BEFORE THE A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION

AT HYDERABAD.

F.A. 750/2010 against C.C 290/2009, Dist. Forum-III, Hyderabad.

Between:

K. Sathi Reddy, S/o. Venkat Reddy

Age: 50 years, H.No. C-101

M1G, Phase-II, Hill Colony

Vanasthalipuram, Hyderabad. *** Appellant/

Complainant

. And

1. A. Ramana Reddy

S/o. Bhaktha Vasthal Reddy

Managing Director, C.L. Engineering

H.No. 1-11-220/A, Guru Murthy Lane

Begumpet, Secunderabad-16.

2. Anil Bajaj,

Telecon Branch Manager

H.No. 5-3-338/3/A

Above Axis Bank,

R.P. Road, Secunderabad.

3. Rama Excavator

Authorised Customer Support Centre

Telecon Construction Equipment Company

Rep. by Sanjay Bajaj, Managing Director

1-8-58, Balasamudram Street

Hanumakonda, Warangal. *** Respondents/

Opposite Parties

Counsel for the Appellant: M/s. M. Giridhar Rao.

Counsel for the Resp: Admission Stage.

CORAM:

HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT

&

SMT. M. SHREESHA, MEMBER

TUESDAY, THIS THE TWENTIETH DAY OF JULY TWO THOUSAND TEN

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

*****

1) Having heard the learned counsel for the appellant, and having perused the material on record, we are of the opinion that the matter can be disposed of at the stage of admission.

2) Appellant is unsuccessful complainant.

3) The case of the complainant in brief is that he purchased a TATA bacok-hoe loader, an earth remover, manufactured by Telco Construction Equipment Company Ltd., (TELCON) on 28.2.2008 from the respondent for which a warranty was given for one year. As per the warranty he was entitled to get the vehicle repaired in case of any problem in any one of the authorised dealers. There was breakdown of vehicle on 2.11.2008 due to failure of converter drive shaft. Despite information nobody had turned up to repair the vehicle. However, on 12.11.2008 the service engineer of R3 came down, shifted the vehicle to workshop at Khammam. Though the service engineer asked him to take back the vehicle on the ground that repairs were made, when it was taken on 20.11.2008 they found it to be defective. Therefore it was re-entrusted. R3 after attending to the repairs asked him to take back the vehicle on 21.12.2008. While R3 promised to rectify the defects within three days he had taken 51 days, thereby he had sustained loss of Rs. 750/- per hour viz., Rs. 4,59,000/-. On that he issued a legal notice for which they denied the allegations. In fact they alleged that the converter shaft driver was damaged due to the negligence of the operator of the vehicle as such they were not liable. R3 had provided the shaft drive at their own cost in view of warranty. Therefore he claimed Rs. 4,59,000/- towards damages, together with compensation of Rs. 1 lakh and costs of Rs. 15,000/-.

4) R2 filed counter resisting the case. It alleged that the complainant did not make TELECON manufacturer as a party. It had only impleaded the Branch Manager of manufacturing company situated at Secunderabad as a party. The complaint was not maintainable. There was neither manufacturing defect nor negligence on their part. It admitted that the complainant had purchased Black-hoe loader from R3 and that the vehicle was covered under warranty for one year or 200 HMR. At any rate, earlier when there was breakdown of the vehicle on 2.11.2008 it was informed on 6.11.2008 to R3 the authorised dealer. Immediately R3 took the service engineer who noticed that on account of a tree falling on the engine resulting in oil leakage and damage to turbo hose leading to seizure of the engine. Therefore the services covered under the warranty were rejected as per the terms and conditions. However, at the request of complainant, R3 provided necessary service immediately to his satisfaction. Therefore it was not liable to pay any compensation. In fact after receipt of information R3 inspected it on 26.11.2008 and found that the drive shaft and charging pump of the vehicle were damaged on account of misplacement of machine owing to tree falling on the machine. The complainant himself brought the charging pump on 6.12.2008 and drive shaft on 8.12.2008 for inspection. They found that the drive shaft was bent. Immediately it was sent to a renowned workshop at Warangal for bend and spine re-working. The repair and replacement of transmission charging pump is an elaborate and time consuming procedure, involving removal of engine from the machine and dismantling, and removal of cabin from the machine and detachment of complete wiring. It was done as soon as possible and delivered it on 15.12.2008 subject to receipt of lubricants. After rectification it was immediately handed over to him. There was neither manufacturing defect nor there was inordinate delay in handing over the machine. The problems were due to improper maintenance. There was no oil in the machine at the time of inspection. It shows that the machine was worked without oil. He did not follow the instructions as to the maintenance of the machine. Earlier the complainant got the machine attended by an unauthorised service centre at Vijayawada. They did not fit the components properly. The claims are highly contentious. He cannot be provided damages for lodging, boarding charges, salaries to his workers and mental agony etc. Therefore he prayed for dismissal of the complaint with costs.

5) The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A15 marked while R2 filed his affidavit evidence and did not file any documents.

6) The complaint against R3 was dismissed for not taking steps for service of notice.

7) The Dist. Forum after considering the evidence placed on record opined that there was no allegation of manufacturing defect. The complaint was that there was inordinate delay in getting the machine repaired and therefore he sustained loss. No evidence whatsoever was filed. Even the account books maintained by him to show that he had sustained loss was not filed. Holding that there was no deficiency in service on the part of respondents dismissed the complaint.

8) Aggrieved by the said decision, the complainant preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective. It ought to have seen that the vehicle was handed over to R3 and that there was inordinate delay in handing over the vehicle to him, and therefore he sustained loss. Except pleading, no evidence whatsoever was furnished to show that the vehicle was not maintained properly, and that it was damaged due to falling of tree etc. Therefore he prayed that the complaint be allowed.

9) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?

10) It is an undisputed fact that the complainant had purchased Black-hoe loader manufactured by TELCON from R3 and that the vehicle was covered under warranty for one year or 200 HMR. The complainant did not allege any manufacturing defect nor impleaded the manufacturer as a party.

11) The contention was that there was break down of vehicle on 2.11.2008 due to failure of converter drive shaft. When it was informed R3 took the vehicle to the workshop at Khammam for repairs. When he asked him to take back the vehicle on 20.11.2008 on the ground that the repairs were carried out, however on verification it was found that it was not done properly. Again it was sent on 21.12.2008 on the ground that the repairs were attended to. In all R3 has taken 51 days to repair the vehicle and therefore he sustained loss of Rs. 4,59,000/- at Rs. 750/- per hour for 12 hours a day. He was made to pay wages and salaries for the crew amounting to Rs. 30,000/-. In all he claimed Rs. 4,89,000/-.

12) On the other hand the respondent had categorically stated that the machine was failed to falling of a tree. There was bend in the drive shaft. It was taken to a workshop at Warangal. According to R3 the repair and replacement of transmission charging pump is an elaborate and time consuming procedure, involving removal of engine from the machine and dismantling, removal of cabin from the machine and detachment of complete wiring. All these repairs were done as quickly as possible without charging any amount whatsoever and delivered on 20.12.2008. The delay in fact was due to complainant’s non-supplying of lubricants, which he had to provide. The complainant for the reasons not known despite the allegation made by the respondent did not choose to file the affidavit evidence of any mechanic or the persons who have been working on the machine to deny the allegations of the respondent, and that the problem was not due to falling of tree.

13) At the cost of repetition, we may state that the complainant did not allege any where that there was manufacturing defect. There is no reason why he did not implead the manufacturer. Assuming that R2 and R3 could adequately represent the company, the allegations made by them were not disputed. The complainant did not take any written endorsement from them that the machine would be returned within three days. In fact the Dist. Forum after considering the contentions found that the repairs were carried out without charging any amount. The only allegation of the complainant is that the respondents caused inordinate delay in getting it repaired. The Dist. Forum opined that in the absence of any service contract specifying the number of days required for repairs it cannot be said that there was delay on the part of the respondents. In fact there was no negligence in repairing the equipment. The fact that he was earning Rs. 750/- per hour is not evidenced by any account or document. When there was no evidence whatsoever, except self-serving affidavit of the complainant which was equally denied by the respondent, the Dist. Forum rightly dismissed the complaint for the reasons with which we agree. Absolutely there are no merits in the appeal. There is nothing to be heard on the basis of scanty evidence placed in this regard.

14) In the result the appeal is dismissed at the stage of admission. No costs.

1) _______________________________

PRESIDENT

2) ________________________________

MEMBER

Dt. 20. 07. 2010.

*pnr