Tamil Nadu

North Chennai

178/2013

M/S Global Pharma Health Care Pvt Ltd,rep by Director Kamalakannan - Complainant(s)

Versus

Vishwa Infrastructure&Services,rep by Authorised signatory - Opp.Party(s)

T.K.S.Gandhi

27 Jan 2017

ORDER

                                                             Complaint presented on:  26.09.2013

                                                                Order pronounced on:  27.01.2017

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,        PRESIDENT

                    TMT.T.KALAIYARASI, B.A.B.L.,           MEMBER II

 

FRIDAY THE 27^th  DAY OF JANUARY  2017

 

C.C.NO.178/2013

 

 

 

M/S. Global Pharma Healthcare Pvt. Ltd.,

Represented by its Director Mr.Kamalakannan,

Office at No.2A, 3^rd Floor, 4^th Street,

Ganga Nagar,

Kodambakkam, Chennai – 24.

 

                                                                                        ..... Complainant

 

..Vs..

 

1. VISHWA INFRAASTRUCTURE & SERVICES,

Rep by its Authorised Signatory,

Old No.35, New No.28,

1^st Main Road, Shenoy Nagar,

Chennai – 30.

 

2. ADITYA TECHNOLOGIES,

Rep by its Proprietor,

Mr.G.Krishna Kumar,

No.193, Vanniar Street,

Padi, Chennai – 50

 

...Opposite Parties

Date of complaint                                  : 30.09.2013

Counsel for Complainant                      : M/s. T.K.S.Gandhi, I.Mohamed Faizal &

                                                                 M.Sivakumar         

 

Counsel for 1^st Opposite Party                       : Ex – parte

 

Counsel for 2^nd Opposite party                :Mr.N.Poovanalingam

 

 

O R D E R

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

          This complaint is filed by the complainant u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The Complainant is carrying on business of pharmaceutical & allied products. The 1^st and 2^nd Opposite Parties are carrying the business of selling, Service, Replacement of parts, etc., of machineries viz Air Compressor, Air Dryers, Down Stream Fitters, etc. The 2^nd Opposite Party have supplied the above  Air Compressor Unit (consisting of Tank, Motor and Starter with all accessories)  with 60 CFM  12 BAR 15 HP Motor and Starter with all accessories to the Complainant, by way of an invoice dated 08.10.2012 and the Complainant paid a sum of Rs.3,06,975/-. The above ‘Air Compressor’ Unit was installed with the assistance and directions of Opposite Party’s technicians. The Complainant started using the above compressor with the help of its ‘technical persons’. It’s pertinent to note that, the sale quotation given by Opposite Party,  consisting of Tank, Motor and Starter with all accessories supplied by the 2^nd Opposite Party (by way of Invoice dated 08.10.2012) is only in respect of 60CFM 12 BAR 15 HP, where as the above compressor Unit supplied by the Opposite Party produces low power of Air Pressure. It does not produce the air pressure as per its specifications. It has the capability of producing only 30 CFM @ 7-8 kg. It does not have the power and pressure of 60 CFM Compressor. Thus the 2^nd Opposite Party has supplied the compressor of ‘inferior quality’ which does not have the capacity of 60 CFM. The Complainant had requested the 2^nd Opposite Party to rectify the above defects of the compressor. Accordingly the ‘technical person’ of 2^nd Opposite Party visited and inspected the above compressor and did some rectifications. However, the above defect was not rectified and the above compressor does not produce the air pressure as per specifications of 60 CFM.  Again the Complainant sent mail to the 2^nd Opposite Party in this regard, instead of rectifying the above defects; he had been curiously saying lame excuses and reasons. Infact the 2^nd Opposite Party’s technical persons viz Mr.Sekar &Mr.Sushil Pail along with the Complainant’s technical persons viz Mr.Boopalan and Mr.UdhayaKumar have also inspected the above compressor and gave a report dated 09.04.2023. in which it is clearly stated that “the supplied compressor has capability of 30 CFM @ 7-8 kg but p.o. raised for 60 CFM @ 11-12 kg 15 HP”. As per the Purchase Order dated 27.08.2012, the above “Air Compressor Unit is covered under the warranty period of 18 months, whereas the Opposite Party have falsely alleging, “as if they have done the service & replacement of the parts of the said compressor for many times and as if highly Arbitrary and Illegal. The 2^nd Opposite Party had been demanding ‘payments’ for any repairs or replacement of parts. Which clearly shows the “unfair trade practice and deficiency in service “. Hence, the Complainant had sent a “Lawyer’s Notice” dated 12.06.2013, to the Opposite Party, but there was no response on the side of the Opposite Party. The 1^st Opposite Party is only supplying the above machineries and also carry out the repair and services for the 2^nd Opposite Party. Thus both the Opposite Parties etc are jointly involved in the manufacturing and services of above machinery, which was supplied to the Complainant. Thus there is a deficiency in service and unfair trade practice committed by the 1^st Opposite Party. Hence, the Complainant has issued letter dated 26.08.2013 to the 1^st Opposite Party but there was no reply from the 1^st Opposite Party. Hence the Complainant filed this Complaint to replace the new Air Compressor and also compensation for mental agony towards loss of income and with cost of the Complaint.

          2. The 1^st Opposite Party remained absent and he was set ex-parte.

3. WRITTERN VERSION OF THE 2^nd OPPOSITE PARTY  IN BRIEF:

          The 2^nd Opposite Party has nothing to do with the 1^st Opposite Party, who is a competitor of the 2^nd Opposite Party. The Complainant wanted to buy Air Compressor unit along with accessories. The 2^nd Opposite Party also gave sales quotation for both 30 HP and HP Air Compressor on 11.06.2012, 25.06.2012 and on 24.08.2012 respectively. For complainant’s company capacity this Opposite Party advised 20 HP or 30 HP Air compressors and gave the quotation. The Complainant wanted quotation only for 15 HP and insisted to supply 15 HP Air Compressor by its purchase order dated 27.08.2012. This Opposite Party submits that the ordered Air Compressor was supplied, installed and handed over in good operating condition as per purchase order and there was no Complaint with regard to its functions at any time. It is evidenced from the report dated 09.11.2012 prepared and sent by the Complainant. The Complainant has two units one for making tablets and another for injunction. It was advised to the complainant to use 90 CFM/30HP 10 BAR Lube Screw Air Compressor. The cost of the Air Compressor is Rs.4,93,000/-.The Complainant wanted compressor for injection unit only. Therefore this opposite party advised the complainant to use 67 CEM 12BAR 20 HP Lubricated Air Compressor. Inspite of our advice, the complainant insisted for 60 CFM 12 BAR 15HPNon Lubricated Air Compressor as per advice of their own technical people. Moreover it is found by our technical people that the Complainant is using this compressor for both the injection and tablet units. As per their own test report dated 09/11/12 is clearly stated that compressor produced pressure 13 KG/CM 2. This pressure reaching is more than the machines capacity which is not recommended to use. The Complainant did not inform that he used the compressor more than its capacity. This Opposite Party has replaced the safety valve twice at free of cost. The Complainant bought this compressor to run injection plant only, but as per the report  dated 09/11/12, it reveals that the compressor is supplying the air to tablet and injection plant, in other words to the complete unit. No rest is given to the Air Compressor, it is run continuously, beyond the capacity. This Opposite Party further submits that there is no manufacturing defect in the Air Compressor and also it worked as per its capacity. Therefore, the allegation that the compressor is worked as per its capacity is not correct. In this regard this Opposite Party has sent many mails. The Complainant without investment wants to run the units with the help of the compressor which is not capable of running the entire unit. This 2^nd Opposite Party submits that this Complainant placed another order for purchase of certain spare parts on 21.05.2013. The Complainant issued a cheque infavour of this Opposite Party for the value of Rs.29,405/-. This Opposite Party presented the cheque with its Banker for encasing the cheque. The said cheque returned unpaid for the reason “Funds Insufficient.” This Opposite Party further submits that the Complainant returned the compressor stating that he would buy a compressor with higher capacity. Believing the words of the Complainant this Opposite Party gave a rental compressor through Mr.Babu. The Complainant inspite of several requests till today has not sent the receipt of RDC. The Complainant is running the factory with standby compressor. When the Complainant insisted for the payment of dishonored cheque and rent for the standby compressor, the Complainant answered the same by filing this Complaint before the Hon’ble Forum. The intention of the Complainant is to use the stand by compressor without paying any amount. Infact by paying lesser price, Complainant is using a higher capacity compressor. The allegation that the product supplied suffers from inferior quality is not correct and the Complainant is put to strict proof of the same. As stated earlier the Complainant used the machine over and above its maximum capacity without any break that resulted in the present problem. Inspite of that the Opposite Parties technical team advice not to connect the pipe lines of both for injunction and tablet plant, the Complainant continues to use the compressor for entire unit. As per our advice the entire unit needs 100 CMF Air. Therefore 15 HP compressor will not fulfill the requirement of Complainant because the machine cannot work beyond its capacity. This Opposite Party has not denied or violated the terms of warranty as given in quotation for 12 months. This Opposite Party has given a stand by compressor on rental basis to run the unit. The problem arose not due to manufacturing defect, but due to wrong running of compressor by the Complainant beyond its capacity. This Opposite Party did not want to a create any problem for its customer. Infact this Opposite Party did not even initiate criminal proceedings against the Complainant on the ground that the Complainant happens to be a Doctor. This Opposite Party is still ready to rectify the defect of the Complainant pays the spare part and other charges. Infact the Complainant is manufacturing air compressor since 18 years and has supplied air compressor to many companies including TVS, Ashok Leyland etc, but except this Complainant this Opposite Party has not received any Complaint from any customers. Hence this Opposite Party prays to dismiss the Complaint with cost. 

 

 

4.POINTS FOR CONSIDERATION:

          1. Whether the Complainant is a Consumer?

          2. Whether there is deficiency in service on the part of the opposite parties?

          3. Whether the complaint is entitled to any relief? If so to what extent?

5.POINT NO : 1

          The Complainant carrying on business of Pharmaceutical & Allied product and he placed an order to buy a Air Compressor Unit along with accessories and accordingly he purchased the product under Ex.A2 invoice for a consideration of Rs.3,06,975/-  from the 2^nd Opposite Party for his business purposes. The 2nd Opposite Party argued that the Complainant is a private limited company and it has purchased the product for commercial purpose and therefore the Complainant cannot be a Consumer. Admittedly, the Complainant is a private limited company and he himself pleaded in the Complaint that he is carrying on Pharmaceutical business. Further, the Complainant issued the product purchased from the 2^nd Opposite Party only for his business and therefore to earn profit. Since, the Complainant carrying on business with the purchased product and earns profit through the product we hold that the Complainant is not a Consumer.

6. POINT NO:2

          Admittedly the Complainant placed order with the 2^nd Opposite Party to purchase Air Compressor and with accessories. The Complainant wanted 60 CFM 12 BAR 15 HP Air Compressor with accessories. Ex.A1 sales quotation issued by the 2^nd Opposite Party to the Complainant for 15 HP Air Compressor and also purchased the same under Ex.A2 on payment of Rs.3,06,975/- to the 2^nd Opposite Party.

          7. However the Complainant would contend that the supplied Air Compressor produces low power of Air Pressure and that was not rectified by their technicians even though attended and therefore he requests for the replacement of new product. The 2^nd Opposite Party replied that they advised the Complainant to purchase 20 HP or 30HP compressor and that advise was not taken by the Complainant and further they supplied only for the use in the manufacturing of injection unit and however the Complainant used for both making tablets and for injection and the 15 HP Compressor could not work with efficiency for both due to heavy load and hence the product relied by him has no defect.

          8. As advised by the 2^nd Opposite Party they issued Ex.B3 sales quotation dated 11.06.2012 for 20 HP Compressor and Ex.B4 sales quotation dated 15.06.2012 for 30 HP Compressor even before issuing Ex.A1 sale quotation for 15 HP compressors dated 24.08.2012. According to the 2^nd Opposite Party the Complainant has two units for making tablets and another for injection. This fact was not denied by the Complainant. Therefore, it is accepted that the 15 HP Compressor purchased by the Complainant has been used in the two units. When the 2^nd Opposite Party sufficiently supplied for injection unit alone, the Complainant used for both the units certainly the performance of the product will be poor. Therefore, the Complainant used the product for both the units are unfair on the part of the Complainant.

          9. Further, at request of the Complainant, the 2^nd Opposite Party  supplied a stand by compressor this fact was admitted by the Complainant in his proof affidavit that he was  given the stand by compressor for replacement of the earlier compressor. The Complainant also not returned the earlier compressor to the 2^nd Opposite Party according to him. Due to replacement of compressor, the Complainant is regularly carrying on his business and there was loss in his business. In view of the foregoing discussions, the Complainant had not purchased    20 HP or 30 HP compressor as advised by the 2^nd Opposite Party and standby compressor was also given to him and also as we already decided that the Complainant is not a Consumer, we hold that the Opposite Parties 1,2 have not committed any deficiency to the Complainant and further, it is hold that the Opposite Party 1, 2 have not committed Deficiency in Service.

10. POINT NO:2

          Since the Opposite Parties have not committed any Deficiency in Service and the Complaint is also is not a consumer, the Complaint is liable to be dismissed.

          In the result the Complaint is dismissed. No costs.                        

Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 27^th   day of January 2017.

 

MEMBER – II                                                               PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 24.08.2012                   Sales Quotation

Ex.A2 dated 08.10.2012                   Invoice

Ex.A3 dated 09.04.2012                   Report

Ex.A4 dated 12.06.2013                   Complainant’s lawyer’s Notice with Receipt &

                                                Ack Cards

 

Ex.A5 dated NIL                     Broachers

Ex.A6 dated 26.08.2013                   Letter issued to the Complainant with receipt

LIST OF DOCUMENTS FIELD BY THE 2nd OPPOSITE PARTY:    Ex.B1 dated NIL                        Brochure   Ex.B2 dated 11.06.2012             Sales Quotation
Ex.B3 dated 11.06.2012             Sales Quotation   Ex.B4 dated 15.06.2012             Sales Quotation   Ex.B5 dated 24.08.2012             Sales Quotation   Ex.B6 dated 27.08.2012             Purchase Order   Ex.B7 dated 09.11.2012             Report given by the Complainant   Ex.B8 dated 09.04.2012              Minutes of Meeting between Complainant and the                                                      2nd Opposite Party    Ex.B9 dated 12.04.2012             E-mail communications between the Complainant                                                      and 2nd Opposite Party        MEMBER – II                                                            PRESIDENT