Karnataka

Kolar

CC/69/2017

Bharath Kumar.M.S - Complainant(s)

Versus

Kirloskar Oil Engines Limited - Opp.Party(s)

Sri.P.N.Srinath

20 Jun 2018

ORDER

Date of Filing: 07/10/2017

Date of Order: 20/06/2018

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

 

Dated: 20^th DAY OF JUNE 2018

PRESENT

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

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

 

CONSUMER COMPLAINT NO. 69 OF 2017

Sri. Bharath Kumar M.S,

S/o. Somashekar.M.V,

Aged About 27 Years,

R/at: No.244, “Maruthi Krupa”,

G.R. Street, Malur Town,

Kolar District.                                                         ….  COMPLAINANT.

(Rep. by Sri. Maaruth Vijay & Sunil Kumar.K, Advocates)

 

- V/s -

1) Kirloskar Oil Engines Limited,

Laxmanrao Kirloskar Road,

Khadki, Pune-411003.

Rep. by its Managing Director.

(Rep. by Sri. M. Venkataswamy, Advocate)

 

2) United Diesel Services,

No.999/3, Sai Nivas,

5^th A Cross, 1^st Block,

HRBR Layout, Kalyananagar,

Bangalore-560 043.

Branch Off: No.2, Chokka Complex,

Gokul College Road, NH-4, Bypass, Harohally,

Kolar-563 101.

(Ex.parte)

 

3) M/s. DPK Engineers Private Limited,

No.109, ADA Rangamandira,

Opp. Ravindra Kalakshetra,

J.C. Road, Bangalore-560 002.

(Ex.parte)                                                                                       …. OPPOSITE PARTIES.

-: ORDERS:-

BY SMT. A.C. LALITHA, LADY MEMBER,

01.   The complainant having submitted this complaint as envisaged Under Section 12 of the Consumer Protection Act, 1986 (hereinafter in short it is referred as “the Act”) against the opposite parties for issuance of directions to Ops jointly and severally to repair or replace the generator of free of cost due to inherent manufacturing defects and to pay a sum of Rs.10,00,000/- as damages towards loss, mental and physical agony and harassment suffered by him due to deficiency in service of the Ops along with interest and costs and any other reliefs as this Forum deems to be fit.

 

02.   The facts in brief:-

(a)    It is contention of the complainant that, OP No.1 is the manufacturing company of AC generators and OP No.2 is the authorized service provider and OP No.3 is seller and distributor.  And that on 06.06.2016 he had purchased 35 KVA AC Generator from OP No.3 by paying a sum of Rs.3,53,001/- vide invoice No. WIIV700774, Vide Eng. No. W1GN700889-3H.8403/1621849 for the purpose to provide lighting at his crusher unit at Ardakothur Village, Tekal Hobli, Malur Taluk.

 

(b)    It is contended that, he had purchased the said generator with the assurance given by OP No.3 as, there is a warranty for 24 months from the date of commissioning or 30 months from the date of dispatch whichever is earlier and there would be a regular service for every 500 hours of running of and the initial service will be held on completion of 100 hours of running AC Generator.  On 10.09.2017 at 06.00 AM the said AC Generator DG was burst.  Immediately he informed to OP No.2.  Next day on 11.09.2017 OP No.2 technician Mr. Sanjeev inspected and given report. 

 

(c)    It is contended that after installation the initial service of AC Generator was done by the service provider i.e., OP No.2 after completion of 50 hours and after initial service he had informed to OP No.2 as he has to spend more expenses in absence of 35 KVA AC Generator.  He had waited till 18.09.2017 since there was no response from the Ops, again on 23.09.2017 he sent a reminder mail in continuation of the earlier mail dated: 13.09.2017.  After a long try and conversation OP No.2 sent reply as regretted for the inconvenience and assured to pay 40% of the purchased amount (excluding tax) and remaining 60% shall be bear by him including tax and GST.  And on 27.09.2017 he got e-mail from OP No.2 as the burst of said generator is not manufacturing defect and it has run more than 4000 hours and they suspect reason could be accidental and hence the repair/replacement is not warrantable.

 

(d)    It is further contended that, the said generator was run for 500 hours and OP No.2 technicians used to service the said generator as and then time to time and the last service was being done on 26.08.2017 i.e., just prior to 10 days of the incident.  Even after several approaches OP No.2 since not rectified the problem nor replaced it.  So contending the complainant has come up with this complaint by seeking the above set-out reliefs.

 

03.   In response to the notice issued by this Forum OP No.1 has put in its appearance through its learned counsel and submitted written version and as per the proceedings noted in the order-sheet OP No.2 & 3 placed exparte.

 

04.   It is contention of the OP No.1 that, this complaint is not maintainable on the ground of “Commercial purpose”, as per Section 2(1)(d) of the Consumer Protection Act.  It does not include a person who obtains goods for resale or for any commercial purpose”.  Since the complainant purchased the said 35 KVA diesel generator for commercial purpose i.e., to use in his crusher unit and on the ground of “cause of action” and complainant is not a Consumer.

 

(a)    It is further contended that, there is no inherent or manufacturing defect in DG Set and the same was performing normally for more than one year and running for 4132 hours in 16 months.  And that the said set was installed on 10^th June 2016 and the date of incident reported on 11.09.2017.

 

(b)    Further it is contended that, after receiving the complaint from complainant on 11.09.2017 the DG Set was inspected and reported the cause of fire is external and that there is no manufacturing defect in the DG Set.  And following were the observations of inspection:-

i) No burning marks found on the alternator from outside.

ii) The AVR was melted purely due to external heat

iii) Terminal bar & insulation was also burnt due to external heat,

iv) Battery & Battery cable/wire connection burnt completely due to external heat,

v) Charging alternator condition was found Ok.  However, the cable got burnt due to external heat,

vi) Control Panel was found burnt due to fire,

vii) MCCB & Output cable insulation burnt due to external heat,

viii) DC Wires insulation got melted due to external heat.

ix) Neither were any Gaps or cracks were found in turbo side nor were there any pores, cracks or leakage found on expansion bellow from visual inspection.

x) Alternator output cable got melted due to external heat.

xi) Radiator fins got melted completely due to external heat.

 

(c)    It is contended that, the said set was installed very close to an open power generating set of 100 KVA which generates high heat energy which led to the burning of the disputed DG set and there is no manufacturing defect and no deficiency in service, hence prayed for dismissal of the complaint with costs and also prayed for any other reliefs as this Forum deems to be fit.

 

05.   The complainant has submitted his affidavit evidence by way of examination-in-chief and below mentioned documents were marked as Exhibits-P.1 to P.12 and faced cross-examination and also submitted below mentioned other documents and citations:-

(i) Original invoice No.W11V700774, dt: 06.06.2016 – Ex.P.1.

(ii) Original manual along with warranty certificate issued by Koel Green Brushless AC generators – Ex.P.2.

(iii) Copy of Field Service Report dt. 11.09.2017 – Ex.P.3.

(iv) E.mail conversation between complainant and Ops running to 05 sheets – Ex.P.4.

(v) Original tax invoice No.440, dt. 26.08.2017 – Ex.P.5.

(vi) Original tax invoice No.934, dt.11.07.2016 – Ex.P.6.

(vii) Copy of Field Service Report dt. 11.07.2016 – Ex.P.7.

(viii) Original Tax Invoice No.405 dt.06.09.2016 – Ex.P.8.

(ix) Copy of Field service report dt. 06.09.2016 – Ex.P.9.

(x) Original Tax Invoice No.772, dt.27.01.2017 – Ex.P.10.

(xi) Copy of Field Service Report dt. 06.02.2017 – Ex.p.11.

(xii) 03 photographs of damaged generator – Ex.P.12.

(xiii) Copy of the e.mail dated: 08.01.2016 requesting for hire of 1000 KVA DG.

(xiv) Copy of the e.mail bill raised by the Nithyananda Infrastructure Limited for the year 02.02.2016 to 29.02.2016 to 27.02.2017 through e.mail.

(xv) Copies of the ledger receipt maintained by complainant in respect of usage of 1000 KVA DG day by day basis.

(xvi) Super Computer Service Center V/s Globiz Investment Private Limited 2006(3) CPJ 256.

(xvii) M/s. Appolo Tyres Ltd V/s M/s. Virk International Trading

(xviii) M/s. Varun Interrex Pvt Ltd V/s Kingisher India Elevator & Air.

 

06.   On behalf of OP No.1 Sri. John Robert.M, Area Service Manager, has sworn his affidavit evidence and below mentioned documents are marked as Exhibit.D.1 to D.2:-

(i) Report dt. 14.09.2017 issued by Ritto Thomas Koel, Bangalore – Ex.D.1. (running in to 17 pages).

(ii) 20 photos of the disputes generator along with CD – Ex.D.2.

 

07.   Both parties have submitted their written arguments and heard oral arguments too.

 

08.   Therefore the points that do arise for our consideration are:-

(1) Whether this complaint is maintainable on the grounds of cause of action, ‘consumer’ and commercial purpose?

 

(2) If so, is there deficiency in service on the part of the OPs as alleged by the complainant?

 

(3) If so, whether the complainant is entitled for the relief as he sought?

 

(4) What order?

 

09.   Our findings on the above stated points are:-

POINT (1):-      In the Affirmative

POINT (2):-      In the Affirmative

POINT (3):-      Partly Affirmative

POINT (4):-      As per the final order

for the following:-

REASONS

POINTS (1):-

10.   OP No.1 contends, as this complaint is not maintainable on the grounds of commercial purpose complainant is not a Consumer and there is no cause of action to file this complaint.  Contrary to this the complainant pleaded as he though purchased the said DG Set is for lighting purpose at his crusher unit and not for Commercial purpose.

 

11.   On perusal of entire records of both parties it revealed that, the complainant has used this DG set at his crusher unit for lighting purpose only.  That means he used the same for his own use and he had not sold out the same for gain.  As per Consumer Protection Act any goods so purchased if sold out the same for earning money would amounts to Commercial Purpose.  In this case, the complainant has used the said dispute set for lightening purpose only.  Hence it will not come under category of commercial purpose.

 

12.   When the incident occurred on 11.09.2017 Sri. Sanjeev the representative of OP No.1 had inspected the spot and given report later on up to 27.09.2017 OP No.1 did not settle the claim even after several approaches of complainant through E-mail. (Reliance placed on Exhibit-P.4).  Hence in our view this is sufficient for the occurrence of cause of action to this complaint.

 

13.   As per Exhibit-P.1 i.e., invoice for the purchase of the said generator by the complainant from Op No.1 shows that there is a contract between them.  When dispute arises definitely complainant will be consumer to OP No.1 and comes under the provisions of Consumer Protection Act, 1986.

 

POINT NOS.2 & 3:-

14.   To avoid repetition in reasonings and as these points do warrant common course of discussion, the same are taken up for consideration at a time.

 

15.   Admittedly on 10.09.2017 the 35 KVA DG Set of complainant was burnt.  Exhibit-P.3 i.e., report of OP No.1 technician reveals the same.  According to complainant the cause for the incident is manufacturing defect and according to OP No.1 it is due to placement of said disputed set very close to 1000 KVA A.C. Generator and OP No.1 suspect that, which was due to external heat produced by 1000 KVA open genset placed closed (Reliance on Exhibit-D.1).

 

16.   On perusal of entire pleadings, affidavits and documents of both parties our observation is that, both the parties have failed to establish the reason for the incident.  And the complainant failed to prove the said cause is due to manufacturing defect and OP No.1 also not submit sufficient evidence to believe that the cause is due to 1000 KVA generator “suspect observation” as in Exhibit-D.1 cannot be consider as it is exact cause.

 

17.   On perusal of Exhibit-P.3, P.7, P.9 and P.11 i.e., the Field service report about any danger in keeping 35 KVA near 1000 KVA and no way objected the same.  Further RW.1 i.e., Sri. John Robert.M, Area Service Manager has admitted in his cross-examination that in Exhibit-P.7, P.9 and P.11 they have not written about 100 KVA generator in the remarks column and so also admitted that, in Exhibit-P.3 it does not mention said disputed incident was due to 1000 KVA generator.

 

18.   However it is an admitted fact that, the disputed set was burst on 10.09.2017 and report of OP No.1 Exhibit-P.3 confirmed it.  And as per Ehixibt-P.4 it reveals that, the complainant had approached OP No.1 for claim and rectification, but did not respond.  Thus OP No.1 had rendered deficiency in service in not settling the claim of complainant when the incident was happened within the warranty period (Reliance placed on Exhibit-P.1).  Since OP-3 is the seller and distributor of the same has got liability with OP No.1 jointly and severally and OP No.2 is only a service provider would not have any liability over it.

 

19.   The said DG set was purchased by complainant on 06.06.2016 as per Exhibit-P.1 and date of failure incident was on 10.09.2017.  Almost 16 months the complainant has used the said set without any fault.  And as the complainant has failed to prove that it was manufacturing defect.  By considering all the above, we opined as the complainant is entitled for claim partly with the purchased amount, which should be recovered exclusively from OP No.1 and OP No.3 jointly and severally.

 

POINT (4):-

20.   In view of the above discussions on Point (1) to (3) we proceed to pass the following:-

ORDER

01.   For foregoing reasons the complaint is allowed partly against OP No.1 and OP No.3 jointly and severally with cost of Rs.3,000/- as hereunder:-

(a) OP No.1 and OP No.3 are herewith directed to pay jointly and severally 50% of the amount of said AC Generator as per Exhibit-P.1 i.e., invoice No. WIIV700774 to the complainant within 30 days from the date of receipt of this order and also compensation of Rs.7,000/-.

(b)    The case against OP No.2 is dismissed with no costs.

02.   Send a copy of this order to both parties free of cost.

 

(Dictated to the Stenographer, transcribed by him, corrected and then pronounced by us on this 20^th DAY OF JUNE 2018)

 

 

LADY MEMBER                                PRESIDENT