Date of filing : 04-02-2012
Date of order : 29-11-2013
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.26/12
Dated this, the 29th day of November 2013
PRESENT:
SMT.P.RAMADEVI : PRESIDENT
SMT.K.G.BEENA : MEMBER
John Crasta, S/o. Peter Crasta, : Complainant
Josni Villag, Postadka, Po.Kumbala,
Kasaragod.Dist.
(Adv.A.Balakrishnan Nair, Kasaragod)
1 NAKODA Mechinary Pvt. Ltd : Opposite parties
Door.No.235Y, 2nd Main, 4th Phase, 7th block,
BSK 3rd stage, Bangalore. 560085.
2 ADVAITH MOTORS PVT Ltd, Advaith JCB,
No,.G-6,Deepa Arcade, No.2-18-1568/5,
Bejai Kapikad Road, Mangalore. 575004.
O R D E R
SMT.P.RAMADEVI, PRESIDENT
The facts of the complaint in brief are that the complainant purchased JCB 81 bearing machine chasis No.1798955 and Engine No. 4H2188/1120175 for a sale price of Rs.23,75,000/- from 2nd opposite party as per bill No.107 dt. 30-07-2011. The 2nd opposite party had given one year warranty for the JCB. The complainant purchased the JCB in his Mangalore address and later on taken to Kasaragod and started the work. The complainant is a self employee and earning his livelihood out of the income derived there from. The complainant further submitted that the complainant got work for the vehicle in the Industrial Estate, Kinfra Park, Seethangoli, Kasaragod and hence he purchased Rock breaker for Rs. 6,21,180/- and the warranty assured by 1st opposite party for the Rock breaker for a period of six months. It is further submitted that immediately after assembling the Rock breaker manufacturing defects were noticed and the complainant made complaint to opposite party No.1. On 14-10-2011 service engineer of opposite party No.1 inspected the vehicle and found the breaker was working slowly and changed the Hydrolic Hose Assembly by spending Rs. 7,913/-. But the defect is continued such as leakage of oil, cylinder oil Ring damaged and oil leakage of DC valve were noticed. The service engineer repaired the defects but it was not cured and on 3-12-2011 the service engineer inspected the machine and he found that the piston was damaged, there was no proper oil flow as required and adviced to give maximum speed while functioning which resulted in heavy Diesel consumption and even then the breaker was not functioning the side rod was broken and by that time also the oil flow was very poor and hence the breaker parts failed. The complainant further submitted that on every occasions the complainant has been compelled to purchase so many accessories including side rod net and washer by spending huge amount. According to the complainant the JCB has got manufacturing defect and opposite party No.1 supplied defective material to the complainant and failed to fulfill the warranty conditions and the complainant cannot operate the JCB and he sustained heavy loss due to the deficiency of service on the part of 1st opposite party. The complainant is not claiming any relief against 2nd opposite party and the complaint made the 2nd opposite party as a party array so as to decide the case in their presence.
2. On receipt of notice from the Forum the 1st opposite party entered appearance and filed their version. Adv.C.Venkata Ramanan has appeared for 1st opposite party. Eventhough opposite party No.1 filed version. Subsequently after the cross-examination of the complainant for opposite partyNo.1 the counsel reported no instruction. Opposite party No.1 was absent and set exparte. We are not considered the version of 1st opposite party and cross-examination done on behalf of the 1st opposite party. 2nd opposite party properly served the notice and not turned up hence set exparte.
3. On going through the facts on record the following issues raised for consideration.
1. Whether this Forum has territorial jurisdiction to entertain the complaint?
2. Is there any unfair trade practice on the side of 1st opposite party?
3. If so what is the relief as cost and compensation?
4. On the side of complainant he filed proof affidavit and Exts A1 to A11 marked. On the side of complainant one witness was summoned and he has filed affidavit.
The 1st issue is with regard to the territorial jurisdiction of the Forum to entertain this complaint. Here the complainant specifically stated in his complaint that he purchase the Rock Breaker from 1st opposite party at Bangalore but he used the Rock Breaker at Kasaragod in the Industrial Estate, Kinfra Park, Seethangoli. Hence part of cause of action arose at Kasaragod. Hence this Forum has territorial jurisdiction to entertain the complaint.
5. The specific case of the complainant is that the Rock Breaker which he purchased is a defective one and during the warranty period itself he complained before the 1st opposite party but the 1st opposite party failed to replace the Rock Breaker. In order to prove his case the complainant summoned one witness, the service Manager of 2nd opposite party and the witness filed affidavit stating that he has received the complaint from the complainant with regard to the slow running of the JCB and he attended the complaint and found no defect in the JCB. He has noticed leakage of Hydrolic Oil from the Rock Breaker and through bolt cut. He further inspected the Rock Breaker in the presence of the Service Engineer of 1st opposite party and he also agreed the defect of the Rock Breaker.
6. Here the defect is proved through the affidavit of the witness since there is no contra evidence on the side of 1st opposite party nothing to disbelieve the affidavit of the witness. Hence we are of the opinion that the 1st opposite party failed to provide after sale service to its customers. It is an unfair trade practice. Moreover, if the machine is found defective during the warranty period and that amounts to deficiency in service on their part.
Therefore the complaint is allowed directing the 1st opposite party to replace the Rock Breaker with a new one or refund Rs.6,25,000/- being the cost of the Rock Breaker and pay Rs.1,00,000/- for damages for mental agony and suffering and pay a cost of Rs.3,000/- to the complainant within 30 days from the date of receipt of copy of the order.
Sd/- Sd/-
MEMBER PRESIDENT
Exts.
A1. 9-8-2011 Tax Invoice.
A2. Declaration of M/s Advaith Motors Pvt Ltd.
A3. Service visit report.
A4. Service Job work report (Breakers)
A5. Service Job Work report Breakers
A6. Service Job Work report Breakers
A7. Service Job Work report Breakers
A8. 3-10-2011 Tax invoice.
A9. 28-12-2011 Tax invoice.
A10.Indus Service coupon
A11. Service Jon work report (Breakers)
PW1. John Crafta.
Sd/- Sd/-
MEMBER PRESIDENT
Pj/ Forwarded by Order
SENIOR SUPERINTENDENT
