CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM Present Sri. Santhosh Kesavanath P. President Smt. Bindhu M. Thomas, Member K.N. Radhakrishnan, Member CC No. 185/2007 Wednesday, 20th day, of October , 2010 Petitioner : Mr. Kabir Kurian S/o Shri. Reji Kurian, Ooppoottil House, Cathedral Road, Kottayam – 686 001 (By Adv. Abraham Markose, Adv. .Joseph Markos, Adv. Binu Mathew, Adv. George T. Thachett & Adv. Sony Sebastian) Vs. Opposite parties : 1) M/s. Regal Marine Industries Inc., 2300, Jetport Drive, Orlando, Florida 32809 United States of America reptd by its Managing Director. (By Adv. P.P Rajesh) 2) M/s. Causeway Marine India Pvt. Ltd., 7th Floor, ‘C’ Wing, Prathamesh, Sahar Road, Chakala, Andheri East, Mumbai – 400099. reptd by its Managing Director. (By Adv. E.M Joseph & Adv. Anil J Kochuparambil) 3) M/s. Volvo Penta of the Americas Inc., 1300, Volvo Penta Drive, Chesapeake, Virginia 23320, (By Adv. P.P Rajesh) 4) Volvo India Pvt. Ltd. 66/1, Bagmane Tech Park C.V Raman Nagar, Bangalore -560093 Regd. office at: Yalachahally, Tavarekera Post, Hosakote, Bangalore reptd by its Managing Director. (By Adv. P.P. Rajesh) 5) M/s. Simpson & Company Ltd., 861, Anna Salai, Chennai – 600 002 reptd by its Managing Director. (By M/s. N. Narayanan Kutty B.A LLB) 6) M/s. Indmerc Marine, 39/5940, Kurusupally Road, Ravipuram, Cochin – 682 015, reptd by its Manager. (By Adv. E.M Joseph & Adv. Anil J. Kochuparambil) O R D E R Sri. Santhosh Kesavanath P., President. Case of the petitioner filed on 20..8..2007 is as follows. Petitioner purchased a boat for his personal purpose with description “Regal” 1990 (2007), Bowrider with a 3.0 GLX Volvo Engine bearing Hull identification No. RGMBM 769 H 607 and Engine Serial No. 4012194679 from the first opposite party through 2nd and 3rd opposite party. First opposite party is the manufacturer of Regal Boats. Second opposite party is the sole dealer-cum-distributor of the boats manufactured by the first opposite party in India. 3rd opposite party is the manufacturer of Volvo engine fitted on the above boats supplied by first and second opposite party. 4th opposite party is the local office of the 3rd opposite party in India and 5th opposite party is the authorized service -3- agent of the 3rd opposite party . 6th opposite party is the representative dealer of the 2nd opposite party at Ernakulam. The purchase was covered under invoice No. S-139603 Dtd: 6..6..2006 issued by the first opposite party for total value of US $ 16,408 . According to the petitioner original engine installed, manufactured by 3rd opposite party, had inherent manufacturing defect and the same was replaced once. The new engine installed in the boat shown the same defects the previous engine have and same was ruined within a short span. Even after repeated demand of the complainants opposite party had not rectified the defects. So, the petitioner alleges deficiency in service on the part of all the opposite parties. So, petitioner prays for direction to the opposite party to refund cost of the boat and the additional amounts spent by the petitioner for putting boat in to use, amounting to Rs. 15,29,390/- with interest at the rate of 10% from 27.. 10..2006 till realization. Petitioner also prays for an amount of Rs. 2,48,800/- as expenses for running the boat. Petitioner claims Rs. 1,00,000/- as compensation and cost of the proceedings. First opposite party filed version contenting that petition is not maintainable. According to first opposite party petitioner never purchased a boat, of regal make 1900(2007) Bowrider directly, from the first opposite party. Further more, first opposite party have no business within jurisdiction of this Forum so , petition is to be dismissed inlimena. First opposite party denied allegation of manufacturing defect in the boat. According to first opposite party boat was examined by opposite party 3 and 4 and no fault has been detected -4- Petitioner has never operated the boat in proper manner as stipulated in the operators manual. Any complaint in the boat if any is due to mis handling and negligence of the complainants. Further more the complaint is aggrieved with the engine of the boat manufactured by opposite party 4 and 5. With respect to engine of the boat first opposite party is not liable. After receiving complaint from the complainant opposite party 3 and 4 as a gesture of goodwill and for providing after sale service, without any defect in the engine, replaced the old engine with a new one by the satisfaction of the complainant. The complainant never approach the first opposite party for any service and further the complainant has been offered proper service from opposite party 3 and 4 including replacement of old engine with a new engine. According to the first opposite party there is no deficiency in service on the part of the first opposite party. So, they pray for dismissal of the petition with their costs. Notice of the second opposite party served, Opposite party 2 was set ex-parte. Opposite party 3 and 4 filed joint version contenting that petition is not maintainable. According to the opposite party 3 and 4 neither they were residing rising nor have any place of business within the jurisdiction of this forum and the forum has no jurisdiction to entertain the present dispute. So , petition may be send to the concerned consumer forum for proper disposal. Petitioner has never purchased any goods or avail any service from opposite party 3 and 4. Replacement and service rendered by the opposite party 3 and 4 are at the -5- instance of opposite party 1 as a goodwill gesture. There is no privity of contract between petitioner and 3rd and 4th opposite party. The boat was commissioned on 23..10..2006 first service was conducted on 9..11..2006. Subsequently minor repair and services were conducted by opposite party 5 on 23..11..2006, 15..1..2007, 27..1..2007 and 3..2..2007. Repairs conducted by opposite party 5 were minor in repair and were a subsequence of not running the engine in appropriate climatic conditions and as per operators manual containing instructions, for running of engine. The old engine was replaced by a new engine as goodwill gesture. New engine was imported from Europe by Air fright spending huge amount and demonstrated the commitment of the opposite party. After the installation of the new engine opposite party 3 and 4 received intimation from the petitioner through 6th opposite party. That the boat is apparently having functioning problem but the opposite party will not be allowed to inspect the boat engine for functioning problems. On 13..6..2007 petitioner served a notice to opposite party 3 and 4. Thus on 25..6..2007 employees of the 4th opposite party, Opposite party 5 & 6 conducted site visit. Petitioner was represented by one Mr. Ignatious during the site visit. The self explanatory general observation is that the boat was parked in docking area full of water hyacinths and that it took 45 minutes to take the boat in to fresh water. In the process of taking boat outside the water hyacinths area the speed and clutch drive parts were strained and abused. After the site inspection it was concluded that the boat is fully functioning. After the site visit petitioner approach the Opposite party -6- 3 and 4 and orally requested for replacement of new engine with a high powered engine. Opposite parties 3 and 4 informed petitioner that demand of the petitioner is arbitrary and another replacement is not possible. Opposite party 3 and 4 contented that petitioner is using the boat and the new engine till date without any problem. On one hand petitioner is harassing the opposite parties through similar litigation to extracted money. The allegation of the petitioner is without any record or any technical evidence. Petitioner has been offered and has proper and availed service and there is no deficiency in service on their part they pray for dismissal of the petition with their costs. Opposite party 5 entered appearance and filed version contenting that the petition is not maintainable neither opposite party 5 carry on business nor has any branch office even at Kottayam District. The engine was commissioned and repairs were carried out subsequently new engine was replaced only at Cochin & Ernakulam District. Under the circumstances, cause of action wholly or in part does not arise within the local limits of Kottayam District and this forum has no territorial jurisdiction. The boat purchased by the complainant has been used for the commercial purpose in connection with the complainant’s business purpose and to entertain tourist customers. So, the petition is not maintainable. 5th opposite party has no privity of contract with the petitioner . 5th opposite party has been Volvo Engine, M/s. Volvo Penta of Sweden which is a different company. 5th opposite party is not aware of the sale transaction of the boat by the complainant. Further as per request of the 6th opposite party M/s. Indmerc -7- Marine, Cochin, who is the representative of 2nd opposite party , M/s. Causeway Marine India Pvt. Ltd., Mumbai, the 5th opposite party carried out service and attended repairs. Whenever the service engineers of the 5th opposite party attended service from the boat it was repaired properly and satisfactorily and there was no complaint what so ever. 5th opposite party admitted receipt of legal notice issued by the petitioner and they sent a reply on 17..7..2007 so 5th opposite party pray for dismissal of the petition with their costs. 6th opposite party entered appearance and filed version contenting that the petition is not maintainable. The subject matter of the petition requires detailed technical and elaborate enquiry which the Consumer Forum do not entertain as per settled legal principles. According to the 6th opposite party there is no deficiency in service on the part of the opposite party and they pray for dismissal of the petition with their costs. Evidence in this case consists of the deposition of PW1 and 2 Ext. A1 to A19 documents on the side of the petitioner Deposition of DW1 to 4 and B1 to B4 documents on the side of the opposite party. Points for determinations are: i) Whether the petition is maintainable or not? ii) Whether there is deficiency in service on the part of the opposite party? iii) Relief and costs? -8- Point No. 1 Opposite parties raised the plea of maintainability on various grounds. Opposite party No. 5 filed IA 587/08 raising the preliminary issue of territorial jurisdiction. We disposed the petition during trial stating that the question of maintainability can be considered after taking evidence. So, issue of maintainability is to be answered. Opposite party raised the question of maintainability on the following grounds they are: 1) want of territorial jurisdiction 2) there is no privity of contract between the petitioner and the opposite parties. 3) Service is availed for commercial purpose. 1) With regard to the territorial jurisdiction Section 11 (2) of Consumer Protection Act 1986 states that the complaint shall be instituted in a District Forum (a) opposite party or each of the opposite parties were there are more than one at the time of institution of complaint actually and voluntarily resides or carries on business or has a branch office or personally works for gain (b) opposite parties at the time of institution of complaints actually and voluntarily resides or carries on business ..................... (c) cause of action wholly or any part arises. According to the opposite parties they have no branch office or having business within the territorial jurisdiction of the Fora. According to the petitioner the cause of action was partly arised within the jurisdiction of the Fora so, the Fora has jurisdiction. Petitioner -9- produced the copy of the invoice Dtd: 6..6..2006 issued by the first opposite party to the petitioner same is marked as Ext. A1. Ext. A1 shows that the sale is to the complainant who resides at Kottayam. Ext. A2 is the customs bill of entry, A3 is the chalan for customs duty A 4 is the receipt for import duty charges. A5 bill is for customs dues and other charges, A6 bill is for holding charges. A18 receipt of Syndicate Bank, Kottayam and A19 is the certificate Dtd: 19..1..2009 issued from the Kottayam sale club to the effect that boat was parked there. All this document prove that the boat was delivered at Kottayam and was used and parked at Kottayam. Further more the engine defects manifested were noticed at Kottayam. Admittedly repairs and replacement were mostly attended at Kottayam. In our view cause of action is a bundle of facts which constitute the cause or reason for filing the lis or complaint. So, in our view the cause of action for the complaint arised within the territorial jurisdiction of the Kottayam Fora. 2. According to the opposite parties there is no privity of contract between the petitioner and the opposite parties. Admittedly complainant purchased the boat from opposite party 1 and 2. It is an admitted fact that the engine installed in the boat was manufactured by opposite party 3 and 4. Opposite party 3 and 4 admitted that the original engine was replaced by them with a new engine and they attended the repairs of new engine. Therefore engine being the integral part of a boat, manufacturer of an engine cannot evade from the liability on the ground that he has no privity of contract. In our view -10- opposite party 3 and 4 are bound and liable for the deficiency in service equally that of the seller. So, said contention of the opposite party will not sustained. 3. The other contention put forth by the opposite party is that the petitioner is a business man and is doing business in various fields in tourism. Opposite party has not produced any evidence to prove that the service of the opposite party was availed by the petitioner for commercial purpose. In our view on the above findings the petition is maintainable before the Forum. Point No. 2 Petitioner alleges deficiency in service on the part of the opposite party. According to the petitioner the boat was delivered at Kottayam on 27..10..2006 within few days of its delivery the boat shown various problems including numerable break down and that caused much hardship to the petitioner. ‘Deficiency’ is defined in Consumer Protection Act Section 2 (g) as any fault, imperfection, shortcoming on inadequacy in the quality, nature and manner of performance it required to be maintained by or under any law for the time being in force or has been undertaken to perform in pursuance to a contract or in relation to any service. So, in order to prove deficiency petitioner shall prove that there is some imperfection or shortcoming or inadequacy in the quality or service which is required to be maintained is not maintained. The various problems alleged by the petitioner in running the boat are engine problems. RPM meter does not go above 3,000 at full throttle, high fuel consumption, leak with the heat -11- exchange pipe non function of running pipe, carburetor defects leak in the cooling cylinder of the power steering leak in the trimpump, sudden drop in power during running and total break down etc. According to the opposite party the petitioner had not proved the defects as alleged by any documentary evidence so, it can not be accepted. Further more according to the opposite party manufacturing defects are not proved by technical experts. Opposite party also taken an alternative contention that the petitioner has not used the boat as per the operators manual. Petitioner is much relying on the proof affidavit of DW4 which the engineer of 5th opposite party who attended the boat with regard to the various complaints opposite party 5 produced Ext. B1 (a) to B1 (c) series documents. Dw4 in his proof affidavit filed before the fora stated that on 11th November 2006 service was carried out and oiling case in the trimpump was attended by DW4 from 15th December to 19th December 2006 at Cochin Yacht Club. From 17th January to 20th January 2007, Cylinder head gasket and manifold gasket were repaired and replaced. From 29..1..2007 to 3..2..2007, engine was attended at Kumarakam by DW4 along with Zonal Manager, Mr. P.K Pillay etc. etc. on that day the The valves, minor parts were replaced, again on 14th Feb. 2007 the engine shown trouble so, in the proof affidavit PW1 stated a series of troubles attended by him caused to the boat. E-mail reply dtd: 19..1..2007 issued by the first opposite party to the complainant is marked as Ext. A10. Ext. A10 reads as follows. “We regret to here the problems you have been facing with your regal and please be rest assured that we will do everything from our side to rectify the situation and the problems on the engine. We have taken up the matter at the highest level of the volvo and will have a firm reply to the complainant . We are -12- also making an investigation from the engineering department who carried out the run at the factory prior to the despatch kindly bear with us a few days and Rest assured we will be back to solve problems. Ext. A16 contain 2 E-mails one 21..6..2007 and 22..6..2007. In both this E-mails petitioner stated about his unfortune situation to the opposite parties. On 25..6..2007 the representative of the opposite parties conducted a joint inspection. Copy of the inspection report is produced as Ext. B2. According to the opposite party as per the inspection boat was in a running condition. PW1 the petitioner and the PW2 boat driver deposed before the Forum that after the inspection boat was taken for a ride during journey boat was brake-down. . The same was informed to 6th opposite party they came for another inspection and informed the petitioner that the fuse was blown out. There after there was no response from any of the opposite parties boat is lying idle and try dock safely. The said portion of the deposition was not at all challenged by any of the opposite party during cross examination. Further more in cross examination of OP 1, 3 and 4 in a way they admitted that volvo engine had some complaints. Opposite party contented that manufacturing defect are not proved by technical exports. In our view from the available evidence it can be seen that from the very beginning of the delivery of the boat the engine had many problems, which is not now even rectified. Admittedly the engine of the boat was once replaced. In spite of replacement of engine and repeated attempts of the opposite parties to repair the new engine it can be seen that the boat cannot be satisfactorily used by the petitioner for the purpose for which it is intended. In our view the consumer is not bound to pin point the precise nature of the defects or its source. It is not always necessary for the consumer -13- to give expert test money. Further more the defects on number of occasions lead us to conclusion that the boat in question has manufacturing defects. Opposite party taken alternative contention that the defects in the engine are as a result of using the same in the manner contrary to the operation manual. The contention sought to be raised by the opposite party is that the docking area of the boat is full of water hyacinths . So, use of boat in it caused problems. In our view it is only one way of putting an averments and nothing was placed on record by the opposite party to prove that the petitioner had used the boat in contrary to the operation manual. Further more the burden to prove that boat is used in contravention of the operators manual was upon the opposite party. In our view, having given a thoughtful consideration, having regard to the nature and extent of the defects. we are of the view that the boat in question suffered from manufacturing defect. In our view in such situation if the defects are not in a curable condition allowing refund of the amount given by the petitioner as cost of the boat will be most appropriate one. So, point No. 1 is found accordingly. While considering the liability of the opposite parties we find that opposite party 1 and 2 are the sellers of the boat. Opposite party 3 and 4 are manufactures of the volvo engine, which forms integral part of the boat are jointly and severely liable . As regards to opposite party 5 and 6 there is no documentary evidence to prove that they are the authorized service agent of opposite party No. 3 and 4. Point No. 3 In view of finding point No. 1 and 2 petition is allowed. In the result (a) opposite party 1 to 4 is directed to refund the cost of the boat and -14- additional amount spent by the petitioner for put the boat in to use amounting Rs. 15,29,390/-. (b) Since there is no evidence with regard to B relief sought by the petitioner that prayer is not allowed. Petitioner is also entitled for an amount of Rs. 50,000/- as compensation for the loss and sufferings and Rs. 3,000/- as cost of the proceedings. Order shall be complied with within one month of receipt of the copy of order. If the order is not complied award amount will carry 9% interest from the date of filing of the petition till realization. On complying the order opposite party 1 to 4 can take back the defective boat. Dictated by me transcribed by the Confidential Assistant corrected by me and pronounced in the Open Forum on this the 20th day of October, 2010. Sri. Santhosh Kesavanath P. President Sd/- Smt. Bindhu M. Thomas, Member Sd/- Sri. K.N Radhakrishnan, Member Sd/- APPENDIX Document for the Petitioner Ext. A1: True copy of Invoice No. S 139603 Dtd: 6..6..2006 issued by the Ist opposite party to the complainant. Ext. A2: True copy of the Bill of Entry for Home Consumption issued by the Superintendent of Customs, Indian Customs EDI System – import (ICES/1), Customs House, Tuticorin to the complainant. Ext. A3: True copy of Challan No. 10054412 Dtd: 17..10..2006 or the Indian Overseas Bank, Tuticorin, evidencing payment made towards customs import duty by the complainant. Ext. A4: True copy of letter/receipt dtd: 16..10..2006 issued by M/s. New Globe Logistik Pvt. Ltd. to the complainant evidencing payment made by the complainant towards import charges. Ext. A5: True copy of Bill DtdL 24..10..2006 for Rs. 3,61,159/- issued by M/s. Raja Agencies to the complainant. Ext. A6: True copy of Bill Dtd: 24..10..2006 for Rs. 21,895/- issued by M/s. Raja Agencies to the complainant. Ext. A7: True copy of the Marine Hull Policy No. 10303 Dtd: 12..12..2006 issued by the Oriental Insurance Company Ltd. to the complainant. -15- Ext. A8: True copy of Marine Cargo – single Voyage (inland Transit) Policy No. 413600/21/2007/776 Dtd: 19..10..2006 issued by the oriental Insurance Company Ltd. to the complainant. Ext. A9: E-mail Dtd: 18..10..2007 send by the complainant to the opposite parties Ext. A10: E-mail reply Dtd: 19..01..2007 issued by the 1st opposite party to the complainant. Ext. A11: Office copy of Legal Notice dtd: 13..6..2007 issued by the complainant’s advocates to the opposite parties by registered post with acknowledgement due. Ext. A12: Original postal receipts evidencing dispatch of Legal Notice to all the opposite parties Ext. A13: Original acknowledgement cards evidencing delivery/receipt of legal notice by the opposite parties 1,5, & 6 Ext. A14: True copy of reply to the legal notice dtd: 3..7..2007 issued by the 4th opposite party to the complainant. Ext. A15: True copy of reply to the legal notice dtd: 11..07..2007 issued by the 5th opposite party to the complainant. Ext. A16: E-mail dtd: 21..6..2007 issued by the complainant to the opposite parties along with E-mail dtd: 22..6..2007 issued by the 2nd opposite party to the complainant. Ext. A17: E-mail communications between the 6th opposite party and other opposite parties on various dates. Ext. A18: Receipt issued from Syndicate Bank Ext. A19: Certificate dtd: 19..1..2009 from Sailing club, Kottayam. Documents for the Opposite party Ext. B1: Product and application information Ext. B1(a) Invoice dtd: 15....11..2006 (b) Copy of E-mail Dtd: 20..12..2006 (c) Sun photographs. Ext. B2: Inspection Report Ext. B3: Operators Mannuel Ext. B4: Reply notice dtd: 11..7..2007 Deposition of Witness PW1: Kabir Kurian PW2: K.V Charles DW1: Laxminarayan Hegde DW2: V.G Muralidharan DW3: P.S Gopalakrishnan DW4: R. Subramoni. By Order, Senior Superintendent amp/ 9 cs.
| | [HONORABLE Bindhu M Thomas] Member[HONORABLE Santhosh Kesava Nath P] PRESIDENT[HONORABLE K.N Radhakrishnan] Member | | 
