State Consumer Disputes Redressal Commission
M/S. Pioneer Earthmovers & Equipment vs The Manager, Telco Construction And ... on 21 February, 2011
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO. : CC/08/13 DATE OF FILING : 05.03.2008 DATE OF FINAL ORDER: 21.02.2011 COMPLAINANTS M/s. Pioneer Earthmovers & Equipment Represented by the sole Proprietor Sri Omprakash Sharma, 297, Diamond Harbour Road, P.S. Thakurpukur, Kolkata-700 104. OPPOSITE PARTIES 1. The Manager, Telco Construction and Equipment 43, J.N.Road (1st Floor) Kolkata-700 071. 2. The Manager (Service Centre) Authorised Dealer of P.S. Earthmovers Pvt. Ltd. Girja More, Khardah, P.S. Khardah, Dist. 24 Parganas (North). 3. The Manager of H.D.F.C. Bank Ltd. BA-3, Sector-I, Salt Lake City, Kolkata-700 061. BEFORE : HONBLE JUSTICE MR. P.K.SAMANTA, PRESIDENT MEMBER : MRS. S.MAJUMDER MEMBER : MR. S.COARI FOR THE COMPLAINANT : Mr. Nil Ratan Roy, Ld. Advocate FOR THE OPPOSITE PARTIES : Mr. P.Banerjee, Ld. Advocate : O R D E R :
MR. S.COARI, LD. MEMBER The present petition of complaint has been filed by the complainant, Sri Omprakash Sharma being the sole proprietor of M/s. Pioneer Earth Movers & Equipments against the Ops, who are the Managers of Telco Construction and Equipment and Authorised Dealer of P.S. Earthmovers Pvt. Ltd. (OP Nos. 1 & 2 respectively) and the OP No. 3, who is the Manager of HDFC Bank Ltd. thereby praying for a restraint order against the OP Nos. 1 & 2 from taking and/or removing the J.D.R.Tata John Dere Model Hydraulic Backhoe Loader (hereinafter referred to as Machine) till the disposal of the present case and also for a direction upon the Ops for supplying a fresh machine with engine without any defect along with other equipments together with a compensation to the tune of Rs. 50,00,000/-.
The case of the complainant, in brief, is that the complainant, who had already purchased two similar types of Machine, purchased a third one i.e. the machine under dispute, valued at Rs. 17,61,000/- and in the process paid an advance of Rs. 2,48,346.15 together with 17 instalments amounting to Rs. 8,82,674/- thereby totalling a sum of Rs. 11,31,020.15 in favour of the OP Nos. 1 & 2.
According to the complainants case, immediately after receipt of the machine it stopped working. The machine so purchased carried a warranty for a period of one year and 50 hours on hire purchase system. Within a couple of days of the aforesaid purchase of the machine it developed complications and not working properly. The complainant immediately informed the Ops whereupon the engineers and other employees of the Ops attended the machine in the absence of the complainant and in doing so without any prior intimation or information the employees of the Ops dismantled the engine and found the same defective.
The agents/employees of the Ops after accepting a substantial amount from the complainant towards repairing charges certified the machine to be in proper working condition, but immediately thereafter the machine stopped working once again. The complainant once again intimated the Ops for taking effective measures for the repair of the faulty machine and/or replacement of the same. But in spite of repeated requests and demands the Ops did not care to take any positive steps in this regard. Rather the Ops demanded further money for effecting repair of the machine. Finding no alternative the complainant has approached this Commission for redressal.
The OPs are contesting the case by filing separate written versions thereby denying all the material allegations and averments of the petition of complaint contending inter alia that the petition of complaint is not maintainable under the law. The complainant is not a consumer in true sense of the term as per provisions of the Consumer Protection Act, 1986.
There were no manufacturing defects in the machine in question. The engineer and/or the men of the complainant attended the machine in question and found some minor fault/defect, which has been mended by tacking adequate steps and/or replacement of the machineries, etc. According to the Ops, the complainant having accepted the proposal of the Ops in the matter of repairing the machine in question by expending a further sum and the complainant having paid part of the repairing cost, question of replacing the machine by a new one does not arise at all.
In the absence of any case of manufacturing defect, there is practically no merit in the petition of complaint and the subject matter of the dispute being outside the purview of the Consumer Protection Act the petition of complaint is liable to be dismissed with cost.
Upon pleadings of the parties the following issues are framed for proper adjudication of the case :-
1) Is the petition of complaint maintainable?
2) Is the complainant a Consumer as per provisions of the Consumer Protection Act?
3) Are the Ops liable to compensate and/or replace the machine in question as prayed for by the complainant?
4) Is the complainant entitled to the reliefs as prayed for?
Case laws referred on behalf of the Ops (i) 2010 (1) CPR 118 (NC), (ii) 2010 (2) CPR 333 (NC)and (iii) 2010 (2) CPR 220 (NC).
DECISION WITH REASONS All the points are taken up together for consideration of the sake of convenience.
At the time of hearing it has been submitted on behalf of the Ops that in this case the complainant can never be designated to be a Consumer in the true sense of the term.
According to the Ld. Advocate, from the petition of complaint itself it has become quite evident that the complainant is a big businessman and doing business for earning profit. Nowhere in the petition of complaint it has been averred that the machine in question was purchased by the complainant for self-employment and maintenance of his family. According to the Ld. Advocate, the complainant has also failed to substantiate this point by adducing reasonable and cogent evidence. While elaborating on this point the Ld. Advocate for the Ops has urged before us that from the materials on record it has become crystal clear that the complainant is not a Consumer as per provisions of the Consumer Protection Act and this aspect of the case hit at the very root of the complainants case and on this score alone the petition of complaint is liable to be dismissed. The Ld. Advocate for the Ops have further submitted before us that from the surrounding circumstances and conduct of the complainant it has also become evident that there was no manufacturing defect in the machine so purchased by the complainant from the Ops. According to the Ld. Advocate, from the materials on record it has become evident that there were some minor defects in the machine in question which was duly attended by the engineer and other employees of the Ops and after proper repair the machine was made ready for use. The complainant is trying to make out a false and fictitious case by putting up a story to the effect that the machine still remains defective and/or that there are some manufacturing defects in the machine and on these false and fictitious grounds has prayed for reliefs, which are not at all sustainable under the law. It has further been submitted on behalf of the Ops that the actual fact is that while dealing with the machine it was not properly handled and due to mishandling of the machine it broke down, for which the Ops cannot be held responsible. According to the Ld. Advocate, as the machine broke down due to mishandling of the complainant and its employees the complainant sought for help from the Ops in the matter of repairing of the same. The complainant willingly handed over the machine to the Ops, for its due repair and/or minor replacements of the machine parts, which the Ops have done properly and after effective repair the machine was returned back to the complainant.
While concluding his submissions the Ld. Advocate for the Ops has submitted before us that in this case the complainant having not approached the Commission with clean hand he is certainly not entitled to any relief whatsoever and that the complaint case being based on wild and vague allegation the same is liable to be dismissed with cost.
We have duly considered the submissions so put forward on behalf of the Ops and have also gone through the materials on record including the evidence adduced by the parties and also the impugned judgement and find that in this case the complainant has come forward with a case to the effect that he in the capacity of the sole proprietor of a proprietorship firm purchased the machine in question from the Ops by paying substantial amount of advance and also in the process paid considerable amount of installments. According to the complainant, immediately after the purchase of the machine the same got stopped due to some manufacturing defects. The OP No. 2 was immediately informed whereupon the men of the OP Nos. 1 & 2 attended the machine and dismantled the same in the absence of the complainant and though the Ops tried to say that the machine was put into workable condition after replacing some parts and effecting minor repairs, but the machine never worked properly and when the complainant tried to impress upon the Ops to take proper measures in respect of the machine in question the Ops demanded huge amount as repairing charges. Finding no alternative the complainant had to pay further amount towards repairing charges but with no avail. The machine never worked properly. In spite of repeated requests and demands by the complainant the Ops sat tight and this has compelled the complainant to institute the consumer complaint. The Ops, on the other hand, tried to put up a case to the effect that the complainant being not a consumer at all question of getting relief by filing a consumer complaint does not arise. In the absence of any manufacturing defect the prayer of the complainant in terms of the consumer complaint is not at all sustainable under the law. The complainant having agreed to the proposal of effecting some minor repairs subsequently was reluctant in doing so and thus there was no alternative left before the Ops but to leave the matter as it stands and under the circumstances, in the absence of any merit whatsoever the petition of complaint was liable to be dismissed with cost.
We have carefully gone through the pleadings of the parties and evidence on record and find that so far as it relates to the point consumer as raised by the Ops we find no ambiguity in the proposition that the transaction entered into between the complainant in his proprietorship capacity and the Ops involving the purchase of the machine in question, certainly put the complainant in the status that of a consumer as per provisions of the Consumer Protection Act. Besides that, though the complainant has not averred this point in the petition of complaint, but at the same time the Ops have also not challenged the same by adducing any cogent and reliable evidence to the contrary of that position. Having considered the point of consumer in this background we are of considered opinion and hold that the complainant happens to be a consumer in the true sense of the term.
Much has been agitated on behalf of the Ops that the machine required some minor repair work and/or replacement of some small parts of the machine in question and that this position clearly reflects that there was no manufacturing defect in the machine so purchased by the complainant. However, we are unable to accept such proposition inasmuch as the relevant inspection reports which have come forward from the Ops clearly indicate that from the very beginning the machine was found defective in various aspects.
From the service reports dated 8.6.06, 18.7.06and 2.9.06 we find that the engineers of the Ops attended the machine within a very short period of purchase of the same by the complainant and found that oil pressure motor was stopped and several switches of the machine got stopped and there was replacement of oil and engine filter also.
Subsequently on 18.7.06 the service report put forward on behalf of the Ops also denotes that further several parts of the machine had to be replaced. Thereafter from the service report dated 2.9.06 it has become evident that the engine was found to be overheated. The diesel filter was found choked and the air filter was also found choked. The air filter mounting nut was found missing, which has resulted so many difficulties in running the machine and that various parts were to be replaced. It is also noted that unless the parts are replaced, no responsibility can be undertaken by the Ops. On the same date the oil pressure meter was also not working properly and finally it was remarked by the forwarding officer that the machine was detected over-heating problem.
There were some defects in the machine resulting in dust being mixed up with the engine oil and immediate change of oil filter was recommended. Thereafter from the service report dt. 6.9.06 we find that oil pump was found damaged and abnormal sound was emitting from the engine. Now, all these observations noted in the inspection report of the Ops certainly do not denote that it required minor repair or replacement of some machine parts. When a machine is purchased for a substantial amount as that of in the instant case, it is expected that it should work properly at least for a considerable period. But in the instant case, it has become evident from the materials on record that from the very begging the machine was giving trouble and it stopped. Even the inspections conducted at the instance of the Ops have not yielded any positive result. The inspection reports themselves indicate that those defects are not ordinary defects, but those are manufacturing defects. In this regard we are not unmindful to the admitted position that the complainant happens to be an old customer of the Ops. The complainant has already purchased two machines from the Ops and there is no complaint in respect of those two machines.
But immediately after purchase of the third from the Ops it has developed constant troubles, which have rendered the operational activities of the machine not possible. Certainly one can presume that due to non-functioning of the machine the complainant suffered loss and that repeated requests of the complainant were not paid heed by the Ops resulting in institution of the present case.
Considering the present matter in the light of above observation we are of considered opinion that there exists deficiency in service on the part of the Ops in the matter of selling the machine in question to the complainant for valuable consideration.
In this regard we also hold that the Ops are liable to compensate the complainant in terms of money value.
Having gone through the materials on record and the conduct of the parties we are of the opinion that ends of justice would be met if the OP Nos. 1 & 2 are directed to refund Rs. 11,31,020.15 to the complainant within two months from the date hereof and upon such payment the OP Nos. 1 & 2 will take back the machine from the custody of the complainant and the complainant will accommodate the Ops in that aspect. In this connection, we also hold that for the trouble and inconvenience faced by the complainant due to the unprofessional conduct of the Ops as discussed above, the complainant is also entitled to compensation to the tune of Rs. 2,00,000/- from the OP Nos. 1 & 2, who are bound to compensate the complainant accordingly. We have also considered the decision reported in 2010 (1) CPR 118 (NC) wherein it has been held by the Honble National Commission that in case of manufacturing defect, the onus is upon the complainant to prove the same. But in this case the various reports of the inspections conducted on behalf of the Ops clearly indicate that the machine in question was suffering from numerous defects from the very inception and installation of the machine in question, which, in our opinion, is a manufacturing defect and nothing else. Thus the principle laid down in the cited decision is applicable to the instant one.
Similarly, the principle laid down in the decision reported in 2010 (2) CPR 220 (NC) is also not applicable to the instant case. Besides that, the decision reported in 2010 (2) CPR 333 (NC) is also not applicable as the facts and circumstances of the cited decision is not similar to the instant one. The petition of complaint thus succeeds in part on contest against the Op Nos. 1 & 2 without any order as to cost and as no effective relief has been sought for against the OP No. 3, the petition of complaint is dismissed against the OP No. 3. All the issues are accordingly disposed of.
In the result, the complaint case succeeds in part.
Hence, it is ORDERED that the petition of complaint stands allowed in part on contest against the OP Nos. 1 & 2 and dismissed against the OP No. 3 without any order as to cost.
The OP Nos. 1 & 2 are directed to refund Rs. 11,31,020.15 (Rupees eleven lacs thirty one thousand twenty and fifteen paisa only) to the complainant within two months from the date hereof and shall also pay compensation to the tune of Rs. 2,00,000/- (Rupees two lacs only) to the complainant, failing which the complainant will be at liberty to put the decree into execution as per law. Upon such payment the Op Nos. 1 & 2 will be entitled to take back the machine from the custody of the complainant.
MEMBER(L) MEMBER PRESIDENT