Telangana

Khammam

CC/107/06

Mekala Srinivasa Rao, Yellandu - Complainant(s)

Versus

M/S.Anukamp Engineers Pvt Ltd, Khammam and Four Others - Opp.Party(s)

Sri.M .L Narayana

29 May 2017

ORDER

DISTRICT CONSUMER FORUM
OPPOSITE CSI CHURCH
VARADAIAH NAGAR
KHAMMAM 507 002
TELANGANA STATE
 
Complaint Case No. CC/107/06
 
1. Mekala Srinivasa Rao, Yellandu
H.No.5-10-102, Civil Lane, Yellandu, Khammam Dist
...........Complainant(s)
Versus
1. M/S.Anukamp Engineers Pvt Ltd, Khammam and Four Others
D.No.9-3-119/A, Old club Road, Khammam
............Opp.Party(s)
 
BEFORE: 
 HON'BLE MR. R. Kiran Kumar PRESIDING MEMBER
 HON'BLE MRS. Smt.V.Vijaya Rekha MEMBER
 
For the Complainant:
For the Opp. Party:
Dated : 29 May 2017
Final Order / Judgement

This C.C is coming on before us for hearing in the presence of       Sri. M.L. Narayana, Advocate for complainant; and of Sri. T.V.Laxman Rao and Sri. V. Narendra Swaroop, Advocates for opposite party No.1; and of Sri. Y. Koteswara Rao, Advocate for opposite party No.2; and of Sri. M. Ramanadham, and of Sri. K. Jagan Mohan Rao, Advocates for opposite party No.3; and of Sri. Ravindra Sharma, Advocate for opposite parties No.4&5; upon perusing the material papers on record; upon hearing and having stood over for consideration, this Forum passed the following:-

 

 

O R D E R

(Per Sri R. Kiran Kumar, FAC President)

 

          This complaint is filed u/s.12-A of Consumer Protection Act, 1986. 

 

2.         The averments made in the complaint are that the complainant is an un-employee and to get his livelihood, he opted to purchase a Excavator Loader Back Hoes Terex TX 760 Machine, to maintain his family, the complainant submitted that the opposite party No.1 is the agent of the Machine, opposite party No.2 is the manufacturer of the engine, which is existed in the excavator, opposite party No.3 is the dealer of opposite party No.2, opposite party No.4 is the sole distributor of opposite No.5 situated at Hyderabad and opposite party No.5 is the manufacturer of the external body and other parts of the excavator.  The complainant further submitted that he purchased the excavator through opposite party No.1 on 10-10-2005 vide serial No.TVEPL/AP/T-55 for a sum of Rs.18,52,113/- by borrowing huge amounts from the financiers, spent his entire capital to earn his livelihood from the Machine and employed 4 persons for running the same and Invoice for the Excavator was raised by the opposite party No.4.  The complainant further submitted that he experienced severe manufacturing defects from November 2005 onwards and the same was informed to opposite party No.1, on that opposite party no.1 used to send services engineers for repairing the said Machine within 2 or 3 days, even after rectification by the service engineers the machine used to work for only few hours and subsequently the problems are persisting thereby the Machine has become defunct.  The complainant further submitted that the problems of the Machine were continued till 14-05-2006 and he informed the same to the opposite party No.4, who in turn advised the complainant to contact opposite party No.3, thereby the opposite party No.3 had sent the service engineers for rectifying the problems and after thorough inspections, they informed that the Engine failed.  The complainant further submitted that upon receiving service report from the Service Engineer on 17-05-2006 regarding the failure of Engine, the Service Engineer stated that they would inform the same to the opposite party No.3, with a recommendation to change the Engine.  The complainant also informed the same to the opposite party No.3.  The complainant further submitted that accordingly, on the next day the valve block failed and new one is to be replaced, but machine is stand still without functioning.  The complainant further submitted that vexed with the unsatisfactory services during the period of warranty, he got issued legal notice to the opposite parties on 13-04-2006.  The opposite parties assured the complainant that they will give full satisfactory service through their agents, but they failed to keep up their promise.  On 30-05-2006, the complainant issued legal notice stating his difficulty and hardship and also the condition of the Excavator and requested either to return the money or change the total Machine.  As the opposite parties failed to replace the Machine, the complainant approached the Forum.  

 

3.         On behalf of the complainant, the following documents were filed and marked as Exhibits A-1 to A-14.

 

Ex.A1:-Certificate of Registration, vide registration No.AP-20-N-3061, dt.05-01-2006.              

 

Ex.A2:-Photocopy of Delivery Challan cum Invoice of the Machine for Rs.18,52,113/-.

 

Ex.A3:-Photocopy of Sale Certificate Dt.10-10-2005.

 

Ex.A4:-Photocopy of Certificate of Fitness, dt.10-10-2005.

 

Ex.A5:-Photocopy of letter addressed by the opposite party No.5.

 

Ex.A6:-Office copy of legal notice dt.13-04-2006.

 

Ex.A7:-Postal Receipts (No.3) and Acknowledgements (No.2).

 

Ex.A8:-Office copy of another legal notice, dt.30-05-2006.

 

Ex.A9:-Postal Receipts (No.4), Courier Receipt and acknowledgments (No.4), dt.30-05-2006.

 

Ex.A10:-Carbon copy of After Care Terex/Vectra Service Reports from     14-03-2006 to 23-06-2006 (Nos.26).

 

 

          Complainant filed IA.No.70/2015 praying this Forum to accord leave to the petitioner / complainant to file the documents and the same was allowed on 30-09-2015. 

 

Ex.A11:-Bank Receipts issued by Magma Leasing Limited from 16-11-2005 to 30-011-2006 (Nos.11).

 

Ex.A12:-Possession taken letter dt. 14-05-2007 issued by Magma Leasing Limited.

 

Ex.A13:-Photocopy of Proceedings of the E.E. P. Raj, Kothagudem No.To/REG/2003-04, dt.30-01-2004

 

Ex.A14:-Letter addressed to the complainant regarding settlement of the loan account for vehicle TX-750, Regn.No.AP-20-N-3061, by Magma Finance Corporation Limited, dt.22-01-2015.

 

 

4.         On receipt of notice, the opposite party No.1 filed counter.   In their counter the opposite party No.1 denied the averments made by the complainant in his complaint that the complainant is an unemployed person and had opted to purchase Excavator Loader to get his livelihood and employment and to maintain his family and opposite party No.1 is not the agent of opposite party No.5 for its sale of Excavator Loader Modal TX-760.  The opposite party No.1 further denied the averments made by the complainant that the complainant purchased the equipment through opposite party No.1, which is evident from the delivery challan cum invoice filed by the complainant as issued by the opposite party No.4, wherein, there is no mention of opposite party No.1.  The opposite party No.1 further submitted that the complainant never informed on his own to opposite party No.1 about any such defects persisted and claimed to be the manufacturing defect.  And also submitted that the complainant is not technically capable to understand, handle and manage the subject equipment which is embedded with sophisticated and advanced technology.  The opposite party No.1 further submitted that during the course of valid period, they made about 45 periodical visits for servicing the equipment and as per the service reports it is clear that no serious problem ever existed with the post sale service rendered by opposite party No.1.  And also at the instance of opposite party No.4 and 5 and keeping in view the object of Market promotion, they replaced several items free of cost and whose cost is to be borne by the complainant actually.  The opposite party No.1 further submitted that the allegation made by the complainant that the Machine is defunct for long period on several occasions is nothing but false as vindicated by the service reports bearing the signed endorsement of the complainant.  The opposite party No.1 further submitted that the complainant purchased the Excavator Loader TX-760 and took delivery from opposite party no.5 through opposite party No.4 at Hyderabad while conceding himself the jurisdiction for disputes having been vested with the courts at Noida, UP, no cause of action can arise at a place where the Machine reportedly showed technical problems because the Machine is liable to be engaged in the out fields at various works – sites / project sites in different places, hence the Forum, Khammam has no territorial and monitory jurisdiction to deal with the complaint and prayed to dismiss the complaint.

 

5.      To support their case, the opposite party No.1 filed the following documents which are marked as Exhibit B-1 and B-2.

Ex.B-1:-Complainants undertaking after delivery of equipment and warranty certificate dt.10-10-2005.

 

Ex.B-2:-Photocopy of Inspection Checklists (Nos.5) and Service Reports (Nos.41) from 14-10-2005 to 07-10-2006.

 

6.      The opposite parties No.2&3 denied the averments made by the complainant in the complaint that the complainant is experiencing manufacturing defects from November 2005 onwards and they are not aware of complaints alleged to have been made by the complainant to opposite party No.1.  The opposite parties No.2 & 3 further submitted that regarding failure of Machine, they received complaint  on 15-05-2006 and their personnel have attended the Machine on 17-05-2006 and by that time the Machine was run upto 1832 hours, which is fag end of warranty period (warranty period covers up to 2000 hours).  The opposite parties No.2&3 further submitted that the complaint is regarding to the Engine overheating and abnormal sound in the Engine and their Service Engineers have decided to replace the Engine upon the insistence of the complainant, though, same could have been rectified without replacement of Engine, so as to give satisfaction to the customer i.e. the complainant.  The opposite party No.3 denied that they had assured the complainant to replace the Engine within 2 days.  And the opposite party No.3 submitted that they have taken time of 9 days for replacement of Engine, as the Engine has to come from the manufacturing company by road transportation.  The opposite parties No.2&3 denied that there are unsatisfactory services during the period of warranty.  The opposite parties No.2&3 further submitted that, infact the complainant from the beginning indulging in coercive method, to get the work done as per his choice, inspite of opposite parties promptly attending to the complaints brought to their notice.  The opposite parties further submitted that their Service Engineers inspected the Machine on 24-07-2006 which is subsequent to filing of this complaint and from the Service Report, the complainant did not mention any problem in the Engine on that day of inspection, which clearly shows that the Engine was in perfect condition.  The opposite parties No2&3 further submitted that the complainant is not maintaining the vehicle as per the instructions given in the manual and violated the terms and conditions of warranty, the complainant is strictly not eligible to claim benefits of warranty in view of violations of terms and conditions, they fairly acceded to the demands of the complainant by replacing with new parts in order to maintain the reputation of manufacturing companies.  The opposite parties No.2&3 further submitted that as seen from the recitals of legal notices dt.13-04-2006 and 30-05-2006 issued by the complainant to opposite parties No.1,4&5 it is stated that his customers are in hurry to complete the work, which means the complainant is not running for his own use but running for hire means he is using it for commercial purpose, as such he cannot come under the definition of consumer, this complaint does not fall within the jurisdiction of the Hon’ble Forum and the complaint is liable to be dismissed on that ground alone.   The opposite parties No.2&3 further submitted that the Hon’ble Forum is not even having territorial jurisdiction to entertain present complaint, as the cause of action arose where the vehicle was purchased i.e. at Hyderabad and further both the parties have agreed that any claim or obligation in connection with the sale of Terex Vectra products shall be subject to jurisdiction of courts in Noida, Uttar Pradesh only, hence the complainant is liable to be dismissed,  for the above reasons the opposite parties prayed to dismiss the complaint with exemplary costs.             

 

7.      The opposite parties No.4 & 5 in their counter, denied all the averments and allegations made by the complainant in his complaint.  The opposite parties No.4&5 submitted that, the opposite party No.1 is the Service Provider and Seller of parts of Terex Machines and Invoice of complainant is raised by the opposite party No.4 from Hyderabad branch.  The opposite parties No.4&5 submitted that the opposite parties No.2&3 supplies Engines of their make to the Excavator manufactured by the opposite party No.4&5.  The opposite parties No.4&5 denied the averments made by the complainant in his complaint that the complainant is experiencing manufacturing defects from November 2005 onwards.  The opposite parties No.4&5 submitted that they have received the complaint from the complainant on 25-02-2006 at hour metering reading 1250 hours regarding problem in bush clay and upon the observation of Service Engineer and found that said problem arose due to poor greasing of king post (MAST) and the same was explained  to the complainant.  They further submitted that  the complainant again complained on 20-03-2006 at hour meter reading 1525 hours regarding King Post and Service Engineers of opposite party No.4&5 have temporarily repaired by welding the Bush Area and promised to replace King Post on goodwill basis as the opposite party is not under any obligation to replace the same.  King Post was replaced at hour meter reading of 1880 hours.  The opposite parties No.4&5 further submitted that the complainant had raised complaint regarding problem in Excavator Valve Block on 29-05-2006   at hour meter reading at 1880 hours and the same was replaced on 05-06-2006.  Subsequently, the opposite parties No.4&5 have attended the Machine on 23-06-2006, 13-09-2006 and 07-10-2006 and no problem in Machine with regarding to above rectified problem which shows that Machine was in perfect condition.  The opposite parties No.4&5 submitted that the opposite parties No.2&3 attended the problems in Engine of Excavator and New Engine was replaced, the Engine is in perfect condition and no further complaint is received from the complainant regarding Engine also, even though, the complainant from the beginning indulging in coercive method, to get the work done, as per his choice.  Even after rectifying all the problems by the opposite parties, the complainant is indulging the present fictitious litigation with ill motive, in order to get the extension of warranty period, even though the Machine is working properly and there is no deficiency of service as alleged by the complainant, as such prayed to dismiss the complaint.

 

8.      Upon perusing the material available on record, this Forum passed orders on 26th day of October 2007 by observing that “this Forum is lacking pecuniary jurisdiction to entertain this matter.  Hence this issue is answered accordingly against the complainant.  The second issue also answered accordingly against the complainant, and also observed that, hence, we are of the opinion that the complainant has to approach proper Forum to entertain this matter.  Accordingly, this complaint is liable to be dismissed.  Hence this complaint is dismissed for lack of pecuniary jurisdiction”.  Being aggrieved from the order passed by this Forum, the complainant preferred appeal before the Hon’ble A.P. State Consumer Disputes Redressal Commission at Hyderabad vide FA.No.1851/2007 contending that the claim was only for Rs.9,52,760/- which is an alternative prayer for replacement of Machinery.  Upon perusing the record, the Hon’ble State Commission allowed the appeal and the order of the District Forum is set aside on 13th March 2010 and also directed this Forum “to dispose of the case on merits and in accordance with law”. 

 

To comply the above order complainant and opposite parties appeared before this Forum.  The opposite parties No.1 to 5 filed additional reply statements, Evidence Affidavit of RW-1 on behalf of opposite party No.1 and RW-2 on behalf of opposite party No.2.  Opposite party No.3 filed interrogatories for the examination of complainant.   Complainant submitted answers to the interrogatories raised by the opposite parties No.1,3 to 5 and also complainant filed evidence affidavit.

 

9.      Both parties filed written arguments.

 

10.    Complainant filed written arguments by reiterating the same averments made in the complaint.  in their written arguments complainant further submitted that in the prayer portion of the complaint, by mistake it is mentioned that the complainant may be granted relief of replacing the defective Machine and value of the same i.e. Rs.9,52,760/- instead of seeking the reliefs alternatively. And also submitted that the complainant filed petition seeking amendment of relief by deleting “and” and substitute the same with “or” and prayed to allow the complaint.

 

11.    In their oral arguments counsel for opposite party No.1 relied and submitted citations In Prakash R. Shenai V/s. Canara Bank & another 2003 (2) ALT 43 (NC) (CPA), RP No.1179 and 1180 of 2002 decided on 11-11-2002, Sterling Computer Ltd., V/s. K. Rama Kutty FA.No.204/1993 decided on 30-10-1995 by the Hon’ble National Commission in the aspect of commercial purpose and the meaning of the word ‘consumer’.  And also submitted that the case needs full dressed trial and to support their contention they relied and submitted citations; R.P. Papers Ltd., Vs. NIA Co. Ltd., NC – Op.No.235/2001, dt. 30-05-2002; Niwas Spinning Mills Ltd., Vs. Can Bank Mutual Fund and another (Op.No.256/2000 by the Hon’ble NC) decided on 11-09-2001, Doneria Iron & Steel Vs. The Chairman, UPSEB Power Corporation and others (Op.No.164/1999) by the Hon’ble National Commission and in Jaya Shree Insulations Vs. W.B.SEB (Op.No.255/1997) before the Hon’ble National Commission and prayed that the complaint has the complex issues of question of facts and law involved and this case needs full dressed trial.  And also relied on the judgment of Hon’ble National Commission in APSEB V/s. AP State Electricity Consumer Association RP.No.4/1990, decided on 20-08-1990.    

          The opposite parties No.4&5 relied and submitted citations in Maruthi Udyog Limited V/s. Susheel Kumar Gabgotra civil appeal no.3734 of 2000 decided on 29-03-2006, M/s. Jasper Industries Private Ltd., & another V/s. Matoori Naresh and others F.A.No.891 of 2012 before A.P.S.C.D.R.C, Hyderabad decided on 27-12-2013 and Laxmi Engineering Works V/s. P.S.G. Industrial Institute 1995 SCC (3) 583.

 

12.    Upon perusing the material available on record, now the points that arose for consideration are,

  1. Whether the complainant is a consumer under provisions of C.P. Act?

 

  1. Whether this Forum has got territorial and pecuniary jurisdiction to entertain this complaint?

 

  1. Whether the opposite parties have committed deficiency in service and if so;

 

  1. To what relief?

Point No.1&2:-

In this case the complainant had purchased Excavator Loader Back Hoes Terex TX-760 Machine Serial No.260 on 10-10-2005 vide serial No.TVEPL/AP/T-55 for a sum of Rs.18,52,113/- with a desire to earn his livelihood.  According to the complainant, after purchase of the Machine, he experienced severe manufacturing defects in the Machine and the same was informed to opposite party No.1 and service Engineers of opposite party No.1 attended and repaired, but the Machine used to work for only few hours and subsequently the problems are persisting thereby the Machine has become defunct.  The problems of the Machine continued till 14-05-2006 and the same was informed to opposite party No.4 and who in turn advised the complainant to contact opposite party No.3 and opposite party No.3 has sent the Service Engineers for rectifying the problems in Excavator.  The Service Engineer informed that the entire engine failed and gave a report on 17-05-2006 with a recommendation to change/replace the Machine.  According to the complainant, in his complaint, in prayer portion, by mistakenly it is mentioned that the complainant may be granted relief of replacing the defective Machine/Items and value of the same i.e. Rs.9,52,760/-, instead of seeking the reliefs alternatively, as such the prayer may be treated that the complainant is seeking the relief alternatively but not both.  According to the complainant and as per the warranty given by the opposite parties and the alleged loss caused to the complainant, it is within the warranty period and the opposite parties are bound either to replace the machine completely or to pay the value of the same.  According to opposite parties, the complainant had purchased the Excavator Machine from respondent No.4 which is situated at Hyderabad and invoice is issued at Hyderabad and the entire transaction made at Hyderabad as such this Forum has no territorial jurisdiction to entertain the complaint.  And also according to the opposite parties, they received complaint from the complainant on 15-03-2015 at hour metering reading at 1832 hours, which is fag end of warranty period, i.e. warranty period covers 2000 hours.  And also regarding problem in Engine, though the problem could have been rectified without replacement of Engine, so as to give satisfaction to the customer they replaced the Engine.  According to the opposite parties on 24-07-2006, which is subsequent to the filing of the complaint and service Report dt.24-07-2006 the complainant did not mentioned any problems in the Engine on the day of inspection, which shows that Engine was in perfect condition and they have not committed any deficiency of service as alleged by the complainant and the complainant is habituated from the beginning in coercion methods to get work done, as such they prayed to dismiss the complaint. 

 

By virtue of the law laid down by the Hon’ble Supreme Court in Laxmi Engineering works Vs. PSG Industrial Institute (1995) 3 SCC 583, the Hon’ble Apex Court considered the dictionary meaning of the word ‘commerce’ and explained what is meant by ‘commercial purpose’ by giving illustrations relevant paragraph as “A person who purchases a Lathe Machine or other Machine to operate it himself for earning his livelihood would be a consumer. (in the above illustration, if such buyer takes the assistance of one or two persons to assist / help in operating the vehicle or machinery, he does not cease to be a consumer).  As against this a person who purchases an auto rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person would not be a consumer”.  And also  In Amtrex Ambience Ltd V/s. Alpha Radios decided on 14th march 1996 and in Super Computer Centre V/s. Globiz Investment Pvt. Ltd., III (2006) CPJ 256 NC, the Hon’ble National Commission observed that “This commission has in several cases already taken the view where the allegations of the complaint was that there was malfunctioning of the Machinery / equipment during the period of warranty when the manufacturer had undertaken to keep the machinery in good working condition, even if sold for commercial purpose, the purchase will certainly be a consumer under section 2(1) (d) (ii) in respect of services rendered to be rendered by the seller for the proper functioning of the machinery/ equipment, system during the period of warranty.  The learned counsel for the opposite parties No.1 to 3 submitted that in fact, the complainant purchased the Machine for commercial purpose and he relies upon the decision of the Hon’ble National Commission in Prakash R. Shenai V/s. Canara Bank & Anr. 2003 (2) ALT 43 (NC) CPA decided on 11-11-2002.  We, however, find that the complainant in this case had purchased the Machine for his livelihood and the same was mall functioning during the period of warranty.   Therefore, we do not need to go in the question as to whether purchasing a machine would amount to availing the services of commercial purpose within the meaning of Section (2) (1) (d) of C.P. Act. or not.   

 

To answer the objection raised by the opposite parties with regard to territorial jurisdiction, even though the complainant purchased the excavator by paying money at Hyderabad, when the complainant experienced severe manufacturing defects arise in the Machine, the opposite party No.1 send their Service Engineers to the complainant for repairing defects in the Machine, which is within the territorial jurisdiction of this Forum, and also, on 17-05-2006, the Service Engineer sent by opposite party No.4, recommended the opposite party No.3 for replacement of Engine, and the same was replaced.  In Rajiv Sharma V/s. Sanjay Garg II (2017) CPJ 285 (NC), the Hon’ble National Commission observed that “place of accrual of cause of action had arisen at Bathinda. Admittedly, the machine in question was to be delivered and installed by the opposite parties at the premises of the complainant, located in Bathinda.  That being so, unless the machine was installed and made operational, it would not have been possible to test and evaluate its performance and to see whether the same was free from defect, as defined in Section 2(1) (f) of the Act.  Hence in our view, at least a part of “cause of action” did arise within the territorial jurisdiction of district Forum at Bathinda.” similarly in the present case on hand the opposite parties service engineer came down to the Machine work place of complainant and attended services several times and also replaced the engine and King Post, which is a “part of cause of action” and within the territorial jurisdiction of this Forum, as such this Forum is having territorial jurisdiction to entertain the complaint. 

 

As far as pecuniary jurisdiction of this Forum is concerned, we observed that, admittedly at the time of filing the complaint in the prayer column, the complainant mentioned the relief as “the replacement of vehicle and compensation of Rs. 9,52,760/-“  and taken the same into consideration, this Forum dismissed the complaint by observing that “this Forum has no pecuniary jurisdiction to entertain the complaint”.  On going through the record it is observed that the complainant filed IA.No.659/2007 under order 6 rule 17 of C.P.C. seeking amendment of prayer of complaint, stating that a typographical error crept in the prayer, the said IA was dismissed on 03-07-2007 for default of appearance of counsel for complainant.  The opposite parties also raised objection stating that the complainant failed to file set aside petition or revision on the above petition.   After dismissal of the complaint on the ground of pecuniary jurisdiction the complainant preferred appeal before the State Commission, Hyderabad wherein the Hon’ble State Commission observed that “the appeal is allowed and the order of the District Forum is set aside.  The District Forum is directed to dispose of the case on merits and in accordance with law.   In the circumstances, no costs.“ and the same was remanded to this Forum for fresh enquiry. And also we observed that at the time of filing of the complaint the complainant restricted his claim as “either replace the defected Excavator Loader Back Hoes Terex TX 760 Machine and to pay an amount of Rs.9,52,760/-“ and he paid Rs.400/- towards fee vide D.D.No.099229, dt. 28-06-2006, drawn on State Bank of Hyderabad which is restricted up to Rs.10,00,000/-.   From the above observations we are of the opinion that this Forum as provided in section 11 (1) of the C.P. Act, possesses the pecuniary jurisdiction to entertain this complaint, as such this point is answered accordingly in favour of the complainant.

Point No:3

 

The next question, that falls for consideration, is as to whether, the complainant is entitled to the amount of Rs.9,52,760/-, towards damages.  In this case on hand, the complainant has proved that he had made each and every problem / complaint mentioned in the job card / service card and for that the opposite parties sent their service Engineers to rectify the problem.  From the record we observed that the Machine get repairs within warranty and the opposite parties tried their level best to rectify the problem and also replaced the engine with new one.  Even though, the complainant unable to operate the Machine for his work and finally he unable to pay the monthly installments to his financier and handed over the same to the Magna Finance Corporation on 14-05-2007. 

 

Hyundai Motors Ltd., V/s. Affiliated East West Press (P) Ltd., reported in 1 (2008) CPJ 19 NC, the Hon’ble National Commission observed that “if a brand new vehicle gives trouble within few days of its purchase, the consumer would be dissatisfied.  Further in such cases the manufacturing company is not justified in protracting litigation, merely because it has the money power.  Further a person purchased the vehicle would not be satisfied if it is defective vehicle, that the defect may not be major one, but the consumer looses satisfaction of having a new vehicle.  That loss of satisfaction would be much more in a case when person buys the vehicle with his hard earned money”.

 

Already ten (10) years lapsed and this is the matter of 2006, due to financial crisis the complainant suffered physically, mentally and undergone treatment for his illness. In view of the above it is held that since the opposite parties failed to get repairs to the machine to the satisfaction of the complainant, due to which, he unable to operate the machine and handed over the same to the financier.  Thus it was a material deficiency in rendering service on the part of opposite parties.  In these circumstances, we are of the opinion that the complainant is entitled for the amount paid by him towards installments to his financier.  As such the opposite parties are liable to pay the amount of Rs.5,38,200/-, paid by the complainant to the Magma Fin corporation towards installments under exhibit A-14 (11 receipts).

Point No.4:-

          In the result, the complaint is allowed in part, directing the opposite parties No.1 to 5 to pay the amount of Rs. 5,38,200/- which is paid by the complainant to his financier Magma Fin corporation through Exhibit A-14.  The opposite parties No.1 to 5 are directed to pay the amount within one month from the date of order, failing which, the amount shall carry interest @9% per annum till its realization.       

          Typed to dictation, corrected and pronounced by us, in the open forum on this the 29th day of May, 2017.       

 

 

      FAC PRESIDENT                                 MEMBER

   DISTRICT CONSUEMR FORUM, KHAMMAM

 

APPENDIX OF EVIDENCE

 

WITNESSES EXAMINED:-

 

For Complainant:-                                                 For Opposite party:-   

       -None-                                                                       -None-

DOCUMENTS MARKED:-

 

For Complainant:-                                                           For Opposite party:-   

 

Ex.A1:-

Certificate of Registration, vide registration No.AP-20-N-3061, dt.05-01-2006.

Ex.B1:-

Complainants undertaking after delivery of equipment and warranty certificate dt.10-10-2005.

 

Ex.A2:-

Photocopy of Delivery Challan cum Invoice of the Machine for Rs.18,52,113/-.

Ex.B2:-

Photocopy of Inspection Checklists (Nos.5) and Service Reports (Nos.41) from 14-10-2005 to 07-10-2006.

Ex.A3:-

Photocopy of Sale Certificate Dt.10-10-2005.

 

 

 

Ex.A4:-

Photocopy of Certificate of Fitness, dt.10-10-2005.

 

 

 

Ex.A5:-

Photocopy of letter addressed by the opposite party No.5.

 

 

 

Ex.A6:-

Office copy of legal notice dt.13-04-2006.

 

 

 

Ex.A7:-

Postal Receipts (No.3) and Acknowledgements (No.2).

 

 

 

Ex.A8:-

Office copy of another legal notice, dt.30-05-2006.

 

 

 

Ex.A9:-

Postal Receipts (No.4), Courier Receipt and acknowledgments (No.4), dt.30-05-2006.

 

 

 

Ex.A10:-

Carbon copy of After Care Terex/Vectra Service Reports from     14-03-2006 to 23-06-2006 (Nos.26).

 

 

 

Ex.A11:-

Bank Receipts issued by Magma Leasing Limited from 16-11-2005 to       30-11-2006 (Nos.11).

 

 

 

Ex.A12:-

Possession taken letter dt. 14-05-2007 issued by Magma Leasing Limited.

 

 

 

Ex.A13:-

Photocopy of Proceedings of the E.E. P. Raj, Kothagudem No.To / REG / 2003-04, dt.30-01-2004.

 

 

 

Ex.A14:-

Letter addressed to the complainant regarding settlement of the loan account for vehicle TX-750, Regn.No.AP-20-N-3061, by Magma Finance Corporation Limited, dt.22-01-2015.

 

 

 

 

 

FAC President              Member

District Consumer Forum, Khammam.

 
 
[HON'BLE MR. R. Kiran Kumar]
PRESIDING MEMBER
 
[HON'BLE MRS. Smt.V.Vijaya Rekha]
MEMBER

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