State Consumer Disputes Redressal Commission
M/S Mona Stone Crusher Through Manager ... vs Larsen & Turbro Ltd Constructon ... on 26 October, 2015
1
REPORTABLE
BEFORE THE STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, RAJASTHAN,
BENCH NO.3 JAIPUR
FIRST APPEAL NO : 1001/2012
M/s Mona Stone Crusher through Manager Mr.Hemraj
Saini, Jaipur.
..........Appellant/Complainant
Vs.
1. Larsen & Toubro Ltd., Construction Equipment
Division, Jaipur.
2. Larsen & Toubro Ltd. Mumbai.
3. Larsen & Toubro Komatsu Ltd., Banglore.
..........Respondents/Opposite Parties
Date of Order - 26.10.2015
Before:
Hon'ble Mr.Anil Kumar Mishra - Presiding Member
Hon'ble Mr.Kailash Soyal - Member
Mr.Shiv Vyas . . . . . Counsel for the appellant/
complainant.
Mr.Anoop Singh . . . . . Counsel for the
respondents/Opposite Parties.
JUDGEMENT
PER MR.ANIL KUMAR MISHRA (PRESIDING MEMBER)
1. The present appeal has been filed by M/s Mona Stone Crusher, the appellant/ complainant (hereinafter referred to as 2 "the complainant") against the judgment dated 05.06.2012 of the learned District Consumer Redressal Forum, Jaipur-III, Jaipur (hereinafter referred to as "the DCF") in complaint No.739/2012 (M/s Mona Stone Crusher Vs. Larsen & Toubro Ltd. & Ors.), whereby the complaint of the complainant was dismissed.
2. The brief facts giving rise to the present appeal are that the complainant filed the complaint before the learned DCF with an averment that in pursuance of a quotation dated 20.03.2002 of Opposite Party No.1 (OP) for sale of an "L&T - 72 CK Crawler Hydraulic Excavator powered with Ashok Leyland ALU 6.65, turbo charged water cooled diesel engine, developing 97 HP at 2000 rpm", the complainant purchased the excavator on 25.03.2002 for a total consideration of Rs.27 Lacs. It was not possible for the complainant to check internally whether the "quoted engine" was fitted in the excavator or not. The complainant gave a legal notice on 13.11.2007, when it came to know that the 3 excavator was not fitted with quoted engine, but the OPs did not respond to the notice. A complaint was filed before the DCF with the prayer for replacement of the engine, along with Rs.5 Lacs as compensation and Rs.22,000/- as cost of proceedings. The learned DCF dismissed the complaint by impugned judgment.
3. The present appeal has been filed by the complainant on the ground that the impugned judgment is contrary to the facts, evidence and settled principles of law. The learned DCF erred in holding that the complainant was not a consumer and the complaint was time barred. The complainant purchased the excavator for livelihood and it came to know about the engine only in November 2007 and therefore, a notice was given to the OPs on 13.11.2007, but it did not respond to it and hence, the complaint was filed on 11.12.2007, which is well within limitation from the date of sending notice to the OPs. So the present appeal and compliant be allowed and the impugned judgment be quashed and set aside. 4
4. We have heard the arguments of both the parties and carefully perused the record, evidence and impugned judgment.
5. It is an admitted fact that the complainant purchased an L&T - 72 CK Crawler Hydraulic Excavator on 25.03.2002 for a total consideration of Rs.27 Lacs. As per the quotation dated 20.03.2002, the excavator was to be powered with "Ashok Leyland ALU 6.65, turbo charged water cooled diesel engine". But as per the revised quotation cum letter dated 25.03.2002 no specification about the engine were mentioned in this second letter. The cost of the excavator was shown to be Rs.28,98,840/- in initial quotation dated 20.03.2002, but the price of the machine was shown to be Rs.27 Lacs in the revised letter dated 25.03.2002, but it did not mention the details of the specification of the engine.
6. The learned counsel for the complainant submitted that in November 2007, the complainant found that the machine was not taking appropriate load and was not giving 5 average output and it was found that the machine was not fitted with quoted "turbo charged water cooled diesel engine" and therefore, a legal notice dated 13.11.2007 was given to the OPs. It is an admitted fact that though the OPs did not respond to the aforesaid notice of the complainant, but at the same time the complainant also did not submit any technical/ expert report to show that the machine/ the excavator was not fitted with "Ashok Leyland ALU 6.65 turbo charged water cooled diesel engine developing 97 HP at 2000 rpm". A heavy burden lay on the complainant to prove that the machine was not fitted with the quoted engine, but as the complainant did not submit any mechanical report or expert report to prove the aforesaid allegation and therefore, it is not proved that the machine was not fitted with the desired and quoted engine.
7. It is also an admitted fact that the complainant purchased the excavator on 25.03.2002, which covered a warranty for a 6 period of 18 months/ 4000 hours from the date of commissioning of the machine. No specific date has been mentioned by the complainant as to when the machine was commissioned after it's purchase, so a presumption arises that it was commissioned immediately after it's purchase. It is also an admitted fact that though the machine was purchased on 25.03.2002, but the present complaint has been filed by the complainant on 11.12.2007 i.e. almost five years and eight months after it's purchase, whereas it should have been filed within two years from the date, when the cause of action arose as per section 24(A) of the Consumer Protection Act. The complainant has neither filed any application for condonation of delay in filing the complaint nor gave any satisfactory explanation for such delay and thus, the complaint is hopelessly barred by limitation.
8. Thus, it is amply evident that the complaint has neither been filed within 7 the prescribed period of limitation i.e. two years from the date of the purchase of machine, when the cause of action arose nor any expert or mechanical report has been submitted by the complainant to show that the disputed excavator was not fitted with the "quoted engine". Therefore, the complainant has desperately failed to prove any deficiency, fraud or unfair trade practice on part of the OPs. Hence, the findings given and the conclusions arrived at by the learned DCF in the impugned judgment, while dismissing the complaint, appear to be just and reasonable and therefore, the same does not call for any further interference by this Commission. Therefore, there is no substance or merit in the present appeal and the same is liable to be dismissed.
ORDER
9. The present appeal of the appellant -
complainant is dismissed. The impugned judgment dated 05.06.2012 of the learned 8 DCF in complaint No.739/2012 titled M/s Mona Stone Crusher Vs. Larsen & Toubro Ltd. & Ors. is affirmed. There shall be no order as to the cost.
(KAILASH SOYAL) (ANIL KUMAR MISHRA) MEMBER PRESIDING MEMBER PINKKY JAIN, UDC