BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Date of filing : 11/08/2009
Date of Order : 31/12/2011
Present :-
Shri. A. Rajesh, President.
Shri. Paul Gomez, Member.
Smt. C.K. Lekhamma, Member.
C.C. No. 436/2009
Between
M/s. Spectrum Softtech Solutions Pvt. Ltd., | :: | Complainant |
(Rep. by the Chief Executive Officer, Mr. Manoj Padmanabhan), Mahakavi G. Road, Cochin – 682 011. |
| (By Adv. Sheeba. K.P., Apartment 7-A, Mahakavi G. Road, Spectrum Building, Ernakulam - 11) |
And
1. Manager/Authorized Signatory, | :: | Opposite parties |
M/s. Unipower Engineers Pvt. Ltd., Puthenveettil (H), Kathrikadavu, Kochi – 682 017. 2. Managing Director/ Authorized Signatory, M/s. Unipower Engineers Pvt. Ltd., 14, Lakshmi Building, 2nd Floor, J.C.Road, Bangalore – 560 002. |
| (Op.pts. by Adv. Praveen Hariharan, Geeyech Associates, III Floor, Peedikathodiyil Buildings, Near Reserve Bank of India, Lisie Jn., Kochi - 18) |
O R D E R
A. Rajesh, President.
1. Briefly stated, the case of the complainant is as follows :-
The complainant is a private limited company incorporated with the objective of providing quality service in the field of Information Technology and IT enabled services. Based on the quotation placed by the opposite parties, the complainant purchased a generator of Volvo engine with KEL alternator from them on 07-02-2006. The machine is under annual maintenance contract with the opposite parties. On 17-12-2008, it was found that the charging alternator of the generator gets ever heated even the same is not working. The opposite party could not rectify the defect on repeated attempts. However, they installed the same claiming that they have rectified the defect. Further at the instance of the opposite parties, the complainant fixed an outer recharging unit to recharge the battery to run the generator during power failure. The removal and installation process were continued for five times till 13-03-2009. Finally, they resolved the problem on 13-03-2009. Again on 21-04-2009, the machine became defunct. As per the direction of the opposite parties, the complainant replaced the EDC III the main controlling unit of the generator set by spending Rs. 2,50,519/-. Eventhough, the EDC III was replaced the machine was not working. As per the direction of the service personal, the relay worth Rs. 250/- was replaced. It is very much evident that the cause of non-working of the set was not because of the complaint of EDC III but of the fault in the relay connected. The complainant had to take another generator on rent from 28-04-2009 to 06-05-2009 by spending Rs. 4,000/- per day. The complainant is entitled to get refund of the price of EDC III and to get an amount of Rs. 32,000/- as rent for the generator set. This complaint hence.
2. The version of the opposite parties. :
The complaint is not maintainable, since the complainant has availed the services of the opposite parties for commercial purpose. The complainant had directly imported the engine from Volvo Penta, Sweden. The work order placed with the 1st opposite party was only for supply of accessories for the fitment of the generator. The 1st opposite party assembled the engine and alternator at the site and put the same into operation on 07-02-2006. The warranty of the machine expired on 07-01-2007 and the complainant entered into AMC with the opposite party for the period from October 2008 to September 2009. The charging alternator was installed for the exclusive purpose of charging the battery of the AMF panel. There is no least possibility of the charging alternator causing any damage to the set. Since the EDC was faulty, the manufacturer does not recommend repairing, so the opposite parties advised the replacement of the same. As regards the faultiness of the EDC, the manufacturer is the party responsible and they have not been brought under the party array. There is no deficiency in service on the part of the opposite parties and they are not liable to pay any amount as claimed.
3. The witness for the complainant was examined as PW1 and Exts. A1 to A8 were marked on their side. The witness for the opposite parties was examined as DW1. Ext. B1 was marked on their side. Heard the counsel for the parties.
4. The points that arose for consideration are :-
Whether the complaint is maintainable in this Forum?
Whether the opposite parties are liable to pay the price of EDC III to the complainant?
Whether the complainant is entitled to get the rent of the standby generator set?
5. Point No. i. :- As per the complaint, the complainant company is incorporated with the objective of providing quality service in the fields of Information Technology and IT enabled services at International Standards. It is stated that the company has been granted a 100% export oriented unit status under Cochin Export Processing Zone (CEP2), since 05-03-1999. It is further stated that the company presently have operation in the areas of the enabled services (Medical Transcription) Internet based servicing and Software Development/Consultancy as a 24 x 365 days basis.
6. The opposite party took a specific contention that the complainant is not a consumer within the definition of the term under Sub clause (ii) of Section 2 (1) (d) of the Consumer Protection Act 1986 and the complaint is not maintainable. Section 2 (1) (d) (ii) of the Consumer Protection Act reads as follows :
“Consumer” means any person who -
Hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails or the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose.
Explanation - For the purpose of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment.”
7. Indisputably, as per Section 2 (1) (m) of the Consumer Protection Act “person” includes a juristic person. The Chief Executive Officer who represents the complainant does not have a case that the complainant has availed the service of the opposite parties for earning livelihood by means of self-employment. Section 2 (1) (d) of the Consumer Protection Act excludes the purchase of goods or availment of services for commercial purposes.
8. According to the Hon'ble Apex Court, the Consumer Protection Act after 2002 amendments forbids the entertainment of consumer disputes against the service provider whose services are engaged for commercial purpose (Economic Transport Organization Vs. Charan Spinning Mills , 2010 CTJ 361 (Supreme Court) (CP).
9. For reasons stated above alone, this Forum cannot entertain this complaint, since the remedy of the complainant is outside the purview of this Forum and their remedy lies elsewhere. So, we do not entertain this complaint. Hence dismissed, that would not preclude the complainant approaching the proper Forum for reliefs, if so advised.
Pronounced in open Forum on this the 31st day of December 2011.
Forwarded/By Order, Sd/- A. Rajesh, President.
Sd/- Paul Gomez, Member.
Sd/- C.K. Lekhamma, Member.
Senior Superintendent.
A P P E N D I X
Complainant's Exhibits :-
Exhibit A1 | :: | A letter dt. 10-10-2008 |
“ A2 | :: | Copy of the work order dt. 21-10/2008 |
“ A3 | :: | Work order dt. 20-05-2005 |
“ A4 | :: | A letter dt. 31-10-2006 |
“ A5 | :: | Service report dt. 08-12-2008 |
“ A6 | :: | Proforma Invoice dt. 02-05-2009 |
“ A7 | :: | Work order dt. 02-05-2009 |
“ A8 | :: | Extract of the resolution passed in the meeting of the Board of Directors dt. 06-07-2009 |
Opposite party's Exhibits :-
Exhibit B1 | :: | Letter dt. 18-05-2009 |
Depositions :- |
|
|
PW1 | :: | K.P. Cleetus – witness for the complainant. |
DW1 | :: | P. Rajan – witness of the op.pty |
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