State Consumer Disputes Redressal Commission
M/S Indo Plast Industries & Other ... vs M/S Engel India Machines & Tools (1987) ... on 14 November, 2007
STATE CONSUMER DISPUTES REDRESSAL COMMISSION:ORISSA:CUTTACK STATE CONSUMER DISPUTES REDRESSAL COMMISSION: ORISSA: CUTTACK CONSUMER COMPLAINT CASE NO.47 OF 1997 1. M/s Indo Plast Industries represented through Proprietor Mr. Santosh Kumar Pattnaik, D-2/3 Mancheswar Industrial Estate, P.O./P.S. Mancheswar, Bhubaneswar, Dist. Khurda 2. Mr. Santosh Kumar Pattnaik, D-2/3 Mancheswar Industrial Estate, P.O./P.S. Mancheswar, Bhubaneswar, Dist. Khurda ... Complainants Versus M/s Engel India Machines & Tools (1987) Ltd., represented Through Managing Director, 1, Taratalla Road, P.O. Caalcutta-700 088, Dist. Calcutta ( West Bengal) ... Opposite Party For Complainants - Mr. S.C. Mohanty & Associates For Opp. Parties - Mr. S. Goyanka P R E S E N T : THE HONBLE SHRI JUSTICE A.K. SAMANTARAY, PRESIDENT AND SHRIMATI SMARITA MOHANTY, MEMBER O R D E R
DATE:- The 14 May, 2010.
Justice A.K. Samantaray, President.
This complaint has come on remand from the Honble National Commission, New Delhi. The following order was passed by the Honble National Commission:-
In the result, the appeal is partly allowed, the impugned order is hereby set aside and the complaint is remanded to the State Commission for deciding it afresh after affording one opportunity to the appellant/opposite party to file its written version to the complaint. This would be subject to payment of cost of Rs.15,000/- by the appellant to the complainant. The First Appeal stands disposed of accordingly. Parties are directed to appear before the State Commission on 26.11.2009 to seek further directions in the matter. Since the complaint pertains to the year 1999 and remained pending with the State Commission for about ten years, we request the State Commission to decide the complaint afresh within a period of six months.
2. First Appeal No.136 of 2009 was preferred by the opposite party-Engel India Machineries & Tools Ltd. assailing the ex parte order dated 14.11.2007 passed by this Commission. The consumer complaint was decided ex parte on 14.11.2007 by this Commission and this 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. The complainant had, however, 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/-. Since the order passed by the Commission was an ex parte one and was challenged in First Appeal by the opposite party before the Honble National Commission, the Honble National Commission, while allowing the First Appeal and setting aside the impugned judgment, directed the parties to appear before this Commission on 26.11.2009 to seek further direction in the matter. Since the complaint pertain to the year 1999 and has suffered long pendency of about 10 years, the Honble National Commission requested this Commission to decide the complaint afr4esh within a period of six months. This is how the matter has come before us for fresh adjudication.
3. The complaint was filed by the complainant M/s Indo Plast Industries represented through Proprietor Santosh Kumar Patnaik and Mr. Santosh Kumar Patnaik, the proprietor of Indo Plast Industries, Industrial Estate, Mancheswar, Bhubaneswar. The sum and substance of the allegations of the complainants is that the opposite party did not take any effective steps for repair and resetting of the toggle set and due to their negligence/deficiency in providing service, they suffered heavy pecuniary loss amounting to Rs.7,16,744.47. The case of the complainants is that the opposite party is a Government of West Bengal undertaking, which had supplied an automatic injection moulding machine (toggle set) for being used in their factory. While in operation, there was a breakdown of the toggle set. The complainants contacted the opposite party for its repair/reconditioning and the opposite party deputed a service engineer to visit the factory premise. The service engineer dismantled the toggle set on 25.06.1996 and noticed the following problems:-
(i) Circuit pressure 50 Kg/CM2
(ii) Toggle was giving tremendous sound during opening.
(iii) Back plate for the male point of the Mould was faulty.
(iv) Few electrical problems.
The service engineer advised the complainants to send the toggle set to Calcutta for repair. The complainants paid Rs.3,000/- as service charges and first class train fare to the service engineer from Calcutta to Bhubaneswar. The service engineer assured that the repair would be over within two months after arrival of the toggle set at Calcutta. On 17.06.1996, the toggle set reached the opposite party. In letter dated 21.06.1996 (Annexure-5), the opposite party informed that an advance of Rs.20,000/- was necessary to be paid by the complainants for complete reconditioning of the machine. The complainants sent a draft for Rs.14,000/- drawn on Allahabad Bank, Calcutta, which was acknowledged by the opposite party vide receipt dated 26.06.1996 (Annexure-6). The complainants sent a further sum of Rs.8,000/- through demand draft, which was also received by the opposite party. The toggle set was to be repaired and installed within two months of its breakdown, but the opposite party took about four months to repair it and the same was delivered on 10.10.1996. The service engineer came to the factory premises of the complainants and took three days to fit the toggle set to the machine. He held trial run of the machine, but it was found that the threaded holes for two number of toggle pins were not properly tapped which further required tapping for proper lubrication. In his report dated 17.10.1996 (Annexure-16), the service engineer noticed the following defects:-
Found pressure in smaller pump 50 Kg/CM2 and bigger pump 100 Kg/CM2. Tried to increase the pump pressure (small) to the pressure specified in circuit but failed.
Customer is advised to keep one smaller pump cartridge 12 gallon along with coupling (Hydex make) for getting the locking pressure in the m/c. Now the m/c will run with bigger pump for the Dabur mould.
N.B. Threaded hole for two no. Toggle Pins were not properly tapped.
Required further tapping fitted lubrication nipple.
The service engineer advised the complainants to keep some machine parts ready. On the advice of the service engineer, the complainants purchased the machine parts. In letter dated 29.11.1996, the complainants requested the opposite party to depute a technical engineer for conditioning the toggle set and the said letter was followed by number of reminders. But the opposite party, without sending the technical engineer, took a plea that unless the outstanding dues were cleared, it would not depute any engineer to attend to the machine. It is the further allegation of the complainants that because of the failure of the opposite party to depute a service engineer to make the machine operational, they could not supply the orders placed by the Director of Printing, Stationery and Publication, Orissa, Cuttack.
The State Government, considering the complainants to be defaulters in executing Government orders, black-listed them and for that the complainants suffered heavy financial loss in the business. With these allegations, the complainants filed the complaint with the aforesaid claims.
4. After remand of the consumer complaint by setting aside the judgment and order of this Commission, both parties appeared and the opposite party filed written version wherein they termed the complaint to be a frivolous one, filed with mala fide intention to harass the opposite party with ulterior motive and for making unlawful gain.
They raised the question of maintainability of the complaint in its present form and also specifically stated that the complainants are not consumers under the C.P. Act having procured the machine for the purpose of manufacturing moulded plastic materials for sale in the market. In the written version, it has been stated that the opposite party-company was being fully owned by the Government of West Bengal and was commonly known as a Government Company. For the purpose of restructuring the beneficial interest, the Government Company formulated a goal for the long term viable utilization of its assets. As a result, on 15.02.2005, a joint venture transformation agreement was executed by and between the Government of West Bengal, Megatherm Electronics Pvt. Ltd. and Megatherm International, collectively referred to as the Strategic Partners, authorizing them to conduct all the activities of the Government Company, that is to say, the opposite party. Regarding the present consumer dispute, it has been stated in the written version that the complainants had placed orders for supply of automatic injection moulding machine, which was complied with. The toggle set in the said machine broke down, which was repaired by the opposite party upon receiving information from the complainants. After due repair, the toggle set was sent back to the factory premises of the complainants. Thereafter, the service engineer attended the same being deputed by the opposite party. Since the service engineer found some defects in the toggle set, he advised the complainants to keep some parts ready so that when he comes again for trial run, he would fix the required parts and give the trial run after resetting the toggle set to the original machine. But since the price for repair of the machine was not fully paid and the repair was not within the warranty period, the service engineer could not be deputed. The opposite party has further stated that the complainants can never claim that they are consumers as per the provisions of the C.P. Act, nor have they anywhere pleaded that the opposite party has committed any deficiency in service. As such, the complaint petition is vitiated and is liable to be dismissed.
5. We have heard learned counsel for both sides and have perused the affidavits. While going through the annexures appended to the complaint petition, we come to find that as the running machine of the complainants broke down, receiving breakdown call from the complainants, the engineer of the opposite party M/s Engel India visited their premises and checked the machine. After checking, he submitted a report regarding the rectification of the defect in the back plate. He dismantled the toggle set from the machine for complete rectification and overhauling and advised the complainants to send the same to the head office at Calcutta and also advised to make a new back plate for the male part of the mould. Apart from that, some other advices were imparted regarding the rectification of the defects, which were done in presence of the complainants on 27.05.1996. The service engineer was paid Rs.3,421/-, out of which Rs.3,000/- was for service charges for four days at the rate of Rs.750/- per day and Rs.421/- was towards first class train fare from Calcutta to Bhubaneswar. Admittedly, this amount was paid by the complainants and received by the service engineer of the opposite party. Thereafter, the toggle set was sent to the opposite party at Calcutta through Transport Corporation of India and was received by the opposite party, which was acknowledged by letter dated 21.06.1996. The letter dated 26.06.1996 of the complainants addressed to the opposite party intimating dispatch of demand draft for Rs.14,000/- in favour of the opposite party shows that the amount was sent as advance for taking up the repair job of the toggle set. On 10.07.1996, the complainants enquired about the progress in the repair/restructuring work of the toggle set. Reminders were also issued by the complainants for early repair of the toggle set. Vide letter dated 07.09.1996 (Annexure-11), the opposite party replied that since it was a sophisticated, high precession, multifarious engineering and heat treated job, it needed specific timeframe for its completion, and considering the urgency expressed by the complainants, the opposite party assured to deliver the toggle set within the last week of September, 1996. The same day, another letter was sent to the complainants by the opposite party requesting them to send the waste paper basket mould with the raw materials. It was assured that the tested materials and mould would be returned to them after testing. Accordingly, the complainants sent the materials and mould and after testing the same were returned, which is apparent on record from the letter of the opposite party dated 10.10.1996 (Annexure-13). The toggle set after testing was sent back to the complainants industry at Mancheswar, Bhubaneswar on 10.10.1996. On 15th, 16th and 17th October, 1996, the service engineer visited the complainants factory and fitted the toggle set to the machine. During starting of the machine, he found that some electric wires were cut in the control panel and the said defect was rectified. Apart from that, he found pressure in the smaller pump 50 Kg/CM2 and bigger pump 100 Kg/CM2, and tried to increase the pump pressure (small) to the pressure specified in the circuit but failed. The complainants were advised to keep one small pump cartridge 12 gallon along with coupling (Hydes mark) for getting the locking pressure in the machine. The machine would run with the bigger pump in the Dabur mould. The service engineers report (Annexure-16) further mentions that threaded hole for two no. of toggle pins were not properly tapped and required further tapping fitted lubrication nipple. As per the service engineers instruction as contained in Annexure-16, the complainants purchased the required parts, which were to be kept ready for making the machine wholly workable. Thereafter, on 29.11.1996, a letter was addressed by the complainants that the technical engineer Mr. A. Mukherjee, who had assured to visit their premises after his return from Jamshedpur, did not attend to the complainants machinery. They also intimated about the difficulties faced for such non-visit. In reply, vide Annexure-19, the complainants were intimated by the opposite party that they were keenly interested to attend to the complainants machinery only after receiving the outstanding amount of Rs.31,589/- in draft in favour of the opposite party-Company. In the said letter, it was, inter alia, intimated to the complainants in the following manner:-
We are sorry to mention that your Cheque Nos.381030 dt. 10.10.96 & 381029 dt. 10.10.96 were dishonoured by the bank which is a highly irregular act on your part. Being a Govt. Organisation our scope becomes limited to look after customers interest with this type of undesirable incidents. Once again we would like to request you to deposit the outstanding amounts be Demand Draft as stated earlier so that we can attend your machine immediately.
6. As it appears, no draft was sent in response to the above letter. Again, on 14.12.1996, the opposite party through registered letter with A.D. to the complainants reminded them to make payment of the outstanding dues through draft, failing which appropriate action would be taken by them. This letter, as we find from record, was not responded to. On 17.01.1997, for getting the outstanding dues, the opposite party wrote a letter vide Annexure-21 to the complainants asking them to arrange payment of the outstanding amount to avoid legal steps or action against them, as the complainants had given undertaking vide their letter dated 10.10.1996 that there would be no problem against encashment of the cheques. It was also reminded in the said letter that such type of dishonoured cheque has serious legal consequence as it is an offence. Even thereafter, the complainants did not make payment of the outstanding amount and the opposite partys engineer did not visit the complainants industry for rectification of the defects found by him. On 27.-2.1997, the advocates firm of the opposite party, namely, Sinha & Co., sent legal notice under section 138(b) of the Negotiable Instruments Act, 1981, as amended in 1988 and the notice was addressed to complainant no.2 Santosh Kumar Patnaik. In the notice, it was advised for making payment of Rs.34,112/- within fifteen days from the date of issue of the notice, failing which their client, i.e., the opposite party, would be constrained and compelled to institute legal proceedings under section 138 of the Negotiable Instruments Act rendering the complainants liable to be punished with imprisonment which may extent to one year or with fine which may extend to twice the amount of the cheque or with both. After receipt of the legal notice issued on behalf of the opposite party by their law firm Sinha & Co., a reply was sent through letter dated 14.03.1997 (Annexure-34) on behalf of the complainants to the opposite party through their advocate, wherein it was alleged that the service engineer did not attend; that the machine of the complainants was lying idle; that without discharging their part of the contract, the opposite party was not justified only to draw the amount; and that by not giving proper service to the complainants, they sustained huge monetary loss. An annexure was appended to the said reply mentioning in detail the amount of pecuniary loss sustained by the complainants due to non-deputation of the technical engineer.
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 drawal 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 face 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.
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 eking 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.
9. The opposite party being a Government concern fully owned by the Government of West Bengal at the relevant point of time, non-payment of the repair cost and payment through cheques with assurance that the same would be honoured and there would be no difficulty in clearance/payment of the amount under the cheques, the cheques being dishonoured and the repeated request of the opposite to the complainants for payment of the amount having fallen to deaf ears, we are of the considered opinion that there was no deficiency on the part of the opposite party in rendering service to the complainants. Rather, in our view, the complainants have played hide and seed. Dispatching the cheques, which were dishonoured, and subsequently stating that the opposite party was not entitled to the amount is contrary to the business ethics.
10. In view of the aforesaid discussion with reference to the documents annexed by the complainants themselves and in addition to that the complainants not being consumers, we are of the opinion that the complaint is nothing but a frivolous one and, as we have already observed, is just a counter-blast to the legal notice issued by the opposite party. We find no merit in the complaint and we dismiss the same, however, without any cost.
In view of dismissal of the complaint, the amount in deposit made by the opposite party in this Commission is allowed to be withdrawn by him.
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(Justice A.K. Samantaray) President ..............................
(Smarita Mohanty) Member SCDRC, Orissa, Cuttack May 2010/Nayak