1)           Fives Stein India Projects Pvt. Ltd.,

8/1, Middleton Row, Kolkata-700071.                             ---------- Complainant

---Verses---

1)           M/s Coolant,

141/1, Jodhpur Park, Kolkata-700068.

2)           M/s. Videocon Industries Ltd.,

164/1, V.I.P. Road, Kolkata-700064.                      ---------- Opposite Party

Present :  Sri S. K. Majumdar, President.

                        Smt. Jhumki Saha, Member.

                       Sri T.K. Bhattachatya, Member.

Order No.   1 5     Dated  0 5 / 1 0 / 2 0 0 9 .

Complainant M/s. Stein Heurty India Projects Pvt. Ltd.  by filing a Petition on 30.01.2008 under Section 12 of the Consumer Protection Act, 1986 against the O.Ps – M/s. Coolant & M/s. Videocon Industries Ltd. has prayed for passing an Order directing the O.Ps to repay the balance amount of Rs. 69,000.00 along with interest @ 12% per annum and compensation  of Rs. 1 lac and litigation cost of Rs. 5,000.00 against the O.Ps .

The fact of the case, in short, is that for the purposeof official use the Petitioner-Company approached the O.P. No. 1 for inspection and quotation in respect of installation of 4 cassette type split air-conditioner machines and accordingly one quotation dated 25.01.2007 has been issued by the O.P. No. 1. Thereafter O.P. No. 2, the manufacturer of air-condition machine also sent one quotation dated 29.01.2007 wherein they demanded Rs. 2,79,600.00 as cost of 4 cassette type split (AC) machine and also requested the Petitioner-Company  to place order through their authorized agent O.P. No. 1. As per the direction of O.P. No. 2  the Complainant-Company issued one purchase order dated 31.01.2007 to O.P. No. 1 and the Complainant agreed to pay Rs. 2,76,000.00 as cost of 4 cassette type split (AC) machine and Rs. 10,000.00 of installation charge. Expected date of delivery was 08.02.2007 and the Petitioner agreed to pay 50% at the time of delivery. And accordingly the Complainant paid Rs. 1,38,000.00 by Cheque No. 419674 dated 01.02.2007 to O.P. No. 1 and the O.P. acknowledged the same.. But, even inspite of payment of 50% O.P. failed to deliver those 4 machines in time and thereafter by a letter dated 22.02.2007 the Complainant cancelled the order and requested to refund the advance payment of Rs. 1,38,000.00

O.P. No. 1 on 26.03.2007 intimated that due to non-supply of 3 AC machines by Videocon they failed to install the machine in time and they could delivery only one machine at the basement of the Petitioner-Company. O.P. No. 2 also intimated that O.P. No. 2 assured to refund the entire amount subject to return of the said delivered machine, and therefore, O.P. No. 2 requested the Petitioner to ;release the unused  AC machine at the earliest, and the one AC machine supplied by the O.P. No. 1 was not used at the basement of the Petitioner-Company and it was lying there in packed and sealed condition. The O.P. No. 1 in their letter dated 04.05.2007 further intimated that the manufacturer O.P. No. 2 agreed to return the entire amount after deducting 10% for lifting charges of the machine. The Petitioner strongly denied because in the previous letter dated 26.03.2007 the O.P. No. 1 never demanded any amount for lifting charges of the machine nor even claimed 10% deduction from the Petitioner-Co. In response to the letter of the Petitioner dated 14.06.2007 O.P. No. 1 issued one Cheque of Rs. 69,000.00 dated 03.07.2007 as 5o% of the paid amount and further agreed to refund the balance after getting payment from Vidiocon Industries Ltd. And thereafter O.P. No. 1 assured over telephone for making payment of balance of Rs. 69,000.00 but they have not paid the same and the Petitioner sent letters on 27.07.2007, 17.08.2007 to the O.Ps with a request to return back the machines from their office and refund the balance amount of Rs. 69,000.00. O.P. No. 2 on 13.09.2007 sent their machine for the first time for lifting the same, and surprisingly it was found by the Petitioner that after opening the sealed boxes and inspecting the machine it was found that some spare-parts like Power PCB, Power Cord and remote hand-set were missing.. The sealed box was never opened earlier and for the first time opened and inspected by the O.P. No. 2 and the Petitioner believe that in order to deprive the legitimate claim of Rs. 69,000.00 the O.Ps raised some illegal and false allegation against the Petitioner and the Petitioner accordingly on 14.09.2007 by a letter to the O.Ps denied the allegations of missing parts of the machines. But even inspite of the negotiations and correspondences through letters the O.Ps have not returned Rs. 69,000.00 to the Petitioner and so the Petitioner has filed this case with the aforesaid prayer.

Decisions with reasons :

It appears on perusal of the records that the case was filed on 15.02.2008 and notices were sent to the O.Ps and it appears on perusal of Order No. 5 dated 28.05.2008 that even inspite of service of notices the O.Ps have not appeared to contest this case. Hence the case is heard ex parte.

It is the specific case of the Complainant that for the purpose of official use they booked 4 cassette type split AC machines at Rs. 2,79,600.00 and out of it they paid Rs. 1,38,000.00 as 50%  with the agreement to pay rest 50% at the time of delivery of 4 machines. One machine was delivered and the rest 3 were not delivered and even the one machine which was delivered was not used by the Petitioner which was kept at the basement of the Petitioner-Co. and subsequently some parts of the delivered one machine were found missing.

And the O.Ps denied to refund Rs. 69,000.00 to the Petitioner and so the Petitioner has filed this case. The quotation of the 4 AC machines given by the O.P. No. 1 is Annexure –A dated 25.01.2007 and date of delivery agreed to Annexure-A is ¾ days approximately from the date of receiving the Order. Warranty Period was 12 months, Free Service 12 months, Annexure-B is the offer letter for the cassette type split AC machine showing unit price of each mchine at Rs. 69,000.00 and 4 machines Rs. 2,79,600.00 and the date of delivery was within one to two weeks after getting official order and validity of order is 30 days from the date of offer, Annexure-C. His purchase order for 4 machines at Rs. 2,76,000.00 and unit price of each machine at Rs. 69,000.00. The Petitioner paid Rs. 1,38,000.00 as 50% of Rs. 2,76,000.00 vide Annexure-D. As the O.P. No. 1 failed to supply 4 machines as per agreement and inspite of repeated demands the Complainant cancelled the Order vide Annexure-E. Through Annexure-F the O.P. No. 1 informed the Complainant that due to non-supply of AC machines b7y O.P. No. 2 they failed to comply with the terms of agreement and accordingly they could not supply 3 other AC machines. The O.P. No. 1 in its letter dated 04.05.2007 Annexure-G intimated the manufacturer, i.e., O.P. No. 2 who agreed to refund the amount after deducting 10% lifting charge of the machine. Petitioner-Company did not agree and it disputed as to the contents of the Annexure-G and its letter, marked Annexure-‘H’. In response to the Petitioners letter dated 14.06.2007, Annexure-H O.P. No. 1 gave a reply on 03.07.2007 Annexure-I. The O.P. No. 1 issued a cheque for Rs. 69,000.00 as partial refund of Rs. 1,38,000.00 but the O.Ps have not yet refunded the Rs. 69,000.00 to the Petitioner. Service Report about alleged missing of Power PCB, Power Cord, Remote hand-set etc. is found from  Annexure-M. The Petitioner challenged  the veracity of the contents of such missing of spare-parts of the machine and their protest letter dated 14.09.2007, marked Annexure-N.

We have also perused the Evidence on Oath of the Petitioner sworn in by Mr. S. L. Mathur, Managing Director  of Petitioner-Company wherein he has stated all about the contents made out in the Petition of Complaint and the contents are corroborated  by his evidence on Oath.

It may apparently appear to us that the AC machines when purchased by the Petitioner for his official use it may be for commercial purpose and accordingly he may not be treated as a consumer as provided under Section 2(d)  under the C.P. Act. But in this respect  Ld. Lawyer for the Petitioner has drawn our attention to a decision reported in 2005-Vol-I CPJ Page 27Harsolia Motors-vs-National Insurance Co.

Relevant observation in this regard is noted as below : “If the goods are purchased for resale or for commercial purpose then such consumer would be excluded from the coverage of Consumer Protection Act, 1986. Such illustration would be that a manufacturer who is producing one product ‘a’, for such production he may be required to purchase articles, which may be raw materials, then purchase of such articles would be for commercial purpose. As against this same manufacturer if he purchases a refrigerator, a television or an air-conditioner for his use at his residence or even in his office it cannot be held to be for commercial purpose and for this purpose he is entitled to approach to the Consumer Forum under the Act”.

In view of the above discussion and considering the facts, circumstances. evidence both on oath and documentary coupled with legal position we are of the opinion that the Complainant is entitled to get relief as prayed for.

Hence

ordered

that the Petition of Complaint is allowed ex parte against the O.Ps No. 1 & 2. O.P. Nos. 1 & 2  are directed to return the amount of Rs. 69,000.00 to the Petitioner positively within 30 days from the date of communication of this Order. The Petitioner do also get an award of Rs. 15,000.00 as compensation and Rs, 3,000.00 as litigation cost and the O.Ps No. 1 & 2  are directed to pay grand total of Rs. 87,000.00 to the Petitioner within 30 days from the date of communication this Order failing which it will carry an interest @ 10% per annum till full realization of the entire amount. Fees paid are correct. Supply copy of this Order to the Complainant on payment of prescribed fees.

              Sd-                                    Sd-                                   Sd-

        ____________                    ____________                    ____________

          MEMBER                         MEMBER                       PRESIDENT