BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BAGALKOT.

COMPLAINT NO.1/2015

DATE OF FILING: 01/01/2015
 

ORDER DATED: ____ day of September, 2017

   P r e  s e n t: 

01) Smt. Sharada. K.                                                  President…

     B.A.LL.B. (Spl) 

02) Smt. Sumangala.C.Hadli.                            Lady Member…

                            B.A (Music)

JUDGEMENT DELIVERED BY SMT.SHARADA.K.PRESIDENT

The complainant has filed this Complaint u/s 12 of Consumer Protection Act, 1986 against the Opposite Parties (herein after referred in short as OPs) for seeking direction to OPs to replace the Escort Vibratory Roller HD-85 of the complainant with new one having good condition, Rs.15,50,000/- being the costs of the vehicle with 18% p.a. , Rs.3,00,000/- towards the loss sustained by the complainant for non use of the said vehicle, Rs.30,500/- towards cost of the spare parts, Rs.1,00,000/- towards mental agony, Rs.1,000/- towards cost of notice, Rs.5,000/- towards cost of litigation and other reliefs deemed fit under the circumstances of the case.

2.    The brief fact of the case are as follows:

The complainant is Class-I Civil Contractor dealing with Civil and Construction work. The complainant purchased Escort Vibratory Roller HD-85 (herein after referred in short as Roller). That OP No.2 and 3 approached the complainant and requested him to purchase the Escort Vibratory Roller HD-85 through them. At that time, OP No.2 and 3 represented to the complainant that the said Roller is having standard quality and will carry in warranty of 1 year. That the Ops represented to the complainant that they will give better service through their service centre situate at Ilkal. That the OP No.1 to 3 also represented the complainant that they will arrange financial assistance from Sri.Ram Equipment Finance for the purchase of said Roller.

3.      On the basis of assurance of the Ops, the complainant purchased the said Roller of Rs.15,25,000/- on 29.03.2014. The complainant applied a loan of Rs.11,43,000/- from Sriram Equipment Finance for the purchase of the said Roller and the remaining amount was paid by the complainant. The complainant paid monthly installments of Rs.33,398/- from the income of the said Hyundai Hydraulic Excavator.

4.      The said Roller supplied to the complainant is of low quality. The complainant has faced so many problems in running the said Roller. The complainant brought the said fact to the notice of OP No.2 and 3. At that time, OP No.2 sent their service personnel to attend and found that the said Roller is having problem with drum, sprinkler pump, water pipe, Nozal pipe, Hazard switch and defect with battery and also told that some of the spare parts of the Roller are to be replaced. At that time, the service personnel of the OP No.2 and 3 asked the Ops to bring some parts representing that the said parts are not available with the OP 2 and 3, though it was bounden duty of the Ops to replace the defective parts of the Roller at their cost during the warranty period. That the complainant no other way, parts of the Roller are purchasing in other private distributors in different districts and spent about Rs.10,000/- towards taxi hire charges. OP No.2 and 3 made a farse of repairing the said Roller on 09.04.2014. Now the said Rollers kept idle from 31.03.2014 to 09.04.2014.  

5.      On 29.03.2014 found defect Roller, inspite of repair and replacement of the part mentioned above, the problem with the said Roller was not corrected. The complainant again calling upon OP No.2 and 3, the service personnel checked the said Roller and there is same problem again and till yet complainant facing problem. The complainant is a contractor and was earning his income from the use of the said Roller. The complainant has sustained huge loss of Rs.3,00,000/-. It is bounden duty of the Ops to replace the defective part and repair the said Roller during the warranty period, the Ops are insisting upon the complainant to bring the parts of the said Roller. The complainant got issued notice to the Ops by RPAD on 24.06.2014 calling upon the Ops to replace the Roller with new one having good condition or refund the sale consideration amount of Rs.15,25,000/- and also refund the amount of Rs.30,500/- towards the costs of the spare parts forced to be purchased by the complainant etc. The said notices are duly received by the Ops. The OP2 with an intention to avoid its liability got issued false reply to the said notice. Hence, Complainant has filed this Complaint for replacement of Roller with new one having good condition or refund the sale consideration amount of Rs.15,25,000/- and other reliefs deems fit under the circumstances of the case.      

6.      After receipt of notice, OP No.1 and 2 appeared through their counsels and OP No.3 and 4 remained absent and placed Exparte. OP No.1 filed Written Version.

WRITTEN VERSION OF OP NO.1:-

 The Complaint is not maintainable either in law or on facts. The present Complaint filed by the complainant is false, frivolous, vexatious and vague in nature. It further does not disclose any cause of action against the answer OP and hence is liable to dismissed in limine. OP also submitted that the complainant had purchased the said machine solely for the commercial purpose and with a view to make profit by undertaking hiring and excavation activities etc. Hence, Complaint is devoid of any merit and is liable to be dismissed with costs, as the Complaint is untenable in law. The complainant has filed the present Complaint to take undue advantage of his own wrongs. The complainant at the time of the delivery of the machine was duly informed about the ideal way to use cum mandatory service schedule to be followed also the same was provided in writing in the form of service booklet handed over to him. However, the complainant since beginning stayed irregular and even on repetitive phone reminders from Ops failed to avail the mandatory free services in time. It is the duty and responsibility of the complainant to follow the service schedule and gets the machine serviced in time. The complainant has not approached the Hon’ble Forum with clean hands and trying to deceive the Hon’ble Forum.

7.      OP also submitted that the complainant purchased machine for Rs.15,25,000/- on 29.03.2014. However, the said machine purchased by complainant was Escrots Vibrator Roller and not the Hyundai Hydraulic Excavator. The OP strongly denied that machine supplied to the complainant was of low quality or the same suffered with manufacturing defects. The answering OP in order to bring correct picture before Hon’ble Forum submits that the complainant purchased the machine after due inspection and field trial on 29.03.2014. However, at the time of pre delivery inspection of machine on 01.04.2014 officials of OP observed that the machine during transit developed some minute defects in its child parts after which the OP immediately took the machine to work ship for repair purposes. However, as the parts were small and due to delay in delivery from plant to dealership by logistic company, some of them were not available at dealership. The OP requested the complainant to wait for one week as by then the parts will be available. However, the complainant did not agreed to the same and brought the unavailable parts of un-genuine nature from some outside shop and instructed Ops to replace the same. It is vehemently denied that complainant ever made any request for replacement of machine as the same is working satisfactorily and complainant is earning lot of profit from the same via rent. Hence, OP may kindly be dismissed with cost in the interest of justice and equity.

WRITTEN VERSION OF OP NO.2:-

 The Complaint of the complainant is false, vexatious, not maintainable in law or on facts. The Ops 2 denies the entire allegations made in the Complaint which are not specifically admitted herein by the OP2. The allegations made in Para No.1 to 8 of the Complaint are denied. This Complaint is not maintainable for the simple reason that as on the date of filing of the present Complaint, there is no privity of contract between the complainant and this OP. OP also submitted that it is very much regular in providing its service as per the warranty conditions by strictly adhering to the conditions more fully mentioned in the warranty conditions. That the warranty period of six months was coming to end in the month of August, 2014 in order to have the wrongful gain of replacement of the machinery complainant created the false, imaginary and concocted story of defective machinery and deficiency in service against the OP2. There is no cause of action arose for filing of the Complaint because the very Complaint is filed on the false and imaginary grounds and from the Complaint it clearly and unequivocally reveals that the complainant had suppressed the facts of availing all the services provided by OP No.2 by willful misrepresentation before this Forum. Therefore, it is prayed that the Hon’ble Forum be pleased to dismiss the Complaint with exemplary costs.      

8.      The complainant tendered affidavit evidence and filed documents in support of his case. OP No.2 are filed affidavit evidence and OP No.1 and 2 are filed documents in support of their case. The complainant and OP No.2 have filed Written Arguments. After considering the material placed on record, the following points that arise for our consideration are:-

       i) Whether the OPs have rendered deficiency in service to

          the complainant?

       ii) Whether the complainant is entitled to the relief as is

            sought for?

       iii) What Order?

          After considering the arguments advanced by the learned counsel for both parties and the material evidence placed on record, our findings for the above points are as follows;

1.  
2.  
3. As per final order;

-: R E A S O N S :-

9.  POINT NO.1:-  In the instant case, it is not in dispute that on 29.03.2014, complainant purchased Escort Vibratory Roller HD-85 to OP NO.1 and 2 of Rs.15,25,000/-. At that time, they represented to the complainant that the said Roller is having standard quality and will carry in warranty of 1 year. This is also an undisputed fact that the complainant applied a loan of Rs.11,43,000/- from Sriram Equipment Finance for the purchase of the said Roller and the remaining amount was paid by the complainant. The complainant paid monthly installments of Rs.33,398/- regularly. But, after some few days, the complainant has faced so many problems in running the said Roller. The complainant brought the said fact to the notice of OP No.2 and 3. At that time, OP No.2 sent their service personnel to attend and found that the said Roller is having defective one. It is bounden duty of the Ops to replace the defective part and repair the said Roller during the warranty period, but the Ops are insisting upon the complainant to bring the parts of the said Roller. Hence, Ops made deficiency in service.

10.    On the other hand, Ops contended in their Written Version, the complainant at the time of the delivery of the machine was duly informed about the ideal way to use cum mandatory service schedule to be followed also the same was provided in writing in the form of service booklet handed over to him. However, the complainant since beginning stayed irregular and even on repetitive phone reminders from Ops failed to avail the mandatory free services in time. It is the duty and responsibility of the complainant to follow the service schedule and gets the machine serviced in time.   

The main contention of the complainant that OP No.1 is a General Insurance Company which is dealing with insuring the vehicles against accidents etc. and to pay compensation whenever the fact arises in pursuance of the Terms and Conditions of the insurance policy. It is also Op No.1 admitted that the motor vehicle bearing No. KA 29/M-7198 was insured for the period from 23.04.2012 to 23.04.2013 thus on the above said period was to expire again he got renewal the policy from 24.04.2013 to 23.04.2014 by paying the premium amount of Rs.16,834/- which was accepted by the OP No.1 and issued a policy for the above said period. So the contract was completed and it is binding on both the parties. But, later the OP No.1 demanded the complainant to pay an additional premium of Rs.3,039/- with short fall amount. It was upto the OP No.1 and 2 bearing to the notice of the complainant, the premium amount that is to be paid by him and taken them only the renewal premium amount. If that was so, the complainant could have paid the entire premium amount once the contract is complete and the parties took to perform their post of the contract they are bound to perform it, policy was reduced to a short period. But there is no provision under the insurance law to issue a policy less than one year. The insurance company when it received a lesser amount than reduced they should have returned the amount received by complainant and asked the complainant worth the full amount for using his vehicle which is not done by it. Before shortening the period of the insurance policy that if due over not pay the short fall premium, the insurance period will be reduced, there is no provision under the Insurance Law for issue of policy for short period than one year. Hence, the act of OP No.1 in reducing the period of insurance is bad and not acceptable. OP No.1 has filed his Objections to the said Complaint in Para No.2 of Objection admitted that there is a contract of insurance between complainant and OP No.1 and that there is a policy of insurance as alleged by the complainant.

7.      Further, during the course of arguments, the counsel for the complainant has relied on the citations. It has been ruled in the case of Indira Gutpa V/s Oriental Insurance Company, 1997 CPJ 218 that once the cover note is issued, it is to be presumed that it was issued after necessary verification.

8.      Therefore, this is none other than deficiency in service rendered by the OP No.1. Once the deficiency in service is proved, the next point is how much compensation is entitled for? The discussions we reach to conclusion that OP No.1 shall have to pay an amount, loss and damage sustained to the vehicle as estimated by OP No.2-Company Rs.7,02,312/-, towards mental agony of Rs.5,000/- and cost of Complaint is Rs.2,000/-. Hence, we answer Point No.1 in partly in the affirmative.      

9.  POINT NO.2:  In view of partly affirmative finding to Point No.1, we proceed to pass the following:

:: ORDER ::

1. The complaint is allowed in part.
2. The OP No.1-Insurance Company have to pay a sum of Rs.7,02,312/- (Rupees seven lakh two thousand three hundred and twelve) towards loss and damage sustained to the vehicle as estimated by OP No.2-Company.
3. Further, OP No.1 is directed to pay Rs.5,000/- (Rupees five thousand) towards mental agony and Rs.2,000/- (Rupees two thousand) towards cost of litigation.
4. Claim against OP No.2 is hereby dismissed.
5. OP No.1 is hereby directed to comply the order of this Forum within a period of sixty days from the date of receipt of the Order, failing which the above said amount of Rs.7,02,312/- shall carry interest at the rate of 12% per annum from the date of order, to till realization.

    6) Send a copy of this Order to both parties free of cost.  

(Dictated to the Stenographer, transcribed by him, corrected and then pronounced by me in the Open Court 16^th day of September, 2017)