Karnataka

Kolar

CC/16/2017

M/s C M R Tomota Mundy - Complainant(s)

Versus

Helpline Green Abhiyantri pvt.Ltd - Opp.Party(s)

05 Jan 2018

ORDER

Date of Filing: 09/02/2017

Date of Order: 05/01/2018

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, D.C. OFFICE PREMISES, KOLAR.

 

Dated: 05^TH DAY OF JANUARY 2018

PRESENT

SRI. K.N. LAKSHMINARAYANA, B.Sc., LLB., PRESIDENT

SMT. A.C. LALITHA, BAL, LLB.,  ……  LADY MEMBER

 

CONSUMER COMPLAINT NO.16 OF 2017

M/s. C.M.R Tomato Mundy,

APMC Yard, Kolar Taluk,

Kolar District,

Rep. by its Proprietor

Sri.C.R.Srinath.                                                      ….  COMPLAINANT.

(Rep. by Sri. V.K.Prashanth, Advocate)

 

- V/s -

1) Helpline Green Abhiyanthri Private Limited,

No.10/53, Diagonal Road, V.V.Puram,

Near N.M.H. Hotel, Bangalore.

(Rep. by Sri  J.M.Sudhakar Reddy, Advocate)

 

2) United Diesel Services,

No.02, Chokka Complex, Gokul College

Road, N.H.4, Bypass, Harohalli,

Kolar-563 101.

(Rep. by Sri.M.Krishna Murthy,  Advocate)

 

3) United Diesel Services,

No.999/3, Sai Nivasa, 5^th ‘A’ Cross,

1^st Block, H.R.B.R. Layout,

Kalyananagar, Bangalore-560 043.

(Rep. by Sri.M.Krishna Murthy,  Advocate)                   …. OPPOSITE PARTIES.

 

-: ORDERS:-

BY SRI. K.N. LAKSHMINARAYANA, PRESIDENT

01.   The complainant has filed this complaint Under Section 12 of the Consumer Protection Act, 1986 against the opposite parties for recovery of generator price of Rs.1,65,000/- from the Ops or otherwise claiming new generator and compensation of Rs.45,000/- with interest at the rate of 18% per annum with cost and such other reliefs.

 

02.   The brief facts of the complaint is that, the complainant is carrying on his business of Tomato Mundy at APMC Yard at Kolar.  And in view of electricity problem he purchased 5 KVA “Green Chhota Chilli Diesel Generator” from OP No.1 on 25.07.2016 for Rs.1,65,000/- through Apex Bank cheque No.009794 of Kolar branch.  On 26.07.2016 he operated the said generator and it was not started and found leakage of fuel.  The complainant approached Consumer Care Centre and they came and repaired the same and went away.  On the next day, he started the generator, there was a huge noise came out from the generator and there is no supply of power.  Again he called Consumer Care Center and they came and checked the generator and told that, some spare-parts were defect and they repaired the same.  Thereafter also the same defects were found in the said generator and it is not in working condition.  Due to that defects he incurred loss of Rs.45,000/- in his business.  The complainant has also requested the OP No.1 to repair the said generator from competent engineer, but failed to do so.  The complainant has also requested to return the money or to give new generator.  OP No.1 has failed to take any action in that regard also.  On 21.01.2017 he issued notice to OP No.1 and on 31.01.2017 to OP No.3 but they did not reply the same and the complainant has approached this forum for the above said reliefs. 

 

03.   Along with the complaint the complainant has produced following 06 documents:-

(i) Tax Invoice dated: 25.07.2016

(ii) Statement of Account

(iii) Letter dated: 21.10.2017 issued by complainant

(iv) Field Service Report dated: 28.07.2016

(v) Letter dated: 30.01.2017 issued by complainant

(vi) Letter dated: 24.01.2017 issued by OP No.1

 

04.   On receipt of the notice the counsel appeared for OP No.1 along with version and 03 documents.  OP Nos.2 & 3 also appeared through their counsel.  The OP Nos.2 & 3 together filed their version with six field service report. 

 

05.   OP No.1 has contended that, the complainant has approached this Forum falsely against this OP.  The OP No.1 is running a business of selling generators through OP Nos.2 & 3.  In the first week of July-2016 the complainant approached him as he wants to purchase 5 KVA generator to his business running at Kolar Tomato Mandy.  OP No.1 has explained the complainant that, he is only a sales representative through OP Nos.2 & 3 and he is not responsible for any mechanical defects.  The complainant has agreed and purchased the generator on 25.01.2016 and taken the delivery of the generator with tax invoice No. KGDG/16-17/HGAPL9108 and valid bill has been issued to the complainant and the responsibility of OP No.1 seizes after the delivery of the goods to the complainant.  This OP is not responsible for any mechanical problem subsequent to delivery.  This OP has specifically denied the averments made in Para-3, 4 & 5 and put the complainant to prove the same.      The petition is devoid of merits.  And this OP is not liable to pay any damages as claimed by the complainant.  And there is no cause of action for the complainant to file this complaint against this OP and praying the Forum to dismiss the petition with exemplary cost.

06.   The OP No.1 has filed 03 documents:-

(i) Copy of the bill/tax invoice dated: 25.07.2016

(ii) Copy of the letter issued by the petitioner to the OP No.1 dated: 21.01.2017.

(iii) Copy of the reply letter dated: 24.01.2017.

 

07.   OP Nos.2 & 3 were contended that, the complaint filed by the complainant is not maintainable either in law or on facts and the same is liable to be dismissed in limine.  These Ops have service center at Kolar and Bangalore and OP No.1 is the dealer in selling generators and the complainant has purchased a Green Chota Chilli diesel Generator from OP No.1, as per the instructions given by him they visited the complainant’s Tomato Mandy for servicing of the said generator and they visited through their well trained technicians by name Ramesh and Mahadesh on 28.07.2016, 13.08.2016, 22.09.2016, 30.09.2016, 04.10.2016, 04.11.2016, 01.12.2016, 19.12.2016, 22.01.2017, 28.01.2017 and they have made service to the aforesaid generator.  These Ops have denied that in spite of their repair the aforesaid generator is not working properly and it is in unusable condition and due to that the complainant has suffered loss in his business.  These Ops have also contended that, the complainant intimated the OP No.1 to get it repaired through skilled engineer and OP No.1 has not taken any action to repair the same through engineer.  These Ops also denied that the complainant issued notice to OP No.1 and 3 and they have not complied and put the complainant to prove the same.  These Ops further submitted that, as per the request made by the complainant they visited the shop of the complainant and make minor repairs of the generator on several times and the complainant has acknowledged the same.  These Ops further contended that, in case if the generator is not in a working condition manufacturer is liable to pay the compensation or replace the generator and these Ops are not liable to pay any damages or compensation as claimed by the complainant.  OP No.1 is the distributor and he sells the product who received from the manufacturer and the manufacturer is the proper and necessary party to the proceedings.  And prays to dismiss the complaint with heavy costs.

 

08.   The complainant has filed affidavit evidence by way of examination-in-chief and exhibited C.1 to C.7 documents.  OP No.1 has also filed affidavit evidence along with seven documents.  The service engineer of OP Nos.2 & 3 by name Sri. Ramesh has filed affidavit evidence along with seven documents.  Heard arguments of the complainant and OP Nos.2 and 3.  Counsel for OP No.1 did not address his arguments. 

 

09.   On the rival contention of the parties the points that arise for consideration are that:-

(1) Whether there is deficiency of service on Ops?

(2) Whether the complainant is entitled for the relief as prayed?

(3) What Order?

 

10.   Our findings to the above stated points are that:-

POINT (1):       In the Affirmative on OP No.1

POINT (2):       In the Affirmative

POINT (3):       As per the final order

                                         for the following:-

REASONS

11.   POINT (1) & (2):-

These points are taken up together for discussion to avoid repetition of facts.        We have gone through the complaint, version, documents produced by the parties and so also the written arguments.  In this case undisputed fact are that, the complainant has purchased alleged 5 KVA “Green Chhota Chilli Diesel Generator on 25.07.2016 for Rs.1,65,000/- through cheque No.009794 of Apex Bank, Kolar Branch, from OP No.1 and to that effect, the complainant has produced statement of account extract as per Annexure-C.1 and so also tax invoice as per Annexure-C.2.  The complainant has purchased the said generator for his business of livelihood.  The above goods is purchased for his own business and not for commercial purpose is excluded and the complainant is a Consumer.  In this regard we relay citation reported in 1992(1) CPR 246 (NC) and 1994(3) CCJ 338 (Orissa).  The principles of the above said citations are attracted to the above said facts on hand.

 

12.   OP No.1 is the dealer in selling the generator and OP Nos.2 & 3 are service makers and it clearly goes to show that, OP No.1 received the generator from the manufacturer and OP Nos.2 & 3 are the only service makers.  On perusal of six field service reports as contended by the OP Nos.2 & 3 at Para-3 of their version, it revealed about the service rendered by them with regard to the alleged generator and OP Nos.2 & 3 visited the Mandi and the same also admitted by the complainant.  And the OP Nos.2 & 3 did their service.

 

13.   Now it is relevant to state here that, it is the duty of the dealer i.e., OP No.1 to contact the manufacturer to replace the defective generator, but OP No.1 has failed and neglected to do so in spite of request made by the complainant and also not rendered service as required by the complainant.  And the seller i.e., OP No.1 is liable for defective goods as in spite of regular repair the complainant failed to get the positive response.  On the next day of the purchase of the generator the complainant found defect in the generator as per the six field service report and in spite of regular repair the complainant failed to get any positive response and he suffered lot of inconvenience and misery due to improper functioning of the generator when it started which suffers from defects which is much below the expected quality and standard and hence the complainant has proved deficiency in service. 

 

14.   Hence as discussed above, in our opinion such repeated visit by the OP Nos.2 & 3 to repair the alleged generator the defect is not rectified, is sufficient to demonstrate that, the said generator has some defect and is not in working condition and the said defect was found on the next day of the purchase of the generator and OP No.1 has failed to replace the said generator.  OP No.1 who sells the generator is duty bound to ensure its quality and if the product is found defective the dealer who sales the product shall be liable to pay the loss caused to the purchaser.  The OP No.1 has also failed to contact the manufacturer and hence OP No.1 is liable to pay the compensation to the complainant.  Hence under these facts and circumstances of the case as discussed above we answered these points accordingly. 

 

POINT (3):-

15.   In view of our findings on Point Nos.(1) & (2) and the discussion made thereon we proceed to pass the following:-

 

ORDER

(01)  The complaint is allowed with cost of Rs.3,000/- against OP No.1. 

(02)  The OP No.1 is directed to pay a sum of Rs.1,65,000/- with interest at the rate of 9% per annum to the complainant from the date of filing of the complaint till realization of the amount. 

(03)  The OP NO.1 is also directed to pay compensation to the complainant of Rs.15,000/- towards mental harassment. 

(04)  OP No.1 is directed to pay the above said amounts to the complainant within thirty days from the date of this order. 

(05)  The case against OP Nos.2 & 3 is Dismissed.

(06)  The complainant is directed to return the said defective generator to OP No.1 after receipt of the awarded amount.

(07)  Send a copy of this order to both parties free of costs.

 

(Dictated to the Stenographer, transcribed by him, corrected and then pronounced by us on this 05^th DAY OF JANUARY 2018)

 

 

         LADY MEMBER                              PRESIDENT