State Consumer Disputes Redressal Commission
D.Venkata Subbaiah S/O Venkataiah, ... vs Gold Fields, Kadapa And Others on 18 January, 2010
CC 53 of 2008 BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD. C.C.NO.53 OF 2008 Between: D.Venkata Subbaiah S/o Venkataiah Aged about 38 years, Occ: Business (Self employee) R/o D.No.8-1, Akula Street, Siddhout Mandal Kadapa District Complainant A N D 1. Gold Fields, 264, Opp: Chinnachowk Pantheist Office Madras Road, Kadapa 2. Gold Fields, B/2, Industrial Estates, G.T. Road, Nellore-524 004 3. JCB India Limited Head Office/plant, 23-7-Mathura Road Ballabagarh 121004 Haryana State Opposite parties Counsel for the complainant Sri N.Pramod Counsel for the opposite parties No.1 & 2 Sri Srinivas Iyangar Counsel for the opposite party no.3 Sri Srinivasan S Rajan QUORUM: HONBLE SRI JUSTICE D.APPA RAO, PRESIDENT & SRI R.LAKSHMINARSIMHA RAO, MEMBER
MONDAY THE EIGHTEENTH DAY OF JANUARY TWO THOUSAND TEN Oral Order ( As per R.Lakshminarsimha Rao, Member) *** The complaint is filed seeking direction to the opposite parties no.1 to 3 to replace the JCB Proclainer or in the alternative to refund the amount of Rs.29,59,000/- together with interest @ 24% per annum and Rs.5 lakhs towards mental agony as also a sum of Rs.25,000/- towards costs.
The averments of the complaint are that the complainant on 3.5.2007 purchased JCB Proclainer machine from the opposite party no.2 under hire purchase agreement from M/s Sree Infrastructure Finance Limited Nellore. The complainant has paid margin money o 20% of the cost of proclainer and taken the finance for 80% of the cost. The cost of the proclainer is Rs.20,59,000/-. The proclainer was manufactured by the opposite party no.3.
The opposite party no.2 delivered the proclainer to the complainant along with initial certificate of fitness on 20.4.2007 and provided a warranty for a period of 12 months or for 2000 hours whichever occurs earlier after the date of the sale or installation. The vehicle was also provided with six free services by the opposite party no.3. Within a short period of purchase of the proclainer, the complainant noticed that the proclainer has developed problems of malfunctioning such as leaking of the oil, noise in the gear box etc., while it was being used for contract works provided by private under the government institution as well.
The complainant had taken the proclainer for several times for repair to the opposite parties.
The opposite parties have not satisfactorily attended to the rectification of the problems. On 10.4.2008, the service engineer of the opposite parties had found inherent defects in the vehicle such as loader arm tower collar got crack, dipper collar got crack, chassis got crack at EVB located area, transmission of oil leaking from output shaft seal, tipping lever got crack, hydraulic tank got crack, boom swing automatically dropping, hub cracker, boom cracker, bucket levers operation problem and tyres of the machine were also giving trouble. The vehicle was malfunctioning. The opposite parties no.1 and 2 paid deaf ear to the request of the complainant in spite of the same being made within the warranty period. Therefore, the complainant had sustained heavy loss.
The complainant has got issued legal notice dated 18.4.2008 and 30.6.2008 to the opposite parties to replace the proclainer and pay compensation of Rs.5,00,000/- towards mental agony, loss of earnings and damages. The opposite parties did not give any response. The complainant had to pay the loan to the financial institute.
The complainant had sustained financial loss as also suffered mental tension since he was not able to put the proclainer to the optimum use. The opposite parties committed deficient service by not attending the service promptly resulting damage to the gear box.
The opposite party no.2 filed counter and the opposite parties no.1 and 3 have adopted counter filed by the opposite party no.2.
The averments of the counter of the opposite party no.2 are that the complainant is not a consumer within the meaning of Sec.2(1)(d)(i)(ii) of the C.P. Act. The complainant is a business man and he has been doing business in cement. The complainant owns 6 to 8 acres of agricultural land. The complainant has been using the proclainer on hire of the same to his customers with the hiring charges ranging from Rs.600/- to Rs.650/- per hour and the gross profit earned by the complainant on hiring of the proclainer would be Rs.17,20,200/-. The complainant has been paying the monthly instalments to the SREI Equipment Finance Limited. By the statement of account of the complainant with SREI Equipment Finance Limited for the period from 1.1.2002 to 30.12.2008, the annual income of the complainant is more than Rs.6,50,000/-. The complainant cannot claim that he is earning his livelihood by means of self employment. In the letter dated 3.5.2007, the opposite party no.2 explained to the complainant the style of functioning of the proclainer and necessary precautions to be taken for maintenance of the machine. The complainant was asked to do a battery check up regularly with the authorized dealer. The warranty extends only to repair or replacement by a similar part free of charges and defects in the goods arising from faulty design, material or workmanship which becomes apparent within the warranty period. The six free services as specified in the booklet must be performed within the specified time period through an authorized dealer. In the event of any service is missed by the customer, the warranty on the machine is liable to be ceased.
The service visit reports show the service rendered by the opposite parties and they are signed by the complainant. SVR No.S-69 dated 7.5.2007, the machine has run for nine hours along with some minor leakages. SVR No.S-4132 dated 25.5.2007 the machine had worked for 106 hours. Engine Oil and minor leakages were rectified. The machine was in working condition. SVR No.S321 dated 23.6.2007 the machine had run for 251 hours and it was found working satisfactorily. SVR No.S350 dated 14.8.2007 the machine has run for 538 hours and working satisfactorily. SVR No.S190 dated 11.10.2007 the machine had run for 930 hours minor repairs made. SVR No.S927 dated 18.11.2007 the machine had run for 1110 hours minor repairs were carried out. SVR No.S976 dated 6.12.2007 the machine had run for 1318 hours. SVR No.S1317 dated 10.4.2008 the machine had run for 19016 hours. The complainant was asked to send the machine to Tirupathi workshop as some building and other repairs were to be carried out.
In the SVR dated 10.4.2008 the machine was stated to have been working satisfactorily. The SVR was signed by the complainant. It shows the lack of maintenance and damage attributable to misuse. The repair suggested was normal. Due to improper use of the machine fabrications developed cracks at the welded area which can be rewelded. The complainant had not brought the machine to the Tirupathi workshop and got issued legal notice dated 18.4.2008 stating the opposite party has violated the service conditions. The opposite party no.2 had carried out more than 8 services and by a reply letter dated 29.4.2008 requested the complainant to send the machine to Tirupathi workshop.
The service manager of the opposite party no.2 investigated the machine on 23.4.2008. The service manager of the opposite party no.2 investigated the machine which had run more than 1950 hours. The machine was working satisfactorily. The machine was brought to Tirupathi and after necessary repairs were carried out, it was found to be worked satisfactorily. As per the job card dated 9.5.2008, the repairs were carried out and themahine has run for 1953 hours. The warranty had expired on 2.5.2008 as the machine was purchased on 8.5.2007. Excide Industries Limited rejected the complainants claim for replacement of battery. The Ceat Tyres sent email dated 11.5.2008 stating that the rear tyre was having frequent puncture due to operational usages. The mahine has run for 1953 hours which could not have been run if there was any manufacturing defect in it. The repairs were carried out and the service rendered by the opposite party no.2 were due to regular wear and tear and welding repairs.
The complainant issued another notice dated 30.6.2008 asking the opposite parties to replace the machine with a new machine. The opposite party no.2 has carried out 10 services and has replaced parts under warranty to the tune of Rs.64,678/-. All the ten SVRs were signed by the complainant. As per the SVRs the machine has worked for 9 to 1950 hours within a period 123 months. The machine has never been idle. The bills for the period 1.6.2007 to 10.1.2009 for the various spare parts purchased by the complainant show that the machine was being used by the complainant regularly and he had been running the same without any difficulty. The engineers of the opposite party no.2 at Siddhavatam on 30.12.2008 showed that the machine had run 2867 hours. The SVR containing the complainants signature would show that the machine was working in good condition. There is no defect in the machine nor there is any deficiency of service on the part of the opposite parties. Hence, prayed for dismissal of the complaint.
The complainant has filed his affidavit and the documents that are marked as Exs.A1 to A10.
On behalf of the opposite parties the partner of the opposite party no.2 Sri B.K.Kumar has filed his affidavit in support of their case. The documents Exs.B1 to B72 are marked on their behalf.
The points for consideration are:
1) Whether the complainant is a consumer within the meaning of Sec.2(1)(d)(i) of the C.P.Act?
2) Whether the JCB Proclainer purchased by the complainant was defective?
3) Whether the opposite parties have rendered deficient service?
4) To what relief?
POINT NO1: The opposite parties have contended that the complainant is not a consumer within the meaning of the Section 2(1)(d)(i)(ii) of the Consumer Protection Act. The complainant pleaded that he purchased the proclainer for the purpose of earning his livelihood by means of self employment. Exception to the Section 2(1)(d)(i)(ii) brings the complainant into its fold if he does purchase the goods or avails of the service of the opposite parties for the purpose of earning of his livelihood by means of self employment. The Section 2(1)(d) of the Consumer Protection Act defines the consumer as the person who ;
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 goods for paid or promised or partly paid and 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 Hires or avails of any service 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 than the person (hires or avails of the services for consideration paid or promised, or under any deferred system of payment, when such services are availed with the approval of the first mentioned person (Explanation; 1.For the purpose of sub-clause (i) commercial purpose does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood by means of self employment).
The amendment to the Section 2(1)(d) of the Consumer Protection Act excludes the person who purchase goods for resale and also the one who purchase the goods for the commercial purpose.
The complainant has categorically mentioned that he has purchased the proclainer to be used exclusively for the purpose of earning his livelihood by means of self employment. The opposite parties have contended that the complainant is a businessman as also a farmer possessing 6 to 8 acres of agricultural land. It is true the complainant is a businessman even as per his own description in the cause title. However, the opposite parties have not substantiated their contention as to what type of the business the complainant is carrying on and whether the proclainer was purchased for the purpose of using it in for the said business activity. The complainant has specifically stated that he has used the proclainer for the purpose of using it in the contract work undertaken by him from the government and other individuals.
There is no evidence on record to the effect that the complainant used the proclainer for any commercial purpose. The Section 2(1)(d) of the Consumer Protection Act makes it clear that the complainant would be included in the category of consumer as he purchased the proclainer for a consideration of which he had paid the margin money of 20% of the cost of the proclainer whereas he had paid the balance 80% of the cost by arrangement of finance from M/s Sree Infrastructure Finance Limited, Nellore. Hence, the point is answered in favour of the complainant that he would be deemed to be a consumer within the meaning of the Section 2(1)(d) of the Consumer Protection Act.
POINTS NO.2 &3: The complainant submitted that the proclainer sold to him was defective as also the opposite parties have rendered him deficient service. The opposite parties have contended that the proclainer was not defective nor they did render any deficient service. Though there is voluminous evidence brought on record by the opposite parties in the shape of ExB1 to B72 and the complainant in the from of ExA1 to A10, the material documents vital to decide whether there was any manufacturing defect in the machine are the SVR(Service Visit Reports) as the complainant has not filed any technicians report nor did he examine any expert. The SVRs ExB4, B14, B23 to B25, would show that the machine was in running condition and in each of the SVRs the number of hours the machine ran has been noted.
In the service visit reports dated 7.5.2007 and 25.5.2007, it is stated that the vehicle suffered from minor leakages and the said problem was rectified. In both the service visit reports the vehicle was stated to be in working condition. In other service visit reports dated 23.6.2007, 14.8.2007, 11.10.2007, 8.11.2007, 6.12.2007 and 10.4.2008 only minor repairs have been stated to be the problem the machine posed and no where a mention of manufacturing defect is mentioned. In service visit report dated 10.4.2008 it was found that the machine posed following problems:
1) loader arm tower collar got crack
2) dipper collar got crack
3) chassis got crack at EVB located area
4) transmission oil leaking from output shaft seal
5) tipping lever got crack at middle position in casting In response to the legal notice Ex.B12, the opposite party no.2 issued reply under Ex.B13 to the effect that their engineers inspected the machine and requested the complainant to send the machine to their Tirupathi workshop for carrying out necessary welding/other parts replacement jobs.
Insofar as the battery and tyres are concerned it was stated that they are proprietary items and not manufactured by the opposite parties no.1 and
2. The machine was brought to the workshop at Tirupathi where necessary repairs were carried out. Job card dated 9.5.2008 evidences the repairs carried out by the opposite party no.2. Except the welding that was carried out on account of the machine having developed a crack at the welded area, no other defects could be pointed out by the complainant. Even the crack being developed at the welding point cannot be said to be a manufacturing defect. It is pertinent to note that the opposite parties had replaced all the required parts that posed problems.
The complainant had got issued another notice dated 30.6.2008 with a demand for replacement of the machine within a new machine stating that there was lack of proper service on the part of the opposite parties. The complainant has not substantiated his contention that on account of alleged deficient service the machine was kept idle. The opposite parties had carried out ten services.
They had also replaced parts worth of Rs.64,678/- the details of which are taken note of in Ex.B19. The parts were replaced free of cost as per the terms of the warranty. The complainant has all through been using the machine.
The opposite parties no.1 and 2 have carried out service for about 10 times. The complainant has never complained at any time during the period of ten services that there was deficient service on the part of the opposite parties no1 and
2. For the first time in the notice dated 18.4.2008 under Ex.B12 the complainant has come up with the complaint that the service rendered by the opposite parties no.1 and 2 was short of that of a standard service. We do not find any deficiency in service on the part of the opposite parties nor was there any defect in the machine that was sold to the complainant by the opposite parties no1 to 3. Hence, the complaint is liable to be dismissed.
In the result, the complaint is dismissed.
There shall be no other as to costs.
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PRESIDENT Sd/-
MEMBER Dt.
18.01.2010 Kmk* APPENDIX OF EVIDENCE WITNESSES EXAMINED FOR COMPLAINANTS OPPOSITE PARTIES None None DOCUMENTS MARKED FOR COMPLAINANTS:
Ex.A-1 Invoice dt.3.5.2007 issued by OP.No.1.
Ex.A-2 Copy of Form No.22 Initial Certificate of Fitness dt.20.4.2007 issued by OP.No.3.
Ex.A-3 Form No.21 Sale Certificate issued by OP.No.1.
Ex.A-4 Warranty Certificate issued by JCB India Ltd., Ex.A-5 Legal notice issued by the complainant to the opposite parties dt.18.4.2008.
Ex.A-6 Letter addressed by the OP.No.1 dt.29.4.2008 to the complainant.
Ex.A-7 Legal Notice issued by the complainant to the opposite parties dt.30.6.2008.
Ex.A-8 Service report dt.11.10.2007.
Ex A-9 Copy of registration certificate.
Ex.A10 Booklet.
Exhibits marked for opposite parties:
Ex.B-1 Statement of account of complainant with SREI Equipment Finance Ltd., for the period from 1.1.2000 to 30.12.2008.
Ex.B-2 Letter dt.3.5.2007 addressed by the opposite party to the complainant.
Ex.B-3 Warranty terms.
Ex.B-4 to Service Visit reports B-11.
Ex.B-12 Notice issued by the Complainant to the opposite parties dt.18.4.2008.
Ex.B-13 Reply issued by the opposite parties to the complainant dt.29.4.2008.
Ex.B-14 Service Visit report dt.23.4.2008.
Ex.B-15 Job card dt.9.5.2008.
Ex.B-16 Rejection letter dt.22.5.2008.
Ex.B-17 and E-mails dt.3.5.2008 and 11.5.2008 B-18 .
Ex.B-19 Statement of replacement of parts and services.
Ex.B-20 Statement of lubricants purchased by the complainant from 1.5.2007 to 9.1.2009.
Ex.B-21 and Statement of bills for spare parts for the period B22 from 6.1.2009 to 10.1.2009.
Ex.B-23 Service Visit Report dt.30.12.2008.
Ex.B24 and Service reports dt.10.7.09 and 15.7.09 B25.
Ex.B26 to B34 Hydraulic oil bills.
Exs.B35 to B68 Spare parts bills.
Ex.B69 Bills.
Ex.B70 and Invoices B71.
Ex.B72 Annual Service charges for the year 9.7.2009 to 8.7.2009.
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PRESIDENT Sd/-
MEMBER