BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Date of filing : 18/03/2010
Date of Order : 05/07/2011
Present :-
Shri. A. Rajesh, President.
Shri. Paul Gomez, Member.
Smt. C.K. Lekhamma, Member.
C.C. No. 170/2010
Between
Salam, | :: | Complainant |
Nambiyath House, Karimpuzha. P.O., Palakkad. |
| (By Adv. Tom Joseph, Court Road, Muvattupuzha, Pin - 686 661) |
And
1. M/s. Terex Vectra Equipment (P) Ltd., | :: | Opposite parties |
Plot No. 22, Udyog Vihar, Great Ornoida, Surajpur. P.O., Gautham Budh Nagar, U.P. 2. M/s. Focus Earth Movers, 34/1884 B, Padmanabha Chambers, Mamangalam, Kochi - 682 025. 3. M/s. Laxmanrao Kirloskar, Khadki, Pune - 411 003. 4. M/s. Oriental Insurance Co. Ltd., Branch Office, Ebenezar Garden, 1st Floor, Near High School Jn. Edappally, Ernakulam. |
| (Op.pty 1 absent) (Op.pty 2 by Adv. C.S. Dias, Dias Law Associates Advocates, Solicitors & Notary, Market Road, Ernakulam, Cochin - 35) (Op.pty 3 by Adv. A. Krishnan,Varma and Krishnan Advocates, Almanaar Complex, M.G. Road, Ernakulam - 18). (Op.pty 4 by Adv. K.N. Siva Sankaran, K.N. Sivasankaran & Associates Advocates, Kochi-2) |
O R D E R
A. Rajesh, President.
1. The facts of the complainant's case are as follows :
The complainant purchased a Terex Back hoe loader from the 2nd opposite party on 20-06-2007. One year warranty was provided to the machine by the 3rd opposite party the manufacturer and extended warranty was provided the 4th opposite party. During the extended warranty period, the engine of the equipment became defunct. The surveyor of the 4th opposite party inspected the engine and later the 4th opposite party rejected the extended warranty benefits. The defect of the engine has been caused due to its manufacturing defect. The complainant is entitled to get the defect rectified free of costs and to get a total sum of Rs. 2 lakhs from the opposite parties. Hence this complaint.
2. Version of 2nd opposite party :
The 2nd opposite party is an unnecessary party to the proceedings. The extended warranty has been provided by the 4th opposite party. The 2nd opposite party is ready to carry out the necessary repairs of the equipment provided the complainant meets the expenses. The 2nd opposite party requests to dismiss the complaint hence.
3. Defense of the 3rd opposite party :
The alleged defects of the engine has been caused after 3 years from the date of purchase. So the same is completely out of warranty. The 3rd opposite party is totally an unnecessary party to the proceedings. The 3rd opposite party requests to dismiss the complaint.
4. Contents of the 4th opposite party :
The 4th opposite party had entered into an MOU with the 2nd opposite party to provide extended warranty cover for the earth moving equipment. As per the MOU the original warranty provided by the manufacturer of the equipment for a period of one year or 2000 hours of operation whichever occurs first, warranty was further extended for a further period of 2 years or 4000 hours whichever occurs first. The policy is to cover loss or damage to parts arising solely due to manufacturing defects manifesting after the expiry of the warranty period granted by the manufacturer. The surveyor reported that due to starvation of engine lubricant oil the engine bearing ends and other parts were worn out and the engine has became stuck. The damage to the engine was not on account of any manufacturing defect. The 4th opposite party is not liable to pay any amount to the complainant. The complaint is liable to dismissed.
5. Despite service of notice from this Forum, the 1st opposite party did not respond for their own reasons. No oral evidence was adduced by the complainant. Exts. A1 to A4 were marked on the side of the complainant. Neither oral nor documentary evidence was adduced by the 2nd and 3rd opposite parties. Witness for the 4th opposite party was examined as DW1 and Exts. B1 to B6 were marked on their side. The expert commissioner's report was marked as Ext. C1. Heard the respective counsel.
6. The points that came up for consideration are :-
Whether the complainant is entitled to get his vehicle repaired free of costs?
Compensation and costs of the proceedings?
7. Point Nos. i. and ii. :- Admittedly, the extended warranty has been provided by the 4th opposite party for 2 years or 4000 hours after the expiry of the manufacturer's warranty period of 1 year or 2000 hours whichever occurs earlier evidenced by Ext. B3 policy. It is not in dispute that the defects of the machine have been caused during the currency period of Ext. B3 policy. It is also not in dispute that the claim of the complainant has been rejected by the 4th opposite party vide Ext. B6 letter dated 17-03-2010.
8. According to the complainant, the defects were caused due to the manufacturing defect of the vehicle. The 4th opposite party maintains that the defects have been caused due to the normal wear and tear due to non-proper maintenance of the same.
9. The expert commissioner examined the engine and submitted Ext. C1 report. In Ext. C1, he stated that he could not ascertain the reason for the engine failure since it has been produced in a completely dismantled condition.
10. The surveyor who prepared Ext. B4 was examined as DW1. The proximate cause of damage according to him in Ext. B4 is as follows :
"The wear and tier of the engine block, crank shaft and the bearings clearly indicates that the engine has run in short of engine oil. Due to starvation of engine lubricant oil the engine bearing ands and other parts worn out and the engine has struck. So the damage is due to wear & tier due to starvation of lubricant. Such damages are not covered under the warranty of the manufacturer."
The relevant clause with regard to the payment of insurance in Ext. B3 insurance policy is as follows :
"NOW THIS POLICY WITNESSETH that subject to the terms, conditions, exclusions provisions and exceptions contained herein or endorsed or otherwise expressed herein, the Company undertakes that if during the PERIOD OF INSURANCE stated in the CERTIFICATE OF INSURANCE issued under this policy any INSURED VEHICLE shall meet with a breakdown or failure of a mechanical or electrical part for a reason arising out of manufacturing defect falling outside the purview of the Manufacturer's warranty solely on account of such defect becoming manifest only after the expiry of the Manufacturer's warranty period, the Company shall indemnify the Insured against the cost of labour and parts directly incurred for the physical repair and replacement of the parts of the vehicle following such breakdown or failure of the vehicle but not exceeding the IDV or the market value of the vehicle at time of the occurrence whichever is less."
11. In the instant case, nothing is on record to show that the vehicle suffers from manufacturing defect. In the absence of any persuasive evidence, we are only to hold that the 4th opposite party is not liable to pay the insurance claim to the complainant and the repudiation of the claim is legal.
12. In the result, we have no hesitaiton to hold that the complaint is liable to be dismissed. Ordered accordingly.
Pronounced in open Forum on this the 5th day of July 2011.
