| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE PRESENT: Sri. P.C. PAULACHEN, M.Com, LLB : PRESIDENT Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER Thursday the 30th day of April 2024 CC.587/2015 Complainant K.K. Sunil Kumar, Proprietor, M/s. Sunil Trading Company, Thamarassery, Calicut - 673573 Opposite Parties - M/s. Global Spec Trading & Engineering Company,
No. 4/1016, Gandhi Road, Vellayil, Calicut Beach. P.O, Calicut – 673032 - Kirloskar Oil Engines Ltd,
Laxmanrao Kirloskar Road, Khadki, Pune – 411003 - Welcare Engineering & Services Pvt. Ltd,
1/67-A, Sabeena Complex, Kannur Road, Chungam Junction, West Hill. P.O, Calicut – 673005 ( OP2 By Adv. Sri. K.S. Vivek, OP3 By Adv. Sri. P. Rajeev) ORDER By Sri. P.C. PAULACHEN – PRESIDENT This is a complaint filed under Section 12 of the Consumer Protection Act, 1986. - On 23/04/2015 the complainant purchased a 5 KVA Kirloskar Chhota Chilly generator set from the first opposite party paying Rs. 1,56,750/-. To install the generator set in the complainant’s premises, the third opposite party took about 8 weeks and also charged Rs. 630/- towards transport charges. The generator set had been guaranteed for a trouble free service for a period of 12 months from the date of commissioning. But it was not functioning properly from the beginning. The performance was poor. It failed to deliver the minimum expected performance and a constant jittery and humming sound being emitted. The complainant would have to add oil every time he had to use it for backup power even if he had just changed the oil. Apart from that, it developed technical snags such as alternator issues, low RPM, excessive smoke, vibration, over heat, emission of thick dark smoke, constant power variation, defective oil gauge etc. and the same were repeatedly repaired on many days. But the defects could not be repaired fully by the service engineers. The third opposite party has conducted only a routine visit and inspection. The complainant has repeatedly reported all these to the inspecting service engineers of the third opposite party, but in vain. There are several inherent manufacturing defects to the genset which could not be repaired or rectified even after repeated repairs. It could be used only for 24 hours. The complainant is conducting a tiny bag making unit for his livelihood by means of self-employment. He was put to monetary loss and mental agony because of the negligent attitude of the opposite parties. Hence the complaint for refund of the purchase price of the genset with interest along with compensation of Rs. 1,00,000/- for the mental agony and inconvenience suffered and Rs. 25,000/- as the cost of the proceedings.
- The first and third opposite parties were set ex-parte. The second opposite party has resisted the complaint by filing written version.
- According to the second opposite party, there is no cause of action against them. The transaction between the complainant and the first opposite party is an independent transaction. The first opposite party is a freelancer and not an authorised sales dealer of the first opposite party. The main grievance of the complainant is against the first opposite party. On receipt of the complaint on 29/07/2015 after the warranty period, the genset was attended by the service representatives of the second opposite party and it was found that there was voltage fluctuation problem. It was further observed that load on/off MCB was getting tripped in both no load and loaded condition. Rest of the things were tested and found normal. The above issues in the functioning of the genset were mere technical issues which can be caused due to aging and normal wear and tear of the machine and can be rectified by carrying out minor repairs. The service representative advised to replace the AVR and MCB. But the complainant was not ready to replace the same on chargeable basis. There is no manufacturing defect to the genset. From the records available with the first opposite party, it is seen that the genset was attended on 13/06/2014 for the routine check-up and oil service, on 13/01/2015 for regular service, on 7/03/2015 for oil service and again on 29/07/2015 on receipt of complaint from the complainant. There was no negligence or deficiency of service on the part of the second opposite party. With the above contentions, the second opposite party prays for dismissal of the complaint.
- The points that arise for determination in this complaint are;
- Whether the genset in question is having any inherent manufacturing defect?
- Whether the prayer for refund of the price is allowable?
- Whether there was any deficiency of service on the part of the opposite parties, as alleged?
- Whether the claim for compensation is allowable? if so, what is the quantum?
- Reliefs and costs.
- Evidence consists of oral evidence of PW1 and Exts A1 and A2 on the side of the complainant. No oral evidence was let in by the contesting second opposite party. Ext B1 and B2 were marked. The report of the expert was marked as Ext C1.
- We heard both sides.
- Points 1 and 2 :- The first opposite party is the dealer from whom the complainant had purchased 5 KVA Kirloskar Chhotta Chilly Generator Set paying Rs. 1,56,750/-. The second opposite party is the manufacturer and the third opposite party is the authorised service centre. The complainant has approached this Commission seeking refund of the price and claiming compensation in view of the alleged inherent manufacturing defects in the genset purchased by him, considering the deficiency of service on the part of the opposite parties and the resultant monetary loss, mental agony and inconvenience suffered by him.
- PW1 is none other than the complainant and he has filed proof affidavit and deposed in terms of the averments in the complaint and in support of the claim. Ext A1 is the tax invoice dated 23/04/2014 issued by the first opposite party and Ext A2 is the retail invoice dated 13/06/2014 issued by the third opposite party. Ext B1 is the copy of the first free service coupon dated 5/06/2014 and Ext B2 is the copy of the field service report dated 29/07/2015, issued by the third opposite party.
- The purchase of the genset by the complainant from the first opposite party on 23/04/2015 paying Rs. 1,56,750/- as per Ext A1 is not disputed. According to the second opposite party, the first opposite party is a freelancer and not their authorised dealer. The warranty for the product was for a period of 12 months from the date of commissioning.
- The learned counsel for the complainant has argued that the genset suffers from various inherent manufacturing defects and so the opposite parties are liable to refund the price. It was submitted that the genset ran rough from the very installation and it failed to deliver the minimum expected performance and a constant jittery and humming sound was there. It was pointed out that the genset developed frequent technical snags such as alternator issue, low RPM, excessive smoke, vibration, lack of power, over heat, emission of thick dark smokes, constant power variation, defective oil gauge etc. and the same could not be rectified despite repeated repairs. On the other hand, the learned counsel for the second opposite party vehemently argued that there is no manufacturing defect to the genset and the issues are mere technical issues which were caused due to aging and normal wear and tear of the genset which could be rectified by carrying out minor repairs. It was pointed out that it was only on 29/07/2015 that for the first time the complainant had reported the complaint to the second opposite party and their service personnel inspected the genset and advised to replace certain parts on chargeable basis since the warranty period was over, but the complainant was not amenable for the same.
- It is well settled that to establish the claim for total replacement by a new product or refund of the price, the complainant has to prove by cogent, credible and adequate evidence supported by the opinion of an expert that the product suffered from inherent manufacturing defect. On a careful consideration and scrutiny of the evidence in hand, it is seen that there is absolutely nothing to show that the genset in question is having any inherent manufacturing defect as alleged. Ext C1 is the report of the expert available in this case. Ext C1 was prepared by the Lecturer, Department of Electrical and Electronics Engineering, Kerala Government Polytechnic College, Kozhikode with assistance of the workshop superintendent of the said college. It is reported in Ext C1 that the genset is not working even though they tried to start the same by using a battery of the same amphour. It is reported that they could not ascertain the defects as the genset was not working and totally damaged. The inspection was on 14/03/2019.
- Going by Ext C1, it can be seen that it is not helpful to the complainant to establish that the genset is having inherent manufacturing defect. The learned expert inspected the genset after 3 ½ years of the institution of the complaint and it was not working and his attempt to start the same was not successful. The learned expert has not reported that the genset is not working because of any manufacturing defect.
- Thus, Ext C1 is not helpful to the complainant to establish that the genset is having any manufacturing defect as alleged in the complaint. Apart from Ext C1, the complainant could not place on record any technical / expert report to support his allegation that the genset suffers from manufacturing defects. In the absence of any such evidence, we have no hesitation to hold that the complainant has failed to discharge his onus in this regard satisfactorily. Consequently, it follows that the claim for refund of the price of the genset is not allowable. Points are answered against the complainant.
- Points 3 and 4 :- One of the allegations in the complaint is that there was a delay of about 8 weeks on the part of the opposite parties to install the genset in the complainant’s premises and has charged Rs. 630/- towards transportation charges as per Ext A2. This allegation appears to be without any basis. Ext A1 proves that the date of purchase was on 23/04/2014. Ext B1 shows that the first free service was done on 5/06/2014. Ext B1 is not disputed and it contains the signature of the complainant. The condition mentioned in Ext B1 is 30 days or 50 operational hours from commissioning date whichever is earlier. So it is clear that the genset was installed prior to 05/06/2014. Ext A2 retail invoice dated 13/06/2014 is in respect of oil worth Rs. 530/- and transporting charge Rs. 100/-. The definite case of the second opposite party is that the genset was attended on 13/06/2014 for free checking and oil service. Nothing is produced by the complainant to prove the allegation that Rs. 630/- was charged towards transportation charges of the genset for the purpose of installation in the complainant’s premises.
- Another allegation of the complainant is that there was failure on the part of the opposite parties to attend the complaints properly. It is admitted by the second opposite party that a complaint was reported to them on 29/07/2015 and prior to that no complaint regarding any defect in the working of the genset was received by them. However, the second opposite party has admitted that time to time services for routine checking and oil service were provided to the complainant and that the genset as attended on 13/06/2014 for routine checking and oil service, on 13/01/2015 for regular service and on 7/03/2015 for oil service apart from 29/07/2015 on receiving complaint from the complainant. Nothing is produced by the complainant to show that prior to 29/07/2015 he had complained of any problem to the genset and also to show that there was neglect on the part of the opposite parties to attend the complaint.
- But it is seen that there was failure on the part of the opposite parties to address the concerns of the complainant over the genset pursuant to the complaint dated 29/07/2015. Ext B2 is a self-speaking document. Ext B2 would reveal that the genset was attended by the third opposite party and the problem was that there was voltage fluctuation. AVR failed and required replacement of AVR and MCB. It is specifically noted in Ext B2 that as the spare parts are not available, the repairs were not done and the work is temporarily closed. So it is crystal clear that on 29/07/2015 the repairs were not done for want of spare parts. It is the duty of the second opposite party to make available the spare parts. The opposite parties have no case that subsequent to 29/07/2015 they had carried out the repairs making available the spare parts. The case tried to be set up by the contesting second opposite party is that the repair on 29/07/2015 was after the period of warranty, but the complainant was not ready for replacement of the parts on chargeable basis. There is nothing to indicate that the complainant was not amenable for repairs on chargeable basis. On the other hand, Ext B2 would prove that the repairs were not done for want of spare parts. There is no whisper in Ext B2 that the unwillingness of the complainant for replacement of the parts on chargeable basis was the reason for not carrying out the repairs. As already stated, it is the duty of the opposite parties to make available necessary spare parts and repair the product. There were latches on their part in this regard. There was negligence and latches on the part of the opposite parties in addressing the concerns of the complainant over the genset pursuant to the complaint dated 29/07/2015 and this constitutes gross deficiency of service on the part of the opposite parties. Ext C1 report shows that the genset is now totally damaged and is a worthless product as far as the complainant is concerned. Undoubtedly, the complainant was put to gross mental agony, inconvenience and monetary loss due to the deficiency of service of the opposite parties. The complainant deserves to be compensated adequately for the deficient service of the opposite parties, even though he is not entitled to get refund of the price. Considering the entire facts and circumstances, we are of the view that a sum of Rs. 50,000/- will be reasonable compensation in this case. The complainant is also entitled to get Rs. 5,000/- as cost of the proceedings. The opposite parties are jointly and severally liable. Points found accordingly.
- Point No. 5 :- In the light of the finding on the above points, the complaint is disposed of as follows; a) CC.587/2015 is allowed in part.
b) The opposite parties are hereby directed to pay a sum of Rs. 50,000/- (Rupees fifty thousand only) as compensation to the complainant. c) The opposite parties are directed to pay a sum of Rs. 5,000/- (Rupees five thousand only) as cost of the proceedings to the complainant. d) The payment as afore stated shall be made within 30 days of the receipt of copy of this order, failing which, the amount of
Rs. 50,000/- shall carry an interest of 9% per annum from the date of this order till actual payment. . Pronounced in open Commission on this, the 30th day of April 2024. Date of Filing: 16.11.2015. Sd/- Sd/- PRESIDENT MEMBER APPENDIX Exhibits for the Complainant : Ext.A1 – Tax invoice dated 23/04/2014 issued by the first opposite party. Ext.A2 – Retail invoice dated 13/06/2014 issued by the third opposite party. Exhibits for the Opposite Party Ext.B1 - Copy of the first free service coupon dated 5/06/2014. Ext.B2 - Copy of the field service report dated 29/07/2015, issued by the third opposite party Witnesses for the Complainant PW1 - K.K. Sunil Kumar, (Complainant) Commission Exhibits Ext.C1- Expert Commission Report. Sd/- Sd/- PRESIDENT MEMBER True Copy, Sd/- Assistant Registrar. | |
