AI Structured Summary
Not yet generated for this judgment
Judgment
V.K.Jain, J
This appeal is directed against the order of the State Commission dated 30.11.2017 dismissing the complaint filed by the appellant.
The complainant / appellant purchased a PRD Drill Max HC 500 D machine with hydraulic drifter, from respondent No.2 , namely, Sri Nataraja of M/s Altius Equipment, for a consideration of Rs.33 lakhs. The warranty in respect of the said machine with drifter was issued by respondent No.2, claiming to be the authorized dealer of respondent No.1. It is not in dispute that respondent No.1 was the manufacturer of the said machine drifter. The case of the complainant / appellant is that the said machine did not function smoothly since the time it was delivered. The machine was sold vide invoice dated 29.11.2014 and the warranty letter was issued on 1.12.2014.
A perusal of the Service Job Card dated 9.12.2014 would show that there was a complaint of battery problem. The new battery was installed and so was the valve bank, as is evident from the Service Job Card dated 10.12.2014. A perusal of the Service Job Card dated 31.3.2015 would show that adapter in traction motor was changed. The rod locking pin was required to be changed but could not be changed since the pin sent by the manufacturer was not suitable. It further shows that the elbow was damaged and needed to be replaced. A perusal of the Service Job Card dated 2.4.2015 would show that hose of the traction motor T line was replaced, the same being damaged. A perusal of the Service Job Card Report-Drill dt.6.4.2015 would show that frame bracket and rod fraction frame excel welding nut and bolt had got bent. Though the problem was rectified but it was still bent. A perusal of the Service Job Card dated 2.8.2015 would show that on that date the machine was in good running condition and only drifter problem was found. A perusal of the Service Job Card dated 11.1.2016 would show that the drifter had to be dismantled as the oil leak was observed. It also shows that lift liver was not working properly. Thus the machine required repairs/replacement of parts, five times within one year of its purchase and the service job was carried out for the 6th time about one year and one month of the purchase.
Vide email dated 27.8.2016, respondent No.2 informed respondent No.1 as under:-
"We have supplied PRD 500D drill machine to N.R. Builders, Tumkur, Karnataka.
Machine was commissioned on 1/12/2014 & was worked for 309 hrs. upto last month including marching & drill machine was operated hardly 130 -140 hrs.
At that time we found below problems:
Drifter mounting bolt was broken frequently every 2 hrs.
Twice there was oil leakage started from the drifter
Twice through bolt was broken from the drifter
Track was bend due to improper welding
And there was few small problems in the machine but customer cannot operate continuously more than 2 hrs with their operator nor your operator without any problem.
Finally your operator informed the customer, this machine is not success & PRD has not sold anywhere.
We are very much fed up & customer was totally upset because your people keep on postponing. Finally Yesterday Mr. Shiva came to Tumkur & we both met customer, Customer told he does not require the machine & informed to take back & refund the amount.
Mr. Shiva has given another option he will take back the drill machine and provide excavator mounted drill & balance amount will be refunded."
The aforesaid email dated 27.8.2016 was responded by respondent No.1 on 31.8.2016 informing respondent No.2 that they would discuss the matter with the team and revert back. Since there was no response from the manufacturer, respondent No.2 sent an email dt. 10.9.2016 seeking a reply from the manufacturer.
Vide email dated 28.9.2016, the respondent No.2 wrote to the manufacturer reminding it that the customer did not want the machine he having got fed up with it and also reiterating that when Mr. Shiva o respondent No.1, had met the customer in Tumkur he had given a commitment to take back the machine and supply excavator mounted drill.
Vide email dated 28.11.2016 sent at 10.25 a.m., respondent No.2 informed respondent No.1 that the customer was going to file a case against the manufacturer regarding the worst performance of the machine. It was also pointed out that after bad performance of the machine Mr. Shiva Kumar of the manufacturer had given commitment to the customer, at the site, on its behalf, which the manufacturer was not honoring. The said email was responded by the manufacturer at 2.18 p.m. on the same day informing that since the machine had completed the warranty period they could rectify the defects and that if the customer wanted to sell the machine then the same could be mutually discussed. Thus the manufacturer declined to replace the machine or accept its return from the complainant.
It is thus evident that there were defects and shortcomings in the machine even during one year of its purchase though the said defects/shortcomings are stated to have been removed. However, the email dt. 27.8.2016 sent by respondent No.2 to respondent No.1 shows that the machine had run only 309 hours upto July 2016. It further shows that the drifter mounting bolt used to be broken frequently every two hours., two times there was oil leakage from the drifter, two times the bolts were broken from the drifter and the track was bent due to improper welding. It was specifically stated in the said email sent by respondent No.2 to respondent No.1 that the customer could not continuously operate the machine for more than two hours either with his own operator or with the operator of the manufacturer without any problem. It further shows that the operator of the manufacturer also had informed the complainant that the said machine was not a success and had not been sold anywhere. Most importantly Mr. Shiva a representative of the manufacturer came to Tumkur met the complainant and promised to take back the said drill machine and provide excavator mounted drill machine. He also promised to refund the balance amount. The said commitment made by Mr. Shiva was never denied by respondent No.1. It was not denied in the email dated 31.8.2016. It was not denied even in the email dt. 28.11.2016 sent by none other than Mr. Shiva to respondent No.1. It is therefore, evident that the machine manufactured by respondent No.1 and sold by respondent No.2 to the complainant had suffered from one defect or the other and realizing that the said machine was incapable of working smoothly, Mr. Shiva Kumar, representative of the manufacturer promised to take back the said machine and replace it by an excavator mounted drill machine. He also promised to refund the difference between the price of the machine purchased by the complainant and the price of the excavator mounted drill machine. In view of the aforesaid promise made by Mr. Shiva, it would be difficult to say that the machine did not suffer from manufacturing defect. Had there been no manufacturing defect, there could not be no question of Mr. Shiva agreeing to take back that machine and supply an excavator mounted drill machine to the complainant along with refund of the difference between the price of the two machines. In fact, the operator of the manufacturer also admitted the defect in the machine when he informed the complainant that this machine was not a success and had not been sold by them to any other customer.
The contention of the learned counsel for respondent No.1 is that (i) respondent No.2 did not have an authority to give a warranty to the complainant on its behalf and (ii) in terms of the dealership agreement the warranty was only for one year or 2000 hrs whichever was earlier. However, the warranty issued by respondent No.2 to the complainant was rather vague since it did not clarify whether it would expire on one year from the date of purchase or on the machine running 2000 hours. Considering the vagueness in the warranty issued by respondent No.2 to the complainant, the said warranty needs to be interpreted in favour of the consumer and it must be held that it was available for one year from the date of purchase or till the machine efficiently ran for 2000 hours whichever was later. However, in the present case, the machine could run only for about 300 hours as respondent No.2 itself had intimated respondent No.1. In any case, the manufacturing defects in the machine had surfaced even within one year from the date of purchase of the machine as would be evident from as many as five service job card having been opened during the said period and the email dated 27.8.2016 sent by respondent No.2 to respondent No.1, coupled with the commitment made by Mr. Shiva Kumar of the manufacturer to take back the said machine and give excavator mounted drill machine to the complainant along with refund of the difference in the price of the two machines.
Though the learned counsel for respondent No.1 submits that no expert evidence was led nor any documentary evidence was produced by the complainant to prove the alleged manufacturing defect in the machine, the expert evidence in my view was not necessary considering the email dated 27.8.2016 sent by respondent No.2 to respondent No.1 admitting the defect in the machine coupled with the promise of Mr. Shiva of the manufacturer to take back the said machine and supply an excavator mounted drill machine while simultaneously refunding the difference in the price to the complainant.
For the reasons stated hereinabove, I hold that the State Commission was not justified in dismissing the complaint. The impugned order is therefore, set aside and the respondents are directed to refund the amount of Rs.33 lakhs to the complainant within eight weeks from today against return of the machine by the complainant provided that the machine has not been used by the complainant since the time he filed the consumer complaint. A pay order / demand draft of Rs.33 lakhs shall be delivered by the representative of either respondent No.1 or respondent No.2 to the complainant within eight weeks from today and while delivering the said Demand Draft/Pay Order, he shall also be entitled to receive the machine in question from the complainant. In the event of the respondents failing to comply with this order, they shall pay interest to the complainant on the amount of Rs.33 lakhs @ 9% p.a. from the date of this order till the date the said amount is paid to the complainant.