Case No. 47/2020

Shiv Pratap Singh aged about 38 years S/o Shri Mahendra Pratap Singh R/o 3/11-A Hariom ,Aligarh Proprietor M/s Rags Constructions Nagla Kesiya Post- Gangroll Dist- Aligarh.

V/s

1. Prem Vehicle Pvt. Ltd. Sonari Jaipur Road,Near C.F.T.I. Shastripuram ,Agra  
2. Mr.Prem Agrawal(Director)  Sonari Jaipur Road,Near C.F.T.I. Shastripuram ,Agra
3. Mr. Pramod Rathor, Sonari Jaipur Road,Near C.F.T.I. Shastripuram ,Agra      

1. The present complaint has been filed by the complainant before this commission for the following reliefs

1. Op be directed to replace the excavator by a new excavator or refund the amount Rs.5500000/( Fifty Five Lacs).
2. Op be to pay compensation Rs.1000000/ for financial loss and mental agony and Rs.10000/as legal expenses.

2. Complainant is the firm and engaged in jobs for personal gains for the livelihood of the   family members of the proprietor by employing  themselves. Op is a company and is engaged in manufacturing and selling the Excavators and equipments . Complainant purchased a JCB -215LC track 1.02COM GP BKT AC 1SP Excavator on 4.9.2019 from the op for Rs.5300000/ in higher purchase from HDB Financial Services. Complainant was not satisfied  with the functioning of the Excavator which was suffering from the defect of high fuel consumption and N/C operation slow. Complainant contacted the Op through dealer and service provider but service agent could not removed the defect. Complainant sent a legal notice on 1.1.2020 and another notice was sent to JCB India Ltd. JCB India Ltd denied the allegation in reply notice. Complainant sustained heavy loss of earnings due to defective Excavator supplied by the Op.
3. Ops submitted in WS that the JCB Excavator was purchased by the complainant from the Op under HDB finance Services for Rs. 5300000/ . Complainant having satisfied with the terms and conditions of the company only then he purchased the JCB and the services should be taken by the customer as per guidelines of the company.  Whenever complaint was made JCB company engineer visited the site and examined the machine. It is clear that the complainant has been using the machine regularly without any breakdown. The machine has no manufacturing defect. The complainant’s machine has crossed the warranty period and he has enjoyed the machine in full economic working condition. Complainant has purchased the machine for commercial activity and the commission has no jurisdiction to hear the case and there is no deficiency in service.     
4. Complainant has filed his affidavit and papers in support of his pleadings.  Op has also filed his affidavit and papers  in support of his pleadings.
5. We have perused the material available on record and heard the parties counsel.
6. The first question of consideration before us is whether the commission has jurisdiction to hear the case?
7. Complainant has stated that the JCB Excavator was purchased for earning the livelihood by means of self-employment of the family members of the proprietor and thus there is no commercial purpose in purchasing the Excavator by the complainant in view of Explanation attached to the definition of consumer U/s 2(7) of the Act. Thus the District Commission is component to hear and decide the Case.
8. The question formulated above in favour of the complainant.
9. The second question of consideration before us is whether the complainant is entitled to any relief?
10. Complainant has alleged that the Excavator had been suffering from the defect of high fuel consumption and N/C operation slow and the Ops have denied the allegation and stated that the Excavator was examined by the engineer of the company as well as by the engineer of the Ops and found that the machine was working within the parameter of the company. Complainant has filed the service visit reports dated 28.09.2019, 4.11.2019, 9to7.11.2019, 23.11.2019, 12.12.2019, 10.02.2020, 29.05.2020, 26.08.2020 and 18.11.2020. It appears from perusal of these reports that there is substance in the allegations made by the complainant with respect to defects in Excavator. These reports have been issued by the JCB service center and are reliable. We are of the opinion   that the Excavator had been suffering from such type of defects which could not be removed despite of undergoing services for a number of dates. Therefore complainant is entitled either to replace the Excavator or refund the price.  
11. The question formulated above in favour of the  Complainant.
12. We hereby direct the OPs either to replace the Excavator or refund the price Rs.5300000/(Fifty Three Lacs) with pendete lite and  future interest @10% per annum, litigation expenses Rs.10000/ and Rs.100000/ (One Lacs) as compensation.  
13. Op shall comply with the direction within 45 days failing which OP shall be prosecuted for non-compliance in accordance with section 72 of the Act for awarding punishment against him.
14. A copy of this judgment be provided to all the parties as per rule as mandated by Consumer Protection Act, 2019. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
15. File be consigned to record room along with a copy of this judgment.