OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAMRUP,GUWAHATI
C.C.21/2013
Present:-
1) Md.Sahadat Hussain, A.J.S. -President
2) Smti Archana Deka Lahkar -Member
3) Md Jamatul Islam -Member
M/s Power Tools & Engineering -Complainant
T-10, 3rd Floor, Parameswari Building,
Chatribari, Guwahati-781001, Assam,
Represented by its Proprietor B.S Jalan
-VS-
1) M/S Prayaas Automation Pvt Ltd. - Opp. party
948, South Kumrakhali, Sonarpur Station Road,
P.O- Narendrapur, Kolkata-700103,
West Bengal
2) The Managing Director, M/S Prayaas Automation Pvt Ltd.
948, South Kumrakhali, Sonarpur Station Road,
P.O- Narendrapur, Kolkata-700103,
West Bengal
Appearance:
Appearance: Ld davocate Mr Nabendu Pathak for the complainant .
Date of argument - 23.07.2018
Date of judgment - 07.08.2018
EXPARTE JUDGMENT
This is a complaint u/s 12 of the Consumer Protection Act, 1986
1) The complaint filed by M/s Power Tools & Engineering T-10, Guwahati represented by this proprietor Mr.Bhabani Sankar Jalan against M/S Prayaas Automation Pvt.Ltd., Kolkata , West Bengal and Managing Director was admitted on 5.3.13 and notices were served upon the opp.parties and they have also taken step in this proceeding, but as they fail to take step on several dated this forum vide order dtd. 23.7.15 directed that the case will proceed on exparte against them. The complainant filed exparte evidence through one Sri Bhabani Sarkar Jalan and then ld. advocate Mr.Nabendu Pathak filed written argument on 23.7.2018 and also forwarded his oral argument on that day and today we deliver the judgment which is as below,-
2) The case of the complainant in brief is that the complainant filed tender with North East Frontier Railway for supply fitment and commissioning of wheel press (Data) recorder for 500 MFD wheel press machine model No. PR-500/1785 type 112/1 or similar and the tender was accepted by North East Frontier Railway and also issued formal purchase order vide No. 61.09.5009.1.08884 dtd. for supplying this items within 60 - 90 days and the complainant placed the supply order dtd. 17.1.2011 to the Opp.Party No.1 to supply those machineries and the complainant 90% of the value of the remaining place of 10% is to be paid after commission of the machine at the time of carriage and wagon work-shop of North East Frontier Railway side at New Bongaigaon, but the said machineries were not commissioned by the opp.parties . The opp.parties through their letter dtd. 11.5.2011 which is includes the scope of work, about design, supply installation and commissioning of suitable computerized pressure measuring and recording system in hydraulic wheel press . Thereafter on request of the complainant the machine/tool reached the destination on 27.6.2011, but due to delay of delivery of the machine/tool by the opp.parties, the complainant had to seek extension of time to delivery from 11.3.2011 to 30.4.2011, from 30.4.2011 to 30.5 .2011, from 30.5.2011 to 31.7.2011 putting their reputation at stake and that severely damaged their reputation in the Railway circle for timely supplying the items . On 14.9.2011 two representative of opp.party namely Mr.Subrata Dey and Mr.S.K.U.Dutta arrived at New Bongaigaon , but the machine could not be installed due to fault of the CPU, but they assured that the defect would be rectified by 29.9.2011, but it was not done in time. The machine was installed only on 11.11.2011 by their representative of the oppo.party and they also left the site without commissioning the same and then the complainant served a letter on the opp.parties to rectified the defects. But they failed to rectify the defect. However opp.parties deputed two persons namely Mr.Sujay Nath and Mr.Tapan Adhikari to rectify the defects and they also failed to commission the machine and as a result complainant’s firm is served with the rejection memo of the machine vide letter dtd. 12.6.2012 issued by the Dy.CME, C&W Workshop , New Bongaigaon and in response to said rejection letter the complainant requested the authority to allow them to get the CPU defect free as per advice of the opp.parties which was allowed by the authority and on 19.6.2002 the CPU was taken back by the opp.parties for rectification and that it was again installed on 27.6.2012 the machine was not functioning . The machine supplied by opp.party was defective one and that is why it could not commissioned till date inspite of several attempts made in this regard and accordingly the money investigated by the complainant is blocked for no fault of the complainant and complainant reputation was damaged and they suffered monetary loss of Rs.4,87,912/- (including CST @ 2%- i.e. Rs.9,567/- ) and due to which Rs.4,20,491/- had already been paid by them for favour of the opp.parties. The machine supplied is having warranty vide warranty certificate dtd. 18.7.2011 against any manufacturing defect, but inspite of repeated reminder the opp.parties have failed and neglected and avoided to comply with the terms of the warranty certificate which compelled the complainant to come before this forum for redressal of this grievances and accordingly, they pray to this forum to direct the opp.parties to pay,
a)Principal amount paid already to the tune of -Rs.4,20,491/-
b)Loss of business reputation -Rs.5,00,000/-
c)Mental agony and humiliation -Rs.5,50,000/-
d)Cost of the litigation -Rs. 50,000/-
e)Expenditure of to and fro several times
and staying continuously -Rs. 50,000/-
Total Rs. 15,70,491/-
(Rupees fifteen lakhs seventy thousand four hundred ninety one) only
3) We have perused the pleadings as well as evidence of the complainant and from the complaint one thing is established that the complainant M/s Power Tools & Engineering T-10, Guwahati-1 is a Railway contractor and general order supplier of railways and different companies within the North Eastern Region and complainant used to participate in various open tender notice to supply materials as a power code of business expansion policy. But in nowhere in the complaint its proprietor, Mr.B.S.Jalan states that the act of supplying materials to North East Frontier Railway and the other organization is his source of his livelihood . It is also found that the complainant specially states in para 2 of the complaint that the complainant used to participate in various open tender in this paper and advertise to supply order as a pert of business expansion also. This admission on the part of the complainant clearly shows that the complainant placed a supply order to the opp.parties dtd. 17.1.2011 to supply fitment and commissioning of wheel press (Data) recorder for 500 MFD wheel press machine model No. PR-500/1785 type 112/1 for their commercial purpose as a part of expansion of policy. Therefore, we hold that the complainant placed the said supply order to the opp.parties for supplying the said items for their commercial purpose and it was not for exclusive for purposes of his or his livelihood by means implemented and therefore the instant transaction is a transaction between the complainant and the opp.parties for commercial purpose and therefore, the complainant cannot be said to be a consumer of said items under the opp.parties as defined in sec2(1)(d) of Consumer Protection Act,1986. Therefore, the complainant cannot approach this forum to redress their grievance against the opp.parties and accordingly, the complaint filed before this forum is not maintainable. The transaction is a contractual transaction between the complainant and opp.parties for commercial purpose and if the complainant has any grievance against the opp.parties in connection with said transaction, they may go to civil court for proper relief under the provision of Indian Contract Act.
As the complainant in respect of the said transaction is not a “Consumer” as envisaged by the provision of Consumer Protection Act, 1986 the complaint is liable to be dismissed on that point and hence we feel that it is un-necessary to see whether the said contract was properly executed by the opp.parties or not.
4) Basing on above discussion, we hold that the complaint filed by the complainant against the opp.parties is not maintainable. Hence the complaint is dismissed on exparte. However, liberty is given to the complainant to approach the civil court for redressal their grievance, if they have sufficient grievance against the opp.parties.
Given under our hands and seal on this day of 7th August,2018.
(Smt Archana Deka Lahkar) (Md.Jamatul Islam) (Md.Sahadat Hussain) Member Member President
