KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACADU THIRUVANANTHAPURAM OP:NO:47/2001 JUDGMENT DATED: 13..11..2009 PRESENT SRI.M.V. VISWANATHAN : JUDICIAL MEMBER SHRI.S. CHANDRAMOHAN NAIR : MEMBER M/s Metarock (Pvt)Ltd., A company Regd. Under the Companies Act Having its Regd office at Lalas Thattamala, : COMPLAINANT Kollam, Repd. by its Managing Director, Venodlal, S/o Narayanan, Lalas Thattamala, Kollam. (By Adv: Sri.K.L.Narasimhan) Vs. 1.Sayaji Iron & Engineering Co. Ltd., Having its regd office at- Chharu Road, Baroda-390 002. : OPPOSITE PARTIES 2.Sayaji Iron & Engineering Co. Ltd., Having its Branch at Manikath Court, Diwans Road, Ernakulam, Kochi-16, Repd by its Branch Manager. (By Adv: Sri.P.B.Asokan) JUDGMENT SHRI.M.V. VISWANATHAN: JUDICIAL MEMBER Complaint filed under Sec.17 of the Consumer Protection Act, 1986 claiming compensation of Rs.20.lakhs on the ground of deficiency of service and unfair trade practice on the part of the opposite parties in effecting sale and service of the machineries purchased by the complainant from the opposite parties. The facts of the case are as follows:- Complainant is a private limited Company having its office at Thattamala, Kollam. The complainant company installed a metal crusher unit manufactured by the opposite party. The machineries namely Jaw crusher, Vibrating screen and Ref. feeder are supplied and erected by the opposite party based on the orders placed by the complainant. Opposite party supplied the general lay out of the machineries and drawings which were prepared by the opposite party at its registered office in Baroda. The order for the machineries was placed on 19..11..1998. Advance payment of Rs.11,70,785/- was made by 2 cheques. The 2nd opposite party, the branch of the 1st opposite party recommended purchase of motor for running the unit. Ever since the crusher was installed and put to operation, there was mal functioning/trouble in its working. The machinery did not give the required/expected/assured performance. The mal functioning of the machinery Jaw Crusher was informed by the letters dated:1..10..1999 and 9..10..1999. There was delay on the part of the opposite party to attend to the complaint. Even on 18..12..1999 the opposite party issued letter expressing their excuses for not attending the complaint. The secondary Jaw of the crusher developed crack and the unit had to be shut down from 17..12..1999. The representative of the opposite party visited the site on 22..12..1999 and rectification was made by welding with 40mm thick MS plate stiffness after cutting and removing the broken portion of the secondary Jaw crusher. The rectification work was not effective. The complainant recorded non satisfaction of the rectification work and demanded replacement of the broken crushers. On 10..12..1999 the opposite party by letter informed the complainant to keep spares in respect of 36” x 8” Jaw Crusher and 30” x 15” Jaw crusher. The complainant had also purchased from the opposite party 16” x 9” Jaw crusher with granulating Jaw plates as per the bill dated:10..12..1999. The complainant by letters dated:2..1..2000 and 4..1..2000 requested for replacement of the crusher because of the vibration at the welding site of the broken Jaw crushers. In spite of the repeated request to attend to the defect, there was no effective response from the opposite party even though there was inspection by the officers of the opposite party. The opposite party by its reply dated:11..1..2000 stated that the crack developed in the crusher was due to various issues related to maintenance. The aforesaid stand taken by the opposite party was denied by the complainant by letter dated:27..1..2000. The opposite party was insisting payment of Rs.1.25.lakhs to replace the cracked crusher body. The aforesaid payment was made against the sale conditions and warranty. The opposite party by its letter dated:22..4..2000 despatched two numbers of body of Jaw crusher 36” x 8” with invoice No:052 stating clearly that the said dispatch of “free of replacement”. Even after the replacement of the broken crushers, the performance of the crusher was not satisfactory. The unit could not be loaded to the optimum due to the breakage of oil pump. The crusher body which was replaced developed breakage and that fact was informed by letter dated:10..10..2000. The development of crack in the body of the crusher 36” x 8” is solely on account of the defect in the manufacturing. It amounted to deficiency of service and unfair trade practice. The opposite party has not respected the guarantee provided against the supply. The opposite party being the manufacturer was bound to rectify the damage to the goods supplied/replaced. The complainant had brought to the notice of the opposite party the defect then and there and finally by notice dated:7..11..2000. The crusher body of the crusher 36” x 8” is defective. It developed cracks. The cracks were widening of operating the unit. This has reduced the turn out. The efficiency of the unit has been substantially low. The development of crack is solely due to the manufacturing defect. There was deficiency of service and unfair trade practice on the part of the opposite parties. The complainant is a consumer and the crusher unit was purchased for the production and sale of different sizes of metals. The crusher units were monitored closely during the period from 17..12..1999 to March 2000 and there after from 10..10..2000 to January 2001. The short fall in production was 57488 metric tones including the running expenses, the loss works out to Rs.71,81,953/-. During the period the interest payable to KFC is Rs.10,37,180/-. The total loss works out to Rs.82,19,133/-. The loss suffered for the period from 10..10..2000 to January 2001 would come to Rs.68,52,912/-. The complainant has been put to loss of Rs.1,50,72,045/- due to the defective machine equipment supplied by the opposite party. Even now the performance of the equipment/crusher is far from satisfactory. The complainant has suffered loss of Rs.94,472/- per day. However, the complainant is restricting his claim to Rs.20.lakhs. The cause of action for the complaint has arisen from 19..11..1998, the date on which the order was placed; from 11..10..1999 the date of commissioning of the crusher unit 36” x 8”; from 22..12..1999 the date of attending to the complaint from 28..12..1999 the date of carrying out the rectification; from 28..4..2000 the date of supply of crusher body free replacement and subsequently and continuously at Aruvikkara Village within the jurisdiction of this Hon’ble Commission. Thus, the complainant prayed for getting replacement of the defective body of the crusher 36” x 8” free of cost with compensation of Rs.20,00,000/-(Twenty lakhs) with future interest at the rate of 24% per annum and cost of the proceedings. The opposite parties filed joint written version contending as follows:- The complaint is not maintainable either in law or on facts. The complainant is not a consumer under the provisions of the Consumer Protection Act, 1986. The complainant is a private limited Company engaged in various other businesses. The Managing Director of the Company, who represented the complainant in this proceedings, is a registered contractor with Kerala Water Authority, who has executed many major works including the Aruvikkara-Trivandrum pipe line project with maintenance contract to his credit. The subject matter of crushing unit is a very large commercial establishment and the machineries purchased by the complainant from the opposite parties are being used for commercial purpose. Complainant is running the establishment by engaging paid employees. The income derived from the subject matter is not the sole source of livelihood for the complainant. Hence the complainant is not a consumer as defined under Sec.2(1)(d) of the Consumer Protection Act, 1986. The relief sought for in the complaint is outside the pecuniary jurisdiction of this Hon’ble Commission. The complaint is not maintainable on merit also. The complainant suppressed material facts and approached this Hon’ble Commission with unclean hands. The complainant is liable to pay Rs.3.lakhs being the balance price of 16” x 9” crusher ordered by the complainant. The aforesaid order for 16 x 9 crusher was ordered after the alleged defects in the earlier crusher purchased by the complainant from the opposite parties. The opposite parties have initiated proceedings against the complainant for non payment of the balance amount of Rs.3.lakhs due to the opposite parties. The present complaint is filed as a counter blast of the said litigation. The complainant has suppressed the said facts. The allegation that the machineries were supplied and erected by the opposite parties is not correct. The order itself is for the supply of bare equipments. The conditions and additional conditions of sale are attached with the offer made by the opposite party vide letter dated:27..1..1997. As per the condition of sale the guaranty is only for one year from the date of despatch. All the complaints, disputes or suits arising out of this contract shall be instituted in a Court of competent jurisdiction in Baroda and not in any other Court. It is based on the said offer the complainant placed the order on 19..11..1998 for supply of the machineries. The machineries and spares were despatched from Baroda on 10..2..1999, as per the order placed by the complainant. The allegation that the machineries were erected by the opposite parties is totally false. In fact the machineries were erected by one Mr.N.Chandra Mohan, Nediyavila Veedu, Kochalammodu, Cherhannoor, Kollam. The drawings supplied by the opposite parties were only for general reference for preparing the foundation. All erections and other fitments, electrical and civil works were done by Mr.Chandra Mohan and M/s Acqualite Engineering Company, Kollam. The payments towards the erection charges were paid by M/s KFC Ltd direct to the said Mr.Chandra Mohan. The recommendation for the motor by the opposite parties was only for the machineries/equipments supplied. The payment to this opposite party was made through KFC. There is no relevance for the letter dated:23..2..1999. The allegation that ever since the crusher was installed and put on operation; there was mal functioning/trouble in the working is totally false. The further allegation that the machinery was not giving/expected/assured performance is misleading and false. Trial run were taken from 5..7..1999 to 22..7..1999 in the presence of Mr.Asokan, the Manager of the complainant and he had acknowledged satisfactory functioning of the machinery. It was noted that the complainant had tampered the vibrating screen and also the feeding for the screen was improper. Necessary guidance was given, which the complainant did not bother. Regarding letter dated:1..10..1999 the complaint was regarding improper seeing in the screen and was not connected with any crushing problem. During the trial run, the opposite party asked the complainant to effect proper arrangements for the feeding chutes and to position them properly which the complainant had not bothered to do so. The complaint in the letter dated:17..12.1999 was attended by the service mechanic who reported on 22..12..1999. Even at the reporting time the crushes were working and necessary rectification was done. The mechanic of the opposite party had to be there up to 6..1..2000. Proper maintenance was lacking and spurious parts were employed. The opposite party had recommended to use the essential spares. The complainant was also advised to increase efficiency of the plant. One more vibrating screen is necessary as per our service dated:10..11..1999; but the complainant was not bothered to do the necessary improvement. As per the service report dated:28..12..1999 and 6..1..2000 the customer had acknowledged satisfactory working. The letter dated:29..12..1999 was unwarranted and contradictory to the satisfactory report. The allegations that there was delay on the part of the opposite parties in attending the complaints are false and hence denied. There was no occasion for the opposite party to seek excuse as alleged in paragraph 7 of the complaint. With respect to the letter dated:1..10..99 and 9..10..1999 regarding screen seeing problem mechanic had attended on 19..10..1999 as recorded in the service dated:27..10..1999 and the complainant had acknowledged satisfaction on 27..10..1999. The satisfaction was expressed by Mr.Rajendran who is in charge who happened to be the brother in law of the Managing Director. The allegation that due to the development of crack the unit had to be shut down from 17..12..99 is false and misleading. The crack was on the Jaw crusher body and not on the Jaw as alleged. The said damage occurred solely due to the defects in the Civil foundation feeding arrangements and improper installation of conveyers motors and poor maintenance. There was a crack in the foundation bolt. Those arrangements as well as the alignment of the entire crusher were done by the complainant. Even after repeated reminders, request and advise, the complainant was not prepared to follow the required maintenance and alignments. It was noticed by the opposite parties that the complainant was using spurious spare parts against the repeated advice of the service personnel of the opposite parties. The complainant never purchased even the critical spares which required routine replacements. The complainant was using spurious spare parts purchased from local suppliers, against warranty conditions. The opposite parties issued a list of spares on 10..12..1999 to be kept by the complainant. The crack developed on the Jaw crusher body on 17..12..1999 was attended by the opposite party on 22..12..1999. The service sheet dated:28..12..1999 acknowledged by the complainant will prove the satisfactory functioning of the machine from 27..12..1999. The defects were cured and production resumed on 27..12..1999. The complainant was convinced that the breakage was due to the mismanagement of the employees of the complainant. The opposite parties observed the working of the crushers till 6..1..2000 and the complainant recorded satisfactory performance of the crushers. The service report dated:28.12..99 and 6..1..2000 will prove these facts. The complainant requested for replacement of the Jaw crusher body and the opposite parties quoted an amount of Rs.1.25 lakhs as the price of the Jaw crusher body. On 11..1..2000 the opposite parties requested the complainant to send back the machine to the company at Baroda as required under the warranty conditions. Breakage occurred was due to the problems related to maintenance and improper installation. The complainant later turned down the above offer by letter dated:27..1..2000. The machineries supplied by the opposite parties were not defective. The complaints raised on 2..1..2000 and 4..1..2000 had not been raised while giving satisfactory statements on 6..1..2000. It is also to be noted that the mechanic of the opposite party was available at the site of the complainant on 3..1..2000. The aforesaid mechanic of the opposite party was available from 22..12..1999 to 6..1..2000. The allegation that the opposite party was insisting for payment of Rs.1.25.lakhs to replace the crusher body is misleading. The aforesaid offer to supply the Jaw crusher body was on the basis of the acceptance of the complainant to pay Rs.1.25.lakhs being the price of the same. The complainant thereafter insisted for free replacement of the crusher body and that the opposite party as a gesture of cordial business relationship agreed to effect the supply of Jaw crusher body free of cost. The replacement of the Jaw crusher body was carried out from 10..5..2000 to 17..5..2000 under the supervision of the service personnel of this opposite party. The complainant’s General Manager Sri.Rajendran acknowledged satisfactory performance on the supply of Jaw crusher body free of cost. The allegation that the performance of the crusher was not satisfactory is totally false and the said allegations are contrary to the service reports acknowledged by the complainant. The service report would show that the plant was working all the time. Any interruption if any was due to the absence of routine maintenance and using of spurious spares. The allegation regarding breakage of the oil pump, it is submitted that the oil pump is an accessory which requires frequent servicing and the complainant was not keeping inventory of essential spares against the numerous recommendations and advise of the opposite party. The allegations and complaints were made to avoid payment of the balance price of 16 x 9 Jaw crusher which was purchased by the complainant from the opposite parties. All the complaints were technically and systematically attended by the opposite parties to the earliest satisfaction of the complainant. There was no deficiency of service or unfair trade practice on the part of the opposite parties. There was no manufacturing defect in the machinery supplied by the opposite parties to the complainant. The opposite party has accepted the guarantee condition and the contrary allegation is false. The complainant has made exaggerated claim; opposite party has not done anything to cause loss to the complainant. The complainant has not suffered any loss as alleged. The opposite parties are not liable to pay any compensation to the complainant. The complainant is not entitled to any of the reliefs sought for in the complaint. The complaint is liable to be dismissed with cost of the opposite parties. The points that arise for consideration are:- 1. Whether the complainant is a consumer as defined under Sec.2(1)(d) of the Consumer Protection Act, 1986? 2. Whether the complaint in OP:47/01 is maintainable? 3. Whether there was any deficiency of service or unfair trade practice on the part of the opposite parties in effecting supply and erection and after sale service of the machineries which were supplied vide the order form placed on 19..11..1998? 4. What order as to reliefs and costs? The evidence in this case consists of the oral testimony of PW1 and Exts.A1 to A25 and also the oral testimony of DW1 and B1 to B5 documents. Point Nos:1 and 2:- The fact that the complainant purchased machineries from the opposite parties vide order placed by the complainant on 19..11..1998 is admitted. There is no dispute regarding the price of machineries covered by A1 order placed by the complainant on 19..11..1998. It is admitted by the opposite parties that as per A1 order placed by the complainant the aforesaid machineries were supplied by the opposite parties. Admittedly complainant is a private limited company by name M/s Metarock Pvt. Ltd. The complainant company is represented by its Managing Director Venodlal. The fact that he is the Managing Director of the complainant company is admitted by the opposite parties in their written version. In paragraph 9 of the written version it is stated that Mr.Rajendran, the Manager of the complainant company was present at the site and that he acknowledged satisfactory performance of the crusher on 27..10..99. It is also admitted that the aforesaid Rajendran is the brother in law of the Managing Director. The Managing Director of the complainant has been examined before this commission as PW1. The cross-examination of PW1 would also show that the managing director has been doing some other business such as contract works under Kerala Water Authority. In the written version itself in paragraph 3 it is specifically stated that the managing director of the complainant company is a registered contractor with Kerala Water Authority. It is based on the aforesaid pleadings PW1 was cross-examined by the learned counsel for the opposite parties. So, the present complaint filed by the complainant company through its managing director can be treated as maintainable. It is further to be noted that the managing director of a private limited company is very much competent to represent the complainant company. PW1 has also produced Ext.A18 resolution passed by the complainant company authorizing the managing director of the aid company to prosecute the present complaint in OP:47/01. There is no contra evidence forthcoming from the side of the opposite parties to doubt the competency of PW1 to represent the complainant company. So, the complaint as filed through its Managing Director can be held as maintainable. The opposite party has got a case that the complaint is not maintainable before this State Commission as this Commission has no pecuniary jurisdiction to entertain the complaint in OP:47/01. It is to be noted that the complainant has only sought for compensation of Rs.20.lakhs and also to get the defective part of the crusher replaced free of cost. It is true that the complainant has also sought for future interest at the rate of 24% per annum on the aforesaid compensation amount of Rs.20.lakhs. The mere fact that the complainant has claimed future interest on the compensation amount claimed in the complaint may not be taken as a ground to hold that this commission has no pecuniary jurisdiction to entertain the complaint in OP:47/01. At the time of institution of the complaint in OP:47/01, this commission had the pecuniary jurisdiction to entertain the complaint with respect to the claim up to and inclusive of 20.lakhs. It is to be noted that the aforesaid pecuniary jurisdiction has been enhanced up to 1.crore by the amendment of 2003 with effect from 15..3..2003. At any rate, at the time of institution of the complaint in OP:47/01, this commission had the jurisdiction to entertain the complaint therein for compensation of Rs.20.lakhs. Hence, we hold that this commission is having the pecuniary jurisdiction to entertain the complaint in OP:47/01. The opposite parties would contend that the complainant is not a consumer as defined under Sec.2(1)(d) of the Consumer Protection Act, 1986. It is contended that the complainant purchased the machineries for commercial purpose and so he is not a consumer as defined under sec.2(1)(d) of the Consumer Protection Act, 1986. It is also contended that the complainant is not entitled to get the benefit under the explanation of Sec.2(1)(d) of the Consumer Protection Act, 1986. It is the case of the opposite parties that the complainant has not purchased machineries exclusively for the purpose of earning his livelihood by means of self-employment. The managing director of the complainant has been examined as PW1. He admitted the fact that he has been doing contract works under Kerala Water Authority and that the complainant company has engaged 40 employees for running crusher unit and it has also employed manager and other engineers for running the crusher unit. It is also admitted by PW1 that there are other 7 directors for the said company. PW1 has no case that all the Directors are depending for their livelihood on this crusher unit. There is also nothing on record to show that the complainant company is being run as a small scale industrial unit. The complainant has not produced any certificate or registration issued by the concerned authority registering the crusher unit of the complainant company as a small scale industrial unit. Thus, in all respects it can be treated that the complainant company is not running the crusher unit exclusively for the purpose of earning livelihood by means of self-employment. It is a settled position that employment means an employment being run by the person or persons for their livelihood. It is established in this case that PW1 is not a qualified person to run the machineries attached to the crusher unit and that the said unit is being run by engaging skilled persons. Evidence of PW1 would make it abundantly clear that the said crusher unit is being run by employing skilled persons. So, the said crusher unit cannot be treated as the one run by the managing director of the complainant company or by the directors of the said company. The fact that 40 employees are engaged by the complainant as paid employees would make it clear that it is not a unit run exclusively for the purpose of earning livelihood for the directors of the complainant company by means of self-employment. It can very safely be concluded that the complainant company is not entitled to get the benefit of the explanation to Sec.2(1)(d) of the Consumer Protection Act, 1986. The case of the complainant company that the crusher unit is being run exclusively for the purpose of earning livelihood by means of self-employment cannot be accepted. The complainant company purchased machineries from the opposite party company namely Sayaji Iron and Engineering Company. The machineries were supplied by the opposite party company based on A1 order placed by the complainant company. The aforesaid machineries were sold/supplied on the basis of the conditions of sale which is marked as Ext.B1. Condition No:10 of the B1 condition of sale deals with guarantee. It is as follows:- “Guarantee - Provided that the terms and conditions herein before stated or otherwise specifically agreed upon in writing are duly and punctually complied with, we guarantee the machinery in respect of satisfactory design, materials and workmanship, for a period of 12 months from the date of last major despatch. In pursuance of this guarantee we undertook to remedy with reasonable despatch or replace free of charge ex-works, any part or parts which during that period may prove to be defective on account of design, material or workmanship. This guarantee shall not apply to fast wear and tear, damage due negligence, or improper handling or erection be purchase or alterations carried out by purchaser without our knowledge or damage due to any reason beyond our control.” The aforesaid guarantee clause contained in B1 conditions of sale would make it clear that the machineries supplied will be having a guarantee for a period of 12 months from the date of last major despatch. According to the complainant company the machineries were commissioned on 11..10..1999. But nowhere in the complaint it is stated the period from which the guarantee or warranty commenced. As per B1 conditions of sale the guarantee for the machineries supplied was for 12 months from the date of last major despatch. But in the complaint it is not stated the date of the last major despatch. The opposite parties have also omitted to mention the date of the last major despatch of the machineries. It is admitted by both parties that the machineries were supplied on the strength of A1 order placed by the complainant on 19..11..1998. B4 series of service work sheet would give an indication that the sale of the machinery was effected on 23..6..1999 and the machineries were installed during the period from 5..7..1999 to 22..7..1999. B4 series of documents would give an indication that the sale was effected in June 1999. There is no ground to doubt the correctness of the entries in B4 series of documents. It is to be noted that the aforesaid service work sheets were also signed by Manager and authorized representative of the complainant company. PW1 has also admitted the endorsements made by the manager and authorized representative of the complainant in those service worksheets. B4 series would also negative the case of the complainant in paragraph 17 of the complaint that the crusher 36” x 8” was commissioned on 11..10..1999. B4 series of documents would show that the commissioning was over by 22..7..1999. The machineries covered by A1 Order Form were having the guarantee for one year (12 months) from June 1999 onwards. So, the guarantee period expired by June 2000. Ext.A7 copy of the service work sheet dated:28..12..1999 would show that lower body block of the jaw crusher36” x 8” developed a crack and it was brought to the notice of the opposite parties and the service personnel of the opposite party attended the said complaint from 22..12..1999 to 28..12..1999 and the said crack was developed on the body of the 36” x 8” Jaw crusher and the said crack was rectified by welding with 40mm thick plate. A8 is the complaint dated:22..12..1999 issued by the complainant company to the opposite party expressing their non satisfaction with respect to the rectification work done by personnel of the opposite party company. As per A8 letter it has been brought to the notice of the opposite party that there was vibration at the welding joint. Ext.A7 service worksheet would also make it clear that on 29..12..1999 the service personnel could notice vibration on the welding joint. As per A9(a) and A10 to A16 letters the complainant was requesting for replacement of the body of the broken Jaw crusher 36” x 8”. The fact that during the guarantee period itself the machinery namely Jaw crusher 36” x 8” developed crack on its body is admitted by the opposite parties. It is also an admitted fact that the broken body of the Jaw crusher 36” x 8” was replaced by new crusher body two in numbers and those body parts were replaced by the mechanic and other personnel of the opposite parties. The case of the complainant company is that the aforesaid crack developed due to manufacturing defect and that the opposite parties failed to rectify the said defect. Thereby the complainant alleged deficiency of service and unfair trade practice on the part of the opposite parties in supplying defective Jaw crusher 36” x 8”. It is a well settled position that even if the goods are purchased for commercial purpose, which have become defective during the warranty period, then the complaint filed before the Consumer Forum is maintainable because warranty agreement is “service agreement”. In the present case on hand the complainant company purchased the machineries with guarantee for 12 months and the said machinery namely Jaw crusher 36” x 8” developed a crack on its body during guarantee period. If that be so, the defect developed by the said machinery during the warranty period would make the complainant company the consumer, even though the machinery was purchased for commercial purpose because of the fact that the warranty service is also a service as referred to under Sec.2(1)(d)(ii) of the Consumer Protection Act, 1986. It is also to be borne in mind that before the commencement of the amended Act 62/02 which came into effect on 15..3..2003 service availed for commercial purpose was also brought under the purview of the Consumer Protection Act, 1986. So, the aforesaid warranty service availed by the complainant company for commercial purpose would come within the purview of the Consumer Protection Act, 1986. Thus, the complainant company can be treated as a consumer as defined under Sec.2(1)(d) of the Consumer Protection Act, 1986. It has also been held by the Hon’ble Supreme Court in KPTC and Another Vs. Ashok Iron Works Private Limited reported (2009) 3 SCC 240 that the person as defined under Sec.2(1)(m) of the Consumer Protection Act, 1986 would take in body corporate as well as body incorporate. The Hon’ble Supreme Court has also brought into picture Sec.II (42) of the General Clause Act, 1857 and thereby it has been held that the person shall include any company or association or body of individuals, whether incorporated or not. The aforesaid reported decision (supra) would make it clear that a company registered under the Indian Companies Act can also be treated as a consumer as defined under Sec.2(1)(d) of the Consumer Protection Act, 1986. Thus, the complainant company can be treated as a consumer as defined under Sec.2(1)(d) of the Consumer Protection Act, 1986. Therefore the complaint in OP:47/01 is held as maintainable and the dispute involved herein would come within the ambit of the Consumer dispute. These points are answered accordingly. Point No:3:- The case of the complainant is that the 36” x 8” crusher supplied by the opposite party/Sayaji Iron and Engineering Company Ltd was having manufacturing defect and that due to the said manufacturing defect the body of the said Jaw crusher developed crack and the cracked body of the crusher (2 in numbers) were replaced free of charge by the opposite party and that the said body of the crusher again developed cracks and that the opposite party failed to replace the same. The definite case of the complainant is that the machineries supplied by the opposite party other than the 36” x 8” Jaw crusher were having no defects and those machineries are working efficiently and effectively. The only dispute or complaint is with respect to the Jaw crusher 36” x 8”. It is also to be noted that only the body of the Jaw crusher developed cracks. It is the specific case of the complainant that the said cracks developed on the body of the crusher because of manufacturing defect. The opposite parties denied the alleged manufacturing defect in the 36” x 8” Jaw crusher. It is contended that the crack occurred due to issues connected with maintenance and improper installation. The opposite party has also contended that there was no patent or latent defect to the machines supplied by the opposite party; that every possible care is taken at every stage of manufacturing, right from the point of procurement. It is also contented that the complainant was in the habit of using local spare parts without purchasing the spare parts manufactured by the opposite party, that the complainant was using spurious spare parts against the warranty conditions. Thus, in effect the opposite parties totally denied the case of manufacturing defect put forward by the complainant. The complainant as PW1 categorically admitted that the complainant place orders for supply of bare machineries and that the erection, electrical and civil works were done by the complainant by appointing other agencies. At page 10 of the testimony of PW1 it is admitted by PW1 that the erection, electrical and civil works with respect to the machineries supplied by the opposite party were done by the complainant. To a greater extent PW1 has also admitted that the statement in the complaint and the proof affidavit that supply and erection were done by the opposite party is not a correct statement. The explanation given by PW1 is that the aforesaid erection and installation of the machineries and the related civil works were done by other agencies under the direction of the opposite party. It is true that at the time of the aforesaid erection and installation of the machineries the technical staff of the opposite party were present. But it is admitted by the PW1 that the mechanical work in connection with the erection and installation of the machineries was done by the agency Melco Engineering and the owner of the said Melco Engineering Mr.Chandra Mohanan is a mechanical Engineer and that payment was also made by the complainant through KFC. PW1 is also admitted that electrical works were done by a concern by name Acqualite Engineering Company at Quilon. It is also admitted by PW1 that the Civil work regarding construction of foundation etc were also done at the expense of the complainant. It can also be seen from the evidence of PW1 that those electrical, civil and mechanical works were carried out through other agencies and at the time of the aforesaid works the technical staff of the opposite parties were present. Ext.A20(B1) conditions of sale and A1 order form would also make it clear that the opposite party had only effected sale and supply of bare machineries covered by A1 order form placed by the complainant with the opposite party Sayaji Iron and Engineering Company Ltd. Thus it is come out in evidence that the case of the complainant that supply and erection of the machineries for the crusher unit were effected by the opposite party is not correct; but the opposite party has only supplied the bare machineries covered by A1 order placed by the complainant. It is also established in this case that the only complaint is with respect to the Jaw crusher 36” x 8” and that the complainant has no complaint about the other machineries included in A1 order which was placed by the complainant for supply of machineries. The complainant has got a case that the there occurred considerable delay in effecting necessary after sale service and that the opposite party caused much delay in attending the complaint with respect to the cracks developed on the body of the 36” x 8” Jaw crusher and due to the aforesaid delay the complainant suffered financial loss. According to the complainant he has been suffering a loss of Rs.94,472/- per day. Ext.A6 is the telegram confirmation dated:18..12..1999 issued by the opposite party/Sayaji Iron and Engineering Company Ltd to the M/s Metarock Private Limited. As per A6 telegram confirmation the opposite party informed the complainant that the service people of the opposite party will be reaching from Baroda at the site of the complainant on 21..12..1999 to attend the problem. Ext.A7 is the service worksheet dated:28..12..1999. The entries in A7 service worksheet would make it clear that the service people of the opposite party company attended the problem with respect to the Jaw crusher 36” x 8” from 22..12..1999 to 28..12..1999. It is to be noted that A7 service worksheet dated:28..12..1999 was signed by Rajendran, the manager of the complainant. PW1 in his testimony has admitted that the aforesaid Rajendran is none other than the General Manager of the complainant company. A7 service worksheet would show that crack was found on the lower body block of the 36” x 8” Jaw crusher and the said crack found at the lower body block inner side was welded by 40 mm thick plate and that the Jaw crusher was found working satisfactorily. It is true that on 29..12..1999 while working the Jaw crusher it was noticed some vibration on welding joint; but the service people of the opposite party directed the complainant to continue working of the machine. Thus, it could be seen that on getting information regarding the development of the crack on the body of the said Jaw crusher the said complaint was promptly attended by the service people of the opposite party company. The complainant has also relied on A4 and A5 letters dated:1..10..1999 and 9..10..1999 issued by the opposite party company to the complainant M/s Metarock Private Ltd. A reading of A4 and A5 letters would show that those letters are concerned with some complaint regarding the working of the Jaw crusher. As per A4 letter the opposite party informed the complainant that the complaint given over telephone has been registered on 1..10..1999 and that the opposite party has arranged to depute the service personnel to attend the said complaint. A5 letter dated:9..10..1999 would show that the said complaint was only with respect to generation of more fines ¼” material passing along with over size output in the section. So, A4 and A5 are not connected with the development of crack on the body of the Jaw Crusher. But A4 and A5 are related to some minor problems. And there is no case for the complainant that the aforesaid problems were not attended by the opposite parties. There is also nothing on record to show that the aforesaid problems had adversely affected the working of the Jaw crusher. A4 and A5 had nothing to do with the delay caused in rectifying the defects due to cracks developed on the body of the Jaw crusher. Ext.A7 service worksheet would show that the opposite party attended the complaint regarding development of cracks on the body of the 36” x 8” Jaw crusher and the said cracks were welded by the service personnel of the opposite party/company. By attending the problem from 22..12..1999 to 28..12..1999. Ext.A8 is a complaint dated:29..12..1999 issued by the complainant, Metarock Private Ltd. to the opposite party M/s Sayaji Iron and Engineering Company Ltd. with respect to the vibration at the welding site. In Ext.A8 it is stated that the rectification of the cracks developed on the body of the crusher was not sufficient and the vibration noticed on welding joint on 29..12..1999 is to be effectively rectified. It is to be noted that the service people of the opposite party left the site of the complainant on 29..12..1999 with a direction to continue the working of the Jaw crusher, even though there was some vibration noticed at the welding joint. Ext.A9 is another complaint dated:30..12..1999 representing the same complaint as stated in Ext.A8 complaint dated:29..12..1999. Ext.A9(a) is another complaint dated:2..1..2000 stating that the rectification work done by the service people of the opposite party was not effective. The complainant has also requested for replacement of the crushers with new ones as a solution to the said problem. It is further stated about development of further crack on the body of the crusher and the working of the crusher has been stopped by 31..12..1999. Ext.A10 is also another complaint with respect to the crack developed on the body to the crusher and it is dated:4..1..2000. Ext.A11 is a reply to the letter dated:11..1..2000 issued by the opposite party to the complainant. Ext.A11 letter would show that the Technical Manager, Production Mr.J.K.Lohana of the opposite party had visited the site of the complainant on 5..1..2000 and he recommended replacement of the cracked body of the Jaw crusher. It is to be noted that the letter dated:11.1..2000 issued by the opposite party has not been produced by the complainant. But A11 reply to the said letter would make it clear that the opposite party has stated in its letter dated:11..1..2000 that the crack on the body of the Jaw crusher developed due to issues related to maintenance. But the aforesaid reason stated by the opposite party for development of cracks on the body of the crusher was denied by the complainant in A11 reply. It can also be seen that the opposite party requested the complainant to forward the machines to the works of the opposite party at Baroda for effecting repairs. The opposite party also relied on clause 10 of the Conditions of sale. A12 is another letter issued by the complainant to the opposite party on 11..2..2000 requesting for replacement of the cracked body part of the crusher. It is also stated about the financial loss that is being suffered by the complainant because of the non working of the crusher. Ext.A13 is the copy of the letter dated:1..4..2000 issued by the complainant to the opposite party. In fact it is the reply to the letter dated:16..3..2000 which was issued by the opposite party to the complainant. Unfortunately, the complainant has not produced the aforesaid letter dated:16..3..2000 issued by the opposite party to the complainant. A reading of A13 reply letter dated:1..4..2000 would give an indication that the opposite party has also requested payment of Rs.1.2.lakhs towards the price of the 2 number of the body of the crusher. As per A13 reply the complainant requested the opposite party to replace the same free of cost, as there was guarantee for the said crusher. Ext.A14 is copy of the fax dated:22..4..2000 sent by the opposite party to the complainant intimating despatch of 2 numbers of body of the Jaw crusher to the site of the complainant for its replacement. The invoice attached to the said fax message would make it clear that the aforesaid 2 numbers of body of the Jaw crusher was despatched free of cost by treating the same as free replacement. Thus, A14 document would make it clear that the opposite party supplied 2 numbers of body of the Jaw crusher free of cost. B5 certificate dated:17..5..2000 issued by the General Manager of the complainant company would make it abundantly clear that the service Engineer and Mechanic of the opposite party company attended the replacement of 36” x 8” Jaw crusher body 2 numbers on 30..4..2000 and that the aforesaid service personnel with others replaced the old body of the Jaw crusher and assembled all the parts of the new body (2 numbers) of the said Jaw crusher. It would also show that the leveling and alignment of the Jaw crusher 36” x 8” were also done by the service personnel of the opposite party and started working on 10..5..2000 at 3 pm onwards and the said working was found satisfactory up to 17..5..2000. In B5 certificate it is also stated that the working of Jaw crusher is found satisfactory. Thus, the complainant was fully satisfied with the performance of the Jaw crusher. B5 certificate, therefore, would establish the fact that 2 numbers of body of the Jaw crusher were replaced by 30..4..2000 and the Jaw crusher was working satisfactorily. A8 to A14 correspondence and B5 certificate would show that the opposite party had taken 4 months time to replace the body of the Jaw crusher36” x 8” which developed cracks. It is to be noted that at the first instance the cracks were welded and thereby rectification work was done; but unfortunately the aforesaid rectification work was not effective because vibrations could be noticed at the welding site. So, at the request of the complainant those 2 body of the Jaw crusher were replaced free of cost. There is no case for the complainant that the complainant paid any amount for replacement of the body parts which developed crack. The case of the complainant is that there occurred delay of 4 months in replacing the broken body of the Jaw crusher. But the complainant never demanded any compensation for the aforesaid loss suffered by the complainant because of the delay in replacing the broken body parts. But, at the same time the complainant was fully satisfied with the replacement of the broken body parts by the opposite party. It is to be noted that the present complaint in OP:47/01 was filed in April 2001. Prior to the filing of the said complaint there was no demand made by the complainant for compensating its loss due to the delay in replacing the same. In the aforesaid communications issued by the complainant to the opposite party there was no demand for compensating the complainant for the loss suffered by the complainant because of the non working of the crusher during the aforesaid period. It is further to be noted that as per clause 10 of the Conditions of sale the complainant has to produce the defective parts or the defective machinery at the works of the opposite party. The aforesaid clause 10 of the Conditions of sale is as follows:- “10 – Guarantee - Provided that the terms and conditions herein before stated or otherwise specifically agreed upon in writing are duly and punctually complied with, we guarantee the machinery in respect of satisfactory design, materials and workmanship, for a period of 12 months from the date of last major despatch. In pursuance of this guarantee we undertook to remedy with reasonable despatch or replace free of charge ex-works, any part or parts which during that period may prove to be defective on account of design, material or workmanship. This guarantee shall not apply to fast wear and tear, damage due negligence, or improper handling or erection be purchase or alterations carried out by purchaser without our knowledge or damage due to any reason beyond our control.” The aforesaid guarantee provided for the machinery supplied would make it clear that the opposite party had only guaranteed for replacement of the defective part free of charge at their worksite. It is an admitted fact that the opposite party had also requested the complainant to forward the defective parts or the machinery to the worksite of the opposite party company. But the complainant was not ready to forward the same. It can also be seen that the complainant requested for replacement of the same at their site. So, there occurred delay of 4 months and the aforesaid delay cannot be taken as unreasonable delay. So, the claim for compensation on the ground of the aforesaid delay cannot be upheld. The case of the complainant is that the replaced body of the Jaw crusher 36” x 8” developed crack on 10..10..2000. The aforesaid fact was informed the opposite party by A15 letter dated:10..10..2000. A16 letter dated:24..10..2000 would also show that the aforesaid matter was informed the opposite party on 10..10..2000 itself. Ext.A17 is copy of the reply notice issued by the complainant to the lawyer notice issued by the opposite party. A17 reply lawyer notice dated:7..11..2000 would make it clear that the opposite party had issued a lawyer notice dated:28..10..2000 and thereby denied the case of the complainant in A15 and A16 letters. It is thereafter the complainant filed the present complaint in OP:47/01. The complainant alleged manufacturing defect for the Jaw crusher 36” x 8”. The complainant as PW1 has categorically deposed that the manufacturing defect for the 36” x 8” Jaw crusher is due to the material used for manufacturing the same. At page 16 of the deposition of PW1 it is categorically stated that machine <UMlU/bUCUBadWk (36” x 8”) materials - [NLBW^ manufacturing [NLBW^ *WKg^ [*TtT7a. But the complainant has not adduced any expert evidence to substantiate its case that there was manufacturing defect for the 36” x 8” Jaw crusher. It is the case of the complainant that the crack developed on the body of the Jaw crusher because of manufacturing defect. It is admitted by PW1 that he is not a qualified person and his qualification is only pre-degree. It is deposed by PW1 that he deposed about the manufacturing defect based on the information he gathered from his qualified Engineers who have been engaged for the running of the crusher unit. But the complainant has not examined any one of those qualified Engineers to speak about the manufacturing defect in the Jaw crusher. The complainant has not taken any steps to get the Jaw crusher examined by an expert in the field, So as to give an opinion regarding the functioning of the Jaw crusher and also to report as to whether any manufacturing defect for the 36” x 8” Jaw crusher. It is also to be noted that the complainant has not taken any steps to test the material used for manufacturing the said Jaw crusher. The complainant has not proved his case regarding manufacturing defect in the 36” x 8” Jaw crusher. There is only an allegation regarding manufacturing defect. The aforesaid allegation has been denied by the opposite party. The complainant filed proof affidavit stating that there was manufacturing defect. The aforesaid allegation has been denied by the opposite party by filing proof affidavit. The Managing Director of the complainant company has been examined as PW1 and he deposed that there was manufacturing defect for the Jaw crusher 36” x 8”. The 2nd opposite party has been examined as DW1and he deposed that there was no manufacturing defect in the Jaw crusher. It is come out in evidence that both PW1 and DW1 are not experts in the field. Both are doing the office administration of the parties. More over, there is only oath against oath. But there is no supporting material to substantiate the case of the complainant regarding manufacturing defect. It is a settled position that it is for the complainant who alleges manufacturing defect to establish the same. But in this case the complainant miserably failed in establishing the alleged manufacturing defect in the 36” x 8” Jaw crusher. The opposite party has got a case that the complainant has been using spurious spare parts for the Jaw crusher and that caused problem in the working of the Jaw crusher. The opposite party categorically deposed that after the purchase of the machinery namely the Jaw crusher 36” x 8”, the complainant never purchased any spare parts from the opposite party. The managing director of the complainant as PW1 was asked about the purchase of spare parts for the crusher. He could not adduce any further evidence to support his case that spare parts were purchased from the opposite party. Had there been any such purchase of spare parts from the opposite party company, necessarily there will be bills or invoice evidencing purchase of spare parts. But, the complainant could not produce any of such bills or invoice for purchase of spare parts. PW1 has also admitted the fact that the opposite party furnished a list of spare parts to be purchased for the use of the crusher. It is also admitted by PW1 that the said list of spare parts was given for purchase of the spare parts manufactured by the opposite party. According to PW1, he purchased the required spare parts. But he could not produce any document to support his case that he purchased the required spare parts from the opposite party. This circumstance would strengthen the contention of the opposite party that spurious spare parts purchased from local market have been used for the crusher and it resulted in causing defects to the crusher. The case of the complainant that the replaced body of the crusher further developed cracks on 10..10..2000 has not been admitted by the opposite parties. It is for the complainant to substantiate his case that replaced body of the crusher again developed cracks. But that case of the complainant has not been proved in this case. PW1 denied the suggestion that the said Jaw crusher is even now working. But the complainant could not substantiate the said assertion by adducing proper evidence. At the same time PW1 admitted that the Jaw crusher is even now using for crushing granites. (Q)=CT8UdTHa=:ATB machine $\gTP %=\BT,UdWkW\tT? (A)%ta. The aforesaid question and answer would give an indication that the Jaw crusher is even now working and the complainant has not suffered any loss as alleged. It is to be noted that the complainant was examined through Commission on 17..12..2005. It is for the complainant to substantiate his case that the crusher cannot be used at its optimum level. The complainant could not substantiate its case that due to the manufacturing defect the Jaw crusher cannot be put into its optimum capacity. Thus, the complainant has miserably failed in establishing its case regarding manufacturing defect. The complainant has produced A24 series of bills in support of his case that the production capacity of the Jaw crusher 36” x 8” had been considerably reduced due to the manufacturing defect. But A24 series of bills were produced at the fag end of the trial of this case. It is also to be noted that there is no corresponding day book or ledger produced from the side of the complainant. A24 series of bills have not been proved by producing the corresponding account books. More over, there is nothing on record to show that A24 series of bills are kept in the ordinary course of business. There is also nothing on record to show that A24 series of bill books were produced before any authority authenticating the correctness and genuineness of these bill books. So, the A24 bill books would not establish the case of the complainant that the production capacity of the Jaw crusher was reduced due to the alleged manufacturing defect. Thus, in effect the complainant has not substantiated its case regarding the manufacturing defect and the resultant financial loss. The complainant filed an affidavit dated:18th April 2009 stating that the subject matter of the complaint namely the Jaw crusher 36” x 8” has been sold to one N.M.Abdulkhan, Black Stone Granites, West Vengola, Perumbavoor by bill dated:5..3..2008. It is further stated that it was sold for Rs.2.lakhs against the cost of Rs.28,27,900/-. The complainant has also produced carbon copy of the bill dated:5..3..2008 evidencing sale of the machinery 2 in numbers on a sale consideration of Rs.2.lakhs. The fact that the complainant sold the disputed machinery on 5..3..2008 is admitted. It is to be noted that before effecting sale of the machinery to Black Stone Granites, the complainant failed to seek the permission of this Commission. It is to be noted that no notice was also given to the opposite party regarding the sale of the aforesaid machinery on 5..3..2008. No acceptable evidence is forthcoming to substantiate the case of the complainant that he sold the machinery on a consideration of Rs.2.lakhs. PW1 has not spoken to anything about the intention to sell the machinery. It is true that PW1 was examined on 17..12..2005 and the alleged sale was effected on 5..3..2008. One thing is certain that the complainant has sold the machinery to Black Stone Granite, Perumbavoor. The case of the complainant that he suffered loss due to the said sale cannot be accepted as such. It is further to be noted that PW1 has admitted that the said Jaw crusher 36” x 8” was put in use till the date of his examination on 17..12..2005. So, it can only be inferred that the complainant has been using the aforesaid Jaw crusher for a pretty long time from 1999 till its sale in the year 2008. The admitted facts would show that the Jaw crusher was put in use by the complainant for a period of 9 years. There is no acceptable evidence available on record to show the value of depreciation with respect to Jaw crusher which was put in use for 9 years. So, the case of the complainant that he suffered heavy loss due to the purchase of the machinery from the opposite party and that the opposite party effected sale (supply) of machinery namely 36” x 8” Jaw crusher having manufacturing defect cannot be believed or accepted. The available evidence on record would show that the complainant has been enjoying the aforesaid Jaw crusher in connection with his business of running crusher unit. So, the present complaint filed for compensation of Rs.20.lakhs cannot be allowed. The complainant miserably failed in establishing his case as alleged in the complaint in OP:47/01. There is no acceptable evidence to establish the alleged deficiency of service or unfair trade practice on the part of the opposite parties. So, the complaint is liable to be dismissed. This point is answered accordingly. Point No:4 (See decreetal portion) In the result the complaint in OP:47/01 is dismissed. Considering the facts and circumstances of the case, the parties are directed to suffer their respective costs. M.V. VISWANATHAN : JUDICIAL MEMBER VL. S.CHANDRAMOHAN NAIR : MEMBER A P P E N D I X COMPLAINANT’S EXHIBITS Ext.A1 : Order Form dtd:19..11..98 Ext.A2 : Letter dtd:23..2..1999 from Metarock Pvt. Ltd. to M/s Sayaji Iron & Engineering Co. Ltd. Ext.A3 :Letter dtd:30..11..98 from M/s Sayaji Iron & Engineering Co. Ltd. Ext.A4 : Letter dated:1..10..99 from M/s Sayaji Iron & Engineering Co. Ltd. Ext.A5 : Letter dated:9..10..99 from M/s Sayaji Iron & Engineering Co. Ltd. Ext.A6 : Letter dated:18..12..99 from M/s Sayaji Iron & Engineering Co. Ltd. Ext.A7 : Service worksheet by M/s Sayaji Iron & Engineering Co. dtd: 28..12..1999. Ext.A8 : Letter dtd:29..12..1999 from Metarock Pvt. Ltd. Ext.A9 : Copy of fax message dated:30..12..99 from Metarock Pvt. Ltd. Ext.A9(a) : Letter dtd:2..1..2000 from Metarock Pvt. Ltd. Ext.A10 : Letter dtd:4..1..2000 from Metarock Pvt. Ltd. Ext.A11 : Letter dtd:27..1..2000 from Metarock Pvt. Ltd. Ext.A12 : Letter dtd:11..02..2000 from Metarock Pvt. Ltd. Ext.A13 : Letter dtd:1..04..2000 from Metarock Pvt. Ltd. Ext.A14 : Letter dated:22..4..2000 from M/s Sayaji Iron & Engineering Co. Ltd. Ext.A15 : Letter dtd:10..10..2000 from Metarock Pvt. Ltd. Ext.A16 : Letter dtd:24..10..2000 from Metarock Pvt. Ltd. Ext.A17 : Reply notice issued by Adv:Sri.K.L.Narasimhan. Ext.A18 : Resolutions passed by Metarock Pvt. Ltd. Ext.A19 : Instruction manual and parts list. Ext.A20 : Conditions of sale by M/s Sayaji Iron & Engineering Co.Ltd. Ext.A21 : Letter from M/s Sayaji Iron & Engineering Co. Ltd. Ext.A22 : Letter dated:5..4..2000 from M/s Sayaji Iron & Engineering Co. Ltd. Ext.A23 : Letter dated:22..5..2000 from M/s Sayaji Iron & Engineering Co. Ltd. Ext.A24 : Series of bills. Ext.A25 : Counter affidavit filed by the complainant through Adv:Sri.K.L.Narasimhan. COMPLAINANT’S WITNESS PW1 : Sri.N.Vinodlal OPPOSITE PARTIES EXHIBITS Ext.B1 : Conditions of sale by M/s Sayaji Iron & Engineering Co.Ltd. Ext.B2 : Letter dtd:28..10...1996 from M/s Sayaji Iron & Engineering Co.Ltd. Ext.B3 : Letter dtd:20..11...1998 from M/s Sayaji Iron & Engineering Co.Ltd. Ext.B4 Series (3 Nos): Service Worksheet & Commissioning Report. Ext.B5 : Certificate by Metarock Pvt. Ltd. dtd:17..5..2000. OPPOSITE PARTIES WITNESS DW1 : Sri.E.Mohanan. M.V. VISWANATHAN : JUDICIAL MEMBER S.CHANDRAMOHAN NAIR : MEMBER VL. | 
