Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2012(2) CPR 497 (NC)
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
R.C. Jain, Presiding Member and S.K. Naik, Member
K. Yusuf Basha —Complainant
versus
Bharath Earth Movers Ltd., Regional Office —Opposite Party
Original Petition Nos 50, 51 with Original Petition No. 61 of 2000
Decided on 29.5.2012

Counsel for the Parties:
For the Complainant:Mr. V. Prabhakar, Advocate
For the Opp. Party:Mr. Akhil Sibal, Ms. Priya Deep and Mr. Pradeep Chhindra, Advocates.

IMPORTANT POINT
Complainant cannot be non-suited on ground of limitation at belated stage of limitation.

Headnote:(A) Consumer Protection Act,1986—Section 2(1)(f), 2(1)(g), 2(1)(o) and 21—Machinery—Supply of defective Hydraulic Excavators—Present complaints are not based only on allegations of manufacturing or inherent defects in goods supplied by opposite party but also on allegations of deficiency in service as well—Complainants are not ‘Consumers’ under Clause 2(1)(d)(i) of C.P. Act but they are certainly consumers under Section 2(1)(d)(ii) of C.P. Act as complaints were filed prior to amendment of definition of term ‘Consumer’—Complainants cannot be non-suited on ground of limitation at this stage when complaint has already been under trial for a period of more than a decade—Several defects had developed in all machines during warranty period which defects were such as would require replacement of certain major components of machines—Complaint allowed. (Paras 14, 17, 19, 24,25, 26, 27, 35, 44, 49 to 53)
(B) Consumer Protection Act,1986—Section 24-A—Complaint—Limitation—Even after expiry of period of warranty,OP had assured complainant and continued to provide requisite service to rectify certain defects—Limitation would be deemed to have been extended because according to complainants defects were not fully rectified—This will amount to continuing cause of action. (Para 17)

ORDER

R.C. Jain, Presiding Member—As these complaints are based on similar facts and involve the same dispute / controversy, it is proposed to decide all the three complaints by means of this common order.

2. The dispute raised in these complaints pertains to four numbers Heavy Earthmoving Machine (Hydraulic Excavator) used for mining activity in granite mines. Complainants in these complaints are partners of KMB Group, Salem engaged in granite quarry and export business. Opposite Party, Bharath Earth Movers Ltd. (BEML), is a Government of India undertaking and is engaged in manufacturing of such like machines. In the year 1997, K. Yusuf Basha Complainant in Original Petition No. 50/2000, had purchased two Heavy Earthmoving Machines (Hydraulic Excavator) from the OP, at a cost of Rs. 57,63,000 for each machine with the following description:-

“(i) BEML Model BE 300 Hydraulic Excavator powered by BEML KOM S6 D 125 diesel engine (developing 197 FHP) equipped 1.57 cum bucket. Equipment serial No. G 10258, Chasis No. 258 and Engine No. Z311600091.

(ii) BEML Model BE 300 Hydraulic Excavator powered by BEML KOM S6 D 125 diesel engine (developing 197 FHP) equipped 1.57 cum bucket. Equipment serial No. G 10261, Chasis No. 260 and Engine No. Z311600093.”

3. Similarly, K. Shahnawaz, complainant in Original Petition No. 51/2000, also purchased one Heavy Earthmoving Machine (Hydraulic Excavator) from the OP at a cost of Rs. 57,63,000/-, with the following description:-

“BEML Model BE 300 Hydraulic Excavator powered by BEML KOM S6 D 125 diesel engine (developing 197 FHP) equipped 1.57 cum bucket. Equipment serial No. G 10260, Chasis No. 261 and Engine No. Z311600092.”

4. Similarly, K. Shoukath Ali, complainant in Original Petition No. 61/2000, had also purchased one Heavy Earthmoving Machine (Hydraulic Excavator) from the OP at same price, with the following description:-

“BEML Model BE 300 Hydraulic Excavator powered by BEML KOMTSU 6 D 125 diesel engine (developing 197 FHP) equipped 1.57 cum bucket. Equipment serial No. G 10257, Chasis No. 267 and Engine No. Z311600089.”

5. The above-mentioned machines were commissioned at the sites of the work of complainants on 6.11.1997, 25.12.1997, 17.11.97 and 8.11.1997 respectively. The machines carried warranty of one year or 2000 hours of operation from the date of initial commissioning of the equipment, whichever event occurred earlier and for the engine and hydraulic for one year or 3000 hours from the date of initial commissioning. That apart the opposite party had undertaken to service the machinery first at 250 hours and second service at 500 houRs.

6. According to the complainants from the very first day their commissioning, the machines started giving trouble due to manufacturing defects and faced a lot of major problems in the under carriage and engine and there was heavy oil consumption. The service engineers of the OP though made several trips to repair the machines on various dates between November, 1997 to February,1999, but all the defects could not be removed and the machines could not be made fault free. The main defect alleged in the machines was in respect of heavy consumption of Hydraulic and Engine Oil which could not be rectified thereby causing heavy monetary loss to the complainants. According to the complainants, it was on account of the manufacturing defects in the engine in the Hydraulic system which led to the consumption of heavy oil ever since the date of commissioning. Besides that the equipment had other major problems in the undercarriage. The track frame supplied by the OP after enormous delay was not re-commissioned for want of service engineeRs. The complainant had to purchase quite a large number of spare parts at their own cost for replacement of the defective parts. Alleging deficiency in service on the part of the opposite party, the complainants have filed these complaints. In OP No. 50 / 2000 relating to purchase of two machines, the complainant has claim

Click Here to Read the rest of this document

IMPORTANT POINTComplainant cannot be non-suited on ground of limitation at belated stage of limitation.

IMPORTANT POINT
Complainant cannot be non-suited on ground of limitation at belated stage of limitation.