West Bengal

Bankura

CC/6/2023

Sri Shyam Sundar Kedia - Complainant(s)

Versus

ESAB India Ltd - Opp.Party(s)

Mahiuddin Ahamed

13 Aug 2024

ORDER

IN    THE   DISTRICT   CONSUMER   DISPUTES   REDRESSAL COMMISSION, BANKURA

  Consumer Complaint No.06/2023

          Date of Filing:  13/01/2023

Before:                                        

1. Samiran Dutta                                      Ld. President      

2. Siddhartha Sankar Bhui                      Ld. Member

3.Mrs. Kabita Acharjee Goswami           Ld. Member     

 

For the Complainant:Ld. Advocate Mahiuddin Ahmed

For the O.P.: Ld. Advocate Ram Nath Dutta / Ld. Advocate Jayanta Kr. Mukherjee

 

Complainant:

Sri Shyam Sundar Kedia S/O Late Benarasilal Kedia, Proprietor of Netaji Industrial Works, Aged about-83 years, by caste- Hindu ( Marwari ) by Occupation- Business, Resident of vill.- Beliatore, P.O.- Beliatore, P.S.- Beliatore, Dist.-  Bankura, West Bengal                  

Opposite Party:

1.ESAB India Ltd., Represented by it’s Managing Director Mr. Rohit Gambhir, Plot no. 13, 3^rd Main Road, Industrial Estate, Ambattur, Chennai- 600058

2.Debajyoti Banerjee, Deputy Manager- Sales, Equipment Division, ESAB India Ltd., P41 Taratola Road, Kolkata- 700088

3.Saibal Kr. Das, Equipment Division, ESAB India Ltd., P41 Taratola Road, Kolkata- 700088

4.Harisadhan Mondal, In Charge of Central Service, ESAB India Ltd., P41 Taratola Road, Kolkata- 700088

FINAL ORDER / JUDGEMENT        

                                                                                                                                                   

Order No.16

Dated:13-08-2024

 Both parties  file hazira through Advocate.

The case is fixed for argument.

After hearing argument / written argument from both sides   the Commission proceeds to dispose of the case as hereunder: -

The Complainant’s case is that he being the Proprietor of Netaji Industrial Works purchased one Saw machine (Model No.CPRA 1200), Sl. No.PT0901036 from O.P. No.1/Co. in January, 2009 duly serviced from time to time within the Warranty Period. After about three years of continuous use of the machine it was brought to the servicing centre of O.P. Co. at Kolkata on 14/07/2012 for removing the manufacturing defect of the machine as raised by the Complainant but the O.P. Co. failed to take any steps. However after about two years offer was made on 13/05/2014 by the O.P. Co.for complete service and maintenance of the defective                                                                                                                                        

                                                                                                                                                                                Contd…..p/2

Page: 2

machine on further payment of Rs.1,10,300/- but the Complainant agreed to the same only on payment of 50% of the offered money. The O.P. Co.having refused such counter offer the defective machine has been lying unrepaired and unserviced in the servicing centre of the O.P. Co. at Kolkata since then. Thereafter there was exchange of email correspondences between the parties for restoration of the working condition of the machine but all of no avail. Ultimately the Complainant has filed the instant case on 13/01/2023 for appropriate relief upon getting no satisfactory feedback reply from the O.P. Co. and also getting no return of the defective machine from their custody.

The O.P. Co. contested the case by filing a written version denying all the material allegations of the written complaint contending inter alia that the case is hopelessly barred by limitation as it has been filed long after two years of the cause of action and that the case is not maintainable as the Complainant is not a consumer within the definition of consumer under the Consumer Protection Act as the Saw machine in question was purchased for commercial purposes for earning profit.

-: Decision with reasons:-

Having regard to the facts of the case, contention, submission, and documents on both sides the Commission finds that the Saw machine was purchased in January, 2009 and it was on  proper use and service till 14/07/2012 as is evident from the service report on record. Thereafter the defect of the machine was brought to the notice of the O.P. Co who after proper inspection by the appointed engineers found that the machine was not at all in a good workable condition beyond repair and service with major components of the machine missing and this fact also finds support from the present status report dated: 22/12/2023 submitted before the Commission on 28/12/2023. The O.P. Co. in a good gesture of business courtesy offered to bring back the machine to the normal condition had sent email message to the Complainant on 13/05/2014 to comply with the offer by payment of Rs.1,10,300/- but the Complainant by reply email message on14/05/2014 agreed to the payment of 50% of the offer for the same but ultimately the Complainant withdrew the offer request by further email message dated: 14/07/2014.

Thereafter a series of email correspondences were exchanged between the parties which are on record with allegation and counter allegation but the fact remains that the machine in question has been lying in break down condition in the service centre of the O.P. Co. due to non co-operation of the Complainant.                                                                                                                                       

                                                                                                                                                                                       Contd…..p/3

Page: 3

It is therefore evident from the above mentioned facts on record that the Saw machine was found to be defective and not working since 14/07/2012 and during this long period the Complainant could not get the machine duly repaired and serviced for the reasons as stated above. The Complainant only maintained business relationship with the O.P. Co. by sending email messages and receiving reply email messages and finally by writing letter dated: 26/11/2022 to the O.P. authority concerned  for getting delivery of the machine in due time. Relying on such correspondence and treating the date thereof as cause of action the Complainant has filed the instant case on 13/01/2023.

U/S 34 (2)(c) of the Consumer  Protection Act, 2019 the Complaint shall be instituted within the local limits of whose jurisdiction the cause of action wholly or in part arises and Section 69 of the said Act prescribes the period of limitation of two years for filing the complaint case from the date on which the cause of action arose.  In this case the cause of action arose as long back as on 14/07/2012 when the Complainant for the first time brought to the notice of the O.P. Co. the fault of the machine with the request for proper service and repair. The Complainant  consumed about eleven years to resolve the issue but without any success and after such long period the Complainant awoke in the Year 2023 and preferred to lodge the instant complaint without caring for the prescribed period of limitation and filing any prayer for delay condonation.  The Complainant cannot renew or extend the cause of action in such way from time to time on his own volition and desire. The case is therefore hopelessly barred by limitation as it has been filed long after eleven years from the date of cause of action without preferring any prayer for condonation of delay.

Ld. Advocate for the O.P. Co. has further contended that the Complainant is not a consumer as he purchased the Saw machine for commercial purposes for earning profit. Mere averment in the written complaint to the effect that the machine in question is exclusively used for the purpose of earning livelihood by means of self-employment will not suffice if contrary is proved by the adverse party. The O.P. Co. has brought on record the huge business profile of the Complainant under the name and style of Netaji Industrial Works where total number of employees is shown to be 101 to 500 with annual turnover 2 to 5 Crore rupees. So the nature and volume of business the Complainant has been carrying on cannot be said to be self-employment for earning livelihood other than commercial purposes for generating profit.                                                                                               

                                                                                                                                                                                       Contd…..p/4

Page: 4

The Complainant is not a consumer in view of the definition of consumer provided in Section 2(7) of the Consumer Protection Act, 2019 the Complainant is not a consumer and as such the case is not maintainable against the O.P.s

Before parting with the order the Commission likes to place on record that at the time of hearing Ld. Advocate on both sides in their usual fairness made their respective efforts to resolve the long pending issue but could not come to any settlement and both parties left the matter to the discretion of the Commission. In the greater interest of justice the Commission is of the view that the dispute be placed before both the parties for further amicable settlement after finding out a workable solution for restoration of the normal condition of the Saw machine in question if technically possible with mutual consent and approval of the parties. If no amicable settlement comes out the O.P. Co. is at liberty to dispose of the condemn Saw machine in consultation with the Complainant and hand over the sell proceeds / Scrap value as the case may be to the Complainant within the shortest possible time.

Hence it is ordered…….

That the case be and the same is dismissed on contest but without cost on the law points in the light of the observations made above.

Both parties be supplied copy of this Order free of cost.

 

  __________________                          ________________                     ________________     

 HON’BLE   PRESIDENT               HON’BLE    MEMBER             HON’BLE    MEMBER