BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FEROZEPUR.
C.C. No. 56 of 2015 Date of Institution: 5.2.2015
Date of Decision: 30.9.2015
Surjit Singh, Aged 65 years, Son of Inder Singh, Son of Boor Singh, Resident of Village Ratta Khera, Tehsil Jalalabad, District Fazilka. Mb. No.98789-20516.
....... Complainant
Versus
- Terex Equipment (P) Ltd. Plot No.22, Udyog Vihar, Greater Noida, P.O. Surajpur, Gautam Budh Nagar, U.P. 201306, through its Managing Director;
2. Kirlosker Oil Engines Limited Authorized Service and spare dealer, Industrial Power Solutions 1710, Link Road, Industrial Area-A, Near Cheema Chowk, Ludhiana through its Propreitor;
3. Parkash Motors, 17-18 Hazi Rattan Chowk, G.T. Road, Bathinda through its Proprietor;
4. B.K.T. 12.6.18 MPT-MT-567 C/o Terex Equipment (P) Ltd. Plot No.22, Udyog Vihar, Greater Noida, P.O. Surajpur, Gautam Budh Nagar, U.P. 201306
........ Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986.
* * * * * *
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PRESENT :
For the complainant : Sh. R.K. Sachdeva, Advocate.
For opposite party Nos.1 and 3 : Sh. J.S. Walia, Advocate.
For opposite party Nos. 2 and 4 : Ex-parte.
QUORUM
S. Gurpartap Singh Brar, President
Mrs. Inderjeet Kaur, Member
ORDER
GURPARTAP SINGH BRAR, PRESIDENT:-
Brief facts of the complaint are that on 10.2.2014, after taking the loan from Magma Finance Corporation Limited, the complainant purchased a Terex TLB7405 Backhoe Loader from opposite party No.1 through opposite party No.3 for Rs.19,00,000/- for his livelihood against Invoice No.E300619 dated 10.2.2014 with warranty of 12 months. Service of engine was to be given by opposite party No.2, whereas, warranty of tyres was to be given by opposite party No.4. Service of the above said vehicle was to be given by opposite party No.3 as per tie up made
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by opposite party No.1 with opposite party Nos.2 to 4. It was settled among opposite party Nos.1, 3 and the complainant that the delivery of the above said vehicle will be given by opposite party Nos.1 and 3 at the destination of the complainant i.e. at Village Ratta Khera, Tehsil Jalalabad and accordingly, delivery of the said vehicle was given by them on 16.2.2014 at Village Ratta Khera through Truck No.HR-38L/0729 of Kaka Goods Transport Company, Faridabad vide consignment note No.6325 dated 10.2.2014. At the time of giving delivery of the above said vehicle, its DEMO was also given by the representatives of opposite party Nos.1 and 3 after uploading the same and at that time photographs of the same were provided to the complainant by the representatives of opposite party Nos.1 and 3 after receiving his signatures on the photographs. It has been alleged that after passing few days, cracks were occurred in front of tyres of the said vehicle. In this regard, complaint was made to opposite party No.1 through mail, but without any result. In the month of July/August, 2014, abnormal sound started coming from the engine and problem of leaking of Hydraulic oil from the pipe of the said vehicle also started for which complaint was made to the opposite parties. But even after conducting 3rd service of the engine and machine, the above said defects were not removed by the opposite parties, rather, assurance was given by them that after some time, the said defects will be ceased automatically, but all in
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vain. Reminders were also given to the opposite parties through mobile phone No.09815503636, but despite conducting the 4th service of engine against FSR No.93210 dated 11.1.2015, the above said defects were not ceased. Complaint of the complainant is pending from February and July/August, 2014. Due to the above said defects, the complainant number of times got changed some parts and had to get filled Hydraulic oil time and again vide some bills of opposite party Nos.2 and 3 and Kataria Auto Store etc. The complainant had to get filled Hydraulic oil once in every week due to the above said leakage problem. The complainant has also been getting the services conducted from opposite party Nos.2 and 3 as per their instructions, but to no effect. The complainant has alleged that there is some manufacturing defect in the above said vehicle. Pleading deficiency in service and unfair trade practice on the part of the opposite parties, the complainant has sought directions to the opposite parties to replace the machine/vehicle with new one. Further a sum of Rs.50,000/- has been claimed as compensation for harassment and Rs.16,500/- as litigation expenses.
2. Upon notice, opposite party No.1 appeared and filed its written reply to the complaint, wherein certain preliminary objections have been raised that the complainant purchased the Terex TLB 740S (BLACKHOE LOADER) Machine for commercial purposes and is using the same for commercial purpose. Therefore,
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the complainant is not a consumer within the purview of Section 2 of the Consumer Protection Act, 1986 and cannot seek remedy from this Forum; that the complainant did not get the services of the Terex Machine conducted as per schedule contained in the Service Operators Manual given to him. Even a request letter dated 12.9.2014 was sent to him through registered post for getting done the service of the machine, but he did not get the services done which were due on 17.3.2014, 17.6.2014 and the next service was due on 17.9.2014. The complainant used the machine for 2552 hours upto 11.1.2015 without any regular desired services of the engine from opposite party No.2 after 21.3.2014, when it worked only for 115.3 hours. He has earned more than Rs.17-18 lacs by calculating the hire charges @ Rs.700/- per hour within 11 months. He has used substandard Hydraulic oil. He got the service of the Hydraulic done from some untrained mechanic and also got changed some parts from that untrained mechanic. The warranty is given by the company/opposite party No.1 for the Hydraulic system of the machine subject to service from its authorized service dealer and further the service of the engine from the manufacturer thereof i.e. Kirloskar, which is mentioned in the Warranty Book duly handed over to the complainant at the time of delivery of the machine; and that the complainant made the payment for purchase of the said machine by way of banker’s cheque to opposite party No.1
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through opposite party No.3 at Bathinda and he has given his permanent address of District Fazilka and as such this Forum has no territorial jurisdiction to entertain and try the present complaint. On merits, purchase of the machine in question with warranty of one year and its delivery by opposite party No.3 to the complainant at Village Ratta Khera on 16.2.2014 has been admitted. Further it has been pleaded that the demo for using the machine was given at the time of delivery thereof and the said machine was totally fresh and trouble free. The service book for getting conducted the service of the machine and engine and using the proper oil and lubricants and other conditions of the warranty was handed over to the complainant and all the relevant clauses of service etc. were read over and explained to the complainant in simple Punjabi. Warranty of the engine and hydraulic system was subject to services thereof from opposite party Nos.2 and 3, respectively, as per schedule mentioned in the service schedule in Operator’s Manual handed over to the complainant. The complainant got effected only first service of the engine only on 21.3.2014 from opposite party No.2 and thereafter did not got done any service of the engine. Lastly he made complaint to opposite party No.2 for check up of the engine in the month of January, 2015 i.e. after 10 months of first service. On the complaint of the complainant, the Engineers of opposite party No.2 checked the engine of the machine and reported that the engine service is due and found that
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the Blow bay is abnormal and that air filter ceiling ring missing and reported that the engine show blow bay, but the complainant refused to get its service done from the Engineers of opposite party No.2, which is apparent from the service slip dated 11.1.2015 relied upon by the complainant himself. From the Retail Invoices issued by opposite party No.3, it is clear that the complainant only purchased some parts from opposite party No.3 on different dates, but did not get service of hydraulic system done from opposite party No.3.The Hydraulic oil purchased by the complainant from M/s Kataria Auto Store is of substandard quality and is not recommended by opposite party No.1. The complainant made complaint with regard to the alleged cracks in the tyres to opposite party No.3 after about two months of delivery of the machine to him. The representatives of opposite party No.3 took photographs of the tyres where the complainant reported the cracks. Opposite party No.3 sent the said photographs of the tyres to opposite party No.1 on 18.4.2014, but after perusal of the said photographs, opposite party No.1 sent reply that those were cuts and the same do not look like any manufacturing defect and rejected the claim lodged by the complainant. The complainant is using the same tyres for the last one year. The cuts on the tyres are the result of misuse of the machine and negligence on the part of the complainant and his Driver. Opposite party No.1 gives limited product warranty of Terex TLB 740S and in case of
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improper maintenance, improper use, abuse improper storage, operation beyond rated capacity, operation after discovery of defective or worn out parts, accident, sabotage or alteration or repair of the equipment by persons not authorized by seller shall render the warranty null and void and opposite party No.1 reserves the right to inspect the installation of the product and review maintenance procedures to determine if the failure was due to the above said reasons. It is also mentioned in the limited product warranty that the components, which are not manufactured by the seller are used, the machine is not covered by seller’s warranty. Such components are covered only by the warranty that is provided by the manufacturer of such components. Such components may include, but are not limited to chassis, engines, air compressor, batteries, tyres, starter motor, alternator, batteries, fule injection, pumps, customer supplied products. The complainant duly signed the said limited product warranty. As per terms and conditions of the warranty, the warranty of the engine and the hydraulic system was subject to regular services as per Service Schedule in Operators Manual from the authorized dealers, but the complainant did not comply with the terms and conditions. Other allegations of the complaint have been denied and dismissal of the complaint with penalty has been prayed for.
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3. Opposite party No.3 also filed its written reply on the lines of the written reply filed by opposite party No.1.
4. Opposite party Nos.2 and 4 did not appear before this Forum despite service of notice. Therefore, opposite party Nos.2 and 4 were proceeded against ex-parte vide order dated 13.3.2015.
5. Complainant tendered into evidence Ex.C-1 to Ex.C-15 and closed his evidence. On the other hand, learned counsel for opposite party Nos.1 and 3 tendered into evidence Ex.OP-1 & 3/1 to Ex.OP-1 & 3/9 and closed evidence on behalf of opposite party Nos.1 and 3.
6. We have heard the learned counsel for the parties and have also gone through the file.
7. So far as objection raised by opposite party No.1 that the complainant purchased the Terex machine in question for commercial purpose, he is using the same for commercial purpose and as such he is not a consumer within the purview of Section 2 of the Consumer Protection Act, 1986 is concerned, the complainant has specifically pleaded in para No.1 of the complaint that he purchased the said machine for his livelihood. Even in his affidavit Ex.C-15, the complainant has further denied this objection of opposite party Nos.1 and 3 that he is using his
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machine for commercial purpose. Therefore, the onus to prove this objection was upon opposite party Nos.1 and 3, but they have neither pleaded that besides the Terex Machine in question, the complainant also has some other source of his livelihood nor have produced any evidence that the complainant is earning huge profits by running the said machine. As per provisions of Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986, commercial purpose does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self employment. In the present case also, the complainant has specifically pleaded that he is using the machine in question for earning his livelihood and the opposite parties have failed to refute this pleading of the complainant by leading any cogent and convincing evidence. Therefore, the objection raised by opposite party Nos.1 and 3 in this regard is not sustainable and is rejected accordingly. The complainant duly falls within the definition of consumer, as provided under Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986 and this Forum has got jurisdiction to decide the present complaint.
8. Another objection raised by opposite party Nos.1 and 3 is that the complainant made the payment for purchase of the said machine by way of banker’s cheque to opposite party No.1 through opposite party No.3 at Bathinda
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and he has given his permanent address of District Fazilka and as such this Forum has no territorial jurisdiction to entertain and try the present complaint. Admittedly, the machine in question was delivered by opposite party No.1 through opposite party No.3 at Village Ratta Khera, Tehsil Jalalabad, District Fazilka, where the demo of the said machine was also given by the representative of opposite party Nos.1 and 3 and Engineers of opposite party No.2 visited the complainant on 11.1.2015 for rectification of the alleged defects in the machine, which is also apparent from photo copy of Sales Invoice Ex.C-2, photograph Ex.C-3, receipt of Kaka Goods Transport Company Ex.C-4 and Job Sheet Ex.C-14. Therefore, cause of action arose to the complainant in part at Village Ratta Khera, Tehsil Jalalabad, District Fazilka, which falls within the territorial jurisdiction of this Forum. Therefore, this Forum has got territorial jurisdiction to entertain, try and decide the present complaint.
9. The grievance of the complainant is that after few days of purchase of the machine in question, cracks occurred in its tyres, complaint regarding which was made to opposite party No.1 through mail, but all in vain. As per Clause No.2 of the Limited Product Warranty, copy of which has been placed on the file by the complainant as Ex.C-5 and by opposite party Nos.1 and 3 as Ex.OP-1 & 3/6, components which are not manufactured by seller are not covered by seller’s
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warranty. Such components are covered only by the warranty that is provided by the manufacturer of such components. As per pleadings as well as evidence on the file, the machine in question is having tyres of B.K.T. company, which has been impleaded as opposite party No.4 in the present complaint by the complainant. Opposite party Nos.1 and 3 in para No.3 of their respective written replies on merits, have pleaded that the complainant made complaint to opposite party No.3 with regard to alleged cracks in the tyres after about two months of delivery of the machine to him, representative of opposite party No.3 took photographs of the tyres where the complainant reported the cracks and opposite party No.3 sent the said photographs of the tyres to opposite party No.1 on 18.4.2014, but after perusal of the said photographs, opposite party No.1 sent reply that these are cuts and the same do not look like any manufacturing defect and rejected the claim lodged by the complainant. This version of opposite party Nos.1 and 3 is duly supported with copy of email dated 18.4.2014 Ex.OP-1 & 3/3. Therefore, complaint of the complainant regarding alleged cracks in the tyres of the machine in question was duly attended to by opposite party Nos.1 and 3. Moreover, the complainant has neither pleaded as to whether the alleged cracks in the tyres of the machine in question developed on account of any substandard quality of the said tyres or due to any manufacturing defect therein nor has produced any evidence in this regard.
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It is also not the case of the complainant that he has to replace the tyres of the machine in question. The complainant is using the machine in question with the said tyres since its purchase. Therefore, it cannot be held that the tyres of the machine in question are of substandard quality or have any manufacturing defect, which warrants replacement thereof.
10. It is also the case of the complainant that in the month of July/August, 2014, abnormal sound started coming from the engine and problem of leaking of Hydraulic oil from the pipe of the said machine also started for which complaint was made to the opposite parties, but even after conducting 3rd and 4th service of the engine and machine, the above said defects were not removed by the opposite parties. As per Clause/Condition 1.13 of Warranty Registration Card, copy of which has been placed on the file by opposite party Nos.1 and 3 as Ex.OP-1 & 3/8, the warranty period for the machine under normal circumstances covers the first 12 months of use; this period begins the day the machine is handed over or put into operation; the machine must be used correctly and serviced to the manufacturers recommendations; the correct grades of fuels, lubricants and coolants must be used at all times and must be new and clean when added to the machine, failure to follow these rules may lead to failure of the machine and only genuine TEREX spare parts must be used when the machine is serviced or repaired. It has been
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further mentioned in the Warranty Registration Card that oil of the engine is to be changed after 100 hours for the first time and thereafter every 400 hours beside replacement of oil filter every time and Hydraulic Oil is to be changed after every 1500 hours and Hydraulic Oil Filter is to be changed for the first time after 100 hours and thereafter every 750 hours during the running-in-period. Admittedly the machine in question was delivered to the complainant on 16.2.2014 and its demo was also given by the representatives of opposite party Nos.1 and 3 on the same day. Admittedly, the complainant got done first service of the said machine on 21.3.2014, which is also apparent from Job Card Ex.C-7 and by that date, the machine in question had run upto 115.3 hours. This Job Card is duly signed by the representative of the complainant. However, no failure/defect in the machine in question was pointed out by the complainant at the time of its first service. The complainant is silent as to whether second service of the machine was got conducted by him or not. In para No.4 of the complaint, the complainant has alleged that even after 3rd service of the engine and machine, the alleged defects could not be rectified by the opposite parties. But the complainant has not disclosed any date of the alleged 3rd service of the machine. Even there is no evidence/Job Card on the file that 3rd service of the machine in question was got conducted by the complainant. The machine was got checked by the complainant
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for the purpose of its 4th service only on 11.1.2015 vide Job Card Ex.C-14 and by that time, the machine in question had completed 2552 hours and nature of failure reported was that engine show blow bay. A perusal of Job Card Ex.C-14 further reveals that the Engineers of opposite party No.2 checked the engine of the machine and reported that the engine service was due and found that the Blow bay was abnormal and air filter ceiling ring was missing and reported that the engine show blow bay. Opposite party Nos.1 and 3 have pleaded that this time the complainant refused to get its service done from the Engineers of opposite party No.2. Job Card Ex.C-14 also shows that neither any parts was replaced nor any service was carried out by the Engineer of opposite party No.2 on 11.1.2015. Retail Invoices/bills Ex.C-8 to Ex.C-11 issued by opposite party No.3, show that the complainant only purchased some parts from opposite party No.3 on different dates, but did not get service of hydraulic system done from opposite party No.3. No quality of the Hydraulic oil allegedly purchased by the complainant from M/s Kataria Auto Store vide Retail Invoice Ex.C-12 and Ex.C-13 has been mentioned and in the absence thereof it cannot be ascertained as to whether the said Hydraulic oil is recommended by opposite party No.1 or not. Terms and conditions of the warranty have not been denied to be received by the complainant. Opposite party Nos.1 and 3 have taken specific stands that as per terms and conditions of the
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warranty, the warranty of the engine and the hydraulic system was subject to regular services as per Service Schedule in Operators Manual from the authorized dealers, but the complainant did not comply with the terms and conditions. In his affidavit Ex.C-15, the complainant has specifically deposed that he has not violated any terms and conditions of the warranty. Therefore, onus was upon the complainant to prove his deposition, whereas, he had failed to discharge this liability by leading any cogent and convincing evidence. He has failed to prove on the file that he had got done the regular services of the machine in question and got changed its engine oil and hydraulic oil as well as oil filter and hydraulic oil filter etc. on completion of prescribed hours by the machine and used the recommended engine/hydraulic oil as fully described in the copy of Warranty Registration Card Ex.OP-1 & 3/8. As per Clause/Condition 1.13 of Warranty Registration card Ex.OP-1 & 3/8, all claims during the warranty period will only be accepted if the recommended maintenance and service work has been carried out at the specified intervals. Therefore, no relief can been granted to the complainant under the warranty. The machine in question had completed 2552 hours by 11.1.2015 since the date of its delivery/operation on 16.2.2014 and even there no expert opinion/evidence on the file to prove that there is any manufacturing defect in it, as
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alleged by the complainant, which warrants its replacement. Therefore, the complainant is not entitled to any relief sought for.
11. In view of what has been discussed above, this complaint fails and the same is hereby dismissed without any order as to costs. File be consigned to the record room.
Announced (Gurpartap Singh Brar)
30.9.2015 President
(Inderjeet Kaur) Member
