Judgment:
HONBLE M. THANIKACHALAM J, PRESIDENT
1. The unsuccessful opposite party in COP.139/2003 on the file of District Consumer Disputes Redressal Forum, Kanyakumari at Nagercoil, is the appellant.
2. The respondent herein as complainant approached the District Forum for the recovery of a sum of Rs.10,000/- by way of compensation, alleging deficiency in service on the grounds with among other grounds, that he had sent the Kirloskar Oil Engine, purchased from the opposite party, for service on 04.03.2003, that the opposite party having charged a sum of Rs.4,452.48 towards the replacement of some of the spare parts, did not repaired the engine defect totally, that on the day itself the engine was struck off due to some unknown defect, that a complaint was made on 05.03.2003, for which, also amount was charged for repair, but defects were not rectified properly and thereby the service guaranteed by them is not discharged, whereas, they have caused negligence, for which, they should be directed to pay the above said sum by way of compensation.
3. The case was opposed by the opposite party on the grounds with among other grounds, that the complainant is using the engine for operating a paddy thrasher and letting it for hire, thereby, using for commercial venture and therefore the case filed before the District Forum is not maintainable, that the engine has already crossed the period of warranty, that at the request of the complainant, the head assembly of the engine was serviced by some other mechanic known to him, which was fitted and the engine was tested and if any defect therein, the opposite party cannot be held responsible and that the claim of the complainant is malafidy and unwarranted, thereby, prayed for the dismissal of the complaint.
4. On the above basis, the District Forum enquired the matter after exhibiting 8 documents on the side of the complainant and 5 documents on the side of the opposite party. The evaluation of the above materials disclosed that there was deficiency in service, thereby, causing loss to the complainant. Thus taking a view, a direction has been issued, directing the opposite party to pay a sum of Rs.5,000/- as compensation, which is under challenge.
5. Heard the learned counsel appearing for either side, perused the documents, written submissions as well as the order of the District Forum.
6. The main submissions of the Learned Counsel for the appellant before us are that the engine was used for commercial purpose and therefore Forum had no jurisdiction, that since the warranty period is already over, question of deficiency of service may not arise for consideration, that the complainant engaged other mechanic known to him, for repairing the engine head, for which, the appellant cannot be held responsible. Elaborating the above points, submissions were made for upsetting the findings of the lower Forum. Opposing the above submissions, it was urged on behalf of the respondent/complainant that the complainant never hired the engine to any other person for consideration, earning money by hiring the engine and therefore the contention, Forum has no jurisdiction is untenable. It is the further submission of the Learned Counsel for the respondent/complainant that never engaged any mechanic to repair the engine head, whereas, all the repairs were done by the opposite party alone and because of its defect, they alone should be held responsible. It is the further submission for the Learned Counsel for the appellant, that after repair, when engine was delivered to the complainant, on 04.03.2003 itself and on the same day itself, it was struck off due to some defect, for which, also the opposite party deputed his mechanic who had noticed that the bolts inside the engine were not properly fitted which proves the deficiency in service, which were properly conceded by the lower Forum not warranting disturbance.
7. Having given our anxious thought to the above submissions and perusing the materials as well as the Written Submissions, it is the considered opinion of us, that the lower Forum is correct in awarding compensation, though the compensation may be on higher side and we do not find any reason to up set the finding totally.
8. It is an admitted fact that the opposite party is the only dealer of Kirloskar engine in that area from whom the complainant purchased the engine in question. There is no material, that by using this engine for the commercial activities, complained earned profit, thereby, to bring him or this case within the meaning of commercial activities, outside the jurisdiction of the Forum. Assuming that the engine was hired to others, considering the status of the complainant as well as nature of work undertaken by him, it should be held that he was using the engine for his agricultural activities, and if at all giving the same to other parties, when he has no work which will not come within the meaning of commercial transaction or commercial activities. If any income is derived by hiring, it may be used for his livelihood and not to get profit and in this view also, the jurisdiction of the Consumer Forum cannot be excluded. Hence, the objection raised by the appellant/opposite party, as if the Forum has jurisdiction has to be rejected and thereby the same is rejected.
9. It is the common case of the parties that the engine in question was entrusted to the opposite party on 4.3.2003 for repair. As seen from Ex.A1 and Ex.A2 estimates were prepared, the bill amount is fixed at Rs.3,573.65 out of which Rs.3,000/- was paid as advance. The spare parts also purchased including Valve and Liner with Piston Assembly used mainly in the head assembly. Therefore, the submission of the appellant, that the head assembly was handed over to the complainant for repair elsewhere, relying upon Ex.B6 must be incorrect and must be an after-thought. It is not the case of the appellant/opposite party that he did repairs free of charge or it is also not the case of the complainant, warranty was enforced, whereas it is said in this documents, as free serice. As seen from Ex.B6, originally customers name was given as Thanga Mahal Mandapam, then it is scored out and the complainants name is written. In the description of work done, it is stated as if head assembly was removed and given to the complainant for repair which must be incorrect on the face of Ex.A1 and Ex.A2. We find no signature of the complainant, though there are two signatures, not that of the complainant. Therefore, placing reliance upon Ex.B6 also, which is not proved as worthy of acceptance, it is impossible to hold that the head assembly was taken by the complainant elsewhere, repaired then handed over to the opposite party, for fixing with engine. Only in order to avoid liability, this kind of defence has been taken and same is to be rejected as unworthy. By handing over the engine including for service, amount collected, thereby showing the service of the opposite party was hired, and service should be effective or there should be no deficiency. In this case, as proved by the affidavit not challenged on 04.03.2003 itself after repair, when the engine was started it struck off, resulting problem. When it was reported on 05.03.2003, the same was not repaired effectively as complained by the complainant. In view of the above admitted position, the lower Forum has come to a correct conclusion that there was deficiency in service, for which, the complainant is to be compensated.
10. As seen from Paragraph 10 of the complaint, the complainant assesed the damages at Rs.4,000/- in all respects, but when the prayer comes, he escalated the same to Rs.10,000/- which appears to be unreasonable. The lower Forum without noticing the same, taking into account, the claim made in the prayer was at Rs.10,000/-, awarded a compensation of Rs.5,000/- which is to be reduced, having regard the facts namely the actual amount spent for service and the fact when there was report about the complaint, the same was attended by opposite party/appellant. Thus we are inclined to reduce the compensation, from Rs.5,000/- to Rs.3,000/-. With this modification, the appeal has to be allowed.
11. In the result, the appeal is allowed in part, modifying the direction of the District Forum, directing the opposite party/appellant to pay a sum of Rs.3,000/- as compensation. There will be no order as to cost, throughout.