O R D E R
(By Sri A. Radha Krishna, President on behalf of the Bench)
1. The complainant sought a sum of Rs.1,00,000/- for defective service on the part of opposite parties and also Rs. 50,000/- towards compensation for physical strain and mental agony on account of defective service and negligence on the part of opposite parties.
2 The case of the complainant in brief is that he purchased Diesel Generator from the 1st opposite party manufactured by the 2nd opposite party on 09.05.2011. The generating set is 15 KVA, radiator manual panel composite acoustic with Engine No. 32600. He paid sum of Rs. 2,45,000/- under invoice No. 12 to the 1st opposite party towards cost of the generator. It is provided with warranty for 24 months from the date of commissioning or 5000 hours of operation whichever is earlier.
3 It is also his case after purchasing the generator the complainant informed 1st opposite party that they wanted to erect the same within their office compound. On 11.06.2011 the Service Engineer of 1st opposite party attended the commissioning work and in the presence of the complainant’s Director Sri A.V. Chalam, the engine was commissioned and found all the general parameters are ok and handed over all the manuals and drawings to the complainant and it is informed to the complainant that earthing has to be done with two earth pits and to provide 1 meter minimum platform around the diesel generator for easy maintenance, a test report was also prepared at that time and the complainant has noted that the service engineer has to work in the available place and more sound is being generated while engine is running and the sound has to be rectified. The test report was signed by him as well as the Service Engineer.
4 It is also further averred that on 11.07.2011 another service engineer attended and at the time another Director Sri A. Ratna Chandra Sekhar was present and the engineer has attended the site and connected the battery, removed the air lock and made the test run and found the parameters and performance are satisfactory and commissioned the diesel generator set and explained about the operations.
5 It is also their case after commissioning the said diesel generator no one attended on behalf of the 1st opposite party who service the diesel generator. The 2nd opposite party also published the warranty policy for the generator and as per the warranty conditions the new engine service inspection is provided to permit necessary adjustments to be made to ensure that the generator set is operating properly after specified hours of service. No check was conducted within 50 hours after genset is put to service which is a must according to warranty.
6 Inspite of several calls made by the complainant no one has attended to the inspection after its commissioning on 11.07.2011. Thus the services of opposite parties are defective and the resulted into great mental agony besides lot of physical strain to the complainant. The defect arose in the generator set is within specific time by the 2nd opposite part in its warranty policy. The 2nd opposite party also issued engine test certificate dated 29.03.2011. The set was tested as per the norms and specifications and it is in good condition. Since the said genset was manufactured by the 2nd opposite party, Cumins India Limited is added as proper and necessary party. The complainant has issued a lawyer’s notice. The opposite party having received the notice did not provide any service to the complainant nor any reply was issued thereto. Thus he sought the above said compensation.
7 The 1st opposite party remained exparte. The 2nd opposite party filed its written version denying the material allegations attributed against them and further according to them the generator set was purchased for commercial purpose exclusive by the complainant company. Hence the complainant is not a customer as defined under C.P. Act. According to them the diesel generator set covered under warranty of 24 months from the date of commissioning or 5000 hours from the time of operation which occurs first. They admit their publishing warranty policy but according to them it is mandatory under warranty policy that the complainant avails the New Engine Performance Inspection from the opposite party. According to them they performed the new engine performance inspection at pre-commissioning stage of the generator set. Since the generator set was placed by the complainant above the roof of washroom [at a height of 8 ft. from the ground level] leaving no space for the service engineers to stand on the roof and creating unsafe working condition to carry out servicing activity and the same did not meet the safety requirement prescribed in the warranty policy. They issued a service report dated 16.06.2011 to the complainant recommending shifting the set to convenient location and he did not meet the service requirements prescribed by them and hence they are not responsible thereafter for any maintenance. Thus pleading they sought dismissal of the complaint.
8 Now the points for determination are:
1. Whether the complainant is a consumer as defined under Sec. 2[1][d] of C.P. Act?
2. Whether there is any deficiency of service on the part of opposite parties?
3. If so, whether the complainant is entitled for the amounts as sought by him?
4. To what relief?
9 Point No.1: The foremost objection of 2nd opposite party is that the complainant doesn’t fit in within the definition of a consumer as defined under C.P. Act.
10 In this regard it is a relevant to notice Sec. 2[1][d] defines a 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 etc.
11 Thus as seen from the definition clause it is clear that a person who buys any goods for consideration for resale or for any commercial purpose doesn’t come within the purview of consumer.
12 As seen from the averments in the complaint the complainant is described as M/s. AKV Logistics Pvt. Ltd., located at Sambamurthy Nagar area, Kakinada represented by its Director A. Venkata Chalam. Even in the paragraph 3 of the complaint it is specifically averred after purchasing the generator the complainant informed the 1st opposite party that they wanted to erect the generator within their office compound. Accordingly the generator was fixed in the office of the complainant. Thus what is clear from the pleadings of the complaint is that the complainant is a business organization and the generator set was erected in their office premises and thus in these circumstances it is manifest that the generator set was purchased for commercial use only and thus falls under exception to the definition under Section 2[d][1]. Thus the objection of the opposite party that the complainant is not a consumer as defined under C.P. Act is sustainable and this point is answered against the complainant.
13 Point No.2: The complainant alleges that only twice service engineers attended the service of the generator and found all the parameters were working in condition and handed over manuals and also explained the operation of the generator set.
14 In support of his contention of the complainant filed his chief affidavit and marked 7 documents Exs. A1 to A7. Ex.A1 is invoice issued by 1st opposite party, Ex.A2 and Ex.A3 are commissioning reports issued service engineers of the opposite party, Ex.A4 is the warranty statements, Ex.A5 is Engine test certificate, Ex.A6 is office copy of lawyer’s notice and Ex.A7 is the acknowledgment of 1st opposite party.
15 As against this evidence one Supreeth Hegde, Authorized Signatory of 2nd opposite party furnished his proof affidavit and exhibited 2 documents Exs. B1 and B2 which are copy of invoice report and photographs showing the placement of generator set over the roof of wash room. Though in the affidavit they also stated that copy of warranty policy is Ex.B3 the same is not filed along with proof affidavit.
16 It is the specific contention of 2nd opposite party the complainant failed to provide 1 meter space around the generator set for easy maintenance and also they sought the change of place of the engine to some other convenient place as for attending service at such height is hazardous to the maintenance staff of the opposite party.
17 It is relevant note in Ex.A2 the complainant made a note suggesting to opposite party to train their service engineer to work in available place and also the sound has to be rectified .
18 Here it may be pointed out that it is not for the complainant to dictate any terms to the opposite party pertaining to the working conditions of their staff for attending maintenance works. Furthermore the complainant has not produced any material showing the sound emanating from the generator set is manufacturing defect. Hence under these circumstances there is no material suggesting any deficiency of service on the part of the opposite parties. Thus this point is answered against the complainant.
19. Point No.3: In view of the findings rendered under point Nos.1 & 2, the complainant is not entitled for any amount. Hence this point is answered accordingly.
20. In the result, the complaint is dismissed in the circumstances without costs.
Dictation taken by the Steno, transcribed by her, corrected and pronounced by us, in open Forum, this the 15th day of April, 2015.
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MEMBER PRESIDENT
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For complainant:
Sri Annavarapu Venkata Chalam
For opposite parties:
Sri Supreeth Hegde, Authorized Signatory, Cummins India Limited, Pune
DOCUMENTS MARKED
For complainant:-
Ex.A1 Invoice issued by 1st opposite party
Ex.A2 Commissioning report issued service engineer of the opposite party
Ex.A3 Commissioning report issued service engineer of the opposite party
Ex.A4 Warranty statements
Ex.A5 Engine test certificate
Ex.A6 Office copy of lawyer’s notice
Ex.A7 Acknowledgment of 1st opposite party.
For opposite parties:-
Ex.B1 Invoice report
Ex.B2 Photographs
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MEMBER PRESIDENT
