OFFICE  OF  THE  DISTRICT  CONSUMER  DISPUTES  REDRESSAL  FORUM, KAMRUP,GUWAHATI

C.C. 63/12

Present:-

                             1)Md.Sahadat Hussain, A.J.S.   -   President

                             2)Sri U.N.Deka                          -   Member

1)      M/S Fortune Mercentiles Pvt.Ltd                 .-Complainant

          Kedar Road,Guwahati-781001                             

2)      Sri Ramen Das,

          Son of Late Suren Das,

          Executive Director of M/S Fortune

         Mercentiles Pvt.Ltd.

          -vs-

1)      Carrier Airconditioning & Refrigeration -Opp. parties

          Ltd.   Kolkata-700054.                                     

2)      The Carrier Airconditioning & Refrigeration

          Ltd., 2^nd Floor, UK Tower,

          G.N.B.Road, Silpukhuri, Guwahati-781003

3)      Sri Rajesh Saha, Branch Head (East),

          Carrier Airconditioning & Refrigeration  Ltd.

          Kolkata-700054

4)      Sri Subinoy Chatterjee,

          Carrier Airconditioning & Refrigeration  Ltd.

          Commercial Refrigeration Operation,

          P-339/1,C.I.T.Road, Kolkata-700054.

Appearance-        

Ld advocate for the complainant     - Mr.S. Bhattacharjya

Date of argument-                   15.7.2016                  

Date of judgment-                 20.9.2016           

EXPARTE   JUDGMENT

                                This is a case u/s 12 of the Consumer Protection Act , 1986.

1.       The complaint was admitted on 19.10.12 and notice was served on the opp.parties and they also filed their written statement on 21.1.14, but after filing evidence in affidavit by the complainant, the opp.parties were found to have been absent without step in several dates including 15.6.16; and hence, this forum, vide  order dtd.15.6.16, directed that the case against the opp.parties will proceed on exparte. Finally, the complainant side’s ld counsel Mr.S.Bhattacharjya filed written argument on 15.7.16 and also forwarded his oral argument on 31.8.16.
2.       The gist of the complaint is that, the complainant, being a private company, along with its Executive Director, Sri Ramen Das placed an order for supplying a installation of cold room for storage of its products i.e. various ice cream/frozen dessert products to the Opp.Party No.1 which is a representative of Opp.Party No.3 which is to be supplied and installed within a period  of 3 to 4 weeks from the date of placement of order and Opp.Party No.1 submitted  its offer and quotation; and the complainant No.1 being satisfied decided to place the supply order and placed its order vide order No. FMPL/111/9/12/2011 dtd. 9.12.2011 and FMPL /112 /9/ 12/ 2011 dtd. 9.12.2011 for supplying room equipment and  accessories of value of Rs.6,60,144/- and also placed order for supply and installation / commissions of a cold room for Rs.7,40,111’50/- (Rupees seven lacs forty thousand one hundred eleven and paisa fifty)only including installation charge and service fare and Complainant No.1 paid Rs.3,00,000/- to Opp.Party No.1 on 9.12.2011 as advance payment vide cheque No.451377 dtd. 9.12.2011 and also paid remaining amount of Rs.3,60,144/- vide cheque No. 451380 dtd. 21.12.2011 on receipt of information prior to dispatch of the material and also agreed to pay 100% of installation charge of Rs.79,967’50/- after satisfactory commissioning of the cold storage and, Complainant No. 1 paid Rs.87,372/- to Opp.Party No.1 vide cheque No. 451378 dtd. 9.12.2011 as security . On receipt of the payment of Opp.Party No.1 started installation of the cold room in Feb, 2012 and condoned till March/2012, and Complainant No. 1 launched CREAM BELL”in Guwahati on 11.2.2012), but failed to store his products in the cold room having the cold room was not ready, but to store entire products in their cold room nearby taking it on rent . In the meantimethe installation team advised the complainants to settle its products in the cold room under installation and accordingly the complainant shifted to this newly purchased cold room in the month of March,2012, but one of the cold room started giving problems since 1^stweek of May,2012 where frost was deposited in the suction line of the compressor and the temperature of the cold room rose to 4 C and as such entire stock of Ice Cream and frozen desserts stored in the said cold room started melting and then complainant No.2 immediately contactedthe installation team of Opp.Party No.1 based at Guwahati, but they did not visit the spot inspite of repeated telephone calls, but one of their installation group told complainant No.1 that he may come down and visited the cold room only after Opp.Party NO.1 asked him to do so, but he did not attend the calls from the complainants, and then the complainant contacted Opp.Party No.2 over phone and requested him to rectify the defect in the cold room , so that the business of the complainant is not hampered, but getting no favourable response over telephone, complainant No.2 sentan e.mail to Opp.Party No.2 highlighting every-thing which are as under:-

“After the installation was over, we asked the installer to submit the bill for payment of installation charge, but till date he has not submitted his bill for payment . It appears that he is hesitant to submit the bill because of some unfinished installation work.

When we did not get any response from the installer for rectification of the serious problem of the cold room as mentioned above, we had to call an technical expert to know about the problems of the cold room . He opined that

1. There is timing problem in the compressor which may damage the compressor,
2. There is no single phase prevention system which may damage the compressor,
3. Cooling system is not working properly . Therefore, there is full deposit of frost in the compressor suction line which will affect the product quality.
4. As per your offer dated 30.11.2011 , the company was supposed to provide external piping made of copper which is a standard practice of all the established companies, but we were surprised to find that your people has installed external piping made of PVC of very cheap quality which  may break even if a small bird site on it.

Under the circumstances we request you to kindly depute your technical personnel to rectify the defects of the cold room, other-wise goods worth Rs.9.00 lakhs stored in the cold room is going to be damaged for the negligence of your installer.”

The complainant No. 2 on several occasions communicated the opp.parties regarding problem in the cold room supplied by Opp.Party No.1 through e.mail dtd. 7.6.2012, 10.7.2012, 24.8.2012 and 28.9.2012. Thereafter, complainants holding meeting of Board of Directors on 14.5.2012 resolved that the company requestCarrier Air Conditioning and Refrigeration Ltd.(The supplier and installer) to compensate loss incurred due to it’s inability to attend and rectify the technical problem faced in the cold room and authorized Executive Director, Sri Ramen Das  to take necessary step to lodge the complaint and he has also authorized to sign on documents on behalf of the complainant in any legal firm. Thereafter, three persons deputed by Opp.Party No.1 and visited the room of the complainant No.1 on 11.5.2015 at about 6 p.m. and tried to defrost the cold room, but did not succeed and they again come on 12.5.2012 and tried to find out actual fault in the said cold room and 13.5.2012 they found out that PL/HP switch of the compressor in that cold room is giving problem and is not working which should be replaced immediately and they also found certain internal problem inside the cold room, and on 15.5.2012 their Executive , namely, Mr.Subinoy Chatterjee came from Kolkata and rectified some problems, but other parts like changing of interconnection piping are yet to be completed and in the meantime a sizable quantity of Ice Cream/ frozen desserts stored in the cold room melted away and completely damaged and the Executive from Kolkata and other team visiting the cold room have already seen the said damaged product and opp.parties on each occasion annual maintenance Contract report . While development in the cold room was reported to Opp.Party No.1’s Kolkata office and Complainant No.1 requested Opp.Party No.1 to compensate the damage amounting to Rs.3,02660’10/- only, but Opp.Party No.1 tried to avoid the genuine claim of the complainant and Opp.Party No. 1 vide its e.mail dtd. 25.5.2012 intimated the complainant that they are free to take up the matter at any level and then complainants decided to file the present complaint . The machine supplied by the opp.parties is second hand, defective one and as such opp.parties are liable to pay the complainant Rs.4,20,240/- as price of the cold room and Rs.2,89,000/- as price of the refrigeration machine and Rs.79,967’50/- the installation charge and Rs.3,02,666/- as compensation for mental agony and business loss totaling Rs.10,021,900/-

3. The gist of the pleading of the opp.parties is that the dispute      between the parties involves complicated question of facts and law, which necessarily entail the leading the copious evidence and hence   issues raised by the complainants cannot be addressed by consumer forum. The Carrier Airconditioning and Refrigeration Ltd. is engaged in business and distribution of marketing of various Airconditioning and Refrigeration items under brand name “CARRIER” and holds reputed position in this field and their products are sold in customers through network across the country and therefore, the case filed against the official of it, is not maintainable as they are not responsible in their individual capacity. However, Mr.Sushil Kr.Sarma was authorized by a power of attorney dtd. 29.1.2013 to perform all acts on behalf of the opp.parties. The cold storage room used by the complainant is not for their livelihood, but for storage of their ice-creams and frozen dessert products which puts the complainant in the category of “Commercial User” as defined u/s 2(i)(d) of Consumer Proteoction Act,1986 and therefore , the complaint is liable to be dismissed . The opp.party supplied Refrigeration equipments for the cold room vide “Invoice No. 9111101833 dtd. 26.12.2011 and 26.12.2011 and vide invoice No.7111100290 dtd. 4.1.2012 supplied the PUF Panel for the cold room and also vide invoice No. 381100285 dtd. 28.3.2012 raised amount of Rs.79,967’50 towards installation of Refrigeration equipments and PUF Panel in the cold room of the complainants and the complainants made payment of Rs.2,39,904/- towards cost of above equipments , but did not make any payment as installation charge. The cold room was duly demonstrated by the complainants as preferred working and so there is no question of giving compensation as presently claim by the complainants. As per terms and warranty , the warranty was for one year from the date of purchase which is includesfree of costrepairs or replacement of any part proved to be defective in material and workmanship. The warranty for compressor of the equipments in the cold room for five years , but said warranty does not cover any loss of refrigerant due to sabotage, improper handling and treatment, carelessness, accident, fire flood, earthquake or any act of God, or any corrosive action on the original Refrigeration pipes, fittings valves etc. and in view of said terms and condition they are not responsible for the same. The technicians of the opp.party duly attended   the cold room when complainants lodged by the complainant, but they are not liable to take back the equipments of the “Cold Room”. Therefore, rectification carried out by their technicians , it was observed that the gas in equipments was beyond the limit of gas charging as prescribed by the opp.parties and it was also observed that the complainants installed an “Anteroom” and partitioned “Cold Room” was done by the complainant through the local market, without any suggestion from them, and the merits and demeritsofthe same were properly explained by them. There is no deficiency on the part of them. On complaint of the complainant there e.mail dtd. 7.6.2012, 10.7.2012, 24.8.2012, 28.9.2012 regarding alleged defects in “Cold Room”, they deputed technician and rectified the problem if any in the said “Cold Room” vide their e.mail dtd. 28.9.2012. They addressed the true fact to the complainant’s and also explained the complainants that alteration made in the “Cold Room” deteriorated the condition of the “Cold Room”. During inspection of the “Cold Room” it was found that the temperature of the room was in 18C to 22C which is perfect for storage of products like ice-cream, but complainant refused to sign the Field Failure-cum-Service Report and thereby the complainant’s have no cause of action to file the complainant. The complainant failed to annexed any report of independent expert as per Act with regard to alleged defect in the equipments installed. Due to frequent power cuts in the area of the complainant, the “Cold Room” started malfunctioning for which opp.parties are not liable. The opp.partieswere constantly attending the “Cold Room” on calling by the complainant and rectified the defect; and for installation of “Anteroom” by the complainant through local market, it started to show demerits in the “Cold Room”, for which, they are not liable. The meeting held between the representative of complainants and the opp.parties in presence of“M/S Cream Bell” whose products are stored in the “Cold Room” of the complainant, and in the said meeting, the allegations, of the complainants were proved to be wrong and then complainant releasedthe much awaited installation charges to the opp.parties. No loss or injury and deficiency is attributed to them as they have committed no deficiency in providing service to the complainant . They are also not negligent in their service towards the complainant. The complaint is frivolous and vaxetitiousand hence it is liable to be dismissed.
4.           We have perused the complaint as well as written statement filed by the opp.parties. We have also perused the argument of Ld. advocate Mr. S. Bhattacharya . After the perusing of complaint petition it transpires to us that the first complainant is M/S Fortune Mercentiles Pvt. Ltd., Kedar Road, Guwahati -1 and the second complainant is the executive director of M/S Fortune Mercentiles Pvt.Ltd.(Complainant No.1). The complainants, in their complaint, declare that Complainant No.1 is a private limited company dealing in business and distribution of products of Devjani Food Industries Ltd, New Delhi, by storing and marketing the various ice-creams and frozen dessert products of the said company at  guwahati and other towns under its Brand Name CREAMBELL FMPL and it decided to install a cold room for storage of its mercantiles in its premises at Kedar road,  and contracted with Carrier Air conditioning and Refrigeration Ltd. Kolkata (Opp.Party No.1 & 2) and placed order to them vide order No. FMPL/111/9/12/2011 dtd.9.12.2011 and FMPL/112/9/12/2011 dtd. 9.12.2011 for supplying said cold room equipments and accessories of value Rs.6,60,144/-.
5.           Now, question is that whether the complainants are consumer as per provision of sec.2(1)(d) of Consumer Protection Act, 1986. It is found that the Complainant No.1 is a private company which consist of more than one member, of which Complainant No.2 is the Executive Director. Secondly, it is found that the complainants got the cold storage system installed in their place of business at Kedar Road , Guwahati, through Opp.Party No.1, 2 & 3; and the said installation was done for development of their business of distribution of said ice creams etc. produced by Devjani Food Industries Ltd, New Delhi. Thus, it is found that the said installation had been procured by the complainants for development of their trade/ commerce meaning thereby that said installation was procured for commercial purpose of the complainant company. Being Complainant No.1 is a private company, it procured such installation for the purpose of earning of the company itself   but not for livelihood of its members, nor for self-employment of its members. Thus, it is found that the complainant company procured the said installation for commercial purpose of it and which means that complainants brought the cold storage equipments as well as its installation from the opp.parties for commercial purpose of the Complainant No. 1, and in such premises it must be held that the Complainant No. 1 is not a “consumer” of the  said transaction under the opp.parties. So that the complainants are not consumers as per provision of sec.2(1)(d) of the Consumer Protection Act,1986. Hence, this forum has no jurisdiction to adjudicate upon the dispute alleged by the complainant and the complaint is liable to be dismissed.
6.          In view of above discussion, we hold that this forum has no jurisdiction to adjudicate upon the allegation raised by the complainants. Hence, the complaint is dismissed . The complainants may to approach the civil court for proper relief if they choose so.

Given under our hands and seal of this forum on this day 20^th Sep.,2016.

Free copies of judgment be delivered to the parties.

 (Mr.U.N. Deka)                                                   (Md.S.Hussain)

   Member                                                                  President