DISTRICT CONSUMER DISPUTES REDRESSAL FORUM  PALAKKAD

Dated this the 28^h day of March 2018

Present   : Smt.Shiny.P.R. President

              : Smt.Suma.K.P. Member                                         Date of filing:  28/02/2017

              : Sri.V.P.Anantha Narayanan, Member

(C.C.No.42/2017)

Ramani Sreedharan,

W/o Late Sreedharan,                                                          -        Complainant

Vettikattu House,

Surya Nagar,

Amakulam,

Vadakkanchery.

(By.Adv.Raveendran.V)

 V/s

1. The Manager,                                                      -        Opposite parties

    Escorts Limited,

    Plot No.219, Sector 58,

    Ballabquarb – 121 004,

    Faridhabad, Haryana (India),

    Reg.Office, SCO 232, 1^st Floor,

    Sector 20, Punchkula, - 134 109,

    Haryana (India).

2.  The Manager,

     TVS Sundaram Iyengar Sons Ltd,

     New Jawaharlal Nehru Stadium,

     Kochi.

    (By Adv.V.Krishna Menon & B.Sulfikar Ali)

3.  The Manager,

     Reliance Commercial Finance

     Reliance Capital Ltd, Reliance House,

     4^th Floor, No.5, Haddows Road,

    Nungambakkum, Chennai – 600 006.

    (By.Adv.AV.Arun)

4.  The Manager,

     Reliance Insurance Company,

     Kochi.

    (By Adv.Ullas Sudhakaran)

O R D E R

Smt.Suma.K.P, Member

          The complainant is an agriculturist and is having some rubber plantation, areck-nut plantation etc.  To do with the agricultural operation and for other the complainant own agricultural operation he had purchased an Escorts Digmas Bacho Loader JCB on 05.03.2015.  The income generated by use of the vehicle is the sole livelihood of the complainant.

          The 1^st opposite party is the manufacturer of JCB and the 2^nd opposite party is the dealer from which the complainant had purchased the vehicle.  The 3^rd opposite party was the financier of the JCB.  The vehicle was insured during 24.02.2015 to 23.02.2016 with the 4^th opposite party.  The vehicle was purchase by the complainant for agricultural operation and to do other works with a driver.  Complainant was properly servicing the vehicle and was driven by efficient driver with valid licence.  After purchase while the vehicle was doing work with agricultural operation within one month, Hydrolic Silver Colour pipe was damaged.  Even though the complainant intimated the matter in time it was replaced only after two month.  The vehicle was stationery and was idle and the complainant sustained loss of two months.  After replacing the Hydrolic silver colour pipe, front wheel bearing was damaged.  That was also intimated by the complainant in time.  But the 2^nd opposite party replaced the bearing only after 2 months.  The vehicle was stationery during that period for another two months.  Later the teeth of JCB were damaged which was also intimated by the complainant in time.  But the 2^nd opposite party replaced the teeth only after one month.  There also the vehicle was stationery and the complainant sustained loss.  The complainant alleges that it is only due to the deficiency in service the vehicle was stationery.  All the defects of the JCB is due to manufacturing defect.  The vehicle was insured with the 4^th opposite party and is having a valid driving licence to drive the JCB.  He further submits that because of the deficiency in service and manufacturing defect the vehicle was stationery for six months.  The vehicle was in running condition only for 1460 hours during last year.  It happened only due to the deficiency in service and manufacturing defect of 1^st and 2^nd opposite party.  The complainant is living out of the income derived from the JCB and she sustained damages of Rs.5 lakhs due to the deficiency of service and manufacturing defect of the 1^st and 2^nd opposite party.  The 3^rd opposite party is the financier of the JCB.  Since the vehicle was idle due to the manufacturing defect the complainant could not earn any amount.  As it was not operated.  Even though the complainant intimated the matters to the opposite parties in time, they fail to replace a new JCB or rectify the manufacturing defect.  The 3^rd opposite party threatened the complainant to surrender the vehicle and the vehicle was forcefully taken away by the 3^rd opposite party.  The complainant submits that she had sustained a loss of Rs.5 lakhs.  The complainant caused a lawyer notice to the opposite parties for which only 1^st and 2^nd opposite party accepted the notice.  Other opposite parties did not accept the notice.  1^st and 2^nd opposite party did not even reply to the lawyer notice issued by the complainant.  Hence the complainant had approached before the Forum seeking  direction to pay Rs.5 lakh as compensation for the deficiency of service on the part of the opposite parties.

          Notice was issued to the opposite parties for appearance.  1^st opposite party entered appearance through counsel but did not file any version.  Opposite parties 2 to 4 entered appearance and filed their respective versions. 

2^nd opposite party contended that all the allegations and averments alleged in the complaint are false and is not maintainable either in law or on facts.  They contended that it is reliably understood that the various plantations referred to by the complainant are owned by a partnership firm of which the complainant as well as one Shri.Saju George are partners.  Thus the complainant cannot by any stretch of imagination be said to be a consumer as defined under the act. 

There is no deficiency of service or unfair trade practice on the part of the 2^nd opposite party.  It is submitted that whenever the complainant/her operator had informed the 2^nd opposite party of any alleged complaint in the loader, the 2^nd opposite party had deputed its service personal to the site for inspection of the loader and doing the needful.  On each such occasion the service personal had rectified such of those complaints noticed, within the shortest period of time.  It is further stated that during the period of warranty for the loader, which is 2000 hours or one year from the date of installation whichever is earlier, the complainant had been given the benefit of the warranty and had been charged only for consumables and wear and tear expense items which she was liable to pay in terms of the conditions of warranty.  It is also submitted that after the expiration of the warranty on 04.03.2016 whenever the complainant/operator had requested the 2^nd opposite party to inspect the machine on the ground of certain alleged complaint, the service personal of the 2^nd opposite party had inspected the loader and done the needful within the shortest period of time.  Though after the expiration of the warranty the complainant was liable to meet the expenses for the repairs done, she had been given credit facility on various occasions and as on date an amount of Rs.24,940/- is outstanding from the complainant.  Inspite of repeated request made over the telephone and in person the complainant has not paid the outstanding amount due from her to the 2^nd opposite party.  The facts stated in paras 5 to 7 of the complaint are misconceived, without merit and raised with intension of misleading the Forum.  There has been no defect much less any manufacturing defect in the loader purchased by the complainant.  For the same reason the 2^nd opposite party is in no way liable or responsible to compensate the complainant.  She has made the said claim without any bonafides and with ulterior motives.  Hence the complaint had to be dismissed. 

The 3^rd opposite party also filed version stating that complaint itself is not maintainable and the complaint had approached before the Forum with unclean hands and suppression of material facts.  The complaint is filed on an experimental basis and is having no grievances to be redressed.  Admittedly the complainant is an agriculturist and is doing commercial activity and is a fleet owner, as such he cannot be termed as a consumer within the definition of a consumer as defined under the Consumer Protection Act.  The averment that the income generated by use of the vehicle is the sole livelihood of the complainant is not correct.  The said JCB was under the hypothecation of the 3^rd opposite party is true.  The repayment of the vehicle loan had nothing to do with the condition of the vehicle as the same was purchased at the will and pleasure of the complainant herself, in which the 3^rd opposite party is having no roll at all.  The 3^rd opposite party not the necessary party and are being dragged to the Forum only to circumvent the legal process which is likely to be initiated against the complainant for her willful and chronic default in contravention to the agreement executed by her in favour of the 3^rd opposite party.  Hence the complaint had to be dismissed as against the 3^rd opposite party with compensatory cost.

The 4^th opposite party also filed their version admitting the fact that the complainant was issued a policy for a machinery Escorts Digmas Bacho Loader JCB for a period from 24.02.2015 to 23.02.2016 and the said policy is termed as contractors plant and machinery insurance.  The said policy is not a vehicle policy and does not cover the loss if any sustain to the complainant due to any manufacturing defect.  As per clause (p) under the head exceptions mentioned in the policy conditions attached to the said policy, loss or damage, for which the supplier or manufacturer is responsible either by law or under contract, the insurer, ie the 4^th opposite party is not liable to indemnify the insured, ie the complainant.  Allegations regarding the loss sustained by the complainant due to the alleged manufacturing defect, even if proved by the complainant does not fasten liability on the 4^th opposite party, as it is the manufacturer and the supplier, ie the 2^nd and 3^rd opposite party, who would be liable to indemnify the complainant as per law and also as per warranty normally issued by the manufacturer of the machinery issued to the buyer.  The complainant has no cause of action against the 4^th opposite party and is not legally and factually entitled for any of the relief claimed by him against the 4^th opposite party.  The 4^th opposite party is unnecessarily dragged before this Forum.  Hence the complaint against the 4^th opposite party had to be dismissed. 

Complainant filed chief affidavit.  Opposite parties 2 to 4 also filed their respective chief affidavit.  Complainant filed questionnaire to the opposite parties.  4^th opposite party alone filed answers to the questionnaire filed by the complainant.   Exts.A1 to A5 was marked from the side of the complainant.  Ext.B1 was marked from the side of the opposite parties.  Evidence was closed and the matter was heard. 

The following issues that arise for consideration are.

1. Whether there is any manufacturing defect to the JCB as alleged in the complaint?
2. Whether there is any deficiency of service from the part of opposite parties?
3. If so, what are the relief and cost?

Issues No.1, 2 & 3

          We have perused the Exhibits as well as affidavit filed before the Forum.  2^nd opposite party who is the dealer of the JCB has stated in the version that the complainant had informed about the complaint in the loader, this opposite party had deputed its service personal to the site for inspection of the loader and doing the needful.  On each such occasion the service personal had rectify such of those complaints noticed, within the shortest period of time.  This is a clear admission on the part of the dealer that the alleged JCB had complaints even before the expiry of warranty.  The warranty provided was either 2000 hours or one year from the date of installation whichever is earlier.  The complainant submits that the vehicle was in running condition only for a period of 1460 hours only.  Hence it can be inferred that the alleged JCB suffers from manufacturing defect.  Unfortunately the vehicle was seized by the 3^rd opposite party and the alleged manufacturing defect cannot be proved before the Forum by any sort of expert evidence.  In the above circumstances, complaint is partly allowed and we direct the opposite parties 1 & 2 jointly and severally  to pay Rs.5,000/- (Rupees five thousand only) as compensation for the mental agony suffered by the complainant due to the defects caused to the JCB.  3^rd and 4^th opposite parties are exonerated from the liability.  Considering the fact of the above case the parties shall bear their respective cost.  The complaint against 3^rd & 4^th opposite party stands dismissed. 

This order shall be executed within one month from the date of receipt of this order; failing which the complainant is entitled to realize 9% interest p.a from the opposite party on the total amount due to him from the date of this order till realization. 

Pronounced in the open court on this the 28^th day of March 2018.

     Sd/-

                  Shiny.P.R

                   President 

                        Sd/-       

                   Suma.K.P

                    Member

      Sd/-

    V.P.Anantha Narayanan

                    Member

Appendix

Exhibits marked on the side of complainant

Ext.A1          -  Photo copy of RC Book No.KL-49-G-946

Ext.A2          -  Photo copy of Contractors plant and Machinery Insurance Policy Schedule

Ext.A3 (a)  - copy of lawyer notice dated.11.04.2016 sent by the complainant’s

                  advocate to 1^st, 2^nd & 3^rd opposite party

Ext.A3 (b)     -  Original Postal Receipt

Ext.A4 (a)     -  Return of lawyer notice original with cover sent by the 4^th opposite

                      party

Ext.A4 (b)     -  Acknowledgement not signed by the 4^th opposite party

Ext.A5          -  Original Notice dated.03.08.2016 sent by the 3^rd opposite party to the

              complainant

Exhibits marked on the side of opposite parties

Ext.B1 -  Attested Policy Copy and conditions of the policy

Witness examined on the side of complainant

Nil

Witness examined on the side of opposite party

Nil

Cost