EFORE THE PRESIDENT, DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: MEWAT AT NUH.
Consumer complaint No.14
Date of Institution: 02.11.2015
Date of Order: 16.09.2016
Aslam son of Jamshed resident of House No.16, Village Siroli, Tehsil Punhana, District Mewat.
….Complainant.
Versus
1. Managing Director, Hundai Construction Equipment India private Limited Plot No. A-2, Chokan Industial Area, Village Khalumre, Talluk Khed, District Pune-410501.
2. Regional Manager, Hundai Construction Equipment India Pvt.Ltd. B-1/E1, Rajendera House, Mathura Road, New Delhi.
…. Opposite parties.
Complaint under section 12 of Consumer Protection Act, 1986.
BEFORE Mr.Rajbir Singh Dahiya, President.
Mrs.Urmil Beniwal, Member.
Mrs.Keeran Bala, Member.
Present: Mr.Naseem Ahmad, Advocate for the complainant.
Mr.Amit Srivastava, Advocate for the opposite parties.
ORDER R.S. DAHIYA, PRESIDENT.
Briefly stated the facts of the complaint are that the complainant-Aslam purchased an equipment i.e. breaker bearing serial No.1801 model HDB-210-9 on 19.02.2014 from the opposite parties with the warranty of six months or 1000 working hours and the complainant made a payment of Rs.14,00,000/-to the opposite parties. The said vehicle purchased by the complainant for earning his livelihood and for self employment as he has no source of income. It is further alleged that
just after its purchase vehicle started many problems resulting into huge loss of his income. The complainant made many complaints to the opposite parties regarding the problems in equipment and the engineers/mechanics of the opposite parties visited his premises and got repaired the said equipment again and again but could not repaired properly. Lastly on 24.07.2014, the mechanics of the opposite parties took the said equipment in their workshop for repairing vide field service report dated 24.07.2014 with the assurance that they will install the equipment at the premises of the complainant in running and good position within 2 or 3 days. In this regard a job sheet has also been prepared vide complaint bearing No.1858 dated 17.07.2014 which was signed by Mr.Ajeet Singh Engineer of the opposite parties. The opposite parties have failed to repair or install the equipment despite many requests of the complainant. The complainant requested the opposite parties several times either to repair it perfectly or to replace the same with a new one and a legal notice was also served but no heed was paid towards his requests and flately refused to acceed his request on 10.11.2014. It is further alleged that due to this harsh attitude of the opposite parties, the complainant had suffered a loss of Rs.20,000/- per day due to the defective equipment. Further pleaded that the complainant earlier has also filed a complaint but that was dismissed as withdrawn on some technical error . That by way of this complaint, the complainant has prayed that the equipment in question may be got replaced with new one and also to pay compensation of Rs.20,000/- per day to him from the date of taking the possession of aforesaid equipment for repairing till the delivery of repaired or new equipment. Hence, this complaint.
2. On notices, the opposite parties appeared through their counsel who filed reply taking the preliminary objections that the
complainant is not the "Consumer" of the opposite parties as the vehicle was purchased for commercial purpose not for earning his livelihood.
The complainant has filed this complaint by misleading true facts with the intention to fill up the lacuna as this factum of livelihood was not disclosed in the earlier complaint. Further the dispute in question is of civil nature as it involves complicated questions of law. The complaint has been filed against the officer/employee of the company- Hyundai Construction Equipment India Pvt.Limited and not specifically against the company. It has also been submitted in preliminary objections that earlier to the present complaint, the complainant has previously filed a consumer complaint bearing No.08 of 11.11.14 before this Hon'ble Forum on similar nature wherein final arguments were filed and the matter was fixed for order/judgment on 09.10.2015 but the same was withdrawn due to technical error on dated 09.10.2015.
3. In parawise reply, the learned counsel for the opposite parties denied the facts of the complaint that the opposite party No.1 and 2 have made any offer to sell the equipment/breaker or have promised any warranty of 6 months or 1000 hours. Further alleged that the complainant has never pleaded the theory of "purchase of equipment for earning his livelihood"in his previously filed complaint but as an after-thought and under unlawful intention to fill up the lacuna, the complainant has concocoted a fresh story. Further denied that any warranty of six months or 1000 hours starting from 20.02.2014 to 19.08.2014 was given by the opposite parties of the said equipment/breaker and submitted that warranty, if given, was for six months or 1000 working hours and whichever is earlier. It is further submitted that in his previously filed complaint the complainant has stated that the petitioner has started his business by the said equipment but after few days, the said equipment has failed but in the present complaint, the complainant with an after -thought has concocted a fresh story of "defect from the day of purchase", the defect in the machine arose due to usage of non-genuine parts and delay by the complainant in performing recommended services and instructions thereby making breach of the warranty terms. In his previously filed complaint, the complainant has stated that the opposite parties took the said equipment on 25.07.2014 and job sheet signed by Mr.Dharmender Engineer and in the present complaint, the complainant has concocted a new story of "taking possession of equipment on 24.07.2014 and job sheet signed by Mr.Ajeet Singh Engineer. Further submitted that the grievances raised by the complainant through his notice which was duly replied by M/s Hundai Construction Equipment India Pvt.Ltd. and the contents of the same may be read as part and parcel to this reply. In view of the aforesaid facts and circumstances, the complainant is not entitled to any relief as prayed by him against the opposite parties and it is humbly prayed that this Hon'ble Forum may graciously be pleased to dismiss the complaint with costs.
4. To strengthen his claim, the complainant has adduced his evidence and in evidence he placed on record his affidavit which is Ex.CW1/A in which he has re-asserted the allegations levelled in his complaint. Ex.CW1/B is the Invoice/bill of equipment, Ex.CW1/C is Purchase Order Form. Ex.CW1/D Delivery Inspection Report, Ex.CW1/E to CW1/G are the Field Service Reports and also filed documents which are marked as 1 to 6.
5. To strengthen his version the opposite party has placed on record the affidavit of Mr.Manish Mendiratta,Adult, Occupation: Service, Authorised Signatory of Company- M/s Hyundai Construction Equipment India Pvt.Ltd.
6. After adducing evidence both the parties put forth their written arguments and also raised oral arguments in support of their respective contentions.
7. On the contrary, the opposite parties have placed on file order of withdrawal of a previous complaint as well as a photo copy of a report which is marked as annexure-B.
8. We have gone through the evidence, oral as well as documentary produced by both the parties alongwith their written arguments. First of all we go through the argument put forward by the complainant. The complainant has placed on file the Invoice/bill of purchase as well as inspection report of Engineers/Mechnics of the opposite parties -Company and have arrived at conclusion that there was a defect in the proper functioning of the machineries and same was not repaired to make it functional in a proper manner. The complainant has been able to bring home the defect of the machinery within the stipulated period of warranty and the machine has not been made functional till date by the opposite parties.
9. On the contrary the counsel for the opposite parties has controverted the case of the complainant on various grounds namely that case is not covered under the definition of Consumer, hence the complaint is not maintainable. Secondly, the counsel for the opposite parties has taken objection that the second complaint cannot be filed in this matter and the complainant has concocted a story and has mislead the Forum from true and correct facts and that the previous complaint was withdrawn at the time of final arguments, hence this complaint cannot proceed. Thirdly, he has objected that the issues involve technically experties opinion and case is of civil nature, as such it is the beyond purview of the Forum. Fourthly, objection has taken by the opposite parties that the complaint has not been filed against the Company, but against the employee. Fifthly, he has taken objection that the complainant had not pleaded "Purchase of the equipment for earning of the livelihood" in his previous complaint. The same has been included in the present complaint as after thought. Further, taken an objection that previously the complainant has named Dharmender engineer in his previous complaint who signed the Job-sheet but he has changed the name of the engineer in the present complaint as Ajit Singh.
10. We have perused and weighed the evidence and averments of both the parties and now shall address the objections raised by the opposite parties. Firstly, the counsel for the opposite parties has taken an objection regarding filing of this complaint which is not sustainable because the previous complaint was neither decided on merits nor was dismissed but was withdrawn with the permission of Forum with the liberty to redress his grievances before the competent court of law.
11. That the present complaint fulfill the requirements attracting the jurisdiction of this Forum as the machinery was not used for commercial purposes but for his livelihood as such the objection of the counsel for the opposite parties that the complaint does not fall within the definition of Consumer also fails. Further the objection regarding matter of civil nature and needs technical experties/opinion also fails because the engineer/machenics of the company have admitted in their job sheet that there is a technical fault in the machines and same was taken away by them. So there is complete evidence on record which is sufficient for this Forum to decide the matter in dispute. Further the objection taken by the counsel for the opposite parties that the complaint was not filed against the company belies by the conduct of the opposite parties. The company has passed a resolution dated 1.12.2015 authorising Mr.Manish Mendiratta, Regional Service Manager,North to prosecute the case of the company, as such the objection is of no use to the opposite parties. Again the objection of the opposite parties that the words "Purchase of equipment for earning of his livelihood" was not in the previous complaint. This objection of the opposite parties is not tenable as the Forum is now deciding the present complaint and not previous one. Moreover, there is no record of the previous complaint on the file. Otherwise also the previous complaint already been withdrawn and the matter is not open to consideration. Finally, the opposite party has taken objection that previously the complainant has named Dharmender as engineer on the job-sheet and now Ajit Singh as engineer. We are deciding the present complaint and after perusing Exhibits of the documents, it is amply clear that the job-sheet was prepared by Ajit Singh engineer. Moreover, this objection is of no use when there is an admission that the problem of non-functioning of the machinery was addressed by engineers/employees of the opposite parties. Hence this objection fails.
12. In view of the above facts and circumstances of the case, we are of the considered view that there is deficiency in service on the part of the opposite parties. Resultantly, the complaint is allowed directing the opposite parties to repair the defective machine of the complainant within one month from the date of receiving the copy of this order failing which the opposite parties shall supply a new machine to the complainant. The opposite parties are also directed to pay a compensation of Rs.25,000/- on account of physical harassment and losses alongwith Rs.2500/- as litigation expenses to the complainant.
Copy of this order be given to the parties free of costs. File be consigned to record room after doing needful. This order of the Forum is running into 7 pages in total and each and every page of this order has been signed.
Announced in open Court.
16.09.2016
(Urmil Beniwal) (Keeran Bala) (Rajbir Singh Dahiya)
(Member) (Member) President,
District Consumer Disputes Redressal Forum,
Mewat at Nuh
