DIESEL MACHINERY WORKS vs NEW BHARAT ENGINEERING WORKS PVT. LTD

THIS is a complaint under Section 17 read with Section 12 of the Consumer Protection Act.

THE complainant is a partnership Firm with Mr. N. Shanmugam and Mr. A.S. Raja Venkata Subramaniam as Partners and is carrying on business under the name and style ''Diesel Machinery Works''. According to the complainant this is a Self-Employment Scheme for which a loan of Rs.17,53,800/-has been borrowed from the 3rd Opposite Party. THE complainant purchased an Energy Horizontal Boring 3 Axis DRO System for Extended Cross Slide BFT 80 Boring Machine from the 1st Opposite Party through its Agent the 2nd Opposite Party for Rs.17,64,412.63. Due to wrong foundation drawing there was delay of 3 months in the delivery of the machine. THE agreement was to supply the machine in December 1991, but machine was commissioned only on 30.8.92. THE complainant found certain major faults in the machineries and could not operate it successfully. This is due to manufacturing defects and poor quality and standard. THE machineries were highly defective and incapable of being put into operation. THE Opposite Parties have failed to rectify the defects by replacing the defective components. Hence this complaint for replacing the defective components, Rs.5,34,216.90 towards interest, Rs.3,30,895.90 towards depreciation of the machineries, Rs.23,000/- towards the reconstruction of the foundation plant, Rs.5,00,000/- towards loss of profit, Rs.10,000/- towards litigation expenses. The 1st Opposite Party in its counter has denied the claim. It is pointed out that the complainant has purchased this machinery for commercial purpose and it is not, therefore, a Consumer. It is denied that there was delay because of the wrong foundation plan. The foundation plan was duly corrected and was duly compensated from the 2nd Opposite Party by payment of Rs. 70,340/-. The delivery time was subject to the availability of raw materials and spares. The 1st Opposite Party is not liable for delay or failure in completion of the orders in time. It is contended that the complainant''s Partner Mr. A.S. Raja Venkata Subramaniam visited the factory at Jam Nagar on 2.3.1992 and various tests were conducted in his presence. After due verification and functioning of the machine by the Partner of the complainant firm the machine was dispatched from the factory on 30.3.92 and the receipt of the machine was acknowledged by the complainant by its letter dated 5.4.92. According to the 1st Opposite Party the delay in the commissioning of the machine was due only to the non-availability of the required electricity power. It is denied that there was any manufacturing defect or defective workmanship. All the allegations of manufacturing defects are denied.

The 2nd Opposite Party has filed a similar counter. The 3rd Opposite Party has also contended that as the machinery has been purchased by the complainant for commercial purpose it is not a consumer and the complaint is not maintainable. The 3rd Opposite Party claims to be the advance of the complainant Rs.14,37,500/ - as term loan and Rs.3,16,300/- as subsidy bridge loan, and the Principal outstanding is Rs.14,37,500/- in respect of the term loan and Rs.2,92,200/- in respect of the subsidy bridge loan. Accumulated interest comes to Rs.3,36,178.90 in respect of term loan and Rs.64,283.30 in respect of subsidy bridge loan. It is pointed out by the 3rd Opposite Party that the complainant has made any claim against it.

EXHIBITS A1 to A37 and B1 to B37 are marked by consent. Proof Affidavits are filed. The preliminary point as to whether the complainant is a Consumer and is entitled to maintain this complaint was taken up for hearing

THE complainant is a firm of Partnership consisting of Mr. N. Shanmugam and Mr. A.S. Raja Venkata Subramaniam, both of them are Engineering Graduates. THEy have started this diesel machinery works for manufacturing diesel machinery parts and do other job works. THE complainant has purchased one Energy Horizontal Boring 3 Axis DRO System for Extended Cross Slide BFT 80 Boring Machine from the 1st Opposite Party manufacturer through the 2nd Opposite Party agent for Rs.17,64,412.63. It is not disputed and it cannot be disputed that the purchase of this sophisticated machinery for a huge sum of over Rs.l71akhs is for a commercial purpose. THE complainant as purchaser of this machinery for commercial purpose is not a consumer within the meaning of Sec. 2(1)(d)(i) of the Consumer Protection Act. But the case of the complainant is that this is a "Self-Employment Scheme" started by two Engineering Graduates with a loan of over Rs.17 lakhs advanced by the Third Opposite Party, and therefore the complainant comes within the ambit of explanation to Section 2(1)(d)(i) of the Consumer Protection Act. Under this explanation "Commercial Purpose" does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment. This is not the case before us. THEse two Engineering Graduates have started a large profit making venture with investment of over Rs.17 lakhs. It is admitted that not less than 6 workmen are employed in this factory. This is, therefore, a case not of self-employment, but a big profit making concern. THE complainant does not therefore, come within the ambit of the explanation. It is not, therefore, a consumer within the meaning of Sec. 2(1)(d)(i) of the Consumer Protection Act as this machinery has been purchased for commercial purpose and the complaint is not maintainable. In the result, the complaint, therefore, fails and is dismissed. No costs. Complaint dismissed.