FA  1192/2009  against CC 76/2008  on the file of the

District Consumer Forum, Kadapa.

Between :

M/s Sri Sai Rajeswari Stone Crusher, Rep. by its

Managing Partner, Jonnalagadla Venkata Subba Rao,

S/o Venkata Subba Ram Botlu, aged 42 years, Resident of

D.No. 18/446, Choultry Street,

Proddatur town ………………………Appellant/ Complainant.

And

1)  Ashok Leyland Pvt. Ltd., Rep. by its Regional Manager,

     Regional office, Power unit, Alengine Sales, Nandanam,

     Chennai – 35. (TN).

2)  M/s Andhra Power Services,

     Authorized Service Dealer of Ashok Leyland,

     Flat No. A-30, APIE, Balanagar, Hyderabad.

3)  Genesis Poweronics India Pvt. Ltd.,

    (Formerly GS Power Consultants), A-46, Madhuranagar,

     Ameerpet, Hyderabad – 38.       Respondents/opposite parties.

Counsel for the Appellant              :           M/s. S. Harinath Reddy

Counsel for the Respondents       :           served

Coram            ;          

                              Sri R. Lakshminarasimha Rao…      Hon’ble Member

And

                                    Sri T. Ashok Kumar      ..         Hon’ble Member

Wednesday, the Twenty Second  Day of February

Two Thousand Twelve

          Oral Order        :   ( As per Sri T. Ashok Kumar , Hon’ble Member )

****

       1.        This is an appeal preferred by the unsuccessful complainant as against the  order dated 30.12.008   in CC 76/2008   on the file of the District Consumer Forum, Kadapa . For convenience sake, the parties as arrayed in the complaint are referred to as under :

2.            The brief facts of the complaint  are as under :

The complainant paid Rs. 6,97,500/- to opposite party No.3 towards cost of the machine to purchase a diesel generating set and alternator.   On 01-3-2008 the opposite party No.3 installed the 125 K.V.A diesel generating set manufactured by opposite party No.1 make water cooled engine model ALGP 680 TC E4 coupled with 125 KVA, 3 ph, 0.8 p.f 415V, 50 Hz “Kirloskar” unit with warranty period for 2 years or 3000 hours whichever was earlier.  On 20-5-2008 the complainant observed oil leakage from breather part of the engine and on the advice  of OP.3  it  contacted  opposite party No.2 authorized service dealer.    The opposite party No.2 deputed one service person for making repairs.  The defect was not rectified in the engine.  On 24-5-2008 the opposite party No.2 sent another service person namely P. Anjaneyulu to solve the problem of leakage of oil from breather pipe, who opened breather part and opined that due to tight fitting of both air cleaner top side clamp fitting place was cracked and that the dus which was coming directly attracted in turbo charger etc.   He suspected dust coming from engine and due to the said  reason, liners and rings were worn out.  He advised the complainant not to run the engine.  He gave a field service report to the complainant.  Therefore it  was clear that there was manufacturing defect in engine supplied by the opposite parties.  Though the complainant informed the opposite party No.3 about such manufacturing defect  it  expressed that it  was no way concerned with  the defects in the engine and that the opposite party No.1 & 2 were only answerable for such defects.  The opposite party No.1 & 2 did not consider the problem and it  was not rectified  Due to manufacturing defect the complainant was forced to stop the work,  because the plant was mainly depending  on the  diesel generating set.  Thus the complainant incurred a loss of Rs. 50,000/- per day for a period of more than one month and sustained loss of  Rs.  15,00,000/- ( @ Rs. 50,000/- per day) due to non functioning of Diesel Generating set  still the claim is restricted to Rs. 8,00,000/- only.  The complainant was forced to go for alternative supply of power as the generator set became non functioning.  The complainant approached APSPDCL, Proddatur for adequate power for running the unit instead of generating set, for which they collected an additional deposit of Rs. 3,30,000/-.  The payment to the APSPDCL was more than                 Rs. 1,65,000/- towards debit charges which were non refundable.    The complainant ultimately got issued a notice dt. 4-6-2008 calling upon the opposite parties jointly and severally either to replace the subject matter unit with a new one or to refund its cost together with interest from the date of purchase (01-3-2008) till the date of realization and compensation for mental agony but there was no response .  Hence, the complaint for i) to replace the subject matter generator machine with a new one or alternatively to refund its cost together with interest @ 24% p.a. from the date of purchase i.e. 01-3-2008 till the date of realization, ii) to pay Rs. 15,00,000/- towards aggregate value of loss suffered by the complainant for one month period due to non functioning of the machine @   Rs. 50,000/- per day, restricted to      Rs. 8,00,000/-, iii) to pay Rs. 1,65,000/- towards debit charges incurred by the complainant for obtaining alternative supply of power owing to non-functioning of the machine and iv) to pay Rs. 1,00,000/- towards damages for mental agony and (v) Rs. 10,000/- towards costs. 

3.         OP.1  filed counter, which was adopted by Opposite parties 2 and 3,  opposing the claim of the complainant and denying the allegations made in the complaint and disputing the claim and the brief facts of the counter  are as under

The opposite party No.1 admitted that the complainant  purchased  125 KVA diesel generator set manufactured by it  and that it was installed by opposite party No.3 with warranty period for two years or 3,000 hours whichever was earlier.  It is further pleaded by Op.1 that the air cleaner housing was badly  damaged and that it  was reported to the complainant.   The field service report dt. 10-4-2008 containing  the signatures of the customer discloses  that the unit was supplied without any damage and the damage occurred only after 12 hours of operation. As per the maintenance schedule a customer has to inform the opposite party No.2 at 50 running hours for the first time and it was not done by the complainant.   There was no complaint of the problem on 20-5-2008 but on 23-5-2008 the complainant made a complaint regarding the problem in the unit to opposite party No.2 who on 24-5-08 deputed               Mr P.Anjaneyulu to solve the same.  He verified the system  and found  leakage of oil from engine breather due to damage of air cleaner and  it was not a manufacturing defect and it does not cover the warranty.  The air cleaner housing (body) was built with strong material.  The technician of opposite party No.2 noticed a strong dent and immediately took photographs thereof.  Due to the said problem dust entered directly into the engine and on account of  accumulation of dust, wear and tear occurred and thus the blow bye occurred. The complainant got issued a notice with false allegations and still OP.1 rectified the defect and thus the Unit was running without any problem. The opposite party No.1 sustained a loss due to failure of the complainant in protecting the air cleaner housing which was strongly built with.  The leakage of oil from breather pipe was due to damage of air cleaner housing which was not a manufacturing defect and the defect was due to the consequences of the damage to air cleaner housing.    The complainant did not follow the instructions in sending  the machine to workshop at Hyderabad and that  there was no deficiency of service on their part  and  thus prayed to dismiss the complaint.

4.      Both sides  filed  evidence affidavits reiterating their respective pleadings  and  Ex. A-1 to A13   were marked on behalf of the complainant and Ex. B-1 to B6  is   marked for the OPs

  5.          Having heard both sides and considering the evidence on record, the District Forum dismissed the complaint vide impugned order dated 30.12.2008  holding that there was no deficiency in service on the part of the OPs.

6.            Feeling aggrieved with the said order the unsuccessful complainant     filed this appeal on several grounds and mainly contended that the District Forum failed to appreciate that there was  manufacturing defect in the diesel generator and that on account of it the complainant sustained loss and that authorized agent of OPs did not take photographs of the diesel generator and that the complainant had taken proper care in getting installed the generator and that the cracks found to the clamp fitting was properly explained by the complainant but those aspects were not considered by the District Forum and that the order under appeal is  not sustainable either in law or on facts and thus prayed to allow the appeal and set aside the order of the District Forum.

7.            Heard the counsel for appellant and no arguments were advanced for the respondents/opposite parties.

8.    Now the point for consideration is whether the order of the District Forum is sustainable ?

There is no dispute that the  complainant  firm paid Rs. 6,97,500/- to opposite party No.3 towards cost of the machine to purchase a diesel generating set and alternator and on 01-3-2008 the opposite party No.3 installed the 125 K.V.A diesel generating set manufactured by opposite party No.1 make water cooled engine model ALGP 680 TC E4 coupled with 125 KVA, 3 ph, 0.8 p.f 415V, 50 Hz “Kirloskar” unit with warranty period for 2 years or 3000 hours whichever was earlier.  According to the  complainant  on 20.05.2008  oil leakage from Breather pipe was observed and that immediately it was informed to OP. 3 and on their advice the complainant contacted OP. 2 authorized service dealer of Op. 1 manufacturer and then the OP. 2 deputed a service person to repair it  and it was rectified and thereafter another service person attended on 2.5.2008 at 10.00 AM and that the problem was not rectified and on the other hand he opined that due to tight fitting  of both air cleaner top side clamp fitting place was cracked and that dust directly attacked into turbo charger to inlet manifold to engine  and that the dust coming from the engine liners and rings were worn out and that the said repairer advised not to run the engine and that all the said aspects clear that there was manufacturing defect  and that in spite of repeated requests the problem was not rectified and on the other hand oP. 3 expressed that he was in no way concerned with the defects in engine and Ops 1 and 2 were answerable for the same and that Ops 1 and 2 also did not  come forward to rectify the same which amounts to deficiency in service on the part of all the OPs.

9.         Irrespective of pleadings jurisdiction point has to be answered by the Forum or this Commission. Of course, OP.1 specifically contended in its counter that  the dispute will not come within the purview of the Consumer Protection Act. Therefore,  there is necessity to decide whether the Consumer Forum has jurisdiction to entertain the complaint and  the same has not been answered by the District Forum.  Very specially the complainant pleaded in the complaint that it is a firm under the name and style of M/s. Sri Sai Rajeswari Stone Crusher at Gollapalli Village near Oddirala, Mylavaram mandal, Kadapa District and that  the complainant is being represented by its Managing partner, Jonnagaddala Venkata Subba Rao. It is common sense that partnership firms will be constituted for commercial purpose that is do business for profits and therefore,  it has to be believed that the complainants’ firm purchased the machine for commercial purpose

10.       Amendment to Section 2(1)(d) of C P Act came to force w.e.f 15.3.2003 and the present complaint was filed on 30.04.2008  and thus the amendment is applicable in this case. The definition of the expression ‘ consumer’ in clause (d ) of section 2(1) of CP Act 1986 excludes from its purview  ‘ a person who obtains such goods for resale or for any commercial purpose’.   The explanation as per 2002 amendment discloses for the purpose of sub clause (1) commercial purpose does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood by means of self employment. Admittedly the complainant did not plead so in the complaint. In a latest decision The Hon’ble Supreme Court in Birla Technologies Ltd. Vs. Neutral Glass and Allied Industries Ltd, reported in CDJ 2010 SC 1177 held that goods and services hired for commercial purposes cannot be the subject matter of a consumer complaint under the Consumer Protection Act. As already described supra it is not contended by the complainant in this case  that the said machine  was purchased for the purpose of livelihood of the partners  under self employment  so as to come to a conclusion that the complainant’s firm and the particulars  come under the purview of ‘ consumer’ within the meaning of the Act.  Therefore in the circumstances of the case  and in view of the said  decision we hold that the complaint filed by the complainant is not maintainable  before a Consumer Forum for want of inherent jurisdiction. However, the complainant firm can file a suit for the reliefs claimed in these proceedings before a Civil Court and in such a case the complainant can claim the benefit of sec.14 of the Indian Limitation Act to exclude the period spent in prosecuting the proceedings under Consumer Protection Act while computing the period of limitation prescribed for such a suit. ( relied upon Laxmi Engineering Works Vs PSG Industrial Institute, reported in 1995 AIR  (SC) 1428. When the consumer Forum has no jurisdiction to entertain the complaint the consequence is dismissal of the complaint. When the complaint is not maintainable for want of inherent jurisdiction, there is no need to discuss the other aspects involved in this case. In view of the above discussion the complaint is liable to be dismissed for the reasons assigned by this Commission and not for the reasons givn by the District Forum. Therefore the appeal is liable to be dismissed.

11. In the result, the Appeal is dismissed and  consequently the     complaint filed by the complainant stands dismissed for want of inherent jurisdiction. There is no order as to costs of the appeal. However, the complainant is at liberty to approach Civil  court for redressal and in such a case it can claim the benefit of Section. 14 of Indian Limitation Act to exclude the period spent in prosecuting the proceedings under the Consumer Protection Act while computing the period of limitation prescribed for such a Civil Suit. No order as to costs of the Appeal.

                                                                                    MEMBER     

MEMBER     

                                                                                    DATED   :      22.02.2012.