DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD
DATED THIS THE 9th DAY OF SEPTEMBER, 2024.
PRESENT : SRI. VINAY MENON .V,
: SMT.VIDYA A., MEMBER.
: SRI. KRISHNANKUTTY N.K, MEMBER.
DATE OF FILING:29.11.2021.
CC/218/2021
Jayeshkumar.K.K, aged 54 years, - Complainant
S/o.K.Kumaran, Kodavamparambil House,
Nagalasseri, Kothachira Post,
Palakkad-679 535.
(By Adv.Dhananjayan)
Vs
1. M/s.Sany Heavy Industries India Pvt. Ltd., -Opposite Parties
Pune, Plot No.E4, Pune nasik Road,
Chakan, chakan Industrial Area,
Village Kuruli, Chakan Post office,
Pune, Pin 410 501.
2. M/s.Sany Heavy Industries India Pvt. Ltd.,,
Pune, Plot No.E4, Pune nasik Road,
Chakan, chakan Industrial Area,
Village Kuruli, Chakan Post office,
Pune, Pin 410 501.
(for 1st and 2nd OP by Adv.K.K.Menon)
Represented by its Managing Director/Manager/Authorised Signatory.
3. M/s.Iconic Equipments, building No.VP/V/290A,
Opp.SIDCO Industrial Estate,
Mudikal Post, Perumbavoor,
Ernakulam, Kerala, Pin-683 547.
Represented by its Managing Director,
Manager or Authorised Signatory.
4. M/s.Iconic Equipments,
Kallekkad Post, Opp. HP Petrol,
Pump, Kallekkad PO, Palakkad,
Rep. by its Engineer Manikandan.V.
(for 3rd and 4th OP by Adv.K.K.Menon)
5. M/s.Sundaram Finance Ltd,
Regd. Office, No.21 Pattulose Road,
Chennai-600 002, Tamilandu.
(By Adv.viju.K.Raphel)
6. M/s.Sundaram Finance Ltd,
Sree Sankara Complex, 2nd Floor,
Brahmaswom Madom,
MG Road, Thrissur.
(By Adv.viju.K.Raphel)
ORDER
BY SMT.VIDYA A., MEMBER.
1. The complainant, who was the owner of TATA Hitachi Excavator, had exchanged it and purchased SANY 35U Excavator on 2nd January, 2021 from its authorised dealers through the 4th opposite party having office at Palakkad. The 4th opposite party had canvassed and induced him to purchase the machine. The 4th opposite party takes orders for the machine and informs the 3rd opposite party and they deliver the machine to the buyers. He purchased the machine with the financial assistance provided by opposite parties 5 and 6. They directly paid an amount of Rs.25,51,000/- to the 3rd opposite party who accepted the amount on behalf of opposite parties 1 and 2. Complainant started using the machine form 04.01.2021 onwards. The warranty conditions of the vehicle stipulates that the heavy machine has the warranty for twelve months or 2500 working hours whichever is earlier from the date of commissioning. Complainant had used this machine with care, caution and precision. But from the 2nd week of January itself the machine started showing defects. He noted the following defects in the machine;
1. The track speed of one side wheel and track chain was high and the other was very low. Due to this reason, the balance of the machine was found highly unstable and it was impossible to climb the hills and to get down form woods or from hills. There was also difficulty in transporting the excavator from one place to another in truck.
2. The main engine was not getting enough power to deploy and to do the works according to its standard and power. The performance of the engine booming was very low.
3. The machine was not getting the required power and strength and output while working for more than two or three hours continuously.
Soon after noticing these defects, the complainant informed about this to the opposite parties 1 to 4 through telephone and the service technician came and inspected the machine. The technician after inspection found that the control liver was bent; but they did not change it. Later, he informed that the component attached with the liver was bent and replaced it. But the defects were not cured. Later, they changed the pilot valve three times; but the defects persisted. After that he noticed oil leakage in the machine and the technician changed the oil pipe.
The complainant was fed up with the recurring defects and he was not in a position to use the machine for his livelihood even for one month after commissioning. Later, the opposite party’s technicians removed and dismantled the track motor and new track motor interchanged with the other side; but the defect was not cured.
The complainant alleges that all these defects occurred are due to its manufacturing defect. All these defects occurred during the warranty period and the opposite parties 1 to 4 are bound to replace it with new machine. Due to the recurring defects that happened to the vehicle, the complainant was not able to earn his livelihood. As he could not use the machine even for one month, he could not remit the EMIs.
So, he filed this complaint.
1. To direct the opposite parties 1 to 4 and take back the machine and to provide a new machine with fresh warranty or if they are not in a position to do that, direct them to remit the entire loan amount availed from opposite parties 5 and 6.
2. To direct them to pay Rs.35 lakhs for the financial loss and mental agony suffered by the complainant and to grant any other ad-interim reliefs sought by the complainant during the pendency of this complaint.
2. After admitting the complaint, notices were issued to the opposite parties. They entered appearance and filed their version.
3. The main contentions raised by the opposite parties 1 to 4 in their version is as follows:-
Eventhough the complainant had stated that he is using the machine for self-employment, he is using it for commercial purposes as he has stated that the machine is used for quarrying operations in granite quarry or mines or laterate quarry for extracting granite from quarry. Hence, he will not come under the definition of ‘Consumer’ under the CP Act.
When a person is using heavy earth movers, he should possess a valid excavator licence from RTO or any certifications to operate it. But the complainant is not having any licence to operate an earth mover or excavator.
The complainant is owing TATA Hitachi excavator. In addition to that he owns two tipper Lorries of swaraj mazda and Mahindra and Mahindra make.
The complainant before placing the order, had taken trail run of the machine. The opposite parties had checked the machine SANY SY 35 U hydraulic excavator for PDI and commissioning as part of routine exercise among manufacturers before handing over the machine.
The complainant had operated the machine in public places without valid licence or other competency certificate. They admitted that the machine is covered by a warranty of 12 months or 2500 hrs whichever is earlier. The complainant reported a complaint about the machine only in 25.06.2021. The complainant has registered a complaint regarding leakage of oil from the track pedal valve. It was rectified on 22.07.2021 as the spares are to come from China. This machine is not intended for travelling for long distances but to stay at one place and gradually move on a slow pace. As this machine is running on track, there will be small deviation. It is not a hindrance for operation of the machine. There will not be any imbalance or instability due to deviation. After filing this complaint, the complainant had used the machine for more than 5 to 7 hours a day till date. After October, 2021, he had used it for 1058 hours at the rate of Rs.1,200/- per hours and earned Rs.12,69,000/-. As per the performance spec sheet from the manufacturer, the machine is working at par with given reading. Since October, 2021, he has not serviced the machine and the mandatory service of 1,000/- hours is pending.
For the customer satisfaction, the opposite parties tried to do some adjustments in the lever; but since the deviation was within the specified limit, not much difference was observed. None of the oil pipes were changed and the track motor was only swapped form LHS to RHS just for showing that the deviation is not a problem of the machine, but a feature of the machine. The machine is running perfectly and the activities were done only to satisfy the complainant and not to repair the machine. The complainant is still using the machine and earning Rs.1,200/- per hour.
The opposite parties states that the complainant does not hold a valid excavator licence from any government authorities or certification from any of the agencies who offer training in the operation.
They further contended that the complainant is using the machine for commercial purposes and gain money. He works more than 5 to 7 hours a day. If the machine is defective, he will not be able to use it for prolonged hours.
So, they prayed for the dismissal of the complaint with their cost.
4. Version filed by the opposite parties 5 and 6
According to the opposite parties 5 and 6, the complainant is not a ‘consumer’ as the vehicle is purchased by him for commercial purpose and not for self employment. The opposite parties have admitted that they advanced loan for the purchase of the vehicle; but they have nothing to do with the alleged defect in the machine and the loss sustained to the complainant. They are unnecessary part to the complaint. There is no cause of action against these opposite parties and no deficiency in service on their part. They have raised the question of maintainability and locus standi of the complainant to file this complaint, because as per the loan agreement, any dispute arising out of this transaction is to be referred to Arbitration.
As per the terms and condition of the agreement, the complainant is duty bound to re-pay the loan amount and in case of default, the opposite parties are entitled to seize the vehicle by following the due process of law.
The complainant is not entitled to get any compensation from these opposite parties and the complaint has to be dismissed against them with compensatory cost.
5. From the pleadings of parties, the following points were framed for consideration.
1. Whether the complainant comes under the definition ‘consumer’ under the CP Act?
2. Whether the complainant has succeeded in proving the machine supplied by the opposite party is defective?
3. Whether there is any deficiency in service on the part of the opposite parties?
4. Whether the complainant is entitled to the reliefs claimed?
5. Any other reliefs.
6. Complainant filed an application as IA.No.482/22 to appoint an Expert Commissioner to inspect the machinery and it was allowed. But the complainant failed to produce the machinery before the Commissioner for inspection. Hence, IA is dismissed. Complainant filed proof affidavit and Exts.A1 to A8 marked form his side. Counsel for the 1st opposite party objected to marking of Ext.A4 on the ground that out of the 6 pages, 3 pages are the copies of other three pages. It is also objected on the ground that Ext.A4 pertains to a stranger’s machinery and not of complainant’s machinery. Ext.A8 is objected to as it pertains to the period when the machinery had worked 296 hours and at present it has underwent operation for over 2140 hours. The 5th opposite party objected marking of Ext.A6 on the ground that it is a photocopy. Complainant was examined as PW1. Ext.B1 marked through confrontation. Opposite parties filed proof affidavit and Exts.B2 to B13 are marked form the side of the opposite parties 1 to 4. Exts.B14 and B15 are marked from the side of opposite parties 5 and 6. Report of the Commissioner is marked as Ext.C1. There was no objection in marking the document. After closing of evidence, complainant filed an application IA.No.251/24 to reopen the evidence and to cross examine the opposite parties. It was allowed on terms and the witness of opposite parties 1 to 4 was examined as DW1. Heard both parties.
7. Point No.1
The opposite parties in their version had contended that complainant is not a consumer as defined under the CP Act as the vehicle in question is used for commercial purpose and not for earning his livelihood. Opposite parties produced the documents showing the details of vehicles possessed by the complainant which is marked as Ext.B4. As per this, the complainant owns a vehicle Goods Carrier (LGV) made of Mahindra & Mahindra Ltd and another Goods Carrier (MGV) made of Swarag Automotives Ltd.
In addition to that they contended that he uses the excavator in quarrying operations and earns money out of that.
The complainant had clearly stated that he uses the machinery for self employment. He operates the earth movers and excavators for various purposes including quarrying operations to earn his livelihood. So, it cannot be termed as commercial purposes. Further, owing two other vehicles also does not imply that the complainant is using it for commercial activity. He uses the vehicle for earning livelihood to run his family. No evidence is adduced to show the commercial activities using these vehicles. So, point No.1 is decided in favour of the complainant and he is a ‘consumer’ under the C Act.
8. Point No.2
The complainant’s case is that the machinery bought from the opposite parties was commissioned by them and he started using it from 04.01.2021. The machinery started showing defects from the 2nd week of January itself. He enumerated the defects in the complaint which are as follows;
1. The track speed of one side wheel and track chain is high and the other was very low. Due to this, the balance of the machine was found highly unstable.
2. There is difficulty in transporting the machinery from one place to another inn truck due to the unbalancing.
3. The main engine was not getting enough power to deploy and to do the works according to its standard and power.
4. The machine was not getting the required power, strength and output and strength to wheel and track chain and equipments attached with it while working for 2 to 3 hours continuously.
9. The complainant informed these defects and the technician of opposite parties after inspection found that the component attached with the control liver was bent and he changed it. But the defect was not cured. Later, they found that the defect was due to pilot valve complaint and they changed this component three times; but it was not rectified. They changed it due to excessive tightness of ‘O’ ring. After changing it, there was oil leakage in the machine. Again they inspected and changed the oil pipe. But the defects in the machine were not rectified. Later, the technician removed and dismantled the track motor and new one was interchanged with the other side; but of no use. Afterwards, the technicians changed the control valve, but they could not solve the issues in the machinery.
10. Inorder to prove his case, the complainant produced 8 documents which were marked as Exts.A1 to A8 and Exts.A9 to A10 are marked through confrontation. Ext.A3 is tax invoice dated 02.01.2021 issued by the opposite party showing the purchase of machinery Hydraulic Mini Excavator. Ext.A5 is the standard warranty policy which states that the machine has a warranty of twelve months or 2500 hours whichever is earlier from the date of Commissioning. Exts.A8 to A10 are the service reports issued by opposite party dated 03.05.2021, 05.08.2021 and 05.10.2021. The writing in the service report relating to the service done is not clear. Ext.A8 shows that the opposite parties have changed some parts and concluded that “Now machine in working condition”. Ext.A9 also shows that the opposite parties inspected the control valve, makeup valve and changed the valve and the problem is solved. Ext.A10 shows that they took the machine to their workshop for track master pin dismantling. They did it and gave two master pin to customer for support.
11. The opposite party’s contention is that the first complaint in the machine is reported only on 25.06.2021 and it was for oil leakage from the track pedal valve and it was rectified on 22.07.2021 as the spares are to come from China. Regarding track speed and track deviation, as per service Manual itself, “there may be 900 mm deviation in 10 to 20 meters of travel.” According to them it is not intended for travelling long distances, but to stay in one place and finish work and gradually move on slow pace. There will be small deviation as it is running on track. There will not be any imbalance or instability due to deviation. They had stated that the deviation is a feature of the machine and not a problem. The services done by them, were only for customer satisfaction and machine is running perfectly. They did not change the oil pipes and the track motor was only changed from LHS to RHS to show the customer that deviation is not a problem, but only a feature. They had stated that even after filing the complaint, the complainant had used the machine for more than 5 to 7 hours a day till date. After October, 2021 he has used it for 1058 hours and earned money out of that.
They produced document, Ext.B2 showing the working hours of the machine on different dates. During the cross examination, complainant also deposed that he had used the machine for more than 2500 hours. He also deposed that the machine became imbalance 4-5 times during these working hours.
12. Regarding the service of the vehicle also the opposite party had put questions during cross examination to which the complainant answered that he had not serviced the vehicle in the company after working it for 1000 hours. The complainant told that he is doing the outside services and oil change in some other service centre. Ext.B1 is the letter dated 29.05.2023 send by the opposite party asking him to do the services in 1000 hours, 1500 hours in which they have warned the complainant that the opposite party will not be responsible for the defects in the machine which is caused due to non-servicing of the vehicle.
13. Exts.B5, B6 and B8 are the service reports of the vehicle produced by the opposite party.
Ext.B5 dated 19.01.2021 is for the service done for 50 hours. The maintenance and repair portion of the report shows that “changed engine oil and engine oil filter, now machine working normally”. Ext.B6 dated 08.07.2021 is the service report for 500 hours. This shows that they have changed Engine oil, Engine oil filter, Diesel filter, pilot filter, Air filter outer etc and noted that now machine is working good.
The service report dated 05.10.2021 is marked as Ext.B8. It shows that the machine is transported to the opposite party’s workshop from customer site in tipper for track master pin dismantling. They also gave two master pins for customer support. They contended that all these services were done only for customer satisfaction; but the machine is in perfect working condition.
14. In order to find out the defect in the machine, the complainant filed an application to appoint an Expert Commissioner and it was allowed Ext.C1 report filed by the Commissioner states that the complainant did not produce the vehicle for inspection which was to be held at the premises of M/c Iconic Equipments, Kallekkad. He also enclosed a letter from the complainant that the machinery could be transported only in lorry and it incurs huge amount for transporting and he is not in position to bear the expenses and requesting the Commissioner to inspect the vehicle by visiting his premises where it is kept. But after that they did not take any further action on this and the IA was dismissed.
15. Since the complainant had taken the contention of manufacturing defect in the vehicle, it is his duty to prove it by adducing cogent evidence. The opposite party also admitted that the machine is not meant for travelling long distance. It has to be carried in truck or lorry to another place. So, the complainant could have very well explained the situation while filing the application and get a direction from the Commission to inspect the vehicle on the place where it is kept. He failed to do so. Further, as per records, he is still using the vehicle for 3 to 5 hours a day. Manufacturing defect is one which cannot be cured even after replacing the defective parts. If the vehicle has non-curable defects, the complainant would not have been able to use the vehicle for work. Further, the opposite parties contended that deviation is only a feature of the machine and not a problem. So, from these discussions, it is clear that the complainant failed to establish any manufacturing defect in the vehicle. Point No.2 is found against the complainant.
Point No.3 to 5
16. From the evidence, it is clear that whenever the vehicle is brought to opposite parties service centre, they had properly carried out the service. Further, the complainant failed to do service of the vehicle as per the directions of the opposite party. He also admitted during cross examination that the vehicle has not been serviced with the opposite party after 1000 hours. He added that he is doing oil change and service in some other centres (Page No.2 lines 5 to 8 deposition). If any defect is caused due to outside service, the opposite party cannot repair it under warranty and they cannot be held liable for that. He admitted that the machine has already completed 2500 hours of working (Page No.3 lines 3 and 4) which means that the machine is in working condition.
17. So, no deficiency in service can be attributed on the opposite parties and the complainant is not entitled to the reliefs claimed.
In the result, complaint is dismissed.
Pronounced in open court on this the 9th day of September, 2024.
Sd/-
VINAY MENON .V, PRESIDENT
Sd/-
VIDYA A., MEMBER.
APPENDIX
Documents marked from the side of the complainant:
Ext.A1: Copy of the product quality certificate issued by the 1st opposite party to the complainant’s vehicle manufactured by the opposite parties 1 and 2.
Ext.A2: Copy of Quality Assurance Policy dated 04.01.2021.
Ext.A3: Copy of the Tax Invoice issued by the 2nd opposite party for the remittance of Rs.25,51,000/-
Ext.A4: Copy of the inspection record.
Ext.A5: Copy of the standard warranty policy issued by the 4th opposite party.
Ext.A6: Copy of the letter issued by the 5th opposite party to the complainant stating to the hypothecation agreement bearing NO.Q042900110 which also contain schedule of EMIS-containing 4 pages.
Ext.A7: Copy of the insurance policy issued by the National Insurance Co. Ltd., Aluva containing 5 pages.
Ext.A8: Copy of the service report of excavators stating the repair of the vehicle by the service engineer attached to the opposite parties 1 to 4.
Ex.A9: Service Report Excavators-customer Jayeshkumar, bearing receipt No.21022.
Ext.A10: Service Report excavators-customer jayeshkumar, bearing receipt No.30420.
Document marked from the side of Opposite party:
Ext.B1: Letter sent by the Icones Equipments to the complainant dated 29.05.2023.
Ext.B2: Documents showing hours worked 11.01.2022.
Ext.B3: Documents showing hours worked 31.01.2022.
Ext.B4: Vehicles owned by complainant.
Ext.B5: Service report dated 19.01.2021.
Ext.B6: Service report dated 02.07.2021.
Ext.B7: Inspection records dated 02.07.2021.
Ext.B8: Service report dated 05.10.2021.
Ext.B9: Driving licence of complainant dated 05.06.2012.
Ext.B10: Copy of licence of Sarath Mon.K.S dated 20.11.2020.
Ext.B11: Tariff of construction equipment owners Association, Kozhikode dated 01.02.2022.
Ext.B12: Whatsaap message of Iconic Equipments to Jayeshkumar.
Ext.B13: Sales order dated 29.05.2023.
Ext.B14: The copy of the agreement entered into between the complainant and my company.
Ext.B15: The ledger extract of the account of the complainant maintained at my company during the course of business.
Document marked from the side of Court:
Ext.C1: Commissioner’s Report.
Witness examined on the side of the complainant: Nil
Witness examined on the side of the opposite party: Nil
Court witness: Nil
Cost : Nil.
NB: Parties are directed to take back all extra set of documents submitted in the proceedings in accordance with Regulation 20(5)of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.
