The main legal point established is that even if goods are purchased for commercial purposes, if defects are noticed during the warranty period, the purchaser falls within the definition of 'consumer' and is entitled to compensation or replacement of the goods.

Dr. P.D. Shenoy, Member— The case of the complainant, in brief, is that the complainant ordered for a Nitrogen Generator with a capacity of 400NM3/hr whereas at no point of time after its installation and commissioning it reached a level of beyond 300NM3/hr. resulting in continuous loss to the purchaser

Pleadings of both the parties :

2.The complainant company, M/s. Jindal Drilling and Industries Ltd. had placed an order with opposite party No. 1, M/s. Indcon Engineers Pvt. Ltd. for the supply and commission of Nitrogen Generator which the opposite party No. 1 had undertaken to deliver by February, 1996 and to commission the same thereafter. The opposite party had also given warranty for the proper trouble free working. The value of the order was Rs. 73.424 lacs. As the equipment failed to give performance of the committed level, the complainant wrote several letters to O.P. No. 1. The complainant prayed that the opposite party may be directed to refund of Rs. 69,24,520 (Rupees sixty nine lacs twenty four thousand five hundred twenty only) which the opposite parties have received from the complainant along with interest @ 24% per annum.

3. The opposite parties in their reply have inter alia contended that the complaint is not maintainable inasmuch as the complainant is not a consumer within the meaning and definition of word ‘consumer’ under Section 2(1)(d) of the Consumer Protection Act, 1986; secondly, the plant was successfully commissioned and hence no grievance can be raised against the opposite parties. In addition they have stated that it is not a case where the opposite parties were bound to provide services as it is only the plant which was to be supplied and was to be erected and commissioned and nothing beyond this was to be done by the opposite parties. Therefore, the question of any kind of negligence, failure or deficiency in service does not arise at all.

Submissions made by the learned Counsel for the complainant

4. (a) The learned Counsel for the complainant, submitted that M/s. Indcon Engineers Pvt. Ltd. had deliberately supplied a machine producing lesser efficiency though the order was placed for a nitrogen generator with a capacity of 400 NM3/hr. Soon after installation, it generated only 240 NM3/hr. It is not in dispute that the full payment has been made and it is a clear case of deficiency in service and deception. Opposite party No. 1 agreed to provide guarantee for a period of 12 months from the date of commissioning for all types of manufacturing defects during the guarantee period. The plant was commissioned in September 1996 and from the day one assured production level was never reached i.e. 400 NM3/hr. The commissioning of the plant was done by the seller himself.

(b) A joint meeting between the buyer and seller was arranged on 30.1.1997 and the minutes read as follows :

“At present the V Belt of compressor is getting wearing out frequently. MVS informed that they will depute CPT representative for checking proper alignment and pulley.”

“Some pressure gauges got damaged —exceeds the limit—to be replaced.”

(c) Learned Counsel for the complainant submitted that it is apparent that plant was not working properly has been further elucidated in the letter of buyer dated 10.2.1997 requesting the seller to send their engineer Mr. Mohd. Afsar who did not come to carry out the repairs. On further correspondence, the engineer came but left the site without repairing the machine, in question.

(d) The seller has admitted the defects as can be seen from the extracts of the joint minutes which read as follows:

“Air compressor suction filter cover were opened by MVS to increase the flow but it is giving heavy noise. Also not good for life of the compressor.”

“The volume of gas to furnace has been increased to 300 NM3/hr. but it was not stable and the storage tank pressure dropped down so again the flow has brought down to 280 NM3/hr. Mr. Afsar of MVS informed that he will arrange flow rate demonstration later by their