Orissa

Cuttak

CC/102/2016

Abhaya Kumar Das - Complainant(s)

Versus

Panchamukhi Sanitary Store - Opp.Party(s)

A K Mohapatra

20 Nov 2018

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL FORUM,CUTTACK.

C.C No.102 of 2016

Abhay Kumar Das,

Prop. M.D,Eastern Piling and Construction (P) Ltd.

(AB Complex),At:Bhanpur,Ppatapnagari,

P.S:Sadar,Dist:Cuttack.                                                                   .… Complainant.

 

Vrs.

1.       Panchamukhi Sanitary Store,

At:Madhupatna,Kalyani Nagar,

Po/PS: Madhupatana,Town/Dist:Cuttack-753010

2.      C.R.I. Pumps Private Ltd.,

Represented through its Manager,

Unit-Ransar Industries-II,

480/481,Sathy Road,

                  Kurumbapalayam,Coimbatore-641107(India)

 

Present:               Sri Dhruba Charan Barik,President.

Smt. Sarmistha Nath, Member (W).

 

Date of filing:     12.08.2016

Date of Order:  20.11.2018

 

For the complainant          :    Mr. A.K.Mohapatra,Adv. & Associates.

For the O.P No.1.               :   None.

For O.P No.2                     :  Mr. Sharada Pattnayak,Adv. & Associates.

 

Smt. Sarmistha Nath,Member(W).

 

                The complainant being a consumer has filed this complaint before this Forum against the O.Ps for redressal of his grievances U/S-12 of the C.P.Act in terms of his prayer made in the complaint petition alleging deficiency in service on the part of O.Ps.

1.  Case of the complainant stated in brief is that the complainant who is a special class contractor  purchased a 1.0 H.P pump set of C.R.I Company brand of model 12st cri-3r-3332 di03-cri, from the dealer O.P No.1(though mentioned as O.P.2 in petition) O.P.2 on 2.6.16 from his store at Madhupatna,Cuttack at Rs.12,300/-. Copy of the invoice is attached as Annexure-1.

The complainant installed the pump set at his work place at Barbil to lift water on 3.6.16. On 4.6.16 the pump set did not function due to some defects.Immediately the incident was intimated to the dealer by telephone.On the instruction of the dealer the said pump set was brought to the dealer at Cuttack on the next day on 5.6.16 for its repair.After repairing the pump set, the dealer delivered the pump set to complainant on 16.6.16.(The copy of the repairing-cum-warranty registration card is filed herewith as Annexure-2.)

On 18.6.16, the pump set was fitted for lifting water but it did not function nor lifted water for which the construction work was hampered for about 15 days.The complainant through telephone intimated the dealer.The dealer neither responds to the call nor took any step to replace/repair the defective pump set.The complainant’s repeated request for repairing of the pump set went unresponded.The complainant has to suffer both financially and mentally due to inaction of the dealer.The complainant sent legal notice on 25.6.16 to the O.Ps.Copy of legal notice is filed as Annexure-3 along with postal A.D.The complainant prayed for a direction to the O.Ps to pay the cost of the pump set Rs.12,300/-, transportation cost of the pump set Rs.2,000/-, loss due to hampering of construction work Rs.1,00,000/- and to pay Rs.1,00,000/- as compensation towards mental agony and harassment.

2. The O.Ps filed joint written version raising question of locos standi of the complainant as well as maintainability as the complainant being outside the purview of consumer. The O.Ps also took the plea that the Forum lacks jurisdiction to adjudicate the issue/case raised by complainant as the issues are complicated in nature which requires oral and documentary examination and the complainant has purchased the pump set for commercial purpose and not for his personal use, hence, the complainant is not coming under the definition of consumer as defined U/S-2(1)(d)(i) and (ii) of the Act.  The further plea of the O.Ps is that the representative of O.P had given the pump set for repairing on 10.6.2016 and it was duly repaired and delivered on 16.6.16.  It was clearly mentioned in the job sheet that “motor was burn out due to the customer did not put water inside and run it that caused the insulation failure”.  It shows that the defects occurred in the pump set due to sheer negligence and mishandling by the complainant.  The O.Ps further stated that the complainant instead of handing over the pump set to the O.Ps for examination/inspection insisted for total replacement of the pump set and sent the legal notice.  So the O.,Ps denied to replace the same on the ground that like the first occasion, the pump set may have been defective due to mishandling or non-abiding by the advice of the O.P No.1 for successful operation of the pump set which he has given at the time of delivery of the pump set to the representative of the complainant after completion of the repair work for the first occasion.  The pump set is not used for domestic purpose rather it is used in construction work site which must have been used by several persons who are not equipped to handle the pump set.  So the O.Ps are not liable to replace the pump set in question.
3. We have heard from the advocates of both the parties and perused the documents in case record.  Taking into consideration the pleadings of the parties, the points for determination are:

1. Whether the petitioner is a consumer under the O.Ps?
2. Whether there is any deficiency in service on the part of O.P No.2?
3. To what relief the complainant is entitled to?

Issue No. I & II.

As both the issues are linked with each other, they are discussed together.Admittedly the complainant has purchased the pump set from the O.P No.1 for a consideration of Rs.12,300/-, and engaged it in his workshop.It is alleged that after 2 days of purchase, noticing the pump set did not function due to some defects, he gave the pump set to the O.P No.2 and O.P No.2 repaired the same and handed over the pump set to the O.P No.1.Though the O.P No.1 took the plea that the motor was burn out as it was run without putting water inside that caused insulation failure but the O.P No.1 denied to replace the pump set on the ground that like first occasion the pump set may have been defective due to mishandling ornon-abiding by the advice of O.P No.1 for successful operation of the pump set, which he has given at the time of delivery of the pump set to the representative of the complainant after completion of the repairing for the first occasion.The O.Ps further pleaded that the pumps pet used in construction site must have been handled improperly by several persons, who are not equipped to handle the pump set.The above pleas of the O.Ps are not based on any document or paper, rather on surmises.So the pleas taken by the O.Ps are untenable and the action of O.Ps amounts to unfair trade practice and deficiency in service provided by O.Ps.

The counsel for the O.Ps relied upon the judgment reported in 2014(4) CPR-583(NC) (Force Motors Ltd. Vrs. Branch Manager,Punjab & Sindh Bank).  In the said judgment, it has been held by the Hon’ble National Commission that when the complainant is a commercial establishment and the goods purchased are to be used for commercial purpose and not for livelihood, the complaint will not be maintainable.  But the counsel for the complainant contended that the pump set was not meant for commercial purpose rather it is purchased for earning his livelihood and for self-employment.  So the case of the complainant is covered within the four corners of the word consumer as defined in Sec-2 of the C.P.Act.  From rival contentions, it is observed that the judgment relied upon by the O.Ps is applicable to the present case because the complainant is a commercial establishment and the pump set was purchased for commercial use.  So the petitioner is not a consumer as defined U/S-2 of C.P.Act.

 

Issue No.3.

After taking into consideration all the facts and circumstances, in our opinion, the complainant is not entitled to get any compensation.

                                                                         ORDER

Basing upon the facts and circumstances, the case is dismissed as not maintainable.

Typed to dictation, corrected and pronounced by the Hon’ble Member in the Open Court on this the 20^th    day of November,2018  under the seal and signature of this Forum.

 

  ( Smt. Sarmistha Nath )

                   Member (W)                                                                                                                                                                                                                                                                                                                                                                                                       (Sri D.C.Barik)

                                                                                                      President.