BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 24th of March 2011
PRESENT
SMT. ASHA SHETTY : PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
SRI. ARUN KUMAR K. : MEMBER
COMPLAINT NO.233/2010
(Admitted on 28.08.2010)
Mr. Ajit DSouza,
So Edward DSouza,
Aged about 30 years,
F.H. Road, Bunder,
MANGALORE 575 001. …….. COMPLAINANT
(Advocate for the Complainant: Dr. G. Balakrishna Prabhu)
VERSUS
1. The Authorized Signatory,
Ms Mapssons & Co Auto Pvt. Ltd.,
32 1642 A3, S.G. Building,
Bye Pass Road,
Palaribattam,
COCHIN 682 025.
2. M/s Cummins India Ltd.,
Kothrad,
Pune – 411 038. ……. OPPOSITE PARTIES
(Opposite Party No.1 is placed exparte).
(Advocate for the Opposite Party No.2 : Sri. M.P. Shenoy)
***************
ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:
1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs.
The brief facts of the case are as under:
The complainant submitted that, he is the owner of a fishing vessel by name ‘Infant Jesus’. The engine fitted to the above said vessel is a powerful engine, so that it could sail fast in the high seas. The complainant purchased the engine from the 1st Opposite Party who is the dealer, manufactured by the 2nd Opposite Party. The above said engine fitted to the boat i.e., Cummins Engine Assly GBOX 4.5:1 and Accessories for a sum of Rs.9,42,000/- as per the Retail Invoice No.042 dated 20.05.2009. The above said engine was delivered at Mangalore and the amount was paid on 28.03.2009 and the same has been acknowledged by the 1st Opposite Party. The complainant started operating with his boat with that engine immediately after the fishing season commenced in the month of August 2009.
It is stated that, he had purchased the Cummins Engine believing in the representation of its operational strength by its dealers and they had said that the same being of 260 HP and it could give good service in the High Seas by picking up forward thrust very fast. But the engine purchased by the complainant has poor performance. It is stated that, from the month of January 2010 the engine had to be kept for repair at least on an average twice in a month. This prevented the complainant from taking the boat to the sea for fishing. These repair work resulted in heavy loss to the complainant. That apart, the Opposite Parties do not have a regular service station in Mangalore except that the Opposite Parties have stationed some workers whose knowledge of the engine is very limited. Whenever the engine gave trouble, they took an average 5 to 10 days to repair it. Due to their poor knowledge of the engine, they are adopting the method of errors and corrections. Since January 2010 till the end of April 2010, the boat had to be kept at the shore for repair for 7 times, i.e., from 06.01.2010 to 10.01.2010, 06.02.2010 to 07.02.2010, 12.02.2010 to 16.02.2010, 05.03.2010 to 13.03.2010, 21.03.2010 to 24.03.2010 and 01.04.2010 to 06.04.2010 and again from 12.04.2010 to 30.04.2010. Then again 08.05.2010 to 10.05.2010 and from 13.05.2010 to 20.05.2010. The repair work has cost the complainant about Rs.35,000/- till now. By not taking the boat to the sea for fishing during the time when the engine was under repair, the complainant had to incur a loss at a modest sum of Rs.50,000/- to Rs.60,000/- per trip, which he missed. According to the complainant Rs.6,00,000/- he has lost due to the defective engine. The complainant states that, the engine supplied to the complainant was defective and the service rendered by the Opposite Parties was deficient and the complainant cannot afford to run his boat with this defective engine. Hence, he has issued a legal notice dtd.23.04.2010 to the Opposite Parties calling upon them to take back the engine and pay the value thereof. But the Opposite Parties received the notice without demur but they have not complied the demand made therein. Hence, the above complaint filed under Section 12 of the C.P. Act seeking direction from this Forum to the Opposite Parties to take back the engine and pay a sum of Rs.9,42,000/- being the price along with interest and compensation and cost of the proceedings.
2. Version notice served to the Opposite Parties by RPAD. Opposite Party No.1 despite of serving notice neither appeared nor contested the case till this date. Hence we have proceeded exparte as against the Opposite Party No.1. The acknowledgement placed before the FORA marked as court document No.1.
The Opposite Party No.2 i.e., the manufacturer of the above said engine appeared through their counsel filed version raised a first plea that, the Complainant is not a consumer and this FORA has no jurisdiction to entertain the complaint. As far as defect is concerned, it is stated that, the engine purchased by the complainant was fitted on the boat. There is no compatibility of engine fitted on the boat being used by the complainant. This failure of engine was not due to manufacturing defect, but it is purely due to non-compatibility. This type of usage put restrictions on the satisfactory performance of the engine. It is further stated that, equipment on which engine is fitted, its accessories, etc., shall have direct impact on engine performance thereby resulted into poor performance and other corroborated failures. This fact has been brought to the notice of the complainant and submitted that, the complainant cannot blame this to Opposite Party No.2.
It is further stated that, the 2nd Opposite Party is the manufacturer of the internal combustion diesel engines of various capacity. For any equipment the customer is required to select the engine of right capacity and then it should get properly aligned to the equipment, when such alignment is proper then only the end equipment runs properly. The buyer has made his own choice of the engine believing that the subject engine is most suitable and therefore the complainant is alone responsible for not giving results as desired by him.
It is further submitted that, the complainant before purchasing the engine has ascertained all the technical parameters of the subject engine and after satisfying himself the credibility of this 2nd Opposite Party, the complainant purchased the engine. The 2nd Opposite Party had posted highly qualified engineers at Mangalore to provide after sales service so as to avoid delay and stated that service of the 2nd Opposite Party is good.
It is further stated that, warranty is applicable only if the failure is arising out of defective workmanship or material. The failure of the engine was not due to manufacturing defect, but it is purely due to non-use of the engine as per recommendation of the manufacturer of the engine. The 2nd Opposite Party had replaced several parts free of cost under warranty and attended the complaints of the complainant whenever he complained and approached this Opposite Party and stated that the complaint filed by the complainant is false and prayed for dismissal of the complaint.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant is a consumer and this FORA has jurisdiction to entertain this complaint?
- Whether the Complainant proves that the Opposite Parties committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Sri Ajit D’Souza (CW1) has filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C6 were marked for the Complainant as listed in the annexure. The complainant produced notes of arguments.
We have considered the notes/oral arguments submitted by the learned counsel and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i) : Affirmative.
Point No.(ii) to (iv): As per the final order.
Reasons
5. Point No. (i):
The first plea raised by the Opposite Party No.2 is that, the Complainant is carrying on business on large scale which is purely a commercial nature and he is not a consumer and this FORA has no jurisdiction to entertain the complaint. As far as this point is concerned, the Complainant filed oral evidence by way of affidavit stated that, he is a fisherman and the said boat was used for catching fish, that is the only source of income for him which he runs. When that being the case, one cannot consider that, he is carrying business on large scale which is purely a commercial nature. There is no material placed on record to consider that, the Complainant is owning more than one fishing vessel and carrying on large scale business. In the absence of any credible evidence, we are declined to consider the plea raised by the Opposite Party No.2 in this case. We further observed that, the above said subject engine was delivered at Mangalore and the engine was fitted to the boat belonging to the Complainant at Mangalore, hence the question of jurisdiction does not arise. Therefore, we hold that, the Complainant is a consumer and this FORA has jurisdiction to entertain the complaint. Point No.(i) held in favour of the Complainant.
Point No. (ii) to (iv):
As far as point No.(ii) to (iv) are related each other, hence we take up the point No.(ii) to (iv) together for discussion.
In the instant case, the facts which are admitted is that, the Complainant is the owner of a fishing vessel by name ‘Infant Jesus’ purchased a engine manufactured by the 2nd Opposite Party i.e., Cummins Engine Assly GBOX 4.5:1 and Accessories for a sum of Rs.9,42,000/- on 20.05.2009 from the 1st Opposite Party who is the authorized dealer. It is also admitted that, the above said engine was delivered at Mangalore and the said engine was fitted to the boat belonging to the complainant at Mangalore and the complainant started operating his boat with that engine immediately after the fishing season commenced in the month of August 2009.
The allegations of the complainant is that, the complainant is a fisher man, the boat cannot be kept idle during the fishing season, the boat has to be on the high seas for about 8 to 10 days at a stretch with the catch of fishes. Each trip brings him catch worth at least of the value of Rs.3,00,000/- and after deducting all the expenses, he can save a sum of Rs.50,000/- to Rs.60,000/- per trip. It is stated that, he has purchased the Cummins Engine believing the representation of the Opposite Parties that it can give good service in the High Seas by picking up thrust very fast. But all the assurances of the dealer became false and the engine kept for repair atleast on an average twice a month and prevented from taking the boat to the sea for fishing. Since January 2010 till the end of April, the boat had to be kept for shore for repair for 7 times i.e., from 06.01.2010 to 10.01.2010, 06.02.2010 to 07.02.2010, 12.02.2010 to 16.02.2010, 05.03.2010 to 13.03.2010, 21.03.2010 to 24.03.2010 and 01.04.2010 to 06.04.2010 and again from 12.04.2010 to 30.04.2010. Then again 08.05.2010 to 10.05.2010 and from 13.05.2010 to 20.05.2010 and again according to the complainant the cost of the repair for about Rs.35,000/- till now and stated that the engine is defective and hence came up with this complaint. In order to substantiate his case, the Complainant filed evidence by way of affidavit and produced Ex C1 to C6.
Opposite Party No.1 who is a dealer placed exparte. Opposite Party No.2 who is the manufacturer of the above said engine appeared through their counsel filed version and denied the defect of the engine sold and manufactured by them. It is stated that, for any equipment the customer is required to select the engine of right capacity then it should properly aligned to the equipment, when such alignment is proper then only the end equipment runs properly. It is stated that, there is no compatibility of engine fitted on the boat being used by the Complainant. This failure of engine was not due to manufacturing defect but is purely due to non-compatibility. This type of usage put restrictions on the satisfactory performance of engine. The equipment on which engine is fitted, its accessories etc. shall have direct impact on engine performance thereby resulting into poor performance and other corroborated failures. This fact has been brought to the notice of the Complainant. The Complainant cannot blame this Opposite Party No.2 and claim damages he has suffered for the willful and intentional abuse of the engine and further stated that, there was no manufacturing defect the failure of the engine was purely due to non use of the engine as per recommendations of the manufacturer of the engine. We observed that, Opposite Party No.2 despite of engaging an advocate not bothered to file affidavit to prove their respective case by producing evidence.
However, the counsel for the complainant filed notes of arguments stating that, the complainant is a fisherman owning fishing boat and have to go out for fishing, boat cannot be kept idle during the fishing season but the engine fitted to the boat had to be kept for repair at least on an average twice a month and submitted that since January 2010 till the end of April 2010, the boat had to be kept at the shore for repair. For more than 7 times and not taking the boat to the sea for fishing during the time when the engine was under repair and relied the bills i.e., Ex.C1 to C6 in order to substantiate the case of the complainant.
On scrutiny of the oral as well as documentary evidence and the admitted facts available on record, we find that, the repair/ attending the complaint of the Complainant is admitted, the sale is admitted, date of sale is admitted and problems caused within 4 months from the date of sale is admitted. Now the main question arise for our consideration is whether the engine has any manufacturing defect. It is nowhere said that the complainant is a mechanic/expert in manufacturing the engine. As we gathered from the complaint that he is a fisherman catching the fishes for eking his livelihood. When that being the case, one must see that how much knowledge he has got towards the engine but in order to prove his grievances, he produced the bills before this FORA to show that the above said engine kept for repair over and again but the Opposite Parties not denied the above documents nor lead any credible evidence. By looking into the bills issued to the complainant consistently show that the repair was done to fuel pump engine and most of the bills show repetition of the same work over and again. Because of the constant repair, the complainant had to keep the boat for repair. It is also shown to us by producing the exhaustive documentary evidence that since January 2010 till the end of April 2010, the boat had to be kept at the shore for repair more than 7 times i.e., from 06.01.2010 to 10.01.2010, 06.02.2010 to 07.02.2010, 12.02.2010 to 16.02.2010, 05.03.2010 to 13.03.2010, 21.03.2010 to 24.03.2010 and 01.04.2010 to 06.04.2010 and again from 12.04.2010 to 30.04.2010. Then again 08.05.2010 to 10.05.2010 and from 13.05.2010 to 20.05.2010. That itself shows that, not taking the boat to the sea for fishing during the time when the engine was under repair, the complainant had to incur financial loss rather inconvenience and mental agony. The above documents were not rebutted by the Opposite Parties in this case. But the Opposite Party No.2 who is the manufacturer filed a version stated that, the Complainant has purchased the engine, the same was fitted on the boat by the service engineers of the Opposite Party No.2. It is stated that, there is no compatibility of the engine fitted to the boat being used by the Complainant. This failure of engine was not due to manufacturing defect but is purely due to non- compatibility. This fact has been brought to the notice of the Complainant and stated that there is no manufacturing defect. Except filing the bare version, nothing has been produced before this FORA in order to show that, the engine fitted to the boat due to non-compatibility the engine was failure and the same is brought to the notice of the Complainant. Apart from the above, the aforesaid statement of the Opposite Party itself shows that, how irresponsible towards the customers herein the Complainant. Because when the subject engine is not suitable/compatible, it is the duty of the service engineer of the Opposite Party to advise the complainant to go for suitable engine. It is the duty of the manufacturer to advise the customer while installing their engine to the vessel or boat, it is the primary responsibility of the manufacturer to see that their machine should give expected results to the customers. It is not sufficient to say that, the engine has ascertained all the technical parameters of the sub engine etc., etc., at the same time while installing the engine i.e., a service engineers of the manufacturer should give a proper guidance / instructions to the consumers / herein the complainant with regard to the compatibility. If the engine is not compatible for Complainant’s boat one should not have allowed to purchase the said engine and later put in trouble. The Opposite Party admitted the failure of the engine but denied that it is not due to manufacturing defect.
In the instant case, we observed that, in order to prove the defect in the engine, the complainant produced Ex.C1 to C6 i.e., the bills issued after the service i.e., within 4 months from the date of delivery of the engine as discussed herein above, the above said engine has consistent problems and it has been repaired over and again. However, we are convinced that, the consumer / complainant has shown by producing exhaustive documentary evidence before this FORA i.e., all the bills, correspondences and admissions made by the manufacturer / Opposite Party No.2 that the machine is not mechanically perfect for use and it has problem every now and then. No doubt, where the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods. But it is not always necessary for the consumer to give expert testimony in a case of like this though the burden to prove the defect would be on the consumer, yet it must be understood that the consumer is not bound to pin point the precise nature of defect or its cause or its source. The expert testimony, it will add to the weight of the evidence. When the evidence produced by the complainant to show that the use of the machine has been substantially impact on account of the defects, it is sufficient to hold that the above said machine is not mechanically fit for use.
We observed that in a case the Hon’ble Delhi State Consumer Disputes Redressal Commission in Sunil V/s Tata Engineering Locomotive Company Ltd., and others reported in 2010 C.T.J. 169 held as under:
Motor Vehicle – Manufacturing Defect – burden of prove allegation of complainant in respect of defects in vehicle supported by job cards sufficient to put owners upon manufacturer to disprove manufacturing defect.
Similarly in the instant case, the complainant produced number of bills after the service of the above said engine is available on record, the same are sufficient to put the onus upon the manufacturer to show that the defects pointed out are not manufacturing are of inherent nature. To expect a consumer, who has already been wrong at the hands of the manufacturer or trader to incur expenses on obtaining expert opinion of any experts to show the defects is neither the object of the law nor the import of provision of Section 13 of the C.P. Act. Onus is heavily upon the manufacturer to prove that the defects pointed out are such that are not manufacturing defects in nature.
We also observed that, it is a misconceived notion that unless and until any goods suffering from manufacturing defects, it cannot be declared as defective goods and therefore no order can be passed in terms of Section 14(1) of the C.P. Act 1986 either directing the manufacturer to remove the defects or by replacing the goods with new goods of similar descriptions, which shall be free from any defects or return the price paid by him or to pay such amount as may be awarded for the loss suffered due to the negligence of the Opposite Parties. The quality and standard of every goods, much less a vehicle has to be tested strictly on the stern definition of defect as provided in Section 2(1)(f) of the Act, which means “any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or as is claimed by the trader in any manner whatsoever in relation to any goods”.
According to this definition, any kind of shortcoming, fault, imperfection or inadequacy in the quantity and manner of performance renders the goods defective.
Similarly in the instant case, it is proved beyond doubt that the engine manufactured by the Opposite Party No.2 has some fault and it is not mechanically fit for use. The documents produced by the complainant and admission made by the Opposite Party No.2 are sufficient to hold that the engine has some defect and mechanically not perfect. Hence, it gets often problem every now and then. Under that circumstances, the complainant is entitled either for replacement of the engine or for refund of the amount.
In the instant case, the complainant sought for refund of the amount. We observed that, even after engaging an advocate, they have not co-operated to proceed with the case is sufficient to hold that they are not bothered about the customers. The attitude of the Opposite Party No.2 itself shows that, they are careless. If a matter contested by way of written version then the parties have to prove their respective case by leading evidence. But in the instant case, the Opposite Party No.2 not filed affidavit nor produced any evidence. Further the Opposite Party No.2 in their version admitted that, the engine is not compatible. When that being the case, replacement of engine may not meet the ends of justice but we feel that refund of the sale price paid by the complainant will meet the ends of justice. In view of the above discussions, the complainant is entitled for refund of the sale price paid by him along with compensation and cost of the proceedings.
Generally if the goods have manufacturing defect, it is to be born by the manufacturer. But that would not mean that the dealer is absolved from joint and several liabilities. As we know, the manufacturer not deals with the customer directly. The dealer having received the amount, undertaken the free service and rectified the defects during the warranty does not escape liability towards the manufacturing defect found in the goods. The contract is through dealer, privity of contract is with him. To ensure execution expeditiously and immediately if necessary, by making the payment to the complainant initially and then it will be for the dealer to claim reimbursement from the manufacturer. Therefore, in the instant case, the dealer and the manufacturer both are jointly and severally liable for the defects found in the engine.
In view of the above, we direct the Opposite Parties No.1 and 2 jointly and severally liable to refund Rs.9,42,000/- along with interest at 12% p.a. from the date of receipt of the said amount till the date of payment is made. At the same time, the Complainant shall return the defective Cummins Engine along with accessories as mentioned in the retail invoice to the Opposite Parties. Apart from that, Rs. 1,000/- awarded as cost of the litigation expenses. Compliance/payment shall be made within 30 days from the date of this order.
However, the interest as well as compensation both cannot be allowed. Interest is always inclusive of compensation.
6. In the result, we pass the following:
ORDER
The complaint is allowed. Opposite Parties No.1 and 2 are jointly and severally directed to refund Rs.9,42,000/- (Rupees nine lakh and forty two thousand only) being the sale price by taking back the defective Cummins Engine along with accessories as mentioned in the retail invoice with interest at 12% P.A. from the date of receipt of the said amount till the date of payment and also directed to pay Rs.1,000/- (Rupees one thousand only) as cost of the litigation expenses. Compliance/payment shall be made within 30 days from the date of this order.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.
(Page No.1 to 18 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 24th day of March 2011.)
PRESIDENT MEMBER MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Mr. Ajit D’Souza – Complainant
Documents produced on behalf of the Complainant:
Ex C1 – 20.05.2009 – Retail Invoice No.042
Ex C2 – Form of Delivery Note.
Ex C3 – 28-03-2009 – Receipt for Rs.9,42,000/- Mapssons & Co.
Auto Pvt. Ltd.,
Ex C4 – Trip Sheet of complainant (Ex.C4(A) to C4(L)
Ex C5 – 22-03-2010–Bill No.157–Mapssons Sale (Ex.C5 (a) to C5(u)
Ex C6 – 27-04-2010 – Lawyer Notice.
Ex C6(a) & C6(b) – Acknowledgements.
Witnesses examined on behalf of the Opposite Parties:
Nil
Documents produced on behalf of the Opposite Party:
Nil
Dated:24/03/2011 PRESIDENT
