GREEN FIELD DIARY MEAT And MILK PRODUCTS vs Muthuramalingam

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

THE complainant is running a milk chilling plant at Ambarapalayam near Pollachi. THE plant has been errected by M/s. Blue Star Engineering Company, madurai. THE opposite party came to the complainant and convinced him that there should be a Generator for chilling plant in view of frequent power cuts. It was also represented that the opposite party was one of the dealers of M/s. Kirloskar Engineering Company and he can supply a brand new Generator. He also offered 5% commission out of the 10 dealers commission due to the opposite party. THE complainant therefore placed an order for the supply of Kirloskar Generator of 30 KVA under Pro forma Invoice No. 965 dated 12.7.91. A sum of Rs. 1,40,025/- was paid by the complainant. THE Generator was errected at the complainant''s chilling plant at Ambarapalayam. When the Generator started working, it developed all sorts of troubles from the very beginning, such as leaking of grease and oil, eruption of fire etc. THE opposite party mechanic could not rectify the mistake. THE complainant found that the Generator was not a new one and that the oppsoite party has supplied a second hand Generator. It called upon the opposite party to replace the Generator but the opposite party failed to do so. It is also alleged that the opposite party instead of supplying Air Cooled Generator only supplied water cooled Generator. THE opposite party is also alleged to have collected a sum of Rs. 15,000/- as advance. On account of supply of defective Generator, the complainant has been out to much loss. He is not be able to get the desired quantity of milk chilled due to the defective working of the Generator. THE complainant sustained heavy financial loss. Hence this complaint. It therefore, claimed for replacement of the Generator supplied by the opposite party with a new one or to return the price of Rs. 1,40,025/- and the advance of Rs. 15,000/-, to pay compensation in the sum of Rs. 2 lakhs and another sum of Rs. 10,000/- towards expenses. The complaint is resisted by the opposite party. It is contended that there was no agreement to supply a brand new Generator. According to the opposite party, the complainant discussed with him about the nature, durability, stability, longvity and the rates of several engines, both new ones and second hand ones. The complainant was satisfied with the second hand engine, in which it was quoted about Rs. 30,000/- lesser than the cost of the new engine. Only after satisfying itself, the complainant accepted the second hand engine with brand new accessories. According to the opposite party the engine was mis-handled by the men of the complainant, who had no training. There was no default on the part of the opposite party. He also denied the receipt of Rs. 15,000/- as advance. The said payment was made for a particular job for manufacture of bottle caps and the job was executed. There was a balance of Rs. 5,000/- which was returned to the complainant by D.D. dt. 13.9.91. It is further pointed out that the opposite party has filed a suit against the complainant in O.S. 1940/91 on the file of the District Munsiff of Madurai and an interim injunction has been granted in IA. 1159/91 against the complainant restraining it from operating and using the Generator. As the question of use of the Generator is subjudiced. This complaint is not maintainable.

Exh. A1 to A6 and B1 to B14 are marked by consent. Proof affidavits are filed. No oral evidence has been let in. The first question which arises for consideration is whether the complainant is a consumer entitled to maintain this complaint.

THE complainant is a firm represented by its Managing Partner. It is carrying on business in Dairy, Meat and Milk products. For the purpose of this business, the complainant has installed a Milk Chilling plant in the Factory premises at Ambarapalayam. In view of frequent power cuts, it has been necessary to install a Generator and the complainant has therefore entered into an agreement with opposite party for the supply of a Kirloskar Generator on 30 KVA capacity. THE case of the complainant is that the agreement was for the supply of a brand new Generator while the opposite party has in fact supplied a second hand Generator. It is further alleged that instead of supplying a Air Cooled Generator, the opposite party has supplied a Water Cooled Generator. THE case of the complainant is therefore that the opposite party has supplied a defective Generator within the meaning of Sec. 2(1)(f) of the Consumer Protection Act. THE complainant therefore claims to be a consumer within the meaning of Sec. 2(1)(d)(i) as purchaser of this Generator for consideration. But Sec. 2(1)(d)(i) will apply when the goods are purchased for non-commercial purpose. This Generator has admittedly been purchased for working the milk chilling plant in the Complainant''s Diary. THEre can therefore be no doubt that the purchase of this Generator is for a commercial purpose. THE Learned Counsel for the complainant haltingly argued that the Generator has been purchased for self-employment. THE contention has no substance. Intact the complainant is a partnership firm and is represented by its Managing Partner, the business of the Partnership Firm is the supply of Diary, Meat and Milk Products. It is admitted before us that the Milk chilling plant is intended to chill 2,000 litres milk per day. This is therefore a large profit making ventured and by no stretch of imagination can it be called to be a self-employment purpose. THE complainant is not therefore a consumer within the meaning of Sec. 2(1)(d)(i) of the Consumer Protection Act, as the Generator has been purchased for commercial purpose. In this view of the ma tier it is needless to go into the other questions raised. In the result the complaint fails and is dismissed but without costs. Complaint dismissed.