Andhra Pradesh
Visakhapatnam
CC/45/2013
M/s AMBIKA AGARBATTIS ,DIRECTOR - Complainant(s)
Versus
M/s ASHOK LEYLAND LTD.,CHENNAI - Opp.Party(s)
B.HUME SASTRY
28 Nov 2014
ORDER
Date of registration : 27.02.2013
Date of order : 28.11.2014
BEFORE THE DISTRICT CONSUMERS FORUM-I,
VISAKHAPATNAM : AP
PRESENT: Smt K.V.R.Maheswari, B.A., B.L., LL.M.,
Lady Member & FAC President
Sri V.V.L.Narasimha Rao, B.A., LL.M., PGDHR,
Member
Friday the 28th day of November, 2014
Consumer Complaint No: 45 / 2013
Between:
M/s.Ambika Agarbattis Rep by its Director
Sri Ambika Ramachandra Rao, aged 52 yrs, r/at Plot No.1 … Complainant
D.No.7-24-3/2, Kirlampudi Layout, Beach Road, Visakhapatnam
And:
M/s.Ashok Leyland Ltd., No.1, Sardar Patel Road, Guindy, Chennai-600032.
M/s.Smoothline Power Systems, 46 United Building, Behind Hotel Ambassadar, Povadix, Secunderabad, Andhra Pradesh-500 003.
OJUS Power and Technologies Private Limited, rep by its Managing Director Mr.Ram, 2/1, JC Industrial Estate, Yelachenahalli, Kanakapura Road, Bangalore-560 062.
… Opposite Parties
This case is coming for final hearing on 24-11-2014 in the presence of Sri B.Hume Sastry, Advocate for Complainant and Sri Dr.P.P.Ramayya, Advocate for Opposite parties and having stood over till this date, the Forum delivered the following.
: O R D E R :
(As per Sri V.V.L.Narasimha Rao, Honourable Member on behalf of the Bench)
The Complainant filed the present Complaint under Sec.12 of C.P.Act against the Opposite Parties 1 to 3 on 11.12.2013 and requested the Forum to direct the Opposite Parties (1) to pay Rs.4,20,000/- towards rent of the Generator hired from 1.11.2012 to 05.02.2013 (2) to pay Compensation of Rs.5,00,000/- for causing mental agony and (3) to grant any other relief or reliefs as the Forum deems fit and proper under the circumstances of the case.
The brief averments are as follows: The Complainant is the Director of the M/s.Ambika Agarbattis and having two big houses and because of power cut problem as some higher status persons used to visit his house very frequently, the Complainant placed an Order for booking two 180 KVA Generators of 90 Amps each for utilization in the time of power cut problem. He has paid Rs.20,47,558/- to the Opposite Party No.2 vide two cheques dt.12.09.2012 and 12.10.2012. As per the Agreement the two generators has to be delivered within 15.10.2012 and the Opposite Parties delayed in handingover to the Complainant. The Second Generator which has been delivered by the Opposite Parties is not working properly. The Complainant informed the problem of the generator and requested to replace fresh generator for purpose of installation. As the generator has given trouble to the complainant and also very frequently higher status persons viz. MLA’s and other friends use to come his house, to solve the problem, he brought another generator for rent @ Rs.3,500/- per day for 120 days which amounts to Rs.4,20,000/-. Due to the defect in the said generator, the complainant has faced so much of inconvenience and faced mental agony. Apart from the industries in the different places in Andhra Pradesh, the Complainant has also dealing with hospitality industry, manufacturer of Agarbattis, Real estate business and Film production. These all business units requires generators to run in absence of the power cut so as to took the said generators as stand-bys in the event of power failure in a reputed hotel at Visakhapatnam by name “Ambika Sea Green”, the said generators were purchased by the Complainant. Though the complainant has purchased the said generators and as they are not worked in proper manner and gave troubles and inspite of that as the Complainant has engaged one generator on hire for Rs.3,500/- per day for 120 days. As the complainant has sustained severe mental agony he got issued Legal Notice to the Opposite Parties on 12.11.2012 to the 1st Opposite Party. After receiving the Legal Notice from the Complainant, 1st Opposite Party addressed a letter to the Complainant on 19.11.2012 denying all the averments mentioned in Complainant’s notice. Hence alleging deficiency of service on part of the Opposite Parties, the complainant has filed the present Complaint seeking reliefs as sought for.
Notices were served to Opposite Parties 1 to 3. On behalf of Opposite Parties 1 to 3 Sri K.Ramakrishna Tulasidas in capacity of Manager M/s.Ashok Leyland filed counter for Opposite Parties 1 to 3.
In counter filed by the 1st Opposite Party, the averments of the counter are as follows: The payment of Rs.20,47,558/- towards both KVA Generators to the 2nd Opposite Party is not known to the 1st Opposite Party. There is no privity of contract between the Complainant and the 1st Opposite Party and at the same time 1st Opposite Party has not made any promise with regarding to the privity of contract between the Complainant and the 2nd Opposite Party. In the two generators sets sold to the Complainant by 2nd Opposite Party, only one diesel engine was manufactured by 1st Opposite Party. The averments of the Complainant that the 3rd Opposite Party is the main dealer of the 1st Opposite Party is correct and there is some objection with regarding to the averment that the 2nd Opposite Party is the dealer of the 1st Opposite Party. The 1st Opposite Party has not having any knowledge about the repairs done to the generator by the 2nd Opposite Party personnel on 06.11.2012 and gave report to that extend. For that it has to be proved by the Complainant vide any document or any proof. The Opposite Party did not know about the hire of the generator @ Rs.3,500/- per day by the Complainant as the Complainant himself is admitting about the fact, he is running industries in different places in Andhra Pradesh and dealing with hospitality industry, manufacturer of Agarbattis, Real Estate and Film production and that too the said Generators were purchased as stand-by to run it when there is power cut problem in a reputed hotel in Visakhapatnam District by name Ambika Sea Green, so the Complainant cannot called him as a Consumer under Sec.2(1)(d) of Consumer Protection Act. The 1st Opposite Party has given reply for the Legal Notice given by the Complainant on 19.11.2012. As there is no privity of contract between the Complainant and the Opposite Party and that too the generators purchased by the Complainant in the capacity of the Director, so the Complaint is not maintainable before this Forum and the complaint is liable to be dismissed. That too there is no deficiency of service on part of the Opposite party. Being a company, the Complainant cannot be designated as a consumer and cannot claim the reliefs in this Forum. Hence as the complaint is not maintainable before this Forum and also there is no deficiency on part of the 1st Opposite Party, the Complaint is liable to be dismissed with costs along with the counter, the 1st Opposite Party has filed two documents in support of his defense.
The counter of 2nd Opposite Party stated as follows:- The Complainant has placed order for the two generators of 180 KVA of each 90 amps load and synchronizing panel on 13.08.2012 and the 2nd Opposite Party has received an amount of Rs.20,47,558/-. The complainant is falsely alleging that the Diesel Generators has to be installed within 3 days from the date of placing of the order i.e. on or before 15.10.2012. If at all the generators may be having the few minor problem, it will be rectified ad the generators will start run immediately. For that with regarding to the service there is no fault of the 2nd Opposite Party. The Service Personnel of the 2nd Opposite Party attended the site of the Complainant on 06.11.2012 and stated in their report that they have repaired the feed pump and corrected the wiring harness are denied by the 2nd Opposite Party and the Diesel Generator set was handed over to the Complainant with good working condition on 6.11.2012 that too the said two generators are delivered at Ambika Hotel located at Beach Road, Visakhapatnam. When the 2nd generator was dispatched on 27.12.2012 and reached the destination on 01.01.2013 but the complainant refused to take the delivery. Then the 2nd Opposite Party has got issued Legal Notice to the Complainant on 10.12.2013 and thereafter complainant took the delivery of the generator at Ambika Hotel, Beach Road, Visakhapatnam. The fact of the hiring the generator for Rs.3,500/- per day is not known to the 2nd Opposite Party and with regarding to that issue as there is deficiency of service on part of the Opposite Parties and the generators are functioning well, the Complainant could not claim any amount from the Opposite parties that too the complainant himself is admitting in the complaint that the said generators are purchased by the Complainant to run in the event of the power failure in a reputed hotel Ambika Sea Green at Visakhapatnam. Hence observing this fact, the complainant cannot be called as a Consumer and this Forum is not having jurisdiction to entertain the present complaint. There is no cause of action for filing the present complaint and without any proper fact and genuine fact the present complaint is filed with an intention to claim the wrongful gains from the 2nd Opposite party and hence the present complaint is liable to be dismissed with costs along with the counter the 2nd Opposite Party has filed 3 documents in support of the defense.
In the counter of the 3rd Opposite party, stated as follows: The 3rd Opposite party is the principal dealer of the 1st Opposite Party and at the same time, the 2nd Opposite Party is the dealer of the 3rd Opposite Party. The Opposite Party did not know about the fact that the Complainant is doing several businesses and he falsely stated that the generators which were purchased by him were to be placed in a two big houses which were owned by him. There is no privity of contract between the Complainant and this Opposite Party. The complainant has not purchased the two generators from the 3rd Opposite Party and thereby there is no privity of contract between he Complainant and the 3rd Opposite Party. The said orders were placed before 2nd Opposite Party and also the said two generators were delivered at Ambika Hotel, Beach Road, R.K.Beach, Visakhapatnam. On 611.2012 when the 2nd Opposite Party personnel attended the site with regarding to the same problem in the Generator, they have attended the repair and stated in the report that they have repaired the feed pump and corrected the wiring harness. There is no proof to show that the diesel generator has given trouble on 9.11.2012 and ran only for 4 hours and stopped all of sudden. With regarding to the allegations that the Opposite Party has not responded to the telephonic messages, the Complainant has to prove the same with proper documents. The fact of the bringing other generators on hire for Rs.3,500/- is not known to the Opposite Party and further the complainant has to show authentic document. As there is no deficiency of service on part of the Opposite Party and also at the same time as the Complainant himself is admitting that the said generators are purchased as a standby in place of the power cut failure time at the Ambika Hotel. The Complainant cannot be designated as a consumer and the complaint is liable to be dismissed with costs and also he cannot claim any claims from the Opposite Party as the Diesel generator is in working condition. Along with the counter the 3rd Opposite Party filed 7 documents in support of their contention.
On perusal of the pleadings of the Complainant and the Opposite Parties, the Forum framed the following points for consideration:-
Whether the complaint is maintainable before this Forum ;
Whether there is deficiency of service on the part of Opposite Parties 1 to 3
To what relief.
The Complainant filed the evidence affidavit and on his behalf Ex.A1 to A10 were marked. The 1st Opposite Party filed two documents and on his behalf Ex.B1 & B2 were marked. The 2nd Opposite Party filed Evidence Affidavit and on his behalf Ex.B3 to B5 were marked. The 3rd Opposite Party filed Evidence Affidavit and on behalf of 3rd Opposite Party Ex.B6 to B12 were marked. In toto on behalf of Opposite Parties Exs.B1 to B12 were marked. The Complainant and the Opposite Parties filed Written arguments and adduced their oral arguments. At the time of the oral arguments, the Opposite Party counsel filed two case laws (i) 2010(2) CPR 282 (NC) between Billagi Sugar Mill Ltd. Vs. M/s.Kessels Engineering Works (P) Ltd. and (ii) II (2009) CPJ 402 (NC) between Meera Industries Vs. Modern Constructions, wherein both citations are relating to the issues with regarding to the matter inter-related to the commercial purpose.
Point No.1: The present complaint is filed by the Complainant against the Opposite Parties with regarding to the claim of Rs.4,20,000/- for utilizing the rented generator @ 3500/- per day x 120 days even after purchasing the two generators from Opposite Parties 1 to 3 and at the same time complainant is claiming the compensation of Rs.5,00,000/- and also seeking some other reliefs or reliefs as per the circumstances.
The Opposite Parties at the same time they are denying the entire averments of the complainant and stating that at the threshold itself the complaint is not maintainable before this Forum as the Complainant has admitted in para (h) page (4) of the complaint that the Complainant is running industries in different places at Andhra Pradesh dealing in industries, manufacturer of Agarbattis, Real Estates and Film production and Hotel at Visakhapatnam by name Ambika Sea Green and that too two generators were purchased as standby in the event of power failure in reputed hotel by name Ambika Sea Green whenever there is a power failure.
At the time of the arguments, the counsel of the Opposite Parties stated that pointing about the version admitted by the Complainant in para (h) page (4) of the Complainant that he purchased the said generators for standby in the event of failure of the power at Ambika Sea Green, he argued that in the Ex.A1 on the face of document it reveals that the generators were purchased for Ambika Agarbattis, Visakhapatnam and as seen from the Ex.A3 & A4 Field Service Reports of D.V.V.Srinivasa Rao under the column the purpose used for is mentioned as “hotel” and also the counsel stated that such a large capacity of the generators cannot be installed in the residential areas. Though the Complainant’s counsel is stating that the two generators were purchased for fixing at his two residential big buildings which were owned by the Complainant. Sec.2(1)(d) explanation reveals that the “Commercial transaction cannot be entertained by the Consumer Fora”. As per case law 1998(3) CPR(4) State Commission, Gujarat between Fatidar Timber Industries Vs. Tallade Nagaik Sehakari Bank Ltd., it was held that the District Consumer For a is having discretion to look into the issue of the jurisdiction even at beleted stages whenever it is necessary ad nobody can question about the objection raised by the District Consumer Forum.
In the case of 2010 (II) CPR 282 (NC) between Billagi Sugar Mill Ltd. Vs. M/s.Kessels Engineering Works (P) Ltd. with regarding to the machine purchased by the Complainant it was held that the purpose of purchasing the machine exclusively for the commercial purpose. It is clear that Turbine TG Set in question do not purchased by the Complainant for commercial purpose and purchased for commercial purpose is excluded 2(1)(d) of the C.P.Act likewise services of the warranty for commercial purpose are also excluded for commercial purpose under Sec.2(1)(d) w.e.f. 15.03.2013.
Hence observing the admission of the Complainant in para(h) Page (4) of the Complaint and the Evidence affidavit and arguments along with Ex.A3 & A4. Ex.A1 is the admission of the Complainant that as he is doing various businesses of hospitality industry, manufacture of Agarbattis, Real estate and Film production and Hotels, we conclude that the Complainant cannot be considered as a Consumer within the definition of Sec.2(1)(d) of the C.P.Act and the Complaint filed before this Forum is not maintainable for the said relief if at all he can approach the proper Civil Court or appropriate for further remedy. Accordingly Point No.1 is answered.
Point Nos.2 & 3 : As per the Point No.1 discussed above, we already came to a conclusion that the complaint is not maintainable as the complaint is not a consumer, however it is necessary to discuss about the relief No.(a) and (b) as prayed for along with issue of deficiency of service on part of Opposite Parties.
With regarding to Relief No.”a” i.e. the issue of claim of Rs.4,20,000/-. Except Ex.A1 to A10, the complainant has not filed any documents to prove that he has engaged the generator on hire @ Rs.3500/- per day. So in our opinion he cannot claim the same from the Opposite Parties.
With regarding to the relief No.”b” and issue of deficiency of service: Observing Ex.A3 & A4 given by the Service Personnel of the 2nd Opposite Party Sri D.V.Srinivasa Rao, it reveals that on 1.11.2012 the service personnel of the 2nd Opposite Party attended the complaint and found that there is a feed pump and diesel main pipe problem and the information was given to the higher authority. Ex.A4, dt 6.11.2012 it reveals that the “Service personnel attended the complaint and replaced the feed pump assembly and checked the engine wiring harness. Found wiring harness is corrected. DG start and test run at your site. Engine working performance is “OK”. Viewing the Ex.A3 & A4 we conclude that there is no fault on part of the generator and it is in working condition after the problem was rectified. Hence we conclude that there is no deficiency of service on part of Opposite Parties. If at all the complainant is having any grievance, the Complainant may approach the appropriate Civil Court or any appropriate Forum for his remedy. Accordingly point Nos. 2 & 3 are answered.
In the result the complaint is dismissed, no order as to costs.
Dictated to the Shorthand Writer, transcribed by him, corrected and pronounced by us in the open Forum on this the 28th day of November, 2014.
Sd/- Sd/-
President (FAC) Member
District Consumer Forum-I
Visakhapatnam
APPENDIX OF EVIDENCE
Exhibits Marked for the Complainant:
Ex.A1 | 13.08.2012 | Invoice issued by the 2nd Opposite Party | Original |
Ex.A2 | 10.09.2012 | Engine Test Certificate issued by the 1st Opposite Party | Original |
Ex.A3 | 01.11.2012 | Field Service Report issued by Andhra Power Services | Original |
Ex.A4 | 06.11.2012 | Field Service Report issued by Andhra Power Services | Original |
Ex.A5 | 17.10.2012 | Packing Sheet issued by Ojus Power and Technologies Pvt. Ltd. | Original |
Ex.A6 | 10.09.2012 | Check list issued by the 1st Opposite Party | Original |
Ex.A7 | 12.11.2012 | Registered lawyer’s notice to both the Opposite Parties | Office copy |
Ex.A8 | 12.11.2012 | Two Postal receipts | Original |
Ex.A9 | 16.11.2012 | Postal acknowledgement of the 1st Opposite Party | Original |
Ex.A10 | 19.11.2012 | Letter addressed by the 1st Opposite Party with reference to the legal notice dated 12.11.2012 | Original |
Exhibits Marked for the Opposite Parties: -
Ex.B1 |
| Ashok Leyland warranty policy | Original |
Ex.B2 |
| Ambica Agarbathies Aroma and Industries Limited – report on corporate governance | Computer copy |
Ex.B3 | 13.08.2012 | Quotation of OP2 regarding price of diesel generator sets |
|
Ex.B4 | 27.12.2012 | Detailed bill of Generator sets |
|
Ex.B5 | 10.01.2013 | Lawyer’s Notice |
|
Ex.B6 |
| Ojus Power Solutions ledger list from 1.4.2012 to 31.3.2013 | Photostat copy |
Ex.B7 | 09.10.2012 | Order acknowledgement | Photostat copy |
Ex.B8 | 17.10.2012 | Despatch challan | Photostat copy |
Ex.B9 | 31.12.2012 | Delivery challan | Photostat copy |
Ex.B10 | 29.12.2012 | Despatch challan | Photostat copy |
Ex.B11 | 19.10.2012 | Invoice cum delivery challan | Photostat copy |
Ex.B12 | 09.10.2012 | Purchase Order | Photostat copy |
Sd/- Sd/-
President (FAC) Member
District Consumer Forum-I
Visakhapatnam
Consumer Court Lawyer
Best Law Firm for all your Consumer Court related cases.
Bhanu Pratap
Highly recommended!
5.0 (615)
Bhanu Pratap
Featured RecomendedHighly recommended!
Experties
Consumer Court | Cheque Bounce | Civil Cases | Criminal Cases | Matrimonial Disputes
Phone Number
7982270319
Dedicated team of best lawyers for all your legal queries. Our lawyers can help you for you Consumer Court related cases at very affordable fee.