State Consumer Disputes Redressal Commission
The Managing Director, Greaves Cotton ... vs Shri Paritosh Mandal on 29 December, 2009
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO. FA/351/2009 DATE OF FILING: 15.9.2009 DATE OF FINAL ORDER: 29.12.2009 OPPOSITE PARTIES/APPELLANTS 1) The Managing Director Greaves Cotton Ltd. Dr. V.B. Gandhi Marg Bombay 400 025 2) The Sales Manager Greaves Cotton Ltd. 3) The Area Service Manager Power Generation, Eastern Region Greaves Cotton Ltd.---- Appellants 2&3, having their Regional Office at Thapar House, 25, Brabourne Road Kolkata 700 001 COMPLAINANT/RESPONDENT No.1 1) Shri Paritosh Mandal The Sole Proprietor of Ma Santoshi Stone Chips of Vill. Sargo, P.O. Barabhum Dist. Purulia (WB) RESPONDENT NO.2 & 3/OPPOSITE PARTY NO.4 & 5 2) West Bengal Financial Corporation Through its Manager, Purulia Branch Central Co-operative Bank Building P.O. & Dist. Purulia 3) District Industries Centre Through its General Manager Collectorate Compound, Purulia P.O. & Dist. Purulia BEFORE : HONBLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT MEMBER : MR. A.K. RAY MEMBER : MRS. S. MAJUMDER FOR THE COMPLAINANT : Mr. P.R. Sinha Sarkar, Advocate FOR THE RESPONDENTS/OPs: Mr. Anjan Dutta, Advocate (Nos.1,2&3) Mr. Ashutosh Das, Advocate (No.4) : O R D E R :
HONBLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT This appeal was filed by OPs1,2 & 3 against order dated 19.8.09 passed by District Consumer Disputes Redressal Forum, Purulia in Consumer Complaint No.30/1994 whereby the complaint was allowed against OP Nos.1,2 & 3 in part and dismissed against OP Nos. 4 & 5 and the complainant got award of Rs.1 lac as compensation towards the loss in business as well as for harassment and mental agony. The complainant was to get refund of the price of the engine/machine value Rs.68,000/- + interest @ 22% per annum from 05.12.92 to 25.3.94 totaling to Rs.87,944/- and litigation cost of Rs.2,000/-. All the OPs 1,2 & 3 jointly and severally were directed to pay awarded sum of total Rs.1,89,944/- within 30 days and the said OPs were directed to make payments of the awarded amount of Rs.1,89,944/- in favour of the West Bengal Financial Corporation, Purulia Branch to be deposited in the loan account of the complainant. The OP4 was directed to return the engine in question to OPs1,2 & 3 on receipt of the awarded amount. On failure the amount is to carry interest @ 18% per annum till its finalization.
This judgment was passed disposing off both C.C. No.30/1994 and No.31/1994 by one judgment after it was remanded by the Honble National Commission.
Facts, in brief, as stated in the complaint are that the complainant, an unemployed youth after obtaining requisite training and having no job and no source of income to maintain his livelihood, started a small scale industry for manufacturing stone chips obtaining loan from OP5 District Industries Centre as also various amounts of loan from OP4 West Bengal Financial Corporation (WBFC). The complainant total received Rs.4,05,300/- on loan as aforesaid and on 28.11.91 through OP3 placed order in the name of his firm before the OP2 for purchasing water cooled, hand start 33.4 B.H.P. at 1500 R.P.M. Diesel Oil Engine with standard accessories used for manufacturing stone chips. After payment of full consideration the said engine was supplied by OP2 on 14.4.92. But after installation the said engine was found defective and on complain by the complainants the OP2 repeatedly sent Service Engineers who from time to time repaired the engine and changed parts but the engine is unable to carry load. Though the complainant requested for replacing the defective engine by a new one but such request was responded only by sending Service Representative for repairing the same and after repeated attempts upto 09.5.93, the engine could not be utilized inspite of its installation as directed. In the joint meeting on 05.8.93 between the Area Service Manager of the OP and Representative of the complainant though the manufacturing defect was confessed but the complainant did not get any redress. Accordingly the present complaint was filed with a prayer for payment of compensation. Complaint Case No.31/1994 was also filed with a prayer for replacing the engine by a new defect free tested engine or for returning the price according to the present market value together with interest @ 22% per annum on the price of the engine paid by the complainant and for cost.
Heard Mr. P.R. Sinha Sarkar, the Ld. Advocate for the Complainant and Mr. Anjan Dutta, the Ld. Advocate for the OP Nos.1,2 & 3 and Mr. Ashutosh Das, the Ld. Advocate on behalf of OP4.
Upon considering the materials on record as also the respective contentions of the parties I find that there is not much dispute as regards the defects in the engine supplied to the complainant, repeated attempts to repair the same and ultimate failure.
Contention has been made on behalf of the complainant that interest has been directed to be paid w.e.f. date of delivery till realization. It is contended that though interest @ 22% has been allowed but relief has been granted only from 05.12.92 being the first date of claim for replacement till 25.3.94 the date of filing the complaint but not for the balance two periods namely 14.4.92 being the date of delivery of the enquire to 04.12.92 and 26.3.94 till realization. In support of such contention reliance was placed on the judgment in the case of Thazhathe Purayil Sarabi-Vs-Union of India reported in 2009(3) WBLR(SC) 593.
As regards the case No.30 of 1994 being the claim for compensation for liability to interest pendante lite as there was no material to show that this money was utilized. In this respect reliance was placed on the evidence of the OPW4 and his cross examination for showing that the said money was utilized and, therefore, the claim for interest pendante lite was justified.
Contention of OP1 is that the OP1 called upon the complainant to return the engine and to take refund of the money. Reference was also made to Section 2(1)(d) of the Consumer Protection Act for contending that the complainant is not a consumer though the claim is of a period when the amendment of the Consumer Protection Act of 2003 was not yet brought into effect. Reliance was placed on the judgment in the case of Oriental Insurance Co. Ltd.-Vs-B.Ramareddy reported in 2006(2) CPJ 339 decided by the Honble National Commission when award of compensation over and above interest was not approved. Mr. Ashutosh Das, the Ld. Advocate for the WBFC advanced only one contention that amounts if awarded in favour of the complainant the same is to be paid directly to the WBFC as admittedly money having been lent and advanced by WBFC, but awarded money is to be paid to the WBFC only.
After considering the respective contentions of the parties I find that with regard to the defective condition of the engine and its failure to perform inspite of repeated repairs, have been proved by the complainant and the OPs1 & 2 failed to contradict the same.
As regards claim for interest made by the complainant it could not be disputed much but the date from which interest became payable and the period for which it was payable, requires consideration in view of the award passed by the Forum below for a limited period between 05.12.92 and 25.3.94 only.
The contention as regards offer of the OP1 to the complainant calling upon the complainant to return the engine and to take refund of the money, does not alter the position as the complainant having taken loan could not perform with the engine supplied by OP1 and, therefore, became entitled to not only refund of the money but also to the interest payable by the complainant to the OPs 4 & 5.
As regards the question as to whether complainant is a consumer, as the cause of action arose in the year 1992, 1993 and 1994 i.e. long before the amendments of the Consumer Protection Act took effect in the year 2003, the complainant is held as consumer and the judgment cited by the OP1 does not have any application.
The complainant has pleaded number of loans sanctioned by OPs 3 & 4. But as regards actual utilization apart from the amount towards the engine sold by the OP1&2, no other particulars are available either from the complainant or from the evidence disclosed along with the application dated 10.2.05.
As regards claim for compensation for the interest payable for subsequent period the Forum has considered that the stone crushing unit was repossessed by WBFC, OP5, and sale notice was published. No material has been shown by the complainant to dispute the said fact or to show that further liability to pay interest for further period accrued.
The complainant having utilized portion of the loan sanctioned by OP4 and having failed to earn from the engine purchased by such money, became liable to pay interest to OP4. Therefore, in the present facts of the case OPs 1 & 2 having failed to supply a defect free engine enabling the complainant to earn from it, undisputedly are liable to pay compensation for the said interest which is payable by the complainant to the OPs 4 & 5.
But this interest being not available to the complainant, he is entitled to compensation for the period the complainant was found liable to pay interest.
In the circumstances no interference with the impugned judgment is found required and the Appeals No.346/09, 347/09 and 351/09 are dismissed.
(S. Majumder) (A.K. Ray) (Justice A. Chakrabarti) MEMBER(L) MEMBER PRESIDENT