State Consumer Disputes Redressal Commission
M/S. Yash Engineers, Aurangabad, vs Klr Industries Ltd., on 7 January, 2013
1 C.C.No.: 7-11
MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL
COMMISSION, MUMBAI, CIRCUIT BENCH AT AURANGABAD
Date of filing: 20.04.2011
Date of Order: 07.01.2012
COMPLAINT CASE NO.: 07 OF 2011
M/s. Yash Engineers, Aurangabad,
Through Proprietor Mr. Laxmikant Manohar Kapsikar,
Having office at, Laxmi Nivas,
73, Jai Vishwabharti Colony, Aurangabad. ...Complainant
-Versus-
KLR Industries Ltd.,
Survey No. 222/1,
Cherlapally Road,Ecil Post,
Hyderabad-500 062 A.P. India. ...Opposite Party
... Respondent
Coram : Mr. B. A. Shaikh, Hon'ble Presiding Judicial Member
Mr. K. B. Gawali, Hon'ble Member Present: Adv. Shri. A. S. Bangar who appeared for complainant.
Adv. Shri. G. N. Reddy, for opposite party.
- :: ORAL ORDER ::-
Per Mr. B. A. Shaikh, Hon'ble Presiding Judicial Member
1. This is a complaint made by M/s. Yash Engineers Firms Aurangabad through its Proprietor against KLR Industries Limited. The allegations made in the complaint in brief are that, the complainant is a proprietory firm of Consulting Engineers and Contractors. It is registered with Government of Maharashtra in Class-I (A). It is capable of undertaking works costing more than Rs.25 crores without limit. The financial turnover of the firm during the years 2007-08, 2008-09, 2009-10 and 2010-11 was respectively Rs.10.98 crores, 10.99 crores, 14.25 crores and 16.41 crores. The complainant has established good reputation. The several construction works and consultancy work are undertaken by the complainant on contract, wherein complainant was required to do underground investigation by doing drilling in the rock. Therefore for that for doing drilling in the rock, the complainant placed an order with the opposite 2 C.C.No.: 7-11 party namely KRL Industries Limited for supply of Drilling Rig Equipment costing Rs.28,00,000/-. Mr. Nayar, the General Manager and Mr. R. Narendar, Asst. General Manager of the opposite party had assured the complainant that, their industry will depute expert operator and the engineers along with the said machine to the work site for a period of 1 to 2 months and they will impart training to the operators of the complainant. The deal was settled. The complainant paid in advance Rs. 5,00,000/- to the opposite party vide D.D. dated 11.08.2008. The opposite party gave proforma invoice dated 12.08.2008 amounting to Rs.17,97,309/- for the machine (CDR-50M) and another proforma invoice dated 12.08.2008, amounting to Rs.10,61,193/- for Accessories. On the basis of the said proforma invoices the complainant issued two purchase orders dated 27.08.2008. The complainant also paid to the opposite party Rs.3,00,000/-
vide D.D. dated 28.08.2008 and Rs.20,58,502/- vide RTGS dated 19.11.2008. However, the cost of the machine and accessories actually supplied was Rs.26,52,647/- only. An amount of Rs. 2,05,855/- is still due from the opposite party since 19.11.2008. After taking delivery of the Drilling Rig on 19.08.2008 at Hyderabad, it was taken to the site of complainant at village Waghala, near Umri in Nanded district on 20.11.2008. The opposite party deputed Mr. Vyankatesh Reddy who made strenuous efforts for two days i.e. on 23.11.2008 and 24.11.2008 to commission the drilling equipment. But he was not able to do so. This position was informed by the complainant to the opposite party vide letter dated 24.11.2008 sent by E-mail and fax. The opposite party gave no response. Thereafter, the complainant sent another letter dated 26.11.2008 by e-mail and fax to the opposite party. The third letter was sent on 05.12.2008 by complainant to the opposite party. Lastly the opposite party gave reply dated 08.12.2008 to the complainant and thereby informed that the machine has been commissioned and drilling work has been done upto 32 meters depth. The complainant gave reply to the said opposite party and communicated to it that the Rig machine should be capable of Drilling upto 50 meters depth and that Mr. Hanuman had come to work site from Bengalore on 08.12.2008 and he inspected equipment and promised that he will arrange to replace unserviceable parts with good quality part within 4 to 5 days. The opposite party gave reply dated 31.12.2008 to the 3 C.C.No.: 7-11 complainant stating that Mr. Hanuman is not their employee but he was recommended by their supplier of core Accessories. The complainant gave reply dated 07.01.2009 to the opposite party and brought to its notice that it is its inescapable responsibility regarding defective equipment supplied by it. On 16.12.2008 the complainant again sent one letter to opposite party regarding commissioning of the equipment, and in that letter all other pending issues were brought to the notice of the opposite party. The complainant then vide letter dated 29.12.2008 written to opposite party, reiterated the necessity of giving trial of the Rig equipment. The opposite party gave reply dated 31.12.2008 stating that it had already sent one dealer to work site. However said dealer Mr. Govindrao had come from Umri side on 30.12.2008 at evening and he had tried to drilling work on 31.12.2008 till evening. But drilling work was not done for a single feet. On 01.01.2009 after making strenuous efforts he was able to do the drilling work about three meter depth. It was reported by the complainant vide letter dated 07.01.2009 to the opposite party. Then the opposite party on 22.01.2009 wrote a letter to the complainant informing that it will depute one more dealer along with the service engineer to the work site to administer the 50 meters drilling performance. Thus the equipment was found to be defective and incapable of drilling upto 50 meters depth. The complainant sustained loss due to delay in performing the job within time limit. The complainant also purchased essential accessories for Rs.2,56,292/-. The complainant had procured drilling machines of other company for doing the urgent jobs. On 03.02.2009 the water pump of the machine has stopped functioning, which resulted into stoppage of drilling work. This position was also brought to the notice of the opposite party vide letter dated 03.02.2009. Therefore there is deficiency in service provided by opposite party to the complainant. The complainant therefore prayed that the direction may be given to the opposite party to take back the drilling Rig CDR-50M machine and the accessories supplied by it and to refund to it an amount of Rs.28,58,502/- received by opposite party towards cost of the said drilling machine and accessories. It further prayed that direction may be given to the opposite party to pay to it (complainant) interest @ 18 % p.a. over the aforesaid amount from the date of receipt of the said amount till its realization. It also 4 C.C.No.: 7-11 requested that the opposite party may be directed to pay to it Rs.10,00,000/- as compensation towards loss suffered by the complainant due to improper functioning of the equipment supplied by opposite party and it may be also directed to pay an amount of Rs. 10,00,000/- towards mental agony.
2. The opposite party filed the written version and thereby denied the claim. It has not disputed that the complainant purchased the drilling machine and the accessories from it as stated in the complaint. It is the case of the opposite party in brief that the non-drilling of the machine below 32 meters depth is not under performance. The drilling depth was not due to faulty design of core barrel. The depth of drilling would depend upon ground formation. At the work site of the complainant, ground formation was not suitable. It is denied that it supplied unserviceable parts. It submitted that there were no defective parts to be replaced. It has rendered best service and demos to the complainant as and when required. It supplied prefect and well conditioned drilling machine to the complainant without defects. The complainant made false allegations in all the letters with a view to create ground and to file a false complaint. The opposite party to maintain good relations got rectified short falls, servicing and extended service to enhance drilling depth upto 50 meters as informed in letter dated 22.01.2009. It also submitted that the complainant does not fall within the definition of Consumer, as it purchased drilling machine for commercial purpose. It therefore submitted that complaint may be dismissed.
3. The complainant filed evidence affidavit of Laxmikant Kapsikar and rejoinder. The complainant also produced the copies of letter correspondence in between it and opposite party. It also produced copies of purchase order, invoice-cum-delivery challan and other documents relating to the said drilling machine. It also produced copy of the legal notice served by toto opposite party and reply given by the opposite party to it. The opposite party has not filed affidavit by way of evidence in support of his defense though opportunity of the same was given to it by this Commission.
5 C.C.No.: 7-114. The complainant was fixed for final hearing on 06.12.2012. On that date we heard Adv. Shri. A. S. Bangar who appeared for complainant. None appeared for opposite party on 06.12.2012 for final hearing. The complainant was then reserved for judgment and order till this date.
5. We have perused all the papers placed before us in this complaint. Following issues arise for our consideration. We give our finding against them for the reasons given there under:
Sr.No. Issues Findings
i) Whether the complainant has proved that No.
it is a Consumer as defined under section 2
(1)(d) of Consumer Protection Act ?
ii) What order? -- As per final order.
REASONS:
Adv. Shri. A. S. Bangar submitted that Mr. Laxmikant Manohar Kapsikar through whom the complaint is filed for M/s. Yash Engineers Firm is the sole proprietor and that from affidavit of the said Laxmikant and the documents produced on record, it is proved that the machine supplied by the opposite party was for drilling upto 50 meters depth but it could do drilling upto 30 meters only. He further submitted that, from the documents produced on record, it is proved that the defective drilling machine was supplied by the opposite party to the complainant and in spite of repeated request made by the complainant; the said defects were not rectified.
6. The opposite party in its written version has raised a main contention that the complainant does not fall within the purview of the definition of consumer given under the Consumer Protection Act. It is not disputed that the complaint before this Commission under Consumer Protection Act is tenable only when the complainant falls within the ambit of definition of consumer given under section 2 (1) (d) of the Consumer Protection Act. The said Sec. 2 (1) (d) of C. P. Act is very specific. It inter alia provides that the person who byes goods for consideration or who hires or avail services for consideration, for any 6 C.C.No.: 7-11 commercial purpose is not a consumer. The explanation appended to the said section has also made it clear that, the commercial purpose does not include use of person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self-employment.
7. In the instant case, admittedly the complainant is a proprietary firm of Consulting Engineers and Contractors. No doubt complaint is filed by the said firm in the name as M/s. Yash Engineers Aurangabad through the proprietor Mr. Laxmikant Manohar Kapsikar. However it is to be pleaded and proved by the complainant that the drilling machine was not purchased purely for commercial purpose and the service of opposite party was not availed purely for commercial purpose but excessively for the purpose of earning livelihood of somebody by means of self-employment.
8. However, on careful perusal of the complaint it is found that there is no pleading that the drilling machine was bought and services of the opposite party were availed excessively for the purpose of earning livelihood of Mr. Laxmikant Manohar Kapsikar or of any other person by means of self-employment. Said Laxmikant Manohar Kapsikar in his affidavit filed by way of evidence has also not stated anything so as to prove that he had bought the drilling machine and availed services of the opposite party for earning his livelihood by means of self- employment. Therefore we find that in the absence of any such material and pleading and evidence it can not be presumed that the complainant falls within the definition of consumer given u/s. 2 (1) (d) of C. P. Act and discussed above.
9. On the contrary, the careful perusal of the complaint shows that the complainant is a proprietory firm of consulting Engineers and Contractors. Its yearly financial turnover for the four years from the year 2007-08, 2008-09, 2009- 10 and 2010-11 was respectively Rs. 10,98 crores, 10.99 crores, 14.25 crores and 16.41 crores. The complainant purchased the drilling machine form the opposite party for the underground investigation by drilling in the rock, to perform several construction works and consultancy was undertaken by it on the contract. The cost of the said machine and accessories is Rs. 28,58,502/-. The 7 C.C.No.: 7-11 complaint also shows that the complainant suffered loss of Rs. 10,00,000/- due to improper functioning of the said machine supplied to it by the opposite party.
10. Thus considering the huge cost of the said machine, huge loss of Rs. 10,00,000/- sustained by the complainant due to improper function of the machine and considering the aforesaid yearly huge financial turnover of the complainant, we find that the complainant purchased the drilling machine only for earning huge profit by operating it. From the facts and circumstances of the present case discussed above we find that the complainant purchased the drilling machine purely for commercial purpose. Therefore we hold that the complainant does not fall within the ambit of the definition of consumer given under section 2 (1) (d) of the Consumer Protection Act, 1986 and consequently the issue No.1 is decided in negative.
11. We have given our finding on issue No.1 that complainant is not a consumer as defined under section 2 (1) (d) of C. P. Act. Therefore the complaint is not maintainable before this Commission. Hence without going into other issues involved in the present complaint it deserve to be dismissed. Hence following order is passed.
O R D E R
1. The complaint bearing C.C. No.07/2011 is hereby dismissed.
2. Both the parties shall bear their own cost.
3. Copies of the judgment and order be furnished to the parties.
(K. B. Gawali) (B. A. Shaikh)
Member Presiding Judicial Member
Kalyankar