Date of Filing : 05.04.2021
Date of Disposal : 10.11.2022
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
THIRUVALLUR
BEFORE TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law) .…. PRESIDENT
THIRU.J.JAYASHANKAR. B.A., B.L., ....MEMBER-I
THIRU.P.MURUGAN, M.COM.,ICWA (Inter),B.L., ......MEMBER-II
CC. No.45/2021
THIS WEDNESDAY, THE 10th DAY OF NOVEMBER 2022
M/s.Cybele Insustries Limited,
corporate Office 138 and 179,
SIDCO Industrial Estate,
Ambattur, Chennai – 600 098.
Rep. by its Authorised Signatory,
Mr.P.Sasikumar – Sr.Manager – Accounts. ……Complainant.
//Vs//
LMI India Private Limited,
LMI Tower, B-95, Sector – 8,
Dwarka, Delhi – 110 077, Delhi,
Rep. by its Director, …..opposite party.
Counsel for the complainant : M/s.K.Udayakumar, Advocate.
Counsel for the opposite party : exparte
This complaint is coming before us on various dates and finally on 31.10.2022 in the presence of M/s.K.Udayakumar Advocate counsel for the complainant and the opposite party was set exparte for non appearance and upon perusing the documents and evidences of the complainant this Commission delivered the following:
ORDER
PRONOUNCED BY TMT. S.M. LATHA MAHESWARI, PRESIDENT
This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the opposite party in supplying the defective OD Controller against the opposite parties along with a prayer to take back the defective goods and return the amount of Rs.6,11,712/- paid by the complainant with 12% interest from 06.12.2019 to 02.02.2021 and to pay a sum of Rs.12,00,000/- towards compensation for the mental agony and unfair trade practice committed by them along with cost.
Summary of facts culminating into complaint:-
It was the case of the complainant that opposite party is a public limited company involved in the manufacture of insulated wire and cable (insulated including enamelled (or) anodized) wire, cable (including coaxial cable) and other insulated conductors, insulated strip used in large capacity machines or Central equipment and optical fiber cables. The complainant purchased two OD controllers from the opposite parties. Initially one OD controller with single axis and another one with dual axis was ordered and the total order purchase cost was Rs.6,79,680/- and the materials were delivered and installed on 17.01.2020. After installation the OD controllers in their extruder machines were not properly working and number of times the Engineers tried to clear the problem. However, the equipments fault could not be rectified and therefore the matter was highlighted and taken up with the Director of the opposite party but they failed to rectify the problem. On 16.03.2020 email was sent to one Mr. Radhakrishnan the opposite party’s Chennai Representative informing the failure of the equipment supplied by the opposite party. Initially there was no problem when the OD equipment was under observation. Once the display mode started working the LM10 D controller got disturbed and the same had spoiled the drive unit in the machine and capstan automatically running. The complainant’s personnel in the plant are unable to control the OD and the OD is going above the Spec and due to this the product got rejected. The unit got failed and the same was taken by the opposite party personnel for rectification. That time the equipment was corrected and again tested for its function, again the same issue in Extruder-4 also with double axis OD controller also. Again the opposite party replaced the new OD controller unit and fixed in Extruder -3 for checking the OD controller. This time without making control on the machine got disturbed with display mode itself and automatically capstan was running. The drive once again got failed and product also got rejected with single axis in Extruder -3, the issue happened for automatic running of machine without control on mode. There were several email transactions and correspondences and meeting between the complainant and the opposite party but the opposite party had not provided the rectified equipment and inspite of frequent visits by the opposite party’s Engineers the problem still continues and not resolved till date. The complainant’s office requested the opposite party to provide them with problem free OD controller equipment at the earliest. Due to faulty and substandard equipment supplied by the opposite party the complainant had suffered huge substantial loss to its industry. Thus alleging deficiency in service in supplying the defective equipment and failing to rectify the defects, the present complaint was filed for reliefs mentioned above.
On the side of complainant proof affidavit was filed and documents marked as Ex.A1 to A15 were submitted on their side. In spite of sufficient opportunities and notice the opposite party did not appear before this Commission and hence he was called absent and set ex-parte on 01.08.2022 for non appearance and for non filing of written version.
Points for consideration:
Whether the complaint is maintainable before this commission?
Whether the alleged deficiency in service on the part of the opposite parties in selling the defective equipments has been successfully proved by the complainant with admissible evidence?
If so to what relief the complainant is entitled?
Point:1
The following documents were filed on the side of complainant in support of their contentions;
Purchase order dated 13.12.2019 was marked as Ex.A1;
Profoma invoice dated 16.12.2019 was marked as Ex.A2;
Tax Invoice dated 02.01.2020 was marked as Ex.A3;
Challan issued by the opposite party dated 06.10.2020 was marked as Ex.A4;
E-way bill dated 04.01.2020 was marked as Ex.A5;
Mail of the complainant to the opposite party dated 16.03.2020 was marked as Ex.A6;
Mail of the complainant to the opposite party dated 29.05.2020 was marked as Ex.A7;
Mail from the opposite party to the complainant dated 18.06.2020 was marked as Ex.A8;
Emails from the complainant to the opposite party were marked as Ex.A9 to Ex.A11;
Mail from the opposite party to the complainant dated 05.08.2020 was marked as Ex.A12;
Mail transactions between the complainant and opposite party from 09.10.2020 to January 2021 was marked as Ex.A13;
Mail transactions between the complainant and opposite party dated 03.02.2021 was marked as Ex.A14;
Authorization letter dated 29.03.2021 was marked as Ex.A15;
At the time of filing the complaint a question has been raised as to maintainability of complaint for which the complainant had submitted decision rendered by NCDRC and Supreme Court to show that the complainant is a consumer. Being a question of law this commission decided to discuss the point to determine the maintainability of the complaint as the complainant is an artificial person and the transaction involved is commercial in nature. The decision rendered by the National Consumer Disputes Redressal Commission in Jindal Drilling and Industries Vs Indocon Engineers Private Limited dated 08.05.2005 reported in 3 (2006) CPJ 264 NC was produced wherein in a similar case the complainant had filed the complaint for deficiency in service seeking for refund of the sale price wherein the issue as to whether the complainant is a consumer has been discussed and held that the complainant is a consumer within the definition of 2.1(d) of the Consumer Protection Act’1986. In that decision it has been held that though the transaction was commercial in nature when the equipment/product purchased was within the warranty period but was defective, the purchaser will come under the definition of a consumer and the consumer complaint is maintainable. It has been quoted as follows:
(d) As against these decisions, subsequently this Commission has held that if any goods are purchased and are found to be defective during the warranty period then the goods/machine has to be replaced or has to be compensated as he comes within the ambit of definition of "Consumer" even if the goods or, the machines were used for commercial purposes. This has been fortified by the decisions of the Commission in the following cases:
(e) Meera & Co. Ltd. v. Chittar Synten Ltd. II (2004) CPJ 24 (NC) : (2004 CTJ 1086 (CP) (NCDRC), this Commission has held that even if the generating set purchased by the complainant for a commercial purpose, it suffered the alleged defects during its warranty period of one year and, therefore, the complainant was well within its right to move the Consumer Forums under the Act, it being a consumer of the opposite party's service. This Commission also mentioned that if any authority is needed on that settled position in law, reference may be made to the decision in Amtrex Ambience Ltd. v. M/s. Alpha Radios and Anr. I (1996) CPJ 324(NC).
(f) In Amtrex Ambience Ltd.'s case this Commission has held that where the allegation of the complainant was that there was malfunctioning of the machinery/equipment during the period of warranty when the manufacturer had undertaken to keep the machinery in good working condition, even if sold for commercial purpose, the purchaser will certainly be a consumer under Section 2(1)(d)(ii) in respect of services x-endered or to be rendered by the seller for the proper functioning of the machinery/ equipment, system during the period of warranty. The complainant had filed an affidavit to the effect that the opposite parties failed to rectify the defects in the malfunctioning of the airconditioning system during the warranty period.
Accordingly, ratio of the decision in the cases quoted by the learned Counsel for the opposite parties are different from above mentioned two cases. In a catena of judgments, this Commission has held that though the goods are purchased for commercial purpose if defects are noticed during the warranty period, the purchaser becomes a consumer and the supplier of the machine has to compensate the purchaser by either repairing the goods, replacing the goods or refunding the amount. Hence, the three cases quoted will not be of any assistance to the respondent.
He also submitted another Supreme Court judgement wherein a commercial transaction was questioned and held that the burden is on the complainant to establish that he is a consumer and the transaction was carried out to earn his livelihood. Thus satisfied with the above decisions this commission feels that the present complaint filed before this commission within the warranty period is maintainable.
Point No.2:
With regard to proof of deficiency in service on the part of the opposite party the complainant had filed written arguments with an endorsement that the same may be treated as oral arguments and hence we considered the pleadings and evidences and the written arguments to decide the issue of deficiency in service. The complainant has produced the purchase order dated 13.12.2019 for the purchase of LASER SCAN GAUGE-LS8120 (AS PER ANNEXURE-I) and LASER SCAN GAUGE-LS8220 (AS PER ANNEXURE-II) for a total sale price of Rs.6,79,680/- from the opposite party’s supplier LMI INDIA (P)LTD. Ex.A6 e-mail correspondences were filed wherein the defect in the machine has been intimated to the opposite party on 16.03.2020 and also it has been mentioned that “Once display mode is working fine we have started control non system in OD controller for controlling the OD. After control on the LMI OF controller got disturbed and same was spoiled the drive unit in the machine and capstan automatically running and we are unable to control the OD and the OD going above the spec and due to this the product got rejected. LMI unit board failure occurred and same was taken by LMI personal” and also mentioned that the OD controller unit along with board had taken for correction by the opposite party LMI personal and was corrected but again got failed and the product was rejected. Further on 29.05.2020 a mail was sent regarding the said issue. The email sent by the opposite party dated 18.06.2020 vide Ex.A8 stating that due to lock down there was delay in rectifying the defects was follows “we are making ready a PLC and touch screen HMI module to work with diameter gauge. PLC program and testing is happening. The continuous lockdown and travel restrictions imposed in Delhi and Chennai is reason for delay. Please bear with us”. After several emails correspondences on 09.10.2020 the complainant informed that still the OD controller was under variation and they had lost around 8.5/- lakhs materials and also requested the opposite party to resolve the problem or else to take back the OD controller and return back the money. On 23.10.2020 the opposite party sent an email assuring that the job would be done in the first week of November 2020. Finally a mail was sent on 06.01.2021 to the opposite party and it was informed by the complainant that still the LMI OF controller Single Axis and Dual Axis was not provided and the issue was not resolved as there was no response. On 03.02.2021 the complainant sent an email to the opposite party to refund the amount with 12% interest and to take back the equipment supplied by the opposite party.
On appreciation of the email correspondences, it is clear that the equipment supplied to the complainant by the opposite party suffers some defects which were not rectified by the opposite party despite several promises made by them seeking time and opportunities. As the fault is admitted by the opposite party no necessity arises for any expert opinion or any further proof to establish the defect in the equipment purchased by the complainant. Also the opposite party failed to appear to raise any defence against the complaint allegations. In such circumstances this commission could safely conclude that the OD controller “LASER SCAN GAUGE-LS8120 (AS PER ANNEXURE-I) and LASER SCAN GAUGE-LS8220 (AS PER ANNEXURE-II)” supplied to the complainant suffers with defects and that the opposite party had committed deficiency in service in not rectifying the same. Thus we answer the point accordingly in favour of the complainant and as against the opposite parties.
Point No.3:
As we have held above that the opposite party had committed deficiency in service in supplying the defective equipment and also failed to rectify the defects this commission feels that the complainant is entitled to be compensated for the same. The complainant in his complaint sought for refund of the amount paid by him towards purchase of the product i.e.6,11,712/- along with 12% interest and also a compensation of Rs.12,00,000/-. However in the interest of justice, we direct the opposite party to refund the amount paid by the complainant towards purchase of the product and also to pay a compensation of Rs.50,000/- for the mental agony and hardship suffered by the complainant. As no proof has been submitted by the complainant to show that he sustained financial loss and in the absence of any evidences this commission could not quantify any amount towards their financial loss and hence this commission restrain itself from awarding any compensation towards financial loss. We also award Rs.10,000/- towards cost of the proceedings to the complainant.
In the result, the complaint is partly allowed against the opposite party directing them
a) to refund a sum of Rs.6,11,712/-(Rupees six lakhs leaven thousand seven hundred and twelve only) on returning the equipments to the opposite party by the complainant within six weeks from the date of receipt of copy of this order;
b) to pay a sum of Rs.50,000/- (Rupees fifty thousand only) towards compensation for the mental agony caused to the complainant;
c) to pay a sum of Rs.10,000/- (Rupees ten thousand only) towards litigation expenses to the complainant;
d) Amount in clause (a) if not paid within six weeks from the date of receipt of copy of this order, interest at the rate of 9% will be levied on the said amount from date of complaint till realization.
Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 10th day of November 2022.
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MEMBER-II MEMBER I PRESIDENT
List of document filed by the complainant:-
Ex.A1 13.12.2019 Purchase order. Xerox
Ex.A2 06.12.2019 Profoma Invoice. Xerox
Ex.A3 02.01.2020 Tax Invoice. Xerox
Ex.A4 06.01.2020 Challan issued by the opposite party. Xerox
Ex.A5 27.01.2020 e-way bill. Xerox
Ex.A6 16.03.2020 Mail of the complainant to the oppostie party. Xerox
Ex.A7 29.05.2020 Mail of the complainant to the opposite party. Xerox
Ex.A8 18.06.2020 Mail from opposite party to the complainant. Xerox
Ex.A9 11.07.2020 Mail from the complainant to the opposite party. Xerox
Ex.A10 25.07.2020 Mail from the complainant to the opposite party. Xerox
Ex.A11 03.08.2020 Mail from the complainant to the opposite party. Xerox
Ex.A12 05.08.2020 Mail from the opposite party to the complainant. Xerox
Ex.A13 09.10.2020 to Jan 2021 Mail transactions between the complainant and opposite party. Xerox
Ex.A14 03.02.2021 Mail correspondence from the complainant to the oppostie party. Xerox
Ex.A15 29.03.2021 Authorization letter. Xerox
List of documents filed by the opposite party - Nil
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MEMBER-II MEMBER I PRESIDENT
