DUNLOP INDIA LIMITED vs KASHI KANT MISHRA

THIS is an appeal against the judgment and order passed by District Consumer Forum, Allahabad, on 15.7.1995 in Complaint Case No. 244 of 1994.

FACTS of the case, stated in brief, are as follows : The respondent Mr. Kashi Kant Mishra had worked for 15 years in different Companies after passing from IIT, Kanpur. He decided to instal an old tyres retreading unit and contacted Dunlop India Ltd., the appellant-opposite party No. 1. Dunlop India Ltd. had an office at Lucknow and opposite party No. 2, the Regional Manager, Lucknow entered into an agreement with the respondent on behalf of Dunlop India Ltd. It was agreed that the machines and raw material shall be purchased from Dunlop India Ltd. A sum of Rs. 24,000/- was deposited as advance money and loan of Rs. 12,44,000/- was taken by the respondent from UPFC at the interest rate of 15% per annum. The complainant established his unit in Karchhana Tehsil and got the same registered at Allahabad. The complainant had established this unit for his self-employment. The unit was installed by the technicians of opposite parties but the machinery never worked satisfactorily from the very beginning on account of defective designing and workmanship. After complaining for five months, the opposite party-appellant, did not take any pains to repair the machines. Thereafter the engineers and technicians were deputed by Dunlop India Ltd. who came to the unit on 29.3.1992. The electronic circuit known as PCS was taken back by the technical staff of Dunlop for repairs. It is alleged that the same has not been replaced so far and the complainant had to get the same installed through the local mechanics. Thus the complainant suffered loss. Compressor worth Rs. 32,000/- was defective from the very beginning and ultimately on 6.7.1992 it stopped working. The complainant had to purchase another compressor at a cost of Rs. 16,000/- and spent Rs. 24,000/- towards repairs of the machines and installation of the same. The other parts of the machinery namely motor, electronic chamber etc. never worked satisfactorily and they were got repaired by the complainant by spending another Rs. 15,000/-. The unit never gave production as indicated by Dunlop India Ltd. Complainant has given details of the losses which he has to bear and he also spent considerable amount towards conveyance and procuring material for which he has claimed Rs. 4.97 lakhs as compensation. Opposite party Nos. (1) and (2) in their joint WS alleged that an agreement was entered between the parties on 20.6.1991 through which all the material was to be purchased by the complainant from the opposite parties alongwith mechanical and technical assistance. It was also agreed that the equipment etc. shall be purchased by the complainant in the name of opposite parties. The installation of the unit on 6.3.1992 by the opposite parties is also admitted. Complainant signed the papers after satisfactory installation of the unit.

The machinery developed defects between March, 1992 and July, 1992. It has further been alleged that the complainant purchased the machinery for commercial purposes, hence the case cannot be tried by the District Consumer Forum.

AFTER hearing the learned Counsels for the parties and perusing the records, the learned District Consumer Forum came to the conclusion that the machines supplied by the appellant-opposite parties were defective and ordered for deposit of Rs. 2,73,000/- in the District Forum and if the amount is not deposited within two months, then interest @ 15% per annum will be payable. Towards proceedings, cost of Rs. 500/- was also awarded. Aggrieved against this order, the appellant has come up with this appeal and has challenged the correctness of the order by the District Consumer Forum.

WE have heard learned Counsel for the opposite parties. None was present from the side of appellant. A perusal of the judgment and order goes to show that the complainant had established a production unit for retreading of old tyres and the machinery was supplied by the appellant M/s. Dunlop India Ltd. According to the complainant the machinery never worked satisfactorily and developed a number of defects from time-to-time. The evidence also goes to show that the defects could not be removed by the appellant and the complainant had to spend money from his own pocket to put the machines in running condition. Allegation of the appellants that the technical assistance was to the complainant could not be accepted because if the technical assistance would have been provided, there would have been no reason for the complainant to acquire services of the local technicians in getting the machines repaired and put them in running condition. Thus we find on perusal of the evidence on record that the decision arrived at by the District Forum is based on the evidences put on record and is correct and needs no interference at our level. In the grounds of appeal, a plea has been taken that the complainant had established his unit for commercial purposes as he has invested Rs. 20 lakhs in establishing the unit. No doubt it is correct that complainant had established old tyres retreading unit but it does not mean that the same is a commercial venture undertaken by the complainant. The complainant has mentioned that he established this unit for earning his livelihood. If the machines for the unit are costly and have to be purchased from loan, then it does not mean that the unit, which has established by the complainant, is a commercial enterprise. Even if one goes by the prices, for the machine costing Rs. 1.5 lakh, one has to take financial assistance if he is not possession of that much money from the Bank or any other financial institution to instal the machine. Borrowing of loan from UPFC or any other agency does not mean that the unit which has been established is a commercial enterprise. Thus from the facts put on records, we do not find anything which may indicate that the unit, which was established by the complainant for retreading of old types, in any way was a commercial activity. It was merely an activity by the complainant for his self-employment so that the complainant may earn his livelihood. Thus the appeal is liable to be dismissed. Order The appeal is dismissed and the judgment and order of the District Consumer Forum, Allahabad, are confirmed. Let compliance be made within two months. Let copies be issued as per rules to all concerned. Appeal dismissed.