Haryana

Panchkula

CC/172/2020

ALTRUIST TECHNOLOGIES PVT.LTD. - Complainant(s)

Versus

S.S.A STEEL CASTING . - Opp.Party(s)

20 Feb 2024

ORDER

 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

 

                                                       

Consumer Complaint No	:	172 of 2020
Date of Institution	:	01.07.2020
Date of Decision	:	20.02.2024

 

 

Altruist Technologies Private Limited through its Authorised Representative Sh.Amandeep Singh, Operations Executive having its registered office at Altruist Mount, behind Firhill Hotel, Near Tunnel 103, Shimla, Himachal Pradesh-171004.

 

                                                                           ….Complainant

 

Versus

1.     S.S.A Steel Casting, having its office at V.P.P Panjokra Sahib, Naraingarh Road, Ambala-134003 through its proprietor Sh. Raj Mahendru

2.     Saatvik Green Energy Private Limited, Village Dubli, Tehsil Barara, District Ambala-133101(Haryana).                                                                                                                                                                                                                                                        ….Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019

 

 

Before:              Sh. Satpal, President.

Dr. Sushma Garg, Member.

Dr. Barhm Parkash Yadav, Member

 

 

For the Parties:   Ms. Rishika Arora, Advocate for the complainant.   

                        Sh. Raj Kumar Mahendru, Prop/OP No.1.

                        Sh. Bhupesh Sharma, Advocate for OP No.2.                  

ORDER

(Satpal, President)

1.The brief facts, as alleged, in the present complaint are, that the complainant is running IT Company at Plot No.2, Sector-22, l.T Park, Panchkula(Haryana); providing Software services to various customer, by engaging all types of technical manpower; the company is being run in a huge premises of, approximately, 20000 Sq-ft; the complainant company is a private limited company being run through the Board of Directors. It is stated that the complainant company, being in requirement of Power, Electric/Solar, was allured by the OP No.1, who claimed to have the technology of providing Rooftop Solar PVC System and their installation etc to the satisfaction of the customers in similar kind of requirement/installation. Accordingly, a quotation dated 10.07.2018 was submitted by the OP No.1 in favour of the complainant, who(the complainant) under the bonafide belief, placed a purchase order dated 13.07.2018 with regard to the installation of 24KV Solar Rooftop PVC System Panels(72 Panels) as per the rate mentioned therein. It is stated that the OP No.1 issued the requisite Solar Power Generating System in favour of the complainant vide invoice dated 23.07.2018 and thereafter, the OP No.1 started the process of installation  of the system and on queries raised by the complainant and its representatives  about the firmness  of the fixaters,  it was assured by the OP No.1 that they need  not to worry  and the Solar  Panels would be affixed properly  through nuts and bolts as were  already fixed  and installed  earlier by some other firm over the Rooftop of the complainant Company. The OP No.1 further assured the complainant that in case of any loss or damage on account of installation of the Panels, besides providing all warranties and guarantees with respect to the goods in question, would be the responsibility of the OP No.1. The installation work was, however, carried on by the OP No.1 till September/October 2018. The complainant  was required  to make 25% advance payment as per the terms and conditions agreed  between the parties and in that regard payment of Rs.3,02,400/-(including GST) was released in favour of the OP No.1 by the complainant company through RTGS.  It is stated that a sum of Rs.9,07,200/-(including GST) towards balance 75% was paid by the complainant to OP No.2 and this payment was, however, made directly to the OP No.2, with the advice and consent of OP No.1 so as to get the process of installation expedited.  It is stated that, in April, 2019 on account of weather  conditions, half of the Solar Panels installed by the OP No.1 had got disarranged and several panels were taken away/blown away by the storm winds resulting into disruption of generation of power and its supply to the complainant company, rendering heavy losses as without power, the jobs  undertaken by the complainant company and its employees could neither be carried out nor completed and the purpose for which the Solar Panels were purchased and got installed, was practically defeated. It is stated that after, the Solar Panels having been disarranged and four of them totally damaged, the complainant called  the OP No.1 by lodging  a complaint  and on scrutiny by Sh. Mahendru, the owner of OP No.1, it was found that, in fact, the installation of the Panels done by the OP No.1 was faulty and not of the requisite quality in as much as  instead of using  nuts and bolts, the OP no.1 and its representatives had done the job of fixation of the Panels through clips, which were neither strong enough, nor could be sufficient to hold the Panels reasonably. It is stated that the clips which were used to fix the Solar panels, were not strong enough to hold the panels in an appropriate manner. Therefore, the OP No.1 being wrong on its part in installing the panels in a faulty manner, agreed to refix the same with the help of nuts and bolts and also agreed to replace 4(four) panels, which were completely broken. However, despite being assured by OP No.1, the complainant was shocked and dismayed to witness that the said assurances given by OP No.1 were false and wrong as the OP No.1 did not replace the completely broken panels as it was assured to the complainant. The complainant was made to run from pillar to post to get the four completely broken panels replaced and made several communications with OP No.1 but to no avail. A legal notice was sent to OP No.1 on 01.05.2019 but no response was received from it. Due to the act and conduct of the Ops, the complainant has suffered financial loss and mental agony, physical harassment; hence the present complaint.

2.Upon notice, the OP No.1 appeared through counsel and filed written statement mentioning therein that the complainant had approached the OP No.1 in his office through Sh. Anuj Aggarwal (Director)  about providing  of the Rooftop Solar PV System(On grid). The quotation pertaining to Rooftop Solar PVT System was emailed to complainant on 10.07.2018 and the complainant had placed the purchase order with terms and conditions of payment i.e. 25% Advance and 75% on Performa Invoice. It is submitted that the OP No.1 has no knowledge of PVC Panels in Solar Generation System.  The panels were purchased by the complainant of cheaper version. The complainant had purchased the panels of 325 wattage in place of 330 wattage. Thus, the OP No.1 was forced to arrange the extra structure, which was liable to be charged extra. It is submitted that after receiving the advance payment of 25% from the complainant, the OP No.1 started the work of manufacturing of Galvanized Steel Structure and Accessories and completed this work in 2-3 days. On 20.07.2018, the OP No.1 emailed the performa invoice of Balance payment as per the terms and conditions of the purchase order, then the complainant requested it(the OP No.1) them to start work at site and promised to deposit the balance amount in few days. The OP No.1 dispatched the Solar Power Generating Parts: Galvanized Steel Structure for 24 Kilo Watt Solar Power Generating System on 23.07.2020 amounting to Rs.3,40,200/- It is stated that w.e.f. 24.07.2018, the OP No.1 started  the Erection of Galvanized Steel Structure with required number of 45 RCC Foundation and it completed the work in 11 to 12 working days i.e. upto 7^th August 2018.  It is denied that the complainant was assured that the Solar Penals would be affixed through nuts and bolts. It is stated that 25% advance payment including GST was received from the complainant and on demand of the balance payment i.e. 75% as per purchase, order the complainant had started making negotiations that they would pay only 50% from the balance payment i.e. Rs.4,53,600/- of proforma invoice. It is submitted that the complainant had made the payment of balance amount i.e. 75% in favour of the OP No.2, who is manufacturer of the panels. It is submitted that the said payment was made without the consent and against the terms and condition of the purchase order. It is submitted that the complainant did not take care of any preventive maintenance of the installed Solar Power Plant, as was required from time to time. Due to this reason, the two PV Panels Glass, damaged by high air pressure of Jerks, one PV Panel Connector lead with Mc4 Connector had got broken and One PV Panel had got damaged from the Centre(Total Four PV Panels). The time to time preventive maintenance or Annual Maintenance Contract was not in Contract Scope. It is stated that the complainant was not doing the preventative maintenance of the project and this was the cause behind the damage to Four PV Panels. It is submitted that on receipt of information from the complainant qua the occurrence of damages to the panels, the engineer of OP No.1 along with technical staff had provided the maintenance, required for 24kw Solar Project, as a good gesture.  It is denied that there was any defect in the installation of the Solar Power Project. It is submitted that the clamps used was of international standard. No legal notice was received. Rest of the allegations alleged by the complainant has been denied and it has been prayed that there is no deficiency in service on the part of the OP No.1 and as such, the complaint is liable to be dismissed.

                   Upon notice, the OP No.2 appeared through counsel and filed written statement with preliminary submissions that no cause of action has accrued against the OP No.2. On merits, the averments made by the complainant have been admitted. It is submitted that 75% balance payment was received by it from the complainant with the consent of OP No.1. The averments made qua the damages to the Solar Panels were not in the knowledge of OP No.2 and the same did not pertain to it. It is submitted that the OP No.2 has been arrayed as proforma party and thus, the complaint is liable to be dismissed qua OP No.2.

3.To prove the case, the learned counsel for the complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 to C-10 in evidence and closed the evidence by making a separate statement. On the other hand, Sh. Raj Kumar Mahendru, Prop./OP No.1, in person, has tendered affidavit as Annexure R-1/A along with documents Annexure R-1/1 to R-1/6 in evidence and closed the evidence. The learned counsel for OP No.2 has tendered affidavit as Annexure R-2/A and closed the evidence.

4.We have heard the learned counsel for the complainant, Sh. Raj Kumar Mahendru, Prop./OP No.1 and the learned counsel for the OP No.2 and gone through the record available on file including the written arguments filed by the complainant, OP No.1 as well as OP No.2  and minutely and carefully.

5.During arguments, the learned counsel for the complainant reiterated the averments as made in the complaint as also in the affidavit Annexure C-A and contended that the Rooftop Solar System was installed by the OP No.1 in a faulty and defective manner as the same had failed to withstand the thrust of high velocity of the wind in the month of April, wherein half of the Solar panel had got disarranged and most of the panels were blown away by the wind, resulting in major disruption of power generation and supply. It is further contended that the OP No.1 had used the clips to fix the solar panels, in place of nuts and bolts but the same were not strong enough to hold the panels in an appropriate manner and thus, the complaint is liable to be accepted by granting the relief as claimed for in the present complaint. 

6.On the other hand, the OP No.1 has disputed the status of the complainant as a consumer. On merits, the Proprietor of OP No.1 reiterated the averments as made in its written statement as also in the affidavit (Annexure R-1/A) and contended that there were no defects in the installation of the Rooftop Solar Power System as alleged and thus, the complaint is liable to be dismissed being frivolous, baseless and meritless.

7.The learned counsel on behalf of the OP No.2 contented that the OP No.2 was the manufacturer of the panels as installed by OP No.1 and the entire services have been given by OP No.2 to the complainant with the consent of OP No.1. It is contended that no relief in the present complaint has been claimed against the OP No.2 and thus, the present complaint is liable to be dismissed qua OP No.2.

8.Before going into the merits of the case, we deem it proper to discuss the preliminary objection as taken by the OP No.1 qua the status of the complainant as a consumer.

9.The learned counsel for the complainant argued that the complainant is squarely covered vide definition as given in Section 2(7) of the Consumer Protection Act, 2019 and in this regard, placed reliance upon the law laid down by the Hon’ble Apex Court in Civil Appeal No.5352-5353 of 2007 decided on 13.04.2023 in case titled National Insurance Co. Ltd. Vs. Harsolia Motors and Others(SC).

10.Now, we advert to the definition of consumer, which is given in Section 2(7) of the Consumer Protection Act, 2019, the relevant part of which, is reproduced as under:

1. 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.

11.On the other hand, the authorized representative on behalf of the OP No.1 argued that the purchase as also the installation of the Rooftop Solar Power System in the premises of OP No.1 was for commercial purpose and thus, the complainant does not fall under the category of consumer; hence, the complaint is not maintainable.

12.As per definition of consumer, a person who buys goods for consideration is excluded from the category of a consumer in the following eventualities:-

1.  When such person re-sales the goods as purchased by him for consideration.
2.  When such person buys goods for commercial purposes.

 

13.The question as to whether an activity or a transaction is for a commercial purpose has been discussed at length in various cases by the Hon’ble Apex Court as well as the Hon’ble National Consumer Commission. The Hon’ble National Commission in consumer complaint no.137/2020 decided on 31.01.2020 in case titled as M/s Bird Machines Pvt. Ltd. Vs. Indusland Bank Limited vide Para No.4 & 5 discussed the issue as under:-

4.The issue involved in this complaint came to be considered by this Commission in West Fort Hi-Tech Hospital Limited Vs. Punjab National Bank decided on  07.01.2020 in FA No.1264 of 2018 and the following view was taken:-

“The term ‘Consumer’ used in Section2(1)(d) of the Consumer Protection Act came up for consideration of this Commission in Revision  Petition No.2833 of 2018 decided on 06.01.2020 and after considering several decisions  on the issue, including  Synco Textiles Pvt.Ltd. Vs. Greaves Cotton & Company Ltd.(1991) 1 CPJ 499(NC), Cheema Engineering Services Vs. Rajan Singh(1997) 1 SCC 131, Madan Kumar Singh(Dead) through L.R.Vs. District Magistrate, Sultanpur & Ors.(2009) 9 SCC 79 and Paramount Digital Colour Lab & Ors. Vs. Agfa India Private Limited & Ors. (2018) 14 SCC 81, the larger Bench inter-alia held as under:-

1. Only a person  engaged in large scale commercial activities for the purpose of making profit is not a consumer;
2. There should be a direct nexus between the large scale commercial activities in which a person is engaged and the goods purchased or the services hired or availed by him, before he can be excluded from the purview of the term ‘consumer’. Therefore any goods  purchased or the services  hired or availed even by a person carrying on business activities  on a large scale  for the purpose of making profit  will not take him out of the definition of the term ‘consumer’, if the transaction of purchases of goods or hiring  or availing  of services is not intended to generate profit through the large scale commercial activity undertaken by him and dos not contribute to or form an essential part of his large scale commercial activities.

(c )     What is crucial for the purpose of determining  whether a person is a                       ‘consumer’ or not is the purpose for which the goods were purchased or               the services were hired or availed and not the scale of his commercial                          activities.

5.It would thus be seen that a person engaged in large scale commercial                  activities intended to make profit, is not a consumer and what is crucial                for the purpose of deciding whether a person is a consumer or not is the            purpose of which the goods are purchased or the services are hired or                    availed, as the case may be.

14.Now, recently, the Hon’ble National Commission in consumer case no.886 of 2020 titled as M/s Freight System(India) Private Limited Vs. Omkar Realtors & Developers Private Limited & Anr. decided on 25.01.2021 in para no.11 of the said order, has placed reliance on the law laid down by the Hon’ble Supreme Court in the case titled as Lilawati Kirtilal Mehta Medical Trust in Civil Appeal No.12322 of 2016 decided on 14.11.2019, wherein the Hon’ble Apes Court has held that:-

          7.To summarize from the above discussion, though a straight-jacket     formula cannot be adopted in every case, the following broad principles can be culled out for determining whether an activity or transaction is ‘for a         commercial purpose’:

i.        The question of whether a transaction is for a commercial purpose would        depend upon the facts and circumstances of each case. However,          ordinarily, ‘commercial purpose’ is understood to include manufacturing/        industrial activity or business-to-business transactions between   commercial    entities.

ii.       The purchase of the good or service should have a close and direct nexus with a        profit-generating activity.

iii.       The identity of the person making the purchase or the value of the transaction          is not conclusive to the question of whether it is for a commercial purpose. It      has to be seen whether the dominant intention or dominant purpose for the          transaction was to facilitate some kind of profit generation for the purchaser      and/or their beneficiary.

iv.      If it is found that the dominant purpose behind purchasing the good or service was for the personal use and consumption of the purchaser and/or their     beneficiary, or is otherwise not linked to any commercial activity, the question           of whether such a purchase was for the purpose of ‘generating livelihood by           means of self-employment’ need not be looked into.

 

15.From above, it is found that the Hon’ble Apex Court has laid down the twin test of “close & direct Nexus with profit generating activity” and “dominant purpose” behind purchasing of goods or services to determine and ascertain the status of a person, who has purchased the goods for consideration.

16.Admittedly, the complainant, having its registered office in Shimla(H.P), as per the averments made in the complaint, is  running an IT Company  at Plot No.2, Sector-22, IT, Park Panchkula (Haryana) providing  Software services to various  customer, by engaging all types of technical manpower and the company is being run in a huge premises of, approximately, 20000 Sq-ft Area. It is further averred that the complainant company is a private limited company being run through the Board of Directors.

17.As per averments made in para no.4 of the complaint, the damages to the Solar Panels had resulted into disruption of generation of power and its supply to the complainant company, thereby causing heavy losses as without electric power, the jobs undertaken by the complainant company and its employees were not feasible to be carried out or completed.  

18.From the above stated factual position, it is abundantly clear that the complainant company had got installed the Rooftop Solar Power System in its premises through OP No.1 so as to ensure the uninterrupted supply of electric energy, to its technical manpower, who were engaged in providing the software services to various customers; as such, the purchase of the Rooftop Solar Power System as also the installation thereof  has a close and direct nexus with profit generating activity; hence, the same was for commercial purpose. Now, it is necessary to look into the “Explanation” as given at serial (a) appended with Section 7 of the Consumer Protection Act, which reads as under:-

(a)     The expression “commercial purpose” does not include use by a person       of goods bought and used by him exclusively for the purpose of earning          his livelihood, by means of self-employment.  

19.However, there is not even whisper of an averments made in the entire complaint as also in the affidavit(Annexure C-A) that the complainant company was constituted/formed by its Directors for earning their livelihood. No information qua the total number of Directors and their relationship with each other has been placed on record.  

20.As per factual discussion made above, the case law(supra) i.e. Civil Appeal No.5352-5353 of 2007 decided on 13.04.2023 in case titled National Insurance Co. Ltd. Vs. Harsolia Motors and Others(SC) as relied upon by the learned counsel for the complainant is of no help to the case of the complainant. Keeping in view the factual discussion as well as legal position discussed above as settled by the Hon’ble National Consumer Commission as well as the Hon’ble Apex Court, we have come to the conclusion that the complainant does not fall under the category of consumer as defined under Section 2(1)(d) of the Consumer Protection Act, 1986/Section 2(7) of the Consumer Protection Act, 2019;as such, we have no option except to dismiss the complaint being not maintainable. However, in the interest of justice, we deem it appropriate to grant the liberty to the complainants to file a fresh complaint on the same cause of action in the appropriate Tribunal/ Authority/Court as per law if so advised. The complainants shall be at liberty to file an application before the concerned Court/Authority/ Tribunal under Section 14 of the limitation Act for excluding the period spent before this Commission for the purposes of computation of limitation in terms and observations made by the Hon’ble Apex Court in the case of “Luxmi Engineering Works Vs. PSG Industrial Institute 1995(III) SCC P.583”. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on:20.02.2024

 

 

Dr.Barhm Parkash Yadav      Dr.Sushma Garg             Satpal               

                Member                          Member                        President

 

Note: Each and every page of this order has been duly signed by me.

 

                                                 Satpal                               

                                                President
       

 

 

               

C.C. No.172 of 2020

 

Present:             Ms. Rishika Arora, Advocate for the complainant.   

                        Sh. Raj Kumar Mahendru, Proprietor/OP No.1.

                        Sh. Bhupesh Sharma, Advocate for OP No.2.

                         

 

 

                       Arguments heard. Now, to come upon 20.02.2024 for orders.

Dated: 08.02.2024

 

 

 

Dr.Barhm Parkash Yadav      Dr.Sushma Garg             Satpal

                Member                                Member                    President

 

 

 

Present:             Ms. Rishika Arora, Advocate for the complainant.   

                        Sh. Raj Kumar Mahendru, Proprietor/OP No.1.

                        Sh. Bhupesh Sharma, Advocate for OP No.2.

 

 

 

                                Vide a separate order of even date, the present complaint is hereby dismissed with no order as to costs.

         A copy of the order be sent to the parties free of costs and the file be consigned to the record room after due compliance.

Dt.20.02.2024

 

 

 

      Dr.Barhm Parkash Yadav                Dr.Sushma Garg           Satpal

              Member                        Member                    President