JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL)
1. No one has appeared for the complainant even on the second call. We, therefore, proceeded to hear the learned counsel for the petitioners.
2. The complainant/respondent purchased a JCB machine from the petitioner Rajesh Motors Pvt. Ltd. on 23-10-2001 for a consideration of Rs.15,91,346/-. The machine was manufactured by the petitioner in R.P.No.4044 of 2009, namely JCB India Ltd.. The machine carried a warranty of twelve months/2000 hours. On the complaint made by the respondent No.1 the machine was checked by the seller on 03-12-2001 and repaired between 07-12-2001 to 10-12-2001. It was found during checking that the engine of the machine has seized due to leakage of water from the auxiliary water tank of the machine. It was also found that due to excessive heat of the engine the alarm fitted in the machine should have beeped but it did not beep because the complainant had replaced the cap fitted on the auxiliary water tank by a non-standard cap which was not of the prescribed standard and as a result of which the water leaked and led to the seizure of the engine. Re-winding of the engine was also undertaken by the seller for which a sum of Rs.3,190/- was charged from the complainant. Alleging manufacturing defects in the machine the complainant approached the concerned District Forum seeking either replacement of the machine or refund of the price of the machine along with suitable compensation.
3. The complaint was resisted by the petitioners on the ground that there was no manufacturing defect in the machine. It was also pointed out in the reply that as per the warranty conditions the complainant was entitled only to repair or replacement of the damaged components and not to the replacement of the machine. It was further stated in the reply that no manufacturing defect in the machine was found at the time it was checked at the authorized service centre. The petitioners pointed out, in their reply, that at the time of delivery of the machine 13 PSI cap was fitted on its engine but the complainant later replaced the said cap by a 7 PSI cap, of his own. It was also pointed out in the reply that as per clause 1.41 of the warranty, the complainant was not entitled to any compensation for not being able to use the machine during the period it was under repairs. The petitioners/opposite parties also stated in the reply that the complainant had committed breach of clause 1.61 of the warranty by getting the machine serviced from workshops other than authorized service centres. The petitioners/opposite parties also took a preliminary objection that since the machine was purchased for a commercial purpose the complainant was not a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act.
4. The District Forum, after considering the case of the parties inter alia held as under:
(i) in view of the principles laid down in the aforesaid judgments complainant is consumer of the opposite parties in view of Section 2(1)(d) of the Act as such this objection of the opposite party No.1 is not legally tenable and is accordingly rejected,
(ii) that it is clearly mentioned in report No.629 of the respondent No.3 that engine was properly running and there was no fault in it at the time of trial. Fact of non beeping of alarm indicator despite excessive heating of engine has been knowingly suppressed,
(iii) that machine stood operated for 44.38 as per report No.629 dated 01-12-2001 of the respondent No.3 which shows that 13 PSI cap was fitted on the engine at the time of selling of the machine and both machine and engine had been working properly at the time of sale,
(iv) hence, it is clear that complainant himself purchased a 7 PSI cap from market and fitted it which indicates his own wrong and negligence. Since pressure cap was not of prescribed standard and quality its ribit became loosened and this cap had become mere cover only,
(v) that complainant did not stop leakage of water nor lodged any complaint in this regard rather operated machine in irresponsible way and, thus, violated warranty conditions which clearly shows that engine was not damaged due to any manufacturing defect rather it was for the wrong and negligence of the complainant himself,
(vi) that complainant did not get timely service of the machine which is compulsory as per warranty conditions and in the letter dated 27-12-2001 complainant has admitted the fact of getting the service done at his own, which is contrary to warranty condition No.1.6,
(vii) that engine of the machine purchased by the complainant was not seized/failed on 02-12-2001 due to any manufacturing defect therein,
(viii) that on complaint of the complainant opposite parties checked the machine and found consumption of diesel correct as per Report No.3472 dated 27-07-2002, means on this count no manufacturing defect in the machine can be said. In this regard also complainant has not filed report of any technical expert before the forum as such no reason to consider the report No.3472 to be incorrect,
(ix) that beside it complainant has committed shear negligence in maintenance and upkeeping of the machine. Machine has not been checked and serviced in time. As such it cannot be said that consumption of diesel is increased and working capacity of the machine is reduced after rewinding of engine,
(x) that complainant purchased machine on 23-10-2001 and engine was seized on 01-12-2001 and we did not found any manufacturing defect for seizure of engine in the discussion and complainant himself is found responsible for seizure of engine,
(xi) that re-cropping fault whatever removed by the Respondent No.2-opposite party No.2 is not found and whatever faults are in the machine pertains to poor maintenance and upkeeping, non servicing of machine in time, servicing of machine by unauthorized person etc., for which opposite parties cannot be held responsible,
(xii) that warranty condition No.1.4 provides that the manufacturers warranty does not extend to the proprietary or other components not of its manufacturer, but will as far as possible pass to the purchaser the benefits of any warranty given to the manufacturer in respect of such components,
(xii) that warranty condition No.1.14 provides that company is not liable for any loss of time to the user whilst the equipment is out of commission or for any labour and other expenses, damage of loss occasioned or claimed to be occasioned,
(xiv) that remaining of machine non-operated for a particular period for removing/repairing the defects pointed out by the complainant is natural but complainant and the opposite party No.2 in their evidence has not specifically deposed that how much time should consumer in removing a particular defect generally,
(xv) that in this situation we think it proper to award Rs.50,000/- instead of Rs.1,28,000/- to the complainant from the opposite parties as compensation for the loss caused to him for this reason,
(xvi) that causing of mental agony to the complainant due to closure of machine for 80 days through out year is natural and we think it proper to award Rs.10,000/- as compensation for it to the complainant from the opposite party No.1 and 2.
(xvii) that the complainant has been failure to prove any manufacturing defect in the machine so purchased by the complainant but machine manufactured by opposite party No.1 has been sold by its authorized service centre to the complainant and therefore in our view opposite party No.1 and
2 are jointly responsible for removing the defects cropped up during warranty period therefore for unnecessary delay caused in removing related complaint/defect cropped in the machine and also for mental agony caused to the complainant on this count the opposite party No.1 and 2 both are jointly and severally liable to compensate the complainant,
(xviii) that so far as opposite party No.3 is concerned, for seizure of engine of the machine purchased by the complainant, opposite party No.3 cannot be held responsible.
5. Being aggrieved from the order passed by the District Forum the petitioners approached the concerned State Commission by way of an appeal. Vide impugned order dated 18-08-2009 the State Commission dismissed the appeal filed by the petitioners, upholding the findings recorded and the orders passed by the District Forum. During the course of its decision the State Commission inter alia observed and held as under:
(i) so far as argument of learned counsel for the appellant respondent No.1 that manufacturer cannot be held liable when no manufacturing defect is held in the machine of the complainant appellant is concerned, in this context in our view it would be justified to state that it is true that fault cropped up in the machine of the complainant was not manufacturing defect but even fault has come frequently in the machine in warranty period. Since respondent No.2-opposite party No.2 was dealer of the appellant therefore the appellant opposite party No.1 being manufacturer is liable for the act of respondent No.2-opposite party No.2 and the District Forum has committed no illegality in holding the appellant and the respondent No.2 opposite party No.2 jointly and severally responsible for the delay occurred in removing the fault in the machine of the complainant and, therefore, appeal filed by the appellant opposite party No.1 is liable to be dismissed on merits.
(ii) So far as unnecessary delay caused by the respondent No.2- opposite party No.2 in removing the fault in the machine of the complainant is concerned, in our opinion in this regard finding of the District Forum is liable to be confirmed because respondent No.2 in its evidence has not made it clear that normally how much time should have been consumed in removing a particular fault therefore finding of the District Forum that respondent No.2 opposite party No.2 has committed unnecessary delay in removing fault in the machine of the complainant and deserves to be upheld and complainant is certainly entitled for compensation in this regard.
6. The first question which arises for our consideration in this case is as to whether the complainant can be said to be a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act as it stood before its amendment with effect from 15-03-2003 but post its amendment with effect from 18-06-1993. The aforesaid provision, as it stood at the relevant time, provided that consumer does not include a person who bought goods for resale or for any commercial purpose. The explanation below the aforesaid clause at the relevant time provided that commercial purpose did not include use by a consumer of the goods bought and used by him exclusively for the purpose of earning his livelihood by means of self-employment. It would, thus, be seen that unless the case of the complainant is covered within the purview of the explanation attached below Section 2(1)(d) of the Consumer Protection Act at the relevant time, he cannot said to be a consumer of the petitioners if the machine in question was purchased by him for a carrying a business. It was alleged in the complaint that the machine in question was purchased by the complainant for earning his livelihood. However, it was not alleged that the said machine was used by the complainant himself. This was also not the case of the complainant, in the complaint filed by him, that he was using the aforesaid machine through some employee engaged by him. The onus was on the complainant to prove that the machine in question was not only bought but also used by him exclusively for the purpose of earning his livelihood by means of self-employment. In fact, the complainant did not even claim that the machine was bought for earning livelihood by means of self-employment. In the absence of averment and evidence to the effect that the complainant had used either himself or with the aid of an employee the machine for the purpose of earning his livelihood by means of self-employment he would not come within the purview of the explanation attached below Section 2(1)(d) of the Consumer Protection Act at the relevant time. In our opinion, it was not sufficient for the complainant to claim that he had purchased the machine for his livelihood purpose. He ought to have pleaded and proved that it was for earning livelihood by means of self-employment. More importantly, he was also required to plead and prove that the machine was used by him either personally or through some employee engaged by him. That having not been done there is no escape from the question that the complainant cannot be said to be a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, as regards JCB machine purchased by him. The complaint is liable to be dismissed on this short ground alone.
7. The District Forum as well as the State Commission took a view that since the machine developed defect during warranty period, the complainant would be consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act even if the machine was purchased by him for a commercial purpose. The aforesaid view, in our view cannot be sustained, considering the express provisions contained in Section 2(1)(d) of the Consumer Protection Act as it stood at the relevant time. As far as purchase of goods is concerned, the explanation below Section 2(1)(d), at the time the machine was purchased, excluded from the purview of commercial purpose only a person who had purchased the goods in question, solely for the purpose of earning his livelihood by way of self- employment and the said goods were being used by him for the aforesaid purpose. That having not been proved by the complainant he cannot be said to be a consumer within the meaning of Consumer Protection Act.
8. No manufacturing defect in the machine was found by the District Forum or by the State Commission. The aforesaid finding of fact recorded by the fora below has not been challenged by the complainant and, therefore, has become final. Even otherwise, while exercising revisional jurisdiction we cannot interfere with a finding of fact recorded by the fora below unless it is shown to be perverse. In the facts and circumstances of the case, the finding rendered by the District Forum and accepted by the State Commission cannot be said to be perverse so as to warrant interference by us in exercise of our revisional jurisdiction.
9. The District Forum and the State Commission took a view that there was delay on the part of the petitioners in repairing the machine. However, the said view was taken without ascertaining what was the reasonable time required for rectifying the defects found in the machine. It is only after ascertaining the reasonable time required for rectifying a defect and comparing it with the time actually taken in rectification, that one can know whether the time taken in carrying out repairs was more than justified or not. That having not been done the finding recorded by the District Forum and State Commission in this regard cannot be accepted. More importantly, as per the agreement between the parties, contained in the warranty clause, the petitioners are not liable to compensate the complainant for the delay in carrying out repairs of the machine. Consequently, no compensation on account of the delay in carrying out the repair can be awarded unless it is shown that an unreasonable time was taken for carrying out such repairs.
10. The District Forum and the State Commission accepted the case of the petitioners that the complainant had replaced the PSI cap fitted on the machine at the time it was sold to the complainant. It was also found that the cap which the complainant used for replacing the original cap was not of the requisite standard since it was not a 13 PSI cap. It was because of the aforesaid reason that despite excessive heating, the alarm fitted in the machine did not operate. The District Forum and the State Commission also recorded a finding that the fault once repaired did not occur again meaning thereby that the fault was rectified in a proper manner and the defects subsequently found in the machine cannot be attributed to any deficiency or imperfection in rectifying the fault brought to the notice of the petitioners.
11. For the reasons stated hereinabove, both the revision petitions are allowed and the complaint is dismissed. No order as to costs. The amount, if any, deposited by the petitioner with this Commission and the State Commission be refunded to the concerned petitioner along with interest, if any, which may have accrued on that amount. ......................J
V.K. JAIN PRESIDING MEMBER ...................... DR. B.C. GUPTA MEMBER
Comments