NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Ram Surat Ram Maurya, Presiding Member
Nakoda Machinery Pvt. Ltd. – Petitioner
versus
John Crasta and Anr. – Respondents
Revision Petition No.3517 of 2016
(Against the Order dated 18/08/2015 in Appeal No.35/2014 of the State Commission Kerala)
Decided on 21.9.2021

IMPORTANT POINTS
1) Nothing on record to say Respondent had any other source of livelihood, JCB and Rock Breaker not meant for commercial purpose.
2) Proved that Rock Breaker created problems from the date of its purchase.

Headnote:

Consumer Protection Act, 1986 – Section 21(b) – Revision Petition – Consumer Protection Act, 2019 – Section 58(1)(b) – Against the Order dt. 18.08.2005 of the State Commission – Respondent states that JCB, 1 yr. warrantee and on Rock Breaker, 6 months warrantee given - Shortly after assembling Rock Breaker with the JCB, it did not function properly and complaint was made to the Petitioner – Servicing done by the Petitioner but it did not help - Distt. Forum directed Petitioner to replace Rock Breaker with a new one or refund Rs.6,25,000/-, pay Rs.1,00,000/- for physical and mental harassment and Rs.3000/- as the cost of litigation to the Respondent – Petitioner’s appeal before the State Commission dismissed by judgment dt. 18.08.2015 – Hence, the Revision Petition - Findings of this Commission: Nothing on record to say Respondent had any other source of livelihood, JCB and Rock Breaker not meant for commercial purpose - Proved that Rock Breaker created problems from the date of its purchase - Findings of the Fora reaffirms Rock Breaker had manufacturing defect, does not suffer from any illegality.

Held: John Crasta (respondent-1) filed Consumer Complaint No. 26 of 2012, for directing Nakoda Machineries Private Limited (the petitioner) (i) to replace Rock Breaker with a new one or pay Rs. 6,25,000/- i.e. cost of the Rock Breaker and (iii) to pay Rs. 5,30,000/- towards loss and damages. It has been stated in the complaint that the complainant purchased JCB 81, bearing chassis No. 1798955 and Engine No. 4H2188/1120175 for Rs. 23,75,000/- on 30.07.2011 and Rock Breaker for Rs.6,21,100/ on 09.08.2011, from Advaith Motors Private Ltd. (opposite party-2), who was an authorised dealer of Nakoda Machineries Private Limited (opposite Party-1), in order to earn his livelihood, out of the income derived from it, by way of self employment as the complainant got work of JCB and rock breaker, in the Industrial Estate, Kinfra Park, Seethangoli, Kasaragod. On the JCB, one year warrantee and on Rock Breaker, 6 months warrantee were given. Shortly after assembling the Rock Breaker with the JCB, its function was not found proper and complaint was made to Nakoda Machineries Private Limited. Again on 14.10.2011, the Service Engineer of Nakoda Machineries Private Limited examined the vehicle and found that the rock breaker was running slowly, in comparisons to required speed. He changed Hydraulic Hose Assembly, spending Rs. 7913/-. On 03.11.2011, leakage of oil was noticed. Then again complaint was made to opposite party-1. On 03.11.2011, the Service Engineer of opposite party-1 examined the vehicle and found that cylinder oil ring was damaged and leakage of oil from D.C. valve and necessary repairs were done. Oil leakage was again noticed and another complaint was made. Then on 03.12.2011, the Service Engineer of opposite party-1 examined the vehicle and found that there was no proper oil flow in the engine as such piston was damaged and rock breaker was not working properly as the required speed was lacking, due to which diesel consumption was also increased. Service Engineer compelled the complainant to purchase various accessories, side rod, net and washer etc. for repairing JCB. On the allegation that rock breaker was suffering from manufacturing defects and the opposite parties committed unfair trade practice in selling the defective machines, which was not functioning properly even during warrantee period; Due to which, the complainant spent Rs. 30,000/-, in repair and 150 litre diesel was wasted due to excess consumption. The complainant had suffered Rs.3,00,000/- as loss of earning and compensation of Rs.2,00,000/- for mental and physical harassment; this complaint was filed.

District Forum by order dated 29.11.2013 found that it had territorial jurisdiction and the complainant was a consumer. From the evidence adduced by the complainant, defects in Rock Breaker, from very beginning, was proved. On these findings, the complaint was allowed and the petitioner was directed to replace Rock Breaker with a new one or refund Rs.6,25,000/-, pay Rs.1,00,000/- for physical and mental harassment and Rs.3000/- as the cost of litigation. The petitioner challenged the aforesaid order in Appeal No. 35 of 2014, which has been dismissed by State Commission, by judgment dated 18.08.2015. Hence this revision has been filed.

In the present case, the complainant has stated that in order to earn his livelihood, out of the income derived from JCB and Rock Breaker, by way of self-employment as he had got work of JCB and rock breaker, in Industrial Estate, Kinfra Park, Seethangoli, Kasaragod, he had purchased these machineries. Apart from the fact that he had admitted that he had employed one operator for running JCB, there is nothing on record to say that he had any other source of livelihood. Supreme Court, in the aforementioned cases, has clearly held that employing one or two person for the help in running the machineries, does not oust the complainant from the purview of the definition of “consumer”. As such there is no illegality in the findings of Foras below, holding the complainant as the consumer.

From Service Job Work Reports (Ext. A-4 to Ext.A-7 and Ext-A-11), which were proved by the Affidavit of Evidence filed by Service Manager, it was proved that Rock Breaker had created problem from the date of its purchase. In the Service Job Work Report, it has not been mentioned that Rack Breaker was roughly used by unskilled person. Findings of the Foras below that Rock Breaker was suffering from manufacturing defect does not suffer from any illegality. (Paras 1, 4, 7, 14 & 15)

Result: Revision Petition has no merit, is dismissed.