BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

CACHAR :: SILCHAR

Con. Case No. 13 of 2016

            The Manager,

             Roopacherra Tea Estate, Katlicherra, Hailakandi, …………….           Complainant. 

                                                                        -V/S-

            Johnson Techno Sales & Services

            Head Office, Johnson Commercial Complex

            Sonai Road, Silchar

            Branch Office-Dhaleswar Road No-11

            Agaratala, West Tripura, …………………….                                             Opp. Party

Present: -                                Sri BishnuDebnath,                                         President,

District Consumer Forum,

                                                Cachar, Silchar.                                            

                                                            Sri Kamal Kumar Sarda,                                Member,

                                                            District Consumer Forum,

                                                            Cachar, Silchar.                                            

            Appeared: -                Ms. Tuhina Sarma, Advocate for the complainant.

Mr. Suddhasatta Choudhury, Advocate for the O.P.

                                                 Date of Evidence                                          17-11-2017, 12-12-2017

                         Date of written argument                            20-03-2018, 03-07-2018

                         Date of oral argument                                 20-08-2018                 

                         Date of judgment                                         07-09-2018

JUDGMENT AND ORDER

                              Sri Bishnu Debnath,

1. This complaint under the provision of the Consumer Protection Act 1986 has been brought by the Manager, Roopacherra Tea Estate, Hailakandi against the Johnson Techno Sales and Service, Agartala, West Tripura for disservice etc. in respect of annual maintenance of Kirloskar make 250 KVA DG Set.
2. Brief facts:-The complainant purchased the aforesaid DG Set on 01-08-2011 and entered into an agreement with the O.P on 01-11-2014 for 1 (one) year for annual maintenance of the DG Set for consideration of Rs.16,854.00 (Rupees Sixteen Thousand Eight Hundred Fifty Four) only.
3. But on 28-08-2015 i.e. within the period of agreement the said DG Set burst into pieces. Accordingly, the matter was informed. The O.P on 03-09-2015 submitted job quotation and estimate for repairing of Rs.51,870.00 (Rupees Fifty One Thousand Eight Hundred Seventy) only. Being dissatisfied, the complainant brought the instant complaint with a plea that the O.P did not properly overhaul the DG Set for which the above incidence was occurred. As per the complainant’s opinion, the O.P is to repair the DG Set with free of cost because the incidence was occurred within the period of agreement. Accordingly, prayed for relief of repayment and price of DG Set of Rs.12,90,000.00 (Rupees Twelve Lac Ninety Thousand) only and other including compensation etc.
4. The O.P submitted W/S. In the W/S inter alia admitted the fact that there was agreement for annual maintenance of the DG Set. But the plea of the O.P is that after running of 5000 hours the DG Set requires its rebuilt/top                                                                             
5. However, as per the O.P, the DG Set was blasted or breakdown due to non-taking of daily checkup of top up oil, belt, hues, and nut bolts etc.
6. During hearing, the complainant submitted deposition and exhibited many documents including photo copy of service maintenance agreement dated 21-10-2014, Photo copy of rebuilt engine warranty card, photo copy of job quotation dated 03-09-2015. The O.P submitted deposition of Sri Debapriya Choudhury i.e. General Manager and exhibited many documents including service maintenance agreement, rebuilt engine warranty etc. After closing evidence both sides’ counsels submitted written argument.
7. I have heard argument, perused written argument and evidence on record.
8. It is admitted fact in view of evidence on record that the DG Set blasted/breakdown after expiry of guarantee period of overhauling. The overhauling of the DG Set was done on 16-02-2015 and it was breakdown/busted on 28-08-2015. It is also revealed from the Ext-C rebuilt engine warranty that the period of warranty runs for 6 (Six) months or 1000 hours of running of DG Set from the date on 16-02-2015. It is also revealed from the evidence on record that after rebuilt/overhauling the DG Set on 16-02-2015 there was no complaint against the work done by the O.P or there was no complaint for running the DG Set. So, it is presumed beyond doubt that the DG Set was running without any complaint till date of breakdown on 28-08-2015. In the Ext-D (I) email nothing revealed that the DG Set was giving problem after overhauling.
9. Anyhow, in view of annual service, maintenance contract/agreement vide Ext-2 and Ext-3, the O.P is to pay visit to the customer quarterly to carry out normal maintenance and inspection of the engine and routine maintenance is to be carried out by the customer. Of course, any overhauling and modification will be outside the contract.
10. Accordingly, it is revealed from evidence on record that for overhauling was done on 16-02-2015 and issued separate warranty by the O.P to the complainant. But the said warranty did not abstain the O.P to perform its normal maintenance and inspection of the engine.
11. However, the O.P wanted to establish the fact that real cause of breakdown of the engine of DG Set was not a defective overhauling of the engine but lack of carrying daily routine maintenance by the complainant. What are the routine maintenance or what activities does not come under the purview of the routine maintenance to be carried out by the complainant are not defined or described in the Ext-2 annual service maintenance agreement or in any other relevant documents. Of course the witness of the O.P in his deposition stated that the routine maintenance means and it includes daily checkup of top up oil, belt, hues and nut bolts etc.
12. The O.P passed the above opinion that engine of DG Set breakdown due to non-taking of routine maintenance by the complainant is not based on expert opinion. As the O.P took the plea that it was occurred due to lack of daily routine maintenance. So, it is the onus of the O.P to establish that fact. But nothing found convincing infavour of the opinion of the O.P except a fact that the engine of DG Set had been broken down within 9 (nine) months of its rebuilt/overhauling. Moreover, it is unchallenged fact that the O.P visited last the DG Set on 05-08-2015 i.e. 2 (two) months 22 days prior to the date of breakdown of the engine of the DG Set but nothing revealed from the evidence that the O.P noticed any defect in the engine of the DG Set which resulted its breakdown. That is why, the plea of the O.P is that though the last visit on 05-08-2015 was done beyond the agreed clause of annual service contract the incidence occurred after expiry of agreed period of annual service maintenance contract. To convince the District Forum the O.P brought my notice to the relevant clause of the agreement vide Ext-A. As per clause 12 of Ext-A the contract will be expired after completion of 4 (four) visit or 1 (one) year whichever occurred earlier.
13. As per the Ext-D(I) the complainant admitted that the O.P visited in the 4^th occasions on 14-05-2014 and 5^th visit was on 05-08-2015. Thus, as per the O.P, the agreement of annual maintenance and service of DG Set has been expired on 14-05-2015 but incidence occurred on 28-11-2015. But if I go through the entire agreement, it can be opined that agreement was done for complete 1(one) year from 31-10-2014 to 30-10-2015 and as per clause 4 of that agreement the O.P is to visit quarterly to carry out normal maintenance and inspection of the engine which means the 1^st visit must be within the month of January,2015. Similarly the 2^nd compulsory visit must be in the month of April,2015, 3^rd visit ought to be done in the month of July,2015 and 4^th compulsory visit was required to be done in the month of October,2015. Whereas, the evidence revealed that 1^st visit was on 19-03-2015, 2^nd visit was on 07-04-2015, 3^rd visit was on 30-04-2015, 4^th visit was on 14-05-2015 and addition 5^th visit was on 05-08-2015.
14. Thus, it is clear from the above dates of visit that the O.P did not observe the very object of the agreement rather very callously completed all the compulsory visit of D.G Set within a span of 7 (seven) months of the agreement. The said activities of the O.P is not treated as fair deal with the complainant. Of course, barring the quarterly visit the O.P may visit in the intermediary occasion of 2 (two) compulsory quarterly visit for special circumstance. But from the evidence on record I do not find any visit was done for specifically circumstance. Of course as O.P. and evidence on record the O.P. visited on 05/08/2015 i.e 20 days prior to the date of incidence. But how the notice of the O.P. escaped regarding inspection and checkup of top up oil belts, hues and nut bolts etc.
15. That is why in my considered view the O.P did not follow the terms and conditions to carry out the normal maintenance and inspection of the engine of the DG Set.
16. It is to be mentioned here that if situation demanded any emergent visit between 2 (two) normal quarterly visit the O.P could demand a paid visit but in this case, it is not clarified by the O.P or why 2^nd visit was done after 18 days of 1^st visit and 3^rd visit was done after 23 days of 2^nd visit. Similarly 4^th visit was done after 15 days of 3^rd visit.
17. Therefore, in this case it is crystal clear that the O.P did not carry out the normal maintenance and inspection of the engine as per terms and conditions of the agreement. So, the O.P is responsible for breaking down of the engine of DG Set. As such the loss suffered by the complainant is to bear by the O.P. So, O.P is directed to repair the engine of the DG Set free of cost and also directed to pay compensation of RS.15,000/-(Rupees Fifteen Thousand) and cost of the proceeding of RS.5,000/- (Rupees Five Thousand) only to the complainant within 45 days from today. In default, interest @ 10% per annum to be added with the aforesaid amount of Rs.20,000/- (Rupees Twenty Thousand)only.
18. If the O.P fail to repair the engine of the DG Set within the stipulated period of 45 days from today, the complainant may repair the same on alternative arrangement subject to the permission of the District Forum and cost of repairing may be realize from the O.P on applying the coercive measure as per provision of the Consumer Protection Act.
19. With the above, this case is disposed of on contest. Supply free certified copy of the judgment to the parties. Given under my hand and seal of this District Forum on this the 7^th day of September 2018.