K. Ganga Reddy Vs. M/S Telco Construction Equipment Co.Ltd. and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1107670
CourtAndhra Pradesh State Consumer Disputes Redressal Commission SCDRC Hyderabad
Decided OnJan-23-2013
Case NumberF.A.No.248 of 2012 Against C.C.No.506 of 2008 District Forum-I Hyderabad
JudgeMR. R. LAKSHMINARASIMHA RAO, HONOURABLE MEMBER & MR. THOTA ASHOK KUMAR, HONOURABLE MEMBER
AppellantK. Ganga Reddy
RespondentM/S Telco Construction Equipment Co.Ltd. and Others
Excerpt:
oral order: (sri r.lakshminarasimha rao, honble member) 1. the unsuccessful complainant is the appellant. the appellant filed complaint before the district forum seeking for return of `8,26,127/- towards the cost of proclainer and for payment of `7,75,000/- towards damages for keeping the vehicle idle and for payment of `4,800/- towards transportation charges of the proclaimer as also a sum of `2,30,873/- towards punitive damages. 2. the facts of the case as seen from the contents of the complaint are that the appellant purchased proclaim bearing machine model number –jd315v on 5.05.2004 from the first respondent for excavation of loose soil on finance arranged by the second respondent which is sister concern of the first respondent to the extent of `12,82,000/- and he paid the margin money of 25% to the extent of `4,28,027/-. the loan amount was repayable @`52,350/- in 29 monthly installments with first installment amount being a sum of `53,500/-. the appellant paid the installments till 10.02.2005 to an extent of `3,98,127/- through the cheques deposited with the second respondent company. 3. the first respondent company represented to the appellant that the machine manufactured by it is of better quality compared to the machine manufactured by the other companies and by purchasing the machine from the first respondent, the appellant can earn a sum of `5000/- per day. the second respondent collected an amount of `9,850/- on 13.06.2005 towards the loan installments and a sum of `30,529/- on 21.05.2004 towards insurance premium, from the appellant. the proclaim suffered from inherent defects due to which the machine was kept idle and the second respondent repossessed the machine on 10.07.2005 at hyderabad. 4. the appellant got issued notice on 23.02.2005 and the service manager of the first respondent company exercised coercion and misrepresentation on the appellant to withdraw the notice and induced the appellant that the defective parts would be replaced as per the terms and conditions of the warranty and warranty period would be extended for a period of 3 months till 04.08.2005. the withdrawal of the notice is not binding on the appellant and he got issued another notice to the respondents on 04.02.2006 for which the first respondent company had given reply on untenable grounds. 5. the second respondent had issued telegraphic notice on 20.10.2005 calling upon the appellant to update the outstanding installments and other charges on or before 22.10.2005. the third respondent company with which the appellant had no priviity of contract had repossessed the machine on 10.07.2005 and sold the vehicle for a sum of `9,00,000/- on 30.01.2006 without issuing notice to the appellant for and informed the appellant that after adjusting the sale proceeds of the vehicle the appellant was still due an amount of `3,84,259/-. the second respondent sold the vehicle for unreasonable amount. 6. the respondents had not chosen to contest the appellants claim. the matter was remanded by this commission in f.a.no.718 of 2010 and after the complaint was remitted back to the district forum, the respondents had not chosen to participate in the proceedings. 7. the respondents have not chosen to participate in the proceedings in the appeal. 8. the appellant filed his affidavit and the documents, exa1 to a11. the respondents did not chose to file affidavit or the documents. 9. the district forum has allowed the complaint on the premise that the appellant failed to prove that the proclain suffered from manufacturing defect and that the second respondent company was amalgamated with the third respondent company. the district forum held that the third respondent company did not conduct auction and sold the proclain for unreasonable amount. the district forum awarded the amount paid by the appellant for 7 installments. 10. feeling dissatisfied with the award passed by the district forum the complainant has filed appeal contending that the district forum has not considered the affidavit of the appellant and the documents filed by him.34 invoice reports would show that the proclain suffered from inherent defects. the amount paid by the appellant is `3,98,127/- and the district forum ignored the margin money paid by the appellant. 11. the point for consideration is whether the appellant is entitled to the reliefs sought for? 12. the appellant purchased proclain bearing model no.jd315v on 5.05.2004from the first respondent company and the second respondent company which was later amalgamated with the third respondent company arranged for loan to the extent of `12,82,000/- and he paid the margin money of 25% to the extent of `4,28,027/-. the loan amount was repayable @`52,350/- in 29 monthly installments. the appellant had taken delivery of the proclain on 5.05.2004 and paid 7 installments till 15.01.2005, totally amounting to `3,98,127/-. 13. the appellant has stated that he is an illiterate person and fell prey to the persuasion of the manager of the first respondent company and the vehicle sold to him was defective. he has stated about the repairs attended to the vehicle as: “i submit that right from the very beginning the vehicle was givein trou ble and not working properly. during the period from 8.5.2004 to 10.7.2005 ( on which date the vehicle is seized by the opposite party no.2 from the garage at begumpet, hyderabad on 10.7.2005). due to inherent mechanical defects the vehicle had to undergo for (35) times repairs. every time i had to report to the rama excavators at ramagundam who is the authorized customer support center opposite party no.4”. 14. the service reports dated 13.5.2004, 9.06.2004, 19.6.2004, 20.7.2004, 9.8.2004, 7.9.2004, 22.09.2004, 9.10.2004 18.10.2004,2.12.2004, 13.1.2005, 18.2.2005, 11.4.2005, 3.4.2005 27.4.2004, 8.6.2005 and 10.7.2005 would show that the proclain posed problems relating to engine oil leakage, bending of pressure line, side shift attachment, sip stricture, piston displacement, exhaust elbow etc., during the period from 8.05.2004 to 10.07.2005 the proclain stated to have been remained idle and the appellant had stated that he could not use the proclaimer to level his agricultural lands. the appellant got issued notice on 4-02-2005 through his advocate bringing it to the knowledge of the respondent no.1 the problems posed by the proclain that : “that after two months of taking delivery of j.d. 315 p machine started giving trouble and it was not running and machine was kept idle in the shed more than 120 days immediately for the repairs due to failure of new product, according to the warranty certificate, the warranty started from its delivery dated 5th may 2005 or total operating hours, 2000 whichever comes first. but the machine started giving trouble within 2 months and kept idle in shed more than 120 days within six months”. 15. the first respondent had given reply dated 25.03.2006 admitting the withdrawal of the notice by the appellant pursuant to the request made by the manager of the first respondent company. however, the first respondent denied exercise of coercion or misrepresentation on the appellant in the following words: “our client confirms us that they received legal notice dated 23rd february 2005. pursuant to that, your client met our clients service head during the month of march 2005 and explained his problem. thereafter, our clients service manager requested your client to withdraw the above notice to give free service/replace defective spares as per the terms and conditions of the warranty and as a special gesture agreed to extent the warranty period by 3 months i.e., till 4.8.2005. it is denied that our client had coerced your client to withdraw the said notice and said withdrawal is under pressure, coercion or undue influence. 16. though it cannot be said in certain terms that the proclain suffered from inherent defects, certainly the service reports would show the persistent problems such as oil leakage and the appellant was deprived of the use of the proclain for considerable period of time. 17. the second respondent issued telegraphic notice on 20.10.2005 to the appellant with a demand to update the outstanding installments along with the incidental charges by 22.10.2005 and the third respondent repossessed the vehicle on 10.07.2005. the appellant has stated that the second respondent sold the proclain for an amount of `9,00,000/- without conducting auction. the sale consideration of the proclain is unreasonable and the district forum has rightly concluded that the third respondent with which the second respondent was amalgamated had sold the proclain without issuing notice to the appellant and without conducting auction. 18. the procalin was purchased on 5.5.2004 and it was sold by the third respondent on 31.01.2006. by the time it was sold, the proclaimer was 19 months old. the appellant had paid 25% of the sale consideration to the first respondent company and he had incurred expenditure for repairs of the proclain. the third respondent sold the proclain for an arbitrary amount of `9,00,000/-. in the circumstances, the amount awarded by the district forum does not appear to correspond to the loss suffered by the appellant. 19. the honble supreme court “state of gujarath vs shantilal mangaldas” air 1969 sc 634. held the compensation to mean…..”in ordinary parlance the expression compensation means anything given to make things equivalent; a thing given to or to make amends for loss recompense, remuneration or pay, it need not therefore necessarily in terms of money. the phraseology of the constitutional provision also indicates that compensation need not necessarily be in terms of money because it expressly provides that the law may specify the principles on which, and the manner in which , compensation is to be determined and given . if it were to be in terms of money along, the expression ‘paid would have been more appropriate”. 20. the supreme court held that the compensation to be awarded is to be fair and reasonable. in “charan singh vs healing touch hospital and others” 2000sar(civil) 935 the apex court stressed the need of balancing between the compensation awarded recompensing the consumer l and the change it brings in the attitude of the service provider. 21. the court held “while quantifying damages , consumer forums are required to make an attempt to serve ends of justice so that compensation is awarded, in an established case, which not only serves the purpose of recompensing the individual, but which also at the same time aims to bring about a qualitative change in the attitude of the service provider. indeed calculation of damages depends on the facts and circumstances of each case. no hard and fast rule can be laid down for universal application. while awarding compensation, a consumer forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. it is for the consumer forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to established judicial standards where the claimant is able to establish his charge”. 22. for the foregoing reasons and in view of the principle laid in the aforementioned cases, the award of an amount of `3,67,600/- does not correspond to the loss suffered by the appellant and the actual sale consideration of the proclain. in the circumstances of the case, we are inclined to enhance the amount awarded by the district forum from to `4,00,000/-. 23. in the result, the appeal is allowed. the order of the district forum is modified. the respondent no.3 is directed to pay an amount of `4,00,000/- with interest @9% p.a. from the date of filing of complaint till payment and `10,000/- towards compensation together with `3,000/- towards costs.
Judgment:

Oral Order: (Sri R.Lakshminarasimha Rao, Honble Member)

1. The unsuccessful complainant is the appellant. The appellant filed complaint before the District Forum seeking for return of `8,26,127/- towards the cost of Proclainer and for payment of `7,75,000/- towards damages for keeping the vehicle idle and for payment of `4,800/- towards transportation charges of the proclaimer as also a sum of `2,30,873/- towards punitive damages.

2. The facts of the case as seen from the contents of the complaint are that the appellant purchased proclaim bearing machine model number –JD315V on 5.05.2004 from the first respondent for excavation of loose soil on finance arranged by the second respondent which is sister concern of the first respondent to the extent of `12,82,000/- and he paid the margin money of 25% to the extent of `4,28,027/-. The loan amount was repayable @`52,350/- in 29 monthly installments with first installment amount being a sum of `53,500/-. The appellant paid the installments till 10.02.2005 to an extent of `3,98,127/- through the cheques deposited with the second respondent company.

3. The first respondent company represented to the appellant that the machine manufactured by it is of better quality compared to the machine manufactured by the other companies and by purchasing the machine from the first respondent, the appellant can earn a sum of `5000/- per day. The second respondent collected an amount of `9,850/- on 13.06.2005 towards the loan installments and a sum of `30,529/- on 21.05.2004 towards insurance premium, from the appellant. The proclaim suffered from inherent defects due to which the machine was kept idle and the second respondent repossessed the machine on 10.07.2005 at Hyderabad.

4. The appellant got issued notice on 23.02.2005 and the service manager of the first respondent company exercised coercion and misrepresentation on the appellant to withdraw the notice and induced the appellant that the defective parts would be replaced as per the terms and conditions of the warranty and warranty period would be extended for a period of 3 months till 04.08.2005. The withdrawal of the notice is not binding on the appellant and he got issued another notice to the respondents on 04.02.2006 for which the first respondent company had given reply on untenable grounds.

5. The second respondent had issued telegraphic notice on 20.10.2005 calling upon the appellant to update the outstanding installments and other charges on or before 22.10.2005. The third respondent company with which the appellant had no priviity of contract had repossessed the machine on 10.07.2005 and sold the vehicle for a sum of `9,00,000/- on 30.01.2006 without issuing notice to the appellant for and informed the appellant that after adjusting the sale proceeds of the vehicle the appellant was still due an amount of `3,84,259/-. The second respondent sold the vehicle for unreasonable amount.

6. The respondents had not chosen to contest the appellants claim. The matter was remanded by this Commission in F.A.No.718 of 2010 and after the complaint was remitted back to the District Forum, the respondents had not chosen to participate in the proceedings.

7. The respondents have not chosen to participate in the proceedings in the appeal.

8. The appellant filed his affidavit and the documents, ExA1 to A11. The respondents did not chose to file affidavit or the documents.

9. The District Forum has allowed the complaint on the premise that the appellant failed to prove that the proclain suffered from manufacturing defect and that the second respondent company was amalgamated with the third respondent company. The District Forum held that the third respondent company did not conduct auction and sold the proclain for unreasonable amount. The District Forum awarded the amount paid by the appellant for 7 installments.

10. Feeling dissatisfied with the award passed by the District Forum the complainant has filed appeal contending that the District Forum has not considered the affidavit of the appellant and the documents filed by him.34 invoice reports would show that the proclain suffered from inherent defects. The amount paid by the appellant is `3,98,127/- and the District Forum ignored the margin money paid by the appellant.

11. The point for consideration is whether the appellant is entitled to the reliefs sought for?

12. The appellant purchased proclain bearing Model No.JD315V on 5.05.2004from the first respondent company and the second respondent company which was later amalgamated with the third respondent company arranged for loan to the extent of `12,82,000/- and he paid the margin money of 25% to the extent of `4,28,027/-. The loan amount was repayable @`52,350/- in 29 monthly installments. The appellant had taken delivery of the proclain on 5.05.2004 and paid 7 installments till 15.01.2005, totally amounting to `3,98,127/-.

13. The appellant has stated that he is an illiterate person and fell prey to the persuasion of the manager of the first respondent company and the vehicle sold to him was defective. He has stated about the repairs attended to the vehicle as:

“I submit that right from the very beginning the vehicle was givein trou ble and not working properly. During the period from 8.5.2004 to 10.7.2005 ( on which date the vehicle is seized by the opposite party no.2 from the garage at Begumpet, Hyderabad on 10.7.2005). Due to inherent mechanical defects the vehicle had to undergo for (35) times repairs. Every time I had to report to the Rama Excavators at Ramagundam who is the authorized Customer Support Center Opposite Party No.4”.

14. The service reports dated 13.5.2004, 9.06.2004, 19.6.2004, 20.7.2004, 9.8.2004, 7.9.2004, 22.09.2004, 9.10.2004 18.10.2004,2.12.2004, 13.1.2005, 18.2.2005, 11.4.2005, 3.4.2005 27.4.2004, 8.6.2005 and 10.7.2005 would show that the proclain posed problems relating to engine oil leakage, bending of pressure line, side shift attachment, sip stricture, piston displacement, exhaust elbow etc., During the period from 8.05.2004 to 10.07.2005 the proclain stated to have been remained idle and the appellant had stated that he could not use the proclaimer to level his agricultural lands. The appellant got issued notice on 4-02-2005 through his advocate bringing it to the knowledge of the respondent no.1 the problems posed by the proclain that :

“That after two months of taking delivery of J.D. 315 P Machine started giving trouble and it was not running and machine was kept idle in the shed more than 120 days immediately for the repairs due to failure of new product, according to the warranty certificate, the warranty started from its delivery dated 5th May 2005 or total operating hours, 2000 whichever comes first. But the machine started giving trouble within 2 months and kept idle in shed more than 120 days within six months”.

15. The first respondent had given reply dated 25.03.2006 admitting the withdrawal of the notice by the appellant pursuant to the request made by the manager of the first respondent company. However, the first respondent denied exercise of coercion or misrepresentation on the appellant in the following words:

“Our client confirms us that they received legal notice dated 23rd February 2005. Pursuant to that, your client met our clients service head during the month of March 2005 and explained his problem. Thereafter, our clients service manager requested your client to withdraw the above notice to give free service/replace defective spares as per the terms and conditions of the warranty and as a special gesture agreed to extent the warranty period by 3 months i.e., till 4.8.2005. it is denied that our client had coerced your client to withdraw the said notice and said withdrawal is under pressure, coercion or undue influence.

16. Though it cannot be said in certain terms that the proclain suffered from inherent defects, certainly the service reports would show the persistent problems such as oil leakage and the appellant was deprived of the use of the proclain for considerable period of time.

17. The second respondent issued telegraphic notice on 20.10.2005 to the appellant with a demand to update the outstanding installments along with the incidental charges by 22.10.2005 and the third respondent repossessed the vehicle on 10.07.2005. The appellant has stated that the second respondent sold the proclain for an amount of `9,00,000/- without conducting auction. The sale consideration of the Proclain is unreasonable and the District Forum has rightly concluded that the third respondent with which the second respondent was amalgamated had sold the proclain without issuing notice to the appellant and without conducting auction.

18. The procalin was purchased on 5.5.2004 and it was sold by the third respondent on 31.01.2006. By the time it was sold, the proclaimer was 19 months old. The appellant had paid 25% of the sale consideration to the first respondent company and he had incurred expenditure for repairs of the proclain. The third respondent sold the proclain for an arbitrary amount of `9,00,000/-. In the circumstances, the amount awarded by the District Forum does not appear to correspond to the loss suffered by the appellant.

19. The Honble Supreme Court “State of Gujarath vs Shantilal Mangaldas” AIR 1969 SC 634. held the compensation to mean…..”In ordinary parlance the expression compensation means anything given to make things equivalent; a thing given to or to make amends for loss recompense, remuneration or pay, it need not therefore necessarily in terms of money. The phraseology of the Constitutional provision also indicates that compensation need not necessarily be in terms of money because it expressly provides that the law may specify the principles on which, and the manner in which , compensation is to be determined and given . If it were to be in terms of money along, the expression ‘paid would have been more appropriate”.

20. The Supreme Court held that the compensation to be awarded is to be fair and reasonable. In “Charan Singh vs Healing Touch Hospital and others” 2000SAR(Civil) 935 the Apex Court stressed the need of balancing between the compensation awarded recompensing the consumer l and the change it brings in the attitude of the service provider.

21. The Court held “While quantifying damages , consumer forums are required to make an attempt to serve ends of justice so that compensation is awarded, in an established case, which not only serves the purpose of recompensing the individual, but which also at the same time aims to bring about a qualitative change in the attitude of the service provider. Indeed calculation of damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application. While awarding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to established judicial standards where the claimant is able to establish his charge”.

22. For the foregoing reasons and in view of the principle laid in the aforementioned cases, the award of an amount of `3,67,600/- does not correspond to the loss suffered by the appellant and the actual sale consideration of the proclain. In the circumstances of the case, we are inclined to enhance the amount awarded by the District Forum from to `4,00,000/-.

23. In the result, the appeal is allowed. The order of the District Forum is modified. The respondent no.3 is directed to pay an amount of `4,00,000/- with interest @9% p.a. from the date of filing of complaint till payment and `10,000/- towards compensation together with `3,000/- towards costs.