IN THE CONSUMER DISUTES REDRESSAL FORUM, PATHANATHITTADated this the 13th day of May, 2010.Present : Sri. Jacob Stephen (President):Smt. C. Lathika Bhai (Member) Sri. N. Premkumar (Member) C.C. No.81/2009 (Filed on 11.06.2009) Between Baburajan. P.M., Managing Director, Hotel Bezota International, Thiruvalla. (By Adv. Thomas Puthukulam) …. Complainant. And: 1. M.T. James, Director, Deev Gen-set (P) Ltd., Industrial Development Area, South Vazhakkulam P.O., Keenpuram, Aluva, Pin – 683 105. 2. Manu Sreenivasan, Unique Diesels Pvt. Ltd., Managing Director, Authorised Dealer, (Greaves Cotton Ltd.,), 41/1789, Sitaram Complex, Opp. Sudheendra Medical Mission Hospital, Kacherrypady, Chittoor Road, Kochi – 18. (By Adv. K.M. Alexander for opposite parties 1 & 2) 3. M/s. Greaves Cotton Ltd., Manufactures of Diesel Generating Sets, A/212-213, Udyog Vihar Industrial Estate, Vithalvadi, Thane – 421 003, Maharashtra. (By Adv. P.P. Mohammed Mustapha) …. Opposite parties. ORDERSri. Jacob Stephen (President): The complainant has filed this complaint against the opposite parties for getting a relief from the Forum. 2. The complainant’s case is that he is the Managing Director of Hotel Bezota International, Thiruvalla which is a three star hotel and he had placed an order for purchasing a 180 KVA Diesel Generator Set with first opposite party for his hotel for getting steady and uninterrupted electric supply. Second opposite party is the maintenance agent and the third opposite party is the manufacturer of the genset. As per the demand letter dated 13.06.2008 from the first opposite party, the complainant had paid Rs.9,75,000/- by way of demand draft and cash as the price of the genset and as installation charges. Accordingly, the genset was installed at the complainant’s hotel and commissioned on 10.07.2008. On commissioning itself, it is noticed that the sound of the set is beyond normal limits. While so, on 13.07.2008 i.e. on the third day of the commissioning of the genset, the machine broke down. The second opposite party attended the complaint on 16.07.2008 and rectified the noticed complaints by replacing various parts. Again on 18.07.2008, 22.07.2008, 09.08.2008, 04.02.2009, 23.02.2009,07.05.2009 and 23.05.2009 different type of complaints were noticed on the genset. On all these occasions,, the second opposite party attended the complaints and replaced different parts of the genset and repaired the set. At last on 05.06.2009 the set struck functioning and the matter was reported and on 07.06.2009, the second opposite party deputed one Vinod who inspected the set and opined that the engineers from Ernakulam have to come and attended it. But nobody came after this for repairing the genset. Now the machine is lying idle. Right from the beginning, the genset was not working properly and showed complaints. So the complainant has not received any advantage from the genset expected at the time of purchase. 3. On noticing the continuing complaints, the complainant got inspected the D.G. Set on 18.03.2009 by a consulting engineer and on the basis of the inspection report, the complainant demanded for an immediate replacement of the D.G. Set. Thereafter, on 09.06.2009, a telegram was also sent to the first opposite party for the replacement of the genset. But nothing materialized. According to the complainant, the genset supplied by the first opposite party is a defective and it is not a brand new and is a second hand set. All the above said acts of the opposite parties is a clear deficiency of service and unfair trade practice. Because of the non-functioning of the genset, the complainant was compelled to hire another set by paying Rs.3,500/- per day as rent excluding the diesel expenses. Because of the aforesaid deficiency in service and unfair trade practice of the opposite parties, the complainant has sustained financial loss and mental agony and affected the complainant’s business. Hence, this complaint for an order from this Forum directing the first opposite party either to replace the genset with a brand new one or in the alternative allowing the complainant to realize the entire amount given by the complainant for the genset along with Rs.2 lakhs as compensation for the deficiency of service and Rs.5 lakhs as compensation for the loss sustained by the complainant along with cost of this proceedings. 4. In this case, the first and second opposite parties filed a common version and the third opposite party filed a separate version. 5. The contentions raised by the first and second opposite parties in their version is as follows: According to these opposite parties, this Forum has no territorial jurisdiction to entertain this complaint as the cause of action of the complaint arose outside the jurisdiction of this Forum as the genset was supplied at Keenpuram near Perumbavoor situated at Ernakulam District and the opposite parties have no branches within the jurisdiction of this Forum. Further contention is that the complainant is not a consumer as the purchase of the genset was for his hotel business which is a commercial purpose. These opposite parties also challenges the complainant’s locus-standi to file this complaint as the complainant has not produced any documentary proof showing that he is the competent person to file this complaint for hotel Bezota International. These opposite parties denied the allegation of the complainant regarding the excess sound emission on the ground that before supplying the set, the sound emission was tested and found normal. The genset supplied by the opposite parties was brand new and its condition was perfect. What all complaints noticed in the set was properly and promptly rectified by the opposite parties and the alleged complaints are due to the improper installation and improper handling by the complainant. The break-down was occurred not due to defective workmanship or due to any manufacturing defect and are only due to the incorrect using and misuse of the set. The loss suffered and the difficulties faced by the complainant is not due to the fault of the machine or due to these opposite parties. The opposite parties are not liable to compensate the complainant, since no act of these opposite parties have caused any trouble or mental agony, or financial loss or hardship to the complainant. These opposite parties have done their part to the fullest satisfaction of the complainant. There is no deficiency of service or unfair trade practice from these opposite parties. With the above contentions, the first and second opposite parties pray for the dismissal of the complaint. 6. The contention of the third opposite party is as follows: This opposite party also challenged the maintainability of this complaint on the ground that the purchase of the genset was for commercial purpose. They denied that the third opposite party is the manufacturer of the genset. This opposite party has supplied only the diesel engine to the first opposite party. The first opposite party is the manufacturer of the genset. The first opposite party purchase different parts from different manufacturers and got it assembled and sold to the customers. The third opposite party did not have any transactions whatsoever with the complainant. This opposite party is only a supplier of the components to the first opposite party. The diesel engine supplied by this opposite party does not suffer from any manufacturing defect. This opposite party is not aware of the present condition of the genset, since this opposite party did not have any transaction between the complainant. The complainant has not suffered any loss or damage as prayed for in the complaint. This complaint is frivolous and vexatious. This opposite party does not admits that the complainant is the Managing Director of Hotel Bezota International and they are not aware about the transaction between the complainant and the first opposite party. With the above contentions, the third opposite party prays for the dismissal of the above complaint with their cost as they have not committed any deficiency of service to the complainant. 7. In reply to the versions of the opposite parties, the complainant had filed a replication. In the replication, the complainant submitted that the D.G. set purchased by the complainant was not for any commercial purpose and the price of the genset was received by the first opposite party directly from the hotel of the complainant and the complainant is a consumer as defined in the Consumer Protection Act. The opposite parties claim regarding sound level etc. is false. The complainant denies the allegation of mishandling of the genset. 8. On the basis of the pleadings and the contentions of the parties, the following points were raised for consideration: (1) Whether the complaint is maintainable before this Forum? (2) Whether the reliefs sought for in the complaint are allowable? (3) Relief and Cost? 9. The evidence of this complaint consists of the oral deposition of PWs.1 and 2 and DWs.1 and 2 and Exts.A1 to A26 and B1 to B15. After closure of evidence, both sides were heard. 10. Point No.1: The maintainability of this complaint before this Forum was challenged by the opposite parties on 2 grounds. The first ground is with regard to the territorial jurisdiction of this Forum. But this matter was already heard and decided against the opposite parties in IA.151/09. 11. The next ground is that the genset was purchased by the complainant for commercial purpose and hence the complainant is not a consumer as defined in the Consumer Protection Act. But the complainant’s contention is that he had purchased the genset solely for the purpose of getting uninterrupted power supply and they are not selling the electricity produced from the generator or they are not leasing out the generator to outsiders for money. The opposite parties have no case that the complainant is leasing out the genset or the complainant is selling the electricity produced from the generator. From the facts and circumstances of the complaint, it is very clear that the complainant had purchased the genset solely for the purpose of getting uninterrupted power supply to his hotel. So the purchase of this genset is not for a commercial purpose and hence the opposite parties’ contention is not sustainable. Hence we hold that this complaint is maintainable before this Forum. 12. Point Nos. 2 and 3: The complainant’s case is that the genset purchased from the first opposite party was defective. Right from the commissioning of the genset, it was not functioned properly. On numerous occasions, the said genset struck out due to mechanical defect and such other complaints. The second opposite party repaired the genset several time and replaced numerous parts. Even then, the said genset showed complaints and the last struck out was on 05.06.2009. Thereafter, the opposite parties hve not turned up for repairing the said genset and the set is lying idle. According to the complainant, the genset supplied by the opposite parties is a defective one and is not repairable. Noticing these facts, the complainant demanded the first opposite party to replace a new genset as the defect are occurred within warranty time. But they have not replaced a new genset. The complainant had purchased the genset by paying a total amount of Rs.9,75,000/- to the first opposite party. The complainant spent the said amount only for getting uninterrupted power supply to his hotel. But due to the continuous break-down of the genset, the very purpose of the purchase was failed. Because of it, his business was affected and he was compelled to hire a genset by paying Rs.3,500/- per day and thereby the complainant had sustained financial loss and mental agony. The above said acts of the opposite parties is a clear deficiency of service and unfair trade practice and the opposite parties are liable to compensate the complainant. Hence, he prays for allowing the complaint. 13. In order to prove the complainant’s case, the complainant filed a proof affidavit narrating his case and filed certain documents. On the basis of the proof affidavit, the complainant was examined as PW1 and the documents produced were marked as Exts.A1 to A26. One witness was also examined for the complainant as PW3. PWs.1 and 2 were cross-examined by the counsels for the opposite parties. 14. On the other hand, the main contentions of the first and second opposite parties is that all the alleged complaints of the genset was due to the mishandling by the complainant and due to the mistakes of the unqualified operators of the complainant who are appointed by the complainant. The room where the genset was installed is not suitable for installing a generator like this brand and type. Even then they have attended all the complaints reported by the complainant promptly and effectively. Apart from this, the first opposite party also contended that they are not liable to the complainant as they are not the manufacturer of the genset and the third opposite party is the manufacturer of the genset. The first opposite party is only a supplier of the genset assembled by them by purchasing various components from various manufacturers and even if any defect or complaint to any of the components in the genset supplied by them is responsible to the complainant. With the above contentions, the first and second opposite parties argued that there is no deficiency of service from their part and they are not liable to the complainant. 15. In order to prove their contentions, the second opposite party filed a proof affidavit for opposite parties 1 and 2 and on the basis of the proof affidavit, the second opposite party was examined as DW1 and the documents produced were marked as Exts.B1 to B3. Later, the first opposite party filed another proof affidavit for himself as additional evidence and on the basis of the said proof affidavit, the first opposite party was examined as DW2 and the documents produced were marked as Exts.B4 to B15. 16. The main contention of the third opposite party is that the diesel engine fitted in the genset is manufactured by them and they have no connection with the complainant and the complainant had no specific allegation of any complaint in the working of the diesel engine. So they argued that they are not liable to the complainant. The third opposite party has not produced any oral or documentary evidence in their favour, but they have cross-examined all the witnesses. The complainant and the opposite parties filed their argument notes also. 17. On the basis of the arguments and contentions raised by the parties, we have gone to the entire materials on record. Since there is no dispute between the parties in respect of the transaction and the alleged complaints of the genset, a discussion with reference to the exhibits is not necessary. The evidence before us reveals that the first opposite party is the seller of the genset in question and the complainant is the purchaser. The complainant’s case is that the genset purchased by the complainant from the first opposite party become defective on several occasions right from the commissioning onwards. The complaints were reported in time and the second opposite party repaired the same on several occasions also by replacing numerous parts. Now the genset is lying idle due to the reason that the genset is beyond repairs of the second opposite party. The complaints of the genset is noticed during the warranty period. But the opposite parties ignored the complainant’s demand for replacing the genset. 18. From the available evidence, it is clear that the complaints of the genset was noticed within its warranty period and the opposite parties have no case that the genset in question have no complaints as alleged by the complainant. Moreover, opposite parties have not adduced any evidence to substantiate their contentions of misuse, mishandling and improper installation of the genset by the complainant. So it is clear that the genset purchased by the complainant from the first opposite party become defective within its warranty period. So it is the duty of the opposite parties to redress the grievances of the complainant, but they have not discharged their duty to the complainant. Instead of discharging their contractual obligations, opposite parties are blaming each other for the defect of the genset for escaping from their liability to the complainant. There is no dispute that the price of the genset was collected by the first opposite party. The complainant had no direct relationship with the opposite parties 2 and 3, though they are also related in this transaction. The attitude taken by the first opposite party in this regard cannot be justified. The contention of the first opposite party that they are not liable to the complainant is not sustainable. In view of the fact that they have collected an amount of Rs.9,75,000/- from the complainant as the price of the genset and from the available evidence it is clear that the first opposite party has not taken any step to resolve the grievances of the complainant. It is a clear deficiency of service from the part of the first opposite party. Because of the said deficiency of service from the part of the first opposite party, the complainant was put to irreparable injury and sufferings, as the very purpose of purchasing the genset was defeated. So the first opposite party is prima facie liable to the complainant. But the complainant failed to adduce cogent evidence supporting his claim for Rs.5 lakhs for compensation for the losses sustained. In the circumstances, this complaint can be allowed against the first opposite party with reasonable compensation for the deficiency of service along with cost. 19. In the result, this complaint is allowed as follows: (a) The first opposite party is directed to replace and install a brand new genset of the same brand within 30 days from the date of receipt of this order at the complainant’s premises along with a compensation of Rs.25,000/- (Rupees Twenty five thousand only) for the deficiency of service committed by the first opposite party and a cost of Rs.5,000/- (Rupees Five thousand only) to the complainant, failing which the complainant is allowed to realise Rs.9,75,000/- (Rupees Nine lakhs seventy five thousand only) from the first opposite party with interest @ 7% per annum from the date of filing of this complaint till this date along with the compensation and cost ordered herein above and thereafter @ 10% interest per annum till whole realisation. (b) The complainant is directed to return the defective genset and all its accessories to the first opposite party in the event of compliance of this order by the first opposite party. (c) However, the first opposite party is at liberty to realise reasonable amounts from opposite parties 2 and 3 in case any deficiency of service committed by them to the first opposite party. Pronounced in the Open Forum on this the 13th day of May, 2010. (Sd/-) Jacob Stephen, (President) Smt. C. Lathika Bhai (Member) : (Sd/-) Sri. N. Premkumar (Member) : (Sd/-) Appendix: Witness examined on the side of the complainant: PW1 : Baburajan. PW2 : Salim. G. Panicker. Exhibits marked on the side of the complainant: A1 : Memorandum and Articles of Association of Kallumadyil Enterprises Private Ltd. A1(a) : Form 66 (Form for submission of compliance certificate with the Registrar, Pursuant to section 383A of the Companies Act. 1956). A1(b) : Form 20B (Form for filling annual return by a company having a share capital with the Registrar) A2 : Photocopy of the proforma invoice for Rs.9,00,000/- dated 07.06.2008. A3 : Photocopy of the labour bill of Rs. 75,000/- dated 14.06.2008. A4 : Photocopy of the letter dated 13.06.2008 issued by the first opposite party to the complainant. A5 : Photocopy of the letter dated 13.06.2008 sent by the Branch Head, ING Vysya Bank Ltd., Pathanamthitta Branch to the first opposite party. A5(a) : Photocopy of the demand draft for Rs.8,90,000/-. A6 : Free service bookletof Greaves ‘D” service engine. A6(a) : Warranty and Service log book of Greaves De series engines. A7 : Photocopy of the letter dated 08.07.2008 sent by the Electrical Inspector, Electrical Inspectorate, Pathanamthitta to M/s. Electric Power Services(P) Ltd., Kochi-16. A8 : Letter dated 04.08.2008 issued by the second opposite party to the complainant. A9 : Photocopy of the letter dated 20.10.2008 from the first opposite party to the complainant. A10 : Letter dated 25.10.2008 sent by the second opposite party to the complainant. A11 : Service report of Unique Diesels Pvt. Ltd. dated 28.10.2008. A12 : Copy of order in WPC. No.30669/2008(A) of Hon’ble High Court of Kerala dated 28.11.2008. A13 : Service report of Unique Diesels Pvt. Ltd. dated 16.07.2008. A13(a): Delivery chalan receipt dated 16.07.2008 of the second opposite party. A14 : Service report of Unique Diesels Pvt. Ltd. dated 18.02.2008. A14(a): Delivery chalan dated 17.07.2008 of Unique Diesels Pvt. Ltd. A15 : Delivery chalan dated 23.07.2008 of Unique Diesels Pvt. Ltd. A16 : Service report of Unique Diesels Pvt. Ltd. dated 09.08.2008. A17 : Service report of Unique Diesels Pvt. Ltd. dated 04.02.2009 A17(a): Delivery chalan dated 04.02.2009 of Unique Diesels Pvt. Ltd. A18 : Delivery chalan dated 21.02.2009 of Unique Diesels Pvt. Ltd. A19 : Photocopy of the letter dated 18.03.2009 issued by the complainant to the third opposite party. A20 : Service report of Unique Diesels Pvt. Ltd. dated 23.03.2009 A21 : Service report of Unique Diesels Pvt. Ltd. dated 09.05.2009. A22 : Service report of Unique Diesels Pvt. Ltd. dated 25.05.2009 A22(a): Delivery chalan dated 25.05.2009 of Unique Diesels Pvt. Ltd. A23 : Service report of Unique Diesels Pvt. Ltd. dated 07.06.2009. A24 : } A24(a): } A24(b): } Photographs. A24(c): } A24(c): } A25 : Cash bill dated 11.06.2009 for Rs.22,400/- issued by Bose Sounds & Electricals, College Junction, Kozhencherry to the complainant. A25(a): Cash bill dated 18.06.2009 for Rs. 21,300/- issued by Krishna Power Generators, A.N. Puram, Alappuzha to the complainant. A25(b): Cash bill dated 29.06.2009 for Rs.20,000/- issued by J.P. Enterprises, Thiruvalla to the complainant. A25(c): Cash bill dated nil for Rs.24,000/- issued by J.P. Enterprises, Thiruvalla to the complainant. A25(d): Cash bill dated 25.07.2009 for Rs.28,000/- issued by J.P. Enterprises, Thiruvalla to the complainant. A25(e): Cash bill dated nil for Rs.42,000/- issued by J.P. Enterprises, Thiruvalla to the complainant. A26 : Telegram postal receipt dated 09.06.2009. Witness examined on the side of the opposite parties: DW1 : Manu. S. DW2 : James. M.T. Exhibits marked on the side of the opposite parties: B1 : Carbon copy of the service report of Unique Diesels Pvt. Ltd dated 23.07.2008. B2 : Carbon copy of the service report of Unique Diesels Pvt. Ltd dated 18.11.2008. B3 : Carbon copy of the service report of Unique Diesels Pvt. Ltd dated 31.08.2008. B4 : True copy of letter dated 31.08.2007 sent by the first opposite party to SBI Factors & Commercial Services (P) Ltd., Chennai. B5 : True copy of Tax invoice dated 13.04.2007 of third opposite party. B6 : True copy of Debit Note dated 09.07.2008 of first opposite party. B7 : True copy of service report dated 13.06.2008 of Jodeson Engineering Sales and Service, Ernakulam, Kochi. B8 : True copy of Tax invoice dated 14.06.2008 of first opposite party. B9 : True copy of letter dated 19.06.2008 sent by the first opposite party to the second opposite party. B10 : True copy of the letter dt. 27.05.2008 issued to the complainant. B11 : True copy of letter dated 13.06.2008 issued by ING Vysya Bank Ltd., Pathanamthitta to the first opposite party. B12 : True copy of Engine Certificate (for generating set application) dated 13.04.2007 of Diesel Engines Unit of Greaves, Pune. B13 : True copy of certificate of Greaves Cotton Ltd. issued to the first opposite party. B14 : Brochure of Greaves DL4 series diesel engines. B15 : Brochure of Greaves series engines 25KVA to 100KVA. (By Order) Senior Superintendent. Copy to:- (1) Baburajan. P.M., Managing Director, Hotel Bezota International, Thiruvalla. (2) M.T. James, Director, Deev Gen-set (P) Ltd., Industrial Development Area, South Vazhakkulam P.O., Keenpuram, Aluva, Pin – 683 105. (3) Manu Sreenivasan, Unique Diesels Pvt. Ltd., Managing Director, Authorised Dealer, (Greaves Cotton Ltd.,), 41/1789, Sitaram Complex, Opp. Sudheendra Medical Mission Hospital, Kacherrypady, Chittoor Road, Kochi – 18. (4) M/s. Greaves Cotton Ltd., Manufactures of Diesel Generating Sets, A/212-213, Udyog Vihar Industrial Estate, Vithalvadi, Thane – 421 003, Maharashtra. (5) The Stock File.
| | HONORABLE LathikaBhai, Member | HONORABLE Jacob Stephen, PRESIDENT | HONORABLE N.PremKumar, Member | | 
