Date of Hearing                                  : : 16-12-2014

         Date of Judgement & Order                : : 13-02-2015      

By Mr. Justice A. Potsangbam,

            Heard the learned counsel appearing for the complainant. None appears on behalf of the opposite party though they have already filed written argument through their counsel. This case has been pending for the last more than eleven years as the same could not be disposed of for one reason or other which we do not want to discuss in this judgment.

2.         Facts, shorn of details, which are necessary for disposal of this complaint may be noticed as hereunder. The complainant No. 1 is a Govt. of India Undertaking and complainant No. 2 is a Society funded and controlled by complainant No. 1. The opposite party No.1 is the authorized dealer of the opposite party No. 2 which is based in United Kingdom. Sometime in the year 1994, the complainant No.1 purchased seven nos. of Plant Growth Chambers at a value of G.B. pound of 1,32,312/- and each plant valued at G.B. Pound 18,902/-  which was equivalent to     Rs. 13,23,000/-, as per value of Indian Currency prevalent at the relevant point of time, from the opposite party No. 2 under an agreement dated 27-6-1994. Responsibility for installation and repair of the machines were assigned and entrusted to the opposite party No.1 by the opposite party No. 2 as their local dealer in India.

3.         After taking delivery of the machines/machineries at Jodhpur, Jabalpur and Dehradun,  two of them were shifted to Forest Genetic and Tree Breeding at Coimbatore and thereafter a decision was taken by the complainant No. 1 to install one of the Plant Growth Chambers at Rain Forest Research Institute, Jorhat, Assam, for research purpose. The decision was communicated, vide letter dated 30-4-1997 issued by the Deputy Director General (Admn), Indian Council of Forestery Research & Education, Dehra Dun. Pursuant to this decision, one of the machines was transported from Coimbatore to Jorhat by the complainants at their own expense. In the process of transportation of the machine, a huge one, some damage had been caused to the monitor of the machine and some other parts.

4.         The damage was examined by the officers of the opposite party No. 1 who visited the office of the complainant No.2, at Jorhat and thereafter they advised the complainant to purchase necessary accessories for the damaged parts and also for sending the defective monitor to New Delhi for which a sum of Rs. 25,000/- was to be paid in advance. Pursuant to the aforesaid advice, the complainant No.2 sent an exchange draft of G.B. pound 3,463.00 which was then equivalent to Indian rupees of Rs. 2,53,865/-. Accordingly, the monitor was sent to the office of the opposite party No. 1 at Delhi but the spare parts were not supplied despite sending the required money for the same.

5.         The opposite party No. 1 informed the office of the complainant No.2 to send another sum of Rs. 90,000/- towards the charge of repairing the Plant Growth Chamber Machine and once the charge was paid and received, they were ready to depute their engineers for repairing and installation of the machine at Jorhat. As the complainant No.2 was in dire need of installation and commissioning of the machine, a sum of Rs. 90,000/- was sent by Indian currency. In the letter dated 15-10-2001 issued by the opposite party No.1, a commitment was made to depute engineer to take up necessary repairing and the letter is reproduced here-in-below:-

October 15, 2001

Our Ref: PAI-1245-2001

Stores & Purchase Officer

Institute of Rain and Moist Deciduous Forest Research

Indian Council of Forestry Research and Education

P.O. Box No. 136

Deovan

AT Road (East)

Jorhat – 785 001

Assam

Ref :    Your Order No. 7/74/94-WB/IWST/SH&GH/2663 dt. 15^th March 2001 for Repair of Sanyo Plant Growth Chamber.

Dear Sir

We are in receipt of your Execution Court-mail letter dated 3^rd October, 2001 on the subject mentioned above.

Please be advised that as per our Repair estimate PAI-574/2000 dt. 5^th July 2000 for Rs. 90,000/- towards repair of Sanyo Plant Growth Chamber (Sr. 7921), the payment has to be made to us in advance. We, therefore, request you kindly release the payment to us immediately so that we can depute our engineer to take up the necessary repairs.

A Pre-Receipted Bill No. 039/SC Dt. 15.10.2001 for Rs. 90,000/- in Triplicate is enclosed herewith to enable you to process the payment.

Thanking you

For Precision Analytical Instruments P Ltd

Vijay Bakhru

Director

6.         As the engineers were not sent to repair the machine despite commitment and receipt of the service charge, a reminder letter was sent by the complainant No.2 and the same is reproduced here-in-below :-

Dated the 27^th Dec., 2001

To

M/S. Precision Analytical Instrument Pvt. Ltd.,

3B Pusa Road,

New Delhi – 110 005. .

7.         Having failed to get the engineers deputed to repair the machine in terms of commitment reflected in the letter dated 5-10-2001, and also because of failure to refund the amount already paid as service charge for repairing as well as also for non-supply of spare parts, the complainant approached this Commission with the following prayers.

In the facts and circumstances aforesaid, your honour would graciously be pleased to admit this petition, issue a Rule calling upon the opposite party to show cause as to why:

1. The plant growth chamber in question shall not be repaired and installed at Jorhat and ;        
2. Why a compensation amounting to Rs. 5,00,000/- only shall not be paid to the complainant due to sheer negligence on the part of the opposite party for non-installation of the machinery causing an irreparable damage to the complainant.

3.  Why the opposite party shall not take back the plant growth chamber along with Accessories and spares of the plant growth chamber amounting to Rs. 13,23,000/- and the purchase value of the accessories and spares amounting to Rs. 2,35,865/- and to pay the transportation cost of Rs. 1,00,000/- and to pay demurrage of          Rs. 1,66,135/- and refund advance amount of Rs. 90,000/- paid for repairing and pay 24% interest on the aforesaid amount from the date of respective payments and to pay compensation amount of Rs. 5,00,000/-  and to pay the cost of the litigation for causing damage and injury to the complainant by their negligent act by not repairing and installing the machinery as per contract and/or pass such other order or orders as your honour may deem fit and proper.

8.         After notice, the complaint was resisted by the opposite parties by filing a joint written statement wherein they had raised technical questions like the complainants were not consumers within the meaning of Consumer Protection Act, 1986, the complaint was time barred and that the transaction was commercial. They also contended that the complainants were responsible for delay in repairing the machines. However, receipt of Rs. 90,000/- as repairing charge from the complainant was admitted in para 9 of the written statement.

9.         By an order dated 4-1-2005 passed by this Commission, evidence-on-affidavit, if filed, was to the treated as evidence-in-chief subject to cross-examination. In other words, evidence-on -affidavit filed by the parties, were to be treated as evidence-in-chief. The complainant filed evidence on affidavit and two prosecution witnesses were examined and cross-examined. The opposite parties did neither file evidence on affidavit not did they produce any D.W. and this is reflected in the order dated 5-10-2010 passed by the learned Advocate Commissioner. In that, learned Advocate Commissioner had recorded the statement of Mr. S.K.Agarwal, learned advocate, representing the opposite parties, to the effect that there would be no defence witness from the opposite party’s side.

10.       At one stage of hearing, few questions cropped up for consideration of the Commission. Accordingly, the following points were formulated for consideration with a direction to the parties to address on those points.

1. Whether a complaint under the Consumer Protection Act, 1986, can be filed against a firm situated in the United Kingdom, a foreign country?
2. In view of the fact that the contract in question had been signed between the representative of the firm in the United Kingdom and the Director General of Indian Council of Forestry Research and Education, whether subordinate officer of the above named Society can file the complaint invoking the provisions of the agreement and more so, in absence of any authorization by the Director General of Indian Council of Forestry Research and Education ?
3. Further, the general condition of contract, special condition of contract and purchase’s notification as mentioned in para 2 of the agreement, marked as Exhibit 1(C) are required to be looked into.

11.       In addition to the above, another point was raised by the opposite party as to whether the complainant could come within the meaning of consumer under the Consumer Protection Act, 1986.  An additional written argument dated 24-2-2012 was submitted by the complainant by contending that the complainants were consumers within the meaning of Section 2(d) of the Consumer Protection Act, 1986. In order to examine the aforesaid contentions, we need to refer to Section 2(b). “Complainant” means-

            (i) a consumer ; or     

            (ii) any voluntary consumer association registered under the Companies Act, 1956 (1 of

1956), or under any other law for the time being in force; or

(iii) the Central Government or any State Government, who or which makes a complaint;

            (iv)one or more consumers, where there are numerous consumers having the same

interest who or which makes a complaint.

We may again refer to definition 2(m) which is quoted below.

            “Person” includes-

            (i)a firm whether registered or not;

            (ii)a Hindu undivided family,

            (iii)a co-operative society’

(iv)every other association of persons whether registered under the Societies Registration Act, 1860 (21 of 1860) or not.  

12.       Combined effect of reading Section 2(b) and 2(m), as discussed above, would make it clear that Central Government or any other State Government which may include an instrumentality of state as defined in Article 12 of the Constitution of India, may file a complaint and that apart, the complainant No. 2 is a Society which came to be registered in the year, 2011 . For better appreciation, Article 12 of the Constitution of India, is reproduced below.

            12. Definition- In this part, unless the context otherwise requires, “the State” includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.”

13.       Therefore, the complainant No.1, being a Govt. of India undertaking, funded and controlled by the govt. regulation and decision taken by the Govt., is definitely a state within the meaning of State as laid down in Article 12 of the constitution and therefore, they are competent to file a complaint under the Consumer Protection Act, 1986 in terms of Section 2(b)(iii). Again referring to Section 2(m) “ Person “, we have to consider what is the import and purport of “person” and this has been interpreted by the Supreme Court in Samath Vs State of Andhra Pradesh reported in AIR (1997) SC 3297 and Remembrance Legal Affairs Vs Corpn. Calcutta reported in AIR (1967) SC 997. Their Lordship held that while interpreting the word “person”, the same cannot be circumscribed by rigour of rigidity. Further, the complainant No. 2, admittedly being a Society, registered or not, also competent to file the complaint. From the discussion made here-in-above, we are satisfied that the complainant have legal capacity to file the complaint as complainant under the Consumer Protection Act, 1986.

14.       Having settled the issue as to whether the complainants are complainant or not within the ambit of the Consumer Protection Act, 1986, we will now advert to point No. 1 as enumerated in para 9 of this judgment i.e. whether a complaint under the Consumer Protection Act, 1986, can be filed against a foreign country or not. This issue was adequately addressed by both the parties. It is true that in case of filing a suit or a case against a foreign country, permission from the Govt. of India under Section 86(1) of Civil Procedure Code, is required. Further, Section 86(1) of CPC provides that with the permission of Govt. of India, a letter rogatory can be sent to a foreign country. Such requirement is not necessary in case of filing a case against firm/company/individual dealing in commercial activities, not representing the sovereign authority of the country. The two can be clearly delineated, firstly, in case of filing a suit against foreign firm/company dealing with commercial activities, not representing the sovereign authority of the country, requirement of Section 86(1) of CPC, has no application and secondly, in case of a suit or case to be filed against the sovereign authority of another country or commercial transaction between Govt. to Govt., requirement of Section 86(1) is to be followed. The opposite party No.2 appears to be a firm/company established in United Kingdom by people of other country. Therefore, by any stretch of imagination, it can never be perceived that the opposite party No.2 did ever represent the sovereign authority of United Kingdom Govt.          No counter argument was advanced against the aforesaid proposition. After due consideration, this Commission passed an order on 19-12-2013 and the relevant portion of the order is quoted below.

            Heard Mr. Y Doloi, learned counsel, appearing for the complainant. None appears for the opposite party. The opposite party also did not appear on the last date. Today, Mr. Doloi has submitted some correspondences one of which is a letter dated 31-7-2004 issued by the Secretary of Indian Council of Forestry Research and Education, wherein the complainant was shown to have been authorized to represent the complainant No. 2. We have carefully gone through the letter and we find that the submission made by Mr. Doloi appears to have been correct and supported by the aforesaid communication dated 31-7-2004. On 2-4-2013, the Commission formulated three points. As far as the first point is concerned, we are satisfied with submission made by Mr. Doloi that the firm in U.K. did not represent sovereign power of the country, therefore, immunity entitled to a sovereign country and its functionaries are not extendable to a commercial organization. As far as the second point is concerned, we have already discussed in the early part of this order by referring to letter dated 31-7-2004 and prima-facie we are satisfied that the complainant was authorized to file the complaint on behalf of complainant    No. 2. In respect of point No. 3, Mr. Doloi has already submitted a list of documents for perusal of the Commission and these documents will be looked into at the time of hearing of the complaint. Now, having overcome the initial hurdle, at least at prima-facie, the Commission will now to proceed to hear the matter on merit. At this stage, Mr. S.K. Agarwal has appeared on behalf of the opposite party no. 1and he has also been furnished a copy of the communication dated 31-7-2004.  

            The above order dated 19-12-2013 was neither appealed against nor revisioned against before any higher Forum and as such, this order has attained finality and as such we can well presume that the opposite parties have accepted the same. Point Nos. (ii) and (iii) need no consideration as they are not relevant to the real issue in controversy. Further, purpose for purchase and installation of the machine is for research activity undertaken by the Govt. funded organization and as such the intention of commercial activity has no leg to stand.

15.       Having settled the above issues which are rather on fringe side, we will now consider the real controversy involved in the case. Before proceeding to resolve the controversy, the admitted facts are as stated as here-under :-

(i)      Bid by opposite party No. 2 for supply of Growth Chamber Machine was accepted by the complainant No. 1 and the machines were supplied and received. Initially two machines were allotted to Jodhpur, two at Jabalpur and three at Dehra Dun.

(ii)     By a decision conveyed in letter dated 30-4-1997 issued by the complainant No. 1, one of the machines allotted to Jabalpur which was subsequently transferred to Coimbatore, was again transferred to Jorhat Institute at the expense of the complainant.

(iii)    Transportation was done. In the process of transportation, monitor and some other

          parts of the machine were damaged which required repair and replacement.

(iv)    The opposite party no. 1 being the dealer of the opposite party no. 2 which is based in United Kingdom, was assigned and entrusted with the responsibility to repair and install the machine. They have undertaken the service of installation, acting as agent and dealer of the opposite party No. 2, wherever the purchased machines were to be installed. Therefore, their acknowledged obligation, is well manifested in all the correspondences which are made available on the records of the case.

(v)     On request of Jorhat Institute, engineers of the opposite party No. 2 who claimed to have a service set up at Delhi, visited the machine at Jorhat and they found that the monitor and other parts were damaged and for purchasing necessary accessory of the damaged parts, as demanded, a sum of Rs. 253865/- was already paid by way of exchange draft in G.B. Pound.

(vi)    The opposite party No. 2 demanded another sum of Rs. 90,000/- as charge for repairing the machine and the demand was accompanied by pre-receipt bill and in the demand letter, a commitment was made that they would depute their engineers to take up necessary repairing for which the amount was paid. The payment of           Rs. 90,000/- is reflected in the letter dated 27-12-2001 issued by the office of the complainant No. 2 as quoted above.

16.       The complainants have filed their evidence on affidavit and two P.Ws. deposed as witnesses to substantiate their claim and they were subjected to cross-examine by the opposite party. It is an admitted position that the opposite parties neither filed evidence on affidavit nor did they produce any defence witness to support and substantiate their contention. The written statement filed by the opposite parties raised only technical questions which have been adequately answered to in the foregoing paragraphs. But they, in their written statement, admitted receipt of Rs. 90,000/- as charge for repairing and no statement was given justifying their failure to come at Jorhat for repairing the machine.

17.       Having regard to the admitted factual position as discussed above, we are to consider as to whether the opposite parties are liable for disservice/deficiency of service for not providing service of repairing even after receipt of the amount demanded by them for the purpose. Section 2(d)(i) may not be applicable in the instant case in view of the fact that there was no controversy pertaining to purchase of the machine by the complainant No.1 from the opposite party No.2.  But in so far as it relates to availing of service as defined in Section 2(d)(ii) and Section 2(o) of the Consumer Protection Act, 1986, the opposite party No.1 cannot escape liability under the Consumer Protection Act in as much as they have failed to provide service of repairing the machine till today even after the service charge was paid as far back in 2001. That apart, the spare parts of the machine were not supplied though a sum of Rs. 2,53,865/- was already paid in 2001 for the same. A case of dis-service/deficiency of service is well established and, as such, we are of the considered opinion that the opposite party No.1 is liable for dis-service/deficiency of service in terms of section 2d(ii) and 2d(o) of the Consumer Protection Act, 1986.

18.       In the back-drop of discussion made hereinabove and also on consideration of the case in its entirely, we do hereby direct the O.P. No.1 :-

1. to depute their service engineers for repairing the plant growth  machine at the Jorhat Institute (complainant No.2) and replace all the defective parts by the parts/accessories for which a sum of Rs. 2,53,865/- was already paid in the year 2001 and this shall be done within 3(three) months from the date of passing this judgment.

2. to refund the service charge of Rs. 90,000/- and also the value of spare parts i.e.      Rs. 2,53,865/- with 9% interest per annum from the date of payment i.e. 2001, in case the direction No.1 is not implemented within the time stipulated above.  

3. to pay a sum of Rs. 5(five) lakhs to the complainant No.1 by way of compensation for depriving the benefit derivable from commissioning­ the machine which had been lying idle for want of repairing and replacement of parts.

The complaint is disposed of with the above directions but there would be no order as to cost.

Send a copy of this order to the Opposite Party No.1 by registered post.