VILAS VENKATESH KHARANGATE vs Ashok Leyland Ltd.

THE present appeal has been preferred by the complainant in Complaint No. 221/97 on the file of the District Forum, North Goa, being aggrieved by order dated 20.1.2000.

BOTH parties have filed written arguments. For convenience, the parties to the appeal will be referred as arrayed before the District Forum. It is the case of the complainant that some time on 13.10.1994 the complainant purchased from the opposite parties the "Ashok Leyland ALM 400" Marine diesel engine for the sum of Rs. 2,40,375.50 for which a guarantee of 18 months from the date of sale was given to the complainant. Some time in December, 1995 when the said engine was due for 400 hours free servicing and when the said engine was well within the guarantee period, the said engine developed a snag in the gear box and accordingly the matter was reported to the opposite party No. 2 on 9.12.1995. The complainant was informed by the personnel at the service department to contact them on Monday, 11.12.1995. The mechanic sent by the opposite party No. 2 did not carry any tools and after inspecting the engine refused to attend to the same stating that he had no instructions to do so. Thereafter, after repeated visits, by the complainant, the opposite party No. 2 once again despatched the mechanic, again without any tools. The gear box was opened with the help of the complainant''s crew and thereafter asked the complainant to get a new set of clutch plates and pressure plates and left the site by promising to return the next date.

When the complainant contacted the opposite party No. 2 to collect the replacement for the defective parts, the opposite party No. 2 refused to entertain the request stating that 1 year had lapsed from the sale of the said engine and the guarantee had expired. In view of the urgency, the complainant purchased the said parts from the opposite party No. 2. On 15.12.1995, the mechanic of the opposite party No. 2 did not turn up; when the complainant contacted the opposite party No. 2, he was informed that the mechanic had not reported for work and was advised to get the said job done by another person. The complainant thereafter got the work done through another mechanic, and paid an amount of Rs. 1,300/- for his services.

DUE to the callous attitude of the opposite parties the complainants vessel remained unoperational for 10 days with the entire crew having to be paid wages without any work resulting in financial losses to the tune of Rs. 1,70,000/-. The complainant then addressed a letter dated 15.1.1996 to the opposite party No. 2 calling upon them to make good the loss suffered by him and also to repay the outstanding interest on the booking amount.

AGAIN in February 1996, the engine developed a snag, and once again the opposite party No. 2 refused to attend stating that the guarantee period is of 1 year, and the complainant was constrained to purchase the parts from another dealer and incurred an expenditure of Rs. 22,444.90, towards costs of parts and Rs. 8,000/- towards service charges. The complainant prayed for a direction to the opposite parties to compensate for the replacement of parts and service charges and for compensation towards losses amounting to Rs. 1,65,147/-. Per contra, the opposite party No. 2 raised preliminary objections regarding the territorial jurisdiction of the District Forum to decide the complaint. It was submitted that the sale was made on 13.10.1994. It was denied that the complainant contacted the service department of the opposite party No. 2 regarding any snag that had developed in the gear box.

IT was also denied that any mechanic was despatched to attend to the fault in December 1995. IT was contended that when the complainant contacted the opposite party No. 2 on 14.12.1995 regarding the problem with the engine of the trawler, he was informed by the opposite party No. 2 that since the complainant had not obtained the company approval for installation of marine unit and since the said engine had been commissioned without informing and without the consent of the opposite parties, therefore, he was not entitled to any benefit under the guarantee. IT was denied that there was any agreement to pay interest on the advance taken against booking of the engine, and in any case such claim for interest was barred by time.

ON the said pleadings and after hearing the complainant and opposite parties the District Forum held that the complaint was without any merits and dismissed the same with cost of Rs. 1,000/-. The parties have filed written arguments.

We do not agree with the finding of the District Forum that the complainant is not a consumer since he had purchased the engine for business purpose. The Hon''ble Supreme Court in Laxmi Engg. Works v. P.S.G. Industrial Institute, II (1995) CPJ 1 (SC)=AIR 1995 SC 1428, opined that whether goods have been purchased for "Commercial purpose" or not is a question of fact to be decided on the facts of each case. In the case before us the issue of whether the complainant was not a consumer was not raised by the opposite party No. 2 in its written version neither was the issue raised in the affidavit-in-evidence of the opposite party No. 2. However, the issue was raised for the first time in the affidavit-in-evidence of the opposite party No. 1. As such, the complainant, having closed his evidence was unable to adduce any evidence in this respect. In his written arguments, the complainant has stated that he was operating the fishing trawler as a self-employment venture and, therefore, came squarely within the definition of a consumer. It is also pertinent to note that no evidence has been produced by the opposite party to show that the engine was purchased for commercial purposes. In our opinion, the District Forum misdirected itself into believing that merely because the complainant had engaged people to operate the trawler and paid them wages, therefore, the engine had been purchased for business purposes. The Hon''ble Supreme Court has interpreted the meaning of "Commercial purpose" in Laxmi Eng. Work''s case (supra). There is nothing on record to show that the complainant owned more than one trawler, had that been the case our conclusion may have been different. It is imperative for the complainant to engage crew members to operate his trawler and pay them wages for the same, and merely doing so would not disqualify him from approaching the Consumer Courts.

THE next issue that arises for consideration is whether it was mandatory on the part of the complainant to have the engine commissioned with the approval of the opposite parties. It is true that the contract of guarantee stated that the guarantee would be applicable on condition that approval of the company was obtained for installation of the engine. It is seen from the records that two free services were given by the opposite party No. 2 so also the terms of guarantee did not require intimation of installation to be given in writing. In our opinion, intimation of installation is necessary so as to prevent damage due to improper installation/mounting of the engine. THEre is nothing on record to show that the damage to the parts was caused on account of improper installation or mounting of the engine. The third issue that arises is whether the cause of action arose after the expiry of the guarantee period. It is an admitted fact that the suit engine was delivered to the complainant on 13.10.1994. It is also an admitted fact that the complainant contacted the opposite party No. 2 on 14.12.1995 as seen from the admission of the opposite party No. 2 at para 5 of the written version. The terms of guarantee of the opposite party No. 1 stipulated that the period of guarantee for marine engine was 18 months from the date of sale of the engine or 2500 operational hours. It is, therefore, clearly evident that the complaint was made within the period of guarantee. The complaint was filed on 5.12.1997 which is within the period of 2 years from the date of cause of action arose. Therefore, the complaint was filed well within the period of limitation.

THE District Forum has also given a finding that free services were not availed of by the complainant. We do not find any basis for such a finding as such a stand has not been taken by the opposite party No. 2 in its written version. In fact the only reason given by the opposite party No. 2 for rejecting the complainants claim for replacement of parts and service within the guarantee period was that the engine had been commissioned without informing and without the consent of the opposite parties. We are also not in agreement with the opinion of the District Forum that the defective parts ought to have been returned to the dealer, and in the absence of the same there was a doubt if there was any defect. The opposite party No. 2, in its written version has admitted that the complainant approached it on 14.12.1995 and informed that there was a problem with the suit engine. At that time, the opposite party No. 2 informed the complainant that since the complainant had not obtained the approval of the company for installation of the engine, therefore, he was not entitled to any benefit under the guarantee. In such a situation, it would be unreasonable to expect the complainant to hand over the defective parts of the opposite party No. 2. Moreover, the complainant has also produced bills showing purchase of the same defective parts. The complainant has claimed compensation of Rs. 35,297/- towards replacement of parts and service charges. In our opinion the complainant is entitled to such compensation as he has produced receipts showing purchase of parts and service charges of private mechanics. The complainant would also be entitled to interest on this amount at the rate of 18 per cent per annum from the date of actual expenditure till full realisation.

THE complainant has also claimed compensation towards financial losses suffered by him amounting to Rs. 1,65,147/-. However, there is no evidence produced to justify such a claim, and as such we are not inclined to accept the same.

ON going through the records we find that the multi-national company, which is the trader in this case has arbitrarily refused to honour its commitments under the contract of guarantee during its validity, and in such a situation, the helpless consumer had no alternative but to approach the Consumer Courts. In view of what is discussed above, we pass the following order: (i) The impugned order dated 20.1.2000 is hereby set and quashed aside. (ii) The appeal is partly allowed. (iii) The respondents/opposite parties are directed to pay to the appellants/complainants the sum of Rs. 35,297/- along with interest at the rate of 18 per cent per annum from the date of their actual expenditure by the appellant/complainant till full realisation within 30 days. (iv) The respondents/opposite parties are directed to pay to the appellants/complainants an amount of Rs. 6,500/- as cost of this litigation before the District Forum and this Commission. Order accordingly.

Appeal partly allowed.