NCL INDUSTRIES LTD. vs KIRLOSKAR OIL ENGINE LTD.

IN this Original Petition, NCL Industries Ltd., Hyderabad, the Complainant have alleged that they were supplied with a defective power generating system run on diesel by M/s. Kirloskar Oil Engine Ltd. and, therefore, have claimed compensation of I Rs. 183.86 lakhs for repairs and losses due to stoppage and fall in production, for which purpose they had bought this system, from the opposite Party.

THE facts of the case are that Kirloskar Oil Engine Ltd. the Opposite Party offered their product the Kirloskar Pielstic Power Plant, vide their letter of 8th August, 1989 wherein they also enclosed a questionaire for load study and agreed to have a discussion with the Complainant. Based on the information given in the brochure supplied by the Opposite Party and also taking into account their reputation, meetings were held between the Complainant and the Opposite Party from 29th September to 3rd October, 1989, the minutes of which were also drawn. In the minutes the agreed price for the machinery, installation charges and other terms of payment were also specified. The Complainant has mentioned that in point No. 6 of these minutes it was noted that, "Kirloskar has agreed to extend the warranty cover for 5000 operating or 12 months, other terms remaining the same as in the offer". The Complainant there-placed an order for commissioning of a Kirloskar Pielstic 6 PAGL 280 Engine developing 2400 HP at 1000 RPM along with an Alternator 2100 EVA 6.6. KV, 3 Phase, 4 Wire 50 HZ, 1000 RPM and other system auxiliaries. This order was placed on 5.10.1989. The system was commissioned on 9.4.1990. It is the case of the Complainant that from day one the DG set started causing problems leading to enormous n account of fall in production and amounts spent towards repairs. Thereupon, the Com-ant Company had been keeping the opposite Party informed of these defects, that their Engineers have been visiting the site and inspecting the system, rectifying the defects, times even replacing the defective parts. During all this period, when these repairs and replacements were being made by the opposite Party, the Engineers of the Complaint Company realised that there was some-basically wrong with the DG sets supplied by he Opposite Party and suggested guarantee for the crankshaft be obtained from them. These problems continued for a year and could not be set right. The Complainant kept on expressing his apprehension that there is some major problem in the set supplied implying that it was a defective machinery. Having failed to get its system right, the Complainant now has come up with the request that crankshaft and other related parts supplied by the Opposite Party to the Complainant be declared defective, as they were giving trouble right from day one, and further that Opposite Party be held liable for the deficiency in service and consequently pay a sum of Rs. 183.86 lakhs for repairs and losses. In their reply the Opposite Party has stated that the complaint, which relates to alleged defects in the diesel generating set, is barred by limitation as it has been filed before this Commission beyond two years from the date on which the cause of action had arisen. On merits, the Opposite Party has stated that the Complainant has alleged a basic defect in the system and not really a deficiency in service as such. Therefore, this complaint is basically in the nature of supply of defective goods, which admittedly was purchased for a commercial purpose, and hence was not within the purview of the Consumer Protection Act. They have gone on to say that for proper opera ting of the generating set, certain basic parameters, technical and non-technical have to be fulfilled by the user of the generating set, the Complainant herein and which involved a number of instructions as mentioned in the brochure and told to the Complainant from time to time. They have also stated that the DG gave satisfactory working for 5000 hours and the necessary maintenance/overhauling was carried out on completion of 6000 hours of operation on 18.12.1991. This maintenance and overhauling was done to the satisfaction of the Complainant for which they have produced the service report signed by the Complainant to the effect that maintenance carried out after completion of 6000 hours was to their satisfaction and further that engine performance is satisfactory. Based on this document the Opposite Party has stated that no specific or general warranty about periodic servicing is ever given nor is it feasible as day to day maintenance is done by the Complainant and, therefore, no specific contract for providing exclusive service till the date of the crankshaft failure on 9.1.1992 has been executed by them.

WE have gone through the records of this case carefully and have heard the learned Counsel for the Complainant and the Opposite Party. We are of the view that the transaction of purchase of the machinery involved in this case was for a commercial purpose and, the Complainant is not, therefore, a Consumer. The question of the supply of defective goods, based on a number of technical considerations, can be properly scrutinised only by a competent Civil Court.

IN view of the service report after the completion of 6000 operating hours produced by the Opposite Party, duly signed by the Complainant, it is also obvious that the system worked satisfactorily upto the expiry of the warranty period and necessary maintenance service was rendered by the Opposite Party after the operation of 5000 hours. Hence, there is no question of a deficiency in service either. Therefore, we are unable to accept the plea taken by the Complainant and hence dismiss this complaint without any order as to costs.