This appeal has been filed by the appellants Amtrex Hitachi Appliances Ltd. & Anr. against the order dated 26.11.2008 of the State Consumer Disputes Redressal Commission, Delhi, (in short ‘the State Commission’) passed in C-14/2004.

2.      Brief facts of the case are that in the year 2002, the respondent herein approached the appellants for an Air-conditioning Scheme for air-conditioning of their premises at C-14, Westend, New Delhi.  Under the Scheme, the total value payable for the equipment was Rs.19,37,820/- inclusive of all taxes and duties and the cost of ancillary work was Rs.2,12,180/-.  On 28.8.2002, appellants and the respondent entered into an agreement whereunder the appellants were to implement the above mentioned scheme at the premises of the respondent for the consideration mentioned above.  At the time of entering into the agreement, the total cost of the equipment as mentioned above and 50% of the amount regarding the ancillary work was paid to the appellants by the respondent.  On 07.07.2003, the respondent wrote a letter making allegations against the appellants that the air-conditioning system installed by the appellants was not working properly.  On 20.7.2003, appellants sent a letter informing the respondent that their Air-conditioning system was working perfectly and that the complaints made by the respondent were related to remote operational issues or voltage problem and that there was nothing wrong with the equipment supplied and installed under the air-conditioning scheme by the appellants.  The appellants further informed the respondent that to obtain uninterrupted performance of the air-conditioning system installed at the premises of the respondent, certain precautions were required to be taken. On 29.10.2003, the respondent through its Advocate, got a legal notice served on the appellants demanding that the air-conditioning system installed at the premises of the respondent be rectified at no extra cost and that a sum of Rs.44,29,220/- be paid to the respondent.  On 18.11.2003, appellants sent a reply to the legal notice dated 29.10.2003.  The appellants refuted all the allegations made by the respondent in their legal notice and reiterated that the air-conditioning system installed by the appellants was working perfectly at the respondent’s premises.  In the year 2004, the respondent filed a complaint before the State Commission against the appellants alleging deficiency in service on the part of the appellants.  In April, 2004, the respondent filed a suit for mandatory injunction being Suit No.CS(OS) 393/2004 before the Civil Court in Delhi to fulfil its part of the agreement.  On 19.4.2008, the respondent withdrew the said suit.  The said suit was withdrawn simplicitor without taking leave of the court to agitate the issues arising in the said suit in other proceedings.  On 26.11.2008, impugned order was passed by the State Commission whereby the State Commission allowed the complaint of the respondent and directed the appellants to pay a sum of Rs.10 lakhs to the complainant as compensation and Rs.25,000/- as cost of litigation.

3.      Hence the present appeal.

4.      Heard the learned counsel for the parties and perused the record. 

5.      Learned counsel for the appellants stated that the respondent/complainant is not a consumer as the air-conditioning contract was given for the house of Managing Director (MD) of the respondent company as is clear from letter dated 07.6.2003 of the complainant. Even in the legal notice, it is stated that the air-conditioning was to be done for the house of the MD.  The maintainability issue was raised before the State Commission on this ground.  However, the State Commission has not considered this issue.  In this regard, learned counsel for the appellants referred to the judgment of this Commission in General Motors India Pvt. Ltd. Vs. G.S. Fertilizers (P) Ltd. & Anr., II (2013) CPJ 72 (NC), wherein the following has been observed:-

“9.   We have heard learned counsel for both parties and have gone through the evidence on record.  We note that in his complaint before the State Commission the Respondent-Complainant had clearly stated that the vehicle was purchased for the use of its Managing Director.  We agree with Appellants’ contention that this clearly amounts to its purchase for a ‘commercial purpose’ since the Managing Director of a private limited company would obviously not use this vehicle for self-employment to earn his livelihood but for ‘commercial purposes’ as a perk of his office.”

6.      On merits, the learned counsel for the appellants stated that air-conditioning of kitchen was not included in the original scheme approved by the complainant.  Complainant later requested to cover kitchen as lobby was not getting properly cooled.  A confirmation was given by the appellants in their letter dated 2.7.2003.  Then the kitchen was also air-conditioned.  However, the respondent still complained of less cooling in the lobby. Then vide letter dated 20.7.2003 of the appellants, the appellants advised reasons for alleged less cooling and precautions to be taken and modes to be used.  It was further advised that there was also voltage problem and improper remote mode selection. 

7.      It was further argued by the learned counsel for the appellants that there was no expert report and therefore, defects cannot be proved in a case where any technical defects have been alleged. In an equipment, the defects can only be proved on the basis of the expert report as the complainant would be alleging the defect and the opposite party would be denying those allegations.  It was further pointed out by the learned counsel that injunction Suit No.CS(OS) 393/2004 was also filed by the respondent/complainant, which was later withdrawn.  This clearly shows that the case was withdrawn when the respondent realised that he had no case.  In the plaint of this suit the following was prayed:-

“a)   Pass a decree of mandatory injunction in favour of the plaintiff and against the defendants, thereby directing the defendants to enter into an Annual maintenance Contract with the Plaintiff for providing the maintenance services to the air-conditioning system supplied and installed by them at C-14, Westend, New Delhi, as per terms agreed upon in the Contract dated 29.08.2002 and without prejudice to the rights of the Plaintiff in its complaint pending before the National Consumer Disputes Redressal Commission, New Delhi.”

8.      Learned counsel for the appellants argued that if the respondent/complainant was not satisfied with the work and air-conditioning system installed by the appellants, why was the complainant insisting for Annual Maintenance Contract (AMC) from the appellants?  It impliedly means that the complainant was satisfied with the air-conditioning system installed in the premises in question.  It was further stated that the appellants submitted several proposals to improve the situation in respect of cooling by providing extra Split ACs.  The complainant has also not paid for half of the ancillary work, which is about Rs.1,06,090/- .

9.      On the other hand, learned counsel for the respondent/complainant stated that total agreed amount has been paid as observed by the State Commission in the impugned order.  It was further submitted that the complainant has also paid Rs.5,40,000/- as extra money over and above the contracted price for additional air-conditioners on the advice of opposite parties/appellants.  However, there was no improvement in cooling.

10.    On the question of maintainability, particularly in respect of the complainant being a consumer, it was argued by the learned counsel that the air-conditioning system has been installed for self-use of the Managing Director and there is no question of any commercial purpose.  No profit was to be generated out of this air-conditioning system and the cooling generated by this system is not being traded. Company is not giving this premises to any outside person for use or giving on rent.  The issue of consumer was not raised before the State Commission.  Surprisingly in the grounds of appeal also, this issue has not been mentioned.

11.    It was further pointed out by the learned counsel for the respondent that many complaints were given to the appellants/opposite parties in respect of cooling in the lobby and in the kitchen as well as in other parts of the premises.  The opposite parties have only submitted the status of some of these complaints as on 20.7.2003 wherein only few service report are mentioned and there is no mention of rest of the service reports.  Learned counsel argued that when the Engineers of the opposite parties have themselves admitted the faults and complaints, there is no requirement of any separate expert report as the opposite party company itself was an expert as they had claimed while getting the order. 

12.    I have given a thoughtful consideration to the arguments advanced by the leaned counsel for the parties and have examined the material on record.

13.    So far as question of complainant being a consumer is concerned, it is seen that the complaint has been filed by the respondent/complainant M/s. Stic Travels Pvt. Ltd.  It seems that it is a Private Limited Company and a company is a consumer as held by the Hon’ble Supreme Court in Karnataka Power Transmission Corporation and Anr. Vs. Ashok Iron Works Private Limited, (2009) 3 SCC 240, wherein the following has been held:-

“18. Section 2(1)(m), is beyond all questions, an interpretation clause, and must have been intended by the legislature to be taken into account in construing the expression `person' as it occurs in Section 2(1)(d). While defining `person' in Section 2(1)(m), the legislature never intended to exclude a juristic person like company. As a matter of fact, the four categories by way of enumeration mentioned therein is indicative, categories (i), (ii) & (iv) being unincorporate and category (iii) corporate, of its intention to include body corporate as well as body un-incorporate. The definition of `person' in Section 2(1)(m) is inclusive and not exhaustive. It does not appear to us to admit of any doubt that  11company is a person within the meaning of Section 2(1)(d) read with Section 2(1)(m) and we hold accordingly.”

14.    It is not material whether the air-conditioning was ordered for the house required for the Managing Director or otherwise, the property is definitely of the complainant company and it has not been proved by the opposite parties that the premises are being used on rent or for earning profit otherwise.  Hence, the complainant comes within the purview of definition of consumer as given in Consumer Protection Act, 1986.

15.    Moreover, it is also seen that the contention of the appellant that the respondent No.1 has given the order of the air-conditioning for house of the Managing Director and therefore, it was for commercial purpose, and to support his contention learned counsel had referred to General Motors India Pvt. Ltd. Vs. G.S. Fertilizers (P) Ltd. & Anr. (supra), is not tenable in the light of the recent judgement of the larger Bench of this Commission passed in CC No.51 of 2006, Crompton Greaves Limited & Anr. Vs. Daimler Chrysler India Private Limited & Ors., decided on 08.7.2016 (NC), wherein following has been held:-

16.    It is clear from the correspondence between the parties that the system did not operate properly and to the satisfaction of the complainant.  However, the shortcomings mentioned in the list of complaints submitted in a chart form on  20.7.2003  do not seem to be of serious and critical nature, but the complaints were there and less cooling was reported on many dates.  Even the complainant was willing to take the AMC from the appellant’s company and therefore, it can also be presumed that the complainant was not totally averse to the work done by the appellants.  Even if there were certain shortcomings, the complainant was ready to continue with the system and even to offer AMC to the appellants.  It is another matter that for satisfactory running of the system, it would have been the best choice that the AMC is undertaken by the appellant Company, which has installed the system.  It is also true that originally, the kitchen was not included in the air-conditioning scheme and even after inclusion of the kitchen with the consent of both the parties, some less cooling was observed in the lobby.  The appellants have mentioned some of the operational reasons for the same such as wrong selection of mode, low voltage supply etc.  There are both claims and counter claims on the functioning of the air-conditioning system.  I agree with the contention of the learned counsel for the respondent/complainant that no expert report was required as the Engineers of the appellant company have themselves admitted the defects as given in the chart of complaints dated 20.7.2003.  Thus, so far as original contract of air-conditioning is concerned, it seems that the contract has been fulfilled by the appellants and the payment has also been made by the complainant, though some amount is disputed.  The appellants have admitted that they offered many solutions to improve cooling including the provision of additional split Air-conditioners.  This shows that there was some less cooling and the appellants themselves suggested ways to improve the same.  In a way the shortcoming is accepted to some extent by the appellants.  In fact, Rs.5,40,000/- were spent additionally by the complainant for this purpose. Thus, over and above the contract, the complainant has spent Rs.5,40,000/- for additional air-conditioners, which were purchased on the advice of the appellants.  Accordingly, the complainant is definitely entitled to get the payment of this amount from the appellants as compensation, as even after installation of these air-conditioners, the situation did not improve.

17.    Based on the above discussion, the appeal is partly allowed and the order dated 26.11.2008 passed in Consumer Complaint No.14/2004 is modified to the extent that the appellants shall pay Rs.5,40,000/- (rupees five lakhs forty thousand only) to the respondent/complainant instead of Rs.10,00,000/- as ordered by the State Commission. Both parties to bear their costs relating to litigation and accordingly the order of State Commission relating to payment of Rs.25,000/- as cost of litigation is set aside.

18.    This order be complied with by the appellants within a period of 45 days from the date of this order, failing which, an interest @8% shall be payable from the date of this order till actual payment on the amount of Rs.5,40,000/- (rupees five lakhs forty thousand only).