The complainant's status as a consumer under the Consumer Protection Act, 1986, and the determination of deficiency in services rendered by the opponent were the central legal points established in the judgment.

ORDER :

1. Complainant established a new project in Aluminium Extrusion at MIDC Area, Ahmednagar. Complainant has placed orders to the opponent to supply key equipment such as Furnace Oil Burner, Billet Heater, Hot Air Generator for ageing oven, etc. along with required attachments, spares, etc. As per the mutual agreement, it has been decided that the supplier supposed to deliver those three units on 9.2.1998, 25.3.1998 and 14.4.1998 respectively. Complainant has also paid advance amounts in time.

2. As per the complainant, opponent delayed the delivery of these units by two months because of that further entire commissioning part with successful trials also got delayed. Because of the said delay, complainant suffered loss to the extent of Rs. 10,000 per day for the period of 120 days. It was contended by the complainant that the opponent failed to render the services and hence the complainant filed consumer complaint demanding Rs. 12,00,000 towards loss of production due to failure in services. Complainant prayed for 21% p.a. interest on the said amount. Complainant also prayed for Rs. 25,000 for mental harassment.

3. Opponent has resisted the claim by filing written version on record. Opponent has not disputed about the order placed by the complainant and about the advance. However, opponent has disputed that time was not of the essence for the supply of the said goods covered under the said quotation of the opponent. Some changes were to be made by the complainant. Since the complainant has not made changes within time, there was delay in work of commissioning the units. It was contended that when the complainant after completing his work called the opponent to tune up the components to match the increased production level, the opponent completed the said task through its technical staff from 7.8.1998 to 12.8.1998, 6 days and from 31.8.1998 to 5.9.1998-6 days. Opponent has contended that there was no deficiency in service and prayed for dismissal of the consumer complaint with costs. It was also contended that the complainant is not a consumer. On that ground also, consumer complaint may be dismissed.

4. From the rival contentions of the parties, from the record and scope of the complaint, following points arise for our determination and our findings thereon are given as below:

Point No. 1:

It is argued by the Advocate of the opponent that those orders were made by the complainant and purchased for commercial purpose. The orders were of 1998 and as per Section 2(i)(d) of the Consumer Protection Act, 1986, the person who buys the goods for commercial purpose is not a consumer. It was argued that in view of the said definition of consumer, the complainant is not a consumer.

5. Learned Advocate for the complainant has submitted that the complaint is for deficiency of services and not for the purchase of goods or deficiency in goods and hence definition of consumer in the year 1998 i.e. before amendment of 2003, the complainant is a consumer. After considering this submission and relevant provision, we find that there is much substance in the argument. Reason is that prior to amendment of 2003, the person who obtains goods for resale or any commercial purpose was excluded from the definition of the ‘Consumer’. However, as per the definition at the relevant time, person availing services for commercial purpose otherwise was not excluded from the definition of the ‘Consumer’.

6. Learned Advocate of the opponent has argued that the amendment is retrospective in effect and hence the complainant is not a consumer in view of the amendment of 2003