Tamil Nadu

StateCommission

A/8/2015

Kirloskar Oil Engines Ltd - Complainant(s)

Versus

Dr.K.Natarajan - Opp.Party(s)

S. PARTHASARATHY

28 Jan 2022

ORDER

IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

 

BEFORE :       Hon’ble Thiru Justice R. SUBBIAH                           PRESIDENT

            Tmt. Dr. S.M.LATHA MAHESWARI                            MEMBER

     

COMMON ORDER IN

F.A.NO.8/2015 AND FA.NO.32/2015

(Against order in CC.NO.29/2013 on the file of the DCDRC, Erode)

 

DATED THIS THE 28th DAY OF JANUARY 2022   

 

FA.NO.8/2015

 

Kirloskar Oil Engines Ltd.,

Rep. by its General Manager                                         M/s.S. Parthasarathy

Laxmanrao Kirloskar Road, Khadki                                      Counsel for

Pune – 411 003                                                  Appellant / 1st Opposite party

 

           Vs.

 

1.       Dr. K.Natarajan

          S/o. P.G.Kalianna Gounder                                  

          No.314, Bargur Road, Anthiyur                           M/s.B.Gopal & D. Raghul

          Bhavani Taluk- 638 501                                            Counsel for

          Erode District                                            1st Respondent/ Complainant

 

2.       M/s. Palaniappa Mill Stores

          Rep. by its Proprietor

          Authorised Distributor for Kirloskar                      M/s. I.C.Vasudevan

          HO 458, Nethaji Road                                               Counsel for

          Erode – 638 001                                       Respondents / 2nd Opposite party

 

FA.NO.32/2015

 

M/s. Palaniappa Mill Stores

Rep. by its Proprietor

Authorised Distributor for Kirloskar                                M/s. I.C. Vasudevan

HO 458, Nethaji Road                                                        Counsel for

Erode – 638 001                                                          Appellant / 2nd Opposite party

 

                        Vs.

 

1.       Dr. K.Natarajan

          S/o. P.G.Kalianna Gounder

          No.314, Bargur Road, Anthiyur                          M/s.B.Gopal & D. Raghul

          Bhavani Taluk- 638 501                                           Counsel for

          Erode District                                            1st Respondent/ Complainant

 

 

2.       Kirloskar Oil Engines Ltd.,

Rep. by its General Manager

Laxmanrao Kirloskar Road, Khadki                                Served called absent

Pune – 411 003                                           2nd Respondent / 1st Opposite party

 

The 2nd Respondent/ complainant had filed a complaint before the District Commission against the opposite parties praying for certain direction. The District Forum allowed the complaint. Against the said order, these appeals have been preferred by the 1st opposite party in FA.No.8/2015 and by the 2nd opposite party in FA.No.32/2015 praying to set aside the order of the District Commission dt.28.8.2014 in CC.No.29/2013.

 

          These appeals coming on before us for hearing finally today, upon hearing the arguments of  both parties, perusing the documents, lower court records, and the order passed by the District Commission, this commission made the following common order:

 

JUSTICE   R. SUBBIAH,  PRESIDENT    

 

1.       These appeals have been filed by the 1st and 2nd opposite parties by separately viz.FA.No.8/2015 and FA.No.32/2015 respectively, against the order in CC.No.29/2013 dt.28.8.2014 praying to set aside the order impugned.

 

2.       Since both the appeals are arising out of the same order, these appeals are disposed of by way of common order. 

 

3.       For the sake of convenience, the parties shall be referred as arrayed in the original complaint filed before the District Commission in CC.No.29/2013.

 

4.       The brief facts which are necessary to decide the issues involved in the appeal are as follows:

          The complainant is the doctor by profession.   He is having her own hospital in the name of M/s. Natarajan Hospital at Anthiyur, Bhavani Taluk.  The complainant approached the 2nd opposite party on 17.12.2011 and sought for branded generators like Honda with warranty, as a standby arrangement to meet the power failure crises to the Hospital requirements which has  EB capacity of 8 KVA.  The 2nd opposite party promoted Kirloskar Engine as a fast moving product and also advised that it will suit to the requirements of the complainant.  Hence believing the words of the complainant, the complainant was forced to buy the said product.  At the time of raising the bill, the complainant requested them to raise the bill in the name of the Hospital, for which purpose the product was purchased.  But the 2nd opposite party stated that the product will attract the enhanced rate of VAT and so the individual name will be suffice to fulfill the tax obligations thereto.  Therefore believing the words of the opposite parties, the complainant allowed for the same.  The invoice was raised for an amount of Rs.115000/- by the 2nd opposite party.  The 2nd opposite party had also sent their officials for installation.  Trial run was also made.  At that time the engine was running with unusual noise.  When this was pointed out by        the complainant, the attending official replied that the noise will get reduced over the period of time of usage.  As the product has the warranty for 12 months, the complainant was assured that the product will be replaced at once if it is found defective within the warranty period.  But less than a month, again the product developed problem on 12.1.12.  The complainant had informed the same to the 1st opposite party, who in turn deputed a person on 13.1.2012.  He had stated that the route cause for the problem is that since the crankcase had broken, the product was giving problem.  The service report of the 2nd opposite party had also stated the reason for the failure that crankcase broken is the root cause for defects.  The technician who attended the problem is one Mr.G.Krishnadas.  They assured that they would replace the defective product.  But even after three months time, the 2nd opposite party failed to replace the same.  The complainant insisted for replacement of the product, who upon pressure issued a copy of engine replacement claim form stating that they have contacted the 1st Opposite party, who will replace the product shortly.  But nothing had happened thereafter.  When the complainant was contacting the 2nd opposite party frequently, at one point of time the 2nd opposite party started to threaten the complainant that he cannot do anything.  Hence filed a complaint claiming for replacement of the product with a new one or to refund Rs.115000/- alongwith 21% interest p.a., and to pay a sum of Rs.1 lakh towards compensation for mental agony, Rs.50000/- towards compensation for delay in delivery alongwith cost of Rs.5000/-. 

 

5.       The 1st opposite party had filed their version stating that the transaction between the complainant and the 2nd opposite party is an independent transaction, and no way involves this opposite party.  The relationship between the 1st and 2nd opposite party is strictly on principal to principal basis, and not on agency basis.  There is no privity of contract between the parties.  There is no manufacturing defect in the engine as alleged by the complainant in the complaint.  The 1st opposite party is not aware of the communication between the complainant and the 2nd opposite party.  On enquiry this opposite party came to know that the complainant purchased the said engine only through one Krishnadas, who is an engine mechanic.  In addition to that it was informed that the engine was installed in complainant’s hospital, and actually it should be placed for the agricultural purpose only.  The complainant had used the machine other than the purpose for which it is manufactured.  Therefore, it is crystal clear that the defect in the machine occurred only due to misuse of the said engine and negligence of the complainant.  Thus the 1st opposite party is not responsible for intentional act of the complainant for misuse of the engine for his own convenience and in order to cause wrongful gain and harassment by sending legal notice.  In fact the complainant violated the instruction and also suppressed the fact that the engine is used for electricity generator and not for agricultural use and installed the same in closed shelter resulting in damage.  Therefore, there is no deficiency in service and such sought for dismissal of the complaint. 

6.       The 2nd opposite party also had filed their version, stating that the complainant had approached the opposite party on 17.12.2011.  The complainant insisted the opposite party and introduced himself as doctor and sought for branded generators like Honda with warranty as standby arrangement to meet the power failure crises to the hospital requirements which had a EB capacity of 8 KVA.  At the time of purchase it was clearly instructed to use the said engine only for agricultural purpose, that too in open space.  The engine was running with an usual noise.  It is denied that the complainant was assured that the product would be replaced at once if were defective within the warranty period.  The complainant’s act is violation of purchase condition and unauthorised one.  Neither the opposite party nor this opposite party’s representative inspected the complainant’s defective engine and told that the product was defective.  Absolutely there is no deficiency in service.  At the time of purchase this opposite party did not give any warranty to the complainant as alleged.  The complainant is not entitled to claim any damages as alleged in the complaint.  Thus sought for dismissal of the complaint. 

 

7.       In order to prove the claim, proof affidavits were filed on the side of the parties, and the documents filed by the complainant were marked as Ex.A1 to A8.  There was no documents filed on the side of the opposite parties. 

 

8.       The District Commission, after analysing the entire evidence has come to the conclusion that there is deficiency of service on the part of the opposite parties in supplying the defective machine, and directed them to return the sum of Rs.115000/- alongwith 9% interest from the date of order till date of payment alongwith compensation of Rs.50000/- and cost of Rs.2500/-.  Aggrieved over the said over, the opposite parties 1 and 2 have filed these appeals separately. 

9.       We have heard the submissions on either side, perused the materials placed on record and the order impugned.

 

10.     Having considered the submissions made on either side, the only question that has to be decided is whether there is deficiency in service on the part of the opposite parties, in supplying the generator to the complainant?

 

11.     It is the specific case of the complainant that he had purchased the HP generator for his hospital purpose.  On the very day of installation itself it had problem. But the staffs who came to install the generator assured that though there is a usual noise, and over a period it will disappear.  If the problem persists, they will replace the machine. 

          The learned counsel for the complainant would further submit that he had purchased the generator in his individual name, instead of hospital name, since the 2nd opposite party had advised that the VAT would be reduced if he purchase in his individual capacity. 

 

12.     Per contra, it is the submission of the learned counsel for the opposite parties that the complainant had purchased the generator through one Krishnadas, service mechanic, knowing fully well that the VAT would be only 4% if it is purchased in the individual capacity.  He on his own decided to purchase in the individual name instead of hospital name.

          The appellants would further submit that the generator is only for the use of the agricultural purpose, and if it is used in closed shelter the machine bound to face problems.  In other words it is the contention of the opposite parties that complainant purchased the product for hospital, but at the time of purchase he informed that it is only purchased for agricultural purpose.   But this was denied by the complainant. 

13.     As per the Invoice under Ex.A1 it has been clearly stated that under the description of the machine column that “Kirloskar Engine Model ……..Centrifugal CKD pumpset”.  Therefore, it is clear that knowing fully well that the generator could be used only for agricultural purpose, the complainant had purchased the same, and used it in the hospital in the closed shelter solely with the intention to avail tax concession.  Therefore, on this background we do not find any deficiency on the part of the opposite party.  But the District Commission, without analysing all these facts had allowed the complainant, which should be set aside, accordingly set aside.

 

14.     In the result, both the appeals are allowed by setting aside the order of the District Commission in CC.No.29/2013 dt.28.8.2014, and the complaint is dismissed.  There is no order as to cost. 

            Registry is directed to discharge the mandatory deposits, alongwith accrued interests in favour of the appellants in both the appeals. 

 

           

S.M. LATHAMAHESWARI                                                                       R. SUBBIAH

           MEMBER                                                                                            PRESIDENT

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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