P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION : AT HYDERABAD
C.C.109 of 2012
Between :
Irugurala laxmi, D/o late Poshaiah,
Aged about 40 years, occ : Self Employment
H.No.1-96, Village & Mandal Choppadandi,
Karimnagar District – 505 415 (A.P.0 .. Complainant
And
01. M/s. Shakti Farm Machinery,
5-7-28, (MIG1-537),
Opp. VITS Eng. College
Byepass road, Karimnagar – 505001 (A.P.)
Rep. by its Managing Partner
Sri N. Narsinga Rao.
02. M/s. Kubota Agricultural machinery India Pvat. Ltd
No. 15, Meda Vakkam road,
Sholinganallur, Chennai – 600 119 ( Tamilnadu )
Rep. by its Managing Director .. opposite parties
Counsel for the Complainant : M/s. V. Gowrisankara Rao
Counsel for the opposite parties : M/s. V. Srihari for OP.1
M/s. P. Rajasripathi Rao for OP.2
C.C.Nos.110 of 2012
Pathem Padma D/o.Laxmi Rajam
Aged about 30 years, Occ:Self Employment,
R/o.Mallapur, Mdl.Dharmavaram,
Karimnagar District -505 416 (A.P.) ..Complainant in CC 110/2012
And
M/s Shakti Farm Machinery
5-7-28, (MIG G1-537)
Opp:VITS Eng. College,
Byepass Road,
Karimnagar 505 001, (A.P.)
Rep. by its Managing Partner
Sri N.Narsinga Rao.
M/s.Kubato Agricultural Machinery
India Pvt. Ltd., No.15,
Meda Vakkam Road,
Sholinganallur, Chennai-600 119
(Tamilnadu) rep. by its
Managing Director. ..Opposite parties.
Counsel for the complainants : M/s.V.Gourisankara Rao.
Counsel for the opposite parties : M/s V.Srihari-OP 1
M/s Rajasripathi Rao-OP 2
C.C.No.111 of 2012
Inreddy Srinivas Reddy,
S/o.late Linga Reddy, aged about 42 years,
Occ:Self employment
Village and Mandal Kodimyal,
Karimnagar District 505 501 (A.P) ..Complainant
And
M/s Shakti Farm Machinery
5-7-28, (MIG G1-537)
Opp:VITS Eng. College,
Byepass Road,
Karimnagar 505 001, (A.P.)
Rep. by its Managing Partner
Sri N.Narsinga Rao.
M/s.Kubato Agricultural Machinery
India Pvt. Ltd., No.15,
Meda Vakkam Road,
Sholinganallur, Chennai-600 119
(Tamilnadu) rep. by its
Managing Director. ..Opposite parties.
Counsel for the complainants : M/s.V.Gourisankara Rao.
Counsel for the opposite parties : M/s V.Srihari-OP 1
M/s Rajasripathi Rao-OP 2
C.C.No.112 of 2012
Bandari Rayudu S/o.Veeraiah
Aged about 42 years, Occ:Self employment
H.No.1-180, Marlawada, Choppadandi Post,
Karimnagar District -505 415 (A.P.) ..Complainant
And
M/s Shakti Farm Machinery
5-7-28, (MIG G1-537)
Opp:VITS Eng. College,
Byepass Road,
Karimnagar 505 001, (A.P.)
Rep. by its Managing Partner
Sri N.Narsinga Rao.
M/s.Kubato Agricultural Machinery
India Pvt. Ltd., No.15,
Meda Vakkam Road,
Sholinganallur, Chennai-600 119
(Tamilnadu) rep. by its
Managing Director. ..Opposite parties.
Counsel for the complainants : M/s.V.Gourisankara Rao.
Counsel for the opposite parties : M/s V.Srihari-OP 1
M/s Rajasripathi Rao-OP 2
CC 113/2012
Gantala Vijaya, W/o.Srinivas Reddy
Aged about 34 years, Occ:Self employment,
Village Arnakonda,Mdl.Choppadandi
Karimnagar District -505 415 (A.P.) ..Complainant in CC 113/2012
And
M/s Shakti Farm Machinery
5-7-28, (MIG G1-537)
Opp:VITS Eng. College,
Byepass Road,
Karimnagar 505 001, (A.P.)
Rep. by its Managing Partner
Sri N.Narsinga Rao.
M/s.Kubato Agricultural Machinery
India Pvt. Ltd., No.15,
Meda Vakkam Road,
Sholinganallur, Chennai-600 119
(Tamilnadu) rep. by its
Managing Director. ..Opposite parties.
Counsel for the complainants : M/s.V.Gourisankara Rao.
Counsel for the opposite parties : M/s V.Srihari-OP 1
M/s Rajasripathi Rao-OP 2
CC 12/2013
Sri Raja Rajeswari Rythu Mithra Group
Village : Elkalapally, Mdl : Ramagundam,
Karimnagar Dist – 505 188 (A.P.)
Rep by its Convener : P. Bhaskar
& Co-convener G. Rajaiah .. Complainant
And
M/s Shakti Farm Machinery
5-7-28, (MIG G1-537)
Opp:VITS Eng. College,
Byepass Road,
Karimnagar 505 001, (A.P.)
Rep. by its Managing Partner
Sri N.Narsinga Rao.
M/s.Kubato Agricultural Machinery
India Pvt. Ltd., No.15,
Meda Vakkam Road,
Sholinganallur, Chennai-600 119
(Tamilnadu) rep. by its
Managing Director. ..Opposite parties.
Counsel for the complainants : M/s.V.Gourisankara Rao.
Counsel for the opposite parties : M/s V.Srihari-OP 1
M/s Rajasripathi Rao-OP 2
CC 13/2013
Inreddy Srinivas Reddy,
S/o.late Linga Reddy, aged about 42 years,
Occ:Self employment
Village and Mandal Kodimyal,
Karimnagar District 505 501 (A.P) ..Complainant
And
M/s Shakti Farm Machinery
5-7-28, (MIG G1-537)
Opp:VITS Eng. College,
Byepass Road,
Karimnagar 505 001, (A.P.)
Rep. by its Managing Partner
Sri N.Narsinga Rao.
M/s.Kubato Agricultural Machinery
India Pvt. Ltd., No.15,
Meda Vakkam Road,
Sholinganallur, Chennai-600 119
(Tamilnadu) rep. by its
Managing Director. ..Opposite parties.
Counsel for the complainants : M/s.V.Gourisankara Rao.
Counsel for the opposite parties : M/s V.Srihari-OP 1
M/s Rajasripathi Rao-OP 2
CC 14/2013
Gandam Laxmaiah, S/o Balaiah
Aged about 48 years, Occ : Self Employment
Village : Mallapur, Mdl : Dharmaram,
Karimnagar Dist. 505416(A.P.) .. complainant
And
M/s Shakti Farm Machinery
5-7-28, (MIG G1-537)
Opp:VITS Eng. College,
Byepass Road,
Karimnagar 505 001, (A.P.)
Rep. by its Managing Partner
Sri N.Narsinga Rao.
M/s.Kubato Agricultural Machinery
India Pvt. Ltd., No.15,
Meda Vakkam Road,
Sholinganallur, Chennai-600 119
(Tamilnadu) rep. by its
Managing Director. ..Opposite parties.
Counsel for the complainants : M/s.V.Gourisankara Rao.
Counsel for the opposite parties : M/s V.Srihari-OP 1
M/s Rajasripathi Rao-OP 2
QUORUM: THE HON’BLE JUSTICE SRI GOPALAKRISHNA TAMADA, PRESIDENT.
AND
SRI R.LAKSHMINARASIMHA RAO, HON’BLE MEMBER.
Friday, the Twenty Third Day of May
TWO THOUSAND FOURTEEN
Order ( Per Sri R.Lakshminarasimha Rao, Hon’ble Member.)
***
All the eight complaints involve similar question of fact and law and as such they are disposed of by common order. Complaint in CC No. 109/2012 is taken as lead case.
The complaint is filed seeking direction to the opposite parties to refund an amount of Rs.Rs.21,75,000/- along with interest @ 15% p.a. from 15-12-2009 till the date of realization, to reimburse the insurance premium of Rs.24,000/-, to pay Rs.24,00,000/- towards loss of earning due to non functioning of the harvester, to pay compensation of Rs.2,00,000/- and costs of Rs.50,000/-.
The averments of the complaint are that opposite party No.2 is the manufacturer of Kubota Combine DC-68G Harvesters and the opposite party No.1 is the dealer of opposite party No.2. The opposite party No.2 gave vide publicity through brochures representing that it is a 100% subsidiary manufacturer of agricultural machinery and market leader in Europe and that Kubota has been making combine harvesters in India since 2008 through joint venture of Sumitoma Corporation India Pvt. Ltd.,
The complainant submitted that the opposite party no. 2 represented that the harvester can harvest approximately 1 acre of paddy field in one hour and give 5-7% grain saving per acre and it delivers clean and unbroken grains and that grain loss/breakage will be less than 1% and that it is capable of multi crop harvesting. It was also represented that the track machine is engaged almost round the year.
The complainant in order to eke out his livelihood under self employment purchased Kubota Combine Harvester DC 68 G of 67 HP by paying Rs.21,75,000/- towards the cost vide invoice dated 03.02.2010 from opposite party no.1 and the opposite parties offered warranty for crawler for a period of 6 months or 500 hours whichever is earlier. For engine and power train (includes transmission) the warranty is furnished for 12 months or 1000 hours from the date of delivery whichever is earlier. The complainant submitted that for the purpose of purchasing Kubota combine Harvester from opposite parties, she obtained a loan of Rs.17,00,000/- from Union Bank of India, Karimnagar branch and the rate of interest payable on the bank loan is 14.5% p.a.
The complainant submitted that the Harvester was delivered on 03.02.2010 and it has not been properly functioning and suffered the defects such as its belt and cutting blades were replaced within 21 hours of its purchase, Hose pipe was repaired on 16.03.2010, crawler was replaced on 21.03.2010, 23.03.2010, 21.4.2010, 16.09.2010,. 23.12.2010, 26.02.2011 and 13.08.2011, Spring motor was replaced on 16.09.2010. The assembly transmission was replaced on 18.11.2010, it was repaired on 13.08.2011, 04.09.2011, 19.09.2011, 10.11.2011, 22.12.2011, 05.04.2012 and 04.05.2012.
The complainant submitted that from the repeated defects developed in the harvester establish that the harvester manufactured by opposite party No.2 company is suffering from inherent manufacturing defects and that due to repeated heavy repairs to the machinery, the complainant incurred monitory loss to a tune of Rs.24,00,000/-. The complainant lost 2400 hours and she lost income for five seasons, i.e., 15 months and 20 days.
08. The complainant brought the defects in the harvester to the notice of the opposite parties on 28.07.2010, 16.03.2011, 25.04.2011,04.01.2011, and submitted representation to the District collector on 21.04.2011 and on 23.01.2012, and to the joint collector on16.03.2012. The complainant represented the matter on 26.01.2012 to the Harvesters Dealers Association, to the Andhra Pradesh Agro Development Corporation on 15.02.2012, submitted representation to the Chief Minister on 10.03.2012, to the Karimnagar Consumer Committee on 24.03.2012. The complainant has also submitted representation to the Union Agriculture Minister on 08.08.2012 and 12.08.2012.
09. The complainant submitted that in spite of several phone calls, requests, individual and collective efforts with the other people of the company, the problem of the harvester was not solved by the opposite parties and as such on 16—3-2011, the complainant got issued notice to the opposite parties to settle her grievance by refunding the cost of the Harvester and on 31-3-2011 the opposite parties got issued reply denying the allegations and stated that the rates of the spare parts cannot be compared with other companies and that they have effected necessary repairs. On 12-4-2011, opposite party No.2 got issued a reply notice stating that the warranty does not cover damage caused to the product due to lack of proper care maintenance, misuse etc. and the parties have to go for arbitration and denied any defect or any malfunction of the harvester engine and crawler and that they are not liable to pay the cost of the harvester. The complainant submitted the crawler and assembly transmission suffer inherent defect and supplying of inherently defective harvester and failing to refund the amount amounts to unfair trade practice and deficiency in service.
10. The opposite party No. 1 has filed written version contending that the complaint is not maintainable as it is dealer and there is no complaint in regard to servicing by the opposite party no. 1. The opposite party no. 1 is not aware of the terms of purchase of harvester. The privity of contract is between the complainant and the opposite party no. 2. The complainant verified the product, made enquiry in the market and inspected the harvest at the show room of the opposite party no. 1 and she was satisfied with its functioning when demonstrated.
11. The opposite party no. 1 has contended that the complainant purchased the harvester for commercial purpose. The malfunctioning of the harvester has claimed by the complainant arises out of starting trouble in any new machinery and not a result of any defects. The assembly roller, carrier rollers are movables and are subject to normal wear and tear. The job cards are the proof of satisfaction of the complainant with the service rendered by the opposite party no. 1 and the working condition of the machinery. The complainant compelled the employees of the opposite party no. 1 to issue service statement without regard to the job cards and the complainant has attempted to black mail the opposite parties. The complaint is barred by limitation.
12. The opposite party no. 2 resisted the claim contending that the complaint is filed beyond the limitation period. The complainant is not consumer. The harvester is 2.9 years old and it has been put to use for 2142 hours as on 19.01.2012. The average number of hours of use completed by the harvester is 535 hours for season with 9 hours per day working which shows the harvester was used extensively and there is no manufacturing defect in it.
13. The opposite party no. 2 contended that the complainant has failed to prove that the harvester is defective. The longest warranty was provided for the engine and power train which was 12 months or 1000 hours from the date of delivery was expired on 02.02.2011. The warranty of the harvester stipulates that the opposite party is obligated to repair or replace the defective parts of the harvester during the warranty period. The opposite party no. 1 removed those parts in the harvester and replaced the same with new parts and thereby rectified the problems reported by the complainant. .
14. The opposite party no. 2 has contended that the harvester is in proper working condition and is in possession of the complainant. The claim for refund of the entire cost of the harvester is unjustified. The complainant used the harvester extensively and at the end of the two years term complaint reported the problems. The complainant is not entitled to recover for incidental or consequential damages including loss of profits or are commercial loss. The complaint without mechanical inspection of the harvester is not maintainable. The complainant has not obtained any report from any government agency regarding the defect in the harvester.
15. Each and every time it was reported for service. All the services were carried out to the satisfaction of the complainant and the complainant taken delivery of the harvester. The complainant has violated the terms and conditions of the warranty. The complaint is vague and unsubstantiated. The complainant has not specified what was the manufacturing defect in the harvester which rendered the use of the harvester impaired.The complainant is using the harvester for commercial purpose by hiring operators and leasing out the harvester to other farmers. The warranty was furnished on crawler and roller of the harvester for a period of six months and on the engine for a period of 12 months. The warranty is limited to repair and replacement of defective parts during warranty period. Normal wear and tear of the parts of the harvester is not covered under warranty. The complainant had driven the harvester up to 2142 hours as on 19.01.2012 which is more than the normal average use per day. . The complaint is filed beyond the period of limitation Hence, the opposite party no. 2 has prayed for dismissal of the complaint.
16. The complainant has filed her affidavit and 27 documents. On behalf of the opposite parties, the Deputy Managing Director of the opposite party no. 2 filed affidavit and the three documents.
17. The learned counsel for the complainant has filed written arguments.
18. The learned counsel for the complainant has filed written arguments.
The points for consideration are:
Whether the complaint is maintainable under the provisions of the Consumer Protection Act?
Whether there is deficiency in service on the part of the opposite parties?
To what relief?
.19. The complainant the complainant purchased Kubota CombineDC-68G harvester manufactured by the second opposite party and sold by the first opposite party.The invoice dated 3.02.2010 establish payment of Rs.21,75,000/- by the complainant towards cost of the harvester. The complainant availed loan to the tune of Rs.21,75,000/- from Union Bank of India for the purpose of purchasing the Harvester. The opposite party no.2 delivered the harvester on 3.02.2010 to the complainant.
20. The learned counsel for the complainant has stated that the harvester posed problems such as its hose pipe was broken and it was repaired 211 hours after its purchase, Swing Motor, belt and cutting blade were replaced and the crawler on seven occasions and Assembly Transmission were replaced on several occasions and the frequent occurrence of problems establish manufacturing defect in the harvester. The learned counsel submitted that the complainant purchased the harvester to eke out her livelihood. He has relied on the following decisions:
i) Maharashtra Seeds Corporation vs Alapapati Chandra Reddy’ 1998(3) CPJ 8.
ii) East India Construction Company vs Modern Consultancy Service’ 2006(2) CPJ 289.
SAS Motors Ltd vs Ananth Haridas Chowdary’ 2013(3) CPJ 520.
Shree MB Industries vs Susheel Bhatar’ 2013(3) 379 (NC).
Trans Asia Bio-medicals Ltd vs DJ D’Souza’ 2013(1) CPJ 424.
Chairman, Ajara Urban Co operative Bank Ltd Vs. M/s. V.J. & Sons and another, ( 1992) 3 CPJ 321
UCO Bank Vs S.D. Wadhwa, III (2013) CPJ 523 (NC)
Oriental Insurance Co. ltd and another Vs. Shoba Mukhia, III (2013) CPJ 381 (NC)
Himachal Pradesh Housing & Urban Development authority Vs. D. K.Sharma, I 92013) CPJ 425 (NC).
21 The learned counsel for the opposite party no.2 has contended that the complainant purchased the harvester for the purpose of earning profit and in view of commercial purpose for which the harvester is utilized. The complaint is not maintainable before this Commission. He has submitted that the complainant let out the harvester on hire and she cannot maintain the complaint under the provisions of the Consumer Protection Act. He has placed reliance on the following decisions:
i) Laxmi Engineering Works vs PSG Industrial Institute (1995) SCC 583.
ii) Sushila Automobiles Pvt Ltd vs Dr.Birendra Narain Prasad and others in RP No. 1652 of 2006 decided on 07.05.2010.
JCB India vs Mallappa Sangappa Mantri in RP No. 4260 of 2010.
Maruthi Udyog Ltd vs Hasmukh Lakshmi Chand another in RP No. 827 of 2004.
Saavi Gupta and another vs M/s Omaxe Azorim Developers Ltd in CC No. 208 of 2012 decided on 01.10.2012.
Hero Honda Motors vs Katakam Mallikarjun Rao in RP No. 1804 of 2007 decided on
Ranwir Singh Bagga vs M/s KLM Royal Dutch Airlines and another in Civil Appeal No. 87011 of 1997 decided on 2.11.1999, SCI
Eicher Motors Ltd vs Dilip Chandra Kant Vaidya and others’ I(2007) CPJ 51.
Mahindra & Mahindra Limited Vs B. G. Thakur Desai and another,
First Appeal No. 51 of 1992 decoded on 07.12.1992, NCDRC
Shivprasad paper Industries Vs. Senior machinery company, First Appeal No. 484 of 2005 decided on 30.11.2005.NCDRC
Escorts Yamaha Motors Ltd Vs. S. K. Bhel, 2006 CTJ 98 (CP), SCDRC, Delhi.
Ajitha Chit Funds (P) Ltd Vs. Tata Engineering & Locomotives Co. Ltd and others, 2007 CTJ 617 (CP) (NCDRC).
22 The complainant does not operate the harvester and she engaged an operator therefor. The complainant has claimed monetary loss to the tune of Rs.24,00,000/- on the premise that on account of repairs to the Harvester she lost income for 2400 hours for five seasons @Rs.1,000/- per hour.
23. The question of jurisdiction is one of the vital aspects for a court or tribunal since it involves the challenge to the very competence of or tribunal. The order or decree passed without jurisdiction as to the subject matter by the court or tribunal is not treated on the same footing where it passed without territorial jurisdiction and pecuniary jurisdiction. The order passed without the jurisdiction of the subject matter is no order in the eye of law as the very power required to pass the order or decree is lacking in the court or tribunal.
24. Section 2(1)(d) of the Consumer Protection Act confers status of consumer who avails service or purchases goods not for any commercial purpose and in case the service is availed or goods are purchased for commercial purpose it is subject to the condition that such commercial purpose is meant for his eking out his livelihood by means of self-employment.
25. The word ‘commercial’ is an adjective defining the nature of a transaction or activity irrespective of the fact whether that transaction or activity is on a large scale or on a small scale. If any activity or transaction is for the purpose of profit making it becomes commercial. The complainant as such cannot maintain the complaint before Consumer Forum.
26. In ‘Laxmi engineering Works’ (supra), the Hon’ble Supreme Court considered the status of consumer in the backdrop of the explanation to Section 2(1)(d) of the Consumer Protection Act. The Supreme Court held that the definition of consumer is wide and the definition when read with the explanation, it becomes narrower in view of the language employed for the explanation. Their Lordships observed:
“it is argued by the learned counsel for the appellant that such a narrow construction may not be warranted by the scheme and object of the enactment. He says that there may be a widow or an old or invalid man who may have no other means of livelihood and who purchases an auto-rickshaw or a car or other machinery to be plied or operated by another person either on payment of consideration on a daily, weekly or monthly basis or as a servant or agent. While there is certainly some logic in the said submission it cannot be accepted in view of the language of the explanation. We are also of the opinion that the definition of the expression " person" in Section 2(m) as including a firm (whether registered or not), a Hindu undivided family, a co-operative society or any other association of persons (whether registered under the Societies Registration Act, 1860 or not) makes no difference to the above interpretation. If a firm purchases the goods, the members of the firm should themselves ply, operate or use the goods purchased “
27. In ’Mrs.saavigupta’ (supra) The National Commission considered catena of its decisions and applied the ratio laid in ‘Laxmi Engineering Works’ to hold the complaint not maintainable in view of the fact that the Flat was purchased for commercial purpose. The other decisions relied upon by the learned counsel for the opposite party no.2 lay the same proposition of law that goods purchased or service availed for commercial purpose and disputes thereof are not amenable to the jurisdiction of Consumer Forum.
28. In’M/S Maharashtra Hybrid Seeds Company Ltd’ (supra), the complaint was filed that the sunflower seeds produced by the company did not germinate by reason of defects. The District Forum allowed the complaint and awarded compensation of Rs.5,000/-. Appeal and Revision filed before State Commission and National Commission were dismissed. The Company resisted the claim on the premise of the Seeds Act and Rules framed there under is a complete code, failure to adopt procedure laid down by Section 13(1) (c ) of the Consumer Protection Act and the purpose of growing sun flower plants being for commercial purpose. The Supreme Court held that since the entire seeds purchased were sown, the complainant could not send the seeds to laboratory and the Apex Court left the question of law open as to the commercial purpose, to be decided in an appropriate case. Thus, the decision is of no avail to the case of the complainant. The other decisions relied upon by the learned counsel for the complainant are rendered in regard to manufacturing defect of machines which will not have application as the complainant is not a consumer in view of the ratio laid in “Laxmi Engineering Works”.
29. Goods purchased and service utilized for commercial purpose does not come under the purview of the provisions of C.P. Act. Explanation to Section 2(1)(d) of the Consumer Protection Act excludes the person invoking its jurisdiction on account of the purchase of goods or utilization of service by him for any commercial purpose. The complainant has failed to establish that she would fit in the definition of ‘consumer’ as defined by Section 2(1)(d) of the Consumer Protection Act. As such, the complaint is held not maintainable under the provisions of Consumer Protection Act.
30. POINT NO. 2: In view of the finding under Point No.1 that the complainant is not consumer, there need be no discussion under this point.
32. In the result, the complaints in CC. Nos.109/2012, 110/2012, 111/2012, 112/2012, 113/2012, 12/2013, 13/2013 and 14/2013 are dismissed. The complainants are at liberty to approach appropriate Forum. In the event, the complainants approach the Forum, the period spent between the filing of the claim before the District Forum and the disposal of the matter today by us will be excluded under Section 14 of the Limitation Act, 1963 in the light of the decision of the Hon’ble Supreme Court in “ Trai Foods ltd Vs. National insurance Company Ltd and others “ reported in (2004) 14 SCC 656. No order as to costs.
PRESIDENT
MEMBER
DATED : 23.05.2014.
CC Nos. 109, 110, 111,112 113 of 2012 and CC nos. 12, 13 & 14 of 2013
APPENDIX OF EVIDENCE
Witnesses Examined
For Complainants ; None
For opposite parties : None
Documents Marked
For Complainants ; nil
For opposite parties : nil
PRESIDENT
MEMBER
DATED : 23.05.2014.
