Orissa

Debagarh

CC/48/2019

Bhola Mahapatra, aged about 35 years, S/O-Umakanta Mahapatra - Complainant(s)

Versus

The Proprietor, M/S ESSCONS - Opp.Party(s)

28 Feb 2020

ORDER

BEFORE THE PRESIDENT, DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, DEOGARH

C.C NO-48/2019

Present;-      Sri Dipak Kumar Mahapatra, President, Smt. Jayanti Pradhan, Member(W) and Smt. Arati Das, Member.

 

Bhola Mahapatra, aged about 35 years,

S/O- Umakanta Mahapatra,

R/O-Bhitiriasahi, Ward No-1,

P.O/P.S/Dist-Deogarh.                                                                    …Complainant.

 

Vrs.

1. The Proprietor,

          M/S ESSCONS,

          At- Plot No-2, Mancheswar Industrial Estate,

          Bhubaneswar, Odisha.

2. The Manufacturer,

          KIRLOSKAR OIL ENGINE LIMITED,

         A Kirlosker Group of Company,

         LaxmanRao Kirloskar Road,

         Khadki,Pune-411003(INDIA).                              … Opposite Parties.

 

               Counsel for the parties :

               For the Complainant :       Nemo

               For the Opp. Party-1:         None

               For the Opp. Party-2:        Sri B.N. Padhiary & R.M. Behera, Advocates.    

 

DATE OF HEARING :10.02.2020, DATE OF ORDER ; 28.02.2020

Smt. Jayanti Pradhan, Member(W):-   Brief facts of this case is that the  Complainant for his livelihood has  purchased a 10/7 Concrete Mixture Machine with Lift & Hopper from the O.P-1 on payment of Rs.3,77,600/- where a  10 h.p Kirloskar Air Cool Engine is fitted with it and has a manufacturer warranty of one year from the date of purchase. On dtd. 23.12.2019 when the machine did not start, the Complainant sought to avail service and made telephonic contact with the O.P-1. A service personnel came, inspected and suggested to replace it. The Complainant wanted to get it replaced from the O.P-2 through the O.P-1 but in vain. The O.P-1 directed the Complainant to bring the defective machine to his workshop with his own expenditure to get it repaired or make contact with the O.P-2 and he(O.P-1) stated that being a dealer he has nothing to do with warranty or to provide post-sale services. The Complainant could not avail necessary services in spite of having a Warranty Card, rather harassed by the O.Ps.  According to the O.P-2 Complainant failed to submit relevant genuine documents to strengthen his claim. As the Complainant is negligently using 10 HP Kirlosker Air cooling Engine which is fitted with the mixture machine for commercial activity and making profit, he is not a consumer. The O.P-2 is not get informed regarding the seizure of the engine. Again he stated that there is no inherent manufacturing defect in the said engine so the Complainant is not eligible claim damages under warranty. But the O.P-2 is ready to repair, replace the engine only if the Complainant brings this engine to the showroom of O.P-1.

POINTS OF DETERMINATION:-

1. Whether the Complainant is comes under the purview of Consumer Protection Act.1986?
2. Whether the O.Ps has committed any Deficiency in Service and Unfair Trade Practice to the Complainant?

              From the above discussion and material available on records we inferred that the Complainant comes under the purview of consumer of the O.Ps as he has purchase Concrete Mixture Machine with Lift & Hopper from the O.P-1 for self-employment. It is the contention of the Advocate for the O.P-2 that the purchaser of a Mixture Machine for commercial purpose could not be a consumer even if the defects were detected within the period of warranty. In the decision in the case of “Laxmi Engineer Works vs. P.S.G. Industrial Institute (Supra)” it has been held that if a buyer takes the assistance of one or two persons to assist/help him in operating the vehicle or machinery, he does not cease to be a consumer. In the instant case it is submitted by the complaint that the Complainant is a self employed person and is engaged in the business of construction of building by letting of equipments and this is the only means of his earning livelihood. Since the

 purchase of the mixture machine is for the self employment of the consumer it cannot be said that the complainant ceased to be a consumer.  This matter has been well settled in the matter of Action Construction Equipment ... vs Sri Bablu Mridha decided on 20 July, 2012 by National Consumer Disputes Redressal, New  Delhi.  Again the service personnel of the O.P-2 was not in a position to repair the machine for want of replacement parts. It also shows that the machine was under break down and that replacement would be made.  On every sale of motor vehicles or any equipments by a manufacturer to dealer there may be an implied warranty that it is reasonably fit for, or adapted to, the uses for which it is made and sold; and such a warranty is not excluded by the silence of the contract of sale as to warranties." Replacement of the entire item or replacement of defective parts only called for. This matter has been properly established in the case of Maruti Udyog Ltd vs Susheel Kumar Gabgotra & Anr on 29 March, 2006 decided by Supreme Court of India. As the O.Ps have not provided proper service to the Complainant within the warranty period rather he remained silent over the matter which amount to gross negligence on the part of the O.P. It also amounts to “Deficiency in Service” u/s 2(1)(g) on the part of the O.P and his trade practice is not fair 2(1)(r). In the said circumstances the complaint filed by the Complainant is allowed exparte against the O.P. and we order as under:-

ORDER

The complaint Petition is allowed. Under the circumstances we hereby direct the O.Ps jointly and severally to replace the defective 10 h.p Kirloskar Air Cool Engine fitted with the Concrete Mixture Machine with Lift & Hopper and provide a brand new defect free 10 h.p Kirloskar Air Cool Engine of same model and make or refund the cost of the said engine to the Complainant . Further the O.Ps are jointly and severally directed to pay an amount of Rs. 20,000/-(Rupees Twenty Thousand) towards compensation for loss, mental pain and agony and Rs. 5,000/-(Five Thousand) towards cost of litigation.  All the above direction are to be complied within 30 (Thirty) days from receipt of this order, failing which, the Complainant is at liberty to proceed in due process of law.           

            Office is directed to supply the free copies of the order to the parties receiving acknowledgement of the delivery of thereof.

            Order pronounced in the open court today i.e. 28^th of February, 2020 under my hand and seal of this Forum.

 

I      agree,                                         I     agree,

                                   

MEMBER.                                          PRESIDENT .                                   MEMBER(W).        

 

          Dictated and Corrected

              by me.

 

     MEMBER(W).