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Baburajan P.M., Managing Director and Others Vs. M.T. James, Director, Deev Gen-set (P) Ltd. and Others - Court Judgment

LegalCrystal Citation
CourtKerala State Consumer Disputes Redressal Commission SCDRC Thiruvananthapuram
Decided On
Case NumberFirst Appeal No. A/10/366 (Arisen out of Order Dated 13/05/2010 in Case No. CC81/2009 of District Pathanamthitta) & 387/10 & 222/11
Judge
AppellantBaburajan P.M., Managing Director and Others
RespondentM.T. James, Director, Deev Gen-set (P) Ltd. and Others
Excerpt:
.....for loss sustained by him from the above mentioned order. appeal 387/10 filed by the 3rd opposite party to set aside the impugned order passed by the forum below. a. 222/10 filed by 1st and 2nd opposite parties, to set aside the impugned order passed by the forum below. 3 appeals mentioned above prefers from the very same order passed by the forum below. 2. in short, the complainant is the managing director of hotel bezota international, thiruvalla which is a three star hotel and he had placed an order for purchasing a 180 kva diesel generator set with 1st opposite party for his hotel for getting steady and uninterrupted electric supply. the 2nd opposite party is the maintenance agent and the 3rd opposite party is the manufacturer of the generator set. as per the demand letter.....
Judgment:

COMMON JUDGMENT:

SHRI. M.K. ABDULLA SONA : MEMBER

This appeal prefers from the order passed by the Forum below in CC No 81/09, which filed on 11.06.09 by the CDRF, Pathanamthitta. The appeal No. 366/10 filed by the complainant for awarding compensation for loss sustained by him from the above mentioned order. Appeal 387/10 filed by the 3rd opposite party to set aside the impugned order passed by the Forum below. A. 222/10 filed by 1st and 2nd opposite parties, to set aside the impugned order passed by the Forum below. 3 appeals mentioned above prefers from the very same order passed by the Forum below.

2. In short, the complainant is the Managing Director of Hotel Bezota International, Thiruvalla which is a three star hotel and he had placed an order for purchasing a 180 KVA Diesel Generator Set with 1st opposite party for his hotel for getting steady and uninterrupted electric supply. The 2nd opposite party is the maintenance agent and the 3rd opposite party is the manufacturer of the generator set. As per the demand letter dated 13.06.2008 from the 1st opposite party, the complainant had paid Rs.9,75,000/- by way of demand draft and cash as the price of the generator set as installation charges. According, to the complainant, the generator set was installed at the premises of the complainant (hotel) and commissioned on 10.7.08. On commissioning itself, it is noticed that the sound of the set is beyond normal limits. While so, on 13.07.08 ie on the third day of the commissioning of the generator set, the machine break down. The 2nd opposite party attended the complaint on 16.07.08 and rectified the noticed complaints by replacing various parts. Again on 18.7.08, 22.07.08, 09.8.08, 4.2.2009, 23.2.2009, 7.05.2009 and 23.5.09 different types of complaints were noticed on the generator set. On all these occasions, the 2nd opposite party attended the complaints and replaced different parts of the generator set and repaired the set. At last on 5.06.09 the set struck functioning and the matter was reported and on 7.06.09, the 2nd opposite party deputed one Vinod who inspected the set and opined that the engineers from Ernakulam have to come and attended it. But nobody came after this for repairing the generator set. Now the machine is lying idle, Right from the beginning, the generator set was not working properly and showed complaints. So the complainant has not received any advantage from the generator set expected at the time of purchase.

3. On noticing the continuing complaints, the complainant got inspected the D.G Set on 18.03.09 by a consulting engineer and on the basis of the inspection report, the complainant demanded for an immediate replacement of the D.G. set. Thereafter, on 09.06.2009, a telegram was also sent to the first opposite party for the replacement of the generator set. But nothing materialized. According to the complainant, the generator set supplied by the 1st opposite party is a defective and it is not a brand new and is a second hand set. All the above said acts of the opposite parties are a clear deficiency of service and unfair trade practice. Because of the non-functioning of the generator set, the complainant was compelled to hire another set by paying Rs.3,500/- per day as rent excluding the diesel expenses. Because of the aforesaid deficiency in service and unfair trade practice of the opposite parties, the complainant has sustained financial loss and mental agony and affected the complainants business. Hence this complaint for an order from this Forum directing the first opposite party either to replace the generator set with a brand new one or in the alternative allowing the complainant to realize the entire amount given by the complainant for the generator set along with Rs.2,00,000/- as compensation for the deficiency of service and Rs.5,00,000/- as compensation for the loss sustained by the complainant along with cost of this proceedings.

4. The 1st and 2nd opposite parties filed a common version and the 3rd opposite party filed a separate version. The contentions raised by the 1st and 2nd opposite parties in their version is as follows. According to these opposite parties, the Forum has no territorial jurisdiction to entertain this complaint as the cause of action of the complaint arose outside the jurisdiction of this Forum as the generator set was supplied at Keenpuram near Perumbavoor situated at Ernakulam District and the opposite parties have no branches within the jurisdiction within the territory of the Forum below. Further contention is that the complainant is not a consumer for the purchase of the generator set was for his hotel business which is nothing but a commercial purpose. These opposite parties also challenge the complainants locus-standi to file this complaint as the complainant has not produced any documentary proof showing that he is the competent person to file this complaint for hotel Bezota International. These opposite parties denied the allegation of the complainant regarding the excess sound emission on the ground that before supplying the set, the sound emission was tested and found normal. The generator set supplied by the opposite parties was brand new and its condition was perfect. What all complaints noticed in the set was properly and promptly rectified by the opposite parties and the alleged complaints are due to the improper installation and improper handling by the complainant. The break down was occurred not due to defective workmanship or due to any manufacturing defect and are only due to the incorrect using and misuse of the set. The loss suffered and the difficulties faced by the complainant are not due to the fault of the machine or due to these opposite parties. The opposite parties are not liable to compensate the complainant, since no acts of these opposite parties have caused any trouble or mental agony, or financial loss or hardship to the complainant. There is no deficiency of service or unfair trade practice from these opposite parties. With the above contentions, the 1st and 2nd opposite parties pray for the dismissal of the complaint.

5. The contention of the 3rd opposite party is the complainant is not itself maintainable by the law of the ground that the purchase of the generator set was for commercial purpose. They denied that the 3rd opposite party is the manufacturer of the generator set. This opposite party has supplied only the diesel engine to the 1st opposite party. The 1st opposite party is the manufacturer of the generator set. The 1st opposite party purchased different parts from different manufacturers and got it assembled and sold to the customers. The 3rd opposite party did not have any transactions whatsoever with the complainant. The opposite party is only a supplier of the components to the 1st opposite party. The diesel engine supplied by this opposite party does not suffer from any manufacturing defect. The opposite party is not aware present condition of the generator set, since this opposite party is not have any transaction between the complainant. The complainant has not suffered any loss or damage as prayed for in the complaint. This complaint is frivolous and vexatious. The opposite party does not admit that the complainant is the Managing Director of Hotel Bezota International and they are not aware about the transaction between the complainant and the 1st opposite party. With the above contentions, the 3rd opposite party prays for the dismissal of the above complaint with their cost as they have not committed and deficiency of service to the complainant.

6. In the reply to the versions of the opposite parties the complainant had filed a replication. In the replication, the complainant submitted that the D.G set purchased by the complainant was not for any commercial purpose and the price of the generator set was received by the 1st opposite party directly from the hotel of the complainant and the complainant is a consumer as defined in the Consumer Protection Act. The opposite parties claim regarding sound level etc. is false. The complainant denies the allegation of mishandling of the generator set. The Forum below raised 3 points on the basis of the version of the opposite parties;

1.Whether the complaint is maintainable before this Forum?

2.Whether the reliefs sought for in the complaint are allowed?

3.Relief and Cost?

7. The evidence consist of oral testimony of PWs 1 and 2 and DWs 1 and 2 and documents Exts. A1 to A26 and Exts. B1 to B15 respectively. The Forum below heard both parties and answered the points and allowed the complaint as follows.

a. The 1st opposite party is directed to replace and install a brand new generator set of the same brand within 30 days from the date of the receipt of the order at the complainants premises along with a compensation of Rs. 25,000/-for the deficiency in service committed by the 1st opposite party and the cost of Rs.5,000/-to the complainant, failing which the complainant is allowed to realize Rs.9,75,000/- from the opposite party with interest at the rate of 7% per annum from the date of filing of this complaint till this date along with the compensation and cost ordered herein above and [email protected] 10% interest per annum till whole realization.

b. The complainant is directed to return the defective generator set and all its accessories to the first opposite party in the event of compliance of this order by the first opposite party.

c. However, the first opposite party is at liberty to realize reasonable amounts of opposite parties 2 and 3 in case any deficiency of service committed by them to the first opposite party.

8. The above 3 appeals are preferred by the appellants from the above impugned order passed by the Forum below, respectively.

9. On this day, these 3 appeals came before this commission together for final hearing and concerned counsels for the appellants in each appeal argued their cases on the basis of grounds of appeal memorandum filed by them. The main contention of the 1st opposite party is that he is only a dealer of the 3rd opposite party, suppose any defects occurred in ay machinery is not liable for such a defect including manufacturing defect of the machine. He submitted that if any deficiency in service in the sale and purchase between the complainant and the 1st opposite party then also is liable. In this complaint the complainant alleged that there is a defect in generator set manufactured by the 3rd opposite party. Another contention raised that the Forum below is not having any territorial jurisdiction to entertain this case; as the cause of action of the complaint arosed outside the territorial jurisdiction of the Forum; as the generator set was supplied at Keenpuram near Perumpavoor situated at Ernakulam District and the opposite parties have no branches within the territorial jurisdiction of this Forum below. Another very important contention is taken by all opposite parties that the complainant is not a consumer as the purchase of the generator set of his hotel business which nothing but a commercial purpose. Another contention is taken these opposite parties that they challenges the complainants locus-standi to file this complaint; as the complainant has not produced any documentary proof showing that he is the competent person to file this complaint on behalf of the hotel Bezota International. These opposite parties denied the allegation of the complainant regarding the excess sound emission on the ground that before supplying the set, the sound emission was tested and found normal. The generator set supplied by the opposite parties was brand new and its condition was perfect. What all complaints noticed in the set was properly and promptly rectified by the opposite parties and the alleged complaints are due to the improper installation and improper handling the generator set by the complainant. The break down was occurred not due to defective workmanship or due to any manufacturing defect and are only due to the incorrect using and misuse of the set. The loss suffered and the difficulties faced by the complainant are not due to the fault of the machine or due to these opposite parties. The opposite parties are not liable to compensate the complainant, since no act of these opposite parties have caused any trouble or mental agony, or financial loss or hardship to the complainant. The opposite parties have done their part to the fullest satisfaction of the complainant. There is no deficiency in service or unfair trade practice from these opposite parties. With the above contentions, the 1st and 2nd opposite parties pray for the dismissal of the complaint. The 3rd opposite partys argument is that they denied that the 3rd opposite party is the manufacturer of the generator set. They have supplied only the diesel engine to the 1st opposite party.

10. The 1st opposite party is the manufacturer of the generator set; who purchased different parts from different manufacturers and got it assembled and sold to the customers. The 3rd opposite party did not have any transactions whatsoever with the complainant. They are only a supplier of the components to the 1st opposite party. The diesel engine supplied by the 3rd opposite party and they did not suffer any manufacturing defect. This opposite party is not aware of the present condition of the generator set, since this opposite party did not have any transaction between the complainant. Hence they are not aware answerable and liable for any defect occurred in the machine which assembled and supplied by the 1st opposite party. They also raised a contention that the complainant is not a consumer. The appellants in respective cases produced large number of citations to support of their cases. In appeal No. 387/2010 , the counsel for the appellant cited a decision, C.N. Anantharaman Vs FIAT India Limited and Others (2011) on Supreme Court cases 460 SCC. The fact of this case is not directly similar to the fact that of this appeal. Another decision cited by the appellant; Madhan Kumar Singh Vs. District Magistrate Sulthanpur (2009) Supreme Court Cases 79. We perused and the Honorable Apex Court distinguished the: discussed elaborately; this decision and seeing that the definition of commercial purpose and the lively hood. We perused and followed the principles laid down in both of these decisions.

11. It is seeing that one of the counsels just submitted ever so many photocopies of the decision simply without any docket before this commission; at the time of a final hearing. At least the counsels duty to submit this decisions properly written and docketed. Other ways it is not easy to classify each and every points of the decisions taken through the computers. But after spending so much time and taken more pain we are not in a position to perusing the entire test of each decision. But we discussed this all decisions available before this commission at the time of hearing. But we are not in a position to narrate each and every decision in the judgment due to produced this is an improper way. It is not fair from the parts of the members of the bar to produce just the down loaded print outs of the decisions with out details. It is the duty of the counsels to discuss each decision with the argument of each points of appeal. The principles lay down in all decisions not directly related with the fact and circumstance of this case. In this case the dealer who purchased spares from the manufactures he assembled the generator set and sold to the complainant. But all above decisions related with generator set already manufactured by the manufacturer and sold by the dealer or agent to the complainant. Here the fact and circumstance is quite different. We are not seeing that the settled position of the apex courts is not directly related with the fact, circumstance and evidence of this case. But there is a settled position of law is that in this type of cases the person who accepted money and sold the machine assembled by him is solely responsible for any deficiency in service in the course of transaction.

12. The appellant/complainant argued that the Forum below did not consider the depth of the loss sustained by them though the amount of the compensation ordered by the Forum below under this head is not satisfactorily. He submitted that he sustained huge loss due to the defect of the generator set in the head and he was compelled to hire another generator set for the emergency purposes. In this day, the complainant is spending very huge money due to the deficiency in service from the part of opposite parties.

13. On the basis of the very detail arguments submitted by the counsels for each appeal with citations there are 3 points necessary to be considered in this appeal.

1.Whether the complainant is a consumer or not?

2.Whether the defect of the machinery is due to the manufacturing of this spares or by the misuse and mishandling of the machine by the complainant or not?

3.Whether the machine was manufactured by the 3rd opposite party or it was assembled by the 1st opposite party by purchasing spares from 3rd opposite party?

14. The complainant purchased this machine not for regenerating the electricity for the entire running of 3 star hotel. He purchased this generator set is only to manage the emergency necessities of the hotel. The opposite parties are not have any case that the generator set was used for a substitute of the electric power energy of the 3 star hotel through out. There is no such a data from the Electricity Department or from any meters available to peruse. We are not seeing any such evidence in the case file. In the first look; a 3 star hotel is not a consumer as per the CP Act. But as a settled position of law a 5 star hotel is also a consumer as per CP Act in certain cases. This generator set purchased by the complainant hotel not for re-sale of the electricity only to use as an emergency crisis management. There is no doubt that this generator set was purchased by the complainant hotel for the commercial purpose. It is the settled position of law as per the decision of the ever so many cases held by apex courts. We are seeing legally settled position to accept the argument of the complainant that he purchased the generator set not for a commercial purpose but for the limited purposes of the hotel. In the circumstances, we held that the complainant is a consumer as per the CP Act. The 3rd opposite party provided spares to the 1st opposite party and he assembled machine and to sold to the complainant. In the circumstances, the 3rd opposite party is not a manufacturer; the 3rd opposite party is liable if he fully manufactured a machine and complainant who purchased the machine through the 1st opposite party dealer. In the available evidence it is seeing that the 1st opposite party is the responsible person for the entire manufacturer of the generator set sold by him to the complainant. The argument submitted by the counsel for the appellant/complainant that to the amount ordered by the Forum below under the head of the compensation is a very meager amount. It is not correct. For loss sustained by him due to the defect of the generator set supplied by the 1st opposite party; the complainant did not take any steps or evidence to prove the total loss sustained by him due to the defect of the generator set. Which is not available? The complainant did not adduce this evidence. We are seeing that this attempt of the appellant/complainant is only experimental. By considering the facts and circumstances of the case and by hearing the respective appeals through the learned counsels in detail we are seeing that the Forum below rightly answered all the questions involved in the dispute. This order is legally sustainable as per the provisions of law and evidence.

15. It is clear that the complaints of the generator set was noted with its warranty period and the opposite parties have no any other case that the supplied machine in question have no complaints as raised by the complainants in the complaint. In other words, the opposite parties did not adduce necessary evidence to substantiate their contentions of misuse and mishandling and improper erection of the generator set by the complainant in their premises of the hotel. The generator set purchased by the complainant from the 1st opposite party became defective within its valid warranty period. So it is the duty of the opposite parties to redress the grievances of the complainant, but they have not promptly discharged their liability to the complainant. Instead of discharging their contractional application, opposite parties are targeting each other for the generator set for escaping from their legal liabilities. Another question of law raised by the 1st opposite party that the hotel is a limited company established under the Companies Act and the complainant is an individual and he is not anyway have the legal right to file this complaint on behalf of the complainant. In cause title the address of the complainant is given as Baburajan P.M. Managing Director Hotel, Bezota International, Thiruvalla. It shows that the complaint was filed by the complainant in his personal capacity it is not legally sustainable. As per the Companies Act the Managing Director is only competent person to file such a complaint. But as per a Consumer Protection Act a person who rendered service on payment is the consumer. In this case the complainant who given price of the generator set to the 1st opposite party and the 1st opposite party who collected directly the price of the generator set from the complainant. There is no case that the 2nd and 3rd opposite parties involved in this collection of the price of the generator set from the complainant. Here there is no doubt that the 1st opposite party is answerable for the defect occurred to the generator set supplied by him and he have no further right to raise such a contention like that the complainant is not a Consumer as per the provisions of Companies Act. We are seeing that some unfair trade practice also played by the all opposite parties in the manufacturing and sale of the generator set to the complainant. But there is no evidence available to establish the liability against the 2nd and 3rd opposite parties. The 1st opposite party alone fully involved in the transaction as per the available evidence in the case bundle. We are not seeing any apparent error in the order passed by the Forum below. It is legally sustainable as per the provisions of law and evidence. We uphold in this order.

In the result, the 3 appeals are dismissed. The order is passed by the Forum below is confirmed.

The points of the appeal discussed one by one and answered on the strength of the argument of the counsels and on the basis of the decisions of the apex court which cited by each appellants. No cost ordered.


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