Haryana

StateCommission

A/994/2014

Telco Constructions Equipment Company Limited - Complainant(s)

Versus

Dharampal Ahlawat - Opp.Party(s)

08 Jul 2016

ORDER

  STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

 

                                                                    First Appeal No.994 of 2014                                                                               Date of Institution: 30.10.2014                                                                            Date of Decision: 08.07.2016

Telco Constructions Equipment Company Limited, presently known as TATA Hitachi Construction Machinery Company Limited C-155. Phase-I, Okhla Industrial Area, New Delhi-110020, through its Manager.

…..Appellant.

Versus

Dharampal Ahlawat son of Sh.Randhir Singh resident of village Gochhi, Tehsil Beri & District Jhajjar.

                                      …..Respondent

CORAM:             Mr. R.K.Bishnoi, Judicial Member.                                                                      Mrs. Urvashi Agnihotri, Member.                                                                                                                                          

Present:                Shri.Chander Shekhar proxy counsel for Mr. S.P.Chahar, Advocate counsel for appellant.      

          Shri Sikander Bakshi, Advocate counsel for the respondent.

                                                   O R D E R

R.K.BISHNOI, JUDICIAL MEMBER:

          As per complainant he purchased hydraulic excavator from OP on 18.08.2011 for a consideration of Rs.42,61,551/-. On 20.05.2012 said machine developed snag and information was given to company but nobody came to check the same. Ultimately he also sent legal notices to OP but even then nobody turned up. He suffered loss to the tune of Rs.2,50,000/- per month and total loss suffered  by him was Rs.12,50,000/-. He spent Rs.3 lacs on repairs through private mechanic and was entitled for the same besides compensation for mental agony and harassment etc.

2.                          In reply it was alleged by the OP that machine was sold with warranty of 2000 hours or one year whichever was earlier. The machine was commissioned on 24.08.2011. Complaint about swing bearing was registered with it’s Bhopal dealer on 30.06.2012 and was immediately attended.  Service engineer submitted the following report:

“(i)              The failure was reported at 2700 Hmr. i.e. 700 hours more than   the normal warranty cover period of 2000/i year whichever is earlier. No maintenance record available with customer/ service provider after 500 hours. Clearly highlighting the lapses in the maintenance.

(ii)               Abrasive particles like sand has been found in the swing bearing and other part of machines highlighting the fact machine has been operational in an application for which high maintenance standards need to be maintained which in this case was not out done. The photographs of the same are attached for your reference.

(iii)              Machine   has been operational without the sealing system of swing bearing, the information of which was not given to any servicing authority during warranty period or beyond it, making it more susceptible to failure. Which in this case has happened.

(iv)              Taking into consideration all the points mentioned above we could not entertain the failure under warranty. The information of the same has already been communicated to the customer. ”

Information about expiry of warranty was given to him. This snag developed due to mishandling of machine and not on the basis of manufacturing defect.  Objections about maintainability of complaint, non-joinder of necessary parties i.e Sales Service Centre and concealment of true facts etc. were also raised and requested to dismiss the complaint.

3.                          After hearing both the parties, learned District Consumer Disputes Redressal, Forum, Jhajjar (in short “District Forum”) allowed the complaint vide order dated 25.07.2014 and directed as under:-

“It is directed that respondent shall make the payment of a sum of Rs.10,00,000/- in lump  sum as compensation to the complainant on account of mental agony, harassment etc. The complainant is also entitled for a sum of Rs.2,000/- on account of litigation expenses”

4.                Feeling aggrieved there-from, O.P. has preferred this appeal.

5.                Arguments heard. File perused.

6.                Learned counsel for appellant vehemently argued that complainant did not implead service centre as a party so complaint was bad on the ground of non-joinder of necessary party.

7.                 This argument is of no avail. The machine was purchased from appellant and complainant is seeking relief from the same. There is no allegation qua service centre and complaint cannot be dismissed on this ground if that is not impleaded as a party.

8.                 Learned counsel for the appellant further argued that warranty was upto one year or 2000 operating hours, whereas complainant had already used it for more than 2700 hours when information about problem was reported. In this way, he used machine for more than 700 hours. His complaint was immediately attended and all these facts were brought to his notice. So he is not entitled for compensation. Learned District Forum has failed to take into consideration all these aspects.

9.                 No doubt, warranty was upto one year or 2000 hours, whichever is earlier but, O.P. has miserably failed to show that the machine was already used for more than 2000 hours. Latest service report is Ex.R16. As per this report the machine was inspected on 04.07.2012 and there was defect in swing bearing. In this report, it is nowhere mentioned that machine was used for 2700 hours. On 10.06.2012 when vehicle was inspected it was nowhere mentioned in Ex.R15 that   vehicle was used for more than these hours. It was mentioned therein that the customer refused to make payment and that is why machine could not be repaired. It was nowhere mentioned therein that it was already used for more than 2700 hours whereas hours were specifically mentioned in service reports Ex.R12 and Ex.R3. Why hours were not mentioned therein is nowhere explained. In the absence of any document it cannot be presumed as per averments of the O.P. that vehicle was already used for 2700 hours. In this way, it is clear that warranty was existing at that time and the OP did not repair the vehicle.

10.                        Now, the question comes about the quantum of compensation. It is alleged by complainant that he suffered loss to the tune of Rs.2,50,000/- per month due to non use of machine, but, he has not produced any evidence to prove this fact. In the absence of any evidence it cannot be presumed that he suffered loss to this extent. It was bounded duty of the complainant to prove this fact. He has also not produced any estimate about the cost of repair. He produced two letters issued by Kaushik Engineering Works, but, amount is not mentioned therein. In the absence of document he cannot be awarded compensation as claimed by him. Learned District Forum has not given any reasons while awarding Rs.10,00,000/- as of compensation in lump sum. In these circumstances, the amount of the compensation is reduced to Rs.1,00,000/- including cost of repairs and mental harassment etc. The impugned order is modified accordingly and the appeal is hereby disposed off.

11.               The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellant against proper receipt and identification in accordance with rules.

July 08th, 2016              Urvashi Agnihotri                             R.K.Bishnoi,                                                       Member                                   Judicial Member                                                   Addl. Bench                                      Addl.Bench         

S.K.