Haryana

StateCommission

A/1109/2016

HYUNDAI CONSTRUCTION EQUIPMENT INDIA PVT. - Complainant(s)

Versus

ASLAM - Opp.Party(s)

SANDEEP SHARMA

29 Nov 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :      1109 of 2016

Date of Institution:        21.11.2016

Date of Decision :         29.11.2017

 

Hyundai Construction Equipment India Private Limited (represented through its authorised signatory) Plot No.A-2, MIDC Chakan Phase-II, Village- Khalumbre, Pune-Maharashtra-410501.

 

                                      Appellant-Opposite Party

Versus

 

Aslam s/o Jamshed, Resident of House No.16, Village Siroli, Tehsil Punhana, District Mewat.

                                      Respondent-Complainant

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Shri Balbir Singh, Judicial Member.

                             Shri Diwan Singh Chauhan, Member.            

 

Argued by:          Shri Sandeep Sharma, Advocate for appellant.

                             None for respondent.

 

                                                   O R D E R

 

BALBIR SINGH, JUDICIAL MEMBER

 

        This appeal has been preferred against the order dated September 16^th, 2016 passed by District Consumer Disputes Redressal Forum, Mewat at Nuh (for short ‘the District Forum’) in Consumer Complaint No.14 of 2015.

2.                Aslam-complainant (respondent herein) filed complaint under Section 12 of the Consumer Protection Act, 1986 averring that on February 19^th, 2014, he purchased an equipment breaker Sr.No.1801, Model: HDB 210-9 for a consideration of Rs.14.00 lacs from Hyundai Construction Equipment India Private Limited-Opposite Parties with warranty period of six months or 1000 working hours of the equipment, whoever is earlier. The above mentioned vehicle under the category of commercial vehicle was purchased by the complainant for earning his livelihood and for self employment as the complainant has no other source of income. From the date of purchase and first use of the above mentioned equipment, few problems occurred at the time of use of the equipment which badly affected the business of the complainant. After receiving complaint from the complainant, the engineers and mechanics of the opposite visited the premises of the complainant and repaired the equipment again and again. As the repair of the equipment was not proper, the engineers and mechanics of the opposite parties again visited the premises of the complainant on July 24^th, 2014. On the same date, the equipment was taken to the workshop of the opposite parties for proper repair. The opposite parties prepared a job-sheet also bearing complaint No.1858 dated 17.7.2014 which was signed by Ajit Singh Engineer. Ultimately, the opposite parties did not repair the vehicle and refused to repair as per terms and conditions of the warranty. The opposite parties time and again caused un-necessary delay in repair of the vehicle and caused monetary loss to the complainant to the tune of Rs.20,000/- per day. On November 10^th, 2014 the opposite parties refused to change or repair the equipment. Earlier a complaint was filed before the District Forum but the same was got dismissed as withdrawn on October 09^th, 2015 due to some technical error.

3.                The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 with a prayer to direct the opposite parties to provide a new equipment in place of damaged equipment to the complainant as per terms and conditions of the warranty and to pay an amount of Rs.20,000/- per day since the date of taking possession of the equipment for repairing till delivery of possession of new equipment with cost.

4.                The opposite parties have taken plea in their written version that the complaint is not maintainable in the present form as the same has been filed against the officers and employees of the company; that the District Forum has no jurisdiction to decide this complaint and that the complainant is not covered under the definition of consumer as provided under the Consumer Protection Act, 1986. It is admitted fact that the equipment breaker was purchased by the complainant from the opposite parties and possession was delivered to the complainant on February 19^th, 2014. It is denied that the opposite parties promised warranty of six months or 1000 working hours, as alleged in the complaint. The complainant earlier also filed a complaint bearing No.CC08 of 11.11.2014 before the District Forum which was dismissed as withdrawn vide order dated October 09^th, 2015 on account of technicalities. Earlier complaint was dismissed as withdrawn when the complaint was fixed for pronouncement of order after hearing arguments. Earlier complaint was withdrawn by the complainant to take those pleas in fresh complaint which complainant could not take in his earlier complaint. The complainant in his earlier  complaint had not taken plea that the equipment was purchased by the complainant for earning his livelihood and for self employment. It is pleaded that in fact the equipment was purchased by the complainant for commercial purpose. In this way, the complainant is not covered under the definition of consumer and has no right to file the present complaint.  Earlier complaint was withdrawn to fill up the lacunas left in earlier complaint. It is also pleaded that issues of complex and complicated questions are involved in this case which is beyond the purview of the District Forum.

5.                The complainant has preferred to file the present complaint instead of filing a civil suit to avoid payment of the court fee. The complaint has been filed to insure the interest and reputation of the opposite parties.  It is pleaded that defect in machine arose due to use of non-genuine parts and delay by the complainant in performing recommended services and instructions thereafter making breach of the warranty terms. Moreover, it was advised to customer that life of seal kit (rubber part not covered under warranty) of the machine is over so replace it because if not replaced major failure may occur in the machine. In his earlier complaint, the complainant has mentioned that the equipment was taken to their workshop by the opposite parties on July 25^th, 2014 but in this complaint the date is changed as July 24^th, 2014.  Similarly, in the earlier complaint it is mentioned that the job sheet regarding complaint bearing No.1858 dated July 17^th, 2014 was signed by Dharamender, Engineer of the opposite parties, whereas in this complaint name of the engineer has been mentioned as Ajit Singh. The complainant is not entitled to receive any amount as claimed in the complaint. The opposite parties prayed that the complaint be dismissed with cost.

6.                Parties adduced evidence in support of their respective claims before the District Forum.

7.                After hearing arguments, vide impugned order dated September 16^th, 2016 the complaint filed by the complainant was allowed directing the opposite parties to repair the defective machine of the complainant within a period of one month from the date of receipt of copy of the order failing which the opposite parties shall supply a new machine to the complainant. The opposite parties were also directed to pay an amount of Rs.25,000/- as compensation on account of un-necessary harassment, mental agony and an amount of Rs.2500/- as litigation expenses.

8.                Aggrieved with the impugned order dated September 16^th, 2016 passed by the learned District Forum, the appellant has filed the present appeal bearing No.1109 of 2016 with a prayer to set aside the impugned order and to dismiss the complaint filed by the complainant.

9.                We have heard learned counsel for the appellant and perused the case file. None appeared on behalf of the respondent at the time of arguments.

10.              During the course of arguments, there was no controversy of any type that Aslam-complainant purchased an equipment breaker bearing Serial No.1801, Model HDB-210-9 on February 19^th, 2014 for a consideration of Rs.14.00 lacs vide invoice dated February 19^th, 2014 (Exhibit CW1/B); and purchase order form dated February 01^st, 2014 (Exhibit CW1/C) and delivery inspection report is Exhibit CW1/D. As per version of the complainant, the complainant was provided six months or 1000 working hours warranty regarding the above mentioned equipment as is evident from invoice dated February 19^th, 2014 Exhibit CW1/B purchase order form dated February 01^st, 2014 Exhibit CW1/C and delivery inspection report Exhibit CW1/D. It will be pertinent to mention here that earlier a complaint under Section 12 of the Consumer Protection Act, 1986  was filed by the complainant on the same cause of action before the District Forum, bearing No.08 at Nuh on dated November 11^th, 2014. That complaint was dismissed in view of the statement of the learned counsel for the complainant dated October 09^th, 2015 vide order of the same date Annexure-A. The complaint was allowed to be dismissed as withdrawn giving the complainant liberty to approach a competent court of law/Forum, if so desired, within the prescribed period of limitation. The complainant was given liberty to receive original documents placed on the file. Learned counsel for the complainant in his statement has mentioned that the complainant wants to withdraw the complaint on technical grounds.

11.              It is true that when earlier complaint was dismissed as withdrawn, by that time arguments had already been heard. Vide order dated October 09^th, 2015, the complainant was given liberty to approach competent court of law/Forum, if so desired, within the prescribed period of limitation. In this way, the complainant has been given permission by the learned District Forum to initiate proceedings again before the competent court of law or Forum as the case may be. At this stage, findings cannot be given that the impugned order dated October 09^th, 2015 is illegal or that there was no technical defect in the complaint case of the complainant or that the earlier complaint was got dismissed as withdrawn by the complainant only to fill up lacunas left in the case of the complainant and to take pleas in his complaint which he could not take in earlier complaint, because after passing of the order dated October 09^th, 2015, the opposite parties did not challenge the order dated October 09^th, 2015 passed by the learned District Forum. That decision of the learned District Forum has become final.

12.              If for the sake of arguments, we give findings that the order dated October 09^th, 2015 was illegal, in that eventuality the complainant will be completely debarred from seeking redressal of his grievance. In that situation, the complainant neither can be given any relief while deciding the present complaint nor he can be given any relief on the basis of his earlier complaint which was dismissed as withdrawn. While passing the impugned order dated October 09^th, 2015, the complainant was given liberty to approach the competent court of law/Forum, if so desired, within prescribed period of limitation. If the opposite parties were so much aggrieved with the order dated October 09^th, 2015, proper course for the opposite parties was to challenge that order before the State Consumer Disputes Redressal Commission, Haryana. The complainant in his statement has mentioned in clear words that he has withdrawn his earlier complaint due to certain technical defects. We feel when permission had already been granted to the complainant to again approach the Court or the concerned Forum, directions cannot be given to the complainant to file the second complaint without any additions or omissions in the pleas taken in the earlier complaint.

13.              During the course of arguments, learned counsel for the appellant-opposite parties argued that permission cannot be granted to fill up the lacunas left in the earlier complaint filed by the complainant on the basis of passing of the impugned order. In support of his this contention, learned counsel for the opposite parties placed his reliance upon a decision of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case Purusharath Builders Private Limited versus Uppal Housing Limited and another, 2012(3) C.P.J. 500.

14.              We have closely perused the above cited case law. Cited case law is not of much help to the appellant as in the case in hand permission has already been granted to the complainant to approach the competent Court or the Forum again within the prescribed period of limitation.  During the course of arguments, learned counsel for the appellant also argued that in earlier complaint, the complainant  mentioned the name of Dharamender, an engineer on the job-sheet and now in the fresh complaint Ajit Singh has been mentioned as engineer on the Job-sheet. Moreover, in his earlier complaint, the complainant has not taken plea that the equipment was purchased by the complainant for earning his livelihood and for self employment. Whereas, the complainant has added the above mentioned plea while filing Consumer Complaint No.14 dated November 02^nd, 2015. In our view, it does not make much difference if the name of Ajit Singh, Engineer was not mentioned in the earlier complaint. The complainant was required to prove that the equipment purchased by him could not be repaired and the repair work was done by an engineer of the opposite parties. The name of Ajit Singh, engineer has been mentioned in Field Service Reports, Exhibit CW1/E to Exhibit CW1/G.

15.              In our view, the complainant made no mistake by taking plea in his fresh complaint that the equipment was purchased by him towards his livelihood and for self employment. We feel once the permission was granted to the complainant to file a fresh complaint and that order has become final, the complainant was justified to take few additional pleas in his complaint as he has taken. There is evidence on the file that the complainant time and again approached the opposite parties to get the equipment, purchased by him, repaired but the opposite parties could not repair the equipment due to certain technical and manufacturing defects. The engineer as well as mechanics of the opposite parties have admitted in their Job-sheet that there was technical fault in the machine/equipment and the same was taken away by them. So, it is clear case of deficiency in service on the part of the opposite parties. The complainant had to face un-necessary harassment, humiliation and monetary losses on account of deficiency in service on the part of the opposite parties.

16.              As per discussions above in detail, in these circumstances we feel the findings of the learned District Forum are valid, legal and justified to direct the opposite parties to repair the defective machine of the complainant within a period of one month from the date of receiving copy of the order failing which to provide a new machine to the complainant. Findings given directing the opposite parties to pay an amount of Rs.25,000/- on account of un-necessary harassment, mental agony and an amount of Rs.2500/- as litigation expenses are also justified.

17.              Resultantly, we find no illegality and invalidity in the impugned order dated September 16^th, 2016 passed by the learned District Forum. To avoid any further complications in future it is made clear that the opposite parties shall get the equipment purchased by the complainant repaired within one month from the date of receipt of copy of the order passed by this Commission while deciding this appeal, failing which the opposite parties shall provide to the complainant a new machine/equipment of the same brand and capacity. The appellant-opposite parties also shall pay an amount of Rs.25,000/- as compensation and an amount of Rs.2500/- as litigation expenses, mentioned above.

18.              The statutory amount of Rs.13,750/- deposited at the time of filing the appeal be refunded to the complainant against proper receipt and identification in accordance with rules, after expiry of period of appeal/revision, if any.

 

Announced 29.11.2017

Diwan Singh Chauhan Member

Balbir Singh Judicial Member

Nawab Singh President

 

CL