Haryana

Jind

CC/379/2012

Ajay Kumar - Complainant(s)

Versus

Hyderabad Industries - Opp.Party(s)

Sh A.K. Singla

22 Dec 2016

ORDER

BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JIND.
                                 Complaint Case No:379 of 2012
                                 Date of institution  :24.12.2012
                                 Date of decision      :
Ajay Kumar s/o Sh. Ranjeet Singh r/o village Dighal Teh. Beri Distt. Jhajjar (Haryana) partner of Ware-House site of Ismailpur Teh. Narwana Distt. Jind.

                                       ...Complainant.
Versus
Hyderabad Industries Limited Sanath-Nagar, Hyderabad through its Managing Director Mr. Abhaya Shankar.
Mr. Shyam Maheshwari, Vice President sheeting business H.I.L. Ltd. Sanath-Nagar Hyderabad.
Mr. Ashuthosh Raina, A.G.M. Hyderabad Industries Ltd. Sector 25, Faridabad.
Mr. Sahid Aftab, Head of Quality Department, Hyderabad Industries Ltd. Sector 25, Faridabad.
Hyderabad Industries Limited, Haryana State through its State Head Mr. Rakesh Diwan, Sector 25, Faridabad.
Mr. Jag Mohan Personell, Quality Department, Hyderabad Industries Ltd. Sector 25, Faridabad.
Mr. Ajay Kumar Personell, Quality Department Hyderabad Industries Ltd. Sector 25, Faridabad.
Milan Trading Company, Gohana Road, Jind through its proprietor Mahender Singh s/o Sh. Chattar Singh r/o 3950, Urban Estate, Jind.    
                                      …Opposite parties.
                 Complaint under section 12 of
                Consumer Protection Act, 1986.

CORAM: SH.A.K. SARDANA PRESIDENT.
                SMT. BIMLA SHEOKAND, MEMBER.
                SH. M.K. KHURANA, MEMBER. 
   
Present:-    Sh. A.K. Singla Adv. counsel for complainant. 
                  Sh. Vinod Bansal, Adv.  counsel for OPs No.1 to7. 
                 OP No.8 ex-parte.
            
Order:-
        Brief facts of the present complaint are that  complainant is a partner alongwith Smt. Sheela Devi & Smt. Ramandeep Kaur in the Ware-House Site  at village Ismailpur Tehsil Narwana Distt. Jind whereas  OP No.1 is manufacturer of AC sheets having its industry in Hyderabad & OPNo.5 is its unit in Haryana and OPs No.2 to 7 are officials of the company i.e. OP No.1 and OP No.8 is the local distributor  of OP company at Jind. Complainant firm was constituted for construction of ware house at village Ismailpur, Teh. Narwana Distt. Jind for storage of 57000 metric tons grain   and for that purpose, complainant  started work at the site for construction of godowns where the OPs No.4,6 &8 contacted the complainant on 3.9.2011 for sale of AC sheets for roofing of the godowns and assured that their company will provide prompt services  and will also provide AC sheets as per requirement of the complainant and further assured for providing after sale services i.e. technical assistance for affixing the AC sheet for roofing and also assured that OP No.1 will replace all broken AC sheets till its fixation. After 2/3  meetings, on 28.11.2011 it was finalized that  complainant required 12600 sheets of 3 mtrs each and 3000 sheets of 2 mtrs each and  was agreed between the parties that  OP No.1 will supply the  aforesaid sheets to the complainant at his site including transportation charges @ Rs. 150/- per running mtr and thus the  complainant made a payment of Rs.5,00,000/- on 8.12.2011 for supply of the AC sheets qua roofing of the godown. During all the transactions, 12316 sheets of 3 mtrs, 1410 of 2½ mtrs, 2596 sheets of 1 mtr and 1185 pairs of N.K. 2 were supplied by OPs at site against bills wherein  752 sheets were reported as broken sheets on the challans of transporter issued by  OPs.  Thereafter OPs No.6 to 8 visited the site of complainant on 5, 6 & 7 October, 2012 for assessing the losses finally and found breakage of sheets to the extent of 3866.75 running meters and recommended for replacement of the same. Out of above-stated assessed loss/ breakage etc., complainant got the replacement of 945 running meters whereas the remaining  sheets of 2921.75 running meters were not replaced by the OPs despite repeated requests. As such, the complainant has submitted that the OPs are  deficient in not providing proper services to him by not replacing the sheets in question and  prayed that the complaint be accepted and OPs be directed to  make the payment of Rs.4,38,262.50/- total loss of broken sheets alongwith interest @18% p.a.  and damages to the tune of Rs.10,00,000/- on account of losses in business rent and a sum of Rs.1,00,000/- as compensation on account of mental pain & harassment and to pay a sum of Rs.20,000/- as litigation expenses  to the complainant.  
2.        Upon notice,   OPs No.1 to 7 appeared through counsel whereas OP No.8 failed to appear despite service and  was proceeded against ex-parte vide order dated 1.7.2013 passed by the Forum. OPs No.1 to 7 tendered reply to the complaint  raising preliminary objections that the complainant has neither cause of action nor locus-standi to file the present complaint and the  complaint is not maintainable in the present  form since the complainant does not fall in the definition of consumer as the complainant is constructing the sheds/warehouse for using the same for commercial purposes and for raising profits in the shape of rent etc. for the storage of grains from Govt. Agencies or othersise. On merits,  the answering OPs  contended that company intends to provide best services and only for that purposes, some sheets were replaced as stated by the complainant whereas company was not responsible for replacing the broken sheets. The site was inspected by the officials of the company and never promised to replace the broken sheets. It is denied that the officers of the company assured to replace the broken sheets even upto the fixation of the sheets on roofs or in transportation or  at the site of complainant. It has been further contended by the OPs that they  are not responsible for any claim amount to the complainant as demanded  and prayed for dismissal of complaint against answering OPs.
3.    To prove his contention, counsel for  complainant tendered  affidavit of complainant as Ex. C-1, alongwith  documents as  Ex. C-2 to C-6  and closed the  evidence whereas on the other hand, counsel for OPs No.1 to 7  tendered affidavit of Sh. R.C. Aggarwal, Deputy Manager OP company as Ex. OP-3 alongwith documents as Ex. OP-1 & Ex. OP-2 and closed the evidence on behalf of OPs No.1 to 7. 
4.    We have heard the Ld. Counsels for  the parties and perused the record placed on file. The Ld. Counsel for complainant argued that the complainant was in need of A.C. sheets for the construction of warehouse and thus he placed the orders for the same to OP No.1  manufacturer through OP No.8 local distributor of the company who provides sale-services against commission. The Ld. Counsel for the complainant further argued that at the time of placing of order by complainant, it was assured by the OPs that the A.C. sheets will be supplied at the site of construction of the said warehouse i.e. F.O.R. at site and the technical/expert guidance for fixing of the sheets shall also be provided to the complainant. Besides it, OPs also assured that the breakage of A.C. sheets, if any, will be replaced free of cost. During  transportation and fixation of sheets, huge breakage of the sheets happened but some of sheets were replaced by the OPs on the request of the complainant. The Ld. Counsel for complainant further relied upon the documents Ex. C-2 to C-5 i.e. customer complaint investigation and close out forms according to which sheets were inspected by the officials of the OP company from time to time at the site  in the presence of the complainant and the rejected sheets were clearly sorted out detailing net loss in running meters. In the last inspection conducted on 5,6,7.10.2012 ( Ex. C-5), the total breakages of sheets has been calculated by OP’s representative  as 3866.75 running mtrs as net loss to the complainant, which has been further certified by the  Marketing Representative of the company i.e. OP No.1  against which only 945 running mtrs sheets has been admittedly  replaced by OPs. Counsel for complainant further argued that the complainant has paid the whole cost of sheets amounting to Rs.41,92,973/- to OP company as clear from statement of Accounts (Ex.C-6) issued by OP company qua the account of complainant showing zero balance on 30.11.2012. As all the broken sheets were not replaced by the OPs, thereby an amount of Rs.4,38,262.50P. is outstanding against the OPs as purchase cost of the remaining 2921.75 running meters broken sheets which the complainant purchased from the open market at higher rate to complete the construction of warehouse and thereby suffered a huge loss and requested for issuing a direction to OP to pay the cost of the breakage of sheets alongwith  compensation etc. as prayed in the complaint. 
5.    On the other hand, counsel for OPs argued that the above said sheets were purchased by the complainant for commercial purpose as the warehouse so constructed were to be given on rent to some Govt./Semi Govt. agencies and hence the complainant does not fall under the definition of consumer. He further argued that there was no such agreement for the replacement of the broken/rejected sheets and some of broken sheets were replaced for the goodwill and reputation of the company and requested for dismissal of the  present complaint. To rebut  the arguments of the Ld. Counsel for the OPs, Ld. Counsel for complainant emphasized that such sheets so purchased by the complainant were only to be consumed in the construction of warehouse and were not purchased for resale purpose. As such, the complainant very much comes under the definition of the consumer as per provisions contained in Consumer Protection Act. Counsel for complainant further argued that the company has replaced only 945 running mtrs of sheets as per contract & promise and not for goodwill of the company as alleged. So, the OPs were bound to replace the remaining broken sheets. 
6.    After hearing the rival contention of the parties and going through the record, the foremost  question arises for consideration before the Forum is that “Whether the complainant is  covered in the definition of consumer as enshrined in the provisions of C.P. Act?” In our view, as the sheets were purchased by the complainant for consuming the same for himself in the construction of his warehouse and not for resale purpose, he is very much covered in the definition of consumer and thus the objection raised by the OP is not tenable. To support the aforesaid version, counsel for complainant also submitted a case law rendered by Hon’ble National Consumer Disputes Redressal  Commission New Delhi in case titled as Canara Bank and others Vs. Jain Motor Trading Company & others reported in IV (2013) CPJ 336 (NC) wherein it has been held that “Commercial concerns per se are not excluded from filing complaint under the Act if it does not involve direct generation of profits or resale.  OCC facility was sought from bank to help & resolve financial difficulties being faced by respondent which was not per se commercial activity generating profits. Complainant consumer.” Accordingly we have no hesitation in holding that the complainant is consumer of OP company and is entitled for replacement of total broken sheets i.e. 3866.75 running meters as worked out by official of OP company vide investigation & close out form dated 7.10.2012 (Ex. C-5). Out of the said 3866.75 running mtrs, OP company has admittedly replaced 945 running mtrs sheets and remaining 2921.75 running mtrs sheets, complainant has to arrange/ purchase from the open market due to non replacement of the same by OP company and thus the complainant is entitled for refund of the cost of same from OP company alongith interest. As such, we are of the confirmed view that OPs No.1 to 7 are deficient in providing proper services to the complainant and thus we allow the present complaint & directs to OPs No.1 to 7 to comply with the following directions within 30 days  from the communication of this order:-
(i )    To  pay Rs.4,38,262.50 N.P. to the complainant as cost of the breakage of sheets alongwith simple interest @ 9% p.a. from the date of institution of complaint to till date.
(ii)    To pay a sum of Rs.50,000/- to the complainant on account of     
 Punitive damages for loss in business of rent etc.
 (iii)  To pay a sum of Rs.50,000/- as compensation on account of   
         mental harassment & physical pain etc.
 (iv)  To pay a sum of Rs.20,000/- as litigation expenses etc.

             Let the aforesaid order/directions issued above must be complied with by the OPs No.1 to 7 within the stipulated period failing which all the awarded amounts shall further attract simple interest @12% per annum for the period of default. So, the complaint is decided in above terms. A copy of this order be sent to the parties concerned free of cost. File be consigned to the record room after due compliance. 
Announced:
                                                                                                                                                                 PRESIDENT                                                                                                                                                                                             District Consumer Disputes
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