Reserved
State Consumer Disputes Redressal Commission
U.P. Lucknow.
Appeal No.71 of 2001
1- Managing Director, M/s Kirloskar
Oil Engines Ltd., Laxman Rao Kiroskar
Road, Khadki, Pune-411013.
2- General Manager, M/s Kirloskar Oil Engines
Ltd., (Mr. N.A. Joshi has wrongly been made party
by name since there is no provision of impleading
anybody by name. Moreover he has been wrongly
mentioned as Production Manager.
3- Alliance Indurstrial Marketing, 10, Guljar Colony,
New Berry Road, Lucknow through its
Manager. ….Appellants.
Versus
Ram Kishore Aggrawal s/o Hari Ram Aggrawal,
R/o Mohalla: Jubliganj, Sahar/Pargana/Tehsil,
Nanpara, District, Bahraich. .…Respondent.
Present:-
1- Hon’ble Sri Rajendra Singh, Presiding Member.
2- Hon’ble Sri Sushil Kumar, Member.
Sri Deepak Mehrotra, Advocate for the appellants.
None for the respondents.
Date 10.8.2021
JUDGMENT
Per Sri Rajendra Singh, Member-This appeal has been filed under section 15 of the Consumer Protection Act 1986 against the judgment and order dated 19.01.2000 passed by the Learned District consumer Forum, Bahraich in complaint no.27 of 1999, Ram Kishore Agrawal vs. Kirloskar Oil Engines Ltd & Ors.
The main grounds of appeal are that, then the impugned judgment and order is absolutely illegal, unjust and arbitrary. The impugned judgment lacks the application of mind and is
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one-sided. The impugned judgment is without jurisdiction. The complaint was wrongly filed before the District Consumer Forum as it is beyond its territorial jurisdiction. The complainant had purchased a generator set from Udai Continental Kanpur and the Service was Provided by Alliance Industrial Marketing, Lucknow. The case was neither filed at Lucknow nor at Kanpur. The impugned judgment dated 09.01.2000 is ex-parte. The learned District Forum has failed to see that the complaint was filed only with respect to the defect occurred in the engine and not in any other part of the generator set.
The generator set is comprised of two main parts, the engine and the alternator. The engine is manufactured by the Kirloskar Oil Engines Ltd and its cost is around ₹ 189,000/– while the alternator is Manufactured by the Kirloskar Electric Co. which is a entirely different entity. The generator set was sold to the complainant by Udai continental by assembling the two equipments. A request for the placement of engine or the cost of engine in alternative has been specifically made. Undoubtedly the cost of engine is around ₹ 189,000/– but the Learned District Forum has directed the opposite parties to refund a sum of ₹ 330,000/– which is the cost of the entire generator set. The complainant did not disclose that the cost of the engine is only ₹ 189,000/– as regards the allegation of charging ₹ 15,000/– from the complainant, it is clarified that this amount was charged for replacement of certain parts as the end it was found to have been used in a careless manner but subsequently on the request of the complainant and the
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opposite party no.3 i.e., Alliance Industrial Marketing refunded at this amount to the complainant by way of providing certain necessary parts and engine oil to be used in the generator set and the complainant had his consent for this and accepted this offer.
The occurrence of some defect in machinery after its purchase does not call for the immediate replacement. The opposite party made sincere efforts to satisfy the complainant by making adjustments and by repairing minor defects. The complainant was satisfied with the repairs made by the opposing parties in April 1998. The Complainant entered into an Annual Maintenance Contract with the opposite party no 3 /appellant expressing full faith on its services. A sum of ₹ 2500/– was paid by the complainant to the opposite party no 3 in lieu of the services. The complainant concealed the fact of AMC in the Learned District Forum and He Has Misled the Learned District Forum while making a prayer for the refund of ₹ 2500/–.
Some problem was reported by the complainant in October 98. It was attended immediately. On the subsequent complaint of the complainant made in December 98 the engine was again inspected on 29 December 1998 and a large number of parts were replaced. It was at this time the complainant made the demand for replacement of engine for the first time. Complainant’s demand for replacement of engine was referred to the head office at Pune and after a thorough analysis it was decided that the complainant should be given a new engine only with a view to maintain the
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goodwill of the company. Though the guarantee period has already been lapsed and the opposite parties could have refused to replace it but they did not do so in the consumer’s interest. The decision of the company to replace the engine was communicated to the complainant by means of letter dated 30 March 1999 through opposite party no 3 and its reminder was issued on 18 May 1999. In reply to the letter the complainant expressed his consent for replacement and made a request therefore under his letter dated 30 July 1999. He also submitted the necessary forms et cetera. It is from the letter dated 30 July 1999, the opposite parties came to know about some court case for the first time and hence Mr Sanjay Saxena was directed to appear before the Learned District Forum. The process of replacement with the consent of the complainant had already began. The complainant assured the opposite parties that he will withdraw the case and they should not be bothered about it. It was on this assurance the opposite parties took up the job of the replacement immediately and did not make efforts to appear in the court. They expressed faith on the complainant would and were under the impression that he will give complete information to the Learned District Forum regarding the replacement of engine but the complainant had played dirty tricks. The complainant was pursuing his case before the district Forum vigourously. After completing the formalities the engine was put into transit from Pune on 8 September 1999 and immediately on its receipt the opposite parties forwarded it to the complainant’s site at Nanpara, Bahraich and it was
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received by the complainant at Nanpara on 22 September 1999 and was commissioned at the complainant’s site on 29 September 1999. The engine was fitted with the alternator and the generator set was tested without load and it was found running satisfactorily. The engine could not be checked/tested on the full load as there was no raw material in the complainant’s factory because the crops were under preparation and endorsement in this regard was made by the complainant on the over relief portion of the commissioning report dated 29 September 1999. The opposite parties have not charged anything towards the freight from the complainant. The complainant had received the new engine which was commissioned at his unit yet he did not return the old engine to the opposite parties despite several requests. Having left with no alternative the opposite partyno 3 referred the matter To the Head Office of Kirloskar Oil Engine Ltd at Pune informing it that the customer/complainant was not returning the old engine. It is quite apparent from the perusal of the annexures that the process of replacement of engine was initiated by the opposite parties with the consent of the complainant and the engine was ultimately replaced by the opposite parties to his satisfaction and the complainant was fully aware of the process of replacement and the actual replacement of the old engine by a new engine but he did not inform the learned District Forum about this . The engine has been replaced on 29 September 1999 and the complainant has filed an affidavit before the District Forum on 9 December 1999 but even then he did not disclose that his engine has been replaced by a new one and has continued to make the
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request for replacement of old engine and other claims. It is quite apparent that the complainant has opted this judgment in his favour by committing fraud and concealment of facts and as such the impugned judgment is liable to be quashed and the complainant is liable to be dismissed. The complainant is also guilty of giving the false undertaking to the opposite parties that he will withdraw the case as soon as the new engine is commissioned at his unit satisfactorily. In this regard it is noteworthy that the complainant has not made any complaint with respect to the performance of the new engine either before the Learned District Forum during the pendency of the case or before the opposite parties till date. The complainant is also liable to be dealt harshly for giving the false assurance to the opposite parties with respect to the withdrawal of the case and thereby preventing them from the contesting the case.
It is most respectfully prayed may kindly be pleased to set aside the judgment and order dated 19 January 2000 passed by the District consumer forum, Bahraich in complainant no. 22 of 1999, to direct the complainant to return the old engine to the opposite parties immediately, to allow this appeal with cost in favour of the opposite parties and to impose high penalty on the complainant.
We have heard the learned counsel of the appellant Sri Deepak Mehrotra and perused the impugned judgment and documents on record. The respondents counsel did not turn up though he was lastly turned up on 4 October 2018.
We have seen the documents filed with the appeal.
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From the documents filed by the appellant it is clear that the new engine has been provided to the complainant from 27 September 1999 to 29 September 1999 and it was commissioned at the site of the complainant. The old engine was not returned on the ground that at present there is no paddy crop so that the new engine cannot be tested with full load. Complainant has also written a note on 29 September 1999 that at present there is no paddy crop and as soon as the paddy crop will be harvested he will put the new engine on trial with full load and after testing he will inform the opposite parties. A letter of Alliance Industrial Marketing dated 17 March 2000 shows that the engine was commissioned on 20 January 2000 and load trial carried out. On 29 January 2000 the company man approached the customer who said that there is a death in the family so contact after few days. Thereafter on 6 February 2000 the company man again visited the site but found the factory closed. The customer stated that as he has met a heavy loss and is not able to run the factory therefore he requested for the refund of his full amount of DG set and then take both engine. He does not need the generator anymore. Now it is clear that the old engine has been replaced free of cost, free of freight and the responsibility was on the complainant to test the engine after harvesting the paddy crop on full load and thereafter to inform the company about the performance of the new engine but he did not do so. He did not inform the Learned District Forum. We have seen the impugned judgement. The Learned Forum has directed the opposite party to provide new engine after taking the old engine
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otherwise will pay ₹ 330,000/– along with 18% of interest per annum and also directed the pool parties to pay ₹ 2500 with 18% interest per annum with other amount payable with interest. Now the question arises when the opposite party has already replaced with the new one, there is no liability of the opposite parties. The complainant did not disclose the fact of replacing engine in the forum. Due to concealment of the facts by the complainant, the forum directed to pay various amounts with interest in different heads. After considering all the facts are we are of the opinion that the grounds of appeal are sufficient and the impugned judgment and order dated 19th of May 2000 is liable to be set aside. Regarding fraud and repetition the opposite party may approach the district forum for the same. As far as return of old engine is concerned they may approach the civil court for the same or may file a suit for damages in proper court.
ORDER
The appeal is allowed with cost. The impugned judgment and order dated 19.01.2000 of the Learned District Consumer Forum, Bahraich passed in complaint case no.27 of 1999 is set aside.
The stenographer is requested to upload this order on the Website of this Commission today itself.
Certified copy of this judgment be provided to the parties as per rules.
(Rajendra Singh) (Sushil Kumar)
Presiding Member Member
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Judgment dated/typed signed by us and pronounced in the open court.
Consign to record.
(Rajendra Singh) (Sushil Kumar)
Presiding Member Member
Jafr, PA II
Court 3
