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KERALA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, THIRUVANANTHAPURAM
Hon’ble Mr. Justice L. Manoharan,
President & Prof. K. Madhuri Latha, Member
HINDUSTAN LATEX LTD.—Complainant
versus
NEOPLAST ENGINEERING PVT. LTD.—Opposite Party
O.P. No. 76 of 1997—Decided on 16.3.1999
Counsel for the Parties :
For the Complainant :Mr. K.S. Sukumaran Nair, Advocate.
For the Opposite Party :Mrs. N. Padmini, Advocate.
Headnote:(i) Consumer Protection Act, 1986 - Section 24-A - Erection and commissioning of High Speed Fluidizing mixer machine on 31-12-1994 - Some systems of machine were alleged defective - Notice dated 22-8-1997 demanding return of amount when defects were not removed Limitation - Initial burden is on complainant to show that complaint was within limitation - Defects were recurring and as such cause of action could not be said arose only on date of work order or date of installation Complaint was within two years of last discussion for rectification and it was within limitation. (Para 5)
(ii) Consumer Protection Act 1986 - Section 2 - Complaint regarding defective systems in High Speed Fluidizing mixer machine sup plied by Opp. party - Claim for refund of price of machine - Resisted on plea that purchase Of machinery was for commercial purpose - Trans action included service of erection and commissioning and carried a guarantee period - Complainant has to be treated as consumer in relation to service under warranty. (Para 10)
(iii) Consumer Protection Act, 1886 - Sections 2 and 14 - Complaint regarding defects in machine supplied by opp. party - Claim for refund of price of machine - Opp. party had filed recovery suit against complainant - Maintainability of complaint - Complaint was regarding unfair trade practice and deficiency in service - Cause of action were not identical - Suit was instituted by opp. party after acceptance of notice from complainant - Complaint was not liable to be stayed or held not maintainable. (Para 8)
(iv) Consumer Protection Act, 1986 - Sections 2 and 14 - Supply of High Speed Fluidizing mixer machine - Systems in the machine found defective. - Machine did not perform as was required as per work order Machine worked only in the manual mode and thus goods supplied was not of standard quality - Unfair trade practice - Goods supplied was not consistent with work order and not consistent with representation made by opp. party - Opp. party indulged in unfair trade practice and complainant was entitled to return of cost of machine. (Paras 11 to 14)
Result : Complaint allowed with cost Rs. 5.000/-.
IMPORTANT POINT
Even if purchase of machinery is for commercial purpose, if there is guarantee or warranty the complainant has to be treated as consumer in relation to service under warranty.
Mr. Justice L. Manoharan, President—Complaint for direction to refund the amount collected from the complainant towards cost of the machine supplied by the opposite party. The allegations in the complaint are :
2. The complainant is a Government of India Company incorporated under the provisions of the Companies Act, 1956. This Company is represented by its Company Secretary who is authorised and empowered to represent the Company. The Company deals with Proplylactic Contraceptive and Health Care Products made from Latex etc. The complainant invited quotation for supply, erection and commissioning of High Speed Fluidizing Mixer and the opposite party submitted quotation on 18.5.1992. After negotiation revised the offer and placed an order to the opposite party for supply, erection and commissioning of High Speed Fluidizing Mixer for a total consideration of Rs. 13,20,738.72 and including the price of packing charges, Excise duty, erection and commissioning charges etc. Erection and commissioning had to be done within 14 weeks from the date of acceptance of the work order. The work order was accepted on 4th July, 1993 and the equipments had to be guaranteed for 12 months from the date of erection and commissioning. The opposite party supplied the machine at the site of the complainant on 28.3.1994 and 29.3.1994, and the machine was put into operation in manual mode from 31.12.1994. As the PVC resin conveying system and DOP transferring system was not working properly, after several rounds of discussion by the complainant with the opposite party decision was taken to send the PVC resin hopper and DOP piping to the opposite party for repair and modification. Accordingly that was despatched on 19.6.1995. Though the machine was received from the complainant on 6.12.1995 the opposite party sent their engineer for installation. Inspite of the efforts of the engineers no progress could be achieved. Later on 5.1.1996 a meeting was convened to solve the problems wherein the complainant informed the opposite party that the error in the material conveying system is between + 2.56% to — 3.24% against the tolerance of + 1% . Inspite of the efforts of the engineers the defects could not be rectified. The complainant alleges that on 6.2.1997 after repeated requests two technicians of the opposite party conducted as many as 95 trials. Inspite of that they noticed, it could not be improved. They left assuring that they would return with necessary accessories to complete the work. Complainant eccuses that the opposite party committed breach as the machine did not perform as is required. The PVC and DOP system could not be used; thereby the complainant is incurring loss. The opposite party neither is inclined to replace the machine nor reimburse the loss incurred by the complainant. The opposite party is guilty of unfair trade practice and also deficiency of service. Complainant sent notice dated 22.8.1997 to the opposite party demanding return of the amount received by them as cost of the defective machine. For this the opposite party sent a reply. The complainant contended that since the opposite party is guilty of unfair trade practice as well as deficiency of service direction has to be issued to the opposite party to return the cost of the machine received by them from the complainant.
3. The opposite party in their vision contended that the complaint is not maintainable as the Secretary is not competent to institute the complaint. The complaint is barred by limitation. This Commission has no jurisdiction to entertain this complaint, in view of the institution of the Summary Suit No. 4930/97 by the opposite party against the complainant in Ahmedabad City Civil Court on 15.10.1997 for recovery of a sum of Rs. 6,58,738/- with 24% interest. Summons has already been served on the complainant. The subject-matter in the said suit and in the complaint being the same the present complaint is required to be stayed till the final disposal of the sa
