KUSUMAM HOTELS PVT. LTD. vs NEYCER INDIA LTD

- THIS complaint petition has been filed by M/s. Kusumam Hotels (P) Ltd., Calicut seeking the relief of recovery of a sum of Rs. 14,15,322.96 from the Opp. Party - M/s. Neycer India Ltd., Pondicherry on the allegation that the glazed tiles manufactured and supplied to the complainant by the Opp. Party as per Invoices dated 2.3.1988, 12.3.1988 and 6.4.1988 were defective inasmuch as they developed black spots shortly after they were fixed in the V.I.P. suites in the complainant''s hotel at Guruvayoor and hence the complainant is entitled to get a refund of the cost of the tiles together with transport charges and other incidental charges, reimbursement of labour charges paid for laying the tiles, reimbursement of labour charges for removing the existing tiles for purpose of relaying new tiles, reimbursement of cost of materials like cement, sand etc. required for relaying tiles, compensation for the difference in the cost of new tiles due to escalation in prices, compensation for loss of income during the period of three months required for laying new tiles, compensation for loss of goodwill of the hotel during the period of three months for which business will have to be shut down in order to lay new tiles and also compensation for the penal interest payable to the Bank on loans availed by the complainant for his business. The total compensation claimed under all the aforesaid heads aggregate to the figure of Rs. 14 lakhs and odd mentioned above.

THE case of the complainant is that though the tiles were purchased in March-April, 1988, they were actually fixed in the floor of the hotel only during the period March-May, 1989 and thereafter the hotel was inaugurated on 2.9.1989. Subsequently, during the months of May, June, 1990, black spots which exuded a dark sticky fluid "were noticed on many of the tiles fixed in the V.I.P. suites and verandahs and these spots which were looking very ugly on the light coloured tiles started spreading to more and more tiles in course of time. Though the matter was immediately brought to the notice of the Opp. Party, there was no satisfactory response from the company and hence the complainant was compelled to approach this Commission with this complaint for the resressal of his grievance. Along with the complaint petition, the complainant has produced copies of the invoices and the correspondence that passed between the complainant and the Opp. Party after the alleged defects in the tiles were noticed. The Opp. Party has filed a detailed objection statement where it has raised a preliminary objection to the maintainability of the complaint by contending that the complainant is not a ''consumer'' inasmuch as the purchase of the tiles in question was for a "commercial purpose" namely for their being fixed on the floors in the V.I.P. suites of the complainant''s hotel at Guruvayoor. It is submitted by the Opp. Party that there is a close and direct nexus between the purpose of purchase of the tiles and the commercial activity of running the hotel for making profits on large scale carried out by the complainant. Another objection taken by the Opp. Party is that since the purchase of the tiles was effected during the period ranging from 2.3.1988 to 6.4.1988, the present complaint which was filed only in March, 1992 is clearly barred by limitation. A further plea taken by the Opp. Party is that the dispute raised by the complainant involves determination of complicated questions of fact for which elaborate evidence will have to be led by the parties and hence the proper Forum for adjudication of the dispute is only the Civil Court.

On the merits the Opp. Party has submitted that the tiles which were purchased by the complainant were not of first quality but were of ''commercial quality'' and since it is admitted in the complaint petition that they were fixed to the floor only after a period of one year from the date of purchase, the tiles might have got spoiled by being exposed to the vagaries of nature and by reason of their not being properly stored and there was also the possibility that they were improperly fixed or mishanded which might have been responsible for the damage. The Opp. Party has denied that there was any manufacturing defect in the tiles supplied by it and that the problem of the complainant is a self-created one either because of improper storage or improper handling or improper laying of the tiles without using proper materials of good quality and without preparing the bed properly.

WE do not think it necessary to investigate into the truth or otherwise of the respective contentions put forward by the parties on the merits since in our opinion the objection raised by the Opp. Party that the complainant is not a ''consumer'' entitled to seek redressal under the Consumer Protection Act has to be upheld. Admittedly the tiles were purchased by the complainant for being laid in the floors of the V.I.P. rooms etc. of a hotel which the company established in Guruvayoor. The said transaction of purchase had a close nexus with the large scale commercial activity of running the hotel and in such circumstances the purchase of the tiles must be held to have been made for a commercial purpose. The complainant cannot therefore be regarded as a ''consumer'' entitled to seek any relief under the provisions of the Consumer Protection Act. WE uphold the said preliminary objection raised by the Opp. Party and dismiss this Original Petition on the ground that the complainant is not a consumer entitled to maintain a complaint petition under the Act. WE make it clear that the dismissal of this petition will not in any way operate to the prejudice of the complainant in the matter of his seeking his remedies before any other Forum including the ordinary Civil Court. WE direct the parties to bear their respective costs. Original petition dismissed.