Haryana

Panchkula

CC/367/2022

M/S STEADFAST METAL PRODUCTS PVT LTD - Complainant(s)

Versus

M/S COOPER CORPORATION PVT LTD - Opp.Party(s)

AMIT SHARMA

19 Dec 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA.

 

                                                       

Consumer Complaint No	:	367 of 2022
Date of Institution	:	29.11.2022
Date of Decision	:	19.12.2022

                                   

 

M/s Steadfast Metal Products Pvt. Ltd. having its office at Plot No.213, Industrial Area, Phase-1, Panchkula through its Director Sh. Ajit Kumar Saini son of Sh. Jagan Nath Saini aged about 73 years, resident of H.No.287, Sector-10, Panchkula, Haryana. 

                                                                              ….Complainant

 

Versus

1. M/s Cooper Corporation Pvt. Ltd. through its Directors, Nariman House, M60/1, Additional MIDC Area, Satara, Maharashtra-415004.
2. Sh. Chandra Shekhar Shinde, DGM Sales, M/s Cooper Corporation Pvt. Ltd. Nariman House, M60/1, Additional MIDC Area, Satara, Maharashtra-415004.
3. M/s Tanwar Trading Co., through its Partner/Manager/ Proprietor/ Director, SCO-73, Shri Balaji Enclave, Patiala Road, Zirakpur, Mohali, District SAS Nagar, Punjab-140603.
4. M/s Transcon Engineers Pvt. Ltd, through its Director, Plot No.68, Industrial Area, Phase-2, Panchkula, Haryana.

                                                                  ….Opposite Parties

COMPLAINT UNDER SECTION 35  OF THE CONSUMER PROTECTION ACT, 2019.

 

Before:              Sh.Satpal, President.

                        Dr.Pawan Kumar Saini, Member.

                        Dr.Sushma Garg, Member.

 

For the Parties:   Sh.Amit Sharma, Advocate for the complainant.       

ORDER

(Satpal, President)

 

1.             Today, the complaint is fixed for consideration on its admissibility. Briefly stated, the facts of the case are that the complainant is a Private Limited Company, having its shareholders, the family members only and all are engaged into business of the company by way of self-employment. The complainant company is engaged into production of the metal products having its plant running 24 hours shift. The complainant is a leading name in the area in the Production of Metal Products and is having many reputed clients, which are a Brand in themselves PAN India. In order to run its production smoothly, uninterruptedly, the company needs a 24hours power backup and to fulfill its requirements, installation of Generators in its plant covering the power load of different machines working in the production department of the complainant company was necessary. In this regard, the company was looking for two Generators, having different powers. Initially, the complainant company purchased, one Generator i.e. T6200012(Diesel Generating Set 200 KVA), having Model No.CDP102003D21 from the OP No.1 through the OP No.4, i.e. M/s Transcon Engineers, with a 5 years  5C(9Five C-components) comprehensive  warranty vide Invoice no.1223 dated 04.01.2020 amounting to Rs.10,50,200.00. The installation  including commissioning of the Genset was to be done by OP No.1 through its  authorized dealer at Panchkula, namely, Transcon Engineers, Panchkula i.e. OP No.4 but due to the reasons best  known to the OP No.1, the same was changed to the OP no.3 i.e. M/s Tanwar Trading Co., Zirakpur. Upon the instructions of the Ops No.1 & 2, the OP No.3 installed the above said Genset on 16.01.2020. It is alleged that while installing and commissioning the genset, it was not checked on its full load so as to rule out any shortcoming in the same. Further, no safety devices were tested. It was assured to the complainant that the genset is new and is always sent by the company after testing. It is stated that the genset was to be serviced on being running of 500hrs or within 6 months of the last service or installation of the genset as the case may be. Due to COVID19 situation, the genset could not be got serviced and it was firstly serviced on 04.12.2020. The genset in question was not put on its full load test even at the time of its service on 04.12.2020. The complainant spent a sum of Rs.5797/- on account of service of the genset. It is submitted that no objection was raised  by any of the OP’s that the first service of the Genset  was being done beyond the period of 06 months and the service was carried out by the OP No.3 being authorized dealer of the OP No.1 and a technical expert in doing this kind of job. Thereafter, there were 2^nd and 3^rd consecutive waves of the COVID-19 Pandemic, during which, restrictions were imposed in the entire Nation. The complainant company did not operate its machinery until restrictions and partially lockdown was revoked.  On 25.03.2022, while the genset was in operation, there was unusual sound from the genset, whereupon, the electric supervisor of the complainant company immediately stopped the genset manually and the matter was reported to the OP no.3, being the authorized service provider. Next day, the officials and technical team of Ops visited the spot and found that the engine was not turning manually. The cylinder head was removed, which was found damaged due to hammering of valve, a log of push rods were also found to be bent; the matter was reported to the company, who  instructed the service engineer to remove the camshaft and the crankshaft, which were also found damaged. At that time, the engine had totally run for 355hrs. The complainant sent email dated 09.04.2022 to the Ops intimating about the entire incident but no response was received from the Ops. Another email dated 18.04.2022 was sent to the Ops in response to which the Ops sent a performa invoice dated 23.04.2022 amounting to Rs.5,03,026.82 for repairing of genset. The complainant’s company was shocked to see this estimate because the genset was under the warranty. The complainant’s company purchased another genset for the backup to run its industry. An another email dated 02.05.2022 followed by 16.05.2022 was sent to the Ops but no response to the issue was provided by the Ops. On 20.05.2022, the Ops team member visited the place of the complainant company and carried out lot of inspection. The genset was dismantled and still lying in dismantled condition. Thereafter, another email dated 27.05.2022 was sent by the complainant to the Ops to look into its grievances.  Sh.Sunil Navale responded to the email stating that the fault in the genget occurred due to lapses in maintenance and the same would not be covered under warranty and asked the company to approve the quotation for repairs. The complainant company sent an email dated 30.05.2022 to the Ops that there is mechanical fault in the engine, which was never checked at its full load at the time of installation and commissioning. It is stated that no manual was ever provided to the complainant company and there was no intimation regarding next date of service of the generator. No notice from the Ops qua the service of the generator was ever given. It is alleged that the fault in the genset had occurred due to the proven mechanical failure due to which all Ops are responsible separately and jointly. No response was sent by the Ops qua email dated 31.05.2022 sent by the complainant. Another email dated 08.06.2022 was sent to the Ops. Thereafter, a legal notice was sent on 25.07.2022 through registered post to the Ops requesting for replacement of the genset in question. The Ops No.1 & 2 sent their reply dated 18.08.2022 declining the request of the complainant. Due to the act and conduct of the OPs, the complainant has suffered a great mental agony, physical harassment and financial loss; hence, the present complaint.

2.             During arguments, the learned counsel for the complainant reiterating the averments made in the complaint contended that the complainant falls under the category of consumer and thus, entitled to invoke the jurisdiction of this Commission in connection with the redressal of his grievance as mentioned in the complaint. It is contended that the generator set in question as purchased from  OP No.1 through OP No.4 had manufacturing defect in it and it was not tested at its full load while installing and commissioning at the premises of the complainant by OP No.3. It is contended that the genset was properly operated for 350hours and thus, there was no lapse on the part of the complainant qua getting service of the genset in time. It is also contended that as per installation and commissioning report, the genset was not put at its full load capacity so as to rule out any shortcomings in the genset and further, safety devices were also not checked by the engineers of Ops. It is prayed that the complaint may be admitted by issuing notice to Ops. 

3.     A complaint, before it is admitted for adjudication, is required to qualify, inter alia, various parameters, which may be enumerated as below:-

a.

b.

c.

d.

4.                The foremost question to be looked into by us is whether the complainant falls under the category of consumer as defined vide Section 2(7) of the C.P.Act, 2019. Admittedly, the complainant company being engaged into the production of metal products requires a 24hours power backup in order to have uninterrupted power supply; so the genset was purchased by it from Ops No.1 through OPNo.4 and thus, the same was purchased in connection with a commercial transaction.

5.             Now, we advert to the definition of consumer, which is defined in Section 2(7) of C.P.Act, 2019, the relevant part of which is reproduced as under:

1. Consumer means any person who buys any goods 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 user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose.

6.             The question as to whether an activity or a transaction is for a commercial purpose has been discussed at length in various cases by the Hon’ble Apex Court as well as the Hon’ble National Consumer Commission. The Hon’ble National Commission in consumer complaint no.137/2020 decided on 31.01.2020 in case titled as M/s Bird Machines Pvt. Ltd. Vs. Indusland Bank Limited vide Para No.4 & 5 discussed the issue as under:-

4.       The issue involved in this complaint came to be considered by this Commission in West Fort Hi-Tech Hospital Limited Vs. Punjab National Bank decided on  07.01.2020 in FA No.1264 of 2018 and the following view was taken:-

“The term ‘Consumer’ used in Section2(1)(d) of the Consumer Protection Act came up for consideration of this Commission in Revision  Petition No.2833 of 2018 decided on 06.01.2020 and after considering several decisions  on the issue, including  Synco Textiles Pvt.Ltd. Vs. Greaves Cotton & Company Ltd.(1991) 1 CPJ 499(NC), Cheema Engineering Services Vs. Rajan Singh(1997) 1 SCC 131, Madan Kumar Singh(Dead) through L.R.Vs. District Magistrate, Sultanpur & Ors.(2009) 9 SCC 79 and Paramount Digital Colour Lab & Ors. Vs. Agfa India Private Limited & Ors. (2018) 14 SCC 81, the larger Bench inter-alia held as under:-

1. Only a person  engaged in large scale commercial activities for the purpose of making profit is not a consumer;
2. There should be a direct nexus between the large scale commercial activities in which a person is engaged and the goods purchased or the services hired or availed by him, before he can be excluded from the purview of the term ‘consumer’. Therefore any goods  purchased or the services  hired or availed even by a person carrying on business activities  on a large scale  for the purpose of making profit  will not take him out of the definition of the term ‘consumer’, if the transaction of purchases of goods or hiring  or availing  of services is not intended to generate profit through the large scale commercial activity undertaken by him and dos not contribute to or form an essential part of his large scale commercial activities.

(c )     What is crucial for the purpose of determining  whether a person is a                       ‘consumer’ or not is the purpose for which the goods were purchased or               the services were hired or availed and not the scale of his commercial                          activities.

5.       It would thus be seen that a person engaged in large scale commercial           activities intended to make profit, is not a consumer and what is crucial                for the purpose of deciding whether a person is a consumer or not is the            purpose of which the goods are purchased or the services are hired or                    availed, as the case may be.

7.             Now, recently, the Hon’ble National Commission in consumer case no.886 of 2020 titled as M/s Freight System(India) Private Limited Vs. Omkar Realtors & Developers Private Limited & Anr. decided on 25.01.2021 in para no.11 of the said order, has placed reliance on the law laid down by the Hon’ble Supreme Court in the case titled as Lilawati Kirtilal Mehta Medical Trust in Civil Appeal No.12322 of 2016 decided on 14.11.2019, wherein the Hon’ble Apes Court has held that:-

          7.       To summarize from the above discussion, though a straight-jacket       formula cannot be adopted in every case, the following broad principles can be       culled out for determining whether an activity or transaction is ‘for a         commercial purpose’:

i.         The question of whether a transaction is for a commercial purpose would                  depend upon the facts and circumstances of each case. However,                            ordinarily, ‘commercial purpose’ is understood to include manufacturing/              industrial activity or business-to-business transactions between                                     commercial entities.

ii.       The purchase of the good or service should have a close and direct nexus                 with a profit-generating activity.

iii.       The identity of the person making the purchase or the value of the                          transaction is not conclusive to the question of whether it is for a                         commercial purpose. It has to be seen whether the dominant intention or            dominant purpose for the transaction was to facilitate some kind of profit            generation for the purchaser and/or their beneficiary.

iv.      If it is found that the dominant purpose behind purchasing the good or            service was for the personal use and consumption of the purchaser                           and/or their beneficiary, or is otherwise not linked to any commercial                             activity, the question of whether such a purchase was for the purpose of              ‘generating livelihood by means of self-employment’ need not be looked                   into.

8.             From above, it is found that the Hon’ble Apex Court has laid down the twin test of “close & direct Nexus with profit generating activity” and “dominant purpose” behind purchasing of goods or services to determine and ascertain the status of a person, who has purchased the goods for consideration.

9.             Further, as per test law laid down by the Hon’ble National Commission is that the purpose for which the goods were purchased or service is hired is crucial to determine the status of a person as  consumer. Now, we advert to the admitted factual position of the present case, wherein it is admitted the factual position that the genset was purchased from OP No.1 through OP No.4 for supplying the power backup for 24 hours without any interruptions. The email dated 02.05.2022 sent by the complainant to Ops clearly establish that the genset was purchased so as to avoid any kind of interruptions in the industrial production activities of the complainant. The relevant part of the said email, for the sake of clarity and convenience is reproduced as under:-

        We have purchased the 200KVA genset under an extended 5C warranty for 5 years as discussed with and committed by the sales head Mr.Gasvinder Singh at the time of purchase and the same has also been documented in our purchase order.

          Due to the ongoing power crisis and this breakdown a lot of production and financial loss has been incurred as we have hired a 200KVA Cummins genset to keep our plant operational at a very high cost.

10.            From above, it is evident that the complainant is excluded from the purview of the consumer as the genset was purchased for a commercial purpose. The learned counsel for the complainant has contended that the genset was purchased from the OP No.1 through OP No.4 for the purpose of earning his livelihood by way of self-employment. The contentions of the ld. counsel are not tenable as the genset in question as purchased from Ops was having the capacity of 200KVP. Apart from it, another genset was required by the complainant. Undoubtedly, the complainant is engaged into the production of metal product on a vast scale and therefore, the plea of earning of livelihood by way of self-employment is completely devoid of any merit. At this stage, we may place reliance upon the law laid down  by the Hon’ble Apex Court in case titled as Laxmi Engineering Works Vs. P.S.G. Industrial Institute reported in 1995 AIR 1428, has held as under:

                A person who buys goods and use them himself, exclusively for the     purpose of earning his livelihood, by means of self employment is within the     definition of the expression ‘consumer’.

11.            In the light of discussion made above, the present complaint is dismissed in limini with liberty to the complainant to approach the competent authority/court if he is so advised. However, in the interest of justice, we deem it appropriate to grant the liberty to the complainants to file a fresh complaint on the same cause of action in the appropriate Tribunal/Authority/Court as per law if so advised. The complainants shall be at liberty to file an application before the concerned Court/Authority /Tribunal under Section 14 of the limitation Act for excluding the period spent before this Forum for the purposes of computation of limitation in terms and observations made by the Hon’ble Apex Court in the case of “Luxmi Engineering Works Vs. PSG Industrial Institute 1995(III) SCC P.583”. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced: 19.12.2022

 

 

 

Dr.Sushma Garg          Dr. Pawan Kumar Saini         Satpal          

            Member                       Member                               President

 

Note: Each and every page of this order has been duly signed by me..

 

 

                                 Satpal,

                                President