State Consumer Disputes Redressal Commission
M/S Shri Krishna Construction And ... vs M/S Volvo India Pvt. Ltd. & Anr. on 25 April, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UTTARAKHAND, DEHRADUN
CONSUMER COMPLAINT NO. 09 /2007
M/s Shri Krishna Construction and Transportation
No. 1, Shri Krishna Vihar,
Village Gujrawala, Raipur, Dehradun
Through Proprietor Sh. Balbir Singh Kathaiat
S/o Sh. Surat Singh Kathaiat
R/o Village Gujrawala, Raipur, Dehradun
.......Complainant
Versus
1. M/s Volvo India Pvt. Ltd.
Yalachahally Village, Tavarekere Post, Hoskote TQ,
Bangalore, India
Through Vice President
2. Director General
Alpha Technical Service Pvt. Ltd.
A-22, Block No. B-1, Mohan Cooperative
Industrial Area, Mathura Road, New Delhi
......Opposite Parties
None for the Complainant
Mr. Kawaljeet Singh, Learned Counsel for the Opposite Parties
None for Opposite Party No. 2
Coram: Hon'ble Mr. Justice B.C. Kandpal, President
Mr. C.C. Pant, Member
Mrs. Kusumlata Sharma, Member
Dated: 25/04/2013
ORDER
(Per: Mr. C.C. Pant, Member):
M/s Shri Krishna Construction & Transportation, No. 1, Shri Krishna Vihar, Village Gujrawala, Raipur, Dehradun (hereinafter referred to as "Complainant") has filed this consumer complaint through its proprietor Sh. Balbir Singh Kathaiat against the following:-2
(i) M/s Volvo India Pvt. Ltd., Yalachahally Village, Tavarekere Post, Hoskote TQ, Bangalore, India through its Vice President (hereinafter referred to as Opposite Party No. 1)
(ii) Director General, Alpha Technical Service Pvt. Ltd., A-
22, Block No. B-1, Mohan Cooperative, Industrial Area, Mathura Road, New Delhi - 110 044 (hereinafter referred to as Opposite Party No. 2)
2. The complainant, alleging deficiency in service on the part of the opposite parties, has prayed that the opposite parties be directed:-
(i) either to replace the defective engine of the excavator with a new engine or to repair and remove the defect or to refund Rs. 50,74,500/-, the cost of the excavator together with interest.
(ii) to compensate the loss @ Rs. 9,000/- per day, which the complainant suffered due to the deficiency in service committed by the opposite parties.
(iii) to pay Rs. 5,000/- towards the expenses incurred in sending letters to opposite parties, phone calls made to them, sending notices to them etc.
(iv) to pay Rs. 50,000/- for mental agony.
(v) to pay Rs. 15,000/- towards litigation expenses.
(vi) In the last, the complainant has also prayed for any other relief, which this Commission deems fit.
3. The facts of the case, in brief, as stated by the complainant in his consumer complaint, are that he had purchased an excavator machine, bearing serial No. 18479 for Rs. 50,74,500/- from the opposite party No. 2, who is the dealer of the opposite party No. 1. The machine was delivered by opposite party No. 1 on 15.04.2007. Till then, the machine had done 7.30 hours of operation. The warranty provided with the machine was either 2500 hours of operation or 12 months from its commissioning or 18 3 months from the date of invoice, i.e. 20.03.2007, whichever falls earlier. The machine was being used for the construction of the road for Alaknanda Hydropower Project in Srinagar, Garhwal. After operating for 67 hours, the machine stopped working on 16.07.2007. The complainant informed the opposite party No. 2 immediately on the same day over telephone, who sent his engineer Sh. Gurinder Singh on 18.07.2007 to complainant's site and he inspected the machine. Sh. Gurinder Singh found that the engine of the machine had failed, perhaps due to some manufacturing defect. The opposite parties told the complainant that they would replace the defective engine with a new one within a week. However, even after one week, the opposite parties neither replaced the defective engine nor contacted the complainant. The complainant again made a request to the opposite parties for the replacement of the defective engine, as it was causing him a huge financial loss, but instead of replacing the defecting engine, Sh. S.N. Singh, service engineer of opposite party No. 2, came to complainant on 27.07.2007 with a blank form in which columns, like "Service Report Project", "Customer Complaint", "Observation", "Action Taken" etc were printed. The said engineer got this form signed from the complainant on the pretext that the form was to be submitted for the replacement of the engine. The complainant has stated in his consumer complaint that as he was in urgent need of a new engine, he signed the said form relying on what the service engineer told him. The complainant was assured that the defective engine would be replaced within three or four days. But the opposite parties neither replaced the engine even after 12 to 13 days from 27.07.2007 nor contacted the complainant. Upon this, the complainant contacted the opposite party No. 2 on 08.08.2007 over telephone, in reply to which opposite party No. 2 sent a letter through fax to him, which was to his utter surprise and he was shocked when he read the letter, because the opposite party No. 2 had informed him through this letter that Sh. Gurinder Singh, the service engineer, had found on his inspection of the machine that it was damaged at the time of loading and unloading of the machine and, as such, the damage has been caused due to accident. The complainant was 4 also advised to contact the insurer of the machine in this regard. The complainant also sent a legal notice dated 10.08.2007 through his advocate to the opposite parties, but the opposite parties vide letters dated 23.08.2007 and 24.08.2007, took the same stand that the damage to the engine was the result of an accident and, therefore, it is not covered under the warranty conditions. This led the complainant to file the consumer complaint before this Commission, alleging deficiency in service on the part of the opposite parties and also for adopting unfair trade practice.
4. The opposite parties have filed their written statement, which is at Paper Nos. 36 to 46. The opposite parties have denied all the allegations made by the complainant against them and have pleaded that the damage to the excavator machine was caused during loading and unloading of the machine, which is apparent from the dent marks on the hydraulic tank, breather cover and operator cabin top. Thus, the warranty norms do not permit replacement of the engine.
5. The complainant has adduced evidence by way of an affidavit dated 13.03.2008 of Sh. Balbir Singh Kathaiat, the proprietor of M/s Shri Krishna Construction & Transportation (Paper Nos. 47 to 54). In the affidavit, Sh. Balbir Singh Kathaiat has made averments as per the facts narrated in the consumer complaint. It has also been averred that the complainant had taken a loan for the purchase of the said machine from M/s Srei Infrastructure Finance Ltd. and he is paying interest on the loan amount. In support of this averment, the complainant has submitted a copy of the Pre-Repossession Notice dated 22.02.2008 sent by M/s Srei Infrastructure Finance Ltd. (Paper Nos. 55 & 56). The Tax Invoice No. VCE/BLR/176/2007 dated 20.03.2007 at Paper No. 9, which shows that the excavator machine was purchased from opposite party No. 1 for Rs. 50,74,500/-. The warranty certificate is at Paper Nos. 10 to 11, which stipulate that the warranty period would be 2500 hours of operation or 12 months from the date of commissioning or 18 months from the date of 5 invoice, whichever is earlier. It also says that the warranty is not valid for defects on the machine, if it has been involved in an accident, rebuilt or modified, unless it is clear that such defects are not a result of such an accident. Paper No. 13 is the Delivery Inspection Report, which shows that the opposite party No. 1 had delivered the machine on 15.04.2007 at Srinagar, Garhwal and till then the machine had done 7.30 hours of operation. The complainant has also submitted the copy of the service report dated 18.07.2007 prepared by Sh. Gurinder Singh, which is at Paper No. 14 and also the letter dated 30.07.2007 sent by opposite party No. 2 along with a service report dated 27.07.2007 prepared by service engineer Sh. S.N. Singh (Paper Nos. 16 and 17).
6. The opposite parties have adduced evidence by way of an affidavit dated 27.05.2008 of Sh. Laxminarayan Hegde, Company Secretary and Manager (Legal) of opposite party No. 1 (Paper Nos. 61 to 73) and the affidavit dated 25.06.2008 of Sh. Manoj Katru, Director of opposite party No. 2 (Paper Nos. 76 to 87). The opposite party No. 1 has further adduced an evidence by way of an affidavit dated 13.04.2009 of Sh. Kanwaldeep Bhogal, Regional Manager (Technical Support) of opposite party No. 1 and another affidavit dated 14.12.2009 of the same person Sh. Kanwaldeep Bhogal.
7. The parties have also filed their written arguments, which are at Paper Nos. 118 to 128 (complainant's) and Paper Nos. 129 to 139 (opposite parties). However, on 05.04.2013, the date fixed for oral arguments, Sh. Kawaljeet Singh, Advocate, was present on behalf of the opposite parties and submitted oral arguments in support of the written arguments submitted by him on previous date. None was present on behalf of the complainant on the said day. We went through the written arguments submitted by the parties and perused the material placed on record.
8. A preliminary objection raised by the opposite parties in the instant case is that the consumer complaint is not maintainable before this 6 Commission under the provisions of the Consumer Protection Act, 1986. The plea taken by the opposite parties in this regard is that the machine in question was purchased by the complainant for commercial purpose. This argument is not tenable, because the dispute between the parties is with regard to the warranty conditions for the machine. Further, the Hon'ble National Commission, in the case of Amtrex Ambience Ltd. vs. M/s Alpha Radios & Anr., I (1996) CPJ 324 (NC) has held that -
"This Commission has in several cases already taken the view where the allegations of the complainant was that there was malfunctioning of the machinery / equipment during the period of warranty when the manufacturer had undertaken to keep the machinery in good working condition, even if sold for commercial purpose, the purchaser will certainly be a consumer under Section 2(1)(d)(ii) in respect of services rendered or to be rendered by the seller for the proper functioning of the machinery / equipment, system during the period of warranty."
9. The next dispute between the parties is with regard to the fact as to whether the machine had some manufacturing defect or the defect was the result of some accident. If the defect had occurred due to some accident, while loading and unloading the machine, as pleaded by the opposite parties, then certainly the replacement of the engine of the machine is not covered under the warranty norms, but if it is proved that it was not due to some accident, then the opposite parties are liable either to replace the engine with a new one or to refund the cost of the machine to the complainant. There is no dispute in respect of the purchase of machine, its cost, delivery date, operated hours at the time of delivery and the dates of inspection of the machine by the service engineers and the warranty conditions of the machine.
10. According to the complainant, the machine had stopped its operation on 16.07.2007 and he had informed about its failure to the opposite party No. 2. Opposite party No. 2 sent his service engineer Sh. Gurinder Singh on 18.07.2007 to the complainant's site. A perusal of the service report 7 dated 18.07.2007 at Paper No. 14 testifies this contention of the complainant and the same, in our view, is most important in adjudicating the dispute between the parties. Therefore, the contents of this service report are reproduced below -
"Date of service 18.07.2007
Operated hours 67
Type of service "WAR" (i.e. under warranty)
Machine Location Srinagar (AHPS)
Application Earth Moving
Customer Complaint (Column is blank)
Observations: Check & Found that engine not start
due to engine failure. Following items
damaged. Engine block, Piston, sleeve,
connecting rod etc.
Action taken : Check engine oil level in chamber
found normal Check v-belt & water in
radiator found normal"
11. The complainant has stated that he was assured by the opposite parties, after the aforesaid spot inspection of the machine by the service engineer, that the engine would be replaced with a new one, but the opposite parties did not do so even after a week of the spot inspection. The complainant has further stated that after making request time and again, the opposite parties sent another service engineer Sh. S.N. Singh on 27.07.2007. The real dispute arises between the parties at this stage. According to the complainant, Sh. S.N. Singh had received his signatures on a blank form on the pretext that it would be filled in and then submitted to the manufacturing company for replacement of the defective engine. Since the complainant's work at the site of Alaknanda Hydro Power Project was suffering, he signed the blank form relying on what Sh. S.N. Singh told him. Therefore, in order to adjudicate the dispute, the contents of the report prepared by Sh. S.N. Singh are also being reproduced below-
"Date of service 27.07.2007 Operated hours 67 Type of service "WAR"
8Machine Location Srinagar Application Dam Work Customer Complaint: Engine Block Burst during unloading of the machine. Accidental damage Observations: Confirmed the problem and made following observations:- (1) During unloading of the machine ramp broken and machine toppled towards hydraulic pump side Dent & marks observed on cover, Hyd. tank, breather cover, operator cabin top. Hyd. Pump & other component to be checked (2) Machine started and sudden abnormal sound observed and block burst. 4th cyl. con. Rod hitted the block (3) Pressure regulator line checked and oil accumulation found in tube, Turbo inlet hose, charge Air Cooler.
Action taken: (4) On further inspection its Turbocharger found Ok. No damages or abnormality observed in turbocharger. Opened tappet cover and found all valves in intact condition.
Observations revealed that failure has taken place due to topple of machine.
Engine oil entered into cylinder thru pressure regulator. Engine oil accumulated on piston top and due to hydraulic lock, impact force act on piston and con. Rod bolt elongated resulted hitting to cyl. block, Failure is not due to manufacturing defect.
Customer is requested to take up with insurance company."
12. As alleged by the complainant, the above mentioned report was prepared by the service engineer later on, after taking his signatures on the blank form and, therefore, the said document is a fabricated one. Our immediate and natural reaction on this argument of the complainant is that, if the complainant had signed on a blank form, then it was a foolish act on 9 his part. Had this been the only inspection report, we would have concluded that the damage to the machine was due to some accident and, therefore, the case was not covered under the warranty norms. But, howsoever foolish the act of the complainant be, the circumstantial evidences compel us to go deeper in this matter. Firstly, because the observations made by the service engineer in his report dated 18.07.2007 are different from the observations made by Sh. S.N. Singh, another service engineer, in his report dated 27.07.2007. A few of the inconsistencies, which are quite apparent from a careful perusal of the two service reports are as follows:-
"In service report dated 18.07.2007, the complainant could not tell the problem of the machine to the service engineer and therefore the respective column of the report is blank, but in the report dated 27.07.2007, the complainant has fully and clearly explained the problem of the said machine. We doubt as to how the complainant can assess, without having any technical knowledge that the machine's engine block had burst. Further, the complainant has, in his pleadings, stated that the machine was delivered by the opposite parties on 15.04.2007 at Srinagar. So the loading and unloading of the machine was done only on that date. After that, no question of its re-loading and re-unloading arises. The machine was being used at the site of Alaknanda Hydro Power Project, Srinagar and Sh. Gurinder Singh had also inspected the machine at the site of Alaknanda Hydro Power Project, Srinagar, which is evident from the service report dated 18.07.2007. If the machine was, for some reason, re-loaded and re-unloaded and had got toppled during re-unloading, then Sh. S.N. Singh, the service engineer, should have given the full account of the incident including name of the place where the incident took place and necessity for its re-loading and unloading. No such description of the incident has been given in the so-called service report dated 10 27.07.2007. The complainant has also pointed out that as per observations made by Sh. Gurinder Singh, service engineer on 18.07.2007, engine oil level in the chamber of the machine was found normal and water in radiator was also found normal. Sh. S.N. Singh, service engineer, has twisted these facts and has observed in his service report dated 27.07.2007 that due to topple of the machine, the engine oil of the machine entered into the cylinder through pressure regulator. If it was so, the engine oil in the chamber of the machine can not be normal, as observed by Sh. Gurinder Singh in his service report dated 18.07.2007. These two inconsistent observations in service reports dated 18.07.2007 and 27.07.2007 indicate that the report dated 27.07.2007 has been prepared with some biased motive and the complainant's signature was taken on the form on some false pretext and the said report dated 27.07.2007 can not be relied upon."
13. Learned counsel for the opposite parties has pleaded that the damage was accidental and in support of this contention, he has taken the plea that the complainant had approached the insurance company in this regard. This argument has also no force, because the opposite party No. 1 had suggested the complainant to take up the matter with insurance company for the claim of loss due to damage caused to the engine (Paper No. 17). The complainant has explained in this regard that he had told the insurance company the true facts. Since the damage was not due to an accident, the claim could not be processed. This averment made by the complainant has not been controverted by the opposite parties and they have failed to adduce any conclusive evidence in this regard.
14. Thus, the circumstances of the case lead us to believe that the complainant's grievance is genuine. There appears to be a possibility that he had signed the blank form relying on Sh. S.N. Singh with the hope that the engine of the machine would be replaced with new one after 11 completing certain formalities. We all know the human nature. A person in need may agree to compromise with the circumstances and so it appears that the complainant, whose work was suffering, had also agreed to sign a blank form. In our view, the circumstantial evidences are as significant as the factual in adjudicating the consumer disputes. Therefore, we are of the considered view that this consumer complaint deserves to be allowed against the opposite parties. However, the loss occurred to the complainant in his business due to non-replacement of machine's engine can not be compensated under the provisions of the Consumer Protection Act, 1986. The compensation, which he is entitled to, can be awarded only in respect of the machine in question. The record also reveals that the machine has been sold by the financier M/s Srei Infrastructure Finance Ltd. and the opposite parties have repaired / reconditioned the defective engine (Paper No. 106) for its new owner M/s Vijay Singh & Co. Therefore, it would not be just and relevant to ask the opposite parties to replace the defective engine with a new one at this stage. Instead, the opposite parties may be directed to refund the cost of the machine to the complainant together with interest @ 6% per annum from the date of filing the consumer complaint till the payment and also to pay Rs. 5,000/- towards litigation expenses.
15. Accordingly, the consumer complaint is partly allowed against the opposite parties. The opposite parties are directed to pay, jointly or severally, an amount of Rs. 50,74,500/- against the cost of the Excavator machine to the complainant together with interest @ 6% per annum from the date of filing the consumer complaint till the date of actual payment and Rs. 5,000/- towards litigation expenses within 30 days from the date of the order.
(MRS. KUSUMLATA SHARMA) (C.C. PANT) (JUSTICE B.C. KANDPAL)