SRI.K. VIJAYAKUMARAN, PRESIDENT.
Complaint seeking replacement of the JCB purchase or refund of the price, compensation and costs.
The averments in the complaint can be briefly sumamrised as follows:
The complainant has purchased a JCB 3D Excavator loader manufactured by the 3rd opp.party from opp.parties 1 and 2 who are the dealer for a sum of Rs. 18, 09,501/- on 16.11.2004. The engine Number of the same was 4H 2079/0403522 and chasis number 1032410 and Registration No.KL-03-L.2534. The JCB had a warranty period of one year or 2000 working hours which ever is earlier. After completion of 500 hours of work the gap between the bonnet and loader arm is high in the right side than the left side , showal is not parallel with the ground, loader arms not level and having alignment problem on the loader arm and having metallurgical defect on the chasis due to the manufacturing defect of the JCB. On the complaint of the complainant the serviceman of the opp.-party’s inspected the machine on 23.3.2005 on 6.5.2002 again and the service engineer of the opp.party inspected the JCB and observed that the gap between the bonet and the loader arm is high in the right side than the left side because of which the dozing works cannot done. After 2 months again the complainant explained the defect of JCB but on 12.9.2005 the service Engineer inspected the machine and found that alignment problem on loader arm . The Service Engineer understood that the alignment problem is due to the manufacturing and metallurgical defects of the chassis of the JCB. However even after the expiry of 2 weeks the opp.parties did not rectify the defects. Hence the complaint.
The opp.parties 1 and 2 filed a joint version contending, interalia, that the complaint is not maintainable either in law or on facts. The complainant is not a consumer within the meaning of Consumer Protection Act.. The complainant has purchased the JCB for commercial purpose. The averments in para 1 to 3 is admitted. The averments in paras 4 to 8 are not fully correct. The allegations are vague and did not specifically state what is the manufacturing defect or metallurgical defect. The first monthly check up was done on 27.11.2004 at 58 hours of working and no complaints were noticed. The first free service was conducted on 6.12.2004 at 106 hours and no complaints were noticed. Thereafter monthly check up was done on 22.1.2005 at 350 hours of working and at that time it was noticed that there was bend in the middle portion of the top plate of loader arm bucket which is due to use of the vehicle against the warranty condition. It could occur due to gross misuse or mal operation of the machine. This bend possibly be due to some collision with rock or earth or other very hard object. The said part is not having warranty also. The 2nd free service was conducted on 22.2.2005 at 502 hours of working and at that time also no complaint regarding any manufacturing defects or metallurgical defect was raised by the complainant. The next monthly check up was done on 31.3.2005 after successfully completing 725 hours of working. The 3rd free service was conducted on 6.4.2005 after completing 819 hours of working. During the next monthly check up on 6.5.2005 after completing 1015 hours it was noticed that there is a gap between the bonnet and loader arm on the right side.. On 23.5.2005 as per the request of the complainant even though the damages is caused by mal-operation of the vehicle. The loader arm itself was changed under warranty by the opp.parties.. Thereafter, there was no complaint regarding the loader arm. The next 4th free service was conducted on 25.6.2005 after completing 1290 hours of working. The next monthly checkup was conducted on 30.7.2005 after completing 1510 hours of working.. The 5th free service was conducted on 1.8.2005 after completing 1678 hours of working. Even at that time also there was no complaint. Thereafter he he raised bogus complaints with malafide motives. Even though the loader arm alignment problem was due mal-operation in order to extent maximum service to the customer, it was replaced under warranty. But the complainant did not hand over the old loader aram replaced. The present demands are raised without any basis. More over during this period the customer had put the machine into optimum hours of working. The Service Engineer of opp.parties inspected the machine on 7.10.2005 by which time it had completed 1938 hours of working. Even though the complainant raised some bogus complaints during inspection no fault was noticed. The complainant was requested to take machine to the workshop of the opp.parties but he did not bring the vehicle to the workshop . At the time of inspection it was noticed that the operator was applying single brake instead of using interconnected double brake against the instructions for operating the machine which may cause damage to axle. The opp.parties were ready to extend their service to the maximum extent possible as per the warranty conditions. The complainant has used the machine 1928 hours within short span of 10 months on a average of 8 hrs. a day. The complainant has no cause of action for the complaint. There is no deficiency in service on the part of the opp.parties. Hence the opp.party 1 and 2 prays to dismiss the complaint.
The 3rd opp.party filed a separate version also contending that the complainant is not maintainable. The complainant is not a consumer within the meaning of Section 2[1] [d] of the Consumer Protection Act. The earth moving Equipment are being purchased by businessman or commercial organizations engaged in construction activities and other related industry. The said machine by its very nature is meant for commercial use. The complainant had purchased the said JCB for the commercial purpose and for making profit by using the same in construction industry. Therefore the complainant is not a consumer and the complaint is not maintainable. The complainant has not relied upon any expert opinion to substantiate the allegation. This Forum has no jurisdiction to entertain this complaint as the terms of warranty says any claim or obligation in connection with the sale of JCB products shall be subject to the jurisdiction of courts in Faridabad Haryana. The present complaint is filed at the fag end of the warranty period with a view to gain unlawful enrichment. The warranty period of the machine has already been expired and therefore there is no merits in the claims made by the complainant for replacement of the machinery. Even after the filing of the complaint the complainant is using the machine and making profit.. there is no manufactured defect in the machine. The opp.party rendered sincere and efficient after sale service as and when required. The complainant resorted to continuously raise unfair and undue demands against the opp.parties. The defects if any to the JCB is due to mal-operation and improper care. The machine was being used by the operator applying single brake instead of using inter connected double brake which shall cause the defects in the machine. The warranty of the machine is subject to the terms and conditions contained in the warranty certificate and when there is violation of warranty conditions it would disentitle the customer from claiming any benefits of warranty. The allegations are frivolous. There is no manufacturing defect or metallurgical defects to the JCB . There is no deficiency in service on the part of the opp.party. Hence the 3rd opp.party prays to dismiss the complaint.
Points that would arise for consideration are:
1. Whether the JCB has any manufacturing defects?
2. Whether there is deficiency in service on the part of the opp.parties?
3. Reliefs and costs.
For the complainant PW.1 and 2 are examined. Ext. P1 to P8 are marked.
For the opp.parties DW.1 is examined. Ext. D1 to D17 are marked.
POINTS:
There is no dispute that the complainant has purchased a JCB from the opp.party and that the JCB has a warranty period of 2000 hours or one year from the date of purchase. The contention of the complainant is that ever since the purchase the JCB has shown defects which is due to the manufacturing defect of the JCB and though the same was brought to the notice of the opp.parties at the time of servicing they did care to replace the machine or repairing the same properly. The definite contention of the opp.party is that the JCB has no manufacturing defect but it developed certain defects which is due to the handling of the same carelessly and by inexperienced hands. Ext. P1 invoice shows that the JCB was delivered on 16.11.2004. Ext. P5 are the service/inspection reports of the JCB. These reports are also signed by the complainant. The monthly check/inspection report dated 6.5.2005 shows that the complainant reported that the gap between the bonnet and the loader arm is high on the right side than the left side and because of that the dozing work cannot be done which is the complaint of the JCB raised by the complainant for the first time. Other complaints are with regard to servicing such as change of oil etc. The service inspection report dated 12.10.2005 shows that the loader arm was changed and machine was working normally The complainant has no case that the machine was not doing dozing work from the very beginning and this complaint was first noticed at the time of service dated 6.5.2005. It is the definite contention of the opp.parties that the defect noticed in the showal as well as the loader arm were due to the negligent use of the machine by inexperienced operator. Though the complainant would say that he himself and his son in - law are operating JCB not even a scrap of paper was produced to show that he as well as his son in law are competent to operate the same. The non production of such documents would lent support to the contention of the opp.parties that the JCB was being used negligently which contributed to the defects alleged by the complainant. PW.2 is an expert appointed by this Forum for the inspection of the JCB. He is a graduate in Mechanical Engineering and after inspection he has filed Ext.P5 series report and mahazar. Ext.P8 is seriously assailed by the opp.parties. They would contend that though PW.2 is a Mechanical Engineering Graduate he has no proven f experience in handling or inspecting JCBs. PW.2 himself has admitted that while he was studying for the engineering course the JCBs were not in use. It has also come in evidence that he was working as Assistant Works Manager in the KSRTC. So it is quite probable that he had no occasion to deal with JCBs. In Ext.P8 series the expert has reported that there is a difference of 5 m.m in height between the pins on the right hand side and left hand side and he has stated that is due to manufacturing defect.. He would further report that there is misalignment in fitting loader arm to the chassis which is due to manufacturing defect. He has further reported that the shovel is not parallel to earth which is due to difference in fitting in loader arm at different height to the chassis plate. The opp.parties would contend that no notice was given about the inspection by the expert and there is no attester to the mahazar which would to an interference that no inspection was done as alloyed. In fact no valid reason is forthcoming for not attesting the mahazar with witness or by the parties who are alleged to have been present.
PW.2, the expert himself has admitted that the JCB was parked in an uneven surface at the time of inspection. It has also come in evidence that the measurement at the time of inspection were not taken using co-ordinate machine tool which will cause error in the measurement. PW.2 admitted that the measurement was taken without coordinate machine tool. It is to be noted that the difference according to the PW.2 is 5 m.m. and since it was taken without using co-ordinate machine tool it cannot be said that the measurement is accurate. In these circumstance the report of the expert cannot be safely accepted to come to a conclusion that there is manufacturing defect to the JCB.
The contention of the opp.party is that the opp.party though supplied a loader arm and expressed their willingness to fit the same, the complainant did not take the vehicle to their workshop but fitted the same engaging unauthorized person which is the reason for developing the defects in the JCB. It is their further case that the persons who were operating the machine were inexperienced which is obvious from the fact that single brake was applied instead of using inter connected double brake which caused defects to the machine . That aspects is not denied and it is quite probable that these aspects have also contribute to the defects narrated by the complainant.
It is worth pointing out in this context that the machine though is alleged to have manufacturing defects has been working continuously even at the time of inspection by the expert which was done in 2009. PW.1 himself has admitted it though he would say that all works could not be done . The machine having manufacturing defects will not work for such a long period as contended by the opp.parties. In this context the evidence of PW.1 in cross examination is highly material. In cross examination of PW.1 by opp.party 3 at page 8 he has stated opp.parties sRy ilq]kxA workshop H sdln\mk svh\hlsar\rk eyB\Bjgkr\rk[ LfjrkSC,A sdln\mk Selujh\h; LufjrkdlgnA chasis complaint hole cut svu\fkalMj ejmje\ejv\vk fglA tr\rlnk\ eyB\Bfk\; Lb\bsr svu\flH LliCUalu strength dj}lf\ffjrlH Lfk\ trj]k\ cIJdlgUah\h” Opp.parties have stated in the version that the defect pointed out by the expert are minor defects which they are ready to rectify and they have stated so in the version. The difference in fitting height in the loader arm even according to the expert is 5 m.m and this measurement was taken which the JCB was parked in an uneven surface without using co-ordinate machine tool. The opp.parties have stated that this can be cured easily as pointed earlier the evidence of PW.2 and Ext.P8 series cannot be safely relied on to come to a conclusion that there is manufacturing defect on the JCB. However in the light of the statements of the opp.parties that they are ready to cure the defect pointed out by the expert and in the light of the fact that the machine has been in use even at the time of inspection, we feel that the ends of justice can be met by directing the opp.parties to rectify the defect free of charge and make the same fit for all use. In our view the complainant is not entitled to get the JCB, replaced or refund of the price of the machine. Points found accordingly.
In the result the complaint is allowed in part, directing the opp.parties to rectify the defects in the loader arm and showel within a period of one month from the date of production of the JCB before them and make it fit for all use failing which the complainant is entitled to get it repaired elsewhere and the expenses there of will be paid by the opp.parties. In that event the opp.parties will also pay a compensation of Rs.10,000/- and costs Rs.2,500/- to the complainant . The order is to be complied with within one month from the date of this order.
Dated this the 31st day of March, 2011.
:
I n d e x
List of witnesses for the complainant
PW.1. – Sadasivan
PW.2. – R. Gopi
List of documents for the complainant
P1. – Invoice
P2. – Copy of RC Book
P3. – Warranty card
P4. – Receipt No 198
P5. – Inspection Report
P6. – Legal notice
P7. – Working stations of Opp.party.
P8 series . – Expert report
List of witnesses for the opp.party
DW.1. Anoop
List of documents for the opp.party
D1. – Inspection report dt. 27.11.2004
D2. Inspection dated 6.12.2004
D3. – Inspection report dt. 22.1.2005.
D4. – Inspection report dt. 22.2.2005
D5. – Inspection report 31.3.2005
D6. – Inspection dated 6.4.2005
D7. – Inspection report dt. 6.5.2005
D8. – Inspection report dt. 23.5.2005D9. –
D9. - Inspection report dated 25.6.2005
D10. – Inspection report dated 30.7.2005
D11. – Inspection report 1..8...2005
D12. – Inspection report 7.10.2005
D13. – Lawyer notice dated 18.10.2005
D14. – Copy of cash bill dated 7.11.2005
D15. – Inspection report dt. 8.11.2005
D16. – Lawyer notice dt. 22.11.2005
D17. – Lawyer’s reply notice.
