Krishan Kumar Dhanker Vs. Hydro Spares and Services and Others.

Krishan Kumar Dhanker vs Hydro Spares and Services and Others.

Type Court Judgment Court Delhi State Consumer Disputes Redressal Commission SCDRC New Delhi Decided Mar 23, 2007

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Citation: sooperkanoon.com/1112199
Court: Delhi State Consumer Disputes Redressal Commission SCDRC New Delhi
Judge: J.D. Kapoor, President &Amp; the Honourable Ms. Justice Rumnita Mittal, Member
Decided On: Mar 23, 2007
Case Number: Complaint Case No. C-155 of 2002
Subject: Land Acquisition

Case Summary

AI-generated summary - not the official court judgment text.

Consumer Protection Act, 1986 - Section 2(1)(g) and Section 2(1)(f) - Comparative Citation: 2007 (3) CPJ 243

Key legal issue: Land Acquisition

Parties & Advocates

Appellant / Petitioner

Krishan Kumar Dhanker

Respondent

Hydro Spares and Services and Others.

Excerpt

consumer protection act, 1986 - section 2(1)(g) and section 2(1)(f) - comparative citation: 2007 (3) cpj 243.....in december, 2001. the receipt of the cash was not issued by o.p. nos. 1 and 3 and they told that the above said money would be adjusted in bill. after receiving the full price of rs. 14,15,000 of the machine by o.p. no. 2 he then delivered the machine to the complainant on 4.12.2001. the bill of the said machine was delivered to the complainant after three months by o.p. no. 2. 3. that the above said machine started giving trouble on 2.5.2002 at evening. o.p. no. 1 was informed by the complainant regarding the trouble of the machine on telephonic message on 3.5.2002 early morning. o.p. no. 1 attended the complaint on 7.5.2002 and made entry of the working hour in service record as under :7.5.2002-509 hours13.5.2002-entry not made15.5.2002-517 hours20.5.2002-552 hours4.6.2002-619 hours6.6.2002-619 hours23.10.2002-1022 hours4. that defects developed during the period of warranty and machine was not working properly since 3.5.2002. the complainant made several complaints regarding the defect of the said machine. but o.p. no. 1 did not find out the real defects in the said machine which was having persistent defect which could not be removed. the complainant also sent a message to o.p. no. 2, mr. k.v.s. nair, who is a senior marketing manager posted at pithampur, m.p. in connection with the defect on above said machine by a fax 8292-56301 on 11.5.2002. 5. that the complainant discharged his liability by paying rs. 5,51,000 upto october, 2002 to o.p. no. 3, while his machine was not functioning properly since 3.5.2002 and same was financed by o.p. no. 3. 6. that on january 4/5, 2003 at night musclemen of o.p. no. 3 forcibly snatched the machine from the possession of the complainant at mahipalpur, rangpuri, delhi by giving a informing letter to the operator of the machine. on 6.1.2003 when the complainant contacted o.p. no. 3 about the incident, they demanded rs. 7,50,000 full amount of loan plus rs. 25,000 other charges for hired musclemen deployed for the.....

Full Judgment

J.D. Kapoor, President:

1. Complainant purchased a machine (equipment) L and T 580-3, Loader Backhoe Hydraulic Excavator-cum-Loader Machine Sl. No. ULB-2644, Engine No. 48.1505/0100203, Chassis No. ULB-01J264 of O.P. No. 2 in the price of Rs. 14,15,000 through its authorised dealer, O.P. No. 1 on 4.12.2001. The bill of the machine dated 15.12.2001 was delivered by O.P. No. 2 to the complainant after three months, but form No. 21 (Sales Certificate) and form No. 22 (Initial Certificate of Road Worthiness) not given. O.P. No. 2 gave both the form Nos. 21 and 22 in April, 2002 to the complainant.

2. That O.P. No. 3 financed Rs. 9,75,000 at the interest rate of 9% p.a. out of Rs. 14,15,000 to the complainant in December, 2001. The receipt of the cash was not issued by O.P. Nos. 1 and 3 and they told that the above said money would be adjusted in bill. After receiving the full price of Rs. 14,15,000 of the machine by O.P. No. 2 he then delivered the machine to the complainant on 4.12.2001. The bill of the said machine was delivered to the complainant after three months by O.P. No. 2.

3. That the above said machine started giving trouble on 2.5.2002 at evening. O.P. No. 1 was informed by the complainant regarding the trouble of the machine on telephonic message on 3.5.2002 early morning. O.P. No. 1 attended the complaint on 7.5.2002 and made entry of the working hour in service record as under :

7.5.2002	-	509 hours
13.5.2002	-	Entry not made
15.5.2002	-	517 hours
20.5.2002	-	552 hours
4.6.2002	-	619 hours
6.6.2002	-	619 hours
23.10.2002	-	1022 hours

4. That defects developed during the period of warranty and machine was not working properly since 3.5.2002. The complainant made several complaints regarding the defect of the said machine. But O.P. No. 1 did not find out the real defects in the said machine which was having persistent defect which could not be removed. The complainant also sent a message to O.P. No. 2, Mr. K.V.S. Nair, who is a Senior Marketing Manager posted at Pithampur, M.P. in connection with the defect on above said machine by a fax 8292-56301 on 11.5.2002.

5. That the complainant discharged his liability by paying Rs. 5,51,000 upto October, 2002 to O.P. No. 3, while his machine was not functioning properly since 3.5.2002 and same was financed by O.P. No. 3.

6. That on January 4/5, 2003 at night musclemen of O.P. No. 3 forcibly snatched the machine from the possession of the complainant at Mahipalpur, Rangpuri, Delhi by giving a informing letter to the operator of the machine. On 6.1.2003 when the complainant contacted O.P. No. 3 about the incident, they demanded Rs. 7,50,000 full amount of loan plus Rs. 25,000 other charges for hired musclemen deployed for the purpose.

7. That after the possession of the said machine Mr. Gauri Samant, Advocate, Bombay who was appointed as Arbitrator by O.P. No. 3 sent a summon to the complainant dated 14.10.2004. Complainant did not take part in the arbitration proceedings at Bombay because whole transaction had happened in Delhi and he was unable to bear the travelling and lodging expenditure at Bombay.

8. That O.P. No. 3 filed a complaint against the complainant under Section 138 of the Negotiable Instruments Act in the Honble Court of Ms. Poonam Chaudhry, M.M. Karkardooma, Delhi.

9. Complainant suffered heavy loss due to the defective machine delivered by O.P. No. 2 and very poor service given by O.P. No. 1. Complainant has claimed the following amount :

(i)	Cost of machine Sl. No. 2644	Rs.	14,15,000
(ii)	Salary of operator Rs. 10,000 x 9	Rs.	90,000
(iii)	Salary of caretaker-cum- helper Rs. 8,000 x 9	Rs.	72,000
(iv)	Lawyer fee in the case under Section 138 NI Act	Rs.	25,000
(v)	Self communication expenditure in the case under Section 138 NI Act	Rs.	20,000
(vi)	Loss of income	Rs.	1,20,000
(vii)	Mental anguish and harassment	Rs.	3,00,000
(viii)	Loss of business and credit name and fame in market and society	Rs.	4,58,000

10. O.P. No. 2 who is manufacturer of the machine was proceeded ex parte whereas O.P. No. 1 who is the dealer of O.P. No. 2 has contested the claim of the complainant. According to O.P. No. 1 its liability was limited being a dealer and whenever a machine was brought with some complaints of defects the said defects were removed. O.P. No. 1 denied the allegation that it did not find out the real defects in the machine. Service Engineer of O.P. No. 1 had visited complainants office on 2.5.2002, checked the machine, rectified the defect and after that the machine was working in satisfactory condition. Again on 6.5.2002 O.P. No. 1 had received a call from complainant regarding the trouble of the machine and send their Service Engineer on 7.5.2002. It was found that the MPR valve had failed and the machine was working but slowly, O.P. No. 1 had immediately placed a warranty order on L and T for MPR valve. On 9.5.2002 O.P. No. 1 had again sent their Service Engineer along with MPR valve but he was shocked and surprised to see that the complainant was running his machine without Hydraulic Oil whereas it was strictly instructed by O.P. No. 1 at the time of purchase that “if you will run your machine without Hydraulic Oil then it will damage the Hydraulic System”.

11. Thus the complainant has no right to blame O.P. No. 1 for the defect of the machine. On 9.5.2002 the Service Engineer of O.P. No. 1 had come back from the complainants office and asked them to call only at that time when Hydraulic Oil is available. After that O.P. No. 1 had received a call from complainant on 11.5.2002 that they had purchased Hydraulic Oil. On 13.5.2002 O.P. No. 1 had again sent their Service Engineer to rectify the defect and he was again shocked to see the Hydraulic Oil because it was duplicate, local grade and adulterated oil, he refused to use that oil but customer forced to use that oil with the condition that O.P. No. 1 will not be responsible for the defect in their machine because of this oil and changed MPR valve and checked all the functions of machine. After that the machine has been working satisfactory. Likewise several times O.P. No. 1 had received complaint from the complainant., i.e., on 5.12.2001, 15.2.2002, 18.3.2002, 2.5.2002, 6.5.2002, 9.5.2002, 11.5.2002, 20.5.2002, 6.6.2002, 26.6.2002, 2.7.2002, 17.9.2002 and the same had always been rectified by the Service Engineer of O.P. No. 1.

12. The liability of the dealer is not of the same as that of the manufacturer. The dealer can be penalized only for not having rendered satisfactory service and at the same time the dealer is also expected to ensure itself that the goods being sold by him are free from any manufacturing defect. If a person purchases brand new goods and takes the same every day to the dealer or its workshop for removing some or other defects then the consumer suffers heavily in terms of loss of business, mental agony, harassment, physical discomfort etc. It is not necessary for the consumer to prove the defect of the machine for replacement of the same with a new machine when the machinery suffers from inherent defect. Job card, number of times the consumer takes the defective goods to the manufacturer for rectifying the defect during the warranty period is sufficient to hold the goods as ‘defective as defined by Section 2(1)(f) of the Consumer Protection Act, 1986.

13. In the given facts and circumstances of the case and after according careful consideration to the rival claims of the parties, we allow the complaint in the following terms :

(i) O.P. No. 1 shall pay compensation of Rs. 50,000 for having put the complainant to mental agony, harassment for taking the machine time and again for removal of the defects.

(ii) O.P. No. 2 shall refund the entire cost of the machine to the complainant as he raised a loan from the Bank @ 9% interest. Besides O.P. No. 2 shall also pay Rs. 1,00,000 as compensation for mental agony and harassment.

(iii) So far as O.P. No. 3 is concerned, it has taken away the machine without resorting to the legal remedy and also raised demand of the balance amount payable by the complainant. O.P. No. 3 shall refund the amount of Rs. 4,40,000 towards the margin money paid by the complainant while raising the loan and shall also pay Rs. 1,00,000 as compensation for wrongful action.

14. Aforesaid order shall be complied with by the parties within one month from the date of receipt of this order.

15. Complaint is disposed of in aforesaid terms.

16. A copy of this order as per the statutory requirements, be forwarded to the parties free of charge and thereafter the file be consigned to Record Room.

Complaint allowed.

Same Court & Year Delhi State Consumer Disputes Redressal Commission SCDRC New ... Same Parties Krishan Kumar Dhanker vs Hydro Spares and Services and Others. Same Subject Land Acquisition Same Judge J.D. Kapoor, President &Amp; the Honourable Ms. Justice Rumni...

Land Acquisition