DATE OF FILING : 5.10.2015

IN THE CONSUMER DISPUTES  REDRESSAL FORUM, IDUKKI

Dated this the   27th  day of   April,  2018

Present :

SRI. S. GOPAKUMAR PRESIDENT

SRI. BENNY. K. MEMBER

CC NO.287/2015

Between

Complainant       :   Malabar Food Court, Vengalloor.

Represented by the Proprietor,    

Abdul Latheef,S/o. Abdul Azees,

Kompanapparambil House,

Thodupuzha, Idukki.

(By Adv:  Muhammed Abbas M.I.)

And

Opposite Parties                                          :   1.  Cummins India Ltd.,

       TV/431 H, 1st Floor,

       Vincent Plaza, Thiruvamkulam,

       Hill Palace Road, Kochi – 682 301.

       Represented by 

       The  Managing Direcotr.

       (By Advs:   Asok M. Cherian

& K.M. Sanu)

  2.  Venus Power,

        Registered Office, 31/826A,

        1st Floor, F.A.C. Road,  Kochi.

        Represented by 

        The Managing Director.

  3.  Sunitha Sales and Services Pvt. Ltd.,

             Building No.XIX/172-P.B. No.20,

                                               Hill Palace Road, Kochi – 682 301. 

 

O R D E R

 

SRI. S. GOPAKUMAR, PRESIDENT

 

Case of the complainant is that,

 

On 7.9.2012, the complainant purchased a 20 KVA Radiater Panel Composite Automatic RTG generator by paying Rs.2,92,000/- from 2nd opposite party, which was manufactured by 1st opposite party, for his hotel business.  It was installed by the technician of the 1st opposite party on 15.9.2012 in the premises of the complainant and they operated it.  The 1st opposite party gave 

   (cont.….2)

-  2  -

warranty for 24 months from the date of despatch of the engine from the factory or 5000 hours of operation, whichever is earlier.  The complainant purchased it for the daily use and the technician of 3rd opposite party conducted 'A' cheque to this generator on 20.9.2012.  Immediately after that on 31.12.2012, the generator showed some complaint and it stopped.  The complainant intimated the matter forthwith to the 3rd opposite party, the after sale service agency of 1st opposite party.  But the service representative of 3rd opposite party inspected the generator set only on 8.1.2013 and found that its pulling coil is not working and rectified the defect.  But to the defect of this generator set from 31.12.2012 to 8.1.2013, the complainant happened to have a generator for that alone he  paid Rs.30000/- as rent.

 

Thereafter on 21.1.2013, the same complaint repeated and on inspection the service representative of 3rd opposite party found that the  holding coil is defective and they replaced it.  On 29.1.2013, the engine was tripped and the defect cured by the 3rd opposite party on the same day itself.  Again this engine tripping was repeated on the same day and the defect cured on the next day.  Thereafter on 31.1.2013 again the defect repeated the technician replaced the belt.  On 7.4.2013 the generator showed starting complaints and it is solved and again on 20.5.2013, starting problem repeated and again it is solved.  Due to the continuous and recurring defect of this generator from the installation itself, caused much mental agony and financial loss to the complainant. Again in the evening of 20.5.2013, the generator stopped its functioning and on inspection it is found that it is due to the wiring harness complaint and again the defect rectified.   The  complainant further contended that eventhough the generator was installed on 15.9.2012.  It failed to work continuously for a single day.  Thereafter on 24.7.2014, 3.9.2014, 4.9.2014, 9.10.2014, 21.10.2014 and 2.5.2015 the defect or non-functioning of the generator repeated each and every time the service representative of the 3rd opposite party attended the complaint and rectified it.

 

From the date of purchase, the service representative of 3rd opposite party attended complaints 15 times and rectified the defects.  This caused heavy financial loss to the complainant. The complainant further averred that, the generator which is discussed above, manufactured by 1st opposite party and sold by 2nd opposite party is having inferior in quality and the opposite parties are well aware of that.  By suppressing this fact, the opposite parties supplied it to the complainant and this act of the opposite parties  1 and 2 is gross deficiency in service and unfair trade practice.  Against this, the complainant approached the Forum and filed this complaint seeking reliefs such as to direct the opposite 

     (cont.….3)

-  3  -

parties to replace it with a new one and to direct them to pay Rs.1,50,000/- as compensation and Rs.25000/- as cost. 

 

Upon notice, opposite parties entered appearance and filed detailed reply version.  In their version, 1st opposite party contended that the DG set in question being purchased by the complainant was meant to be utilized for run the hotel business and it is for commercial activity and as per the provisions of Consumer Protection Act, this petition is not maintainable.  1st opposite party further contended that, they covers warranty upto a term of 24 months from the date of despatch of the engine from the factory or 5000 hours of operation, whichever is earlier.  Within the warranty terms, the engine have always been observed and this respondent has provided timely services through its authorised dealer, on the request of the complainant.  The DG set was supplied to the complainant in perfect working condition after being subjected to all requisite test and meeting all parameters of Global standard, including sufficient completion of A,B,C,D cheks for the subject engine and was installed in the premises to the full satisfaction of the complainant after giving full demonstration.  The alleged disruption in the functioning of the generator if any, has resulted due to careless handling of the same at the hands of the petition, subjecting the said DG set stop working since the time of its purchase.  Various field service report are self reflective of the fact that the complainant's careless usage of the said DG set to stop functioning which was treated the 1st opposite party without any cost to the petitioner during the warranty period only when the warranty was over that the petitioner has raised the old issues which was resolved to his satisfaction during the warranty period.  Opposite party further stated that complainant has not produced any document to show that whether he had hired a generator set due to the non-functioning of his own DG set and hence the prayer column of the petitioner is wholly misconceived and the complainant is liable to be dismissed with cost.

 

In the reply version, 3rd opposite party contended that, they have no connection with the manufacturer of Cummins Engine which is installed by the Venus Power.  As a service provider, their engineers have attended promptly and repaired all defects of the DG set in question.  Allegation against 3rd opposite party, regarding the non-attendence of complaint of engine dripping on 2.5.2015 was denied.  3rd opposite party added that they have deputed their service representative immediately at the client's site and noticed that MFM is not working which causes failure  parameter monitoring.  Subsequently overheating the engine which resulted its dripping.  Advised the client to replace the items failed and sent a letter to the client to purchase the items to 

     (cont.….4)

-  4  -

enable the client to replace the defaulted device with new one and solve the engine problems.  So far the complainant has not purchased the items and not responded the letter of 3rd opposite party.  Hence  no deficiency in service is caused from the part of this opposite party.  

 

Evidence adduced by the complainant by way of proof affidavit and documents.  Complainant was examined as PW1 and Exts.P1 and P2 were marked.  Ext.P1 is the invoice dated 7.9.2012 issued by the 2nd opposite party.  Ext.P2 is the field service report of 1st opposite party (14 numbers).  

 

From the defence side, one Jayarama, Area Service Manager of 1st opposite party examined as DW1 and Exts.R1 to R4 were marked.  Ext.R1 is the authorisation letter.  Ext.R2 field survey report of 1st opposite party dated 20.9.2012.  Ext.R3(series) are field survey report of 1st opposite party.

 

Heard both sides.  

 

The point that arose for consideration is whether there is any deficiency in service from the part of opposite parties and if so, for what relief the complainant is entitled to ?

 

The POINT :-   We have heard the counsels for the complainant and opposite parties.  The learned counsel for the complainant argued that immediately after the installation of generator set is malfunctioning and within a short span of 2 years, the generator showed  complaints more than 15 times and still the complaint is repeating.  The 1st and 2nd opposite parties purposely supplied an inferior quality of generator and cheated the complainant.  Due to this, the complainant had to face much financial as well as mental sufferings and the opposite parties are liable to compensate   the complainant adequately and also liable to replace the defective generator to a new one.  From the field survey report issued by the service technician of 1st opposite party, it is evident that how many times, they inspected the engine and cured its defects.  The learned counsel for the complainant further argued that he purchased the generator set for getting electricity during the time of power cut and load shedding and not in any way connected with profit making and that the defect  occurred during the warranty period and still the defect is persisting.

 

On the other hand, the learned counsel for 1st opposite party argued for the position that the complainant is not a consumer because the generator was purchased for a commercial purposes.  The learned counsel for opposite parties

     (cont.….5)

-  5  -

further stated that the alleged defect in the DG set has resulted due to the mishandling of the  engine and not due to any manufacturing defect.  

 

After having considered the entire aspects in detail, we find that the purchase of generator by the complainant is not in any way connected with the profit making as the avocation of the complainant in total business.  It is only for generating electricity during the time of non-supply by the KSEB that he has purchased the generator.  In such a circumstance, it cannot be said that the  purchase of generator has any direct link with the performance of the complainant, so as to generate any profit and in the said situation, we held that the complainant is a consumer as defined under section 2(1)d of the Consumer Protection Act.  For substantiating the points, we are relying the cited decision of Hon'ble National Commission in Larsen and Turbo Ltd. Vs. Krishnan Kumar Dharka and others I (2009) CPJ 152 (NC) and Viewtech Imaging Equipments Pvt. Ltd and another Vs. CMC Ltd and another 2008 CTJ 574 CPJ 240 (NC).  Whereas it is held that evenif machine is purchased for commercial purpose, the buyer would be a consumer.  If defects noticed during warranty period and in this case also, the defects occurred during the warranty period and the principles of the above cited decision would be squarely applicable in this matter also.

 

Regarding the defects and malfunctioning of the DG set in question, we had gone through the field survey report of the 1st opposite party which is produced by both parties.  On perusal of this document, it is obvious that within few days of the installation  of the Gen set.  In  the premises of the complainant, it showed different types of complaints.  On going through the documents, we can see that the engine was installed on 15.9.2012 and the problem started from 31.12.2012 and the 1st field service report opened on 8.1.2013.  In this report, it is stated that engine not starting solenoid replaced.  Then different types of defects repeated on 21.1.2013, 29.1.2013, 30.1.2013, 31.1.2013, 7.4.2013, 20.5.2013, 19.7.2014, 24.7.2014, 3.9.2014, 4.9.2014, 8.10.2014, 21.10.2014.  This field service report alone is more than sufficient to convince that, the engine discussed above is a defective one and from the date showing first defect onwards the complainant is suffering a lot and still it is continuing.  From the above document, we can see that the diesel generator set which is manufactured by 1st opposite party and supplied by 2nd opposite party bears inherent manufacturing defect and it caused much difficulties to the complainant.

 

As a dealer, 2nd opposite party has not appeared  before the Forum and has not field any reply version and not challenged the averements of the complainant.      (cont.….6)

-  6  -

 

As the manufacturer and dealer are parties for selling a product, the dealer cannot evade from the responsibility of the defects of the product accusing that the manufacturer has sole responsibility in production and that the dealer is only a seller of the product.  As observed by the Kerala State Consumer Disputes Redressal Commission in Pioneer Motors (Kannur) Pvt. Ltd. Vs. N. Chandran, Winspot Tailors and another (2010 CTJ 344 Vol.18 Part III).  It is found that the dealers are usually absolved from the liability in a case where the manufacturing defects are alleged.  But we are of the view that the complainant should not be left at distress by the dealer seeking shelter that the manufacturer is the person who is responsible for all the defects.

 

In the instant case, the complainant established deficiency in service and unfair trade practice against the 1st and 2nd opposite parties with clear and cogent evidence.  In the result, the complaint allowed.  1st opposite party is directed to replace the defective DG set discussed above to a new one or else 1st opposite party is directed to pay an amount of Rs.2 lakhs to the complainant being the value of the DG set along with 12% interest from 7.9.2012 till its realisation.  2nd opposite party is directed to pay Rs.1 lakh as compensation to the complainant for the sale of defective Gen set.  Both the parties are directed to comply the order within 30 days  from the date of receipt of a copy of this order, failing which the amount shall carry 12% interest per annum from the date of default, till its realisation.

 

             Pronounced in the Open Forum on this the 27th day of April, 2018

 

 

    Sd/-

SRI. S. GOPAKUMAR, PRESIDENT

 

 

     Sd/-

SRI. BENNY. K., MEMBER

 

 

 

            (cont.….7)

 

 

 

-  7  -

 

 

APPENDIX

Depositions :

On the side of the Complainant :

PW1              -   Abdul Latheef K.A.

On the side of the Opposite Party :

DW1              -  Jayaraman G.B.

Exhibits :

On the side of the Complainant :

Ext.P1            -   invoice dated 7.9.2012 issued by the 2nd opposite party.  

Ext.P2           -  field service report of 1st opposite party (14 numbers).  

On the side of the Opposite Party :

Ext.R1            -  authorisation letter.  

Ext.R2           - field survey report of 1st opposite party dated 20.9.2012.  

Ext.R3(series) - field survey report of 1st opposite party.

Ext.R4(series)   - field survey report of 1st opposite party.

 

 

 

       Forwarded by Order,

 

 

           SENIOR SUPERINTENDENT