Mohammed Muzaffar

S/o Mohammed Pasha

Partner of Crown Engineer Work

Plot No.16, Survey No.53 & 55

Mailaredevpally, Ballaguda I.E.

Rajendra Nagar, R.R.Dist. … … … Complainant



v/s.

The General Manager

M/s. Cotmac Private Limited

Survey No.169/2, Above Central Bank

Mumbai Poona Road, Akurdi

PUNE 411 035. … … … Opponent



:- J U D G E M E N T -:

That the complainant is self employed Partner of M/s.Crown Engineering Works, situated at Rajendra Nagar, R.R.Dist. The complainant business involves manufacturing of kerosene stove and has been using conventional welding equipments in the welding of accessories of M.S.Tank for production of kerosene stoves.

According to the complainant he received offer from the opponent for supply of Aqua Gas Generator model AG 2000 for total cost of Rs.2,82,060/-. Based on the qualities and cost effectiveness presented by the opponent, accepted the offer and placed oral order and paid an initial amount of Rs.1,85,000/- vide receipt No.24609 dt.7/8/1999. Complainant took the delivery of the said machine on 22/8/1999. Complainant made full payment of total sale consideration in agreed schedule by 8/12/99 vide R.No.24609, 24631, 25050, 25051. According to the complainant within a month from the date of delivery the said machine stopped functioning, which was informed to the opponent. Technical staff of the opponent visited twice between the period 1/9/99 and 18/4/00 i.e. six months but failed to rectify the defect. On advice of opponent complainant sent the said machine to Pune through LR No.237 on 18/4/00, which was returned on 30/5/00 (approx. 45 days), but the defects remained as it were.

Hence, on complaint of complainant technical staff of the opponent visited between 1/6/00 to 28/9/00 but failed to activate the heating process and rectify the defects inspite of taking necessary guidance from its Malaysian collaborator. On request of opponent complainant sent the machine to Pune. According to the complainant opponent returned the said machine on 17/4/2001 (approx. 6 months). Machine worked till 18/6/2001 and again tripped off. Hence, telephone complaint was lodged on 18/6/2001 and a legal notice dt.8/7/2001 was served to the opponent. In response technical staff attended the complaint on 8/7/2001 but failed to rectify the defects and reported that the machine is malfunctioning due to defect in the circuit board. Defect could only be rectified with proper tools and equipments at their place in Pune and after due acknowledgement took the circuit board to Pune and promised to rectify the defect or report the status within a week. It is contended by the complainant that opponent neither refixed the said circuit board or rectified the defect due to which the machinery is lying as a heap of scrap though the complainant has invested huge sum by borrowing money from bank at exorbitant interest.

Circuit board is a crucial component, which controls the entire operation of the machine is being taken by the opponent on 8/7/01. Machine was purchased on 22/8/99 and the circuit board was taken by the opponent on 8/7/2001, between this period machine was operative only 318 hours, which is evident from the meter fixed in the said machine and that too operated by the opponent or by the complainant in presence of opponent for trial run and repairs. Operating capacity of the machine was 10 hrs. per day, but it works out approx. 32 days during the trial and repair. Hence, complainant has prayed for Rs.12,16,600/- towards interest @ 16%., salaries and wages, loss of revenue, transportation for repairs cost and compensation.

Complainant has filed his affidavit, documents including Copies of complaint, petitions which he filed before Rangareddy District Forum, Andhra Pradesh Redressal Commission and the order of the Hon'ble National Commission.

The Forum sent notice to the opponent, opponent appeared before the Forum through Ld. Adv. Smt. Kaushalya Uday Nagarkatti and filed application stating that the complaint is hopelessly barred by limitation. Thereafter opponent failed to file written statement and also failed to appear before the Forum and therefore the Forum passed 'No say' order against the opponent.

Thereafter the complaint was decided on merit by the Forum and judgment order dt.30/11/07 was passed by this Forum, whereby the complaint was allowed and the opponent was directed to pay an amount of Rs.2,82,060/- to the complainant and the complainant was directed to deliver the defective Acqua Gas Generator model AG 200 to the opponent, after getting abovementioned cost, within six weeks from the date of receipt of copy of order. Opponent was further directed to pay Rs.25,000/- towards cost and compensation within six weeks from the date of receipt of copy of order.

Against this order, opponent filed First Appeal No.48 of 2008 @ Misc. Appl. No.66 of 2008 before the Hon'ble State Commission, Maharashtra, whereby vide order dt.29/9/2008 Appeal was allowed subject to cost of Rs.25,000/- payable to the complainant and the matter was remanded back to the Forum and the opponent was permitted to file written statement, affidavits and documents, if any. According, Cost of Rs.25,000/- was paid by the opponent to the complainant and the written statement filed by the opponent on 23/10/2008 was taken on record, copy of which was given to the complainant.

In the written statement opponent has stated that the complaint is barred by limitation applying the parameter laid down by the Hon'ble National Commission in its order dt.6/2/2006. The cause of action arose on 22/8/99. As per the order of the Hon'ble National Commission dt.6/2/2006 only the period spent in litigation was to be excluded while calculating the limitation period. Complainant filed complaint before Consumer Disputes Redressal Forum, Ranga Reddy District on 27/9/01 after two years limitation period, which was barred by limitation by 35 days, which was dismissed by the said Forum on 27/3/03 for want of jurisdiction.

Against which, complainant filed Appeal before Andhra Pradesh State Commission on 25/4/03, which was dismissed on 9/9/05. Against which Complainant filed Appeal before the Hon'ble National Commission. Hon'ble National Commission vide order dt.6/2/06 directed that the matter may be filed in Pune District Forum and the time spent in litigation may be excluded. Complainant filed complaint before this Forum on 20/12/06, after 10 and half months after the order of the National Commission, which was known to the opponent only after receipt of order of Hon'ble National Commission dt.6/2/06. Complainant has not filed any application for delay condonation. Subject matter of the complaint is 'commercial purpose', hence, this Forum has no jurisdiction to entertain the complaint. Opponent did not make any offer for supply of Aqua Gas Generator to the complainant. Complainant himself seen the said machine in an exhibition and approached the Opponent at their office in Pune and negotiated with the opponent for purchase of said machine for cost of Rs.2,82,060/-. Complainant placed oral order and made a payment of Rs.1,85,000/- towards cost of machine vide receipt no.24609 dt.7/8/99.

Complainant has taken extensive trials on the machine of about 100 jobs and only after satisfaction placed the order. Complainant has availed Sales Tax Concessions for the transaction (Copy of form C issued by Central Sales Tax is attached with the W.S.) Mr.Mohammad Muzaffar has taken a commission of Rs.77,275/- on the sale which was paid by the opponent on 8/12/99 (Annex.B to the W.S.) There were no complaints regarding the machine, initially. On the contrary complainant issued a certificate of satisfactory functioning. After sometime, after installation of machine opponent received telephone that the workers were having difficulty in running the machine. In good faith opponent sent Mr.Kotnis to help them and to train complainant's personnel. Opponent's representative Mr.Praphul B. Kotnis attended workshop in Hyderabad to train the personnel of the complainant to run the said machine and to help out in any problems they may be facing in running of a new technology machine.

It is denied that opponent had gone to repair defects. Opponent found that welders of the complainant were untrained in welding, not qualified to run and operate the machine. Despite strict instructions to use only distilled water, complainant and his workers used ordinary water, which has caused malfunctioning in the electricity supply. Opponent suggested to make necessary application/complaint to the local electricity board for stable power supply. Complainant was using rusted material as a cost saving measure. After giving a list of do's and don’ts to the complainant and his welders Mr.P.P.Kotnis left Hyderabad for Pune. Opponent suggested the complainant to send the machine to Pune as their Malaysian collaborator were expected to come Pune. Accordingly, opponent received machine on 29/9/00. After checking, Malaysian collaborator's team found the machine to be working in good condition. After checking only, the machine was dispatched to Hyderabad. Complainant and his men found it in working condition, which is suppressed by the complainant.

Opponent has admitted in the written statement that circuit board was brought to Pune to check the claims of defect by complainant, since proper tools and equipment for checking were not available at complainant's works which fact is admitted by the complainant in para 7 but meanwhile the complainant went to Court and the matter was in dispute and sub judice, so the circuit board was not returned to the complainant. Thus this act of taking the circuit board may not be construed as an admission of defect in the goods. If the meter on the machine shows it was operative only for 310 hours or 32 days it is because the complainant's personnel being unskilled and electric supply was not stable. Thus the non operation cannot be attributed to any defect in the machine per se. Lastly prayed for dismissal of complaint with cost.

Both parties have filed written arguments and list of documents.

We have perused the record and proceedings. Following points arise for our consideration.

Points Findings

1. Whether the complainant is consumer? Yes.

2. Whether the complaint is barred by limitation? No.

3. Whether the complaint is maintainable? Yes

4. Whether the opponent committed deficiency in

service by selling defective machine? Yes.

5. What order? As per final order.


Reasons-

As to the point no.1-

It is clear from the records of the case that complainant is self employed partner of M/s.Crown Engineering Works, situated at Rajender Nagar, R.R.District. The complainant's business involves manufacturing of kerosene stoves.

The complainant has been using conventional welding equipments in the welding of accessories of M.S.tank for production of said kerosene stoves. Complainant placed an oral order and paid initial amount of Rs.1,85,000/- vide receipt no.24609 dt.7/8/99 to the opponent for purchase of Aqua Gas Generator model AG 2000 for total cost of Rs.2,82,060/-. Complainant made full payment of total sales consideration in agreed schedule by 8/12/99 vide R.No.24609, 24631, 25050 and 25051 to the opponent. Opponent has admitted about the payment made by the complainant. Machine was within the warranty as per "Conditions of Warranty" produced by the complainant on record alongwith the complaint at page 84. Warranty was from the date of purchase dt.21/8/99 till 20/8/2000. During the warranty period defects arose in the machine, which were reported by the complainant to the opponent time and again. Technical staff of the opponent tried to remove the defects in the machine, but failed to do so.

In the written statement opponent has taken a plea that the transaction was commercial transaction and relied upon Form C issued by the Central Sales Tax.

In this case defects were noticed in the machine during the warranty period and they were not rectified during that period. Further opponent has taken out vital part of the machine that is circuit board on 8/7/2001 and till date it is in the custody of the opponent. Machine is lying as a heap of scrap with the complainant. Assuming for the sake of argument that the complainant had bought this machine for commercial purpose but if defects occurred during the warranty period which could not be satisfactorily rectified, it can be construed as deficiency of service. This conclusion is supported by the following decision of the Hon'ble National Commission in IV (2005) CPJ 206 (NC) = 2005 CTJ 1218 (CP) (NCDRC), Dr.Vijay Prakash Goyal vs. The Network Limited, has observed as follows-

"In Jay Kay Puri Engineers and Ors. v. Mohan Breweries and Distilleries Ltd. 1997 CTJ 56 (CP), I (1998) CPJ 38 (NC) and may other decisions, this Commission held that purchaser of a machine would be a consumer if the defect in machine develops within warranty period even though the machine was purchased for commercial purpose.

Further, we are relying upon the decision of the Hon'ble National Commission in 1996 (2) CPR 171 in case of M/s.Amtrex Ambience Ltd. vs. M/s. Alpha Radios & Anr. wherein it is held that-

"Where the allegation of complainant was that there was malfunctioning of machinery during period of warranty when manufacturer had undertaken to keep machinery in good working condition, even if sold for commercial purpose, the purchaser will certainly be a consumer in respect of services rendered or to be rendered for proper functioning machinery during the period of warranty."

Hence, we are of the opinion that the complainant is a consumer.

As to the point no.2-

It is admitted fact that the complainant has to run from pillar to post i.e. from the Hon'ble Andhra Pradesh State Consumer Disputes Redressal Commission to this Forum. Complainant was trying to get justice from 1/8/2001 onwards. Hon'ble National Commission passed order on 6/2/2006 vide which complainant was permitted to file the complaint before the District Forum, Pune and period spent in prosecution of the complaint was allowed to be excluded for computing limitation for filing complaint before Pune Forum. Complainant has filed this complaint before this Forum on 20/12/2006. This Forum cannot overlook the findings of the Apex Court. Technical ground of limitation cannot be a bar to the present proceedings before this Forum.

It is admitted fact that defects in the machine occurred during the warranty period. We have perused the "Conditions of Warranty" produced by the complainant on record alongwith the complaint at page 84 in which it is stated that -

"Date of purchase- 21/8/1999

Gas Generators (M) Sdn Bhd hereby warrants this product for a period of 12 months from date of purchase against defects in manufacturing within the warranty period, repairs and replacements of faulty materials will be undertaken free of charge by Authorised AquaGas Distributors."

Within a month from the date of delivery, the said Aqua Generator failed to perform welding on account of non generation of sufficient heat to weld the accessories of M.S. tank for production of kerosene stoves. Technical staff of opponent visited complainant and after due acknowledgement (Exh.A13, page 83 to the complaint), took the circuit board to Pune and promised to rectify the defect or report the status within a week.

We have perused the acknowledgment dt.8/7/2001 (Exh.A 13, page 83) which reads as follows-

"I hereby acknowledge the receipt of the said control circuit board. I undertake to inform about the status of the said control circuit board within one week"

It is admitted by the opponent in the written statement page 7 para 13 that -

"circuit board was brought to Pune to check the claims of defect by complainant, since proper tools and equipment for checking were not available at complainant's works which fact is admitted by the complainant in para 7 but meanwhile the complainant went to Court and the matter was in dispute and sub judice, so the circuit board was not returned to the complainant."

Thus, it is admitted by the opponent that one of the important part of the machine i.e. circuit board is in possession of the opponent since 8/7/2001 due to which the machine has become a heap of scarp and lying at the works of the complainant, which is a clear deficiency in service on the part of the opponent. Opponent failed to remove the defects in the machine as a whole and circuit board as a part of it and make it perfectly in working condition, which amounts to deficiency in service.

Hence, we are of the opinion that the cause of action is continuous one and the complaint is not barred by law of limitation.

Further we are relying upon the following authority reported in II (2007) CPJ 231 (NC) Om Prakash Sharma & Anr. vs. Rungta Irritation Ltd. (Area Manager) & Ors. wherein it is held that-

"Consumer Protection Act, 1986 Section 2(1)( d) Definition Commercial purpose. Limitation of commercial purpose not attached to services rendered by seller in terms of warranty given at relevant time. Such plea would not be accepted in respect of services, hired in terms of warranty during warranty period..

(Page 232 para 9 & 10) ".

Besides, the limitation of commercial purpose was inserted w.e.f. 15/3/2003 and the suit machine was purchased in the year 1999 as such the same is not applicable to the present case.

Hence, we answer point no.2 accordingly.

As to the point no.3 and 4-

Opponent has stated in the written statement that only after taken extensive trials on the machine of about 100 jobs and only after satisfying themselves fully with the quality of welding and amount of heat generation, the order was placed by the complainant. But no such job trial report is produced on record by the opponent.

Further, opponent has stated that their representative Mr.Praphul B. Kotnis attended their workshop in Hyderabad to train the personnel of the complainant to run the said machine and to help out in any problems they may be facing in running of a new technology machine. No training report is produced on record by the opponent.

Opponent has stated that machine was handled by untrained and unskilled persons and distilled water only has to be used. But at the time of purchase of said machine it was not specifically instructed by the opponent in the broucher that the machine was to be handled by the trained and skilled persons only and the distilled water only was to be used.

Opponent has stated about erratic electric supply, but no such documentary proof is produced on record by the opponent.

Opponent has failed to act as per the undertaking given by them on 8/7/2001. Machine is lying as a heap of scrap with the complainant.

Hence, we are of the opinion that the opponent failed to remove the defects occurred in the machine within warranty period, and hence, opponent is liable to refund the cost of the said machine i.e. Rs.2,82,060/- with interest. Complainant has prayed for interest @ 16% p.a. on the cost of the machinery from 10/8/99, which is at exorbitant rate. Hence, we are of the opinion that ends of justice will meet if the opponent is directed to refund cost of machinery i.e. Rs.2,82,060/- with interest @ 9% p.a. from the date of purchase i.e. from 21/8/1999 till realisation to the complainant.

It is settled principle of law that when interest is allowed, no separate compensation needs to be awarded. (See the decisions in Skipper Bhavan v/s. Skipper Scales (Pvt.) Ltd. 1 (1995) CPJ 210 (NC) ; M/s.Ketan Consultants Pvt. Ltd. v/s. Sanjiv Bansod & Anr. I (2000) CPJ 24 (NC).

Further, opponent is liable to pay Rs.1,000/- to the complainant towards costs of this proceeding to the complainant.

In respect of other prayers like salaries, wages, loss of revenue, the complainant has not produced any evidence on record to support these prayers and therefore the Forum cannot consider these prayers of the complainant.

In view of the above findings, we pass following order-

:- O R D E R :-

1. Complaint is partly allowed.

2. Opponent is directed to pay an amount of Rs.2,82,060/- to the complainant with interest @ 9% p.a. from the date of purchase i.e. from 21/8/1999 till realisation to the complainant within two months from the date of receipt of copy of this order.

3. Complainant is directed to deliver the defective Aqua Gas Generator Model AG 2000 to the opponent, after getting the abovementioned cost within two months from the date of receipt of copy of this order.

4. Opponent is directed to pay Rs.1,000/- towards costs of this proceeding to the complainant