Tamil Nadu

Nagapattinam

CC/18/2014

Selventhiran - Complainant(s)

Versus

The Proprietor, Uthayam Powers and Two others. - Opp.Party(s)

R.Balaji

25 Nov 2014

ORDER

   Date of Filing      : 01.04.2014

                                                                                         Date of Disposal : 25.11.2014

           

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

NAGAPATTINAM

 

PRESENT: THIRU.P.G.RAJAGOPAL, B.A.B.L.,         …..PRESIDENT

    THIRU.A.BASHEER AHAMED,B.Com., ….  MEMBER I

               Tmt. R.GEETHA, B.A.,                             …. MEMER II

 

CC. No.18/2014

 

DECIDED ON THIS 25^th DAY OF NOVEMBER  2014.

 

Selvendiran

S/o Kandhasamy

No.80, Middle Street,

SamanthanPettai,

Nagapattinam.                                                                      …      Complainant

                                                                                                  

                                                                /versus/

                                  

1. Proprietor,

     Udhayam Powers, 3/142,  

            Tiruvarur Main Road,

            Puthur, Nagapattinam.

2. Naviya Technologies,

     Mahindra & Mahindra Ltd.,

            Powerol Buildings, 1^st floor,

            Mahindra towers, 17/18,

            Pattulas road, Chennai – 600 002.

3. Naviya Technologies,

     Mahindra & Mahindra Ltd., 104,

            Building No.8, Sannkruti Apartments,

            90ft. Road, Thakur complex,

            Kandivali (East), Mumbai -101.                                         … Opposite parties

            

 

            This complaint having come up for final hearing before us on 18.11.2014 on perusal of the material records and on hearing the arguments of Thiru.R.Balaji, Counsel for the complainant, Thiru.S. Karthikesh  Counsel for the 1^st opposite party, the 2^nd and 3^rd opposite parties having been set exparte and having stood for consideration, till this day the Forum passed the following

ORDER.

     By the President, Thiru.P.G.Rajagopal, B.A.B.L., 

This complaint is filed by the complainant u/s 12 of the Consumer Protection Act 1986. 

                        2. The gist of the complaint filed by the complainant is that the complainant  purchased a Steam Boat Engine from the 2^nd and 3^rd opposite parties through the 1^st opposite party on 11.10.2012 for Rs.4,90,000/-, the engine no being G9129004842 with  200HP.  The engine was fixed in the boat and, started functioning on 29.12.2012.  But the engine’s consumption was more than the normal quantity of fuel and genarated abnormal heat so as to stop the functioning of the engine itself and as the engine stopped in the midst of the sea while fishing,  the complainant had to spend Rs 1,50,000 to bring the boat to the sea shore.  When complainant informed the opposite parties the 2^nd opposite party sent a mechanic to set right the defect but even thereafter there was no improvement in the functioning of the engine.  Instead of genarating the heat at 50 to 60 degree,  the engine genarated 90 to 110degree and inspite of the consumption of 9 ltr of disel per hour, the engine started consuming 13 to 15 ltr of diesel per hour, When again complained to the 1^st opposite party the latter promised to replace it with new 240HP power engine and the complainant  paid  Rs.70,000/-to the complainant for the said 240Hp engine.  But the 1^st opposite party is evasive without replacing the 240HP engine and hence the complainant could not carry out the avocation of fishing and sustained untold mental agony, hardship and loss of income.  The complainant sent a notice through his lawyer to the 1^st and 2^nd opposite parties calling upon them to replace the engine and pay compensation of Rs.15,00,000/- towards hardship, loss of income and the suffering sustained by him.  The notice sent to the 2^nd opposite party is returned back unserved and the 1^st opposite party though received the notice neither sent a reply nor complied with the demand of the complainant. Hence the complainant prays for an order to direct the opposite parties to pay the sum of Rs.10,00,000/- towards compensation for mental agony, inconvenience and hardship caused to him, Rs.3,00,000/- towards the expenditure for towing the steam boat from the midst of the sea to the shore twise owing to the non functioning of the engine and Rs.6,00,000/- for the loss of income at the rate of Rs.1,00,000/- per month with interest and also the cost of this litigation.

                        3. The gist of the written version filed by the 1^st opposite party is that the 1^st opposite party is the approved dealer for the supply of Mahindra & Mahindra engine and dealership was not given to anybody in Nagpattinam in 2012.  The 2^nd opposite party used the address of the 1^st opposite party, who had been dealing with UPS materials of the Mahindra company and the dealership for Mahindra & Mahindra engine was given to the 1^st opposite party only in the year 2013, Therefore there is no business relationship between the complainant and the 1^st opposite party at the time of the purchase of the marine engine by the complainant  from the 2^nd opposite party.  The 1^st opposite party sent back the engine sold to the complainant to the 2^nd opposite party with defects and the Mahindra & Mahindra company promised  to replace it with another lattest model of the engine. There was no stock of the said engine  sold to the complainant but the complainant wanted the same model., Mahindra & Mahindra company is ready to replace with the new model of the engine to the complainant and the 1^st opposite party has also undertaken tot get the new model of engine and deliver to the complainant in replacement of the engine  sold to him.   The 1^st opposite party has not received any sale price from the complainant.  Therefore the complaint is liable to be dismissed as against the 1^st opposite party who is the unnecessary party to this complaint.

                        4. The complainant has filed his proof affidavit reiterating all the averments made in the complaint and has filed 9 documents which are marked as Exhibits A1 to A9.  The 1^st opposite party has also filed his proof affidavit in support of his defence and he has filed two documents which are marked as Exhibits B1 to B2.  In lieu of arguments the complainant has filed a memo stating that the averments in his proof affidavit shall be treated as his written arguments.  The 1^st opposite party has filed his written arguments.

5. Points for consideration:-

1. Whether there is deficiency of service on the part of the opposite parties?

                      2. Whether the complainant is entitled to any relief? If so to what?

                        6. The main allegations of the complainant is that the engine having 200 HP purchased from the 2^nd opposite party through the 1^st opposite party had become totally defective and it could not be used  at all in the boat by the complainant to carry out his avocation of fishing and he had to spend a sum of Rs.3,00,000/- even to tow the boat to the shore from the midst of sea as it had twise broken down owing to the failure of the engine.  The engine was having manufacturing defect as it was generating heat from 90 to 110 degree instead of 50 to 60 degree besides consumption of more than 13 to 15 ltrs fuel per hour instead of the normal consumpton of 9 ltr per hour.  Further the 1^st opposite party received an additional amount of Rs.70,000/- and promised to exchange the said defective engine for the new engine with 240 HP.  But he has failed to fulfill his promise with the result that the complainant is suffering from mental agony, loss of incom and additional expenditure.

                        7  The 2^nd and 3^rd opposite parties have remained exparte inspite of their receipt of notice of this complaint and their conduct gives an inference that they have no defence as against the allegations of the complainant regarding the defective nature of the marine engine supplied to the complainant .Even the 1^st opposite party is not having any serious objections in this case and his contention is that he had only delivered the marine engine to the complainant at the time of sale and he was only dealer in UPS parts of the Mahindra company and only from January 2013 onwards, he became he dealer of the engine of the Mahindra and Mahindra company who was ready to supply a fresh marine engine of lattest model  but the complainant had not accepted the offer and was very particular to have a new engine of the same model only.The sale of the marine engine, the defect of the engine in generating more than the required measure of heat and consumption of more fuel,  the acceptance of the Mahindra Ltd., company  to provide the complainant with a new engine and the taking back to the custody of the defective engine by the 1^st opposite party in order to deliver the new engine are all admitted facts. 

                        8. Exhibit A1 is the receipts for payment of sale price of the engine to the 1^st opposite party, Exhibit  A2 is the Commercial Invoice given by the 3^rd opposite party, Exhibit A3 is the letter given by the 1^st opposite party accepting to provide the complainant  witht the new engine, Exhibit A4 is the letter of acknowledgment given by the 1^st  opposite party to the  complainant for the receipt of the defective engine sold to the complainant, Exhibit A5 and A6 are the receipts for the payment of Rs.30,000/- and Rs.40,000/- respectively, towards payment of the additional amount of the Rs.70,000/- for the supply of the lattest model marine engine having 240 HP.  Exhibit B1 is the letter of intent given by the 3^rd opposite party to the 1^st opposite party nominating as the dealer of Mahindra  Authorised Genset & Industrial Engines Service Center, Exhibit B2 is the delivery challan for delivery of 5 marine engines to the complainant and other 4 persons.  It is pertinent to note that the Exhibit A7 is the notice sent by the complainant through his lawyer to the 1^st and 2^nd opposite parties to which they have not sent any reply.  Even though the 1^st opposite party had denied in the written version that he has not susequently received any sale consideration, Exhibits A5 and A6 are the receipts dated 31.10.2013, 01.11.2013 for the sum of Rs.30,000/- and Rs.40,000/- respectively, would falsely his version.

9. Therefore it is undoubtedly proved that the 1^st opposite party with the Concurrence of the officials of the other 2 opposite parties, has undertaken to provide the complainant with a lattest model of marine oil Engine with 240 HP and received Rs.70,000/- towards additional sale consideration therefor.  Exhibit A4 has made it clear that on 31.10.2013 the 1^st opposite party has taken back to his custody the defective marine oil Engine sold and delivered to the complainant on 21.11.2012.  Even in that document it is mentioned that he has received back the engine in order to supply the new engine in exchange and on that day itself he has received Rs.30,000/- from the complainant towards part of the additional sale consideration of Rs.70,000/-.  He has received Rs.40,000/- as evidenced by Exhibit A6.  The payment of the remaining Rs.4,40,000/- for the said supply of the earlier engine is also received by the 1^st opposite party only, as would be evidenced by Exhibit A1. The contention of the 1^st opposite party that he had no relationship with the complainant with respect to the sale of the Marine Engine is not at all acceptable. In spite of assurance given by the opposite parties to supply the new lattest model of marine Engine of 240HP to the complainant in exchange of the defective Oil Engine sold earlier to him, the opposite parties have not fulfilled their promise.  Thus the opposite parties are deficient in their service.

                        10. Point 2: Even though the complainant has alleged that he had spent Rs.3,00,000/- for towing the defective Marine Engine from the midst of the sea shore, there is no evidence in proof of his allegation.  For the allegation that he had incurred loss of Rs.6,00,000/- towards loss of income at the rate of Rs.1,00,000/- per mansem also there is no proof as the complainant could very well carry out his avocation by other means are by using hired boats.

                        11. In the result, the complaint is partly allowed.  The opposite parties are directed either jointly or severally to deliver the lattest model of Marine Engine of 240Hp as promised by them to the complainant within a month from the date of this order, failing which they will be liable to pay sum of Rs.5,10,000/-(Rupees five lakhs and ten thousand only) with interest at the rate of 12% per annum from 11.10.2012, the date of 1^st payment made by the complainant under Exhibit A1, till the date of  realisation of the entire amount.  The opposite parties are further directed to pay a sum of Rs.1,00,000/- (Rupees one lakh only) to the complainant either jointly or serverally towards compensation for the mental agony, inconvenience and hardship caused to him owing to the deficiency of service on the part of the opposite parties, within 30 days from the date of this order, failing which the said amount shall also carry an interest at the rate of 12% per annum from the date of this order till the date of its realization.  The opposite parties are further  directed to pay the sum of Rs.5,000/-(Rupees five thousand only) either jointly or severally to the complainant towards cost of this litigation, within 30 days from the date of this order till the date of its realization. 

This order is dictated by me to the Steno-Typist, transcribed, typed by him, corrected and pronounced by me on this  25^th day of  November 2014.

 

 

    MEMBER I                                    MEMER II                                      PRESIDENT

List of documents filed by the complainant

 

Ex.A1/Dt.11.10.2012: The Xerox copy of the receipt for payment of sale price made by the

    complainant to the 1^st opposite party.  

Ex.A2/Dt.21.11.2012: The Xerox copy of the Commercial Invoice of the said engine

      given by the 3^rd opposite party to the complainant through the 1^st

      opposite party.

Ex.A3/Dt.       Nil         : The xerox copy of the letter of the opposite party No.1 given to the

     complainant to replace the said engine.

Ex.A4/Dt.31.10.2013: The xerox copy of the Acknowledgment of the taking back of the

    custody of the engine by the 1^st opposite party.

Ex.A5/Dt.31.10.2013:The Xerox copy of the Cash Receipt for Rs.30,000/- given by the 1^st

   opposite party to the complainant.  

Ex.A6/Dt.01.11.2013: The Xerox copy of the Cash Receipt for Rs.40,000/- given by the 1^st

                                        opposite party to the complainant.

Ex.A7/Dt.13.11.2013: The xerox copy of the notice sent by the complainant’s lawyer to the 1^st

                                        and 2^nd opposite parties.

Ex.A8/Dt.Nil                : Returned notice sent by the complainant’s lawyer to the 2^nd opposite  

                                         party.

Ex.A9/Dt.18.11.2013: The acknowledgment card received by the 1^st opposite party.

 

List of documents filed by the 1^st opposite party

Ex.B1/Dt.07.01.2013: The xerox copy of the letter of intent given by the 3^rd opposite party to

   the 1^st opposite party.

Ex.B2/Dt.21.11.2012: The copy of the delivery Challan for delivery of 5 Marine Engines to the

   complainant and other 4 persons

 

 

    MEMBER I                                    MEMER II                                      PRESIDENT

 

 

 

DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM,

NAGAPATTINAM.

 

CC.No.18/ 2014

Order Dt.:25.11.2014.