Per Shri B.A.Shaikh, Hon’ble Presiding Member.

1.        This is a complaint filed by complainant under Section 17 of Consumer Protection Act, 1986.

2.      The case of the complainant Nos.1 and 2 as set out in the  complaint in brief is as under.

a)      The complainant No.1 is a National Textile Corporation Limited and complainant No.2 is one of the unit of complainant No.1 called as Finlay Mills. The construction work of the complainant No.2 Mill was under taken by complainant No.1. The tenders were called from the suppliers, construction company and etc. The complainants were in need of roofing sheets for the complainant No.2 unit at Achalpur. Grey or coated impact resistant Corrugated Cement Roofing Sheets reinforced with a blend of High Impact Polypropylene (HIPP) were required for the roofing of complainant No.2 Mill during its construction work. The opposite party (for short O.P.) is also an industry. The O.P. submitted their offer alongwith quotation of their various products with specification. The O.P. submitted that its roofing sheets are made in order to meet the required standard and it is having 75 years of experience in the field. The O.P. had also assured that its product lives upto its promises of strength, speed and safety.

b)      Believing the assurances given by the O.P. as above, the complainants entered into contract with the O.P. for supplying of Grey Color Non-Asbestos Hi-Tech impact resistant Corrugated Cement Roofing Sheets reinforced with a blend of High Impact Polypropylene (HIPP). The complainants issued purchase orders dated 17/03/2009 and 03/06/2009 for total amount of Rs.46,01,587/-. The goods supplied by the O.P. were sent for testing with Government College of Engineering of Amravati. The reports were received on 28/05/2009 from the said Engineering College. As per the said reports, the sheets provided by the O.P. were not of required standard as the breaking load which were to be more than 3300 N, the required slandered of the said sheets was actually at 2475.10 N. This fact was brought to the notice of the O.P. The O.P. had assured that the sheets will meet the requirement of the complainants and if they are not the of said requirements then the same will be replaced free of cost.

c)      However when the said sheets were installed, they started leaking during the rainy season and thereby production of the complainant No.2 was hampered. This fact was also brought to the notice of O.P. vide letter dated 30/08/2009.

d)      The O.P. sent its technician in the month of September 2009 and joint inspection was carried out on 18/09/2009. However after the technician attended the problems of leakage, the said problem still persisted during next rainy season as the roof started leaking.  Its information was giving to O.P. vide letter dated 25/06/2010. Again inspection was carried out by the representative of the O.P. and it was observed the hi-tech sheets supplied by O.P. have major cracks resulting into leakages. This fact was also noticed to O.P. vide letters dated 25/06/2010 and 26/06/2010.

e)      Joint meeting also called on 08/07/2010 and minutes of meeting were recorded before the representatives of both the parties. The location of the leakage was spotted and it was agreed that the sheets are wet, they can not be immediately changed, but the measures to stop leakage will be carried out by the O.P. It was also agreed that O.P. will change the sheets in dry condition.

f)       However, thereafter the O.P. did not solve or rectify the problem of leakage. Hence legal notice dated 24/07/2010 was served by the complainant to O.P. calling upon it to rectify the leakage problem by substituting the same with Gavalium Metal Sheets unconditionally. The O.P. replied the same making false allegations against the complainants. The complainants sent e-mails from 20/02/2011 to 29/09/2011 informing the O.P. but no positive response was received by the complainant from the O.P. However only a joint meetings were held on 27/09/2011, 29/09/2011 and 29/09/2011 by the representatives of complainants and O.P. and it was decided that the O.P. will rectify the leakage immediately and give a undertaking of minimum five years that the Hi-Tech sheets supplied by O.P. will be defect free. However the representative of the O.P. refused to sign the said minutes of meetings. Hence the e-mails dated 1/10/2011 and 07/12/2011 were given by the complainant to the O.P.

3.      The O.P. failed to rectify the leakage problem and hence lastly a legal notice dated 23/02/2012 was served by the complainant to the O.P. calling upon it to rectify the problem immediately and  refund the amount which is paid to the O.P. However the O.P. failed to comply with the notice. Hence this complaint is filed against the O.P. seeking direction to O.P. to pay the amount to the complainant as follows.

4.    The complainants also claimed interest @ 15% P.A. over Rs.82,27,559/- from the date of the complaint till realization of the same by them. The complainants further claimed unquantified compensation for physical and mental harassment.

5.       The O.P. appeared before this Commission and filed reply and thereby resisted the complaint. The O.P. raised preliminary objection to the effect that the complaint is barred by limitation and that Commission has no jurisdiction to entertain and decide the complaint as both the complainants are big corporate entities and they purchased the consignment for establishment of infrastructure of big industry and not for construction or installation of any business premises meant for self employment for earning lively hood of family members. The complainant Nos.1 and 2 therefore do not fall with the definition of consumer given under Consumer Protection Act, 1986.

6.    The O.P. admitted the contract entered in to it and the complainants inrespect of supplying Hi-tech roofing sheets for the consideration mentioned in the complaint. However it is the case of the O.P. in brief that while entire fixing work was being done by complainant at the instance of two roofing installers under the main contractor, there was no complaint about quality and standard and the grade of material. But it was noticed that the roofing of the sheets was being done in clear disregards to the O.P.’s specification. Hence O.P. had to depute Mr.Kulkarni and Mr.Shantraj, the technical supervisors for supervision. Moreover, Mr.Swapnil Anjankar (Marketing Officer) also visited the site from time to time. It was observed by the above persons that while doing the centering work, the workers were getting down jumped on the sheets kept near RCC gutter line and due to that reason the cracks were developed in those sheets. The joint inspection was done on 18/09/2009 and it was found that five sheets were damaged due to centering material at back side roof which establishes that quality wise there is no defect in those sheets. There was no privity of contract about the warranty on the point of covering an installation risk. The O.P. had provided additional service to the complainants by supervising of painting of the roof with Ivory White pure water based Acrylic Emulsion paint and subsequently work of reaffixing of sheets through “Yashashree Enterprises” for which payment was to be made by the complainant as agreed vide e-mail reply dated 01/08/2011. But instead of clearing the dues of Rs.5,38,000/-, the complainants have filed this false complaint to generate pressure on O.P.to get maintenance of roofing job done free of cost from the O.P.

7.      The O.P. further submitted that the complainants did not observe mandatory specification prescribed by O.P. for fitting and installation. The complainants incurred loss and damages due to that reason. The O.P. got some of the rectification work done as a gesture of goodwill. It is denied that the sheets developed cracks due to defect therein. The sheets may develop cracks due to not installing the same properly. The report of the Government College of Engineering at Amravati is denied as it is a manipulated report. The allegations of the sub-standard quality of the sheets is also denied. Therefore it is prayed by the O.P. that complaint may be dismissed with cost.

8.     The complainants alongwith the complaint filed copies of following documents.

             Invitation letter, offer letter by the O.P., purchase order, investigation report by Government College of Engineering at Amravati, letter by complainant to O.P., joint inspection report, letter by complainant with office note, minutes of meeting, legal notices, reply to legal notices and e-mails between complainant and O.P., appreciation letter to Everest Industry, photographs of the sheets, letter issued to R.Lall (GEL), mail for description of the sheets to Finlay Mills, description of services from Mohit Greenwold power of attorney. Complainants also filed additional submission.

9.    The O.P. filed evidence affidavit of Mr.Mohit Greenworld, its Marketing Manager.

10.     The O.P. filed an application for dismissal of the complaint on the ground that it is barred by limitation. The complainant filed reply to the same. The O.P. also filed a separate application for dismissal of the complaint on the ground that it is not maintainable under Consumer Protection Act, 1986.

11.     The learned advocate of the O.P. relied on the decision in the case of Birla Technologies Ltd……V/s……Neutral Glass and Allied Industries Ltd., 2011 (1) CPR 1 (SC).

12.   We have heard learned advocate Smt.Renuka Nalamwar who appeared for the complainant and learned advocate Mr. P.S.Khare who appeared for the O.P. We have also perused the entire record and proceedings of the complaint.

13.     At the out set it is made clear that this Commission already held under its order dated 15/07/2015 that the cause of action for filing the complaint was continued till 04/07/2012, when for the first time the O.P. refused to replace the sheets and that as the complaint was filed on 07/05/2013, it is not barred by limitation. Accordingly as per the said order dated 15/07/2015 the application made by the advocate of the O.P. to dismiss the complaint on the ground of limitation came to be rejected.

14.       Now the question arises as to whether the complainant Nos.1 and 2 fall within a definition of consumer given under Section 2(1)(d) of Consumer Protection Act. The learned advocate of the O.P. submitted that the complainants do not fall within the said definition of consumer as the purchase of Hi- tech sheets is made for establishment of huge infrastructure of their big corporate entity and hence the said transaction is made for commercial purposes only. Hence complaint is not maintainable.

15.     On the other hand, the learned advocate of the complainants submitted that the roofing sheets were not used for generation of profit but they were purchased for construction of the roof of mill only and hence there is no question of commercial purpose behind the purchasing of the said roofing sheets. He relied on the decisions in the following two cases.

i)        M/s.Harsholia Motors…….V/s…….M/s.National Insurance Co.Ltd., in appeal No.159/2004, decided only with other two appeal Nos.160/2004 and 161/2004 by Hon’ble National Commission on 03/12/2004. It is observed in the said decision that the manufacturer if purchases a refrigerator, television or an air-conditioner for his use at his residence or even in his office, it cannot be held to be for commercial purpose and for this purpose he is entitled to approach the Consumer Forum under Consumer Protection Act.   

ii)       Laxmi Engineering Works…….V/s……P.S.G.Industrial Institute, AIR 1995 Supreme Court 1428. The following observation are made in the said decision.

“We must, therefore hold that (i) the explanation added by the Consumer Protection (Amendment) Act 50 of 1993 ( replacing Ordinance 24 of 1993) with effect from 18/06/1993 is clarificatory in nature and applies to all pending proceedings.

Whether the purpose for which a person has bought goods is a “commercial purpose” within the meaning of the definition of expression “consumer” in Section 2(d) of the Act is always a question of fact to be decided in the facts and circumstances of each case.

A person who buys goods and uses them himself, exclusively for the purpose of earning his livelihood by means of self-employment is within the definition of the expression “consumer”.

So far as the present case is concerned, we must hold ( in agreement with the National Commission), having regard to the nature and character of the machine and the material on record that it is not goods which the appellant purchased for use by himself exclusively for the purpose of earning his livelihood by means of self-employment, as explained hereinabove.”

16.    It is thus seen from the averments made in the complaint that the complainant No.1 is a big National Textile Corporation and complainant No.2 is its one of the Mill and it is also one of the unit of complainant No.1. Moreover the construction work of the complainant No.2 was under taken by complainant No.1 and for the purpose of the same, the agreement was entered into between complainants and O.P. inrespect of the roofing sheets of which description is given in detail in the complaint. However it is alleged by the complainants that as the roofing sheets started leakaging and developed cracks, and as the said defects was not removed by the O.P., the complainants suffered loss. Moreover, they also specifically alleged in para No.6 of the complaint that due to leaking problem, the production was hampered. Moreover, it is also stated in para No.9 of the complaint that leakage caused problems to the machine installed and it severally effected the production of the Mill and the entire work was stopped. The complainants claimed compensation of Rs. 8,00,000/-  for the said loss.

17.    In this contest, the useful reference can be made to the  decisions in following cases.

1. Birla Technologies Ltd……V/s……Neutral Glass and Allied Industries Ltd., 2011 (1) CPR 1 (SC). In that case it was held that the software purchased by the complainant amounted to ‘goods’ and as they were purchased for commercial purpose of earning profit and therefore the complaint was not maintainable.
2. Dream Works Entertainment and Software Ltd……V/s……B.S.E.S.Limited, I (2005) CPJ 16. Maharashtra State Consumer Disputes Redressal Commission, Mumbai. In that case the corporate entity hired services from Electricity Board and it is held that the dispute before the Forum is not maintainable.
3. M/s. Kone Elevator India (P) Ltd…….V/s……Saket Medical and Research Centre (P) Ltd., decided by Hon’ble National Commission in Revision Petition No.4403 of 2014, decided on 13/07/2015. In that case the lift was purchased for the use in the private hospital. It is held by the Hon’ble National Commission that the lifts were meant for expansion of the hospital being run by the complainant by adding new operation theatres, new ward at second and third floor and new projects for which facility of lifts was required. It is also held that the services of the patitioners were availed for commercial purpose and hence complaint filed before the Consumer Forum is not maintainable.

18.   In the instant case we find that the roofing sheets were purchased by the complainants for establishing and running their big corporate industry and particularly for establishment of complainant No.2. Thus the purpose of purchasing roofing sheets was to establish the industry and to make the profit from the establishments of the said industry. In our view establishment of hug infrastructure by complainant No.1 and 2 with the help of roofing sheets is sufficient to come to the conclusion that the purpose of purchasing the roofing sheets was only for earning profits.

19.      Moreover, as the complainant Nos.1 and 2 are the legal entity, there is no question of maintenance of the lively hood of any body by means of self employment.    

20.      We therefore find substance in the submission of the learned advocate of the O.P. that the complainants do not fall within the definition of consumer given under Section 2(1)(d) of Consumer Protection Act, 1986, and hence complaint is not maintainable before this Commission. On this sole ground the complaint deserves to be dismissed.

21.      Thus without entertaining the other aspect of the case, we hold that the complaint deserves to be dismissed.

// ORDER //

1.       The complaint is dismissed.
2.       No order as to cost.
3. The complainants are at liberty to approach competent Court of law for seeking redressal of their grievance against the opposite party in accordance with law.
4. Copy of this order be furnished to both parties free of cost.