Tamil Nadu

StateCommission

FA/205/2014

TEKNOMAC SALES AND SERVICE, THE AUTHORIZED SIGNATORY - Complainant(s)

Versus

RAMYA KRISHNAN - Opp.Party(s)

E. EZHIL CAROLINE

28 Apr 2023

ORDER

IN THE TAMIL NADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present: Hon’ble Thiru. Justice R.SUBBIAH ... PRESIDENT

             Thiru.R VENKATESAPERUMAL       … MEMBER

 

F.A. Nos.179 & 205 of 2014

And

C.M.P. No.63 of 2022

 

(Against the Order, dated 26.02.2014, in C.C. No.117 of 2012, on the file of  the DCDRF, Chennai-North)

                                                    

                             Orders pronounced on:  28.04.2023

 

F.A. No.179 of 2014:-

 

The Managing Director,

M/s.Ashok Leyland Limited,

No.1, Sardar Patel Road,

Guindy,

Chennai-600 032.                                                                                                                            … Appellant/1^st OP

 

vs.

 

Ramya Krishnan,

Plot No.27, 2/12,

Olive Beach, ECR Road,

Neelankarai,

Chennai.                                                                                                                                       … R1/Complainant

 

The Authorized Signatory,

Teknomac Sales & Services,

Shroff Orchards,

New No.44 (Old No.78),

New Avadi Road,

Kilpauk,

Chennai 600 010.                                                                                                                                  … R2/2^nd OP

 

F.A. No.205 of 2014:-

 

The Authorized Signatory,

Teknomac Sales & Services,

Shroff Orchards,

New No.44 (Old No.78),

New Avadi Road,

Kilpauk,

Chennai 600 010.                                                                                                                               … Appellant/2^nd OP

 

Vs.

 

Ramya Krishnan,

Plot No.27, 2/12,

Olive Beach, ECR Road,

Neelankarai,

Chennai.                                                                                                                                                   … R1/Complainant

 

The Managing Director,

M/s.Ashok Leyland Limited,

No.1, Sardar Patel Road,

Guindy,

Chennai-600 032.                                                                                                                                     … R2/1^st OP

 

     For appellant in F.A.179/14

             & R2 in F.A.205 of 2014  : M/s.Aiyer & Dolia

 

     For R1 in both appeals            : M/s.K.S.Natarajan

 

     For appellant in F.A.205/14    :  M/s.Ezhil Caroline

 

These First Appeals came up for final hearing on 22.11.2022 and, after hearing the arguments of the counsels for the parties and perusing the materials on record and having stood over for consideration till this day, this Commission passes the following:-

COMMON ORDER

 

R.Subbiah, J. – President.

 

             The 1^st respondent in the above appeals filed C.C. No.117 of 2012 on the file of the DCDRF, Chennai-North, alleging service deficiency against M/s.Ashok Leyland Limited/1^st OP therein/present appellant in F.A. No.179 of 2014 as well as Teknomac Sales & Services/2^nd OP therein/present appellant in F.A. No.205 of 2014, by inter alia stating that she had purchased a 62.5 KVA Diesel Generating Set (in short DG Set) manufactured by the 1^st OP, from the 2^nd OP, who is the authorized dealer of the 1^st OP, for a consideration of Rs.4,68,000/- through an Invoice dated 23.07.2010; that the DG Set was commissioned at the house of the complainant on 09.12.2010; that, from the date of commissioning, the Set had recurrent problems; that, despite repeated servicing and replacement of the Alternator thrice, the Set was not functioning properly and it failed to serve the purpose for which it was purchased; that, within a short period of its purchase, the entire body of the set suffered rusting and corrosion, which impelled the complainant to issue a legal notice, dated 29.08.2011, calling upon the OPs/appellants herein to take back the Set and to pay her a compensation of Rs.6 lakh, whereupon, the representatives of both the OPs inspected the site & Set and thereafter, sent a letter dated 12.09.2011, assuring that they would replace the Set within a week or 10 days; that, while so, the 2^nd OP conveyed through a mail dated 11.10.2011 that the DG Set was fitted with a new Alternator and it was found by them to be satisfactory and thereby, they had gone back from their earlier promise of total replacement, which drove the complainant to send a reply email through her lawyer stating that she would not accept the same defective set and calling upon them to comply with their promise of replacement; and that the further follow-up made by her ended in vain since the OPs remained evasive in their approach & replies and, due to the such service deficiency on their part, the complainant was subjected to great mental agony, hence, she preferred the complaint.

             The 1^st OP resisted the complaint by stating among other things that the DG Set was sold by them to one M/s.Ojus Power, Bangalore, who in turn, had sold it to the 2^nd OP as the Genset Manufacturer; that on the date of the alleged sale of the DG Set by the 2^nd OP, they were no longer an authorized Dealer of the 1^st OP as the Dealership had expired way back in 2008 itself; that presumably, the failure of the alternator may be due to proximity of the location to the sea-shore with high-moisture content; and that the DG Set was inspected by this OP’s Service Engineers and it was duly informed that it was supplied by the 2^nd OP and hence, the latter would do the service, etc., if any.  By denying all other allegations and stating that the 2^nd OP had falsely used the name of this OP, they sought for dismissal of the case insofar as it pertains to them.

             The 2^nd OP/appellant in F.A. No.205 of 2014 failed to file the written version and hence, they were set ex parte before the District Forum.

             To substantiate the claim and counter-claim, the parties filed their respective proof affidavits and, while on the side of the complainant, 17 documents were marked as Exs.A1 to A17, the 1^st OP filed 6 documents as Exs.B1 to B6.   By the impugned order, dated 26.02.2014, the District Forum has allowed the complaint in part by concluding that the complainant has established the negligence and service deficiency on the part of the OPs and ultimately, directed both the OPs to jointly and severally refund to the complainant a sum of Rs.4,60,000/- with interest @ 9% p.a. from 12.09.2011/date of Ex.A8, till the date of payment and another sum of Rs.50,000/- towards compensation, besides Rs.2,000/- towards costs of the complaint. Aggrieved thereby, the OPs have filed the present individual Appeals.

 

             2. Since both the appeals arising from the same impugned order are interconnected and the issues involved also being common, they are taken up together for joint disposal through this Common Order.

             For the sake of convenience, the parties are hereinafter referred to, as per their respective rankings before the District Forum.

 

             3. It is the main submission of the learned counsel for the 1^st OP that Exs.B4 to B6 would go to show that Serial Number NAEM021076Y in the complainant’s DG Set is the same one which was sold by the 1^st OP to M/s.Ojus Power under Ex.B2.  After that, the 1^st OP had no knowledge as to what Ojus Power had done with the Product when they sold it to the 2^nd OP, who had in turn sold it to the complainant.  Thus, as the DG set changed hands to different entities, absolutely there is no proof whatsoever to establish that the same product, which was originally manufactured by the 1^st OP, had reached the hands of the complainant.  Ojus Power, a necessary party to the proceedings, has not been impleaded by the complainant and the said lapse would adversely affect her case.  But, without appreciating these vital aspects, the District Forum hurried to fasten the liability also upon the 1^st OP which is totally unjust and hence, their appeal may have to be allowed by setting aside the impugned order, learned counsel pleads ultimately.

 

             4. Supporting the order passed by the District Forum, learned counsel for the complainant points out by referring to  Ex.A1/Delivery Challan issued by the 2^nd OP that the DG Set was sold by the said OP and that it is a product of the 1^st OP.  Next he refers to Ex.A8/letter issued by the 2^nd OP to point out that, in the said letter, a clear undertaking is given by stating that, as soon as they get the approval, they would replace the DG Set within a week or 10 days, thereby, the OPs themselves admitted that the product of the 1^st OP had inherent manufacturing defect and that, unable to rectify it despite several servicing processes and replacements, finally, they gave an assurance for replacement, which they did not honour and came up with new stories and versions, however, the District Forum by broadly analyzing the facts and materials ultimately found that the OPs committed service deficiency and accordingly, fastened joint liability upon them in a just manner which does not call for interference.

 

             5. Learned counsel appearing for the 2^nd OP states that, due to the close proximity of the location where the DG Set was installed to the sea-shore, the DG Set was exposed to functional issues which were promptly attended by way of either servicing or free replacement of the defective spare parts.  It is further stated that what was conveyed through the letter under Ex.A8 is that the DG Set would be taken for replacement of the worn-out parts and it cannot be interpreted to mean that the 2^nd OP had promised to supply a whole new D.G. Set in lieu of the existing one.  In fact, the DG Set was made ready, free of any fault and despite that, it was the complainant who refused to accept the same and  the lower forum completely overlooked the said aspect and unjustly fixed the liability also upon the 2^nd OP and the same being totally unwarranted in the given set of facts, the appeal filed by them may be allowed.

 

             6. We have carefully gone through the materials on record in the light of the rival submissions advanced on behalf of the respective parties.

            

        It is an admitted fact that the complainant had purchased the DG Set for a sum of Rs.4,68,800/- from the 2^nd OP on 23.07.2010 and it was commissioned 09.12.2010.  It is also not denied that the said Set had faced frequent problems.  Even before it could cover a period of one year, the Set developed interminable problems and, as could be seen from Ex.A3, the Service People of the OPs had attended the issues twice in June, 2011 and on more than 4 occasions in one single month during August, 2011 either for Solenoid replacement or Stator Replacement/Rewinding  and the remarks of the engineers show that the customer was advised to claim warranty replacement for the alternator on three occasions.   In spite of repeated repairs/replacement of parts by the technicians and engineers, the DG Set was persistently giving problems.  Further, as could be seen from the Photographs under Ex.A16, within a short period of its purchase, the entire body of the Set had developed rust and corrosion which obviously prompted the complainant to issue a legal notice under Ex.A4, dated 29.08.2011, to the OPs pointing out that the DG Set is full of faults despite repeated service and urging them to take back the set and to pay her a compensation of Rs.6 lakhs.

     Now, in this background, first, let us see the bona fides in the defence of the 1^st OP/Ashok Leyland, who refers to Exs.B2 and B4 to B6 to say that they had sold a Genset bearing Serial Number NAEM021076Y to Ojus Power, Bangalore, who had sold it to the 2^nd OP, who had in turn sold it to the complainant. But, those documents would be deemed to be only self-serving in nature since the said Serial Number does not find place either in the Delivery Challan under Ex.A1 or in the Invoice under Ex.A2.  Secondly, both the exhibits clearly reflect the DG Set in question as the product of the 1^st OP with the description “Ashok Leyland Engine Model ALGPWO4CT1-E4”.  In such circumstances, when there is no corroborating material to draw an inference based on the Serial Number, the argument of the 1^st OP that the product had changed hands to different entities and hence, there is no proof to establish that the same product which was originally manufactured by them had reached the hands of the complainant is highly presumptive and obviously unfounded.  A product priced nearly 5 lakh and also manufactured by a reputed industry like the 1^st OP would noticeably come bundled with a good warranty and a fair assurance for outstanding performance & durability.  But unfortunately, the product in question, although is said to have had two year warranty,  could not be used by the consumer after its commissioning as it was prone to incessant repairs and replacement of accessories and, apart from that, it developed a totally ugly look due to rusting and corrosion within months, before even completion of the warranty period.  Further, the other reason given by the 1^st OP that it was not their product cannot be true at all for the reason that, from the photographs under Ex.A16, it is seen that the Set carries the Logo of the Ashok Leyland with the specific description LEYPOWER.  Most importantly, the description inscribed in the Set clearly mentions the 2^nd OP as the AUTHORISED DEALER.  That being so, even for the sake of argument if we go by the version of the 1^st OP that the DG set was originally sold to Ojus Powers and thereafter, they sold it with modifications to the 2^nd OP, the same cannot be true for the simple reason that the 1^st OP would not allow any other Industry to effect modifications in their product so long it bears their own logo. In other words, if the product is meant to be sold under the brand name of some other Concern, the 1^st OP would not supply it with their own logo that too with the inscription that a particular entity is their Authorized Dealer. Interestingly, in the reply given under Ex.A15, the 1^st OP would say that they were not aware about the breach committed by the 2^nd OP in selling the Genset under the 1^st OP’s Label, whereby, they mean that some other product was sold by the 2^nd OP under the label of the 1^st OP.  The said stand, at the first instance, runs contrary to the present claim of the 1^st OP  that Exs.B2 and B4 to B6 show that the DG Set is the same one which was sold by them to Ojus Power under Ex.B2 with Serial Number NAEM011976Y.  Secondly, if really the 2^nd OP had indulged in breaching the label of Ashok Leyland, the 1^st OP would have definitely initiated legal proceedings against them and produced materials at least in the form a legal notice issued by them to the 2^nd OP. But, that is not the case which only shows the prevaricating stand and conduct of the 1^st OP to somehow wriggle out of the liability. On the contrary, at paragraph No.5 of the written version, the 1^st OP would state otherwise:-

               “ 5. ….. it is submitted that the DG Set was inspected by this opposite party’s Service Engineers and it was informed that as it was supplied by the 2^nd opposite party, they will attend to shortcomings, if any. …”

Thus, the 1^st OP, while claiming that the 2^nd OP is not their authorized dealer would simultaneously portray the latter as Supplier of the product and, in parallel, would also accuse them with breaching their label.  Such a rambling and digressive conduct of the 1^st OP would in no way advance their defence rather it would only aggravate it. From Exs.A8 to A11, we find that, on the issue of the defective Genset, both the OPs were working together by exchanging email correspondences between them & other stakeholders and, as the Set had become totally defective; they had undertaken through Ex.A8 that they would replace the DG Set within a week or 10 days.  In fact, the relevant text from Ex.A8 in that regard is relevant to be quoted below:-

       “ This has reference to the discussion of Mr.Sathiyendran – M/s.Ashok Leyland Limited,  Mr.Gunasekar – M/s.Ojus Power, Mr.Sadhanandham – M/s.Chakrapani Engineering & Mr.S.Ramesh – M/s.Teknomac Sales & Services …..  As soon as we get the approval, we will replace the DG Set within a week or 10 days time. Due to internal formalities, we required the Sales Invoice copy & request letter from your end to replace the DG Set. “

No Concern would give such a written undertaking to replace the Set unless the product suffers from inherent manufacturing defects.  But, without keeping up such assurance, for the reasons known to the OPs, the customer was asked to take back the once-again repaired set, which she rightly refused.  One can discern the level of mental agony suffered by a consumer, who could not use a product which he/she purchased by paying more than Rs.4 lakh, due to its inherent manufacturing defect.  In such circumstances, the 2^nd OP cannot get away from the liability through a devious interpretation of the undertaking in Ex.A8 by stating that what was intended thereby is to replace the defective parts and not the Set as such.   It is the hallmark of  reputed industries to readily replace a product that is found to be suffering from inherent manufacturing defect, thereby, not only their standard get elevated but also they could keep themselves away from the avenue of litigation. In the present case where the facts are very clear that the product was rendered totally useless after its commissioning due to inherent manufacturing defects, the endeavour of the 1^st OP/manufacturer in running away from the liability by casuistically disowning their own product and that of the 2^nd OP to somehow wriggle out of the liability by interpreting the undertaking in a devious manner, to defeat the just interests of the aggrieved consumer, is highly despicable.  Although the severity of the service deficiency and the sly conduct of the OPs warrant a more onerous liability against them, since the award passed by the District Forum sufficiently meets the ends of justice and the complainant is also well satisfied therewith, we just confirm its order without any modification to augment the liability.

          9. In the result, both the appeals fail as devoid of any merit and they are dismissed.  Consequently, CMP No.63 of 2022 also stands dismissed.

            

R VENKATESAPERUMAL                                                                                                                       R.SUBBIAH, J.

MEMBER                                                                                                                                                        PRESIDENT.

 

ISM/TNSCDRC/Chennai/Orders/APRIL/2023.