Andhra Pradesh

Nellore

CC/21/2014

M/s Sai Lakshmi Venkateswara Raw Boiled Rice Mill - Complainant(s)

Versus

1) Smart tec Industries. Rep by its managing Director - Opp.Party(s)

Arigela Nagendrasai

06 Apr 2016

ORDER

Date of Filing     :24-02-2014

                                                                                                Date of Disposal:06 -04-2016

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM:NELLORE

Wednesday, this the 6^th day of   April, 2016

 

PRESENT: Sri M. Subbarayudu Naidu, B.Com.,B.L.,LL.M.,President(FAC) & Member                             

                   Sri N.S. Kumara Swamy, B.Sc.,LL.B., Member.

 

C.C.No.21/2014

 

Sai Lakshmi Venkateswara Raw Boiled Rice Mill,

Represented by it’s authorized agent:S. Sudheer Reddy,

Jagadevi Pet, Mypad Road,

Nellore.                                                                                                     ..… Complainant           

                                                                           Vs.

 

1.	Smart Tec Industries, Represented by it’s Managing Director, 7/237, Pattanam to Peedampalli Main Road, Nagamanickanpalayam, Coimbatore-641016.
2.	Smart Tec Industries, Represented by  Director, Smart Tec Industries, 7/237, Pattanam to Peedampalli Main Road, Nagamanickanpalayam, Coimbatore-641016.
3.	Smart Tec Industries, Represented  by Service Engineer cum Agent of Smart Tec      Industries, C/o.Parameswari Rice Mills, Settigunta Road, Nellore.
4.	Smart Tec Industries, Represented by Dealer of Smart Tec Industries, C/o.Parameswari Rice Mills, Settigunta Road, Nellore.                                                               ..…Opposite parties

                                                              .  

            This complaint coming on 24-03-2016 before us for hearing in the presence of                Sri Arigela Nagendra Sai, advocate for the complainant and                                                               Sri N. Sreenivasulu Reddy, advocate for the opposite parties  1 and 2 and opposite parties  3 and 4  called absent and having stood over for consideration till this day and this Forum made the following:

 

ORDER

(ORDER BY  Sri N.S. KUMARA SWAMY, MEMBER)

 

This complaint is filed under Section-12 of Consumer Protection Act, 1986 prays to pay Rs.10,00,000/- towards monitory loss i.e., due to defective colored sorter incurred huge loss, Rs.1,00,000/- towards damages, to return Rs.9,00,000/- i.e., cost of the sorter paid by the complainant with interest at 24% from 02-12-2011 till it’s realization, costs and such other further reliefs.

 

            2.         The brief averments of the complaint are that the opposite parties  are the manufacturers of multi-purpose grain color sorter under the brand name of “Smart-X”. Upon the representation of the dealer namely H. Seshadri, the complainant paid Rs.9,00,000/- as well as  tax to the 1^st opposite party and obtained confirmation form and it’s rate of purchase of color sorter price  fixed Rs.11,28,120/- and thereafter the opposite parties service engineer installed  color sorter  in complainant’s raw and boiled rice mill  Right from the date of installation, the color sorter failed to work properly and facing several problems.  The said problems was recorded in service report duly maintained by opposite party service engineer. On account of the defects in the color sorter, the rejection of  pure rice percentage is 20% along with  dis-colored and damaged rice is not at all rectified at any point of time from it’s installation.  Thereby caused not only huge monitary loss but also mental agony.  The complainant further alleged that the problem occurred from 02-12-2011 to 21-12-2011 and the said problem was not rectified by the opposite party inspite of  repeated demands. Since the service engineer of the opposite party did not turn up evenafter 21-12-2011, the complainant incurred huge loss to an extent of Rs.10,00,000/- and due to that the complainant failed to clear off bank loans for non-compliance rice targets.  Eventhough, the opposite party promised to rectify the mistake or take back the  machinery and to replace with good machinery,  they did not comply their promises.  Due to their negligent behavior of the opposite party, the complainant got issued legal notice dated 08-02-2013 calling upon them to replace new machinery in place of defective one or to return the amount paid by the complainant with 36% p.a.  besides the monitary loss of  INR 10,00,000/-.  Having received the notice, the  opposite party replied with false averments.   Due to non-replacing of new machine in place of defective one, the complainant suffered mental agony  and also monitary loss in peak season of  paddy crushing time for which opposite party is liable to pay damages to the complainant besides refund of paid amount of Rs.9,00,000/- with 36% p.a. from the date of payment  made by the complainant. Hence, the complaint filed for deficiency in service on the part of the opposite parties.

 

            3.         The opposite parties No.1 and 2 filed the written version denying all the averments made in the complaint except that off admitted certain facts.

 

            The opposite parties contended that they have supplied color sorter machine (Smart Max-140 channels) to the complainant vide invoice No.0077, dated 05-11-2011 and  installed at the complainant rice mill at Nellore on 09-11-2011 and eversince the complainant  has been using and enjoying the  benefits.  The opposite parties 1 and 2 stated that out of total consideration of Rs.11,28,120/-, the complainant paid  Rs.9,00,000/- and remaining due amount unpayable.  Since, the complainant fail to supply the  “C” form,  as per their promise the opposite parties 1 and 2 are liable to pay differential tax at the rate of  12.5% amounting to  Rs.1,38,250/- with penalty of Rs.30,000/- .  The complainant with an ulterior motive with a view to evade payment got issued notice on 08-02-2013 alleging that machine supplied  was an defective one and that the opposite parties 1 and 2 are liable to pay amount to them.  The opposite parties 1 and 2 replied to the said notice on 02-03-2013.  Contrary to the advise of opposite parties on the use of machinery, the complainant used heavy contaminated rice having contamination more than 45%  caused  the machine  to the mal-functioning.  Upon the request of complainant, the opposite party sent their service engineer seven times  and their report reveals that decline in the processing capacity of the machine is not due to poor functioning, but, it was only due to the use of  high contaminated rice by the complainant i.e., more than the limit prescribed in the order confirmation and terms of supply.  Inspite of brought to the notice to the  complainant about their mis-use of machine with heavy contaminated rice, the complainant failed to rectify the mistake but blaming the opposite parties  as machine supplied by them was a defective one. Further the complainant’s demand for replacement or for return of amount is unsustainable in law as the warranty period of machine is only one year which ended on 02-11-2012.  Further, the opposite party contended that complainant is not a consumer as complainant being an proprietary concern inter-alia carrying on business of shopping of food grains from various farmers involving commercial activity and the machine purchased by him is only for business purpose.  Hence, the complaint does not fall under  Consumer under Section-2(i)(d) (ii) of Consumer Protection Act.  Further, the said machine purchased  only to earn more profits  and exclusively for commercial purpose.  As such, the complaint is not maintainable  in this context.  Further also the opposite party  contended that  the machine caused problems during the period from 02-12-2011 to 21-12-2011.  But the complainant filed this case beyond two years i.e.,  24-02-2011 as limitation period under Section-24-A (1) of Consumer Protection Act is  only two years from the                               date of 21-12-2011 i.e., the date of  cause of action arisen.  Since, the claim of complaint is ill-founded,  the  complaint may be dismissed as there is no deficiency in service on the part of opposite parties. 

 

            4.         Substitute service of notice by way of paper publication filed against opposite parties 3 and 4 on 26-09-2014 and when called they were absent and no representation on their side. 

 

5. The points for determination would be:

1. Whether the complainant is a Consumer under Section-2 (i) (d) (ii) of Consumer Protection Act?

                     2)   Whether the complaint is filed within a period of limitation?

                     3)    Whether there is deficiency in service on the part of opposite parties?  If

                             so,  whether the complainant is entitled for the relief  as prayed for?

                     4)   To what relief?

 

6.         The complainant filed  his affidavit  as P.W.1 and   marked documents Exs.A1 to A4.  The opposite parties 1 and 2 filed  their evidence on affidavit as R.W.1 and R.W.2 and marked Exs.B1 to B13.  Both parties filed their written arguments.  Perused the entire material part of records and proceeded with.

 

7.  POINT No.1:   The 1^st and 2^nd opposite parties raised an objection that complainant being an proprietary concern inter-alia carrying on business of  sorting of food grains from various farmers involving in commercial activity and the machine in dispute was purchased for it’s  business purpose .  Hence, the complaint  does not fall within the definition of Consumer under Section-2 (i) (ii) of Consumer Protection Act.  Further,  the opposite party also raised an objection that purchasing of machine in dispute exclusively for commercial purpose to earn more profits and complaint may be dismissed on this ground.  The complainant alleged that the color sorter machine in dispute was installed in complainant’s Raw and  Boiled Rice Mill, which was a defective one  and  inspite of  repeated demands to the opposite parties, the opposite parties neither rectify nor installed a new one in place of defective machine and  an account of  the alleged defective machine, he got monitory loss of Rs.10,00,000/- in peak season of  paddy crushing time for which opposite parties are liable  for payment of damages besides refund of paid amount of Rs.9,00,000/-. 

 

8.         As seen from the complainant’s averments it is observed no where he stated that he purchased the machine in dispute exclusively for eaking out his livelihood.  We have  minutely read the complaint and are of the view that complainant cannot be termed to be self-employed for the purpose of earning his  livelihood.  As the complainant is not a Consumer under the Consumer Protection Act, the complaint filed by him is not maintainable.

 

9.         We are  also equipped with the judgment of Hon’ble Punjab State Consumer Disputes Redressal Commission, Chandigarh, 2008 Volume-2 CLT 206, in case titled Giya International Vs. Punja State Electricity Board & Others which was filed by the opposite parties in support of  their arguments.

 

(i)

Consumer Protection Act, 1986, Section 2 (1) (d0 – Consumer – Self-employed-Commercial purpose – Electricity bill.  Dispute as to – The complainant is to run the factory for producing / manufacturing steel ingots which are manufactured by running induction furnace- The services availed by the complainant from OP are for commercial purpose – The complainant cannot be said to be self-employed for the purpose of earning his livelihood- As the complainant not a consumer under the  CP Act, the complaint filed by him held not maintainable.

 

            Further the Hon’ble Supreme Court have observed in their order passed in Laxmi Engineering works Vs. PSG Industrial Institute, which was reported in II (1995) CPJ 1 (SC)=1995  AIR SC 1428,  that a person who purchases an auto rickshaw, a car or a  lathe machine or other machine to be plied or operated exclusively by any person could not be a consumer”.

 

            The above decisions are clearly applicable in the instant case.  Admittedly, the complainant had purchased color sorter machine and the same was installed in complainant’s Raw and Boiled Rice Mill.  On account of  the machine in dispute  which was supplied by the opposite parties, the complainant stated in his complaint that he got monitory loss to an extent of Rs.10,00,000/-  in peak season paddy crushing time for which opposite party is liable for damages and refund amount of Rs.9,00,000/-.  In view of the circumstances as stated supra by the complainant, we are of the opinion that the machine in dispute is used only for commercial purpose  and not for  eakingout his livelihood.  Hence, the complaint does not fall within the definition of Consumer as there is nothing in the complaint that his business is exclusively for himself   and his work for generating for his family purpose of self employment.  Accordingly, point No.1 is answered.

 

10.  POINT No.2 AND 3: Further  opposite party raised an objection that complaint filed by the complainant is barred by limitation as the complaint filed on              24-02-2014.  The opposite parties further stated that  complaint has  to be filed within two years from the date of cause of action arose i.e., on  21-12-2011.

 

 

            As seen from the records,  it is noted that the complaint was filed on 24-02-2014 i.e., after date of  cause of action arisen on 21-12-2011. As per Section-24-A (1) of C.P.Act, the  complainant has to be filed within two years from 21-12-2011 i.e., the date of cause of action.  Since, the complaint is filed beyond the period of limitation, the complaint is time barred  and as such the complaint is not maintainable.  Accordingly, point No.2 is answered.

 

           

In this aspect, it is very significant to make a note herein that not attracting provisions of Section-2 (i) (d) (ii) of C.P.Act and also time barred complaint filed by the complainant  extinguished the right of claim of complainant.  There is no convincing explanation given by the complainant to rebuttal   the evidence of opposite parties.  In view of the discussions and decisions taken at our end from the points 1 and 2 no need to proceed further to go into the merits of the case of point No.3.  Hence the complainant is not  entitled for any relief as prayed for in the complaint and the complaint is liable to be dismissed without costs.

            11.       POINT No.4:  Accordingly, the complaint is dismissed  without costs.

Typed to the dictation to the Stenographer, corrected  and pronounced by us in the open  Forum, this the  6^th day of  April, 2016.

 

 

                 Sd/-                                                                                           Sd/-

           MEMBER                                                                               PRESIDENT(F.A.C.)

                                                APPENDIX OF EVIDENCE

 

Witnesses Examined for the complainant

P.W.1  -

17-07-2015

Sri S. Sudheer Reddy, S/o.Narahari Reddy,  Proprietor of Sai Lakshmi Venkateswara Raw Boiled Rice Mill, Nellore (Chief Affidavit).

 

Witnesses Examined for the opposite parties

 

R.W.1  -	30-06-2015	Affidavit of K. Subburaj, S/o.Kulliya Gowder,  Combatore, Tamilnadu  (Affidavit filed).
R.W.2  -	30-06-2015	Sri P. Chinnaraja, S/o.Poonaiyan, Senior Service Engineer, Tamilnadu state (Affidavit filed).

                             EXHIBITS MARKED FOR THE COMPLAINANT

 

Ex.A1  -	08-02-2013	Legal notice  from  complainant’s advocate                                 Sri Y.V. Seshaiah to the opposite parties 1 and 2.
Ex.A2  -	02-03-2013	Reply on behalf of opposite parties 1 and 2                                 Sri M.Panchapakesan, Advocate, Coimbatore-641 045 to the complainant’s advocate Sri Y.V. Seshaiah.
Ex.A3  -	-	Two postal acknowledgements received from opposite parties 1 and 2.
Ex.A4  -	05-11-2011	Photostat copy of Invoice No.0077 in favour of  complainant issued by  opposite party.

 

                         EXHIBITS MARKED FOR THE OPPOSITE PARTIES

 

Ex.B1  -	02-11-2011	Attested copy (Attested by the opposite party) of Order Confirmation Form in favour of complainant  issued by the opposite party.
Ex.B2  -	05-11-2011	Attested copy (Attested by the opposite party) of Warranty Certificate  in favour of complainant issued by the opposite party.
Ex.B3  -	05-11-2011	Attested copy (Attested by the opposite party) of Invoice No.0077 in favour of  complainant issued by  opposite party.
Ex.B4  -	-	Attested copy (Attested by the opposite party) of  Service Report issued by the opposite party.
Ex.B5  -	02-12-2011	Attested copy (Attested by the opposite party) of  Service Report No.000001 in favour of complainant issued by Mendo Controls, Coimbatore-641016.
Ex.B6  -	03-12-2011	Attested copy (Attested by the opposite party) of  Service Report  No.000002 in favour of complainant issued by Mendo Controls, Coimbatore-641016.
Ex.B7  -	03-12-2011	Attested copy (Attested by the opposite party) of  Service Report  No.000003 in favour of complainant issued by Mendo Controls, Coimbatore-641016.
Ex.B8  -	06-10-2011	Attested copy (Attested by the opposite party) of  Service Report  No.000004 in favour of complainant issued by Mendo Controls, Coimbatore-641016.
Ex.B9  -	07-12-2011	Attested copy (Attested by the opposite party) of  Service Report  No.000006 in favour of complainant issued by Mendo Controls, Coimbatore-641016.
Ex.B10  -	21-12-2011	Attested copy (Attested by the opposite party) of  Service Report  No.000009 in favour of complainant issued by Mendo Controls, Coimbatore-641016.
Ex.B11  -	29-03-2010	Attested copy (Attested by the opposite party) of  Certificate of Registration  in favour of Smart Tec Industries.
Ex.B12  -	08-02-2013	Photostat copy of  legal notice from complainant’s advocate Sri Y.V. Seshaiah to the  opposite parties 1 and 2
Ex.B13  -	02-03-2013	Reply notice from opposite party to the  complainant’s advocate Y.V. Seshaiah.

 

 

                                                                                                                                Id/-

 

                                                                                                         PRESIDENT(F.A.C.)

 

Copies to:

 

1.	Sri Arigela Nagendra Sai, Advocate, Fathekhanpet, Nellore-524 003.
2.	Sri N. Sreenivasulu Reddy, Advocte, 16-4-214, Gandhi Nagar, Near Sunday Market, Nellore-1.
3.	M/s.Smart Tec Industries, Represented  by Service Engineer cum Agent of Smart Tec Industries, C/o.Parameswari Rice Mills, Settigunta Road, Nellore.
4.	M/s.Smart Tec Industries, Represented by Dealer of Smart Tec Industries, C/o.Parameswari Rice Mills, Settigunta Road, Nellore.

 

Date when free copy was issued: