ASHISH MOHAN GUPTA vs T.V.SUNDRAM IYENGER AND SONS LTD. (TOOLS AND GARAGE EQUIPMENTS)

THE complainant, a director of Hind Motors India Limited (earlier named as Hind Motors), Plot No. 15, Industrial Area, Phase I, Chandigarh seeks replacement of defective machine with a defect free new machine or in the alternative, refund of the price paid for the wheel alignment machine with interest @ 18% per annum and compensation to the tune of Rs. 1 lac and litigation costs amounting to Rs. 5,500/-. THE complainant placed purchase order on 11.1.1999 with the O.Ps. - M/s. T.V. Sundram Iyenger and Sons Ltd. (Tools and Garage Equipments) through its Managing Director (having Sales and Service Engineer, Mr. S. Sarvana Chockalingam - O.P. 2) at Chandigarh in House No. 3216, Sector 27-D, Chandigarh. THE performa invoice was issued the same day by him promised to deliver the machine to the complainant at Chandigarh. THE bill No. 577 dated 21.1.1999 for a sum of Rs. 5,11,488/- was issued (Copy Annexure C-5) and the machine aforesaid was installed in the premises of the complainant in the first week of February, 1999.

IT is alleged that the complainant started utilizing the said machine for self-earning. The machine aforesaid developed problems and stopped working w.e.f. 30.3.2000. The complainant apprised the O.Ps. about the said machine not functioning and a Fax message was also sent on 1.4.2000. There was no response received from the O.Ps. when another Fax message was sent on 5.4.2000. The O.Ps. sent a message dated 11.4.2000 to the effect that on 11.4.2000 their service engineer will visit the premises of the complainant. However, none came to visit the premises of the complainant to examine the said machine. IT is alleged that under the purchase terms, the complainant was not entitled to get the defects in the machine rectified from any outside agency. The service engineer of the O.Ps. eventually visited the premises of the complainant to inspect the machine and he found during the inspection that the monitor of the machine was not working and beam was blocked. The service engineer, it is alleged, was unable to remove the defect and made observations that the machine require replacement as the defects could not be rectified at all. The service engineer, however, made the machine functional only on temporary basis. Subsequently, there were frequent breakdowns in the machine. The matter was again taken up with the O.Ps. who sent their letter on 10.8.2000 assuring the complainant that all the defects in the machine will be removed. The complainant alleged that the O.Ps had agreed to provide free service to the complainant during the period of warranty for repair of the machine but they charged payment for the repairs even during the warranty period. The payments were made under protest. In the month of August, 2000, it is alleged, all the four cameras installed in the machine went out of order and these cameras were sent under telephonic instructions of the O.Ps. to Madurai office on 20.8.2000 and were received back. However, the machine again went out of order during the period from 1.9.2000 to 17.12.2002 on which date one Mr. Raj Kumar from O.Ps. came to inspect the machine and to put bring the same in order but he could not do so.

In nutshell, the grievance of the complainant is that the wheel alignment machine purchased from the O.Ps. suffered from manufacturing defect and the same was not functional. The complainant alleged deficiency in service on the part of O.Ps. who filed complaint for the reliefs mentioned in the earlier part of our order.

THE O.Ps. were served with the notices and they appeared and filed joint written statement. In the preliminary objections, it was alleged that the complaint was barred by limitation as prescribed under Section 24A of the Consumer Protection Act, 1986 (for short hereinafter referred to as the C.P. Act). THE machine had been purchased on 12.1.1999 and the complaint was filed for refund of the costs of machine on 25.2.2003 i.e. after a gap of more than four years whereas the prescribed period of limitation is only of two years. It has further been alleged that the complainant in his letter dated 20.4.2000 asked for refund of the price of the machine and even if that be taken to be the date of cause of action, the complaint is still barred by limitation. The other preliminary objection raised is about the complainant not being a consumer under Section 2(1)(d) of the C.P. Act. The complainant M/s. Hind Motors India Limited is running business at large scale having various branches at different places in different cities. The Hind Motors India Limited is registered as small scale industry unit with Chandigarh Administration, Department of Industries, Chandigarh having registered No. 53:53:03239:PMT:SSI dated 5.3.1987. The complainant is thus engaged in commercial activity and purchased the machine for commercial purpose in order to earn huge profits.

THE third preliminary objection is about the lack of territorial jurisdiction to entertain the complaint. It is alleged that Shri A.K. Suri of Hind Motors had visited the premises of O.P. at Madurai and made part payment of a sum of Rs. 2 lacs in advance at Madurai. THE delivery of the machine was taken by the complainant from the O.P. at Madurai. THE bills issued by the O.P. to the complainant also specified that all disputes arising out of sale are subject to the jurisdiction of Courts in Madurai. No cause of action arose to the complainant to file the complaint at Chandigarh. THE O.Ps. are not having any branch office at Chandigarh at the time when the machine was purchased by the complainant. It has also been contended that under Section 17 of Consumer Protection Act, 1986 (for short hereinafter referred to as the C.P. Act) as amended now, the pecuniary jurisdiction of the State Commission is in respect of goods and service, the value of which exceeded Rs. 20 lacs and did not exceed Rs. 1 crore. THE O.Ps. received the summons for appearance for 23.3.2003 when the amendment provisions of the C.P. Act were enforced. It was also contended that the complainant concealed material facts from being mentioned in the complaint and had not come with clean hands. The complainant, as a matter of fact, had purchased six machines from the O.Ps., the costs of which is more than 21 lacs out of which wheel alignment machine is of Rs. 4.80 lacs. It was further averred that the complainant had still to pay a sum of Rs. 1,04,312/- to the O.Ps. Next it was alleged that there was no defect in the goods as defined under Section 2(1)(f) of the C.P. Act nor there is any manufacturing defect as alleged in the complaint. The O.P. was neither a manufacturer as defined under Section 2(1)(j) of the C.P. Act nor the O.P. is assembling any part made by other manufacturers. The O.P. is only a supply and forwarding agent in India. The wheel alignment machine is being manufactured by BEAR Company of U.S.A. The O.P. got the machine imported and thereafter sold the same to the complainant. The next preliminary objection raised is that the complainant has not impleaded the manufacturer, which was a necessary party to the present case. Shri A.M. Gupta who has filed the present complaint was not authorised by the Directors of Hind Motors nor has placed on record any such letter of authorization to file the complaint.

ON merit, the allegations made in the complaint were denied and disputed. It was alleged that there was no warranty in respect of any of six machines purchased by the complainant from the O.Ps. It was further mentioned that the complainant in letter dated 10.4.2002 sent to the O.P. admitted that earlier he had not installed any stabilizer upon the wheel alignment machine since the year 1999. The stabilizer was installed on 10.4.2002 and thereafter there was no beam block as reported by the service engineer nor there was any defect as alleged by the complainant. it was specifically denied that the service engineer observed that machine required replacement and the defects in the machine could not be rectified. The O.Ps further mentioned that the complainant himself admitted that the monitor attached to the wheel alignment machine was stolen and he had arranged his own monitor which contains certain defects which could not be removed as the same was not supplied by the O.Ps. The wheel alignment machine was being used by the complainant to the satisfaction of various consumers and is doing wheel alignment of the approximately 10 vehicles per day by charging a fee and earning huge profits.

A bare perusal of the service report (Annexures R-13 to R-18) shows that the service engineer of O.P. had been visiting daily the premises of the complainant in the months of March and April, 2003 and had been watching the functioning of the machine and submitted reports that the customers were using the wheel alignment machine daily which is running in good condition and doing wheel alignment of various vehicles. It is alleged that no complaint was ever lodged by the complainant with the O.Ps. that there was any defect/manufacturing defect in the machine. The allegations of deficiency in service on the part of O.Ps. were denied. The complainant led evidence in the shape of his affidavit and affidavit of Shri Y.R. Sharma as an expert and documents marked Annexures C-1 to C-16. The O.Ps. filed affidavit of Shri S.P. Sharma, Manager, T.V. Sundram Iyengar and Sons Ltd., Madurai attaching therewith documents Annexures R-1 to R-18 and affidavit of Shri S. Sarvana Chockalingam, Service Engineer. Along with affidavit of Shri S. Sarvana Chokalingam, Annexures R-2/1 and R-2/2 were filed.

We have heard the learned Counsel for the complainant Mr. P.K. Kukreja, Advocate and the learned Counsel for the O.Ps. Mr. Mukand Gupta, Advocate. We have gone through the evidence placed on record and perused the record of the case.

THE preliminary objections raised by the O.Ps. regarding the maintainability of the complaint, lack of territorial and pecuniary jurisdiction, plea of bar of limitation under Section 24A of the C.P. Act and non-joinder of necessary party, are to be dealt with before dealing with the merit of the case. So far as the plea of bar of limitation is concerned, the complainant has in the amended complaint in Para 19 alleged that the cause for filing the complaint accrued in the year 2001 when despite expiry of the warranty period, the O.Ps. could not provide the assured service. Shri A.M. Gupta filed his affidavit wherein he made the same averment in Para 19. It is relevant to note that in Para 19 of the amended complaint as well as of Para 19 of the affidavit, the month of the year 2001 when cause of action is said to have arisen in the first week has not been disclosed.

IT may, however, be mentioned that the complainant continued to take up the matter regarding Wheel Alignment machine being defective and it was vide letter dated 21.4.2001 (Annexure C-13) that refund of the amount against a defective Wheel Alignment machine were sought. A perusal of this letter will go to show that the complainant requested the Manager Mr. S. Balakrishnan of O.P. No. 1 to refund the amount immediately otherwise a case will be filed in the Consumer Forum and copy of letter was forwarded to Mr. R.K. Kukreja, Advocate to file a consumer complaint. A legal notice was sent by the Counsel on 3.5.2001. The complaint was filed in this State Commission on 22.1.2003 which is well within the period of limitation of two years prescribed under Section 24A of the C.P. Act. The cause of action arose finally to the complainant when legal notice was served following letter dated 24.1.2001 and the complaint was filed within the prescribed period of limitation of two years. So far as the preliminary objection regarding the complaint being not maintainale and the ground that the complainant is not a consumer under Section 2(1)(d) of the C.P. Act is concerned, it may be pointed out that the complaint had been filed on 2.1.2003 and it came up for consideration before the Commission on 30.1.2003 when leave was sought to amend the complaint and implead proper parties. The amended complaint was eventually filed and taken on record on 18.2.2003 and notices were issued to the O.Ps. for 20.3.2003. Since the complaint had been entertained and notices issued to the O.Ps. vide order dated 18.2.2003 when amended provisions of the C.P. Act as amended by No. 62 of 2002 had not been in force and which were enforced only on 15.3.2003, the complaint would be considered under the provisions of unamended C.P. Act. The provisions of Section 2(1)(d) of the unamended C.P. Act excluded a person who obtained goods for resale or for any commercial purpose. This exclusion of a person hiring or availing services for consideration is not to be found in Section 2(1)(d)(ii) of the C.P. Act. The complainant has at the top of the complaint mentioned under the heading "Amended Complaint" regarding deficiency in service and unfair trade practice. The averments made in the complaint relate to the deficiency in service hired or availed in respect of the goods i.e. wheel alignment machine purchased from the O.Ps. which has also been described to be defective and old. In Paras 17 and 18 of the complaint, the complainant made a specific averment about the defects in the machine amounting to manufacturing defects and the non-redressal of the grievance of the complainant was deficiency in service on the part of O.Ps. The complaint thus related to the goods being defective as well as deficiency in service on the part of the O.Ps. which is covered under Clauses 2(1)(d)(i) and (ii) of the C.P. Act, the complaint would be maintainable despite the averments made by the O.Ps. that the complainant purchased the goods for commercial purpose. This preliminary objection is devoid of merit.

THE order for supply of the machine aforesaid was placed with the O.P. No. 1. THE O.P. supplied the machine and issued proforma bill for the payment and receipt against the bill of the amount as mentioned in the pleadings. THE transaction of sale of the aforesaid machine was thus held with O.P. No. 1 and the complaint has been lodged against O.P. No. 1 for supplying defective goods and failing to render service hired and availed and associated with the goods under the clause of warranty, the impleadment of the manufacturer of the wheel alignment machine is neither necessary nor proper. This objection is also meritless.

SO far as the objection relating to the pecuniary jurisdiction is concerned, the amended provision of Section 17 as amended by Consumer Protection Amendment Act, 2002 will not be applicable in respect of the complaint which was filed prior to the amendment and such a complaint would continue to be entertained and decided where it was pending at the time when the Consumer Protection Amendment Act, 2003 came into force. This law has been expressed by the Hon''ble National Consumer Disputes Redressal Commission, New Delhi in the case of Smt. Babita Aggarwal & Ors. v. Dr. S.K. Goel, 2003 CTJ 392 (NC) (NCDRC). Therefore, we find the objection relating to lack of pecuniary jurisdiction as meritless. So far as the territorial jurisdiction is concerned, Shri S. Sarvana Chokalingam, Service Engineer of O.P. No. 1 - T.V. Sundram Iyengar and Sons Ltd. having office at Chandigarh, has been impleaded as O.P. No. 2. The complaint could be lodged by the complainant at Chandigarh. Not only this, the complainant makes an averment that the Service Engineer of O.P. No. 1 visited the premises of the complainant number of times to inspect the aforesaid machine and to remove the defects, which gave part of cause of action to the complainant at Chandigarh. This Commission has thus territorial jurisdiction to decide this complaint case and the objection regarding the lack of territorial jurisdiction has no force.

The last objection has been raised about the complainant Shri A.M. Gupta having no due authorization from the Board of Directors of M/s. Hind Motors India Limited to file the complaint case. In this regard, the complainant filed his affidavit dated 18.7.2003 wherein reference has been made to a resolution dated 24.9.2003 passed by the Board of Directors aforesaid authorizing Mr. A.M. Gupta to file cases in the competent Courts of Law on behalf of the Company. A copy of the resolution which has been certified to be true copy and signed by the Director has been annexed with the affidavit. This resolution was passed prior to the filing of the complaint. Shri A.M. Gupta is thus fully authorised to file the complaint case. The objection raised in this regard has thus not been substantiated as the complainant has duly proved his authorization to file the complaint. All the preliminary objections raised by the O.Ps. are devoid of merit and are not upheld.

NOW coming to the merit of the complaint case, the complainant led evidence in the shape of his own affidavit. The main grievance of the complainant is that the machine i.e. wheel alignment machine purchased suffered from defects and was not functional as it posed numerous problems when put to use. These problems were brought to the notice of O.Ps. vide various communications referred to above and filed as Annexures C-6, C-7, C-9, C-11, C-12 and C-13. The O.Ps. in the written statement took the stand that no warranty/AMC was executed but still free services had been provided by the O.Ps. in order to keep goodwill. It was deposed in Para 6 of the affidavit of Shri S.P. Sharma, Manager, T.V. Sundram Iyengar and Sons Ltd., inter alia, as under : "...The service engineer of the deponent had been visiting the premises of complainant as and when required despite the fact that no warranty/AMC was executed but still free service has been provided by the deponent in order to keep goodwill. Service engineer of the deponent has submitted various service reports stating therein that machine is working properly and the said service reports have been duly countersigned by the representative complainant. Even recently with effect from 24.3.2003 the service engineer of the deponent had been visiting the premises of complainant daily and given his service reports that Wheel Alignment machine is working properly and complainant is doing Wheel Alignment of more than 10 vehicles per day. Wheel Alignment machine consists of various parts i.e. Monitor, CPU, Key Board, Wheel Camera front 2 Nos., Wheel Cameras rear 2 Nos., Interface cable 4 Nos., Power Module 1 No., Cabinet 1 No., Turn Table, Brake Pedal Depressor, Steering Lock, Printer. There is no defect in any of the parts of Wheel Alignment machine...."

Later on in the same para, it was deposed as under : "...The complainant has also alleged that there is some Bean Block problem in the cameras. Service Engineer has attended the complaint free of cost and it was found that the complainant has installed Wheel Alignment machine in the industrial area at Chandigarh where there is fluctuation of voltage and the complainant has not installed the stabilizer on the said machine with the result of which due to fluctuation in voltage, there is beam block problem. It was not there after the complainant has installed the stabilizer in the year 2002 and thereafter there is no problem of beam block as alleged by the complainant... There is no defect in the said machine nor the deponents are manufacturing the said machine...."

In Para 7 of the affidavit, it was deposed that the complainant had not produced any expert evidence to show that the machine sold was an old machine and have manufacturing defect in it. The photocopy of the supply order placed with the O.Ps. by the complainant has been placed on record as Annexure R-2 showing the Wheel Alignment machine at Serial No. 3 which has a ''Description'' BEAR PACE 100 with Printer with CCD technology, Indegenous Trolley and Turn Plates; Quantity ''1 No.''; Price ''Rs. 4,40,000/-'' and Supply Time as ''60 Days''. Annexure R-3 is the photocopy of Proforma Invoice wherein at Serial No. 3, the aforesaid Wheel Alignment machine has been mentioned and in column No. 3 ''MAKE/MODEL'' there is a mention of ''BEAR, USA'', Qty. - ''1'' and Unit Price about Rs. 4,80,000/-. This document does not show that there was any period of warranty nor the subsequent document (Annexure R-5) shows the period of warranty. The conditions of sale are mentioned on the reverse of document (Annexure R-5). There are eight conditions of sale and in none of the conditions, there is any provision of providing the period of warranty in respect of this machine. Similar is the position in Annexures R-6, R-7 and R-8 which are in respect of the machine aforesaid. The service reports have been placed on record in the form of photocopies as Annexures R-10 and R-11. The details of the rectification work carried out with spares details are mentioned in Annexure R-11. In Annexure R-11, there is an endorsement of the person on behalf of the complainant that he was not satisfied with the machine.

THE same grievance is highlighted in Annexure R-12. Annexure R-13 dated 24.3.2003 shows the service report of Shri S. Sarvana, Service Engineer. Above the column ''Signature of the Customer with Seal'', there are signatures with endorsement ''under observation''. In the last service report (Annexure R-14), there is the signature of the customer against ''Service Rendered Are Satisfactory''. Similar is the position in service reports (Annexures R-15, R-16, R-17 and R-18). THE Service Engineer Shri S. Sarvana (O.P. No. 2) has filed his affidavit deposing, inter alia, that he was a qualified mechanical engineer and fully trained to maintain all types of electronic and mechanical garage equipments. He annexed copies of experience and diploma as Annexures R-2/1 and R-2/2. In Para 3, he deposed that he was dealing with the Wheel Alignment machines since 1997 and deposed further that Wheel Alignment machine is one of the garage equipments which is used to measure the wheel geometry and light commercial vehicles for directional stability and to reduce wear and tear of the tyres. In Para 4, he described that the Wheel Alignment machine was supplied by the TVS Ltd. to Hind Motors, complainant which consisted of various parts. In Para 5, he deposed that the operation of the Wheel Alignment machine is similar to the working of computer with separate software fir wheel alignment. Its efficient use and functioning mainly depends on the skill of the operator and continuous and uninterrupted power supply and a dust-free atmosphere. The machine requires smooth handling, proper cleaning and maintenance of parts and stabilizer to ensure proper power supply to the machine. In Para 6, he referred to the complaints regarding the Wheel Alignment machine supplied to the complainant and deposed about these problems, inter alia, as under : "...As far as problem of beam block is concerned that was due to fluctuation of voltage as Hind Motors has not installed the stabilizer and was giving proper supply and was not properly maintaining and handling the machine. After the stabilizer was installed there was no complaint whatsoever and deponent had subsequently checked the machine continuously from 24.3.2003 to 16.4.2003 and found that the machine there was working properly in good condition and there was no defect/manufacturing defect in the machine." In the last para, he deposed that he inspected the machine and found that there was no defect/manufacturing defect and the machine was working properly and Hind Motors was doing wheel alignment of various vehicles every day. As mentioned above, the complainant relied on the affidavit of Shri Y.R. Verma who described himself to be a qualified engineer having done B.E. Mechanical. He is working as Assistant Works Manager at the workshop of the complainant since 9.2.1995. He has highlighted the problems in the machine in Para 2 which are the same defects as mentioned in the complaint. In Para 5, he deposed that despite best efforts, the representative of the O.Ps. could not bring the machine in working condition by removing all the defects. In Para 6, he stated that with his experience, he could say that it was not possible to rectify the manufacturing defect of the machine in question due to inherited problems/manufacturing defects and it required replacement of complete machine with all the accessories, connecting cables, connectors and sockets, etc.

THE affidavit of Shri Y.R. Sharma cannot be said to be an affidavit of an expert. He is working with the complainant and has stated about the defects which have been mentioned in the complaint case and his opinion about the machine suffering from the defects is not credible and particularly when the complainant himself admitted about the non-use of the stabilizer which created the problem of beam block and which was removed the moment stabilizer was installed and about the theft of original monitor supplied and being replaced with a local monitor by the complainant. THE problems in the machine were more due to these factors rather than due to any defect much less manufacturing defect in the goods. Another evidence which has been relied on by the complainant is the affidavit of Lt. Col. Rajiv Ahuja (Retd.). Lt. Col. Rajiv Ahuja (Retd.) is also B.E. in Production Engineering and at present working with M/s. Hind Motors (India) Limited as General Manager having joined the Company on 2.9.2002 and this machine was purchased much prior to that date. He has stated about intermittent breakdown of the machine and verified the correctness of his affidavit to his knowledge. Since he was employed much later of the purchase of the machine and the problems highlighted by the affidavit of Shri S. Saravana, his evidence is also of no help to the complainant.

AFTER perusing the evidence on record, we find that the complainant has miserably failed to prove that the Wheel Alignment machine suffered from any manufacturing defect and further that there was no deficiency in service on the part of O.Ps. The evidence on record shows, on the other hand, that the said machine posed problems due to its improper handling and non-provision of stabilizer to take care of the fluctuation in the voltage and about the use of a local monitor when original monitor supplied had been stolen. The O.Ps. had been sending their service engineers to inspect and see the functioning of the Wheel Alignment machine which according to the evidence of the O.Ps. was functional and doing service of almost 10 vehicles per day. The complainant also failed to show that there was any warranty given in respect of the machine and consequently there was no service hired or availed for any consideration from the O.Ps. Resultantly, the complaint fails and is dismissed with costs of Rs. 2,000/- which shall be paid by the complainant to the O.P. No. 1 only. Copies of this judgment be sent to the parties free of charge. Complaint dismissed.