State Consumer Disputes Redressal Commission
Jagdish Singh vs Swastik Enterprises & Anr. on 2 June, 2016
Daily Order IN THE STATE COMMISSION : DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Arguments: 02/06/2016 Date of Decision: 01/07/2016 Complaint Case No.11/235 In the matter of: Shri Jagdish Singh R/o. S-331, Greater Kailash-II, New Delhi-110048. Also at Village Galana-Belgi,P.O. Upron, Tehsil Pachhad, District Sirmaur, Himachal Pardesh. .............Complainant Versus M/s. Swastik Enterprises, R-240 Vani Vihar, Uttam Nagar, New Delhi-110059. M/s. Motherson Zanotti, R/o. A-79, Sector-2, Noida-201301 Gautam Budh Nagar, U.P. India ....Opposite Party CORAM O.P. Gupta, Member (Judicial) 1. Whether reporters of local newspaper be allowed to see the judgment? Yes 2. To be referred to the reporter or not? Yes JUDGMENT
The case of the complaint is that respondent no.1 is sale partner of respondent no.2, respondent no.1 is dealer in cooling and refrigerating equipment. Respondent no.2 is designers, manufacturers and after sales service providers of the cold store/ room and the refrigerating unit installed at the premises of the complainant. Complainant is self employed farmer/ cultivator whose only source of livelihood is farming of a special variety of lilium flowers and lilium bulbs. He placed an order on the respondents which included designing and setting up of cold storage rooms and refrigeration equipment of specific description as stated in letter 2.2.10. He required cold store facility to preserve three 20 ft container loads of lilium bulbs which was to be planted over a period of 7-8 months at minus 2 decree Celsius. Designing was to be done by respondents. As per requirement the cold room was divided into two separate compartments, smaller compartments was sized for one container load of lilium bulbs and larger compartment has capacity to store two 20 ft container loads of said bulbs. Respondent no.1 & 2 into offered to provide "Motherson Zanotti" coldroom for storage of frozen and fresh products vide their revised final offer letter dated 31.10.09 in which they categorically stated that they would design cold room, install machinery and provide after sales service to the complainant and the said revised letter is Annexure A to the complaint. The complainant stated that his requirement was for Cubic Zanotti Italy make Aluminium Sheeted Evaporators but as designing was to be done by respondent, the complaint on their advice decided to go ahead with Zanotti Slimline Evap as suggested by the respondents. The complainant purchase the equipment vide invoice dated 13.3.10 and warranty was to last 12 months from the date of same being operationalised. Respondent no.1 on the guidance of the respondent no.2. Somehow completed the installation of the cold storage room. The complainant immediately transferred recently arrived container load of the said variety of lilium bulbs worth Rs.16,00,000/- to the smaller compartment. The complainant noticed that in few days bulbs have already started rotting. A closer observation of the goods in question revealed that there were major irregularities in the manufacturing, designing and installation of the equipment. The equipment could not maintain desired level of temperature i.e. minus 2 degree temperature (-20c). There were considerable faults committed by the respondents in the erection and installation of cold room which was causing temperature in the room to exceed well beyond required temperature of minus 2 degree centigrade which caused huge monetary loss to the complainant.
The complainant brought the matter to the notice of both the respondents vide telephonic call and email messages dated 2.4.10. The respondent sent engineers to correct with the defects but the engineers were not equipped to deal with the problem at hand and showed total disregard to the interest of the complainant. One of the engineer Mr. Ajay was without his tool kit. Due to poor after sales service and due to inability and incompetence to rectify the problems the whole consignment of bulbs had sprouted and rotted causing huge loss to the complainant. After lot of pursuing done by the complainant the respondent sent another engineer who reinstalled the refrigeration equipment. Even then the unit could not maintain the required temperature of 20C and that too when the environment temperature was 320C whereas said machinery was installed to maintain minus 2 degree centigrade at a much higher environment temperature of 430C. The service engineer of the respondents transferred the goods to larger room which could not maintain the required temperature of minus 20C, thereafter the engineer admitted that there was a fault in the design and manufacturing of the cold room. Due to the faulty designing, manufacturing and poor after sales service the complainant suffered huge losses as whole consignment of bulbs had sprouted and got damaged. The respondent has not included even the defrosting equipment which was must for maintaining temperature below zero degree Celsius. Respondents showed not only utter disregard to the complainant's request but also avoided to visit the site resulting in huge losses to the complainant. Instead of taking corrective action, respondent tried to put blame on the complainant by raising false and frivolous issues. The respondent sent email dated 7.4.10 copy of the same is annexed as Annexure F for ready reference to which the complainant replied vide his email dated 9.4.10 Annexure G. Vide mail dated 12.5.10 the respondent tried to falsely claim that the temperature was maintained at certain intervals.
During the meeting on 27.5.10 Mr. Vinay Mehta of respondent no.1 shri Amit Makker of respondent no.2 admitted that their design engineer has committed mistake while designing the cold room and that is the reason why system were unable to maintain the required temperature. They assured that they will get the system redesigned and the refrigeration machinery as per improved and corrected design would be supplied to the complainant at the same cost as initially agreed. The respondent redesigned the facility and offered refrigeration machinery but to the utter surprise of the complainant, respondent vide their email dated 1.6.10 asked the complaint to once again pay the refrigeration unit describing this as a difference between costs of new and earlier installed refrigeration units. The complainants vide his email dated 2.6.10 questioned legitimacy of the respondent towards him to once again pay for which he has already paid. The respondent vide mail dated 23.6.10 wrongly tried to put blame of wrong design on the complainant claiming that defect and designing happen due to inputs provided by the complainant. The complainant controverted the same On the basis of assurance of respondent that existing defects in the equipment would be rectified in short period, complainant ordered dispatch of another assignment of lilium bulb worth Rs.16,00,000/- from Holland but due to negligent acts of the respondents, the complainant's new consignment also got damaged and rotted. Mr. Deepak Wadhawan working with respondent no.2 and responsible for the design of this cold storage facility admitted vide email dated 21.8.10 that current equipment design was faulty but tried to blame the complainant for the same. He mentioned male dated 21.8.10 that complainant did not opt for cubic machine whereas same person vide his earlier quote dated 1.11.09 offered for slim line product highlighting its advantages over the cubic machine. Hence this complaint for compensation of Rs.42,00,000/- break up of which is mentioned in para no.21 of the complaint. It is Rs.6,20,663/- towards cost of machinery Rs.55,000/- for commissioning cost, Rs.31,00,000/- towards loss cost of complainant on account of rotting and sprouting of lilium bulbs and Rs.1,90,000/- towards cooling expenses incurred in Holland and it could not be brought to warehouse of complainant as machines supplied by respondent were not working,Rs.57,000/- for cost of hiring a cold store in Chandigarh as the same could not be brought to the warehouse of the complainant as the machines supplied by respondent were not working. The total comes to Rs.39,65,663/-The complainant has also prayed interest @18% per annum from inception till realization.
Both the respondents filed common written statement with preliminary objection that complaint is devoid of any merit, highly vexatious and unsustainable. Complaint has concealed material facts and has not come with clean hand. Correct name of respondent no.1 is Motherson Zenotti Refrigetarors Ltd and not Motehrson Zenotti only. The machine purchased by the complainant was of Rs.6,20,663/- but complainant has claimed compensation to the tune of Rs.42,00,000/- . The complainant has earlier filed complaint no.72 of 2011 prior to filing of the present complaint which was withdrawn with liberty to the complainant to file fresh complaint within a fortnight but the present complaint has not been filed within stipulated time given in order dated 8.7.11. The respondent admitted that complainant placed order with the respondent for making cold room and install refrigerator system. Later on the complainant modified his order and wanted to install another machine in one small room to increase the capacity. The machine supplied were checked by the complainant prior to placing of the order. The order was again modified by the complainant and container size was increased to be 3600 ft from 2400 ft . The respondent sold and installed what were agreed, it was specifically clarified that complainant would have to run both the machine and could switch of one machine depending upon minimal load condition to save electricity as those machine were to run independently. Electricity consumption with regard to refrigerator system was also clarified. Clause 9 of the offer letter provides limitation of liability. The said clause state that in no event respondent would will liable for any consequential loss or damage arising out of or connected with said order in any way what-so-ever. Copy of offer letter date 31.10.09 is annexure R-2. The respondents were willing to increase capacity/ replace machine on reasonable charges on mutual agreement because of good will gesture and relationship with the complainant. The respondent had clearly mentioned that they were providing two machines to maintain temperature of minus 2 degree centigrade, the power consumption of machine model and MZ 4.3 MT which was installed by respondent was 1.8 kw each. Total three machine were installed and consumption was 5.4 kw. The complainant used to mix refrigeration capacity i.e. 4.39 kw with power consumed i.e. 1.8. kw. The site of the complainant is situated at Belgi village in Sirmaur, HP which is very remote area and takes too much time to reach there. Transportation of goods also take substantial time and sometimes there is restriction on transportation. Cold room was needed to be in shed. However, there were no shed over the cold room, PUF panels and refrigeration machine. It were specifically described that leveling of good shed over the cold room, condense stand for refrigeration out door unit, drain point near cold room, stabilize, supply, electricity supply with MCB near condensing unit were to be done by the complainant. Complainant failed to perform his part of duty towards cold room and whatever problem occurred with the cold room, was due to non fulfillment of work by the complainant. There was voltage fluctuation and it was directed to complainant to install transformers to rectify on both main and gen set supply. The incoming temperature of this product used to become out of range. It was found at site by the respondent that there was no fuel for the generator to run for the back up. All the units of cold room were running on three phase power supply and at time of fluctuation in the voltage, the compressor of the machine get tripped and it was informed by the complainant himself to the respondent that when they tried to run machine on generator, the earthline of the generator was also not good. Due to fluctuation, the compressor combed of and said compressor is not covered under warranty and replacement is chargeable. However the same were replaced free of cost by the respondent. There was no change over switch installed by complainant which was required to run the generator set immediately in case of failure of power supply.
The PUF panels being open from all the side became jumping and playing area for monkeys and they shook copper piping and knobs as well as causing gas leakage. The complainant was using machine manufactured by local company namely Mongia & company, Chandigarh, Complainant was not supposed to use local made machines as the same were not reliable . They caused damaged to the machinery supplied by respondent no.1.
The complainant filed rejoinder. The complainant filed his own affidavit in evidence refrigerating the stand taken by him in the complaint.
On the other hand the respondent no.1 filed affidavit of Shri Vinay Mehta, Prop. OP-2 filed affidavit of Shri Anil Kalra, AR. Both the parties have filed written arguments.
I have gone through the material and heard the argument. It is admitted that complaint purchased machine from the respondents and temperature required to be maintained was minus 2 degree Celsius. It also stand admitted from the version of the respondent that machine did not work properly and the complainant suffered loss.
The only question to be decided is as to due to whose fault the machine did not work properly.
The respondents have cleverly tried to shift the blame on the complainant by contending that complainant did not have a shed over the machinery, complainant did not carry out the work mentioned in para 17 of the written statement. No prudent person would take the risk of suffering such a heavy loss just for want of shed.
One of the defense taken by the respondent is that due to fluctuation the compressor coubed and compression was not under warranty. It is strange defence. Fluctuation in voltage is a common feature. The respondent must have taken care to provide for stabilizing the fluctuation. Compressor is part and parcel of the machine and it does not appeal to reasoning to say that the compressor was not covered under warranty.
Third plea taken by the respondent is that complainant used local made machine which caused damage to the machine supplied by respondent no.1. Again the defense is shaky. It does not mention as to which machine the complainant was supposed to use, if not local machine. were machine required to be imported and if so from where? All this remains mystery. The respondents have not disclosed the brand name of the machine which were to be used by the complainant.
The plea of the respondent that site of the complainant is situated at Belgi Village in Sirmaur in HP which is a very remote area and takes too much time to reach there is nothing but an effort to save their own skin. Remoteness of the area was known to be respondent before taking the order and before supplying the machine. They must have contemplated how much time is to take in reaching there. This is no defense at all.
Plea of there being no fuel in generator to run for back up is again an half hearted attempt to defeat the claim of the complainant.
Respondents have also tried to plead that clause 9 of the offer letter provides limitation of the liability. The said clause states that in no event the respondent would be liable for any consequential loss or damage arising out of or connected with said order in any way what-so-ever. Such a clause is opposed to public policy and is one sided. It is unfair trade practice to incorporate such a clause in the agreement. To say that if the machine is defective and cause loss due to said defect, the supplier of the machine would not be liable is meaningless. Loss to the goods is consequential to defect in goods and the supplier has to bear the same. It is only the supplier of the machine who and who alone should bear the loss of defect of goods.
The other minor defense taken is that complainant withdrew previous complaint with liberty to file fresh complaint within fortnight but complainant has not filed fresh complaint within stipulated time in order dated 8.7.11 The period of fortnight expired on 22.7.11 and the present complaint has been filed on 2.8.11. There is not much delay in filing the complaint. It appears that respondents have taken the date of filing complainant as 4.11.11 instead of 2.11.11. In fact the rubber stamp affixed by the commission on the first page of the complainant shows that complaint was filed on 2.8.11 and giving of date of hearing as 4.11.11.
Even otherwise the present complaint is within a period of limitation of two years from the purchase of machine.
The respondents have tried to plead that complete name of respondent no.2 is Motherson Zenotti Refrigeration System Ltd. whereas complainant has impleaded Motherson Zenotti only. No prejudice has been caused to the respondent by incomplete description of respondent no.2.
From the material on record I find that the machine supplied by the OP were defective, the same is deficiency on the part of OP. The complainant suffered loss. As regard quantum of loss it may be observed that complainant should not have rushed for placing order of second consignment worth Rs.16,00,000/- as mentioned in para 14 of the complaint, when the earlier consignment had damaged and the complainant came to know about the defect of the machine. Thus, complainant is not justified in seeking claim towards the second consignment. Rest of the claim is in order.
The respondents are directed to pay Rs.23,65,663/- with interest @12% p.a. from the date of payment till the date of realization. The respondents are also directed to pay a sum of Rs.2,00,000/- towards compensation on account of harassment and mental agony caused to him.
Copy of this order be sent to both the parties free of cost.
(O.P.GUPTA) MEMBER (JUDICIAL)