IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ERNAKULAM

Date of filing : 23/06/2017

Date of order : 28.02.2023

PRESENT:

Shri.D.B.Binu President

Shri. V.Ramachandran Member

Smt. Sreevidhia T.N Member

C.C.No.247/2017

COMPLAINANT

Gopalakrishna Pai, S/o.Varmana Pai, Kannanparambil House, North Paravur P.O., Ernakulam, Pin-683 514

(By Adv.P.M.Benzir, G.G.Manoj & Ayshamma Abraham, V/2, Empire Building, High Court End, Old Railway Station Road, Cochin-18)
Vs.

OPPOSITE PARTIES

1) M/s.JP Genset Sapres & Service, 2^nd Floor, 3M Building, South Naluvazhi, North Paravur, Ernakulam-683 513

2) Eternal E Mech Private Limited, S.F.No.203, Aayan Complex, 100 Feet Hebatpur Road, Thaltej, Thaltej Road, Ahamedabad-680 054, Gujarat, Rep. by its Director.

(o.p 1 rep. by Adv.M.K.Faisal, Ambuj Arcade. Canal Road, N.Paravur)

F I N A L O R D E R

Sreevidhia T.N., Member

1) A brief history of the complaint is as stated below:

The complainant had invited quotation for a generator from the 1^st opposite party as the dealers of the 2^nd opposite party. The 1^st opposite party is the authorized sales and services dealers of the Volvo Eicher generator set. The 2^nd opposite party is the manufacture of Volvo Eicher GPS-DG set. The complainant had purchased a generator set from the 1^st opposite party, based on the quotation issued by the 1^st opposite party authorized sales and service dealers of the product on 05.06.2013 for an amount of Rs.4,30,000/-. On behalf of the 2^nd opposite party, the 1^st opposite party had offered all after sales service promptly on call. After the installation, the generator set was showing some problems and was not working promptly. On consultation with the 1^st opposite party Mr.Jagdish of the 1^st opposite party had advised the complainant that since the generator is not utilized enough, the load is not enough and suggested to shift the generator set to the annexure restaurant at Cherai, and to buy another generator for the complainant’s restaurant at North Paravur. Accordingly, the complainant requested the 1^st opposite party to shift and install the Diesel generator set to his restaurant annnexure at Cherai.

The complainant had bought a small generator set in the restaurant at north Paravur. The 1^st opposite party quoted Rs.1,10,425/- for the shifting, erection and commissioning of the Volvo Eicher Diesel Generator set from North Paravoor to Cherai Beach. On paying the said amount the 1^st opposite party shifted the Generator and erected and commissioned the same in the anexure of the restaurant at Cherai. Thereafter within a few days, the generator set stopped functioning and on complaining with the 1^st opposite party, on 25.04.2016 the 1^st opposite party had repaired the generator set and billed Rs.9120/- from the complainant. After few days, the generator set stopped functioning again and the complainant consulted the 1^st opposite party. The 1^st opposite party again charged Rs.42,800/-. The same scenario repeated within a month and the 1^st opposite party collected Rs.33,650/- on 10.08.2016 for the repair alone. The complainant states that whenever the generator set is non functioned, the complainant was constrained to avail another generator on rental. The repeated problems arise due to the mistake in the service rendered by the employees of the 1^st opposite party and the poor quality of the generator set. As manufacturer and dealer, the opposite parties are liable to replace the Diezal Generator set of 63KWA at free of cost since selling defective goods by misleading the customer amounts to unfair trade practice as well.

The complainant tried to get the service of the opposite parties they have denied the service which amounts to serious deficiency of service and negligence. Due to the negligence of the opposite parties, the complainant had suffered loss and damages resulting in lose of hard earned money spent for purchasing the defective generator set. The complainant paid Rs.4,30,000/- for the defective generator set and in addition to the said amount the 1^st opposite party collected Rs.1,10,425/- by way of shifting erection and commissioning and for the repair charges the 1^st opposite party collected a total amount of Rs.85,870/-. The complainant is running the shop by availing the generator set on rental basis due to the deficiency in service and unfair trade practice of the opposite parties. The bills paid towards the payment of rental till 28.05.2017 is rs.104,800/-. Hence the complainant approached the Commission with the following prayers.

1) To award an amount of Rs.6,25,995/- as cost of the defective. Diesel Generator set of 63KWA and the amount spent for shifting, erection and commissioning and direct the opposite parties to pay the said amount.

2) To award an amount of Rs.1,04,800/- as the amount spent towards rental charges for the D G set and toe direct the opposite parties to pay the amount.

3) To award an amount of Rs.1,00,000/-for the loss and damages suffered by the complainant due to the deficiency of service on the part of the opposite parties jointly and severally.

2) Notice

Notice was issued to the opposite parties from this Forum on 28.06.2017 and the 1^st and 2^nd opposite parties appeared and filed their separate versions.

3) Version of the 1^st opposite party.

The 1^st opposite party stated in their version that this compliant is not maintainable either in law or in facts and liable to be dismissed. The 1^st opposite party is totally unaware of the role of the 2^nd opposite party shown in the complaint. It is clear from the complainant that the generator was purchased for commercial purpose. On that ground itself, the compliant is not maintainable before the Commission, especially when the complainant has no case that it was purchased for his livelihood. Therefore, the complaint is not a ‘consumer’ within the meaning of Consumer Protection Act. The allegation that the complainant invited quotation for a diesel generator from the 1^st opposite party as the dealers of the 2^nd opposite party is false and denied by the 1^st opposite party. The 1^st opposite party is not the dealer of the 2^nd opposite party at any point of time. It is also submitted that the 2^nd opposite party is not known to the 1^st opposite party. The 2^nd opposite party is not the manufacturer of the generator set, allegedly purchased by the complainant. It is true that complainant purchased a generator set from the 1^st opposite party on 05.06.2013. But the allegation that the 1^st opposite party on behalf of the 2^nd opposite party offered all after sale service promptly on call, is not true and correct, hence denied by the 1^st opposite party. Moreover, the 1^st opposite party did not offer any service after the warranty period. The total warranty period for the generator set is only two years from the date of the purchase of the same. The 1^st opposite party is responsible to render service on free of cost, only during the warranty period. It is true that the generator set was installed in the shop at North Paravur. There is no complaint for the generator set while it was installed at the restaurant at North Paravur.

The first thing is that the firm Le-Petit Elephant is not a restaurant, but a resort situated at Cherai Beach. The complainant insisted to shift the generator set to the resort at Cherai Beach and it was installed in front of the resort, ie., just adjacent and facing to the sea. The 1^st opposite party never advised or instructed the complainant to shift the generator set to Cherai Beach. Moreover, the 1^st opposite party several times warned the complainant that the alternator of the generator set will be damaged due to the moisture formed due to the salty wind from the sea. But due to the compelation from the part of the complainant, the 1^st opposite party shifted the same to the restaurant at Cherai Beach. But the warranty of the generator set was not extended. But the bill for Rs.9,120/- was issued not for the repairing work of the aforesaid generator set. It is submitted that there was no complaint for the generator, when it was installed at the restaurant at North Paravur. The entire complaint was shown only after the intallation at the resort at Cherai Beach. The allegation that complainant was constrained to avail another generator is not true and correct hence denied by the 1^st opposite party.

The allegation that 10SW Gage earthing pipe was used instead of 4 SW Gage earthing pipe is not true and correct. After inspecting the generator set the Electrical Inspectorate issued approval for the generator set. The copy of the certificate issued by the Deputy Chief Electrical Inspector is produced herewith. After the installation the complainant deputed some other mechanics to repair the generator set. There is no deficiency of service or unfair trade practice from the side of the 1^st opposite party. The generator set is manufactured with international specifications and by using good quality materials. The complaint is barred by limitation. The complaint is not maintainable.

4) Version of the 2^nd opposite party.

In the their version it is stated that the 2^nd opposite party has been wrongly joined as party respondent in the present complaint. The opposite party 2 has no nexus at all with the transaction took place between the complainant and the 1^st opposite party. The 2^nd opposite party is only the dealer for Greaves Cotton Ltd., D G Sets in Ahmedabad. It is stated that the 2^nd opposite party is not the manufacturer even for Greaves D G Set. It is pertinent to note that the 2^nd opposite party herein is neither the dealer nor the manufacturer of Eicher Volvo D G Sets. It is stated that the 2^nd opposite party had at no point of time supplied D.G. Sets to J P Genset ie, the 1^st opposite party. It is stated that the complainant is not entitled to seek any relief against the 2^nd opposite party in the present complaint. Therefore, the name of the 2^nd opposite party may kindly be deleted from the cause title of present complaint in the interest of justice.

5) Evidence

Evidence in this case consisits of the documentary evidence filed by the complainant which are marked as Exbts.A1 to A7.

The 1^st opposite party filed one document which is marked as Exbt.B1.

No oral evidence from both sides.

There was no representation from both sides since 07.03.2020 and hence the Commission have issued notice to the complainant on 30.01.2021 to appear before the Commission to hear and argue the matter and the said notice seen served to the complainant but the complainant has not turned up and since this is a long pending case, the case posted for orders. To 28.02.2023.

We have gone through the complaint, version and documents from both sides.

6) Points taken for consideration in this case are as follows:

1) Whether there is any deficiency in service or unfair trade practice is proved from the side of the opposite parties towards the complainant?

2) If so, reliefs and costs?

7) For the sake of convenience we have considered issue No; (1) and (2) jointly.

The case of the complainant is that he had purchased a generator from the 1^st opposite party on 05.08.2013 for an amount of Rs.4,30,000/- as proved from Exbt.A1. The 1^st opposite party quoted Rs.1,10,425/- for the shifting, erection and commissioning of the Volvo Eicher Diesel Generator set as proved from Exbt.A2. On 25.04.2016, the 1^st opposite party repaired the generator set and had charged Rs.9120/- from the complainant, as per Exbt.A3. On 27.05.2016, the 1^st opposite party charged Rs.40000/- for the repair of the generator set (Exbt.A4). On 10.08.2016 also the 1^st opposite party had collected Rs.33,650/- from the complainant for the repair of the generator set (Exbt.A5). The complainant states that whenever the generator set is non functional, the complainant was constrained to avail another generator on rental. As per Exbt.A6 series and as per Exbt.A7 series the complainant had spent money towards payment of rent for availing the generator set till 28.02.2017. After the installation of the generator set, the generator was not working properly. The defects of the generator set was continuing and the opposite parties had not rectified the defects. The money spent by the complainant to buy the generator set was not useful to the complainant. From the available documents and evidence it can be seen that the complainant had some inconvenience, loss and hardships due to the negligent attitude of the opposite parties. There is no evidence to prove that the alleged defects are rectified by the opposite parties. The DG set was purchased on 05.06.2013. In this cas, the complainant has not produced the warranty details. As per Exbt.A4, A5, and A6 there are some defects with the diesel generator set and no evidence produced by the complainant to prove that the defects are within the warranty period or not. The 1^st opposite party in their version submits that the total warranty period for the generator set is only 2 years from the date of purchase of the product and the 1^st opposite party is responsible to render service on free of cost, only during the warranty period. The complainant also alleges that the repeated problems arise due to the mistake in the service rendered by the employees of the 1^st opposite party and the poor quality of the generator set and the opposite parties are liable to replace the Diesel generator set of 63 KWA at free of cost since selling defective product by misleading the customer amounts to unfair trade practice also. The dates mentioned on Exbt.A3, A4 and A5 shows that the generator became defective thrice times within a short span of 3 months. Exbt.A6, A7 also proves that the complainant had availed the D G on rental basis. The complainant had paid Rs.4,30,000/- for the defective generator set and for repair charges the 1^st opposite party collected Rs.82,770/- from the complainant. The above action on the part of the 1^st opposite party amounts to deficiency in service and unfair trade practice towards the complainant and hence point Nos (1) is proved in favour of the complainant.

The complainant had to suffer huge mental pain, agony and other difficulties due to the action of the opposite parties. Hence point No.(2) also proved in favour of the complainant.

8) In the result, the complaint is allowed as follows:

1) An amount of Rs.4,30,000/- shall be paid by the opposite parties to the complainant since the machine supplied by the opposite party is defective since there is repeated occurrence of defects in the limited life period of the generator set.

2) An amount of Rs.10,000/- shall be paid as compensation to the complainant for the inconvenience and hardship suffered by the complainant due to the deficient action of the opposite parties.

3) An amount of Rs.5000/- shall be paid to the complainant as cost of proceedings by the opposite parties.

4) Liability of the opposite parties are jointly and severally.

The above order shall be complied with within 30 days from the date of receipt of a copy of this order. If the order is not complied within 30 days, the amount ordered vide order (1) above shall attract interest at the rate of 5% p.a. from the date of order till the date of realization.

Pronounced in the Open Commission this 28^th day of February 2023.

Sd/-

Sreevidhia T.N., Member

Sd/-

D.B.Binu, President

Sd/-

V.Ramachandran, Member

Forwarded by Order

Assistant Registrar

APPENDIX

Complainants Exhibits

Opposite party’s Exhibits :