BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 16th December 2016
PRESENT
SRI. VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI. T.C. RAJASHEKAR : HON’BLE MEMBER
ORDER IN
C.C.No.47/2013
(Admitted on 06.02.2013)
Mr. Vishwanath Shetty,
S/o Deju Shetty,
Hindu, Aged 55 years,
Class I Contractor,
P.W.D Contractor,
Padmanoor, Kinnigoli,
Mangalore 574 150
….. COMPLAINANT
(Advocate for the Complainant: Sri RPS)
VERSUS
1. M/s Bharath Earth Movers Ltd.,
Marketing Divisin,
BEML Nagar,
Kolar Gold Fields 563115
Karnataka
Represented by Authorised signatory
2. M/s Bharath Earth Movers Ltd.,
BEML Soudha,
23/1, IV Main,
S. R. Nagar,
Bangalore 560027
Represented by its Authorised signatory
......OPPOSITE PARTIES
(Advocate for the Opposite Parties No.1 and No.2: Sri. UN)
ORDER DELIVERED BY HON’BLE PRESIDENT
SRI. VISHWESHWARA BHAT D:
I. 1. The above complaint filed under Section 12 of the Consumer Protection Act alleging deficiency in service against claiming certain reliefs.
The brief facts of the case are as under:
The complainant contends he is a P.W.D class I contractor purchased Hydraulic Excavator manufactured by opposite party No.1 distributed by opposite party No.2 on the premise of its good quality. After few months after purchasing excavator stared giving problems initially some minor but later major problems. On 10.8.2010 has there was not proper servicing complainant got issued legal notice to opposite parties despite these repeated request and legal notice the defects were not rectified. The complainant then took expert opinion about the defect from Sri. Praveenchandra Shetty, Surveyor and Loss Assessor on 28.1.2012 who found major defects in the excavator as detailed which were manufacturing defects. Contending that despite legal notice dated 28.1.2012 and 1.8.2012 issued opposite parties have not complied with the demand. Hence seeks payment of Rs.19,00,000/ as the value of the excavator and compensation of Rs.1,00,000/ with interest at 12% p.a.
II. Opposite parties written version sale of the excavator to complainant mentioned in the complaint is admitted and as the same was purchase order dated 18.5.2007 as the complainant requested for equipment with the specific warranty for 12 months or 2000 hours whichever occurs earlier from the date of purchase. The opposite parties supplied equipment as per the specification in purchase order. The complainant had used the equipment for morethan 10,000 hrs and the warranty period of the equipment expires much earlier and after expiry of the warranty period the complainant had serviced the equipment from the opposite parties at their own cost and expences. The routine repair and service required during the warranty period had been duly and promptly attended by their service engineers. After commissioning of the equipment on 20.8.2007 it has run more than 10,000 hrs and no complaint was reported during the warranty period.
2. The spare parts and services were provided promptly and timely as per the complainant s request even after warranty period at complainants cost. The complainant s request for service the equipment on chargeable basis and service report dated 19.1.2010 shows that the equipment has run as on that date of 6726 hours and the equipment was not maintained by the complainant and had duly paid for the service. When the equipment was brought for servicing during 2011 the meter was stopped and the service report dated 9.9.2011 shows the equipment was misused and the oil was found mixed with grease and earlier advice to clean the radiator was not carried out by the complainant. Considering the average run on a 182 hours per month for during the period from 19.1.2010 to 9.9.2011 for 18 months it had run additional for 6726+3276 totalling 10002 hours. Basing on the finding in the service report opposite parties issued a letter dated 1.10.2011 to complainant highlighting misused the equipment and advising to carry out the proper equipment. The equipment was not properly maintained leading to the defects. There is no manufacturing defect as alleged by the complainant. Intention of complainant is to enrich at the cost of opposite party. It is further contended that the complainant being a PWD Class I contractor is not a consumer under the C P Act and hence not entitled for any relief before this Forum.
3. In support of the above complainant Mr. Vishwanath Shetty filed affidavit evidence as CW1 and answered the interrogatories served on himand produced documents got marked as Ex.C1 to C4 detailed in the annexure here below. On behalf of the opposite party Mr. S K Dinesh (RW1)Manager (Sales) also filed affidavit evidence and answered the interrogatories served on him.
III. In view of the above said facts, the points for consideration in the case are:
- Whether the Complainant is a consumer and the dispute between the parties?
- If so, whether the Complainantis entitled for any of the other reliefs claimed?
- What order?
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No. (i): Negative
Point No. (ii): Negative
Point No.(iii): As per the final order.
REASONS
IV. POINTS No. (i):Even according to complainant he is a class I PWD contractor. It is clear from the allegation of the complaint itself that the complainanthas described himself as a class IPWD contractor. The equipment purchased by the complainant is a heavy excavator. In respect of the objection raised by the opponents that this complainant is not a consumer within the meaning of the word consumerhas not been answered by the learned counsel for complainant in the notes of argument filed. The definition if the wordsconsumer found in section 2(1) (d) read with explanation does not give a meaning to bring a class I contractorwithin the perview ofdefinition of the term mentioned in this Act. Section 2 (1) (d) with explanation reads thus:
(d) Consumer means any person who
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose or
(ii) (hires or avails of) any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who (hires promised, or under any system of deferred payments, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose)
(Explanation For the purposes of this clause, commercial purpose does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self employment)
2. Ongoing through the explanation therein we are of the view that at no such of imagination that the complainant can be termed as a consumer as defined under the C P Act. In fact there is no mention made in the complaint even though remotely due to drawn explanation to be right the complainant within the explanation mentioned above 2 sections (d) of the C P Act. Hence the dispute raised by the complainant in respect of the equipment purchased with the opponent cannot be termed as a consumer dispute under section 2(1) (d) of the Act. Hence we answer point No.1 in the negative.
POINTS No. (ii):Infact considering the nature of the claim by class I PWD contractor this complainant in the first place should not have been admitted. However the complaint having survived till the argument stage we briefly consider the evidence tendered in the case. The complainant in his complaint does not mention when he purchased this equipment from opposite parties. However he did admit this purchased in his reply to the interrogatories he purchased it on 24.5.2007 the copy of the invoice markedatEx.C1. The complainant also admitted in answer No.6 to interrogatories that he purchased as per the purchase order the warranty period of 12 months for 2000 hours whichever is earlier. His answer was incorrect.But however the complainant did not produced the warranty issued by the opposite party at the time of the purchase of the equipment. Copy of the service report dated 9.9.2011 mentions on inspect cover was removed and found oil mixed with grease. This was one of the major objections raised by opposite party. The copy of the service report dated 19.1.2010 mentions an hour/serviced meter reading at 6726 hours the service report dated 9.9.2011 mentions the hour /service reading meter than 5000 hours. Thus it is clear from this that they not only that the equipment purchased by complainant was often serviced by opposite parties and even after the warranty period on payment basis even as admitted by complainant there is sufficient of evidence from the service report of the mixing of the grease in the oil is sufficient to show mishandling of the equipment by the complainant/his men.
2. In this case complainant produced a report of a surveyor and he had filed his report marked as survey report it is marked at Ex.C4 and the Surveyor Praveen Chandra Shetty was examined and filed his affidavit evidence. He as fined that the defects observed by him as follows:
5. I say that after going through the documents produced for my study/verification, I am of the opinion that the defects observed by me I am of the opinion that the existing defects in the subject equipment fall under the definition of Inherent Manufacturing Defect which means the defects which cannot be cured or repaired by the manufacturing service dealers even after several repeated attempts.
3. However considering the service report of 9.9.2011 with various observations including of oil mixed with grease as sufficiently indicate that the equipment was not properly maintained by complainant. Considering this and the fact of that the equipment has run more than 10000 hours after the purchase and that it was much beyond the warranty period and the running hour of 2000 hrs and 12 months period the claim of the complainant that there is Inherent Manufacturing defect cannot be accepted. When the warranty period was 12 years or 2000 hours when it had run more than 10000 hours before this period the claim of complainant that there is Inherent Manufacturing defect to equipment supplied by the opponents cannot be accepted. Infact it is to be noted this alleged Inherent Manufacturing defect was made mention of by complainant more than 3 years after purchase and after running the equipment for more than 6726 hours as per the service report dated 19.1.2010. Hence viewed fromany angle the complainant failed to prove deficiency in service on the part of the opposite parties. Hence we answer point No. 2 in the negative.
POINTS No. (iii):Wherefore the following order
ORDER
The complaint is dismissed with cost. Advocate fee fixed at Rs.5000/ (Rupees Five thousand only).
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 9 directly dictated by President to computer system to the Stenographer typed by her, revised and pronouncedin the open court on this the 16th December 2016)
MEMBER PRESIDENT
(SRI. T.C. RAJASHEKAR) (SRI. VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Additional Bench, Mangalore Additional Bench, Mangalore
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 Mr. Vishwanath Shetty
Documents marked on behalf of the Complainant:
Ex.C1: 19.08.2010 : Purchase Bill
Ex.C2: 10.08.2010 : O.C of the lawyers notice
Ex.C3: 01.08.2012 : O.C of the lawyers notice
Ex.C4: 28.01.2012 : original report from Praveenchandra Shetty with bill and photos
Witnesses examined on behalf of the Opposite Parties:
RW1 S K Dinesh, Manager (Sales)
Documents marked on behalf of the Opposite Parties:
Nil
Dated: 16.12.2016 PRESIDENT
