National Consumer Disputes Redressal
M/S. Indo Plast Industries & Anr. vs M/S. Engel India Machines & Tools (1987) ... on 26 November, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 199 OF 2010 (Against the Order dated 27/05/2010 in Complaint No. 47/1997 of the State Commission Orissa) 1. M/S. INDO PLAST INDUSTRIES & ANR. D-2/3, Mancheswar Industrial Estate, P.O/P.S Mancheswar, Bhubaneswar Khurda Orissa 2. MR.SANTOSH KUMAR PATTNAIK D-2/3 Mancheswar Industrial Estate, P.O/P.S Mancheswar,Bhubaneswar Khurda Orissa ...........Appellant(s) Versus 1. M/S. ENGEL INDIA MACHINES & TOOLS (1987) LTD. Represented Through Managing Director, Taratalla Road, P.O Kolkata West Bengal ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HON'BLE MR. PREM NARAIN, MEMBER For the Appellant : Mr. Shakti K. Pattanaik, Advocate with Mr. S.C. Mohanty, Advocate For the Respondent : Mr. Samul Roy Chaudhary, Advocate with Ms. Shipra Ghosh & Mr. S. Gangopadhyaya Advocates Dated : 26 Nov 2015 ORDER
1. This appeal has been filed by M/s. Indo Plast Industries and Anr. against the order dated 27.05.2010 of the Orissa, State Consumer Disputes Redressal Commission, (in short, 'the State Commission') wherein the complaint filed by the appellant has been dismissed.
2. The appellants' case is that they were registered as SSI unit in Orissa vide No.15/11/01859/PMT/SSI and they purchased automatic injection moulding machine through respondent-M/s. Engel India Machines & Tools Ltd. The machine started giving trouble in the year 1996 and the respondents were contacted to repair the machine. The respondent company sent their service engineer and on his advice, the damaged part of the machine was sent to the respondents' office for repairs. After repairs, when it was again fitted into the main machine, it did not work satisfactorily. After that respondents were again contacted, but they insisted on payment first and did not send their engineer for repairs. The appellant/complainant filed a consumer complaint and claimed a sum of Rs.7,16,744.47 towards the loss sustained by it, and towards the loss of goodwill, claim was made to the tune of Rs.1,00,000/-. The Consumer Complaint was decided ex parte on 14.11.2007 by the State commission and the Commission had assessed the loss sustained by the complainant at Rs.5,00,000/- on consolidated basis and had directed the opposite party to pay the said amount to the complainant by 31.12.2007, failing which the amount was to carry interest at the rate of 9% per annum from June, 1996.
3. First Appeal No.136 of 2009 was preferred before the National Commission by the opposite party-Engel India Machineries & Tools Ltd. assailing the ex parte order dated 14.11.2007 passed by the State Commission. National Commission vide its order dated 22.10.2009 remanded the case to the State Commission for rehearing and deciding it afresh. The State Commission has now dismissed the consumer complaint vide its order dated 27.5.2010. Present appeal has been filed against this order of the State Commission.
4. We heard the learned counsels for both the parties and perused records carefully.
5. Learned counsel for the appellants argued that the appellants come under the definition of consumer because the appellant no.2 was running the SSI unit in the name of appellant no.1 to earn his livelihood. Learned counsel also argued that due to deficiency in service from the respondent company the appellants have suffered big loss as they could not fulfil the contract from the State Government. The State Commission has not considered the loss suffered by the complainant.
6. The learned counsel for the respondent argued that the complaint was filed after about 17 years from the date of purchase of the machine. The machine has satisfactorily run for about 16 years and there was no warranty clause which would mandate the repairs by the respondent company. The cheques given by the appellants were also bounced back and no money has been paid by the appellants to the respondent company so far. The appellants are running industrial unit employing many persons and it is totally a commercial activity and it definitely does not come under self-employment. The respondent company is under no obligation to repair the machine and appellants are free to get it repaired from anywhere else. State Commission has rightly decided that the appellants are not a consumer under the Consumer Protection Act, 1986 and that their complaint was totally frivolous. The learned counsel also drew our attention towards para 7 and para 8 of the order of the State Commission which are reproduced below:
"Para 7. From the letters annexed by the complainants, we come to find that the opposite party, as an undertaking of the Government of West Bengal, could not oblige them without payment of their legitimate dues. The complainants, after sending the cheques and assuring the opposite party that there would be no trouble in the drawl of the amount/clearance of the cheques, have replied to the notice under section 138 b of the Negotiable Instruments Act that without discharging their part of the contract, they could not draw the amount. Such an evasive reply to the legal notice and the annexure to the said reply showing the imaginary loss sustained speaks a lot about the conduct of the complainants. In our view, the complainants have not come with a clean hand and the aforesaid reply to the legal notice cautioning them to fact legal consequence if the outstanding amount was not paid has inspired the complainants to file the consumer complaint subsequently, which is nothing but a counter-blast to the legal notice.
Para 8. It was argued by the learned counsel for the opposite party that the complainants do not come within the definition of consumer under the Consumer Protection Act as the complaint was filed in the year 1997 and the complainants had purchased the machine to set up their industry for production of moulded plastic articles for marketing them. Besides, we have also given a careful reading to the complaint petition. Nowhere in the complaint petition has it been stated that the complainants had purchased the machine and set up the industry for earning their livelihood. We have also, on a reading of the pleadings of the parties and after hearing the learned counsel for both parties, found that the complainants have cunningly nowhere mentioned in the complaint petition about the age of the machinery they had purchased from the opposite party and the length of period it had run when it broke down. However, it is not the case of either of the parties that there was any period of warranty for repair of the machinery free of cost."
7. We have considered the arguments advanced by both the parties. It is undisputed that the machine was purchased in the year 1980 and it worked satisfactory for 16 years before giving trouble in 1996. There was no warranty clause applicable in the year 1996. It is also clear that the appellant no 1 is an industry and the machine was purchased for commercial/industrial use. The appellants have not been able to prove that this industry is by way of self-employment. Thus, appellants do not come under the definition of the 'consumer' as given in the Consumer Protection Act, 1986. Apart from this, as the cheque issued by the appellants have bounced back and no payment has been made to the respondent company, there is no consideration amount in this case and hence, deficiency in service cannot be claimed as it becomes a service without consideration.
8. Based on the above discussions, we are of the opinion that the appellants are not a consumer under the Consumer Protection Act, 1986 and no case is made out for interfering with the order of the State Commission. Accordingly, the appeal is dismissed with cost of Rs.5,000/- (Rupees Five Thousand) only. Cost be deposited by way of demand draft in the name of 'Consumer Legal Aid Account' of this Commission, within four weeks.
9. List for compliance on 08.01.2016 at 2:00 pm. ......................J V.B. GUPTA PRESIDING MEMBER ...................... PREM NARAIN MEMBER