EAGLE ULTRA MARINE INDUSTRIES vs PARAMONT POLLUTION CONTROL (P) LTD

THE complainant in Original Complaint No. 11 of 1990 on the file of the State Commission, Gujarat at Ahmedabad is the appellant in this appeal. THE complainant (appellant) is a firm engaged in the business of manufacture of ultra marine blue in its factory at Ahmedabad. By an advertisement published by the said firm offers were invited from reputed and capable air pollution consultancy for designing, installing and commissioning air-pollution control system on turn-key basis in the complainant''s factory premises. THE opposite party (respondent-herein) sent an offer quoting a total costofRs.2,11,000/- for carrying out the work. THE said offer was accepted by the complainant firm and various payments were made by the said firm from time to time to the respondent. THE grievance with which the complainant approached the State Commission was that the air pollution control system installed by the opposite party was defective and it did not satisfy the standards required by the Pollution Control Board and on this basis it was prayed that the opposite party should be directed to refund the consideration paid consisting of the amount of Rs. 2,23,246/- along with 18 per cent interest.

A preliminary objection was raised by the opposite party before the State Commission that the contract between the parties was one for sale of goods for a "commercial purpose" and hence the complainant could not invoke the jurisdiction of the State Commission under the provisions of the Consumer Protection Act inasmuch as the complainant firm is not a "consumer" as defined in the Act. This contention was upheld by the State Commission by its impugned order dated May 9, 1991 wherein detailed reasons have been stated in support of its conclusion that the contract between the parties was in substance and essence one for supply and installation of machinery for a "commercial purpose'' and hence the complainant is not a "consumer" entitled to invoke the remedies provided under the Act. The correctness of the said conclusion recorded by the State Commission is under challenge in this appeal. In M/s. Star Paper Mills Ltd. v. M/s. Batlibai and Company I (1992) CPJ 195 (NC), we had occasion to consider an almost identical question as to whether the complainant in that case who had contracted with the respondent therein for the supply and installation of equipments for effectively reducing air pollution resulting from the manufacturing process carried on in a Paper Mill could be regarded as a "consumer". Dealing with the said question this Commission observed as follows :- "The contract entered into between the parties was a composite one for designing manufacturing and installing the equipments in the factory of the complainant''s Company for controlling and reducing air pollution. The factory was engaged in the manufacture of pulp and paper on a very large-scale and the contract for supply and installation of equipments had been entered into for the purpose of enabling the manufacturing process in the factory to be carried on without violating the norms relating to environmental pollution. The transaction of supply and installation of the equipments had thus a direct and close nexus with the commercial activity carried on by the petitioner company. The complaint of the petitioner is that there was a defect in the design, manufacture and installation of the machinery inasmuch as the performance parameters agreed upon namely, bringing down the suspended particulate matters value to less than 100 MG/MM3 on sustained basis in both the boilers had not been achieve. In other words, the complaint related to alleged defects in the goods supplied. Such a complaint can be filed before a Redressa! Forum constituted under the Act only by a ''consumer''. The petitioner company having procured the equipments for a ''commercial purpose'' cannot be regarded as a ''consumer'' as already decided by this Commission in its majority order in M/s. Synco Textiles Pvt. Ltd. v. Greaves Cotton and Company Ltd. (F.A. No. 22 of 1989) I (1991) CPJ 499 (NC) and it is not competent to maintain the complaint under the Act. The Original Petition has to fail on this short ground."

The dictum laid down in the said decision applies to govern the present case as well, as we see no reasons to deviate from the views expressed by this Commission in that judgment, Accordingly we hold that the State Commission was perfectly right in upholding the preliminary objection raised by the respondent-herein that the complainant (appellant) is riot a "consumer" and hence the complaint filed by it could not be maintained under the Consumer Protection Act.

THE appeal accordingly fails and is dismissed. THE appellant shall pay Rs. 1,500/- as costs to the respondent within one month from today. Appeal dismissed.