Tamil Nadu

North Chennai

CC/16/2018

M/s.Salare Alamchemical Rep by its Proprietor - Complainant(s)

Versus

M/s.Kirloskar oil enginer Ltd Rep by its Director - Opp.Party(s)

A.Amanullah

11 Apr 2019

ORDER

 

                                                            Complaint presented on:  05.01.2018

                                                                Order pronounced on:  11.04.2019

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT:  TMT.K.LAKSHMIKANTHAM, B.Sc., B.L., DTL.,DCL, DL & AL -  PRESIDENT

 

TMT.P.V.JEYANTHI B.A., MEMBER - I

 

THURSDAY THE 11^th  DAY OF APRIL  2019

 

C.C.NO.16/2018

 

M/s.SabareAlam Chemicals,

Rep. by its Proprietor,

M.S.Azam Ali,

No.2/5, Brighton Road,

Kannikapuram, Chennai – 600 012.

                                                                                              …..Complainant

 ..Vs..

 

1.M/s.Kirloskar Oil Engines Ltd.

Rep. by its Director,

LaxmanraoKirloskar Road,

Khadki, Pune – 411 003,

Maharashtra, India,

 

2.M/s.G.B.S.Enterprises,

Rep. by its Manager,

13-A, 200 Ft. Road,

Jayanthi Nagar, Kolathur,

Chennai – 600 099.

 

3.M/s. Fermier Engineers (P) Ltd.,

Rep by its Manager,

33, Sembudoss Street,

Chennai – 600 001.

 

.....Opposite Parties

Date of complaint                                 : 08.02.2018

Counsel for Complainant                      : A.Amanullah, A.Mohammed

                                                                   Mohiudheen, A.SabareAlam

 

Counsel for 1^st  Opposite Party                : Mr.S.Parthasarathyrathy

 

Counsel for 2^nd opposite party                       : M/s. M.Vivekanandan

 

Counsel for 3^rd opposite party                   : Ex – parte (on 06.03.2018)

 

O R D E R

 

BY PRESIDENT TMT.K.LAKSHMIKANTHAM, B.Sc., B.L., DTL.,DCL, DL & AL

          This complaint is filed by the complainant to direct the 1^st opposite party  for replacement of a New Genset as agreed by  2^nd opposite party or to refund invoice amount and also to pay a sum of Rs.1,00,000/- towards compensation for mental agony, with cost of the complaint u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The complainant purchased a Kirloskar Chhota ChilliKoel Model 3 KVA Portable Diesel Genset, Model CC1 – 3AS1, bearing Genset Serial No.CC1.3008.96/2015030025, coupled with Engine Model/Serial No.CC3.1001/15030025 from the 3^rd opposite party, vide Tax Invoice No.K/6836, on 13/12.2016, which was manufactured by the 1^st opposite party and complainant had paid a sum of Rs.1,10,000/- for the above Genset, which is inclusive of VAT. When the above said Genset was installed and in the first attempt itself it did not start with the Self Start mode, which gave a great disappointment and shock to the complainant. Since the Self Start mode had failed even after so many attempts, the complainant tried to start the Genset with manual mode. After a lot of attempts in the manual mode, finally the Genset started but unexpectedly it could not withstand even to burn a 100 watts bulb and the Geneset switched off immediately and it was found that the engine oil was also leaking.The complainant called the customer care of the 1^st opposite party and made the complaint and they diverted the call to 2^nd opposite party, but it was not fruitful and there was no proper response from 2^nd opposite party. After so many follow-up, the  technician from the 2^nd opposite party came to check the Genset and after the inspection, the technician told the complainant that there was some major defect in the Genset but he was not equipped with the  required tools and he further told that he would come back with the equipment but he never came back. After so many follow-ups, and after 45 days, on 04.05.2017, the Genset was taken by the technician of 2^nd opposite party for repairs. The technician of 2^nd opposite party brought back the Genset after two months, stating that the Genset was ready. When the technician tried to start the Genset, it did not start with the self Start mode. Since the Self Start mode had failed even after so many attempts, the technician tried to start the Genset with Manual mode. After a lot of attempts in the manual mode, finally the Genset started and the technician told that an electronic chip had to be installed and even after installing the electronic chip the Genset could not withstand even to burn a 100 watts bulb and the Genset switched off immediately.  Since the Genset has not been functioning from the first attempt on the day one itself, the complainant insisted 2^nd opposite party for a replacement or the refund and subsequently 2^nd opposite party had agreed for a replacement with a new Genset. But 2^nd opposite party have not taken any steps to rectify it. There has been no proper response from all the  opposite parties till date and the complainant has been put to untold hardship and sufferings due to the aforesaid acts of unfair trade practice and deficiency in service committed by the opposite parties and the complainant is entitled to be compensated for the same. Hence the complaint.

2.WRITTEN VERSION OF THE 1^st OPPOSITE PARTY IN BRIEF:

           The complainant is using the said DG set for commercial purpose more than 1 year and hence already earned considerable profits. The complainant is a proprietor and thus the complainant is not a consumer as per the provisions of Consumer Protection Act. The 1^st opposite party submits that there is no inherent or manufacturing defect in DG Set and the same was performing normally and was working in a perfect condition. After receiving the complaint from the complainant on 26.05.2017, the DG Set was immediately inspected by the 1^st opposite party’s service engineers and after the inspection it was found that there was no inherent defect in the DG Set  as alleged by the complainant. Minor technical glitches were also rectified by the 1^st opposite party’s service engineers immediately and the DG Set was working in a good condition. But the complainant refused to sign the FSR showing dissatisfaction. Thereafter, on the request of the complainant,  1^st opposite party’s  service engineers also took the DG  Set from the complainant’s site for re-checking and inspecting if there is any problem in the functioning of the DG Set but no defect was found in the same. The 1^st opposite party just to provide best possible service  after sales to the complainant and as a gesture of goodwill replaced the DG set with a new one free of cost to the complainant on 02.03.2018 even though the minor glitches were rectified and the DG Set was put to satisfactory working condition.  After receiving the new DG Set, the complainant was completely satisfied with the working condition of the replaced DG Set and also signed the service report and was completely satisfied with the working condition of the new DG Set supplied to him free of cost. The complainant has no claims, demands, or relief against the 1^st opposite party.  It can be inferred that the allegation of the complainant regarding defect in the DG Set is false and baseless whereas, the DG Set has already been replaced up to the satisfaction of the complainant. Hence pray to dismiss the complaint.

3.WRITTEN VERSION OF THE 2^nd  OPPOSITE PARTY IN BRIEF:

          The service dealer had no involvement of the sale a Kirloskar Chhota ChilliKoel Model 3 KVA Portable Diesel Genset, Model CC1-3ASI, which was manufactured by the 1^st of opposite party and sold by the 3^rd opposite party. Even in the fact stated in the complaint   there was no deficiency in service rendered to the Geneset purchased by the complainant from the 3^rd opposite party and manufactured  by the 1^st opposite party, which had a defect while installation as per the complaint. Thus the complainant is at wrong in filing a case against the service dealer of manufacture. The complainant does not disclosed any cause of action against the service dealer and in favour of the complainant and the complaint is liable to be dismissed.

4. The complainant and the  1^st&2^nd  opposite parties had come forward with their respective proof affidavit and documents. Ex.A1 to Ex.A5 were marked on the side of the complainant. The 1^st opposite party has filed Ex.B1 to Ex.B3 letter of satisfaction is Ex.B3. The 2^nd opposite party has not filed any documents.

5. The   3^rdopposite party who was served the notice from this Forum was called absent and  he was set ex-parte on 06.03.2018.

          6. The written arguments of the complainant and the 1^st opposite party  were filed and the oral arguments of the both were heard. The Complaint against 2^nd opposite party was dismissed as the claim against 2^nd opposite party was not pressed at the stage of written arguments.

 

7. POINTS FOR CONSIDERATION:

1. Whether the complainant is  consumer ?

          2. Whether there is deficiency in service on the part of the opposite parties?

          3. Whether the complainant is entitled to any relief? If so to what extent?

8. POINT NO :1 

The  Complainant purchased a Kirloskar Chhota ChilliKoel Model 3 KVA Portable Diesel Genset, Model CC1 – 3AS1from the 3^rd  opposite party  for an amount of Rs.1,10,000/- on 13.12.2016 and the invoice is Ex.A1. Manufacturer of the Genet is 1^st opposite party and 2^nd opposite party is the service provider. Soon after the installation of the  Genset, it did not start with self mode. It started with manual mode, it could not withstand  even to a burn a 100 watts bulb and then it switched off immediately  and also the engine oil was leaking. The complainant sent e-mail to the 3^rd opposite party , the copy of it is Ex.A2 .  After service, the product was delivered by 2^nd opposite party  and the delivery Challan is Ex.A3 . Extract of the owner manual and the legal notice sent   by the complainant to the opposite parties are marked as Ex.A4 and Ex.A5.

           09. On the side of 1^st opposite party authorization letter and copy of electric field survey report and copy of the satisfaction report were marked as Ex.B1 to Ex.B3. Complaint against 2^nd opposite party was dismissed as the claim against 2^nd opposite party was not pressed.  The claim against the opposite parties by the complainant is for the replacement of Genset by 1^st opposite party or for the refund of the invoice amount by 2^nd opposite party.

 10. The 1^st opposite party contends that the complainant   has purchased the Genset for the commercial purpose.   Hence he does not come under the purview of Consumer but the complainant contends that it is only used for his own purpose, but the 1^st opposite party   had not substantiated the same by any proof. Hence the 1^st opposite party contention is not considered, and the complainant is considered as a consumer accordingly point No.1 is answered. 

11. POINT NO :2

          The opposite parties would contend that soon after the receipt of complaint from the complainant, the set was immediately attended and the technician could find no inherent defect in the Genset and minor technical defects were also rectified and it was working in a good condition but the complainant refused to sign  the service chart.  Again it was rechecked and no defect was found, further the opposite parties   had  provided float stand for the Genset . Hence proper service was provided to the Complainant even then the complainant insisted for the replacement of the set and then as a gesture of the good will the 1^st opposite party had replaced with a new Genset free of cost to the complainant  and the complainant was fully satisfied and signed in the service report. Hence the complainant  is to be dismissed.

           12. Ex.B3 is the letter of satisfaction signed and given by the complainant to the 1^st opposite party  where in the replacement of the Genset and also assured that  the complainant  is satisfied with the working condition of the New Genset and declared that there is no further complaint and also expressed that all his grievances towards the Genset are satisfactorily resolved by the 1^st opposite party  and  the complainant does not have any further complaint, demands, claims etc., against the 1^st opposite party  and also withdrawn his notice and acknowledged full satisfaction.

            13.  The learned counsel for the complainant has argued that since there was deficiency at the earliest point of time, the complainant is entitled for compensation and it was vehemently opposed by the learned counsel for  complainant pointing out the letter in Ex.B3 and its full satisfaction. Under these circumstances, as the claim is cleared and it is fully satisfied and declared by the complainant as no demands and claims, the argument on the side of the complainant is not sustained and the complaint deserves to be dismissed and point No 2 is answered accordingly.

14. POINT NO :3

As discussed in the above point, the complaint is liable to be dismissed.

In the result, this complaint is dismissed. No costs.

Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 11^th   day of April 2019.

 

MEMBER – I                                                                PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 13.12.2016                   Invoice given by 3^rd opposite party vide Invoice

                                                     No. K/6836

 

Ex.A2 dated 29.03.2017                   E-mail sent by complainant to 3^rd opposite party

 

Ex.A3  dated 04.05.2017                  Service Delivery Challan given by 2^nd opposite

                                                     party

 

Ex.A4 dated NIL                     Extract of Owner manual

 

Ex.A5 dated 03.10.2017                   Legal Notice sent to opposite parties with RPAD

 

LIST OF DOCUMENTS FILED BY THE 1^st OPPOSITE PARTY:

 

Ex.B1 dated 30.05.2018                   Authorization Letter

 

Ex.B2 dated 02.03.2018                   Copy of Electronic Field Service Report

 

Ex.B3 dated 02.03.2018                   Copy of Satisfaction Letter

                                               

LIST OF DOCUMENTS FILED BY THE 2^ndOPPOSITE PARTY :

 

                                             …. NIL ….

 

 

                                               

MEMBER – I                                                               PRESIDENT