log hours. This is juxtaposed with the service report history filed by the appellant/opposite party and we find that the excavator has covered 2353 HMR/log hours as on 10.9.2006.
While taking delivery of the subject equipment on 10.10.2005, the respondent/complainant gave an undertaking vide Ex.B1 which states as follows:
"We have been explained about the warranty terms and we are clear that the waranty for the machine is fora period of 2000 working hours or One Year whichever is 11 earlier Our operator is operating the machine and we have taken full responsibility for the machine It IS evident from the service reports that the respondent/complainant did not experience severe manufacturing defects. Although the machine was purchased in October, 2005 the service report history filed by appellant/opposite party no.l dated from dated from 14.10.2005. It is necessary to point out that the respondent/complainant has not filed service reports from October, 2005 but has only filed the Service Reports from 14.3.2006.
The Forum below has gravely overlooked the time lapse and failed to refer to the numerous service reports filed by both the sides. At the very outset it may be stated that to establish claim of total replacement, the respondent/complainant has too prove by adequate and admissible evidence supported by an vehicle suffered opinion of Expert Mechanical Engineer that the from an inherent manufacturing defect. The Hon 'ble National Commission has held in number of cases that unless the onus iss satisfactorily discharged by the complainant the liability of the manufacturer/opposite parties would be limited to removal of the defect or repair.
17). Although the respondent/complainant contended that he experienced severe manufacturing defects in the machine, we seek to clarify by stating that merely because the excavator has been taken to the workshop of the dealer several times and because the numerous complaints have been addressed by the opposite parties, this in itself does not amount to manufacturing defects and the Forum below failed to consider this in proper perspective. A close reading of the service reports which are filed by the appellant/opposite party from 14.10.2005 onwards shows that the machine was not handled properly and the observation of the Service Engineer evidences the fact that the door glass was broken multiple times and the door handle was also broken due to rough handling.
Reliance is placed on the last service report filed vide
18).
Ex.A10 dt.23.6.2006. The Excavator was operated for more than 2000 hours and the Service Report dt.7. 10.2006 filed vide 12 Ex.B2 where the respondent/complainant has accepted that the excavator is in proper working condition and has also signed this document. All the grievances are related to consumables and spares used in the excavator machine. The appellant/opposite party no. I attended the servicing of the equipment in terms of his authorised service dealership contract. There is no specilic allegation about there being a manufacturing defect and the Forum below failed to examine the complaints on these aspects Had there been a manufacturing defect, the excavator in question could not have been operated for more than 2000 hours. This fact in itself is a testimony that the excavator had no manufacturing defects as rightly contended by the opposite parties and that the repairs were minor in nature.
After having considered the contentions of appellant/opposite party no. 1 , we are of the consicdered view that the respondent/complainant is not entitled for replacement of the excavator. However, we are of the opinion that the respondent/complainant suffercd a lot of inconvenience and misery due to improper functioning of the excavator. Complaints were raised almost immediately on taking delivery of the said machine, as no purchaser of a new machine would ever think that he would be going to the workshop so often, even if the repairs may be minor. Since this is happened nunerous times, the respondent/complainant is delinitely liable to receive some compensation for the mental agony faced by him due to the supply of the machine developing some problems. We hold opposite party no.2. the manufacturer of the engine and opposite party no.5 the manufacturer of the external body for the said excavator wholly responsible to compensate the respondent/complainant for the constant repairs the machine had to undergo.
Accordingly, we deem it fit and appropriate that the respondent/complainant must receive some compensation and we are relying upon the recent judgement of the hon'ble National Consumer Commission in R.P.2354/2011 titled Tata Motors vs. Ran Singh, wherein the order ofthe lower fora lor replacement of vehicle or praying of value of vehicle has been set aside and order of granting compensation was upheld.
The appellant/opposite party no.1 has attended to the
numerous complaints and done their best to repair the
13
Excavator We find
deficiency in service on their part and no the impugned order needlessly made them jointly and severally liable to compensate the complainant,
19). In view of the above findings, the appeals are disposed by modifying the order of the District Forum with the following directions:
.the opposite party no. 2 M/s.Kirlskar Oil Engines Ltd.
and opposite party no.5 M/s.Terex Vectra are jointly directed to pay a sum of Rs.2 lakhs as compensation to the respondent/complainant in). the opposite parties 2 & 5 are further directed to pay Rs.10,000/- to the respondent/complainant towards costs.
1 . Time lor compliance is four weeks, failing which the amount awarded as compensation will attract interest @ 7% p.a. till realisation.