By Smt. C.S. Sulekha Beevi, President,

1. Complainant who is conducting a Maruthi Service Centre at Kunnamkulam for earning his livelihood, happened to see an advertisement of first opposite party and made enquiries through telephone for the purchase of generator set. That complainant was directed to approach second opposite party with whom first opposite party had business relations. That on 18-9-1999 complainant placed order with second opposite party for the gen set by paying Rs.5,000/- as advance towards the total value of Rs.38,000/-. Second opposite party delivered the generator set at his shop. That a mechanic who was introduced as mechanic of first opposite party had accompanied second opposite party along with the gen set. That the gen set was defective and showed starting trouble and other defects. The mechanic left assuring to rectify the defects within a week. Even after several requests no one from first opposite party turned up to rectify the defects of the gen set. Later a service Engineer from first opposite party came and checked the gen set and opined that it is a second hand one. Though complainant made repeated requests to replace the gen set first opposite party has not responded so far. That later complainant received letters on 04-4-2002 and 10-10-2002 from second opposite party demanding the balance payment. That complainant has not used the gen set due to it's defects and has returned it to second opposite party. Hence this complaint alleging deficiency in service. Complainant seeks direction against first opposite party to take back the gen – set and to direct second opposite party to refund Rs.5,000/- and also for compensation and costs.

2. Version was filed by first opposite party denying the complainant to be a consumer as against first opposite party. It is submitted that complainant has not purchased any goods or hired any services from first opposite party and that therefore there is no privity of contract between complainant and first opposite party. That the generator was purchased from first opposite party by second opposite party for the purpose of re-sale and that it is a commercial transaction. That first opposite party had no direct dealing with the complainant. It is further averred that the complainant is running the Maruthi Service Centre by employing several workers and that the generator purchased for the service centre would be a purchase for commercial purpose and that the complainant is not a consumer on this ground also. That the complaint is bad for non-jointer of the manufacturer as a party to this complaint. It is stated by first opposite party that the complaint is filed in collussion with second opposite party and that complainant has not approached the Forum with clean hands. It is submitted that first opposite party is a retail out let for machineries manufactured by different companies. That on 28-8-1999 second opposite party approached first opposite party for the purchase of five marble cutting machines @ Rs.2,200/- each. Cost of these machines were paid by second opposite party. Later on 23-9-1999 as per credit invoice No.1981 second opposite party purchased a Gen set for Rs.37,400/- and issued a cheque towards payment of this amount. This cheque bounced on presentation and first opposite party initiated criminal proceedings against second opposite party under Sec.138 of N.I. Act. The said criminal complaint is pending as CC-866/2000 before the Judicial First Class Magistrate, Kozhikkode. That this complaint is filed on instigation of second opposite party as collusive attempt to compel and coerce first opposite party to withdraw the above Criminal complaint. That there is no defect to the generator sold to second opposite party. The averments that mechanic of first opposite party had installed the generator and that service engineer had checked and opined it to be a second hand one are denied by first opposite party as false. That first opposite party has come to know of these only on receiving copy of this complaint. That there is no negligence or unfair trade practice committed by first opposite party and that the complaint is filed frivolously and vexatiously. That complainant is not entitled to any reliefs and that the complaint is to be dismissed with compensatory costs.

3. Second opposite party has filed version denying the complainant to be a consumer and contending that the complaint is bad for non-jointer of necessary parties. It is submitted by second opposite party that it is a dealer of first opposite party and articles were being sold by first opposite party through second opposite party. That the entire transaction which is the subject matter of this complaint took place between complainant and first opposite party. That as per direction of first opposite party complainant approached second opposite party and placed order gen set by paying advance for Rs.5,000/-. This order was communicated to first opposite party who send the gen set to second opposite party who in turn delivered it to the complainant. That the gen set was delivered by second opposite party in his vehicle with a technician from first opposite party. The gen set showed starting trouble and was defective. The technician could not set it right. Later after repeated requests a service engineer of first opposite party came and checked the gen set and opined that it is second hand one. The requests to replace the gen set was not heeded to by first opposite party. During the pendency of this issue second opposite party issued letters to complainant demanding the balance amount. Complainant has not paid the balance. Complainant has returned the gen set which is lying idle at the residence of second opposite party. That second opposite party has no service Centre or mechanic for doing repairs. That it is the responsibility of first opposite party to repair/replace the gen set and compensate the complainant. That there is no deficiency in service on the part of second opposite party.

4. Third opposite party who is the manufacturer of the gen set was subsequently impleaded as per orders in I.A.261/08. Supplemental third opposite party has not filed any version. No relief is sought by complainant against third opposite party by amending or incorporating any new prayer against third opposite party.

5. Evidence consists of the affidavit filed by complainant and seperate counter affidavits filed by first opposite party and second opposite party. No documents marked for complainant. Exts.B1 and B2 marked for first opposite party.

6. Points for consideration:-

(i) Whether complainant is a consumer.

(ii) Whether opposite parties have committed any unfair trade practice or deficiency in service.

(iii) If so, reliefs and costs.

7. Point(i):-

The foremost contention raised by first opposite party is that there is no privity of contract between complainant and first opposite party and that therefore complainant is not a consumer against first opposite party. According to first opposite party their shop is only a retail outlet for machineries manufactured by different companies. It is submitted that second opposite party is not a dealer of first opposite party and that there is no relationship of agency or dealership between first opposite party and second opposite party. That the transactions are on a principal-to-principal basis, where the second opposite party purchases articles upon payment in the name of second opposite party which may be resold to others. The contention of complainant and that of second opposite party is that the transaction was between complainant and first opposite party and that therefore first opposite party is responsible for repairing or replacing the gen set. We have to say that apart from the affirmation in their respective affidavits there is no reliable evidence adduced by complainant or second opposite party to support this contention. Admittedly the complainant placed the order for gen set before second opposite party and paid th advance of Rs.5,000/- also to second opposite party. Complainant has no case that he paid any amount to first opposite party. Further the generator was delivered to complainant by second opposite party. Ext.B1 which is the credit invoice issued by first opposite party shows that second opposite party purchased the gen set from first opposite party by issuing a cheque for Rs.37,400/- towards it's consideration. It is also stated in Ext.B1 that the gen set is despatched by hand delivery. Moreover it is admitted case that it was second opposite party who demanded from the complainant the balance consideration. For these reasons it can be definitely concluded that the transaction is between complainant and second opposite party only. There is no iota of evidence to show that there is any privity of contract between complainant and first opposite party. Second opposite party who contends that the transaction was for first opposite party has not produced any document to show the type of dealings or business association which second opposite party maintains with first opposite party in order to bring first opposite party also into the picture. From the evidence adduced we have no doubt to hold that complainant is not a consumer in regard to first opposite party. The privity of contract is with second opposite party who has received the part consideration.

8. Both opposite parties have contended that complainant purchased the gen set for use in the Maruthi Service centre in which he is employing several workers and that the purchase being for commercial purpose the complainant is not a consumer. Complainant has sworn that he is conducting the Service Centre for his livelihood. Even assuming that the complainant is employing others for conducting the Service centre, in our view the purchase does not come within the ambit of commercial purpose because the use of the generator in the Service centre does not have any direct nexus with the commercial activity carried out in the Service Centre. We therefore hold that complainant is a consumer as against second opposite party.

9. Point (ii):-

As already discussed the complainant is a consumer as against second opposite party only and so the question whether second opposite party has committed any unfair trade practice or deficiency in service need only be analysed.

10. It is not in dispute that second opposite party received Rs.5,000/- as advance and has delivered the gen – set to complainant. It is also admitted by second opposite party that the gen set did not start properly at the time of installation and that it showed defects. Second opposite party has affirmed that complainant has returned the gen set to him and that at present it is lying idle at his residence. The main contention raised by second opposite party refuting the allegations is that the transaction was between first opposite party and complainant and that it is for first opposite party to do the repair or replacement of the gen set. The gen – set was delivered to complainant in September, 1999. This complaint is filed only on 20-11-2002. Though complainant and second opposite party plead and swear that first opposite party was informed several times about the defects of the generator there is absolutely no evidence to support this. It is strange that for all these years either complainant or second opposite party did not issue any written communication to first opposite party regarding the defect of gen set evenafter complainant returned the gen set to second opposite party. This aspect of delay in filing the complaint and absolute silence on the part of complainant and second opposite party is to be jockeyed with the contention of first opposite party that this complaint is filed in collusion with second opposite party in order to make first opposite party withdraw the criminal complaint filed against second opposite party. Second opposite party does not deny that the cheque issued towards payment of the gen set has bounced. It is also admitted that a criminal case is pending against second opposite party under Sec.138 N. I. Act. Ext.B2 is the copy of the Non-bailable arrest warrant issued by Judicial First Class Magistrate, Kozhikkode against second opposite party in the said criminal case C.C.866/2000. The date of hearing noted in Ext.B2 is 0 3-7-2002. Taking into account the date of filing of this complaint (20-11-2002) and facts of the case the contention of collusion raised by first opposite party is not without substance. Further second opposite party has not produced any document to show the second opposite party is a dealer or agent of first opposite party. So the submissions made on behalf of second opposite party shifting the liability to first opposite party is totally untenable and unacceptable.

11. Eventhough the complainant has not taken any steps to prove the defects of the gen set, it is admitted by second oppostie aprty that the generator did not function properly from the day of delivery itself. Parties have not stated anything regarding the warranty offered for the product. In any case, when the product is defective from day one itself, the consumer has to be definitely compensated by replacing with a new one. As already stated the consideration was received by second opposite party and therefore second opposite party is liable towards the complainant. The act of second opposite party in not redressing the grievance of the complainant amounts to deficiency in service. We find second opposite party deficient in service.

12. Point (iii):-

Admittedly complainant has not paid the full consideration and has also returned the gen set to second opposite party. In view of this fact, we consider that refund of the advance paid by complainant together with interest @ 9% per annum from 18-9-1999 till payment would be adequate relief to the complainant. We exonerate first opposite party from any liability.

13. In the result, we partly allow this complaint and order second opposite party to pay Rs.5,000/- (Rupees Five thousand only) tot he complainant together with interest @ 9% per annum from 18-9-1999 till payment along with costs of Rs.1,000/- (Rupees One thousand only) within three weeks from date of receipt of copy of this order. Since the gen set has been already returned by complainant we do not make any order regarding this.

Dated this 25th day of April, 2009.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER

APPENDIX

Witness examined on the side of the complainant : Nil

Documents marked on the side of the complainant : Nil

Witness examined on the side of the opposite parties : Nil

Documents marked on the side of the opposite parties : Ext.B1 and B2

Ext.B1 : Credit Invoice dated, 23-9-1999 issued by first opposite party

to second opposite party.

Ext.B2 : Photo copy of the Non-bailable arrest warrant dated, 05-4-2002

issued by J.F.C.M., Kozhikkode against second opposite party.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER