T.KRISHNASWAMY VANDAYAR vs VARUNA CONSTRUCTION And DESIGN CO

THIS is a complaint under Sec. 17 read with Sec. 12 of the Consumer Protection Act.

THE Complainant entrusted the work of designing and construction of a Fishing Trawler with Opposite Party. THE engine, compressor, refrigeration system and other parts necessary for the construction were purchased by the complainant on the advice of the Opposite party from the persons mentioned by the Opposite Party. THE Opposite party promised to render service throughout the life time of the Vessel and thus gave a life time guarantee. THE Vessel which was named MFC Sailor, sailed out from Madras Port on 17.6.88 on its first voyage. Due to refrigeration problem it had to enter Vishakapatnam Port on 19.6.88. THE Opposite Party attended to the work. THE Vessel sailed out on 26.6.88, but had to reenter Port due to engine problem as there was mix up of water with the diesel on account of improper welding of the Diesel Tank. It again went to the sea on 8.7.88 and had to come back due to refrigeration problem. It sailed out again and returned on 12.9.88 due to Gear Box problem. THE Winch did not work and the net spread into the sea could not be drawn back. THEre was unusual sound from the Starboard side main winch. THEre was unusual sound on 12.12.88 in the engine room due to Gear Box Flange coming from the Gear Box output shaft due to mal-alignment. On 6.2.89 the Gear Box Flange bolt broke down. On 1.9.89 there arose gear coupling problem. Every time the Complainants have spent several thousands of rupees. According to the Complainants the steel used for the construction of the Trawler was not of marine steel and the steel processing was not done properly. It was of a poor and inferior quality. THE refrigeration room was designed near the engine room and consequently the temperature could not be maintained. In view of the persistent problem the Opposite party undertook to replace the entire Gear Box, Gear Box Flange and Propeller Shaft free of cost but, failed to do so. THEre was mal-alignment of the propeller shaft with the Gear Box. THE Vessel finally sailed out from Vishakapatnam to Madras for repairs on 5.5.90 but ran aground. THE salvage work to retrieve the Vessel was extremely difficult and the cost was unimaginably high and therefore the Complainants dropped the idea of salvaging the Vessel. THE post sale services by the Opposite party was totally unsatisfactory and deficient. THE Complainant issued a notice on 25.3.92 to the Opposite Party and the Opposite party by its reply dated 8.5.92 denied the allegations. Hence this complaint claiming compensation for the loss sustained by way of salary to Crew, Food, Port charges, Towing charges, Repair charges and expenses incurred in the voyage, etc., of Rs. 7,74,664/-. 2. THE Opposite party resisted the complaint. It is denied that there was any defect in the designing and construction of the Fishing Trawler. It is averted that the construction of the Fishing Trawler was checked and approved by the Complainants and at every stage of the construction the Complainants inspected and on the completion of the construction the complainant accepted that the Vessel as perfectly done. THEre was no deficiency in the Trawler Hull as admitted to the complaint. THE Engine, Compressor, Refrigeration and other accessories were purchased by the Complainants themselves and the Opposite Party had nothing to do with those purchase. THE Opposite Party only suggested the various manufacturers. It is denied that the Opposite Party wrote a letter dated 21.1.87 and received the reply dated 10.2.87. It is not true that the Opposite Party promise to render services throughout the life span of the Vessel and gave a life time guarantee. THE quotation given by the Opposite party on 21.2.87 clearly stated that the work was for the construction of the Vessel and expressly excluded responsibility for the marine engine with gear box, refrigeration system, compressor fittings, generator set and electronic equipments. THE quotation made it clear that the guarantee was only for the period of 6 months from the date of delivery for any faulty workmanship. It is denied that there was poor after sales services. THE Opposite Party is not responsible for the refrigeration and engine problems. It is denied that there was improper welding of the diesel tank and that caused the mix up of water with diesel. No such allegations was made prior to the notice on 25.3.92. THE Opposite Party had also nothing to do with the gear box and its problems. It is denied that the winch did not work properly, if so it must be due to defective handling. THE unusual sound said to have emanate from the main which cannot be related to the trawler hull. THE Opposite Party has nothing to do with gear box and gear box flange coming from gear box output shaft and the breaking of gear box thread bolt must be due to mishandling by the repairing party. None of these various alleged defects suffered by the engine, gear box and refrigeration system were due to the Opposite Party. THE Opposite Party had nothing to do with this equipments fitted in the trawler. THE Complainants have to prove about the expenses incurred for the repair of engine, refrigeration system, gear box, etc. It is denied that there was ma-lalignment or that it was responsible for the output shaft and the connecting flange rod wearing out. It is further denied that the steel used for the construction of trawler was not marine quality or that it was not properly processed or that it was of inferior quality. THE designing of the refrigeration room and the engine room and their juxta position were entirely on the suggestion and approval of the Complainants. Inspite of specific instructions and advice the Complainants shifted the electric blower fan which was fitted in such a way that it ventilated the engine room to a different spot and that should have caused the change in temperature. It is denied as false and fantastic that the Opposite party undertook to replace the gear box flange and propeller shaft free of cost. THEse parts have been purchased by the Complainants and the Opposite Party is not liable therefor. THE Opposite Party knows nothing about the Vessel running aground. THEre was no guarantee of post sales service to the mechanical parts. To the notice issued by the Complainants, the Opposite Party has sent a fitting reply. THE claim is also hopelessly barred by time. THE quantum of compensation is also denied. 3.Exhibits A1 to A22 and B1 to B8 are marked by the consent. Proof affidavit are filed. No oral evidence has been led in by either side. 4.THE points that arise for determination are: 1. Whether the Opposite party is liable for the claim made by the Complainants? 2. Whether the claim is barred by time? To what relief are the Complainants entitled? Point No. 1: 5. The Complainants have entered into an agreement with the Opposite party in the designing and constructions of Fishing Trawler 16.86 metres long. It is admitted in the complaint (vide para No. 2) that the engine, compressor, refrigeration and other parts necessary for the construction of the Trawler were to be purchased by the Complainants of course on the advice of the Opposite Party from Dealers or Manufacturers mentioned by the Opposite Party. Ex. B1 is the quotation given by the Opposite Party. It also clearly shows that the work of designing and construction has been entrusted to the Opposite Party. The engine, gear box, power take off, refrigeration system including compressor, generator set, chill tank, electronic equipments, etc. have to be purchased by the Complainants from the Dealers or Manufacturers mentioned by the Opposite Party and supplied to the Opposite party to be installed in the Trawler. Ex. B1 further expressly lays down that the guarantee is for a period of 6 months from the date of delivery for any faulty workmanship. Ex. B2 dated 1.7.88 is the Guarantee Certificate issued by the Opposite Party. It also clearly lays down that the Steel Trawler Hull delivered by the Opposite Party will be free from defects in material and workmanship for a period of 6 calendar months and guarantee is to take effect from 1st July, 1988, on which date the Vessel has been delivered to the Complainants after completion of full-scale sea trial between 23.6.88 to 26.6.88 as is seen from Ex. B.3. 6. According to the Complainants, the Vessel started its voyage from Madras on 17.6.88 and ever since she is not functioning properly. The Vessel has undertaken several voyages but had to return to the port oa account of various problems. Finally on 5.5.90 the Vessel ran aground in a deep depression in the sea and cannot be salvaged because of the high cost of salvage. The Complainants abandoned the Vessel. They have filed this complaint for the compensation for the loss sustained by them to the tune of Rs. 7,74,664/-. The liability is denied by the Opposite party in each and every particular. 7. The defects and deficiencies gathered from the complaint are as follows: Defects: 1. Refrigeration Problem. 2. Engine problem. 3. Gear Box Problem.

Gear Box Flange problem and breaking of Flange bolt.

GEAR Coupling problem. Winch problem,. It did nto work properly and the net spread into the sea could not be drawn back. There was unusual sound from Starboard side main Winch. Deficiencies:

IMPROPER welding of the Diesel Tank. There was malalignment in fixing the Gear Box Flange on trawler shaft. The steel used for construction was not of marine quality and the steel processing was not done properly. It was of a poor and inferior quality.

THE Refrigeration room was designed near the Engine room and on opening of the Refrigeration room door the temperature of -10 C came down to 0C causing enormous loss. We shall now deal with these allegations: 8. Items 1 to 6 above relates to defects in the refrigeration system, the engine, the gear box, the gearbox flange, the gear coupling and the winch. THE Complainants have entered into an agreement with the Opposite Party for the designing and construction of the Trawler and the machineries installed therein have been purchased by the Complainants from the Dealers or Manufacturers mentioned by the Opposite Party and supplied to the Opposite Party for installation in the Trawler. It follows that the items 1 to 6 above mentioned are not manufactured by the Opposite party but, are purchased from other manufacturers mentioned by the Opposite Parties and supplied to the Opposite Party for being fitted in the Trawler, if there are defects in these machineries the responsibility therefor is that of the Dealer or the Manufacturer who supplied the machineries. THE Opposite Party who merely installed them in the Trawler cannot be held responsible for any fault, imperfection or shortcoming in the quality or quantity or standard required to be maintained in the manufacture of these machineries. Unfortunately, the complainants have not chosen to unplead the dealers or manufacturers who supplied these machineries. Hence, their claim against the Opposite Party in respect of alleged defects these machineries has to fail. Further these machineries have been purchased by the Complainants for commercial purpose and they cannot claim to be consumers under Sec. 2(1)(d)(1) of the Consumer Protection Act as buyers of these goods and in respect of defects found therein. 9. Items 7, 8, 9 & 10 refer to deficiencies alleged against the Opposite Party in the designing and construction of the Trawler. Item No. 7 relates to improper welding of the Diesel Tank, as a result of which it is alleged that water got mix-up with diesel. In answer thereto the Opposite Party avers that there was no improper welding of the Diesel Tank and it is pointed out that the Vessel was delivered on 1.7.89, and no such complaint has been made prior to the notice issued on 25.3.92. THEre is also no evidence or independent testimony to prove that there was improper and defective welding of Diesel Tank. Item No. 8 is the alleged mal-alignment in fixing gear box flange on the Trawler shaft. THE Opposite Party denied that there was anything wrong in the alignment and construction. No evidence has been let in to show that there was mal-alignment in fixing the gear box flange on the Trawler shaft. THE further allegation of the complainants that the Opposite Party agreed to replace the gear box, gear box flange and propeller shaft free of cost is also not supported by any evidence. When the Opposite Parties are not responsible for the supply of these materials, it does not stand to reason that the Opposite party would have agreed to replace these parts free of cost. THE claim of deficiency on the ground of mal-alignment must fail. 10.Next deficiency is that the Opposite Party had used in the construction of the Trawler, steel which was not of marine quality and that the processing has been done improperly. According to the complaint it was of poor and inferior quality. Here again there is no evidence to substantiate these allegation which are emphatically denied by the Opposite Party. 11.THE last deficiency alleged is that the refrigeration room has been designed near the Engine room and hence on opening of the Refrigeration room door the temperature of -10C came down to 0 C causing enormous loss. According to the Opposite party the designing of the Refrigeration room and the Engine room juxta position were entirely on the suggestion and approval of the complainants. It is further averted that inspite of specific instruction and advice, the complainants have shifted the propeller fan which was fitted in such a way that it ventilated the engine room, to a different spot and that should be have caused the change in the temperature. We are therefore unable to find any deficient service in fixing the refrigeration room near the engine room. 12. THE above discussion shows that the Complainants are not entitled to throw the responsibility on the Opposite Party for the alleged defects in the machineries mentioned in the Items 1 to 6 above. THEy are not also entitled to accuse the Opposite Party of deficiency service in respect of items 7 to 10. THE point No. 1 is answered accordingly. Point No. 2: 13.This complaint has been filed prior to the introduction of Sec. 24A in the Consumer Protection Act by and under the Consumer Protection Ordinance 24/93. It has been held by this Commission as well as by the National Commission that in respect of complaints filed prior to the amendment, the period of limitation is 3 years from the time when the right to sue accrues, under Articles 113 of the Limitation Act of 1963. This Vessel constructed by the Opposite party has been delivered to complainant on 1.7.88. THE defects in the refrigeration system, in the engine, the gear box, the gear box flange, the gear coupling and the winch have noted in the months of July, August, September and December 1988. THE complaint for compensation in respect of these defects must have been filed within 3 years from the date when these defects were detected. THE complaint has been filed only on 30.12.92 more than 3 years thereafter and hence the claim must fail as barred by time. 14. As regards deficiencies alleged against the Opposite Party such as improper welding of the Diesel Tank, mal-alignment, improper use of steel processing and wrong designing of the refrigeration room, the complainants have had knowledge of the same even in July 1988 soon after the delivery of the Vessel and the complaint has not been filed within 3 years thereafter. Under Ex. B1 the Opposite party has given warranty for a period of 6 months from the date of delivery for any faulty workmanship. Under Ex.82 also the warranty is said to be for a period of 6 calendar months. THE Vessel has been delivered on 1.8.88 and the period of warranty expired on 31.12.88. THE complaint must have been filed within 3 years from 31.12.88, that is, on or before 31.12.91. But the complaint has been filed only on 30.12.92. THE claim is hopelessly out of time. THE Point No. 2 is also found against the Complainants. Point No. 3: 14. In view of our findings on Points No. 1 & 2 the Complainants are not entitled to any relief. 15. In the result the complaint fails and is dismissed but without cost. Complaint dismissed without cost.