Date of filing: 22.09.2021 Date of Disposal: 05.05.2023
BEFORE THE III ADDITIONAL BANGALORE URBAN
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU – 560 027.
DATED THIS THE 05TH DAY OF MAY, 2023
CONSUMER COMPLAINT NO.386/2021
PRESENT:
SRI.RAJU K.S,
SMT.REKHA SAYANNAVAR,:MEMBER
Smt. Kota Usha,
Aged About 48 Years,
W/o. Sri.B.Mallaiah,
Sri Sai Guest House
At No.92/93, Balaji Layout,
Near Globaltech Park,
Mylasandra, Bangalore-560059.
(Rep by Smt. K.M. Rohini, Advocate)
- V/s -
GMMCO Limited,
By Authorized Signatory,
No.63A, Hootgalli Industrial Area,
Belvadi Post, Mysore-570018,
Also at No.51, Ward No.88,
Banaswadi 100 feet Road,
Banaswadi, Bangalore-560043.
(Rep. by Sri.V.Prathap Kumar, Advocate)
//JUDGEMENT//
BY SRI. SHIVARAMA K, PRESIDENT
01. The complainant has filed this complaint under section 35 of the Consumer Protection Act, 2019 seeking for a direction to the opposite party to replace with a new and good condition generator set and to pay an amount of Rs.5,00,000/- towards mental agony sustained by the complainant and such other relief as this Commission deems fit in the circumstances of the case.
02. It is not in dispute that, the complainant has purchased the F.G. Wilson generator set from opposite party on 30.11.2018 for a total amount of Rs.10,20,000.26. Further it is not in dispute that, the generator was installed at Sri Sai Guest House at No.92/93, Balaji Layout, Mallasandra, Bangalore. Further it is not in dispute that, the opposite party had issued a repair estimation for Rs.8,05,000/-. Further it is not in dispute that, the complainant has also purchased two more generator sets for Vemalamma Guest House in the name of Smt. L. Jayamma. Further it is not in dispute that, the email communication with opposite party was made by the complainant’s husband Sri. B.Mallaiah. Further it is not in dispute that, a service report was made by the engineer of opposite party on 19.12.2018 vide EX.P.7. Further it is not in dispute that, the complainant has issued a legal notice dated: 07.04.2021 vide EX.P.4 to opposite party seeking for replace of the generator set. Further it is not in dispute that, opposite party had replied to the said notice on 07.05.2021 vide Ex.P.6 stating that, there was no manufacturing defect and there was failure on the part of complainant to maintain the generator set as per warranty conditions.
03. It is the further case of the complainant that, the generator set was installed in the premises on 19.12.2018, but started functioning only from 19.01.2019 onwards when the complainant gave the premises to OYO hotels. Further opposite party had told the complainant that, for over 500 hours or 06 months whichever is earlier DG needs PM service. Further after 19.12.2019 opposite party technicians or engineers had checked the generator installed at Sri Sai Guest House. Further the generator set had run for hardly 164 hours and it has started facing problems from Octorber-2019 onwards. Further the complainant did not have much business due to rumours about pandemic. Further immediately she contacted the opposite party and explained about the malfunctioning of the generator and she was asked to see the repair estimation given at Rs.8,05,000/- by opposite party. Further finally business which was lifting from November-2019 was shut down totally from March-2020 due to COVID-19 pandemic. Since the generator set had faced problem within 164 hours of run, the complainant suspected manufacturing defect and sought replacement of a new generator set. Since the opposite party did not comply the same she has filed the present complaint.
04. It is the further case of the opposite party that, the complainant is not a Consumer and since the generator set was purchased for a guest house and as the complainant alleged the loss of business due to non-performance of the generator set in a proper manner, it amounts to the purchase of the product for commercial purpose. Further it is contended that, the complainant has not properly maintained the product as per preventive maintenance quotation and explained to the complainant at the time of purchasing. Hence because of non-maintenance of the product properly, machine crashed and the complaint by complainant was after the completion of the warrantee period. Further the warrantee period was 24 months or 500 hours of running the machine whichever is earlier. Further it was explained to the complainant that, for every 500 hours or 6 months whichever is earlier DG set would undergo preventive maintenance service, but the complainant wilfully neglected and failed to perform the maintenance as per the manufacturer’s instructions. Hence, it is sought to dismiss the complaint.
05. To prove the case, the complainant (PW1) has filed affidavit in the form of her evidence in chief and got marked EX.P.1 to EX.P.13 documents. The authorized signatory of opposite party (RW.1) has filed affidavit in the form of his evidence in chief and got marked EX.R.1 to EX.R.5 documents.
06 Counsels for both parties have filed their respective written arguments.
07. The points that would arise for consideration are as under:-
(1) Whether there is deficiency of service on the part of the opposite party?
(2) Whether the complainant is entitle for the
relief sought ?
(3) What order ?
08. Our findings on the aforesaid points are as follows:-
POINT NO.1:- In negative
POINT NO.2:- In negative
POINT NO.3:- As per the final order
for the following:
REASONS
09. POINT NO.1:- The complainant (PW.1) and opposite party (RW.1) have reiterated the fact stated in their respective pleadings, in the affidavits filed in the form of their evidence in chief.
10. It is the contention of the learned counsel for the opposite party that, the complainant is not a Consumer since the product was purchased for business purpose. Admittedly the complainant has been running guest house and to use in the guest house the product was purchased. It is also not in dispute that, the complainant had purchased 02 more generator set as admitted in the notice vide EX.P.4. It is also admitted in the said notice that, the two more generator sets purchased were in good condition without any complaints. Hence it is contended by the learned counsel for the complainant that, in the subject generator set it has manufacturing defect. We feel for mere cause the other 02 generator sets has no problem and there is a problem in the subject product, it cannot be said that, it has manufacturing defect. There will be several factors to be seen as to whether the product has manufacturing defect or any other reason for its non-function.
11. It is the contention of the learned counsel for the complainant that, the purchase of the product was exclusively for the purpose of earning the livelihood of the complainant by means of self-employment. Opposite party has produced the tax invoice with regard to the purchase of generator set for Vemalamma Guest House stands in the name of L. Jayamma. Since the complainant has taken a contention that, the product purchased was for earning her livelihood by means of self-employment, the onus is heavily casted on the opposite party to prove otherwise. Opposite party did not produce any document that the generator was used for business purpose and not for self-employment. Therefore the opposite party has failed to discharge the defence taken that, the complainant is not a Consumer as the product was purchased for commercial purpose. Hence there is no merit in the contention taken by the opposite party.
12. It is the further contention of the learned counsel for the complainant that, the machine was actually commissioned on 19.01.2019 and there is a typographical error in the delivery address in the legal notice dated: 07.04.2021 issued by the complainant to the opposite party. It is the contention of the learned counsel for the complainant that, EX.P.1 the tax invoice indicates that, the purchase of the product was made on 30.11.2018. There is no dispute with regard to EX.P.1 is concerned. In support of the contention that, it was installed on 19.12.2018 and commenced the functioning on 19.12.2018 itself the opposite party relies EX.P.7 service report. On perusal of the same it appears that, the commencement of the function of the product was on 19.12.2018 and the date of visit of the engineer was on 19.12.2018. A detailed report is made in EX.P.7 with regard to the installation and inspection and the customer had also signed the EX.P.7. The complainant did not produce any document to prove that, the generator started functioning only from 19.01.2019 onwards. Hence the complainant has failed to prove the said aspect.
13. The complainant has also produced the test certificate vide EX.P.9, EX.P.10, EX.P.11 and EX.P.12. It is the contention of the opposite party that, the complaint with regard to the problem in the product was after the warrantee period. EX.P.13 is the warrantee certificate. On perusal of the same, it appears that, the warrantee period was 24 months from the date of start-up limited to 5000 hours. The machine was stated-up on 19.12.2018. The 24 months completes on 18.12.2020. On perusal of the email correspondence it appears in EX.P.2 dated: 22.11.2019 the complainant’s husband has mailed to opposite party seeking to go head for service. In the email dated: 27.01.2021 opposite party informed the complainant about the inspection and discussion made by the Engineer of the opposite party and had sent a Quote for PM service of DG set engines. Further on 27.01.2021 the complainant’s husband sent an email to opposite party stating that, the units has run not even 6 months and nothing is required to be changed and kindly do the basic service and quotation is not required. Further on 28.01.2021 the opposite party addressed an email to the complainant’s husband asking to carry out oil change on every 06 months. Further in the email dated: 05.03.2021 the complainant’s husband informed the opposite party that, the machine had hardly run over 164 hours till date and the cost given in the quotation approximately was Rs.8,05,000/- and the cost of new generator was only around Rs.10,00,000/-. Hence the complainant’s husband suspects that, there was a manufacturing defect in the machine at the time of supply itself. Hence on documents it appears that, only on 05.03.2021 for the first time the complainant’s husband had informed to opposite party that, he suspects manufacturing defect.
14. It is the further contention of the learned counsel for the opposite party that, time and again correspondence was made with the complainant to do PM services. To substantiate this contention the counsel relies the email appears in page No.39 of booklet sent on 06.11.2019. On perusal of the same, it appears that, opposite party had sent email to the husband of the complainant stating that, the engine crossed 6 months and PM service was due and make payment to attached quote to complete the work. Even in-spite of the email been sent the complainant did not show any interest to get the preventive maintenance as per requirement. Rather an email was sent on 27.01.2021 by the complainant’s husband stating that, the unit has run not even 6 months and nothing required to be changed and quotation is not required. That itself indicates that, the complainant was not entitle to get the service required on free of charge.
15. It is the further contention of the learned counsel for the opposite party that, on 19.02.2021 only the complainant complained about the problem. The complainant did not produce any document to substantiate that, within the warranty period she had reported complaint about the problem in the product. Hence it appears to us that, within the warranty period the complainant has not at all raised any complaint with regard to the alleged defect in the product. Further even after the complaint been filed also it has not been get tested as to whether the product has manufacturing defect. Hence the complainant has failed to prove that, the product has manufacturing defect since there was no manufacturing defect, the product cannot be replaced, hence any deficiency of service cannot be attributed on the opposite party. Accordingly we answer this point in negative.
16. POINT NO.2:- In view of the finding given on point No.1 this point is answered in negative.
17. POINT NO.3:- In view of the discussion made above, we proceed to pass the following:-
ORDER
The complaint is dismissed. No order as to costs.
Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.
Applications pending, if any, stands disposed-off in terms of the aforesaid judgment.
(Dictated to the Stenographer, typed by him, the transcript corrected, revised and then pronounced in the open Commission on 05th Day of MAY, 2023)
- REKHA SAYANNAVAR) (RAJU K.S) (SHIVARAMA. K)
-
//ANNEXURE//
Witness examined for the complainant side:
Smt. Kota Usha, the complainant (PW-1) has filed affidavit in the form of her evidence in chief.
Documents got marked for complainant side:
- Original Tax Invoice, copy of check-sheet, DG test certificate, engine test certificate, warranty statement, test certificate and control panel test certificate, together – EX.P.1.
- Copy of mail (7 pages) – Ex.P.2
- Copy of Quotation (6 pages) – Ex.P.3
- Office copy of legal notice & postal acknowledgment – EX.P.4.
- Copy of reply dt.08.04.2021 – Ex.P.5
- Copy of reply dt.07.05.2021 – EX.P.6
- Copy of service report, quotation & acknowledgment (7 pages) – EX.P.7.
- Certificate U/s 65B of Evidence Act – Ex.P.8.
- Copy of central panel test certificate – Ex.P.9
- Copy of test certificate – Ex.P.10.
- DG test certificate – EX.P.11.
- Engine test certificate – Ex.P.12.
- Warranty Card – Ex.P.13.
Witness examined for the opposite party side:
Sri. M. Prakash Kumar, Authorized Signatory of opposite party (RW-2) has filed affidavit in the form of his evidence in chief.
Documents got marked for the Opposite Party side:
- Letter of authorization – EX.R.1.
- Certificate U/s 65(B) of Evidence Act – EX.R.2.
- Computer downloaded service report dt.20.02.2021 – Ex.R.3.
- Computer downloaded tax invoice dt.23.11.2019 (two) – Ex.R.4.
- GST extract – EX.R.5.
- REKHA SAYANNAVAR) (RAJU K.S) (SHIVARAMA. K)
-
