M/S. JCB INDIA LTD. vs ANIL KUMAR & 2 ORS.

Present revision petition has been filed under Section 21(b) of the Consumer Protection Act,1986 (for short, ''Act'') by Petitioner/ Opposite Party No.1 challenging order dated 27.12.2011 passed by State Consumer Disputes Redressal Commission, Haryana, Panchkula (for short, ''State Commission'').

Brief facts are that, Respondent No.1/Complainant had purchased a JCB machine from Respondent No.2/Opposite Party No.2 on 18.1.2003, which was manufactured by the petitioner. It is alleged that on 20.4.2003 engine of said machine suffered back pressure and the machine stopped functioning. Respondent No.2 was informed about the said defect on 21.4.2003. Upon asking of respondent no.2, respondent no.1 got the said machine repaired from Respondent No.3/Opposite Party No.3-the Authorized Dealer on 7.6.2003. Two pistons and new gas kit were changed for which respondent no.1was asked to pay Rs.4,807/-. However, the said machine suffered defects continuously. The machine was sent at Power Trading Company, Jawahar Nagar, Alwar (Rajasthan) on 26.6.2003, 10.7.2003 and 17.7.2003 but the same was not repaired. Thereafter, the machine was got repaired from Power Trading Company, Rewari on 09.07.2003 for which respondent no.1 was given a bill of Rs.23,361/- and Rs.3,100/-, including bill dated 11.6.2003, which were paid by respondent no.1 under protest. Since, machine did not work properly from 20.4.2003 to 14.07.2003, respondent no.1 filed a consumer complaint claiming a sum of Rs.6,80,000/- being the economic loss suffered for the aforesaid period. Besides this, he claimed compensation of Rs.50,000/- for mental and physical trauma of Rs.50,000/- and interest @ 12% p.a.

Before District Forum, after notice all respondents appeared and filed their separate reply, except respondent no. 2 whose defence was struck off.

Petitioner in its reply denied there being any manufacturing defect in the said machine. It stated, that if there is any defect then fault lies with the manufacturing company. It further stated, that respondent no.1 has not relied upon any expert opinion. Lastly, there is no deficiency in service on the part of petitioner.

Respondent No.3 in its reply has stated, that on checking the machine, dust was found in the engine and in lent valve and piston was found rubbed. As such, machine suffered defect which cannot be said to be within the guarantee period. All other contents were denied with prayer for dismissal of the complaint.

District Consumer Disputes Redressal Fourm, Rewari(for short, ''District Forum'') vide order dated 25.10.2005, allowed the complaint and passed following directions; " So, after considering all the facts and circumstances of the case the complaint is allowed directing the respondent No.3 to refund the amount to the complainant charged from him during guarantee period and further respondents No.1 and 2 are directed to replace the engine of the JCB machine ."

Being aggrieved, only petitioner filed (First Appeal No.2452 of 2005) before the State Commission, which dismissed the same vide the impugned order.

Hence, this revision.

Respondent No.1/Complainant and Respondent No.2/Opposite Party No.2 did not appear before this Commission despite due service of notice. Hence, were proceeded exparte. Notice issued to respondent no. 3 was received back unserved.

We have heard the learned counsel for petitioner and gone through the record.

It is submitted by learned counsel, that complainant has failed to prove its case with regard to any manufacturing defect in the machine. Moreover, he has failed to examine any expert witness in respect of any manufacturing defect. He further submitted, that all defects are not manufacturing defects. Cogent and sufficient evidence should have been led, including expert evidence to prove manufacturing defect. Thus, complaint is not maintainable against the petitioner, insofar as the only grievance of complainant is in respect of the machine''s engine. However, the engine was manufactured by M/s Kirloskar Oil Engines Ltd. Thus, claim of the complainant, if any ought to have been against M/s Kirloskar Oil Engines Ltd. and not against the petitioner.

District Forum in its order held; " From the perusal of the file and evidence pleaded on the file, it is evident that the complainant purchased a JCB machine from the respondent on 10.01.2003 and just after three months of its purchase, the engine of the machine suffered fault within the guarantee period for which the complainant had to run from pillar to post to rectify the defect but the engine was not changed rather its part i.e. piston, gas kit were placed and thereafter again and again the said machine suffered fault and it was got repaired on 12.7.2003 from the authorized dealer at Rewari. The authorized dealer i.e. respondent No.3 charged Rs.23,361/- and Rs.3,100/- from the complainant. While during the guarantee period, the machine should have been repaired by the company itself free of costs. But the respondents did not pay any heed towards the request of the complainant and charged the amount and the engine of the machine was not repaired nor it was put in working conditions properly. Furthermore, the respondent No.2 did not file any reply nor appeared before this Forum to utter something against the complainant. Further, it is established on record that the respondents also admitted the fact that the machine of the complainant suffered fault from time to time and the respondent No.2 repaired the machine of the complainant and charged some estimate from the complainant. Further, from the perusal of the guarantee card, it is established on record that for the defects occurred during guarantee period, the complainant cannot be held liable for any payment and as such he is entitled to have the refund of the paid amount. Further, the counsel for the complainant argued that in spite of repairs, the engine of the machine is not working properly and the same is liable to be replaced with a new one. Both the counsel for the parties relied on some citations. But a bare perusal of the evidence placed on the file, it is evident that the engine of the machine suffered defects from its inception and it was the duty of the respondents either to have rectified it or to have changed the same in order to redress the grievances of the complainant but instead of doing so, the respondents charged the amount of repairs from the complainant within the guarantee period which amounts to deficiency in service ."

The State Commission, while dismissing the petitioner''s appeal in its impugned order observed; " It is admitted case of the parties that the complainant had purchased a JCB machine bearing registration No.HR-47-8866 from the opposite party No.2 on 10.1.2003, which was manufactured by the opposite party No.1. On 20.4.2003 the engine of the machine suffered back pressure and the machine stopped functioning. Complainant approached to the opposite parties on 21.4.2003. Upon asking of opposite party No.2, the complainant got the machine repaired from the Authorized dealer M/s. Power Trading Company, Rewari on 7.6.2003. Two pistons and new gas kit were changed for which the complainant was asked to pay Rs. 4,807/- but the machine suffered defects continuously. The machine was sent at Power Trading Company, Jawahar Nagar, Alwar (Rajasthan) on 26.6.2003, 10.7.2003 and 17.7.2003 but the machine was not repaired. Thereafter, the machine was got repaired from Power Trading Company, Rewari on 9.7.2003 for which the complainant was given a bill worth Rs. 23,361/- and Rs.3,100/- including the bill dated 11.6.2003. The complainant paid the aforesaid bills under protest.

From the perusal of the guarantee card, it is established on the record that for the defects occurred in JCB during the guarantee period, the complainant is not liable to pay. It has come on the record that the engine of the JCB suffered defects from its inception. Thus, the opposite parties were liable to bear the expenses of the defects parts of the machine. Under the facts and circumstances of the case, we do not find any infirmity in the impugned order. Hence, this appeal is dismissed ."

It is the case of petitioner, that if there is defect that fault lies on the part of the manufacturing company of the engine, i.e, M/s Kirloskar Oil Engines Ltd. Thus, petitioner is not liable at all in this case.

It is an admitted fact, that after purchase of JCB machine by the complainant, within three months thereof engine of JCB machine had suffered fault and for which machine was taken for repairs. It is also an admitted fact, that two pistons and gas kit of the JCB machine were replaced. Thereafter, again JCB machine suffered fault and again it was got repaired. Admittedly, during the guarantee period, machine has suffered defects, time and again which ultimately could not be rectified.

This plea of petitioner, that since engine of JCB machine was manufactured by M/s Kirloskar Oil Engines Ltd. and as such petitioner is not liable for the defects, does not hold any water. Complainant has no privity of contract with M/s Kirloskar Oil Engines Ltd. Complainant has purchased the JCB machine manufactured by the petitioner. Being the manufacturer, it is the liability of the Petitioner''s Company to provide defect free machine to the consumers. 17. Both the Fora below have given concurrent finding of facts, that JCB machine in question suffered defects since its inception and that too during the guarantee period. Since, defects have occurred during the guarantee period, petitioner being the manufacture and respondent no.2 being the dealer, are liable to rectify the same without charging any amount from the complainant.

It is well settled that under Section 21(b) of the Act, scope of revisional jurisdiction is very limited. This Commission can interfere with the order of the State Commission only where such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.

The Hon''ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654 has observed; " Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora " .

In view of the concurrent finding of the facts given by both the Fora below, we do not find any infirmity or illegality in the impugned order. Accordingly, present revision petition having no legal merit stand dismissed.

No order as to cost.Mr. Arjun Sharma, Advocate