BAWA INDUSTRIES vs VIPAL OIL EXTRACTION PVT. LTD.

IT is an appeal against the order dated 9.11.1999 of the District Consumer Disputes Redressal Forum, Ferozepur (hereinafter called the District Forum).

BRIEFLY stated the facts are that the respondent-complainant (hereinafter called the complainant) had purchased two diesel Generator Sets of 20 K.V. and 7 K.V. for Rs. 68,000/- and Rs. 34,500/- on 16.8.1998 and 22.8.1998 respectively at Abohar. The complainant had cleared the payment of Rs. 68,000/- of 20 K.V. generator set through Bank. It was mentioned in the complaint that soon after the delivery the generator sets started giving problems. The complainant had intimated the appellant-opposite party (hereinafter called the opposite party), vide letter dated 28.8.1998 that both the generator sets supplied by the opposite party were lying un-functional and had requested that some Engineer be sent to remove the defects as assured by the opposite party at the time of selling the same. On receipt of the letter of the complainant, two Engineers/Mechanics of the opposite party had visited the complainant at Abohar and had checked the generator sets. They had told the complainant that the crank shaft of 7 K.V. generator set was broken and its alternator used to heat up. He was further told by them that a part of engine of 20 K.V. set was broken and the alternator was defective. As the generator sets could not be repaired there, these were to be taken to Phagwara. The complainant was told that the generator sets were being taken back to Phagwara for replacement. The complainant waited for about 10/12 days but when the opposite party did not take any action, he had again written a letter dated 19.9.1998 to the opposite party and had requested that generator sets be replaced/got made functional at the earliest as the whole work of the complainant had come to stand still. Again when no service was provided by the opposite party, the complainant had talked on the telephone with the opposite party for making generator sets functional. He had again written a letter on 26.10.1998 making complaints regarding the generator sets to the opposite party but all in vain. It was further stated in the complaint that the selling of defective generator sets against money consideration, with a view to defraud the innocent consumer amounted to unfair trade practice and as per ISI specifications, the engine of 30 H.P. was to be supplied whereas in the present case for 20 K.V. generator set only 24 H.P. engine had been supplied. There was no mention of ISI mark on the generator sets. A prayer was made in the complaint before the District Forum that the opposite party be directed to refund the amount of Rs. 68,000/- along with interest at the rate of 24% per annum and to pay Rs. 50,000/- as compensation and harassment and loss of business and Rs. 10,000/- as costs of the litigation to the complainant. Opposite party filed written statement raising certain preliminary objections saying that the complaint was false, frivolous and vexatious to the knowledge of the opposite party and was filed to pressurise the opposite party to withdraw its previously instituted suit in the Civil Court at Phagwara. The present complaint, according to the opposite party, was a counter-blast. No cause of action had arisen to the complainant within the jurisdiction of the District Forum as the complainant had purchased the generator sets in question at Phagwara and had taken the delivery at Phagwara itself and as such, the District Forum had no jurisdiction to entertain and decide the complaint. The other allegations made in the complaint were also denied by the opposite party. It was stated that UPC receipts had been fabricated by the complainant and had been made ante-date after having acquired the knowledge of the institution of civil suit by the opposite party against the complainant at Phagwara. It was then stated in the reply that the opposite party had never sold any ISI mark generator set nor those were of ISI specifications nor the opposite party ever represented to the complainant regarding such specifications. The generator set of 20 K.V. had engine of 26 H.P. It was then prayed that the complaint be dismissed.

After hearing the Counsel for the parties and after the perusal of the record, the District Forum allowed the complaint directing the opposite party to repair the generator sets of the complainant by replacing defective parts and to put these generator sets in working condition. The opposite party was further directed to pay Rs. 2,000/- as compensation for harassment and Rs. 1,000/- as costs of litigation to the complainant.

HENCE this appeal. None is present for the parties. We have gone through the detailed order of the District Forum as well as the record of the case. We do not find any infirmity in the order of the District Forum. There is no denying the fact that there was a guarantee of one year of the generator sets from the date of its purchase. The generator sets were purchased on 16.8.1998 and 22.8.1998 and the complaint had been filed on 30.3.1999 within one year of guarantee. It is settled law that even if the goods are purchased for commercial purpose and if there was a guarantee, then the purchaser becomes a consumer for the service to be rendered by the manufacturer/supplier during the guarantee period. As such, the District Forum has rightly held that the complainant was a consumer of the opposite party as defined under Section 2(1)(d) of the Consumer Protection Act, 1986.

DISTRICT Forum has also rightly held that it had the territorial jurisdiction to try and decide the complaint. The generator sets in question were booked for transportation to Abohar by the opposite party. If these were booked by the complainant, then there should be signatures of the complainant on the bill in column "Customer''s Signatures" but this column has been left blank. Only the signatures of the partner of the opposite party is there on the bills from which it is made clear that the opposite party had booked generator sets for Abohar and the same were delivered to the complainant at Abohar. Billeties Ex. R-4 and Ex. R-6 also do not bear the signatures of the complainant from which it can safely be inferred that the generator sets were booked with the Transport Company by the opposite party and not by the complainant. In para No. 6 of the complaint it has been stated that on receipt of the letter of the complainant two Engineers/Mechanics of the opposite party had visited the premises of the complainant at Abohar and had checked the generator sets. The opposite party has not denied the facts specifically that the generator sets were not installed at Abohar by the Engineer/Mechanic of the opposite party. In para No. 9 of the complaint, it has been stated that the complainant had written a letter dated 28.8.1998 to the opposite party to remove the defect in the generator sets and thereafter two Mechanics of the opposite party had visited the premises of the complainant and that they had made efforts to remove the defects but they could not repair the generator sets. This assertion made in the complaint has not been denied by the opposite party in its written reply. It is further mentioned in the complaint that at the time of selling the generator sets to the complainant, opposite party had assured that the generator sets were of ISI mark specifications and were covered under full guarantee of one year. Though in para No. 13 of the written statement, the opposite party had denied that it had never sold any ISI mark generator sets to the complainant and had never represented to the complainant that the generator sets were of ISI mark but in the pamphlet Ex. C-3, it has been clearly advertised that the generator sets were of ISI mark and there was full guarantee of one year for 3 to 125 K.W. generators. It also remains undisputed that this pamphlet was of the opposite party. There is, thus, sufficient evidence on the record showing that the opposite party had supplied/installed the generator sets at Abohar and it had also received the payment of the first generator set at Abohar. Shri Surinder Kumar Bansal, Director of the complainant firm was fully authorized to file the complaint before the District Forum against the opposite party vide resolution Ex. R-17. The complaint had been filed by the complainant for the repair of generator sets, which were purchased from the opposite party. The complainant was also ready to make the payment of the second generator set before the District Forum if the opposite party was ready to replace or repair the generator sets. The District Forum has, thus, rightly held that it could not be presumed that the complaint was a counter-blast to the civil suit filed by the opposite party with regard to the payment of the second generator set by the complainant. In view of our discussion made above, we do not find any fault with the order of the District Forum. This appeal is, thus, dismissed; however, without any order as to costs. Appeal dismissed.