State Consumer Disputes Redressal Commission
Venus Auto Trader Manufactures & ... vs Gulfam on 25 May, 2015
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
FIRST APPEAL NO. 383 / 2010
1. Venus Auto Traders
Manufacturers & Distributors
through its Manager Sh. M.P. Singh S/o late Sh. J.B. Singh
R/o 1, Tyagi Road, Dehradun
2. L&T-Case Equipment Private Limited
Registered Office at L&T House
Ballard Estate, Mumbai
......Appellants / Opposite Party Nos. 1 and 2
Versus
Sh. Gulfam S/o Sh. Rao Iqbal
Manager, Uttarakhand Brick Field
Village Dhandera, P.O. Milap Nagar
Roorkee, District Haridwar
......Respondent / Complainant
None for the Appellants
Sh. M.M. Lamba, Learned Counsel for Respondent
Coram: Hon'ble Mr. Justice B.C. Kandpal, President
Mr. D.K. Tyagi, H.J.S., Member
Mrs. Veena Sharma, Member
Dated: 25/05/2015
ORDER
(Per: Justice B.C. Kandpal, President):
This is an appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 18.10.2010 passed by the District Forum, Haridwar in consumer complaint No. 18 of 2010. By the order impugned, the District Forum has allowed the consumer complaint and directed the appellants - opposite party Nos. 1 and 2 to give new machine to the respondent - complainant after taking back the machine in question and also to pay compensation of Rs. 5,000/-2
to the respondent - complainant, within a period of one month from the date of the order.
2. Briefly stated, the facts of the case as mentioned in the consumer complaint, are that the complainant had purchased an earthmoving equipment / machine from the opposite party No. 1 - Venus Auto Traders for sum of Rs. 17,00,000/- approximately. The said machine was hypothecated with the opposite party No. 3 - Magma Fincorp Limited, who has not been impleaded as party in the present appeal by the appellants. The said machine was manufactured by the opposite party No. 2 - L&T-Case Equipment Private Limited. The complainant started use of the said machine after deploying a driver and two workers'. It was alleged that after a period of one month, the said machine stopped working on account of technical defects in the same, complaint whereof was lodged with the opposite party No. 1, who sent its Service Engineer. The Service Engineer inspected the machine, but did not remove the defects. It was also alleged that the said machine is lying idle, on account of which, the complainant is suffering heavy loss. It was further alleged that the opposite party Nos. 1 and 2 neither removed the defects from the machine, nor replaced the machine with a new one. Thereafter, alleging deficiency in service, the complainant filed a consumer complaint before the District Forum, Haridwar.
3. The appellant No. 1 filed written statement before the District Forum and pleaded that the machine in question is being used by the complainant for commercial purpose; that on account of improper use of the machine and for want of required greasing, complaint was received on 01.07.2009 with regard to breakage of rod of boom cylinder of the machine; that the rod was replaced by the appellant No. 1 on 04.07.2009 free of charge; that thereafter the bucket cylinder 3 of the vehicle got damaged in the beginning of September, 2009 due to overheating and accident, which was replaced free of charge and that there is no deficiency in service on their part. The appellant No. 2 did not appear before the District Forum inspite of service of notice and, as such, the District Forum vide order dated 06.04.2010 proceeded the consumer complaint ex-parte against the appellant No. 2. The opposite party Nos. 3 and 4 before the District Forum, who have not been impleaded as party by the appellants in the instant appeal, also filed written statement before the District Forum and denied the averments made by the complainant in the consumer complaint.
4. The District Forum, on an appreciation of the material on record, allowed the consumer complaint vide impugned order dated 18.10.2010 in the above terms. Aggrieved by the said order, the appellants have filed the present appeal.
5. None appeared on behalf of the appellants. We have heard the learned counsel for the respondent - complainant and have also perused the record. We have also gone through the written arguments filed by the learned counsel for the appellants on 29.01.2015 as well as the citations annexed therewith.
6. So far as the plea taken by the appellants that the vehicle in question was being used by the complainant for commercial purpose and hence the complainant does not fall under the definition of "consumer" and his consumer complaint is not maintainable before the Consumer Fora is concerned, the complainant has specifically stated in his affidavit dated 05.08.2011 (Paper No. 56) that he had purchased the earthmoving machine in question on 28.01.2009 for the purpose of earning his livelihood by means of self-employment.
4Since the machine in question was purchased by the complainant for the purpose of earning his livelihood and was being used as such by the complainant and hence it can not be said that the complainant does not fall under the definition of "consumer" as provided under the Consumer Protection Act, 1986 and the consumer complaint filed by him was not maintainable. Even otherwise, since the defects occurred in the machine within a very short span from the date of its purchase and hence the complainant was entitled to invoke the jurisdiction of the Consumer Fora by filing a consumer complaint and in the given facts and circumstances of the case, it can not be said that the consumer complaint filed by the complainant was not maintainable.
7. So far as the plea taken by the appellants that the machine was purchased in the name of Uttaranchal Brick Field is concerned, the respondent has filed his affidavit dated 01.01.2014 (Paper No. 68) stating therein that he is the Manager in Uttaranchal Brick Field and he had purchased the machine for his personal use and he had not carried out any commercial activity from the machine. Therefore, in view of above, it can very well be inferred that the complainant falls under the definition of "consumer" and the consumer complaint filed by him before the District Forum was fully maintainable. The appellants have not filed any cogent / reliable evidence to show that the machine in question was being used by the complainant for commercial purpose and not for the purpose of earning his livelihood by means of self-employment.
8. Learned counsel for the appellants cited a decision of the Hon'ble Apex Court in the case of Laxmi Engineering Works Vs. P.S.G. Industrial Institute; AIR 1995 SC 1428. In the said case, the machinery was purchased for commercial purpose and it was held that the appellant is not entitled to be regarded as consumer. In the case in 5 hand, as is stated above, the respondent has specifically stated in his affidavits referred above that the machine in question was being used by him for earning his livelihood by means of self-employment and not for any commercial purpose and that no commercial activity was being carried out with the use of the machine. The same is also the position with the decision dated 01.08.2012 of the Hon'ble National Commission given in Revision Petition No. 4260 of 2010; M/s JCB India Ltd. Vs. Sh. Mallappa Sangappa Mantri and another as well as decision of the Hon'ble Apex Court given in the case of Birla Technologies Ltd. Vs. Neutral Glass and Allied Industries Ltd., pressed into service by the learned counsel for the appellants.
9. So far as the defects in the machine / vehicle in question are concerned, the appellant No. 1 has even admitted in the written statement filed by it before the District Forum that from time to time, certain defects occurred in the machine / vehicle. There is a certificate on record issued by Young Engineering Works, Saharanpur (Paper No. 46), wherein it has been stated that the machine was inspected and it was found that there is manufacturing defect in the machine. The exact words are, "e"khu dks rduhdh vk/kkj ij ns[kus ij ,slk yxrk gS blesa eSU;wQDs pfjax fMQsDV gS bl dkj.k e"khu dk Bhd gksuk eqf"dy gS". The said certificate further shows that the defect in the machine is inherent manufacturing defect and is not curable / repairable.
10. There is an endorsement made on behalf of the complainant on the service report dated 27.08.2009 (Paper No. 45) that no service is being done on time. There is further an endorsement that the representative of the company had left the goods one month earlier, but no one has come as yet to remove the defect. The appellant No. 1 has also not denied that the defects occurred in the machine from time 6 to time, but has stated that the same were rectified / removed free of cost, but the fact remains that there were defects in the machine and in the light of above certificate issued by Young Engineering Works, Saharanpur, the same are not curable, as there is an inherent manufacturing defect in the machine / vehicle.
11. Since it is duly proved from the evidence / material available on record that there is manufacturing defect in the machine / vehicle in question and hence the other citations cited by the learned counsel for the appellants on the question of manufacturing defect, do not provide any assistance to the cause of the appellants and do not apply to the facts and circumstances of the case. Even otherwise, as is stated above, there is no denial from the side of the appellant No. 1 in the written statement filed by it before the District Forum that no defects occurred in the machine / vehicle. The detail of the cited decisions pressed into service by the learned counsel for the appellants on the question of manufacturing defect is as under:
(a) Decision of the Hon'ble National Commission in the case of Lovely Autos Vs. Harmesh Lal and another; I (2007) CPJ 312 (NC).
(b) Decision of the Hon'ble National Commission in the case of The Manager, Tata Engineering and Locomotive Co. Ltd. Vs. Bachchi Ram Dangwal; II (2009) CPJ 90 (NC).
(c) Decision of the Hon'ble National Commission in the case of Villinur Associates and another Vs. Dhanaraj Denis A.; II (2003) CPJ 132 (NC).
(d) Decision dated 07.05.2010 of the Hon'ble National Commission given in the case of Sushila Automobiles Pvt. Ltd. through its Manager Shri Kamlesh Kumar Singh Vs. Dr. Birendra Narain Prasad and others.
7(e) Decision dated 07.02.2013 of the Hon'ble National Commission given in First Appeal No. 723 of 2006; General Motors India Pvt. Ltd. Vs. G.S. Fertilizer (P) Ltd. and another.
12. In the case of Lovely Autos (supra), from the evidence available on record, it was proved that there was no manufacturing defect in the vehicle. In the instant case, as is stated above, it has clearly been mentioned in the certificate issued by Young Engineering Works, Saharanpur on inspection of the machine / vehicle in question that there is manufacturing defect in the same, which is not curable. The same is the position with the case of The Manager, Tata Engineering and Locomotive Co. Ltd. (supra). In the case of Villinur Associates and another (supra), the defects in the scooter were of minor nature and which had already been rectified and the allegation of the complainant about manufacturing defect in the vehicle could not be proved. In the case in hand, the complainant has duly proved that there is manufacturing defect in the machine / vehicle. In the case of Sushila Automobiles Pvt. Ltd. through its Manager Shri Kamlesh Kumar Singh (supra), the complainant was not able to discharge his onus to prove the manufacturing defect in the vehicle. The same is not the position in the instant case. In the case of General Motors India Pvt. Ltd. (supra), the complainant did not produce any evidence to indicate that there was any manufacturing defect in the vehicle. In the present case, the complainant has filed the certificate of Young Engineering Works, Saharanpur, who on inspection of the vehicle, has inferred that there is manufacturing defect in the machine / vehicle incapable of being cured.
13. Learned counsel for respondent - complainant cited a decision of West Bengal State Consumer Disputes Redressal Commission, 8 Kolkata in the case of Pioneer Earthmovers and Equipment Vs. Telco Construction and Equipment and others; [2011] CJ 620 (W.B.). In the said case, the machine was found defective in various aspects from the very beginning. It was held that when a machine is purchased for a substantial amount, it is expected that it should work properly at least for a considerable period. It was further held that there is manufacturing defect in the machine and the opposite parties were directed to refund the cost of the machine to the complainant and also to pay compensation.
14. The District Forum has considered all the facts and circumstances of the case and has passed a reasoned order, which does not call for any interference and the appeal being devoid of any merit, is liable to be dismissed.
15. For the reasons aforesaid, appeal is dismissed. No order as to costs.
(SMT. VEENA SHARMA) (D.K. TYAGI) (JUSTICE B.C. KANDPAL) K