BEFORE THE A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION

AT HYDERABAD.

C.C. No. 55/2009

Between:

Avula Venkata Reddy

R/o. 4-107/1,

Banapuram Village

Mudigonda Mandal

Khammam Dist. *** Complainant

And

1. The Person-in-charge

TATA Constructions Equipment Company Ltd.

H.No. 5-3-338/3/A, R.P. Road

Secunderabad.

2. The Person-In-charge

TATA Constructions Equipment Company Ltd.

Jubli Building, 45, Museum Road

Bangalore-25. *** Opposite Parties

Counsel for the Complainant: Mr. B. H. Kishore Kumar

Counsel for the OPs: M/s. T. S. Praveen Kumar.

CORAM:

HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT

&

SMT. M. SHREESHA, MEMBER

TUESDAY, THIS THE TWENTY FOURTH DAY OF AUGUST TWO THOUSAND TEN

Oral Order: (Per Hon’ble Justice D. Appa Rao, President)

***

1) This is a complaint filed u/s 17 of the Consumer Protection Act directing the opposite parties to replace the excavator with a new one and pay Rs. 21,80,000/- towards loss and damage suffered by him.

2) The case of the complainant in brief is that he purchased an excavator on 1.7.2007 from Op1 manufactured by Op2 . However, within five hours of its purchase it started giving trouble. After 120 hours of its working the control was failed. It was replaced by Op1. Later two huddlers as well as three bhoom cylinders were failed. They replaced one cylinder with new one and another with an old one. The old type piston was not suitable.

Later H-frame and Aurum got cracked. Three bucket piston rods were broken. One piston was replaced with old one. Later H link got cracked. In 2008 HMR 100 bucket lift plate failed. Despite his complaints at different occasions concerned authorities did not reply. After several requests Op2 extended warranty for another six months viz., from 31.8.2008 to 30.2.2009. As he suffered a lot for which he got issued legal notice on 20.7.2009 mentioning the details of problems and damage caused due to failure of machinery. He had suffered loss at Rs. 8,000/- per day for 80 days. He spent the amount towards labour viz., Rs. 30,000/- for 18 months, besides suffered mental agony, in all Rs. 21,80,000/-. Therefore he sought replacement of excavator and pay Rs. 21,80,000/-.

3) Op1 resisted the case. It alleged that the complainant was not a consumer, and that there was no cause of action against them and the complaint was filed to defame them. It admitted the sale of excavator with a warranty for a period of one year or 2000 hours of operation whichever is earlier and the same has been expired and therefore it was not liable to render any service. The equipment was purchased for commercial purpose and not to earn his livelihood. During the warranty period it had provided all the service to the machinery to the satisfaction of the complainant. He did not come to the court with clean hands and made several wrong statements. He ought to have filed a suit. In order to evade payment of court fee he clutched the jurisdiction of the Consumer Protection Act. He cannot seek another machine subsequent to the warranty period. The service engineers of M/s. Rama Excavator the authorized dealer of the opposite parties had inspected the machine at 22 hours of operation at the request of the complainant for over heating of the hydraulic oil and the problem was rectified immediately to the satisfaction of the complainant. Control valve problem was reported at 144 hours of operation on 6.10.2007 and the same was rectified to his satisfaction. When he complained the problem with respect to idlers at 502.7 hours of operation, both the idlers were replaced. Cracks of H-frame and arm was not reported. When their service engineer attended the machine they found that there was some problem with H-frame and arm, immediately they rectified the same so also the problems with respect to buket lip plate. Whenever any problem was brought to their notice it was attended by their service engineers. They are well known for their customer satisfaction and give utmost important to after sale service. In fact as a goodwill gesture they had extended the warranty for a further period of six months. For the notice issued by the complainant they gave correct reply. The allegation that he had suffered mental agony as well as physical inconvenience is denied. He was not entitled to any compensation as claimed by him. The warranty was expired by 1.8.2008. The machine was working satisfactorily. It worked fore more than 1792 hours as on 2.10.2008 within a period of 12 months which are average working hours of the machine. It had worked for more than 2905 hours as on 19.3.2009. Therefore there was no defect much less manufacturing defect in the machine, and therefore prayed that the complaint be dismissed.

4) The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A19 marked. Refuting his evidence Op2 filed the affidavit evidence of its Company Secretary.

5) The points that arise for consideration are :

i) Whether there was any manufacturing defect which entail the

complainant to replace the excavator with a new one?

2. Whether the complainant is entitled to any compensation?

If so to what relief?

iii) Whether this Commission has jurisdiction to try the case?

It is an undisputed fact that the complainant purchased an excavator on 27.8.2007 evidenced under invoice for Rs. 43,00,441.60. It was covered by warranty from 1.9.2007 to 31.08.2008 or 2000 operating hours whichever is earlier vide Ex. A2. A meter has been attached to it. It is also not in dispute that the warranty period was extended for six more months from 31.8.2008 to 28.2.2009 or 1,000 hours whichever is earlier evidenced under Ex. A9. Evidently the service engineers of the opposite parties were attending to the problems whenever the complaints were made. On 6.9.2007 when he complained that there was break down the machine was cleaned and some parts were replaced. The complainant himself made a mention that hydraulic oil cooling is satisfactory evidenced under endorsement Ex. A3. On 3.10.2007 when he complained that machine worked five hours satisfactorily and after that there was some problem, the service engineer who attended the machine reported that ‘Left control valve operations became slow during the inspection and also found that arm spool in left control is very hard moving.’ When the service engineer could not solve the problem they informed to Telecon vide Ex. A4, and on 5.10.2007 the same was rectified vide Ex. A6. Again on 6.11.2007 under Ex. A7 the service engineer on the complaint made that L.H. side of shoe plates broken/bending they were corrected. It was mentioned ‘checked the machine. All operations found satisfactory’ and the complainant acknowledged the same. So also they attended on 4.2.2008 at 835.1 hours, on 21.6.2008 at 1520 hours, on 15.7.2008 at 1580 hours, on 30.12.2008 at 2643 hours vide Exs. A8, A10, A11, and A12 respectively.

7) When the complainant has been complaining the opposite parties have been by sending its engineers, and getting them rectified. The complainant has been acknowledging for whatever service rendered. It may be stated that at no place there was a mention that there was complete failure or breakdown of the machine, and that the machine could not be put into use. There could not be a machine where small and minor problems would not arise. Though the complainant alleged that he spent about Rs. 80,000/- towards repairs, he could not file any document evidencing payment and also the particulars with whom he got it rectified. For the notice issued by the complainant the opposite party gave reply under Ex. A19. It had frankly admitted that there was a problem and it was sending its service engineers and got them rectified. The complainant could not deny in his affidavit these facts noted by the opposite party. Except reeling out the trouble that he had encountered due to non-working of a particular part and rectification by the service engineers, he could not show that due to major crack in H-frame and arm he could not run the machine. The complainant has been doing excavation work and on his own showing he had appointed labour. He ought to have filed his accounts or such other material which could prove that that there was stoppage of machinery, and due to break down of machine he was made to pay wages to the workmen, which had to be compensated by the opposite parties. In his affidavit evidence he stated that the excavator was taken from Khammam to Warangal for a distance of 120 KMs by road. He used to stay at Warangal for days together for repairs and spent lakhs of rupees towards wages and transport etc. in all Rs. 6,40,000/-. Except alleging the said fact which was equally refuted by the opposite parties, the complainant could not file any document to show that he had spent Rs. 6,40,000/-.

8) In fact the opposite party has categorically stated that the warranty does not cover natural wear and tear or any damage caused by the negligent or improper operation, storage or transport during the period of warranty. More over the warranty is an on-site warranty which means the service engineer of the opposite parties would render service at the place where the machine is situated. When such an emphatic statement was made by the opposite parties, the complainant ought to have filed some document to show that it was taken from Khammam to Warangal and consequently incurred expenses. The complainant could not establish during the warranty

period the opposite parties did not attend to the problems. The very documents filed by the complainant would show that some problems had arisen and they were rectified. Though the complainant pleaded that he complained on more than 50 occasions the fact remains that approximately on 10 occasions they attended to the problems. Since they occurred due to day to day operations and the opposite parties had attended to it within the warranty period, it cannot be said that there was manufacturing defect. The complainant did not examine any expert or mechanic to show that there was any defect in the machine manufactured by Op2. Simply because some problems had arisen in the working of the machine and when the same was rectified it cannot be said that there was manufacturing defect. Had there been manufacturing defect he could not have run the machine for two years till filing the complaint. There was no break down of the machine even at the time when the complaint was filed. When there was absolutely no evidence whatsoever, we do not see any justification in granting the relief prayed by the complainant. Therefore point No. 1 is answered in favour of the opposite parties. Since the complainant could not establish that there was break down of the machine and consequent loss, we are unable to grant any compensation under this head.

9) The complainant alleged that he purchased the machine for his livelihood. No doubt the machine was purchased for excavation works obviously he must have entered into agreement with the persons who had hired it. He did not file the same for the reasons best known to him. Since the opposite parties equally could not establish that the complainant purchased the machine for commercial purpose, we are of the opinion that this Commission has jurisdiction.

10) In the result the complaint is dismissed with costs computed at Rs. 5,000/-. Time for compliance four weeks.

1) _______________________________

PRESIDENT

2) ________________________________

MEMBER

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

COMPLAINANT: OPPOSITE PARTIES

None None.

DOCUMENTS MARKED FOR COMPLAINANT:

Ex A-1 Invoice cum dispatch memo dt:27.8.2007

Ex A-2 Warranty Certificate issued by Telcon construction and Equipments Com., Ltd dt :01.9.2007

Ex A-3 Extension of Warranty issued by Authorised person Telco dt :3.3.2008

Ex A-4 Service Report issued by Telcon. D. Jagadish dt : 8.9.2009

Ex A-5 Service Report issued by Telcon Rama Excavator, dt 27.6.2009

Ex A-6 Service Report issued by Telcon Rama Excavator,dt 21.4.2009

Ex A-7 Service Report issued by Telcon Rama Excavator,dt 19.2..2009

Ex A-8 Service Report issued by Telcon Rama Excavator, dt 13.2.2009

Ex A-9 Service Report issued by Telcon Rama Excavator, dt 30.12.2008

Ex A-10 Service Report issued by Telcon Rama Excavator,dt 4.2.2008.

Ex A-11 Service Report issued by Telcon Rama Excavator,dt 04.2.2008

Ex A-12 Service Report issued by Telcon Rama Excavator,dt 06.11..2007

Ex A-13 Service Report issued by Telcon Rama Excavator,dt 05.10.2007

Ex A-14 Service Report issued by Telcon Rama Excavator, dt 04.10..2007

Ex A-15 Service Report issued by Telcon Rama Excavator,dt 03.10.2007

Ex A-16 Service Report issued by Telcon Rama Excavator,dt 06.09.2007

Ex A-17 Letter Addressed by the complainant to O.P. dt :10.3.2009

Ex A-18 Legal notice issued by the complainant to O.P. No.2

Ex A-19 Reply notice issued by O.P. No. 2.

DOCUMENTS MARKED FOR OPPOSITE PARTIES: Nil

1) _______________________________

PRESIDENT

2) ________________________________

MEMBER

Dt. 24. 08. 2010.