BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 20th day of April, 2009

Present:

SRI.LAIJU RAMAKRISHNAN PRESIDENT

SMT.SHEELA JACOB MEMBER

SMT.BINDU SOMAN MEMBER

C.C No.4/2008

Between

Complainant : Rose Mary Gigi,

Manjakkunnel House,

Kaliyar P.O,

Vannappuram.

(By Adv: K.M. Sanu)

And

Opposite Parties : 1. P.S.N Constructions Equipments (P)

Limited,

34/126A, NH 47,

Edappally By Pass,

Edappally P.O,

Kochi - 682 024.

(By Advs: Tom Mathew&Lissy M.M)

2. Telco Constructions Equipment Ltd.,

Head Office, Jubily Buildings,

45 Musium Road,

Bangloor.

O R D E R

SRI.LAIJU RAMAKRISHNAN(PRESIDENT)

The representative of the 1st opposite party approached the complainant as well as her husband and described about the excavator (JCB) machine of the opposite parties. As per the explanation and assurance given by the representative of the 1st opposite party, the complainant ordered the same and gave advance on 31/08/2006 at Kaliyar where the residence of the complainant. The representative also assured to make arrangements for loan for the machine within 2 weeks. On 12/09/2006 the Engineers of the 1st and 2nd opposite parties together with the representative came over to the residence of the complainant and the machine was delivered at her residence. All the papers for the loan were got signed by the opposite party at the time of delivery of the machine. The Senior Engineer of the 2nd opposite party inspected the machine and assured the good performance of the machine to the complainant and her husband. The entire amount of the machine was Rs.19,58,800/- including the loan. The warranty issued by the opposite parties to the machine was one year or 2000 hours. The husband of the complainant was using and working with the machine afterwards. On 26/10/2006 the cooler system of the machine became defective and the matter was reported to the 1st opposite party. After two days, the staff of the opposite party arrived and the defect of the machine was cured by taking the machine to their workshop. Again on 26/12/2006, 09/01/2007 and on 12/02/2007, the same complaint was repeated, the matter was informed to the 1st opposite party. The staff approached the complainant and the cooler system was changed. The cooler system of the machine costs Rs.40,000/-. On 19/02/2007, again the cooler system became damage and the employees of the 1st opposite party taken the machine to their workshop and not yet given back to the complainant. The complainant requested several times for the replacement of the machine because of the continuous defect in the machine. The complainant is not able to pay Rs.40,000/- for each repair of the machine. Moreover, more than 10 days were needed for the repair of the system. The complainant sustained heavy loss because of the non-working of the machine, which amounts to Rs.2,00,000/-. The complainant is entitled to replace the machine as per the warranty. So the petition is filed for getting compensation and also the replacement of the machine.

1. The 1st opposite party filed a written version and submitted that the complainant do not come under the definition of 'Consumer' as per Section 2(d) of the Consumer Protection Act, 1986, since the complainant had purchased the 'backhoe loader' from the 1st opposite party for commercial purpose. The complainant had resold the backhoe loader to the 1st opposite party on 24/07/2007. Therefore the above case is not at all maintainable before the Forum. The complainant and her husband are conducting business at Vannappuram near the Muvattupuzha Kaliyhar route. They are also conducting a hardware shop in the name and style 'Manjakunnel Hardwares' and a concrete brick making factory adjacent to the hardware shop. The complainant had twice approached the 1st opposite party for the purchase of two excavators and the order for the same was given to the 1st opposite party's sales representative Mr. Joseph. It is admitted by the 1st opposite party that they had promised delivery of the excavators within 2 weeks and had thereby delivered two backhoe loaders to the complainant on 02/05/2006 and on 31/08/2006. The loan for the said backhoe loaders were made available by separate agreements between the complainant and Tata Finance. One of the machine was purchased in the name of the complainant and the other was purchased in the name of her husband Mr. Gigi Joseph. It is true that the Senior Engineer of the 2nd opposite party had inspected the backhoe loaders and found it to be fit and ready for operation. The actual price of the backhoe loaders purchased by the complainant was not Rs.19,58,800/- as alleged by him. The complainant's husband is not a qualified or experienced operator of the backhoe loaders and therefore if at all there are any problems have arisen to the backhoe loaders, the same is due to the operation of the backhoe loaders by unqualified persons, in this case the husband of the complainant. It is admitted that the 1st opposite party had serviced the machine by their Engineer. The engine oil and filter were replaced. At the time of information got from the complainant that the machine was not working, the opposite party had inspected and rectified the complainant's made by the complainant promptly without any delay. On the request of the complainant the backhoe loader purchased in the name of the complainant was repurchased by this opposite party. The resold backhoe loader has been sold to Mr. Sarath at Thrikkakkara who has not reported any complaints so far. The opposite party never charged Rs.40,000/- from the complainant for changing the cooling system of the machine, it is false that it took 10 days for the repair of the machine. No delay was caused from the opposite party for repairing the machine. No mental agony and financial loss caused to the complainant and hence the petition may be dismissed.

2. The point for consideration is whether there was any deficiency in service on the part of the opposite party ; if so, for what relief the complainant is entitled to?

3. The evidence consists of the oral testimony of PW1 & PW2 and Exts.P1 to P3 marked on the side of the complainant and the oral testimony of DW1 and Exts.R1 to R8 marked on the side of the opposite parties.

4. The POINT:- Complainant purchased an "Excavator (JCB)" machine from the 1st opposite party, for her lively hood. But the machine became defective after one month. Husband of the complainant was examined as PW1. PW1 deposed that the machine was delivered at complainant's residence on 12/09/2006 as per the order given to the representative of opposite party named one Joseph. The total cost of the machine was Rs.19,58,800/-. The opposite party arranged loan for the vehicle. The vehicle was having a warranty of one year or 2000 hours working time. Ext.P1 is the warranty card. The cooler system of the machine was became defective on 26/10/2006. The same was repaired by the 1st opposite party. Again the same complaint repeated on 26/12/2006, 09/01/2007 and 12/02/2007. The 1st opposite party repaired the same by refitting the cooler system thrice, which cost Rs.40,000/- each, Ext.P2(series) is the service report of the machine. Then the complainant requested for the replacement of the machine. So that the complaint was filed . The complainant have suffered about 2 lakhs rupees because of the defect in the machine. After the complaint has been filed, the 1st opposite party approached the complainant and repurchased the machine. But they have repaid only 12 lakhs rupees for the machine to the complainant. The prayer of the petitioner was initially for the replacement of the machine. But the prayer was amended by the petitioner for getting the balance amount of the vehicle which is already repurchased by the opposite party. The invoice supplied by the opposite party is marked as Ext.P3. PW1 was cross examined by the learned counsel for the opposite party. As per the cross examination PW1 deposed that PW1 is not having licence to operate the machine. One driver is appointed for the operation of the machine. PW2 is the driver of the vehicle. PW2 deposed that PW2 had completed a course under Tamilnadu Government for operating the machine and PW2 is getting a salary of Rs.12,000/- per month for the operation of the machine.

1st opposite party was examined as DW1. DW1 deposed that PW1 is the owner of several Bachoe loader machine even before the purchase of the disputed machine. The invoice dated 02/05/2006 for the purchase of another machine is marked as Ext.R5. Complainant has operated the disputed machine with unqualified, unexperienced drivers. So it became defective. But all the defects were cured by the opposite party with their own expense on the same day itself. So no loss is caused to the complainant. As demanded by the complainant this opposite party repurchased the bachoe loader under an exchange scheme and a new EX 70 Excavator, values Rs.27,79,600/- was sold to the complainant in the name of her husband Mr. Gigi Joseph. The agreement dated 24/07/2007 for the exchange is marked as Ext.R6. The invoice dated 24/07/2007 is marked as Ext.R7 which is for Rs.27,79,600/-. The complainant and her husband are conducting several business at Vannappuram. One bricks factory at Vannappuram, One Hardware shop by the name "Manjakunnel Hardwares" etc. The details regarding the licensee issued from the Vannappuram Grama Panchayat Secretary to the complainant is marked as Ext.R4. PW2 is not experienced in the operation of the machine supplied by the opposite party. The brochure of the machine is marked as Ext.R8, it needs much more experience to operate. The opposite party had given a discount of Rs.1,00,600/- to the fresh machine.

It is admitted by the opposite party that they have supplied the bachoe loader machine to the complainant. The defect of the machine is also admitted by the opposite party. But the defect was duly cured by the opposite party without any cost. Complainant also admitted the same. The machine was repurchased by the opposite party, it is also not disputed. As per the complaint the machine was repurchased by the opposite party within the warranty period and the complaint is entitled to get the entire amount of the machine. But as per opposite party the machine was exchanged by the complainant with a brand new machine. The cost of the 1st machine was Rs.19,58,600/-, But the new machine supplied by the opposite party to the complainant is an advanced one and the value of the same is Rs.27,79,600/-. Ext.R6 is the agreement created for the purchase of the second machine. The learned counsel for the complainant never challenged the Ext.R6, even though it is not complete. PW1 never explained about the purchase of the 2nd machine. As per PW1 the two transaction are separate. But the date of purchase of the second machine and the date of repurchase of the first machine are one and the same day.

As per the cross examination of the learned counsel for the opposite party, PW1 admitted that he is having another machine of the same type which is of Reg. No. KL 6D 4391, all the JCB's are operated by drivers. It is also admitted that the complainant is the owner of a bricks manufacturing unit. PW1 deposited that it is started recently. But Ext.R4 the reply issued from the Secretary, Grama Panchayat Vannappuram for the application under right to information Act, states that the license for the bricks factory in the name of the complainant was issued on 29/06/2006 itself. It is also admitted by PW1, that PW1 is the owner of a Hardware shop before the purchase of the disputed machine. So we think that the bachoe loader purchased by the complainant is not for their daily bread, but for commercial purpose. As per the decision of the Honourable Supreme Court in AIR 1995 (Supreme Court 1428) in Laxmi Engineering Works Vs P.S.G Industrial Institute, it is decided that A person who purchases an auto-rickshaw to ply it himself on hire for earning his livelihood would be a consumer. Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer. 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 illustrations, if such buyer takes the assistance of one or two persons to assist/help him 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. This is the necessary limitation flowing from the expressions "used by him", and "by means of self-employment" in the explanation. The ambiguity in the meaning of the words " for the purpose of earning his livelihood" is explained and clarified by the other two sets of words.

Here the complainant and her husband are engaged in various business and earning money from that. So we think that the complainant purchased the machine not for earning their livelihood but for commercial purpose.

Hence the petition dismissed. No cost is ordered against the petitioner.

Pronounced in the Open Forum on this the 20th day of April, 2009.

Sd/-

SRI.LAIJU RAMAKRISHNAN(PRESIDENT)

Sd/-

SMT.SHEELA JACOB(MEMBER)

Sd/-

SMT.BINDU SOMAN(MEMBER)

APPENDIX

Depositions :

On the side of Complainant :

PW1 - Gigi Joseph

PW2 - Shihabudeen V.S.

On the side of Opposite Parties :

DW1 - Joseph P Jacob

Exhibits:

On the side of Complainant:

Ext.P1 - Copy of Warranty Certificate

Ext.P2series(a-d) - Copy of Service Reports of the machine dated 26/10/06, 12/09/06,

19/02/07 and on 26/12/06.

Ext.P3 - Copy of Invoice dated 31/08/2006.

On the side of Opposite Parties :

Ext.R1 - Power of Attorney

Ext.R2 - True copy of Resolution

Ext.R3 - Invoice dated 31/08/2006

Ext.R4 - Letter dated 22/12/2008

Ext.R5 - Invoice dated 02/05/2006

Ext.R6 - Agreement dated 24/07/2007

Ext.R7 - Invoice dated 24/07/2007

Ext.R8 - Brousher