SMT. RAVI SUSHA : PRESIDENT
Complainant filed this complaint U/S 12 of the Consumer Protection Act 1986, seeking to get an order directing the OP to pay compensation of Rs.18,00,000/- for the loss suffered by the complainant due to the deficiency in service and unfair trade practice on the part of opposite party with compensation of Rs.1,00,000/- for mental agony suffered by the complainant.
Complainant’s case is that the complainant purchased a new Crane model ACE, Hydraulic mobile, crane chassis No.189913 Engine No.MNEM006779Y on 11/3/2009 from the OP. It had become defective on several occasions during its operation after purchase, and complainant spent more than two lakhs rupees for its repairs. The OP assured the complainant at the time of purchase of the vehicle that any defect occurring to the vehicle will be promptly rectified. But the OP has not done the repair work. Now the crane is lying idle for the last more than one year due to defect in its bearings in the gear box. When the complainant complained to the dealer at Cochin about its defect, they informed him that it is not possible to supply bearings alone because bearings is not supplied separately. It is to be purchased along with gear box. And that the bearing for want of which the crane has become non functional cost only about Rs.20,000/- on other hand complete gear box will cost approximately Rs.2,20,000/- which is not required to remove the defects existing in the crane. It is also submitted that because of non co-operative attitude, deficiency in service and restrictive trade practice adopted by the OP, the crane has become non functional for the last one year and the complainant has been incurring an average daily loss of Rs.10,000/- as income from the vehicle. Hence filed this complaint.
The opposite party contested the complaint on the grounds inter alia of territorial jurisdiction , limitation, commercial transaction , absence of evidence of manufacturing defects and deficiency in service on their part. It is stated by OP that the complaint is barred by limitation and the equipment purchased by complainant on 11/3/2009 and the complainant had last contacted the OP over phone in September 2011. In fact 2 years and six months have elapsed after the cause of action. Hence this complaint is barred by limitation U/S 24 (a)(1) of Consumer Protection Act 1986. In the present case the machine is out of warranty period. The complainant had contacted the manager of OP in Kochi in September 2011 and upon the instruction of the Manager of the Kochi office, the service manager of the company, reached out to the complainant to repair the equipment. However, the service engineer’s dismay, the gear box had been dismantled by some local unskilled technicians and the same gear box was found to be totally damaged. As a result the alignment of the bearings in the gearbox was fully damaged and unfortunately it became irreparable . It is also stated that the OP was very much ready to repair the gearbox on a minimum fee. The complainant told the service engineer that as the warranty was not available for him, the company may probably demand more compensation for the repair so he had resorted to some local automobile work shop and hired their technicians. So if any fault is occurred to the equipment it is solely due to the mishandling of the same by the complainant which is against the terms and conditions stipulated in the operation manual. The conditions in the warranty policy are effectively and eventually contracts between the manufacturer and the consumer and any violation of the conditions are absolutely at the consumer’s own risk and he should bear the brunt. The complainant is not entitled to any cost or compensation at the expense of this OP. Actually the service engineer had visited his premises as and when the complaint was received and took stock of the situation and properly enlightened the complainant about the mistake and mischief he has knowingly or otherwise done on the equipment. Putting his machinery as idle was his own choice and the OP cannot in any way restrict the complainant. Hence prayed for dismissal of complaint.
At the evidence stage complainant filed affidavit was examined as PW1. Exts.A1 to A5 were marked as documents on the side of complainant. Manager of Op filed his chief affidavit and was examined as DW1. Exts.B1 to B9 were marked as documents on the side of OP. the expert commissioner appointed in this case was examined as a witness of OP and reports were marked as Exts.C1 to C3. After that, the learned counsels of complainant and opposite party filed their written argument notes.
We have carefully considered the records as filed by the revival sides and their submissions.
In the present complaint, one of the main ground raised on behalf of OP is that this commission has no territorial jurisdiction to entertain this complaint. OP has stated that the transaction was not made in the territorial jurisdiction of this commission, further OP does not have any office here. OP stated that the crane was purchased from Kochi, so as per Sec. II of Consumer Protection Act, Ernakulam CDRC has jurisdiction to adjudicate this case. On this issue we are relying upon the provision in Section 12 (I)(a) in the Act 1986 to hold as the goods were delivered and used in Kannur, the jurisdiction lay with the District Commission at Kannur. In terms of the provision in Sec.II(i)(c) the jurisdiction would lie with the District Commission where the cause of action has arisen, whether wholly or in part . In the present case, the cause of action arose in Kannur, where the goods were received and utilized. We therefore, hold that this commission has rightly exercised over the consumer complaint in this case.
Another ground raised on behalf of OP is that of limitation. It is contended that the complainant had purchased the equipment on 11/3/2009 and the complainant had last contacted the OP over phone in September 2011. This complaint was filed after 2 years and six months after the cause of action arised. Hence this complaint is barred by limitation U/S 24 (a)(1) of Consumer Protection Act 1986. OP contended that the averment of complainant that on 27/5/2013 the Deputy Manager of OP visited the office of the complainant at Valapattanam and discussed about the repair of the crane and prepared minutes is not correct. OP contended that the complainant had contacted the Manager of OP in Kochi in September 2011 and upon the instruction of the Manager of the Kochi office, the service manager of the company, reached to the complainant’s premises to repair the equipment. For clarification of these contradictory statement, no evidence was led before the commission to show that after 2011 September, there was direct dealings between the parties. Here complainant could have produced the certified copy of minutes signed by both parties. Sending of the notice Ext.A5 is not sufficient to extend the period of limitation. It is seen that this complaint has been filed on 25/2/2014. Therefore in our view, this complaint is barred by limitation.
The 3rd issue raised by OP is that this complainant does not come under the purview of a consumer as the crane was purchased by him for commercial purpose.
Opposite party e contended that in the lawyer notice(Ext.A5), the complainant is described as contractor. Further stated that PW1 deposed that he is the person who runs Khalasi Trade service and has 12 employees. Further complainant deposed that he had 2 cranes in his name when he filed this complaint and has another recovery van in his name. PW1 further stated that he has taken GST registration. PW1, also deposed that he and his laborers are lifting heavy gas tanker lorries all aver Kerala. According to OP all the evidences and Exts.B7 series photos and CD(B13) clearly establish that the complainant in conducting a large scale business and the crane in question of this case purchased not for self employment but for commercial purpose.
On perusal of the facts and evidences of this case, the complainant stated that due to non-functioning of crane, he has lost Rs.10,000/- per day. It is also stated that the OP has not co-operated the complainant’s complaint to rectify the defect in the gear box by replacing the bearing parts. Complainant also stated that due to the defect of the equipment on several occasions during its operation after purchase, he had to spent more than two lakhs rupees for its repairs. For substantiating the said allegation, no piece of evidence is produced before the commission.
It is to be noted that nowhere in the complaint, or in chief affidavit complainant stated that he purchased the crane in dispute for his livelihood by self-employment. From the evidence of PW1, it is clear that the crane is functioning by employing on regular basis employees. The burden is on the complainant to prove that he himself using the vehicle without employed any workman. Further as per the warranty conditions(Ext.B6) the warranty is for a period of six months or 1000 hours of use whichever occurs first from the date of delivery of machine to first from the date of delivery of machine to first buyer. Here there is no dispute the defect in question arose after the warranty period.
Hence from the facts and evidence available before us, we are of the opinion that the complainant had purchased the vehicle in question for commercial purpose and hence complainant is not a consumer within the meaning of Sec.2(1)(d) of the Consumer Protection Act 1986.
Next on analyzing the expert commission report Ext.C3 prepared by Engineer K.Raveendran,Asst. Professor in Mechanical Engineering, we can see that he has reported on inspection of the crane as
‘1.The Auxiliary gear box is found in a dismantled position, the casing of the gear box is plaed inside the driver’s cabin of the vehicle along with four universal coupling flanges carelessly placed here and there. These couplings are used for the external connection with the engine to transmit power to the gear box.
2. The gear box casing is found empty , gear wheels, bearings, sliding sleeve, sliding dog clutch,main shaft,front& rear output shafts, lay shafts, guide wheels, clutch body etc were not seen with the gear box casing.
3. As the complainant told me that the remaining parts are kept at an automobile work shop nearby. On request by the complainant I went to the workshop along with both parties. There I have seen the following one Nos. of items, Lay shaft assembly with gear wheels, output shaft with idle gear, speed change fork, and bush.
A gear box of this type vehicle may contain about more than 60 items considering small and big parts. But here I am able to see only about 12 items including the tiny parts.
Inference as per the findings: the important parts like sliding sleeve, sliding dog clutch, main shaft, front& rear output shafts, guide wheels, clutch body ,spur gears, bushes and bearings and associate parts of the gear box are found missing. This type of gear box contains 4 shafts to transmit power smoothly, but only two shafts were found and these shafts have no notable damages.
To identify the made of failure, the parts of the gear box are not completely produced before me, so it is very difficult to come to a conclusion about the failure. The parts which I have physically inspected are found in good condition except one gear wheel whose hub is slightly broken and is due to hammering.’
On considering the report and he has concluded that if the bearing of the gear box is found damaged, there is no need of replacing the gear box completely, only the bearing can be replaced and the gear box will function normally. He has also reported that though this gear box is the main cause of failure of the mobile crane , it should have been preserved well for identifying the cause of failure. ‘ Now it is not possible to identify the reason for damage and stated the available parts 12 items available, about more than 40 items not available, no damage noticed. In Ext.C2 report it is stated that parts like gears, bearings, power and Lay shifts everything inside the gear box are found missing. In Ext.C2, report the expert opined that the damage happened to the bearing may be caused due to over loading or improper handling of the machine and also opinioned that the machine have no manufacturing defect. In further the expert was examined as a witness on the side of OP(DW2). During examination, he would depose that he had demanded log book to complainant but it was not delivered. Further deposed that on verification service details he could have assess the kilometers riding of the vehicle and whether made over load of the vehicle.
It is also revealed that the bearing parts was taken for repairing in an unauthorized center, so there is violation of terms of warranty. The non delivery of log book to expert, presume that the vehicle was being misused and was being overloaded.
In view of the material on record and oral evidence, this complaint is barred by limitation, complainant cannot be considered as a consumer within the definition of Section 2(1)(d) of Consumer Protection Act 1986. Besides, this the parts of the vehicle was taken to an unauthorized workshop, there was violation of terms of warranty. So we are of the view that there was neither deficiency in service nor negligence on the part of opposite party. Hence complainant is not entitled to get relief from the opposite party.
In the result, complaint fails and stands dismissed. There is no order as to costs.
Exts;
A1-Invoice dtd.11/3/2009(Subject to proof)
A2-RC
A3-Insurance policy
A4-Service report
A5- lawyer notice
B1-Predelivery inspection report dtd.11/3/2009
B2-installation report
B3-1st free service report dtd18/4/2009
B4-2nd free service report dtd.5/6/09
B5-3rd free service report
B6-warranty
B7 series-photographs
B8-catalogue dtd.13/3/17
A9-photograph along with Mathrubhoomi daily.
B10-report about the firm of the company
B11-RTA reply dtd.17/6/2014
B12-Mathrubhoomi daily dtd.30/8/15
B13-CD
B14- terms and conditions
C 1to C3- expert reports
PW1-K.A.Hashim-complainant
DW1-Joyi Mathew- witness of Op
DW2- K.Raveendran- Expert commissioner
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew. Sajeesh K.P
eva
/Forwarded by Order/
ASSISTANT REGISTRAR
