State Consumer Disputes Redressal Commission
Jakson Ltd vs Raj Kumar Sharma on 15 February, 2023
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UP C-1 Vikrant Khand 1 (Near Shaheed Path), Gomti Nagar Lucknow-226010 First Appeal No. A/2014/184 ( Date of Filing : 24 Jan 2014 ) (Arisen out of Order Dated in Case No. of District State Commission) 1. Jakson Ltd a ...........Appellant(s) Versus 1. Raj Kumar Sharma a ...........Respondent(s) BEFORE: HON'BLE MR. Rajendra Singh PRESIDING MEMBER HON'BLE MR. SUSHIL KUMAR JUDICIAL MEMBER PRESENT: Dated : 15 Feb 2023 Final Order / Judgement Reserved State Consumer Disputes Redressal Commission U.P. Lucknow. Appeal No.184 of 2014 Jakson Limited, Corporate Office, A-43, Phase-II, (Ext.), Noida Uttar Pradesh-201305 Also at: Jakson Limited, Authorised Dealership, B-52, City Centre, S.C. Road, Jaipur, Rajasthan. ...Appellant. 1- Sh. Raj Kumar Sharma, Advocate, S/o Late Shri Gulab Chand Sharma, R/o J-51, Sector 12, Pratap Vihar, near Santosh Medical College, Ghaziabad. 2- Cummins India Limited, Registered Office, Kothrud, Pune-411038 (India) ....Respondents. Present:- 1- Hon'ble Sri Rajendra Singh, Presiding Member. 2- Hon'ble Sri Sushil Kumar, Member. Sri S.K. Verma, Advocate for appellant. Sri Pratul Srivastava, Advocate for the respondent no.1. None for the respondent no.2. Date 10.3.2023 JUDGMENT
Per Mr. Rajendra Singh, Member: This appeal has been preferred against judgment and order dated 1.11.2013 passed by the District Forum, Bench No.2, Ghaziabad in complaint case no.239 of 2013.
The brief facts of the appeal are that, that Generally the internal combustion engines for Low Horse Power Gensets manufactured by the respondent n.2 are supplied to original equipment manufacturers (OEMs) for assembling other parts of Low Horse Power (LHP) Generator sets and also for the purpose of sales. It is submitted that the respondent no.2 also provide after sales services through its authorised service dealers.
(2)On 25.3.2009, the respondent no.1 purchased for the purpose of personal use in his house, one 15 KVA generator from the appellant (being original equipment manufacturer of the respondent no.2) which was manufactured by the respondent no.2. Further the warranty and after sales services for the said DG set was provided by the respondent no.2 through its authorized service dealer i.e. M/s OVN Trading Engineers Private Limited. The subject DG set was duly supplied and accordingly an invoice bearing no.022 dated 25.3.2009 for Rs.2,30,770.00 plus tax amounting to Rs.9,320.00 was raised on the respondent no.1 by the appellant, and various other documents i.e. warranty card etc. were provided to the respondent no.1.
At the time of agreement and supply of the DG set, the appellant supplied to the respondent no.1, alongwith other papers of the DG set, the commercial terms and conditions of the purchased, in which it is mentioned as under:-
"DG set warranty: (30 months from the date of dispatch from the factory or 24 months from the date of commissioning or 5000 hours of operation, whichever occurs first). The DG sets manufactured by Cummins India Ltd. are warranted to be free from any defects in and material under normal use and maintenance service, our obligation under this warranty being limited to replacing or repairing by any of our authorized agency, India, any party returned to us with two-way, transportation charges prepaid, which our examination shall disclose to our satisfaction to have been thus, defectives, within 30 months from the date of dispatch of the DG set from our factory at Daman to be original purchaser or 24 months from the date of commissioning or 5000 hours of (3) operation, whichever occurs first, this warranty being expressly in supersession of all other warranties.
This warranty does not apply to:
1- Any DG set that shall have been subject to overspeeding, misuse, negligence or accident.
2- Any damage resulting from improper shutdown.
3- Any DG set that shall have been repaired or altered outside of our factory or by anyone who is not authorised by us in such a way that in our sole judgment its performance and reliability are adversely affected;
4- Any DG set or any part component or accessory of the DG set improperly applied or installed.
5- Failure in any way resulting from use of parts components or accessories not manufactured or approved by Cummins India Ltd.
6- Normal maintenance of services including but not to engine tune up and repair or replacement of any other normal maintenance spares damages due to idle storage of DG set beyond period of 6 months without treatment for long storage;
7- Any damage due to use of lubricant fuel and coolant of quality and grade not recommended by Cummins India Ltd.
8- Any damage from failure to get NEPI and other inspection checks done.
As per the respondent no.1 when the generator was used it created lot of noise because of which safety valve and other parts started breading and diesel tank was also broken. The respondent no.1 also stated that the battery which was used in this generator was bigger that the requirement and current acid was coming out of the same because of which tools were damaged. The respondent no.1 also stated that since the time aforesaid DG set was purchased its one part or the other was damaged. It is submitted that the appellant alongwith the respondent no.2 was doing the periodic checks of the DG set and have always been available at the earliest at the doorstep of the respondent no.1 whenever there were any grievances (4) on its behalf. There was no manufacturing defect in the DG set supplied to the respondent no.1 as alleged by the respondent no.1.
The officials of the appellant alongwith representatives of the respondent no.2 had regularly visited the respondent no.1 to check the DG set and the engine were found to be working in normal condition which was engrossed in the field reports as well. The respondent no.1 was advised time and again to check the coolant, oil and lubricant level frequently which was in fact not being done by the respondent. The respondent no.1 vide a legal notice dated 17.1.2011 had stated that defective DG set were supplied to him. It is stated that the respondent no.1's complaint that the DG set so provided had manufacturing defect was untenable as the said DG set was installed to the satisfaction of the respondent no.1 in 2009 whereas the complaints of defects were raised by the respondent no.1 not before January, 2011 i.e. exactly at the verge of expiry of the warranty period and that the DG set was used for considerable period of time. In pursuance of the legal notice, the respondent no.1 filed a consumer complaint before the District Forum taking certain baseless and false pleas.
The respondent no.2 filed its written statement before the ld. District Forum. On 29.6.2012, ex-parte proceedings were initiated against the appellant however the same was set aside vide order dated 18.2.2013 of the ld. District Forum and the written statement alongwith copies of relevant documents on behalf of the appellant was taken on record. The respondent no.2 and the appellant also filed their evidences by way of affidavit in support of their contentions.(5)
Upon completion of trial and having heard the submissions of both parties, the ld. District Forum vide its order dated 1.11.2013 stated that the appellant shall take back the DG set on their own risk from the house of the respondent and shall install new DG set of standard quality of the same model at the house of respondent no.1 within 30 days of receiving the order. It was also directed that if the appellants fails to do the same then it shall pay the amount of Rs.2,40,000.00 which was spent by the respondent no.1 alongwith interest @10% from the date of filing of the complaint till the actual recovery to the respondent no.1. The ld. District Forum also ordered Rs.10,000.00 to be paid by the appellant to the respondent no.1 for mental and financial loss, and also awarded Rs.4,000.00 towards cost of litigation in favour of the respondent no.1 and against the appellant. The judgment passed by the ld. District Forum is in ignorance to the facts, documents and submissions advanced by the appellant and are contrary to the principles of natural justice, and is therefore, liable to be quashed and set aside.
The impugned order dated 1.11.2013 passed by the Ld. District Forum is per se illegal, arbitrary, perverse and without any application of mind to the facts and circumstances of the case, pleadings, against well established principles of judicial procedure and jurisprudence. The ld. District Forum failed to appreciate that the respondent no.2 admitted in its written statement that the DG set was manufactured by them and the warranty of the DG set was also given by the respondent no.2 and the respondent no.2 was further responsible for after sales service through its authorized service dealers.(6)
The ld. District Forum grossly erred while directing the appellant to replace the DG set or compensate the respondent no.1 with sum of Rs.2,40,000.00 which was spent by the respondent no.1 without considering that the subject DG set, admittedly, was manufactured by the respondent no.2 and the warranty and after sales services of the DG set was given by the respondent no.2. The ld. District Forum therefore, should have been passed or given any order or direction only against the respondent no.2 and not against the appellant.
The ld. District Forum failed to appreciate that the subject DG set was having no inherent manufacturing defect. The allegation of the respondent no.1 was baseless since the respondent no.1 had considerably used over a period of time and the complaints of manufacturing defects were raised by the respondent no.1 not before January, 2011 i.e. exactly at the verge of expiry of the warranty period. The ld. district Forum is wrong in solely reply upon the allegations of the respondent no.1 that the subject DG set had inherent manufacturing defects more particularly in absence of any supporting documentary evidence. The ld. District Forum did not even sought independent expert opinion from a certified engineer or testing agency to find out whether the subject DG set does not generate electricity as per the specification or suffered from any defect as alleged by the respondent no.1 in the complaint. Therefore, it is most humbly prayed that the judgment and order be set aside and the appeal be allowed.
We have heard ld. Counsel for the parties and perused all the pleadings, evidence and documents present on record.
In this case, it is clear that the purchase has been made on 25 March 2009. The complainant has submitted (7) documentary evidence showing that he has submitted his complaint to the appellant on 12.09.2009, 14.09.2009, 06.07.2010 and 10.09.2010. The appellant tried their best to remove the defects but it is clear from the evidence of both the parties that the said generator has created problems are so many times to the respondent. The Authorised Service Dealer Mr. Parween Kumar Tangri has also submitted his affidavit before the Learned District Forum and Also Opposite Party - 2 and Opposite Party - 3 on behalf of the General Manager submitted their affidavits showing that the generator was installed on 25 March 2009 and its warranty was for 24 months. The complainant has been filed with the Learned District Forum on 9 February 2011.
We have perused the judgment of the learned cat that District Forum who has discussed all in categorical order and found that in spite of repairing the gents at, it could not be set at right. The learned advocate for has said that the liability will be of manufacturer and not that appeal. He has cited the case in which the dealer replaced the defective items twice but the item delivered for the third time was also defective then the Hon'ble NCDRC has said that it is the duty of manufacturer to replace the defective item. In this case the complainant purchased the genocide from the dealer therefore delay is his service provider and it was the duty of the said the generator at right. So many times the authorised mechanic was sent to repair the generator but they failed to repair it. Consumer did not come between manufacturer and dealer. He paid the amount to the dealer and got the dataset from the dealer. In case of any defect or replacement, the matter is between dealer and manufacturer. We do not find any (8) illegality in the impugned judgment and the plaintiff is level to be dismissed.
ORDER The appeal is dismissed with cost. The judgment of the learned District Forum in complaint case 45 of 2011 (new case no to 39/2013, Raj Kumar Sharma Vs. Cummins India Ltd & others , passed on 01.11.2013 is confirmed.
The stenographer is requested to upload this order on the Website of this Commission today itself.
Certified copy of this judgment be provided to the parties as per rules.
(Sushil Kumar) (Rajendra Singh) Member Presiding Member Judgment dated/typed signed by us and pronounced in the open court. Consign to record. (Sushil Kumar) (Rajendra Singh) Member Presiding Member Jafri, PA I Court 2 [HON'BLE MR. Rajendra Singh] PRESIDING MEMBER [HON'BLE MR. SUSHIL KUMAR] JUDICIAL MEMBER