Chandigarh

StateCommission

CC/83/2022

M/S GARG SONS ESTATE PROMOTERS PVT LIMITED - Complainant(s)

Versus

ALLEN BUILDWELL PVT LIMITED - Opp.Party(s)

KARAN BANSAL & ADITYA GAUTAM ADV.

02 Feb 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	83 of 2022
Date of Institution	:	24.11.2022
Date of Decision	:	02.02.2023

 

M/s Garg Sons Estate Promoters Pvt. Limited, A Company Incorporated under The Companies Act having its Registered Office at House No.260, Sector 9-C, Chandigarh, ­­­through its Director Sh.Ashok Kumar Garg Son of Sh.Suraj Bhan Gupta.

…… Complainant

 

V e r s u s

1. Allen Buildwell Private Limited having its Registered Office at B-206, Arjun Centre, Govandi East, Mumbai, Pin code 400088.
2. Neeraj Kapoor, COO at Allen Buildwell Private Limited, Head Office B 206, Arjun Centre, Govandi East, Mumbai, Maharashtra, Pin  code 400088.
3. Bhanu Kapoor C/O Neeraj Kapoor, COO at Allen Buildwell Private Limited, Head Office B 206, Arjun Centre, Govandi East, Mumbai, Pin code 400088.

....Opposite parties

BEFORE:              JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                             MR. RAJESH K. ARYA, MEMBER

 

Present:-               Sh.Karan Bansal, Advocate for the complainant.

Sh.Prajwal S. Bhalgat, Advocates for the opposite party no.1 (on VC).

None for opposite parties no.2 and 3.

 

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                  

                   The facts in brief are that the Director of the complainant-Sh.Ashok Kumar Garg (in short the complainant) is engaged in civil contracts and other civil works i.e. construction of buildings, roads, houses, flats etc. He contacted the opposite parties to buy a cement spreader machine for which quotation dated 18.01.2022 Annexure  C-2 was provided by the opposite parties, with pre-conditions as under:-

 

"PAYMENT: 20% in advance and balance through DO before delivery of the equipment against submission of Proforma Invoice.

 

TRUCK requirement to be provided by customer:

 

Bharat Benz 2528 C or equivalent model. Wheel base: 4275mm with Cabin and PTO. The customer shall send the Chassis fully insured to ABPL Yard in Khalapur, Maharashtra, for mounting the Cement Spreader on the Chassis. Our price quoted is inclusive of mounting charges.

 

DELIVERY: 4 to 6 weeks Ex- works Karsundi, Khalapur, Maharashtra.

 

Mounting & Fitting on Buyer's truck will take 3-5 days.

 

VALIDITY: 30 days from date of this Offer.

 

WARRANTY: 12 months or 1000 Hours against any manufacturing defect excluding fast moving spares, consumables, oils, wear parts (parts that come in contact with the ground & the material to be processed), rubber & electrical parts.

 

Buyer has to arrange for Lodging & Boarding of all Sellers service technicians at time of commissioning & any service calls."

 

2.           The complainant placed order dated 20.01.2022 bearing Reference No. GSEPL/ABPL/PO/22-22/53 for ROAD-PRO MODEL S-CS-20, 16 CUM (20T) CEMENT SPREADER (WITHOUT TRUCK) Annexure  C-3 and consequently paid Rs.83,86,378/- (Inclusive of GST) towards the said machine.  The complainant in compliance to the said purchase order purchased a truck make "TATA" Model "Tata Signa 2818.T BSVI" for a consideration amount of Rs.31,31,000/-. All the necessary fittings were to be made by the opposite parties to bring the aforementioned machinery into  proper functioning by fitting/attaching the cement spreader on the said truck. Moreover, the complainant was also required to get the chassis fully insured, as such, he got the truck as well as the cement spreader insured by "The New India Assurance Co. Ltd" vide policy no. 12220031210350142554 issued on 14.02.2022 (17:18) valid till 13.02.2023 (Midnight) Annexure C-6, by paying Rs.53,840/- as premium for total IDV of Rs. 97,85,000/-. In order for the cement spreader machine to be used, the complainant had to buy a truck and the complete cement spreader machine is mounted on a truck and is acting as a single complete unit. The complainant has purchased the ROAD-PRO MODEL S-CS-20, 16 CUM (20T) CEMENT SPREADER (WITHOUT TRUCK) from the opposite parties vide invoice tax dated 14.03.2022 for sale  consideration of Rs.83,86,378/- (Including GST) and a truck amounting Rs 31,31,000/-. Total cost of the unit inclusive of the insurance of the chassis of the Truck as well as cement spreader borne by the complainant came to Rs.1,15,71,218/-. The complainant paid full and final payment on 14.03.2022 for which he took loan from ICICI Bank.
3.           It has been stated that from the very first day of use of the cement spreader machine, it was found defective/faulty. The cement spreader couldn't do the work for which it was specially purchased as it was not spreading cement as per setting done on the machine. Numerous times the cement spreader got jammed and the machine stopped working. The whole purpose to purchase the cement spreader machine got defeated, due to which the complainant suffered huge financial losses. Moreover, the complainant was under obligation to complete the road construction project in the stipulated timeline for which he needed a cement spreader. Hence, the complainant was not able to meet the deadlines according to the tenders because of the cement spreader being defective/faulty from the very first day. The complainant contacted telephonically to the opposite parties numerous times and told about the problems being faced by him and requested them to rectify the said machinery being in warranty time period but to no avail.  Consequently, the complainant on his own expenses sent the cement spreader (attached with the truck) to the opposite parties at Mumbai to get it repaired on 29.03.2022. The complainant was informed that all the problems in the cement spreader would be repaired in a short period being in the warranty, but still complainant was asked to deposit Rs.3,25,000/-, which was paid by him. The complainant received back the cement spreader mounted on the truck on 09.04.2022, but still the same problems were faced by the complainant as even repaired cement spreader machine was not working properly and breaking down on regular basis. The complainant tried to contact the opposite parties numerous times but they  never paid any heed to it. Left with no alternative, the complainant served legal notice dated 19.08.2022 Annexure  C-8 inter alia requesting the opposite parties to refund the entire amount of Rs.83,86,378/- along with interest etc. but to no avail. However, the said legal notice was replied by the opposite parties vide reply dated 07.09.2022, Annexure  C-9 wherein not only the fact that the defects/faults in the cement spreader machine were admitted by the opposite parties, but also false assurance was given to the complainant qua the faulty cement spreader machine. Inspite of acknowledging the problem and the faulty cement spreader machine supplied by the opposite parties and giving false assurance, till date neither the amount has been refunded by the opposite parties as claimed in the legal notice nor the defective cement spreader machine has been replaced. The complainant was left with no other option and to complete the tender project in time, he was forced to hire a cement spreader at the price of Rs. 7,00,000/- for three months from outside. The complainant is suffering from huge financial losses on day-to-day basis caused due to the defective/faulty machinery being provided by the opposite parties. The Cement Spreader is one of the most essential machinery required to build roads as it lays the foundation of the roads. Being a faulty/defective machinery the complainant has incurred losses to the tune of Rs 4,18,75,881/-. Under those circumstances, the complainant served another legal notice dated 04.11.2022, Annexure  C-13 inter alia requesting the opposite parties to refund the entire amount along with interest @18% but to no avail.  
4.           Hence this complaint has been filed by the  complainant seeking following relief:-

“……a). Appropriate directions/orders to the opposite party to refund an amount Rs. 96,51,916/- (Rupees Ninety-Six Lakhs Fifty-one Thousand Nine Hundred Sixteen Only) comprising of Rs.83,86,378/- (Rupees Eighty-Three Lakhs Eighty-Six Thousand Three Hundred Seventy-Eight Only) being paid for purchase of Cement Spreader with interest of Rs. 12,65,538/- (Rupees Twelve Lakhs Sixty Five Thousand Five Hundred Thirty Eight Only) @18% per annum w.e.f. 21.01.2022 till date of filing the complaint along with future interest @ 18% per annum till realization of the amount.

 

b). Appropriate directions/orders to the opposite party to refund an amount Rs.61,324/- (Rupees Sixty One Thousand Three Hundred Twenty Four Only) comprising of Rs.53,840/- (Rupees Fifty-Three Thousand Eight Hundred Forty Only) paid for insurance premium with interest of Rs.7,487/- (Rupees Seven Thousand Four Hundred Eighty Seven Only) @18% per annum w.e.f. 14.02.2022 till date of filing and along with future interest @ 18% per annum till realization of the amount.

 

c). Appropriate directions/orders to the opposite party to refund an amount Rs.35,66,423/- (Rupees Thirty-Five Lakhs Sixty Six Thousand Four Hundred Twenty three Only) comprising of Rs.31,31,000/- (Rupees Thirty-Three Lakhs Thirty-Three Thousand Only) being paid for purchase of truck along with interest of Rs.4,35,423/- (Rupees Four Lakhs Thirty Five Thousand Four Hundred Twenty Three Only) @18% per annum w.e.f. 14.02.2022 till date of filing along with future interest @ 18% per annum till realization of the amount.

 

d). Appropriate directions/orders to the opposite party to refund an amount Rs. 3,62,664/- (Rupees Three Lakhs Sixty Two Thousand Six Hundred Sixty Four Only) comprising of Rs.3,25,000/- (Rupees Three Lakhs Twenty Five Thousand Only) for getting the truck repaired even under the warranty period on 02.04.2022 along with interest of Rs.37,664/- (Rupees Thirty seven Thousand Six Hundred Sixty Four Only) @18% per annum w.e.f. 02.04.2022 till date of filing along with future interest @ 18% per annum till realization of the amount.

 

e). Direct the opposite party to pay an amount of Rs 4,18,75,881/- (Four Crore Eighteen Lakhs Seventy Five Thousand Eight Hundred and Eighty One Rupees only) till realization of the amount on accounts of damages suffered by the complainant on account of loss of business and profit due to non-availability of machinery.

 

f). Direct the opposite party to pay Rs.6,00,000/- (Rupees Six Lakhs Only) on the account of litigation expenses being incurred by the complainant to file the present complaint.

 

g). Any other directions/orders which this Commission deems fit…”

 

5.           Opposite party no.1 in its written version while admitting the factual matrix of the case with regard to purchase of the said equipments/machinery by the  complainant, in the manner stated in its complaint, took numerous pleas/objections as under:-
   1. that the complainant is not a consumer because the cement spreader machine was purchased for commercial purpose activities on large scale i.e. for spreading crushed and mixed cement concrete roads and at the same time he has failed to prove that the cement spreader machine was to be used by him for earning his livelihood by way of self employment;
   2. that this Commission did not vest with territorial and pecuniary jurisdiction to entertain this complaint;
   3. that this complaint is bad for non-joinder and mis-joinder of parties;
   4. that though opposite party no.1  had replied to the legal notice sent by the complainant to which he did not take any objection but shockingly after some period illegal demand was made by him through fresh notice with inflated claim and damages;
   5. that the complainant has failed to place on record any expert report/evidence to prove that the cement spreader machine provided by OP No.1 is defective.
   6. that because the truck meeting all the specification upon which the said cement spreader machine was to be provided by the complainant, yet, he failed to provide the truck with proper specification as mentioned in the quotation;
   7. that the main difference was availability of Power Take off (PTO) engine in the truck which was not made available by the complainant, which was one of the main reasons of hardship in operating of the machine installed on the same (truck)
   8. that though the error in the truck provided by the  complainant was immediately brought to his notice, yet, he replied that the dealership does not have the truck with the specification contained in the quotation;
   9. that the machine installed on the said truck performed at part for some time but when it was taken to full potential it started giving problem, upon which the complainant was again asked to provide correct truck to refit the cement spreader machine thereupon but he refused to do so, on the ground of urgency of work allocated to him;
   10. that thereafter on the suggestion of R & D team, opposite party no.1 fitted slave engine of Kirloskar Company named HA 394 having slightly less power (because HA494 was not available at that time)  in the said truck to meet the requirements of complainant, for which token money of Rs.3,25,000/- was paid by the complainant;
   11. that though after fitting the slave engine on the said truck, the machine in question was functioning properly, yet, this fact stood concealed by the complainant;

 

6.           It has been further stated that opposite party no.1  has trained one of the employees of the complainant to effectively operate the machine in proper manner but it was being operated by some other untrained and unskilled labour without proper knowledge and training and the trained employee has left the company of the complainant. It has been averred that the machine in question did not perform to its full potential only because of the reason that the truck provided by the complainant  was not at all recommended and also did not match the specification of the recommended truck. The complainant himself ignored the instruction of opposite party no.1 on the ground that he was in urgency to complete the work undertaken from tender by the UP Government and to save itself from being blacklisted as contractor.
7.           Opposite parties no.2 and 3 also took almost similar objections/pleas as have been taken by opposite party no.1 in its written version. However, additionally, it has been stated by opposite parties no.2 and 3 in their written version as under:-
   1.      that opposite party no.3 is wife of opposite party no.2 and has no concern whatsoever with the company;
   2.      that the complainant has not returned the  slave engine nor paid remaining amount in respect thereof;

 

8.           In the rejoinder filed, the complainant reiterated all the averments contained in its complaint and controverted those contained in written statements filed by opposite parties no.1 to 3.
9.           This Commission afforded adequate opportunities to the contesting parties to adduce evidence in support of their respective contentions, by way of filing affidavit. In pursuance thereof, the contesting parties have adduced evidence by way of affidavits and also produced numerous documents including written arguments.
10.           We have heard the contesting parties and have carefully gone through the entire record of the case, including the written arguments filed by the parties.
11.           First, we will deal with the objection taken by the opposite parties to the effect that the complainant did not fall within the definition of ‘consumer’, as the machine in question was purchased for commercial purposes on large scale i.e. for spreading crushed and mixed cement concrete roads. It may be stated here that the complainant in his complaint in para nos.1 and 3 has clearly stated that the machine in question was purchased with a view to do his above said business for earning his livelihood. The said assertions have been supported by the complainant by way of tendering his affidavit in the capacity of Director of the company. In para no.3, it has been stated by the complainant as under:-

“…..That the complainant is the consumer as per Section 2 (7) read with explanation (a) of Section 2 (7) of  Consumer Protection Act as the complainant has purchased the machinery from the OP’s to earn his livelihood and is an end user of the machinery…”

 

12.           In reply, which has been filed by opposite party no.1, wherein averment that the complainant did not fall within the definition of consumer, it has been added therein as under:-

 

1.  as the machine in question has been purchased by the complainant solely for commercial purposes. Further, it is very much clear that the said expensive machines has been purchased for earning profits by putting the above said Machine for the purpose of carrying out business of commercial nature by employing various operators on the machine. That in order to claim benefit of the explanation provided in Section 2(1)(d) of Consumer Protection Act, 2019 the purchaser of goods or services has to use that goods or services exclusively for the purposes of earning his livelihood by means of self-employment. In the present case the purchaser/complainant should be put to strict proof that the complainant has purchased and used the machine exclusively for the purpose of earning his livelihood by means of self- employment. Hence in the absence of the above-said proof, the complainant could not have been considered a consumer within the definition of the Consumer Protection Act, 2019. Moreover, it is also beyond the doubt that the machine in question has been operated by several operators except complainant, which is apparent from the bare perusal of the service visit reports signed by several different operators, and hence he is not using the machine for self-employment.
2. It is further respectfully submitted that 'Cement Spreader Machines' are being purchased by commercial organizations/entrepreneurs for enhancing their commercial activities/enterprises. The complainant had purchased the said machine solely for the "Commercial Purpose" and with a view to making a profit by undertaking construction activities etc. The machines were piled on and operated by people other than the complainant herself. Hence a complaint is devoid of any merit and is liable to be dismissed with cost, as the complaint is untenable in law
3. It is an admitted fact that the machine purchased by the complainant is for commercial purposes. The complainant's own averments for economic losses as made in the complaint remove any doubts as regards to the commercial purpose of the machine, if any and if at all capable of arising, in such respect. Kindly refer to page no. 30 of the complaint i.e., Annexure C-12. The nature of use of the machine concerned, which is for spreading crushed and mixed cement for various construction activities such as constructing cement concrete roads.

 

In support of his contentions, Counsel for the opposite parties have placed reliance on Laxmi Engineering Works Vs. PSG International Institute, AIR 1995, Supreme Court Page 1428; Harsolia Motors Vs. National Insurance Co. Ltd. (NC); Biral Technologies Ltd. Vs. Neutral Glass and Allied Industries Ltd. Civil Appeal No.10650 of 2010; and Smt.Pushpa Meena Vs Shah Enterprises (Rajasthan) Ltd. (1991) 1 CPR 229.

13.           In replication, this fact has been controverted by the complainant and stated that the complainant falls within the definition of consumer. In support of his contentions, Counsel for the complainant placed reliance on following judgments:-

 

1. Sudhir Gensets Ltd. and another Vs. M/s Shree Jagdamba Stone Crusher and Other, Revision Petition No.71 of 2019 (National Commission);
2. Laxmi Engineering Works Vs. PSG International Institute, AIR 1995, Supreme Court Page 1428;
3. Tosoh India Pvt. Ltd. (Formerly Lilac Medicare Pvt. Ltd.) Vs. Ram Kumar & 3 Ors., Revision Petition No. 2833 of 2018, decided on  06 Jan 2020, decided by the Larger Bench of the Hon’ble National Commission and
4. Sunil Kohli and anr. Vs. M/s Purearth Infrastructure Ltd., Civil Appeal nos.9004-9005/2018, decided on 01.10.2019, decided by the Hon’ble Supreme Court

 

14.           We have given our thoughtful consideration on this point. In Sudhir Gensets Ltd. case (supra) the complainant was a stone crushing firm, having its two partners. The opposite parties supplied generator sets. The complainants' allegation was that they had contracted with the opposite parties for buying a generator set of a particular specifications, instead the opposite parties supplied a generator set of different specifications which could not be put to use and was lying idle. The District Commission allowed the  complaint and the State Commission dismissed the appeal. In the Revision Petition, the moot question before the Hon’ble National Commission was as to whether, use of genset by a stone crushing unit is a part of commercial activity and it answered it in the negative, while holding as under:-

“……Whether an enterprise has a "large" or "small" turnover or whether it employs "many" or "few" staff or whether it generates "high" or "low" profit could be some of the factors to be taken into account. But the actual question is whether the purpose is exclusively for earning livelihood by means of self-employment. Even a relatively small enterprise with little staff and relatively low profit may not be exclusively for earning livelihood by means of self-employment, depending upon the facts and circumstances, and a comparatively larger enterprise with comparatively more staff and comparatively higher profit can still be exclusively for earning livelihood by means of self-employment, again depending upon the facts and circumstances. Earning livelihood by means of self-employment obviously implies that the enterprise will generate some profit. Profitability again does not appear to be conclusive yardstick. The 'purpose' per se is the touchstone, with the same being a pure question of fact to be determined in the facts and circumstances of each case.…….”

 

15.           In Sunil Kohli and anr. Case (supra), the Hon’ble Supreme Court while interpreting the legal term of consumer, has categorically observed as under:-

“As laid down by this Court in Laxmi Engineering Works, the explanation to Section 2(1)(d) of the Act clarifies that “in certain situations, purchase of goods for “commercial purpose” would not yet take the purchaser out of the definition of expression ‘consumer’. If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of self-employment, such purchaser of goods is yet a ‘consumer’”. This Court went on to observe that what is “Commercial Purpose” is a question of fact to be decided in the facts of each case…….”

16.           Similarly, in Tosoh India Pvt. Ltd.’s case (supra) the Larger Bench of the Hon’ble National Commission has laid down following preposition of law, under which, consumer complaints are admissible in respect of commercial units:-

“…….(a)     Only a person engaged in large scale commercial activities for the purpose of making profit is not a consumer;

(b)     There should be a direct nexus between the large scale commercial activities in which a person is engaged and the goods purchased or the services hired or availed by him, before he can be excluded from the purview of the term ‘consumer’.  Therefore any goods purchased or the services hired or availed even by a person carrying on business activities on a large scale for the purpose of making profit will not take him out of the definition of the term ‘consumer’, if the transaction of purchases of goods or hiring or availing of services is not intended to generate profit through the large scale commercial activity undertaken by him and does not contribute to or form an essential part of his large scale commercial activities.

(c)     What is crucial for the purpose of determining whether a person is a ‘consumer’ or not is the purpose for which the goods were purchased or the services were hired or availed and not the scale of his commercial activities.

 (d)    The explanation below Section 2(1)(d) of the Consumer Protection Act is clarificatory in nature

(e)     A person purchasing goods or hiring or availing services for a consideration, for the purpose of earning his livelihood by way of self-employment is a ‘consumer’ within the meaning of Section 2(1)(d) of the Consumer Protection Act.

 (f)     It is not necessary that a person should be working alone in the commercial activity undertaken by him for earning his livelihood and his family members and / or a few employees can assist him in his commercial venture.  Such assistance by his family members or by a few employees engaged by him does not convert his business or profession into a commercial activity on a large scale, for the purpose of making profit and therefore, does not exclude him from the purview of the term ‘consumer’.”

17.           However, in Harsolia Motors case (supra) relied upon by the opposite parties, it has been held by the Hon’ble National Commission that in case where goods purchased or services hired in an activity which is not directly intended to generate profit, it would not be commercial purpose. In  Biral Technologies Ltd.s case (supra) it was held by the Hon’ble Supreme Court that if it is proved that the goods are purchased for commercial purposes for earning more profits, only then it can be said that it is for commercial purpose and complaint filed in that regard will not be maintainable before the Consumer Commissions. In  Smt.Pushpa Meenas’ case (supra) also, similar view was taken as has been taken in  Biral Technologies Ltd’s case (supra). However, since in the present case, the opposite parties have failed to prove that the cement spreader machine had been purchased by the complainant  for earning more profits, as such,  reliance placed by the opposite parties on Harsolia Motors; Biral Technologies Ltd. and Smt.Pushpa Meena cases (supra) is misplaced.  

                   Thus, if in the present case, the complainant has purchased the cement spreader machine in question in order to earn his livelihood, by way of hiring few employees/driver/operator of that machinery to assist in the commercial venture, as such, in no way it can be said that the complainant is not a consumer. In this view of the matter, objection taken by the opposite parties in this regard stands rejected. 

18.           The next question that falls for consideration is, as to whether, this Commission has territorial jurisdiction to entertain and decide this complaint or not? It may be stated here that since the complainant is running his business from  the registered office located at House No. 260, Sector 9-C, Chandigarh, as such, this complaint is maintainable before this Commission, at Chandigarh, in view of provisions of Section 47 (4) (d) of Consumer Protection Act, 2019 (in short the Act, 2019) which says that a complaint  is maintainable  before the State Commission, within the limits of whose jurisdiction, the complainant resides or personally works for gain. In this view of the matter, objection taken by the opposite parties stands rejected.
19.           Now, we will like to deal with the objection raised by the opposite parties that for want of pecuniary jurisdiction, it is not open to this Commission to entertain and adjudicate this complaint, it may be stated here that this complaint  has been filed under the provisions of CPA 2019. In exercise of powers conferred by provisos to sub-section (1) of Section 34, sub-clause (i) of clause (a) of sub-section (1) of section 47 and sub-clause (i) of clause (a) of sub-section (1) of section 58 read with sub-clauses (o), (x) and (zc) of sub-section (2) of section 101 of the Consumer Protection Act, 2019, the Central Government has notified the Consumer Protection (Jurisdiction of the District Commission, the State Commission and the National Commission) Rules, 2021, wherein, it has been notified that the State Commissions shall have jurisdiction to entertain complaints where value of the goods or services paid as consideration exceeds 50 lakh rupees but does not exceed 2 crore rupees. As such, in the present case, since against total value of the machine in question, the complainant has  admittedly paid an amount of Rs.83,86,378/- to the opposite parties, which exceeds 50 lakh rupees but does not exceed 2 crore rupees as such, this Commission has pecuniary Jurisdiction to entertain and decide this complaint. Objection taken by the opposite parties in this regard stands rejected.
20.           It is evident from the tax invoice dated 14.03.2022, Annexure C-4 that the complainant purchased the cement spreader machine in question i.e. Road Pro Model CS-20 (20 T) Truck Mounted Cement/Binder Spreader with Automatic (without truck) on making payment of Rs.83,86,378/- including taxes, which was to be used for construction of roads etc. As per terms and conditions of the document, Annexure C-3 (Purchase order)  agreed to between the parties, the complainant was to provide the truck for mounting the said cement spreader machine on the chassis.  As per quotation (at page 17 of the paper book), the complainant was required to provide truck-Bharat Benz 2528 C or equivalent model having wheel base 4275 mm with cabin and PTO (Pump take off).  It is also an admitted fact that a truck make HSN (8704.23.00) TATA SIGNA 2818.T BSVI with wheel base 5505 mm against 4275 mm was made available to the opposite parties by the complainant and in turn they had installed the cement spreader machine on the said truck. However, dispute arose between the parties, only when the complainant found that the said machinery installed on the truck in question was not working properly, as a result of which he sent emails followed by legal notice to the opposite parties.
21.           However, to wriggle out of the situation, the opposite parties took a stand that since the truck in question provided by the complainant did not meet the requirements/specifications, as such, it was only on account of that reason that the machine did not work properly. Under these  circumstances, the moot questions which fall for consideration is:-

 

1. Whether, the opposite parties have been able to prove that truck of wrong specification had been provided to them by the complainant which resulted into non functioning of the cement spreader machine in question sold by them or not?
2. Whether the complainant is entitled to get any relief and if yes, to what extent?

 

22.           Coming to the question, as to whether, the opposite parties have been able to prove that truck of wrong specification had been provided to them by the complainant which resulted into non functioning of the cement spreader machine in question sold by them, it may be stated here that not even a single evidence has been placed on record by the opposite parties to prove that truck provided by the complainant did not meet the specifications  to install the cement spreader machine in question thereon. Whereas, on the other hand, it is evident from  the record that truck make HSN (8704.23.00) TATA SIGNA 2818.T BSVI with wheel base 5505 mm against 4275 mm was made available to the opposite parties by the complainant and in turn they had installed the cement spreader machine on the said truck. There is nothing on record that any objection had been raised by the opposite parties, while installing the cement spreader machine on the said truck. Had the specification of the truck provided by the  complainant did not meet the requirements for the cement spreader machine to be installed on the same, the opposite parties should not have installed the cement spreader machine thereon. Thus, once the cement spreader machine has been installed by the opposite parties on the truck provided by the complainant, without any objection, as there is no such evidence in that regard that any objection was raised to that effect, later on, they cannot wriggle out of the same, if any defect arose in the said cement spreader machine, on the ground that the truck provided by the complainant did not meet the specification of the said spreader machine. It is significant to mention here that the first email was written by the complainant on 24.04.2022 (Annexure C-7) informing the opposite parties that the cement spreader machine is not working properly and there is breakdown thereof after every 2 days. However, when nothing was done in the matter, the complainant then served legal notice dated 19.08.2022, Annexure C-8 upon the opposite parties in the matter and it was only for the first time on 07.09.2022 that they informed the complainant and that too while replying the legal notice aforesaid to the effect that PTO pump had been wrongly supplied by him alongwith truck. However, there is nothing on record that before 07.09.2022, any such stand was ever taken by the opposite parties. Though in this reply dated 07.09.2022, it has been mentioned by the opposite parties that they have many times spoken to the operators and driver of the machine in question to replace the engine from 3 cylinder to 4 cylinder but they were told that the truck is busy on some other project, yet, there is nothing on record that any written communication in that regard was ever sent by the opposite parties to the complainant. Under these circumstances, mere bald assertions of the opposite parties, in the absence of any documentary evidence, cannot be considered by this Commission. 
23.           In this view of the matter, it is held that from the peculiar facts and circumstances of this case, it has been proved that it was on account of the reason that defective machinery-spreader machine was supplied to the complainant, which act amounts to deficiency in providing service, negligence and adoption of unfair trade practice on the part of the opposite parties, which has caused financial loss to the complainant and agony & humiliation to its Director, as in the absence of functional cement spreader machine at the project site, the complainant could not complete the allocated project work.
24.           Now coming to quantifying of damages suffered by the complainant, due to deficiency in service and negligence on the part of the opposite parties, as a result whereof, the equipments/machinery was not made fully functional till date. In the complaint, it has been specifically pleaded that the complainant has been caused a huge financial loss because of non completion of the  projects allocated to him due to defective cement spreader machine supplied by the opposite parties. It has been specifically stated by the complainant in para no.14 and 15 of the complaint as under:-

“………14. That the complainant was left with no other option and to complete the tender project in time, the complainant was forced to hire a cement spreader at the price of Rs, 7,00,000/- for three months. Copy of the quotation and the work order hereby annexed as ANNEXURE C-10 (Colly).

 

15. That the complainant is suffering from huge financial losses on a day to day basis caused due to the defective/faulty machinery being provided by the Opposite Parties. In order to understand the losses incurred by the complainant, a video of the working of the Cement spreader mounted on the Truck is hereby annexed as ANNEXURE C-11. The Cement Spreader is one of the most essential machinery required to build roads as it lays the foundation of the roads. Being a faulty/defective machinery the complainant has incurred losses due to men and other machinery being not utilised at the site. The losses incurred are to the tune of Rs 4,18,75,881/- (Four Crore Eighteen Lakhs Seventy Five Thousand Eight Hundred and Eighty One Rupees only). The copy of the losses incurred duly attested by the Chartered Accountant is hereby annexed as ANNEXURE C-12.……..”

 

25.           Even in the email dated 24.04.2022, Annexure C-7 also, it has been  informed by the complainant to the opposite parties that the machine is not working and lying in idle condition. Relevant part of the said email is reproduced hereunder:-

 

“……Date: Sunday, 24 April 2022 at 09:35 am GMT+5:30

 

Sir

 

Kindly take the reff of our PO No-GSEPL/ABPL/PO/22-22/53 DT 20.01.2022 for the Cement Spreader. In this regards we bring it to ur kind notice that the Cement Spreader not working property and breakdown regular basis almost every 1- 2 days and causes huge financial losses. Due to the breakdown of the Cement Spreader our men and machinery stand idle at site. So you r requested to kindly look into the matter and do the needful to avoid our losses.……..”

 

The opposite parties also in Annexure C-9 admitted that the machine was not working and that they are monitoring the performance with periodic calls to operators; that they will get the new engine Ha494 installed at no extra cost on the complainant after providing them new truck ; and that Mr. Neeraj Kapoor would like to personally meet the complainant to resolve this issue.

                            

26.           Sequence of events narrated above are sufficient to say that the cement spreader machine provided to the complainant was not working from April 2022 onwards. Due to non functioning of cement spreader machine, it caused a great jolt and damage to the  earning of the complainant and in order to fulfill the contract, the complainant was forced to hire other agency, as is evident from Annexure  C-10 on making payment of Rs.7 lacs to complete the allocated work. Therefore, under these circumstances, the complainant who paid a huge amount of Rs.83,86,378/-  for purchase of the said equipments/cement spreader machinery would have definitely suffered financial loss. In the circumstances of this case, we are of the view that to evaluate the compensation there is no specific criteria to determine the damages suffered by the complainant due to non functioning of the said machine. However in our  considered view, if we grant interest on the amount paid by the complainant towards the said equipments/ machinery,  including the refund of the said amount, that will take care of financial loss suffered by the complainant, on account of non-functioning of the equipments/machine in question. We are of the considered view that if we grant interest @6% p.a. on the amount of Rs.83,86,378/-  to be  refunded to the complainant, from 22.04.2022 i.e. the date when the machine in question became defective, that will be adequate and will also meet the ends of justice. 
27.           For the reasons recorded above, this complaint is partly accepted, with costs and the opposite parties, jointly and severally are directed as under:-
    1.      To  refund the amount of Rs.83,86,378/- paid by the complainant in respect of the said cement spreader machine alongwith interest  @6% p.a. from 24.04.2022 (date when the machine became defective), within a period of 30 days from the date of receipt of a certified copy of this order, failing which, the said amount shall carry interest @9% p.a. from the date of passing of this order, till realization.
    2.      To pay to the complainant, compensation for causing mental agony and harassment to its Director; deficiency in providing service, negligence and adoption of unfair trade practice and also cost of litigation, in lumpsum, to the tune of Rs.1,35,000/- within a period of 30 days from the date of receipt of a certified copy of this order, failing which, the said amount shall carry interest @9% p.a. from the date of passing of this order, till realization.

 

28.           However, the complainant is also directed to return the cement spreader machine in question to the opposite parties, on receipt of the awarded amounts.
29.           Certified copies of this order be sent to the parties, free of charge.
30.           The file be consigned to Record Room, after completion.

 

Pronounced.

02.02.2023

Sd/-

 

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

(RAJESH K. ARYA)

MEMBER

 Rg.