Punjab

Ludhiana

CC/20/57

M/s Shree Luxmi Tex Fab - Complainant(s)

Versus

M/s Sunrise Power Technologies - Opp.Party(s)

Dvinder singh Grewal Adv/

05 Apr 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No: 57 dated 11.02.2020.                                                         Date of decision: 05.04.2023. 

 

M/s. Shree Luxmi Tex Fab, 2512, Street No.14, Dashmesh Nagar, Gill Road, Ludhiana, through its Proprietor Sh. Harvinder Singh Bhatia.                                                                                                                ..…Complainant

                                      Versus

M/s. Sunrise Power Technolgies 1228, Mittal Kanda Street, Industrial Area-C, G.T. Road, Dhandari, Ludhiana through its Partner/Proprietor/Authorized Signatory Harpreet Kaur.                                                                                                                                                              …..Opposite party         

Complaint Under Section 12 of the Consumer Protection Act, 1986.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant            :         Sh. Devinder Singh Grewal, Advocate

For OP                           :         Sh. G.S. Pahwa, Advocate.

 

ORDER

PER JASWINDER SINGH, MEMBER

1.                Briefly stated, the facts of the case are that the representative of the opposite party visited the complainant and allured the complainant to purchase a new silent Diesel Generating (D.G.) set upon which the complainant booked a new silent Diesel Generating (D.G.) and paid a sum of Rs.90,000/- as advance on 18.12.2017 to the opposite party. In the month of February 2018, the representative of the opposite party approached the complainant for taking more money to place an order to the manufacturer M/s. Escorts Ltd. for manufacturing and supply of the DG set and complainant paid Rs.1,00,000/- to the representative of the complainant on 13.02.2018. The complainant submitted that in the beginning of March 2018, the representative of the opposite party approached it with request to pay the balance amount of Rs.1,82,888/- as total cost of DG set was Rs.3,72,888/- and also informed the complainant that the DG set is ready with manufacturer M/s. Escorts Ltd., Faridabad, delivery of which is required to be taken. In case of the payment will be made to the manufacturer then only the delivery of the same can be taken. The complainant gave a cheque of Rs.1,82,888/- dated 09.03.2018 to the opposite party. The said DG set was installed and commissioned at the premises of the complainant on 27.04.2018. No service manual or instructions sheet for starting and stopping of the D.G. set and machinery and other necessary instructions or literature was issued to the complainant by the opposite party.

                   The complainant further submitted that on 18.04.2019, he made a complaint with the opposite party that the DG set is not starting and not working. Again the complainant issued reminder on 19.04.2019. On 20.04.2019 afternoon, the mechanic of the opposite party namely Sh. Harminder Singh attended the complaint regarding the DG set who removed the battery and took the same with him for recharging. On 22.04.2019, Sh.  Harminder Singh, Mechanic of opposite party installed the battery and started the DG set and also presented a bill which was unwarranted as the complaint made by the complainant was within the period of warranty and fault occurred due to lack of maintenance of DG set as per the service manual and maintenance was to be done by the opposite party during the warrantee period. Tarlochan Singh Bhatia is the authorized signatory of the complainant firm whose father is having long experience to work on heavy machinery. The complainant vide his letter dated 01.05.2019 suggested the opposite party that there should be some provision for recharging the battery as heavy machinery like DG set of 45 KVA/36 KW cannot be kept idle for want of battery recharge as due to nonattendance of the fault by mechanic of opposite party and breakdown of the DG set from 18.04.2019 to 22.04.2019, the complainant suffered a heavy loss regarding which the complainant lodged his claim for Rs.15,000/- from the opposite party vide his application dated 22.04.2019. The opposite party advised the complainant vide letter dated 13.05.2019 to follow the DG set manual strictly for warranty and hassle free service but it was the duty of the opposite party to do the service of the DG set in time. However, the opposite party has not supplied the service manual to the complainant with DG set. The complainant submitted that as per the letter of the opposite party, the service of DG set supplied to the complainant was to be done by the opposite party within six months or 100 hours from the date of commissioning of the DG set but the opposite party has failed to do so in time and has also failed to attend the DG set for about one year from the date of commissioning whereas it was to attend the same within six months from the date of Commissioning of DG set i.e. before November 2018.  The complainant further submitted that the warranty of DG set means every equipment used to run the DG set is under warranty and it is the responsibility of the opposite party to look after the DG set in all respects as narrated in the service manual strictly as the equipment is under warrantee as the same was commissioned on 27.04.2018. The warrantee is for two years of the whole equipment i.e. DG set and other equipment being used to run the DG set.  The complainant further submitted that on physical checking of the DG set, it found that the opposite party has installed an old DG set, manufactured in the year 2016 which is the real cause for every fault/breakdown of the DG set. The opposite party installed old DG set in place of a new one which has caused harassment and loss to the complainant and this act of the opposite party amounts to great deficiency in service and unfair trade practice on its part. The complainant issued a legal notice dated 20.12.2019 to the opposite party to which opposite party gave false and frivolous reply dated 27.12.2019. Hence this complaint whereby the complainant has sought direction to the opposite party to pay a sum of Rs.1,31,000/- on account of compensation and litigation charges to the complainant.

2.                Upon notice, the opposite party appeared and filed written statement by taking preliminary objections and assailed the complaint on the ground of maintainability of the complaint and lack of jurisdiction. The opposite party alleged that the DG set was purchased by the complainant for commercial purposes for the distributorship concern of Century Denim, Birla Centaury, House of Denim Non Denim, Cotton and Blended fabrics and does not fall within the definition of consumer as per Consumer Protection Act. The opposite party further alleged that the complainant purchased one 45 KVA silent DG set comprising with Escorts G-40-II Engine Crompton Greaves 415Volt Alternator complete with all STD. accessories vide invoice no.65 dated 11.03.2018 in his trade name for commercial purpose and the same was installed and commissioner at the premises of the complainant in April 2018. After a gap of one year, the complainant made a complaint that the DG set is not starting. The complaint was registered on 18.04.2019 and was attended on 19.04.2019 and resolved on 22.04.2019. The technician of the opposite party observed that DG set battery make Amaron was discharged due to non-operation of DG set for last three months and it was operators fault. It was informed to the complainant that discharge of battery is not being covered with warranty and product warranty is only against manufacture defect. The address of Amaron battery dealer was also provided who observed that the battery was perfectly good and the same was charged and installed at the premises of the complainant. The complainant was advised to install the static charger if his DG set is not operated for long time but he did not follow the advice and refused to pay the cost of battery charging and battery fitting raised through challan No.596 dated 20.04.2019 rather got served the notice dated 20.12.2019 on false and frivolous grounds. The opposite party also alleged that representative of the complainant Er. Tarlochan Singh Bhatia sent letters which were replied by the opposite party and also sent reminder for service and due payment of the complaint clearly stating that:-

• We had already intimated you from long time that your Dg set service is due, but still we are having no update on that
• As earlier we told that discharge of battery is not being covered in warranty purpose. Its operator fault that you had not operated the DG set for more than three months. Warranty is covered by the manufacturing company and we had sent this battery to Amaron where they check battery and its perfectly fine but discharged. We had paid the charges for discharged battery but you had not paid for it and not signed the challan.
• Person had guided you to operate the external charger is DG set is not operated for long time. But neglected from your side.
• Warranty of DG set start’s on the date of produce billed not depends manufacturing date. Some products are stored in warehouse or in showrooms so their warranty stands on the day of billing. We are not having any single complaint till date except discharge of battery which is operator fault warranty party.

The opposite party further alleged that the complainant was provided ESCORTS Engines Operator manual in which it was clearly mentioned that the warranty period is for 24 months from the date of sale to original retail customer or 3600 hours of operation whichever occurs first and the conditions were also given where the warranty does not apply and for this reason the complainant was advised to follow the instructions laid down in the operator manual but he failed. Even otherwise there is no manufacturing defect and the complainant has raised a false claim and the reason behind the same is to avoid the payment of battery charging and battery fitting which he has not paid to the opposite party despite requests.

                   On merits, the opposite party has reiterated the crux mentioned in the preliminary objections and controverted the facts made in the complaint. The opposite party alleged that separate warranty card of the battery was also given to the complainant. Since there was no manufacturing defect in the battery, it was only charged due to non operation of the DG set for long and on receiving the complaint, the same was immediately recharged and installed. There are conditions laid down in the operators manual to avail the warranty but the complainant has not followed the conditions. Moreover, no manufacturing fault was point out in any part of the DG set. A brand new DG set was supplied to the complainant. Some products are stored in the warehouse or in showrooms and their warranty starts from the date of billing. The DG sets are seasonal items and the complainant purchased the same after fully satisfying itself as he himself admits that his father is well experienced person on machinery and after thorough checking the new DG set was purchased by the complainant. The opposite party has denied any deficiency in service on its part. In the end, a prayer for dismissal of the complaint has been made.

3.                In evidence, Sh. Harvinder Singh Bhatia, Proprietor of the complainant tendered his affidavit as Ex. CA and reiterated her averments of the complaint. The complainant also placed on record documents i.e. Ex. C1 is the copy of performa invoice dated 18.12.2017, Ex. C2 is the copy of invoice No.65 dated 11.03.2018, Ex. C3 is the copy of photograph of the product, Ex. C4 is the copy of letter dated 22.04.2019 of the complainant to the opposite party, Ex. C5, Ex. C6, Ex. C7, Ex. C8, Ex. C12, Ex. C13, Ex. C15, Ex. C18, Ex. C20, Ex. C22 are the copies of postal receipts, Ex. C7 is the copy of letter dated 01.05.2019 written by the complainant to the opposite party, Ex. C10 is the copy of letter written by the opposite party to the complainant, Ex. C11 is the copy of letter dated 23.05.2019, written by the complainant to the opposite party, Ex. C14 is the copy of letter dated 01.07.2019 written by the complainant to the opposite party, Ex. C16 and Ex. C17 are the copies of letters dated 15.07.2019 written by the complainant to the opposite party, Ex. C19 is the copy of letter dated 07.08.2019 written by the complainant to the opposite party, Ex. C21 is the legal notice dated 20.12.2019, Ex. C23 is the reply to legal notice dated 27.12.2019 and closed the evidence.

5.                On the other hand, the counsel for the opposite party tendered affidavit Ex. RA of Sh. Chamkaur Singh, Partner of the opposite party along with documents i.e. Ex. R1 is the copy of legal notice dated 20.12.2019 of the complainant, Ex. R2 is the reply to legal notice dated 27.12.2019, Ex. R3 is the copy of invoice No.65 dated 11.03.2018, Ex. R4 is the letter written by the opposite party to the complainant, Ex. R5 is the copy of invoice No.596 dated 20.04.2019 and closed the evidence.

6.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written statement produced on record by both the parties.  

7.                The complainant firm entered into negotiations with representative of the opposite party on 18.12.2017 with regard to purchase of 45 KVA three phase Escorts sound proof diesel generator (hereinafter called as DG set) and performa invoice dated 18.12.2017 Ex. C1 was issued accordingly. Negotiations continued for about   3½ months and culminated on 09.03.2018 and during this period, the payments for total cost of Rs.3,72,880/- were made. On 27.04.2018, DG set was installed and commissioned at the premises of the complainant. According to ESCORTS Engine Operator manual, the warranty period of DG set was 24 months from the date of its sale to the original retail customer or 3600 hours of operation whichever is earlier. Ex. C3=Ex. R3 is the invoice dated 11.03.2018. After about a year, the complainant lodged a complaint with the opposite party on 18.04.2019 with regard to non-starting of DG set. The same was promptly attended by the technician of the opposite party on the next day and it was resolved on 22.04.2019. In fact, the battery of DG set make Amaron was discharged due to non-operation of DG set and it was re-charged which made the DG set functional.

8.                The first grievance of the complainant relates to this particular period i.e. from 18.04.2019 to 22.04.2019 and according to the complainant during these 4-5 days, he suffered loss of Rs.15,000/-. Admittedly,  there was no manufacturing defect in the DG set and the battery was not covered in the warranty. As such, there was no deficiency in service with regard to non-functioning of DG set during the period of aforesaid five days.

9.                The complainant also claims that Sh. Tarlochan Singh Bhatia, authorized signatory of the complainant firm holds an expertise with regard to working of heavy machinery but this Commission fails to understand that he could not detect this minor defect due to discharge of battery. The said authorized signatory wrote series of letters Ex. C7, Ex. C10, Ex. C11, Ex. C14, Ex. C16, Ex. C17 and Ex. C19 and raised another dispute claiming that the DG set so commissioned in the premises of complainant firm bears a manufacturing date of year 2016 and as such, an old DG set has been sold to the complainant, the warranty of which has already expired. It is categorical and justifiable stance of the opposite party that the period of warranty will take effect from the date when it was actually sold and billed and not from the date of manufacturing and the opposite party has referred to ESCORTS Engine Operator manual. Ex. R4 is the letter which was written by the opposite party to the authorized signatory of the complainant firm whereby all the grievances of the complainant were adequately redressed. Moreover, the complainant has failed to discharge his initial burden of proving deficiency in service on the part of the opposite party.

10.              In this regard, reference can be made to SGS India Ltd. Vs Dolphin International Ltd. in Civil Appeal No.5759 of 2009 decided on 06.10.2021 (LL 2021 SC 544) by the Hon’ble Supreme Court of India whereby it has been held as under:-

’19.  The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.

In the above cited case, the Hon’ble Supreme Court of India has placed reliance on its own judgment reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. whereby it has been held that the burden of proving the deficiency in service is upon the person who alleges it. “6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent.”

‘20. This Court in a Judgment reported as Indigo Airlines v. Kalpana Rani Debbarma & Ors. (LL 2021 SC 544) held the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under:-

“28. In our opinion, the approach of the Consumer Fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service.”

In the given facts and circumstances, the complainant has failed to prove the deficiency in service on the part of the opposite parties by any cogent and convincing evidence. 

11.              As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

12.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                          Member                            Member                                      President         

 

Announced in Open Commission.

Dated:05.04.2023.

Gobind Ram.

 

 

M/s. Shree Luxmi Tex Fab Vs M/s. Sunrise Power Techno.  CC/20/57

Present:       Sh. Devinder Singh Grewal, Advocate for complainant.

                   Sh. G.S. Pahwa, Advocate for OP.

 

                   Arguments heard. Vide separate detailed order of today, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                          Member                            Member                                      President         

 

Announced in Open Commission.

Dated:05.04.2023.

Gobind Ram.