NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
FIRST APPEAL NO. 391 OF 2006
(Against the order dated 01.12.2005 in Complaint Case No. C/326/1993 of the State Commission, Uttar Pradesh )
M/s. Ghaziabad Engines & Machines (P) Ltd.,
Court Road, Muzaffar Nagar- 251001,
Through its Managing Director ……….Appellant
Versus
1. Advance Level Telecommunication
Training Centre,
Government of India Enclave,
Ghaziabad- 201 002
2. M/s. Bela Trading Engineers,
Post Box No.1447, 1/1 Nicholeon Road,
Kashmere Gate,
New Delhi- 110 006
Through its Managing Partner
3. M/s. Cumins Diesel Sales & Services (I) Ltd.,
35-A/1/2, Erandawana,
Pune- 411 038
Through its General Manager (Services) .........Respondents
BEFORE
HON’BLE MR. JUSTICE V.B. GUPTA,
PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Appellant : Mr. Harpreet Singh, Advocate
For the Respondent No.1 : Mr. C.B.N. Babu, Advocate
For the Respondent No.2 : NEMO
For the Respondent No.3 : Mr. Ashish Wad, Advocate
PRONOUNCED ON: 03.07.2012
ORDER
PER MR.VINAY KUMAR, MEMBER
This appeal has been filed against the order of UP State Consumer Disputes Redressal Commission in Complaint Case No.C/326/1993. The State Commission has allowed the complaint of the Advance Level Telecommunication Training Centre and directed OP-1 & 3 (the appellant and respondent No.3, in the present proceedings) jointly and severally, to pay a sum of Rs.4,90,000/- together with litigation cost of Rs.3000/-, to the complainant ( respondent No.1 in the present proceedings).
2. The complainant is a government institution, set up for imparting training to officers of the Telecommunication Department in high tech areas. As stated, the complainant had six Cummins Diesel Engines of different capacities, for operating its air-conditioners and electronic exchange, together with the office and hostel buildings. OP-1/Ghaziabad Engines and Machines (P) Ltd, had an annual maintenance contract which had expired on 31.7.1989. The case of the complainant was that in January, 1990 one of the Cummins engines suffered a major break down. The complainant sought the assistance of OP-1, as the AMC agency, until a few months ago. Appellant/OP-1 submitted their quotation for overhauling and repairing. The contract for repair was awarded to them with the condition that necessary parts would be purchased from the principals i.e. M/s. Cummins Diesel Sales and Services (P) Ltd. A letter in this behalf was also issued to OP-1 on 30.3.1990. In the process of overhaul and repair of the Engine, 12 out of 24 CR bearings were replaced. The repaired Engine was commissioned on 6.7.1990 for which a repair bill of Rs.3,39,357/- was paid.
3. In January 1992 the Engine started emitting heavy smoke and stopped working. OP-2/Bela Training Engineers, Kashmiri Gate, New Delhi were called in, as the AMC agency at that point of time. The Engine was completely dismantled to find out the cause of the problem. As per the report of 21.2.1992 from OP-2 (respondent No.2 in the present proceedings), the cause of the break down of the Engine was use of spurious CR bearings by OP-1/appellant during the course of overhaul of the Engine in 1990. The matter was therefore taken up with OP-1. Their representative allegedly visited the site in the third week of April 1992 and inspected the Engine. Two CR bearings out of the 12 replaced in 1990, were found to be without any mark of the manufacturer and therefore suspected to be spurious.
4. Respondent No.2/OP-2 refused to repair the Engine under the Annual Maintenance Contract on the ground that the seizure of the engine was on account of use of spurious spares by OP-1. The Complainant therefore had to pay a bill of Rs.919048/- for the repair of the Engine by OP-2. It was in this background that the complainant had made the following prayer before the State Commission:-
“(i) To direct the Respondent No.1 to compensate the complainant to the extent of Rs.19,69,048/-.
(ii) To direct the Respondent No.1 to pay interest @ 24% per annum upon Rs.3 lakhs from the date of the filing of this complaint till the date of realization of the said amount.
(iii) To pass a decree in terms of prayers (i) and (ii) above.
(iv) To grant such relief against respondent Nos.2 & 3 as may be deemed fit.
(v) To pass any other orders, directions as this Hon’ble State Commission may deem fit and proper in the facts and circumstances of the case.”
5. We have carefully considered the material on record and heard Shri Harpreet Singh, Advocate for the appellant. Advocates Sri C.B.N Babu for respondent No.1 and Sri Ashish Wad for respondent No.3 have also been heard. It needs to be observed that through the entire course of the present proceedings between 21.8.2006 and 17.4.2012, respondent No.2/Ms.Bela Training Engineers has remained un-represented. Therefore, R-2/OP-2 has been proceeded against ex-parte. Even before the State Commission, R-2/OP-2 had remained un-represented, though a Vakalatnama had been filed on its behalf, by an Advocate.
6. On the main issue of use of spurious CR bearings, the stand of appellant/OP-1 before the State Commission was that:-
“The contents of corresponding para 12 of the complaint are wrong and denied to the extent that although the said engine was repaired by the answering Respondent the faulty CR Bearings allegedly recovered from said engine were not those which were replaced by the answering Respondent and could not have been fitted in the engine at the time of the said repair. In this regard it is submitted that 12 nos. of C.R. Bearings were replaced at the time of repair of the said engine. It is pertinent to note that the replacement of the said bearings are always received in sealed containers from Respondent No.3 in sets of 12 bearings and are not marketed loose and as such it is not possible for two bearings (of one set of twelve) to be different from the other ten. The answering Respondent being an authorized agent of the Respondent No.3 has always been receiving only genuine spares from it principal namely the Respondent No.3. Further it needs to be submitted that the said spurious CR (connecting rod) bearings of 0.025 oversize configuration cannot be fitted in place of standard size bearings in such KCL (Kirloskar Cummins Ltd.) / CDS & S (Cummins Diesel Sales & Service (India) Limited) manufactured engines and as such this fact can be evidenced from the Investigation Report dated 15.09.1992 of the Respondent No.3 (Annexure VIII of the complaint).”
7. It is also claimed by the appellant/OP-1 in the written response before the State Commission:-
“That the said faulty C.R. Bearings could not have possibly been fitted by the answering Respondent as its principles (Respondent No.3 herein) are only manufacturing four configurations of C.R. Bearings namely 0.010”, 0.020”, 0.030” and 0.040”.”
8. The rival contentions of the two parties, on the question of use of spurious bearings, have been considered in detail by the State Commission. The Commission has noted that the Engine was opened up immediately after the break down and the report of OP-2 along with the original materials were also sent. Therefore, the State Commission did not find any merit in the argument that the machine should have been opened in the presence of the representatives of OP-1 and OP-3. It also held that the complainant did his best by submitting the report of OP-2 on the spurious nature of the bearings and even sent the concerned material to OP-3 for physical examination. There is no mention in the report of OP-3 that those materials were foreign and were not supplied by him.
9. We are in complete agreement with the appreciation of the evidence on this point. The appellant cannot derive any benefit by merely claiming that oversize rings could not have been fitted as the fact remains that the Generator had already functioned, after the overhaul in 1990, for more than one and half years with those bearings, before the break down in 1992.
10. Further, the above contention of the appellant that CR bearings of faulty dimension could not have been fitted by OP-1 as the principal i.e. OP-3 was manufacturing only four configurations of CR bearings namely, 0.010,” 0.020”, 0.030” and 0.040, cannot be accepted as proof in itself that no spurious bearings have been fitted. During the course of the argument, learned counsel for the appellant claimed that CR bearings of requisite specification only had actually been obtained from OP-3 and therefore there was no question of fitting any spurious bearings. He however, conceded that no bills of purchase of such bearings from OP-3 had been produced before the State Commission.
11. Another contention raised by the appellant is that the order of the State Commission is vitiated for non-observation of the Condition under Section 13 (1) (c) of the Consumer Protection Act, which requires assessment of the expert agency. We find no merit in this contention as the investigation report of 15.9.1992, produced on behalf of OP-3 before the State Commission, itself shows that two of the 12 bearings did not have the marking of the manufacturer. As per this report, these two bearings also did not have the copper layer and were different in appearance from the other bearings.
12. From the above, it transpires that the OPs had completely failed to lead any evidence before the State Commission to explain as to why two of the 12 bearings were not of Cummins manufacture. This has to be viewed in the background of the pre-repair condition imposed by the complainant in their letter of 30.3.1990 in which they had clearly asked the appellant/OP-1 to procure the necessary spares, from their principals M/s. Cummins Diesels Sales and Service (I) Ltd., Poona. The State Commission has therefore, rightly fixed responsibility on OP-1 and OP-3.
13. In view of the details above, we are of the view that the impugned order is based on correct appreciation of the evidence before the State Commission. We find no grounds to interfere with the same. The appeal is therefore dismissed with no orders as to costs.
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(V.B.GUPTA,J.)
PRESIDING MEMBER
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(VINAY KUMAR)
MEMBER
s./-
