Date of Filing 14.12.2020

                                                                                                             Date of Disposal: 14.12.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

BEFORE TMT. Dr.S.M. LATHA MAHESWARI, MA. ML, Ph.D (Law),                                         …….PRESIDENT

               THIRU.P.VINODH KUMAR, B.Sc., BL,                                                                                ……MEMBER-I

               THIRU.P.MURUGAN, M.Com.,(ICWA), BL.,                                                                    ……MEMBER-II

CC.No.10/2021

THIS THURSDAY, THE 14^th DAY OF DECEMBER 2023

Mr.B.K.Ramesh,

The Partner/Proprietor,

Tech Craft Engineering,

Situated at No.8A, Galaxy Road,

Ponniamman Nagar, Keel Ayanambakkam,

Chennai 600 095.                                                                                     ......Complainant.

                                                                              //Vs//

1.The Technical Director,

   MTAB Engineers Private Limited,

   107, Developed Plot,

   Electrical & Electronics Industrial Estate,

   Perungudi, Chennai 600 096.

2.The MTAB Service Engineer,

   MTAB Engineers Private Limited,

   Plot No.G-26A, Sidco Industrial Estate,

   Kakkalur, Thiruvallur District -602 003.                                        ….opposite parties.

Counsel for the complainant                           : Mr.S.Lakshmi Narayanan, Advocate.

Counsel for the opposite parties                    : M/s.S.P.Arthi, Advocate.

This complaint coming before us on various dates and finally on 06.12.2023 in the presence of Mr.S.Lakshmi Narayanan, counsel for the complainant and M/s.S.P.Arthi, counsel for the opposite parties and upon perusing the documents and evidences of both sides this Commission delivered the following:

ORDER

PRONOUNCED BY TMT.Dr.S.M. LATHA MAHESWARI, PRESIDENT

1. This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service in selling a defective machine along with a prayer to remove the defects found in the machine or replace it with a new machine of similar description or to return the total price of the machine along with 12% interest from the date of purchase, to pay Rs.25,00,000/- towards compensation for the monetary loss, mental agony  and hardship and to pay a sum of Rs.25,000/- towards cost of the proceedings to the complainant.

Summary of facts culminating into complaint:-

2. Complainant and one of his partner Mr.J.Venkatesh became partner of the company “Tech Craft Engineering” through partnership deed dated 01.10.2023.  Intending to purchase the machine MAXTURN PLUS +with Fanuc OiTF Control and Accessories for their company use, they placed purchase order vide P.O.No.01/2018 dated 29.01.2018 before the 1^st opposite party. The 1^st opposite party accepted the offer and generated invoice No.KAK/MTAB/040 dated 29.03.2018 quoting the grand total price of the machine for a sum of Rs.23,32,860/- and supplied the machine to the complainants company on 29.03.2018 through 2^nd opposite party manufacturing unit MTAB Engineering Private Limited. Complainant availed loan from Reliance Commercial Finance Limited and have to repay the loan amount to the Reliance Finance Company with tenor of 48 months EMI Rs.63,223/-per month.  The complainants purchased the machine from opposite parties for some earning through self-employment for their lively hood. Unfortunately from the date on which the machine was installed in the complainants company it was not functioning properly and started giving many trouble one after another.  The complainant Mr. B.K. Ramesh partner of the Tech Craft Engineering informed through email to the opposite parties.  At last after one month later a service engineer came from 2^nd opposite party MTAB Service Team on 19.04.2018. The Service Engineer identified the problems in the machine as programming issue, coolant leakage problem, Hydraulic leakage and serviced the machine but it was working properly for 3 days only. Again the problem occurred in the machine, the complainant informed to the opposite parties. Another Service Engineer came from MTAB service team on 21.04.2018 identified the nature of problem as coolant leakage and serviced the machine and the machine functioning as normal. But the machine was functioning hardly for one month.  Further complaint was lodged by the complainant to the opposite party. The Service Engineer came from MTAB service team on 05.05.2018 identified the nature of problem as Hydraulic Oil Leakages.  Likewise the problem in the machine continuously occurred and the complainant unable to use the machine purpose for which they purchased it. The opposite parties carried out service of the machine nearly 17 times form 19.04.2018 to 20.02.2020 but unable to rectify the problems in the machine completely. On 16.07.2019 the complainant sent an email complaint about the problems in the components of the machine such as chuck and Tail Stock to the opposite party. The 1^st opposite party sent reply through email dated 17.07.2019 regretting for their wrongful advice and sought apology with the complainant. But all promises made by opposite party end in vain.  Thus this amounts to clear admission on the side of opposite parties that they had supplied defective machine and also unable to rectify the defects in the machine which amounts to deficiency in service by the opposite parties.  Thus the complainant sent legal notice to the opposite party on 07.10.2020.  The opposite party defended in their reply notice that the defect in the machine is mere wear and tear and the defects were miniscule issues. The opposite party counter claimed Rs.4,43,735/- sale trade/Commission paid to the complainant in the reply notice.  But the complainants submits that the opposite party paid the above said amount from the entire loan amount received from the Reliance Commercial Finance Limited  loan and the complainant repaying the EMI to Finance company with interest charged by them of entire loan amount without any profit.  Therefore the opposite party counter claim in the notice could not be maintainable either on law or on facts.  Therefore the complainant issued legal notice to opposite party for amicable settlement. Thus aggrieved by the act of the opposite parties the present complaint was filed to direct the opposite parties to remove the defects in the machine or replace it with a new machine of similar description or to return the total price paid for the purchase of the machine along with 12% interest from the date of purchase, to pay Rs.25,00,000/- towards compensation for monetary loss, mental agony  and hardship, to pay a sum of Rs.25,000/- towards cost of the proceedings to the complainant.

The crux of the defence put forth by the opposite parties:-

3. The opposite parties filed version contending inter alia that there was no privity of contract between the Complainant and the Opposite Parties. The machine was purchased by Tech craft Engineering, a partnership Firm. The Purchase Order was raised by the said Partnership and the payment was made by the said partnership. The machine was delivered to the said partnership. The Complainant was, admittedly, only a partner of the partnership and cannot sue in the absence of the other partner. The Complainant claims to have retired from the partnership vide Retirement Deed dated 29.09.2020. The said agreement stipulates that the Retiring Partner, viz the Complainant herein releases all his rights and claims to and in the said firm and its assets of all kinds. The machine sold and delivered to the partnership was an asset of the partnership and the Complainant had clearly relinquished any and all rights over the same. Secondly, the retirement deed further provides that the retiring partner, viz the Complainant herein, shall not carry on the same or similar business as that carried on by the firm for a period 2 years at least. The products proposed to be manufactured, were obviously not for domestic consumption. Also, the partnership deed discusses share in profits and modes of raising credits from financial institutions. Machine that was purchased for the purpose of manufacturing components was put to commercial use by the partnership and hence, the partnership and consequently the partners, do not fall within the scope and meaning of 'consumer'.  Complainant has arrayed the officers of the manufacturer of the goods purchased by him as Opposite Parties and not the manufacturing company per se. There is no privity of contract between the Opposite Parties in their personal capacity, with the Complainant.  Giving the Complainant the benefit of time and assuming the date of commissioning as the date of purchase, the complaint ought to have been presented on or before 31.03.2020, being the permitted 2 years time to raise the complaint. However, the present complaint was presented only on 14.12.2020 and is thus miserably barred by limitation. The machine has an overall weight of approx. 2500 kg and is 2200 mm in Width, 1860 mm in depth and 1900 mm in height. The machine is supplied with Industrial Professional control Make Fanuc Model OITF. The Opposite Parties further submit that the price for the said machine, was Rs.23,32,860/-. As a gesture of goodwill, MTAB offered a Sales/Trade commission of Rs.4,43,735/- on the total sale price, which sum was refunded to Complainant by way of a cheque drawn on Dena Bank dated 23.03.2018, bearing No.024990. The same was duly encashed by the Complainant. In effect, the price of the machine sold to Tech craft Engineering was only Rs.18,89,125/-. It may be relevantly added, that the Complainant did purchase yet another machine later in and around September 2018 from MTAB. The Opposite parties further state that post commissioning, the Complainant has repeatedly reached out to MTAB with various grievances, all such grievances relating only to day to day operation of the machine and not related to the efficiency or quality of the machine supplied. From the date of commissioning to till this date there has never been any complaint on the performance or quality of the product manufactured in the machine. Though the Opposite Party has been raising numerous complaints, majority of them relates to his technological programming job set up, job holding. The machine has been used by the complainant for well over two years for carrying out innumerous job orders, without any complaints on the performance or quality of the product produced in the machine.  It is relevant that even as per the complainant no component has been returned owing to any fault in the manufacturing. As regards the allegation that the complainant purchased the machine for his lively hood self-employment is a barefaced lie.  As aforementioned the partnership was formed with a profit making intention and was labour intensive. Raw materials of Tech Craft Engineering were altered into desired components during these trial runs, which was to the absolute satisfaction of the Complainant. A report to this effect has also been signed by the Complainant. However, these trial runs were conducted in the presence and guidance of MTAB's employees, who are adepted with using the machines. This skill was lacking at the Complainant's end and problems that were faced by him are direct consequences of lack of expertise and understanding at the user end. It would suffice to state that the retirement deed provides that the Complainant shall not engage in any business that competes with that of the partnership and also provides that he has no rights whatsoever over the assets of the partnership, which includes the CNC machine. The allegation of having received hand loans and agony etc as machine was functional. The Complainant having admitted receipt of a cash back to the tune of Rs.4,43,735/-cannot complain that he continues to pay EMI for the entire sum. Thus they sought for dismissal of complaint.

4. On the side of complainants proof affidavit was filed and documents marked as Ex.A1 to Ex A20 were submitted. On the side of opposite parties proof affidavit and documents were not filed and hence their evidence was closed on 07.09.2023.

Points for consideration:-

1. Whether the complaint as filed before this Commission is maintainable and could be tried Under a Summary procedure followed by this Consumer Commission?
2. Whether the complaint allegations as to selling of defective machinery by opposite parties has been successfully proved by the complainant?
3. It so to what reliefs the complainant is entitled to?

Point No.1:-

The following documents were filed on the side of complainant in support of their contentions;

1. Partnership Deed dated 01.10.2013 was marked as Ex.A1;
2. Purchase order dated 29.01.2018  was marked as Ex.A2;
3. Reliance Loan Sanction Letter dated 31.10.2018 was marked as Ex.A3;
4. Loan payment and terms and condition by Reliance dated 12.02.2018 was marked as Ex.A4;
5. Intra State Tax Invoice dated 29.03.2018 was marked as Ex.A5;
6. MTAB Machine quotation copy with General terms and conditions dated 31.03.2018 was marked as Ex.A6;
7. Payment Receipt dated 31.01.2018 was marked as Ex.A7;
8. Advance Receipt voucher dated 23.03.2018 was marked as Ex.A8.
9. Payment Receipt dated 23.03.2018 was marked as Ex.A9;
10. Service Reports (17Nos) from 19.04.2018 to 20.02.2020 was marked as Ex.A10;
11. Complaints about machine sent through email to opposite party dated16.07.2019 was marked as Ex.A11;
12. Tax Invoice from SRS Engineering Works Debit Note dated 08.05.2019 was marked as Ex.A12;
13. Deed of Admission cum Retirement dated 29.09.2020 was marked as Ex.A13;
14. Legal notice sent by the complainant to the opposite party dated 07.10.2020 was marked as Ex.A14;
15. Acknowledgement card from opposite party dated 1010.2020 was marked as Ex.A15;
16. Reply notice sent by the opposite party dated 12.10.2020 was marked as Ex.A16;
17. Loan EMI payment details was marked as Ex.A17;
18. Muthoot Finance Jewell loan pledge receipt was marked as Ex.A18;
19. Deed of Dissolution of Partnership was marked as Ex.A19;
20. Photos was marked as Ex.A20;
21. The Advocate Commissioner’s Report dated 27.09.2023 was marked as Ex.C1 as court document.

5. As the opposite parties has taken a preliminary objection as to maintainability of the complaint, we decided to discuss the said issue as a preliminary issued before going into the merits of the complaint.

6. Represented by both counsel that their written arguments may be treated as oral arguments.

7. The crux of the written arguments by the complainant is that vide Ex.A13 Deed of Admission Cum Retirement dated 29.09.2020, complainant retired from the partnership and as per the terms and conditions of the same he was entitled to sue the opposite parties in his individual capacity.  Further it was stated that he alone transacted with the opposite parties for the purchase of the machinery and hence the complaint as filed by him is very well maintainable.

8.  On the other hand on the question of maintainability it was submitted by the pposite parties that one M/s. TECH CRAFT Engineering, a partnership firm has issued the purchase order and the machine was supplied to the said Tech craft engineering and the invoice also raised in the partnership name.  The consideration was also paid by the firm.  In such circumstances it was stated that complainant is not a consumer.  Also the defence that the transaction involved commercial in nature was raised by the opposite parties.

9. On appreciation of the entire materials and pleadings placed before this Commission we are of the view that the complaint is not maintainable for the following reasons;

1. It is an admitted fact that the machinery was purchased by the partnership firm in which the complainant is no more a partner.  However, the complainant relies upon the Retirement Deed dated 29.09.2020 and contented that he was entitled to initiate legal proceedings in individual capacity.  This commission under a Summary procedure cannot examine the contents of the deed to see that whether the complainant was given the right to proceed against the opposite parties particularly when the invoice for the machinery was given in the partnership firm’s name.
2. Further as rightly pointed out by the opposite parties there is no proof that the entire sale consideration was paid by the complainant for the purchase of machinery entitling him to file the present complaint.
3. The defects alleged by the complainant that the machine has coolant leakage, programming issued, Tailstock problem etc., could not be proved in a summary procedure.  Thus, the defects alleged is of more technical in nature which has to be proved by extensive evidence both oral and documentary.
4. On the point of limitation also a defence was taken by the opposite parties that the complaint is barred as filed beyond a period of 2 years i.e., limitation.  In this case the machinery was purchased in 2018 and from the day of installation, it is alleged that the machinery did not work properly.  However, the complaint was filed only in 2020 i.e., on 14.12.2020 beyond 2 years from the date of purchase.  In this particular scenario, this Commission is of the opinion that though limitation is purely a question of law, as the complainant had alleged that the last service was done by opposite parties on 20.02.2020, the ‘Limitation’ aspect in this case has to be discussed on both the aspects of facts and law.  Thus the said issues to be tried only by way of evidence before a Civil Court.
5. The expert Engineer has opined that the defect in the machine is only due to normal wear and tear of the machine as it was purchased in 2018.  However, the complainant denies the same stating that in order to assess the wear & tear in the machine, the duration of machine operated has to be considered.  In this case the machine was not regularly operated.  Whether the machine was regularly operated or not and what was the exact period of operation the forum requires evidence to be provided by the complainant.
6. For the above reasons we are of the view that as the present complaint involves various complicated issues such as

1. Limitation,

2. Maintainability,

3. Commercial Purpose,

4. Nature of defects,

5. Cause for the defects etc.,

we have no other option but to hold that this Commission is not the appropriate forum to adjudicate and solve the issues raised by the complainant. Thus point No.1 answered accordingly holding that the present complaint could not be tried before this Commission.

Point No.2 &3:-

9. As we have not discussed and gone into the merits of the case, we abstain ourselves from giving any finding on the same and we left open the merits of complaint to be tried by the appropriate forum or a Civil Court. As a result the complainant is not entitled to any relief from the opposite parties.

In the result this complaint is dismissed.  No order as to cost.

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this 19^th day of December 2023.

      -Sd-                                                 -Sd-                                                               -Sd-                                                                                                              

MEMBER-II                                    MEMBER-I                                                   PRESIDENT

List of document filed by the complainant:-

Court Document:-

       -Sd-                                             -Sd-                                                                 -Sd-

 MEMBER-II                               MEMBER-I                                                      PRESIDENT