Sri. P. Satheesh Chandran Nair (President):

The complainant filed this complaint u/s.12 of the C.P. Act 1986.

2. The case of the complainant is as follows.  The complainant is the owner of L&T, Komatsu equipment, PC 71/NL 22306 he purchased the same from 3^rd opposite party on 05/12/2011 for an amount of Rs. 27,04,000/-. The 1^st and 2^nd opposite parties are manufacturers and distributors of the said equipment.  The complainant usually conducted the service of the equipment at 3^rd opposite party’s office but from 08/02/2014 onward the response of the 3^rd opposite party was not proper as far as the service of the equipment is concerned.  It is contended that due to the failure of the effective service of the machine the defect of the machine could not be resolved in time there by the complainant has suffered earning loss and also became a defaulter to the financial institution concerned. According to the complainant when the equipment faced serious defect, the 3^rd opposite party entrusted 3 mechanics to inspect the machine on 21/04/2015.  Though the machine removed certain spare parts from the equipments they did not go ahead with the repairing work.  Aggrieved by the act of the opposite party the complainant sent a legal notice to 1^st and 3^rd opposite party on 29/04/2015 and the said notices were received by the opposite parties on 02/05/2015.  Even though the complainant issued the above said notices, the opposite parties were not ready to redress the grievances of the complainant there by complainant was forced to entrust the equipment to the mechanics of the Tamil Nadu on 16/05/2015. The complainant paid an amount of Rs. 73,560/- for the repairing work of the vehicle to Tamil Nadu Mechanic. Above act of the opposite parties are clearly comes under the deficiency in service as defined in Consumer Protection Act 1986 and they are liable to the complainant.  Hence the complaint for compensation, loss of earning cost etc., etc from the opposite parties.
3. This Forum entertained the complaint and issued notice to the opposite parties for their appearance.  Opposite parties entered appearance and 1^st and 2^nd opposite party filed a joint version whereas the 3^rd opposite party filed a separate version.  The version of 1^st and 2^nd opposite parties are as follows.  According to 1^st and 2^nd opposite parties this complaint is not maintainable either in law or on facts.  It is contended that this Forum has no right to entertain this case since all the opposite parties are not residing or carrying business or having a branch office within the jurisdiction of this Forum.  Therefore there is no territorial jurisdiction to try the case by this Forum.  This opposite parties again contended that the complainant herein is not a consumer as defined in Consumer Protection Act 1986 because the said machine was purchased for commercial purposes.  It is further contended that, this case is also barred by limitation because the said machine was purchased on 08/12/2011 and the warranty period was also over.  It is contended that this opposite parties extended all kinds of support for its smooth functioning since the machine was commenced on 08/12/2011.  According to 1^st and 2^nd opposite party on 17/03/2014 the customer reported a complaint of Arm Cylinder Assembly failure to the opposite party and in pursuance of that complaint an Arm Cylinder Assembly was allotted under goodwill basis with free of cost and recommended that the complainant shall procure the module on 27/05/2014.  The complainant reported a final trial failure on the machine and it is detected that the final drive assembly was damaged due to many repairs carried out by the incompetent local mechanics.  On 21/04/2015 the service engineer of the opposite party inspected the machine and found that the Arm of the vehicle was not working.  It is contended that in almost all the above stated defects and repairing of the vehicle the complainant was not co-operative with them.  It is further contended that the complainant was not ready to purchase the genuine spare parts of the vehicle by paying cash and due to the entrustment of the vehicle to local mechanic which was also a main reason for the troubles for this equipment.  According to this opposite parties since the warranty period of the machine was expired the complainant should have paid the cost and labour for its repairment. It is again contended that the complainant was not bothered to purchase spare parts in time whereas the opposite parties were not get an opportunity to repair the equipment. Therefore, there is no deficiency in service or unfair trade practice against the opposite parties as alleged.  The opposite parties are not liable for the delay caused for its repairment and also contended that the machine was utilized continuously for 4 years as such the wear and tear of the spare parts were usually happened in the equipment.  Therefore, this opposite parties prayed to dismiss the complaint with cost.

4. The version of OP3 is as follows.  According to this opposite party the complaint is not maintainable either in law or on facts.  This opposite party also contended that this Forum has no jurisdiction to try this case since the opposite parties are not residing or carrying any business within the jurisdiction of this Forum and also alleged that the complainant herein is not a consumer as defined in Consumer Protection Act 1986.  This opposite party also prayed to hear the maintainability and locus-standi of the complaint as a preliminary issue for the dismissal of the complaint. According to this opposite party it is admitted that the complainant purchased the equipment on 05/12/2011 and the warranty period was expired 05/12/2012.  It is stated that the 3^rd opposite party has given license by the 1^st opposite party for carrying out the services of the machine.  This opposite party was regularly checked and all the repairs are rectified and also carried regular service to the machine in warranty period and after words.  Since the warranty period was exhausted the complainant has to pay the cost of the material and labour for its repair.  In pursuance of the complaint of the complainant, this opposite party sent mechanic to the office of their complainant and inspected the machine and suggested the list of spare parts required to rectify the defect of the machine.  It was the complainant who was not ready to purchase the necessary spare parts which was the reason for the delay of the repairment.  The entrustment of the machine to local mechanic is one of the reason for the repeated failure of the function of the machine.  It is further contended that this opposite party did not remove any spare parts of the machine as alleged by the complainant.  This contesting opposite party has not committed any deficiency in service with regard to this equipment as alleged by the complainant.  The mechanics of the opposite party were also attended the machine whenever the complainant demanded.  It is also stated that the continuous use of the machine for 4 years, caused wear and tear for the inner parts of the machine there by the complainant has to replace the defective parts by paying cost.  The complainant has not suffered any mental agony and financial loss as alleged by the complainant.  The complainant purchased the machine for his business purpose as such the complainant is not a consumer as per the Consumer Protection Act.  Therefore, this opposite parties prayed to dismiss the complaint with cost.
5. We peruse the complaint version and records before us and we framed the following issues for consideration. 
   1. Whether the complaint is maintainable before this Forum?
   2. Whether the opposite parties committed any deficiency in service against the complainant?
   3. Regarding the relief and costs?

6. In order to prove the case of the complainant, the complainant he who filed a proof affidavit in lieu of chief examination and he is examined as PW1. Ext. A1 to A6 were also marked through PW1.  Ext.A1 is the Service offer booklet dated: 12/012/2011.  Ext. A2 is the copy of legal notice dated: 29/04/2014.  Ext. A3 is the original postal receipt.  Ext. A4 is the Acknowledgement card. Ext. A5 is the copy of mobile S.M.S. Ext. A6 is the Invoice letter dated: 05/12/2011.  On the other side the opposite parties 1 and 2 examined its service manager as DW1.  Through him Ext. B1 and B2 are also marked.   The 3^rd opposite party also examined its Service Manager as DW2, he who filed a proof affidavit in place of chief examination and marked Ext. B3 to B8.  Ext. B1 is the relieving certificate dated: 20/04/2015.  Ext. B2 is the statement of account dated: 14/03/2017. Ext. B3 is the Komatsu Commissioning Service Report of Machine Serial Number.  Ext. B4 is the maintenance schedule.  Ext. B5 series are (2 Nos.) parts purchase records dated: 20/06/2013 & 24/11/2014.  Ext. B6 is the relieving certificate dated: 20/04/2015.  Ext. B7 is the copy of field service report dated: 19/09/2016.  Ext. B8 is the Accounts statement of finance company dated:14/03/2017.  After the closure of evidence we heard both sides.

7. Point No.1:- The 1^st and 2^nd opposite party seriously contented the maintainability of the case before the Forum.  According to 1^st and 2^nd opposite party there is no cause of action arised within the jurisdiction of this Forum because none of the opposite parties resides or having its Registered Office or Branch Office within the jurisdiction of this Forum.  When we look into the name and address of the opposite parties it is clear that all the opposite parties are residing or doing its business outside the jurisdiction of this Forum.  We do admit that when we consider the jurisdiction question first we have to refer the address of the opposite parties.  But the same time we have to consider where the cause of action of the case is arised.  When we peruse the evidence adduced by the complainant it is clear that the 3^rd opposite party 3 mechanic arrived at Athikkayam in Ranni Taluk on 21/04/2015 and examine the defect of the machine by removing some spare parts of the said machine.  The complainant specifically alleged a deficiency against the opposite party that though they removed certain spare parts from the machine the 3^rd opposite party’s mechanic failed to rectify the said defect of the machine.  On the basis of this piece of evidence we can come to a conclusion that the cause of action arised within the jurisdiction of this court.  The opposite party 1^st and 2^nd also contended that the complainant herein is not a consumer as defined in Section 2D of Consumer Protection Act 1986.  It is pleaded that the complainant has purchased the machine for commercial purpose and the complainant himself admitted this fact in his complaint.  When we look into the contention of the complaint we cannot see any narration in support of opposite parties contention with regard to the admission in complaint. The PW1 in cross-examination of 1^st and 2^nd opposite party’s learned counsel answered “machine  ഞാൻ വാടകയ്ക്ക് കൊടുക്കും. ഞാനും,  operater ഉം ഉത് ഓടിക്കാറുണ്ടായിരുന്നു. എനിക്ക് ഈ വാഹനം ഓടിക്കാൻ license  ഇല്ല. ഇത് എൻറെ കൃഷി ആവശ്യത്തിന് ഉപയോഗിക്കുന്ന machine  അല്ല. ഇപ്പോൾ വരെ  5000 k.m  ഈ വാഹനം ഓടി കാണും, ഹർജി സമയം എത്ര k.m ഓടി എന്നറിയില്ല. ഈ machine ആയി ബന്ധപ്പെട്ട് 3 പേർ ജോലി ചെയ്തു വരുന്നുണ്ട്. മറ്റുള്ളവർക്ക് basic ശമ്പളവും പണി ഉണ്ടെങ്കിൽ bata യും കൊടുക്കും.”.  The complainant PW1 deposed that for his livelihood he purchased this machine worth Rs. 27,00,4000/- from 1^st and 2^nd opposite party.  It is pertinent to see that he has no driving license for him to drive his vehicle.  It is also interesting to see that one mechanic as well as 3 other persons are employing under the complainant for the operation of this machine.  If so we have to examine that the earning from this machine alone is the income for the livelihood of the complainant.  In a further cross he specifically answered “എൻറെ പേരിൽ വേറെ 2 machine ഉണ്ട് ഉതേ same machine ആണ്. ഇപ്പോൾ എല്ലാ machine ഉം  working condition ആണ്  Tamil Nadu നിന്ന് എത്തി ആണ് പിന്നീട് ഇത് ശരിയാക്കിയത് ”. In the light of the above deposition we can come to a clear conclusion that the complainant is having 3 machines and all the machines are at present functioning properly.  If so how can this Forum can say that the complainant is a consumer as defined in Sec 2D.  We can easily assess that this 3 machine have a worth of a minimum of                           Rs. 80,00,000/-.  Nobody can say that the complainant is meeting his livelihood from the earning of the machine referred in this complaint.  Therefore, we can come to a clear conclusion to the effect that the complainant is not a consumer as defined under Section 2D of Consumer Protection Act 1986.

8.  It is noted that the 1^st and 2^nd opposite party raised a question of limitation against the complaint.  In order to substantiate the contention of 1^st and 2^nd opposite party it is stated that the machine was commissioned on 08/12/2011 and the warranty period of one year was also over.  We don’t think that the contention of 1^st and 2^nd opposite party have any sustainably because the mechanic of 3^rd opposite party attended the defect of complainant’s machine on 21/04/2015 at Athikkayam in Ranni Taluk.  Therefore the contention raised by 1^st and 2^nd opposite party with regard to the limitation aspect has not been sustainable.  Hence we find that the complainant herein is not a consumer as defined in Section 2D Consumer Protection Act 1986 and Point No.1 found against the complainant.
9. Point No. 2 & 3:- For the sake of convenience we would like consider Point No.2 and 3 together.  Though we found that the complainant                  has not come under the purview of Consumer Protection Act 1986 there is no need of considering the merit of this case.  Anyway the complainant and the                  opposite parties are adduced evidence before us, hence we ought to have                  consider the merit of the case. The complainant he who filed a proof affidavit in lieu of chief examination and marked Ext.A1 to A6 as evidence in his favour.  The              Ext. A1 is the service offer booklet dated 12/12/2011 in favour of the complainant Binoy Mathew Ext. A1 his describing the mode of operation                  and the facilities of operation staff etc.etc.  Ext. A2 is a legal notice  issued  by the complainant against opposite party 1 & 3 stating the defect of the machine and the known availability of the spare parts and also  describing the loss sustain by the complainant with regard to this machine.  Ext. A3, A4 are the postal document which shows the issuance   of notice to 1^st and 3^rd opposite party.  Ext. A5 shows that the complainant sent a complaint to 1^st opposite party on 19/04/2015 with regard to the defect of the machine.  Ext. A6 is the document which shows that he purchased a machine by paying an amount of Rs.27,40,000/- but at the same time we can see that the complainant stating the price of the machine as Rs.2,70,4000/- in his complaint.  We find that this is only a typographical mistake.
10. In the light of the evidence adduced by the complainant as PW1 and the evidence adduced by the opposite parties herein it can be inferred that the complainant has purchased a machine from 1^st and 2^nd opposite party and the said machine was caused some defect. Thereby the complainant informed the opposite party 1 to 3 for the rectification of its defect.   The next question to be considered is whether the opposite party 1 to 3 committed any deficiency in service as alleged by the complainant.  The complainant alleged that the 3^rd opposite party mechanic arrived at Athikayam in Ranni Taluk on 21/04/2015 and inspected the machine.  In order to inspect the machine the said mechanics removed certain spare parts from the machine and left 6 spare parts at the spot.  When the 1^st and 2^nd opposite party adduced evidence on their side 1^st opposite party examined DW1 in their favour.  When this DW1 was examine by the learned counsel appearing for the complainant DW1 answered. “ഈ കേസിലെ പരാതിക്കാരൻ ടിയാൻറെ  machine ൻറെ spare parts ആവശ്യപ്പെട്ടപ്പഓൾ കൃതായമായി കൊടുത്തിട്ടില്ല എന്ന് പറയുന്നു. (A) ശരിയല്ല. കൊടുത്തിട്ടുണ്ട്. ആയതിന് invoice ഹാജരാക്കിയിട്ടുണ്ട്. Ext. B6 പ്രകാരം  spare parts കൊടുത്തിട്ടുണ്ട്.  (Q) പരാതിക്കാരൻ ഈ കാലയളവിൽ ഇത്രയും  spare parts ആണോ വാങ്ങിയിട്ടുള്ളൂ.  (A) അതേ”.   When we examine the cross-examination of DW1 we can see that the complainant purchased spare parts as per Ext. B6 and the said spare parts were used for the smooth functioning of the machine.  It is also come out in evidence to shows that the complainant was a defaulter for paying monthly installment to the financier in time as per Ext.B2 page 2.  It reveals that the closure date of the installment was on 05/11/2014.  But the complainant closed the loan amount only on 28/01/2016.  If so the complainant has no right to claim any kind of interest or compensation out of loan transaction as pleaded.  
11. Apart from the evidence of DW1 3^rd opposite party also filed a proof affidavit in place of his chief examination and through him Ext. B3 to B8 are also marked.  As per Ext. B3 it is proved that ‘KOMATSU” Service Report dated: 12/10/2011 and 02/02/2012 was prepared by the above said service centers.  Ext. B4 shows that details of spare parts replaced for the said machine and Ext. B5 series are also shows that the complainant paid an amount of Rs. 1,248/- and Rs. 9,320/- to Cinzac Sales Service Pvt. Kochi for the repairing purposes.  The Ext. B6 dated 20/04/2015 issued by the Cinzac Sales Service, Kochi shows that the complainant PW1 complained about the Arm Cylinder Assembly.  It is also evident to see that on 20/04/2015 the 3^rd opposite party’s inspection engineers attended the machine and prepared a job sheet for the maintenance of the machine.  The job card of Tamil Nadu workshop shows that the expense for the work was so less.  When we attribute deficiency in service against a person it is the complainant who has to prove deficiency in service against the alleged persons.  Here it is clear that the complainant herein was not responded to the job card issued by 3^rd opposite party in this case.  Ext.  B7 shows that on 19/09/2016 after the institution of this case the complainant approached the 3^rd opposite party for inspecting the machine and the service engineer of the 3^rd opposite party mentioned that “now machine work with complaint”.  Ext. B8 and Ext. B1 are same documents.
12. In the light of the evidence adduced by both the parties in this case, it is revealed that though the machine caused certain complaint but the opposite parties had not got any opportunity to rectify the mistake.  At the same time the opposite parties in this case proved that they prepared job card for the maintenance of the machine but the complainant was not willing to act upon the same.  We find that the complainant is not succeeded to prove deficiency in service on the part of the opposite parties.  Therefore Point No.2 and 3 are also found against the complainant.
13. In the result, we pass the followings orders.

1. The complaint is dismissed.
2. No order for cost.

 Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Forum on this the 31^st day of July, 2017.

                                                                                   (Sd/-)

                                                          P. Satheesh Chandran Nair,                                                                                                                                                                                                                                              

                                                                 (President)

Smt. Sheela Jacob (Member)               :    (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1  :  Benoy Mathew

Exhibits marked on the side of the complainant:

A1 :  Service offer booklet dated 12/12/2011.

A2 :  Copy of legal notice dated:29/04/2014.

A3 :  Original postal receipt.

A4  :  Acknowledgment card.

A5  :  copy of Mobile SMS.

A6  :  Invoice letter dated: 05/12/2011.

Witness examined on the side of the opposite parties:

DW1 :  Stephen N Joseph

DW2 :  Chenthamarakshans L

Exhibits marked on the side of the opposite parties: Nil

B1 : Relieving certificate dated: 20/04/2015.

B2 : Statement of account dated: 14/03/2017.

B3 : Komatsu Commissioning Service Report of Machine Serial Number dated:

       05/05/2012.

B4 : Maintenance schedule.

B5 series: (2 Nos.) parts purchase records dated: 20/06/2013 & 24/11/2014.

B6 : Relieving certificate dated: 20/04/2015.

B7 : Copy of field service report dated: 19/09/2016. 

B8 : Accounts statement of finance company dated:14/03/2017.

                                                                                                      (By Order)

Copy to:-  (1) Benoy Mathew,

                     Alappattu(H), Naranammozhy P.O,

                     Ranni, Athikkayam- 689711.

2. The Director,

        Larson and Toubro Limited,

        Construction Equipment Division,

        Lakshminarayana Complex (1^st Floor),

        10/01 Palace Road, Bangalore – 560052.

3. The Service Manager,

        Larson and Toubro Limited,

        Ravipuram Juction, P.O.Box. 1723, Ernakulam,

                      Kochi -682016.

4. The Service Manager,

        Cinzac Corporation, Cinzac Towers, Chittoor Road,

                      Pachalam, Cochin – 682012.                                

5. The Stock File.