PREMA SEKARAN vs V.Ramachandran

DESIRABLE it is to pen down a common order in these actions.

THE opposite party in both the actions is one and the same. Of course, the complainant in each of the individual actions is distinct and different. But nonetheless the factual matrix in those actions is almost identical. M/s. Karthekeya Agency (appellant in A.P. No. 530/1998 - complainant in O.P. No. 335/1995) is a proprietrix concern, located at 153-A, Alagar Koil Road, Tallakulam, Madurai-2.

M/s. Karthekeya Transports (appellant in A.P. No. 531/1998 - complainant in O.P. No. 334/1995) is a proprietorship concern, located at 154, Alagar Koil Road, Tallakulam, Madurai-2. The opposite party in both the actions (respondent in A.P. Nos. 530 and 531/1998 - opposite party in O.P. Nos. 335/1995 and 334/1995) is one and the same namely, M/s. Lakshmi Fabricators, located at No. 213, Parsan Janpath, Sastri Road, Ramnagar, Coimbatore-641 009 represented by its partner one Mr. V. Ramachandran.

THE complainant in O.P. No. 335/1995 placed an order at Coimbatore with the opposite party M/s. Lakshmi Fabricators for the fabrication of an oil tanker TAA 9918. Likewise, the complainant in O.P. No. 334/1995 placed an order at Coimbatore with the said opposite party for the fabrication of an oil tanker TAA 9189. THE oil tankers were required to be fabricated by the opposite parties for the purpose of transporting petroleum products. Of course, the services of the said opposite party for the fabrication of the two tankers were hired for consideration. The two oil tankers, it is said, were fabricated by the opposite party M/s. Lakshmi Fabricators and due delivery was effected at Coimbatore to the respective complainants.

IT is the positive case of the individual complainants in each of the original actions that the oil tankers as fabricated by M/s. Lakshmi Fabricators were defective. There was a leakage in the oil tankers at the bottom and also in between the compartments of the oil tankers. This apart, dip pipe and oil loading pipe attached to the tankers were not fixed properly and fell automatically. This aspect of the matter was intimated to M/s. Lakshmi Fabricators by each of the individual complainants by way of a communication. The communication so issued was not at all responded to by M/s. Lakshmi Fabricators. Since the oil tankers were to be used for transporting petroleum products, a licence is required to be taken from the Controller of Explosive and for that purpose, a drawing for the fabrication of the tanker is necessary. The drawing for the fabrication of the tanker was not at all supplied by M/s. Lakshmi Fabricators to each of the individual complainants. Consequently, each of the complainants would say that they got the defects rectified at a private workshop by incurring the necessary and requisite expenditure. Each of the individual complainants caused notices to be served on M/s. Lakshmi Fabricators alleging deficiency in service on their part and requiring them to pay the cost of repairing of the individual tankers and also compensation for mental agony and other incidental reliefs. The notice so issued elicited a reply to each of the individual complainants from M/s. Lakshmi Fabricators and there was also rejoinder notice from the complainants to M/s. Lakshmi Fabricators. In such a backdrop and setting, each of the individual complainants knocked at the doors of the District Consumer Disputes Redressal Forum, Madurai by the launching of a complaint against M/s. Lakshmi Fabricators alleging deficiency in service and for certain reliefs as prayed in each of the individual complaints.

THE opposite party M/s. Lakshmi Fabricators, of course, filed separate version in each of the original actions. THE version so filed is more or less identical and, therefore, it is, we rather feel, to pen down herein the pith and substance of the objections they had taken in each of those original actions. Firstly what they would contend is that the Forum before which the complaint had been filed by individual complainants namely, District Consumer Disputes Redressal Forum, Madurai had no territorial jurisdiction at all to entertain those complaints. Secondly, the oil tankers they were asked to fabricate, of course, for consideration, was for commercial purpose in the sense of transporting petroleum products for hire. Such being the case, the individual complainants in each of those actions can no stretch of imagination be construed as a consumer falling under the definition of Section 2(1)(d) of the Consumer Protection Act, 1986 [for short, "the Act, 1986"]. Thirdly, the complaints as instituted against them is by way of a counter-blast to the complaint they have filed in O.P. No. 505/1994 on the file of the District Consumer Disputes Redressal Forum, Coimbatore against the State Bank of India, Tallakulam Branch, Madurai besides impleading the proprietor of M/s. Karthikeya Transports, complainant in O.P. No. 334/1995 as a formal party. THE individual complaint as such is liable to be dismissed.

THE Forum below after taking into consideration the materials placed on record, recorded identical findings in both the actions. Those findings are : (1) District Consumer Disputes Redressal Forum, Madurai before which the complaints are filed is not having the necessary and requisite territorial jurisdiction; (2) the fabrication of the oil tankers was for commercial purposes and consequently each of the complainants in those original actions cannot at all be construed as a consumer. It is on those findings, the Forum below, without going into the other aspects of the matter dismissed both the complaints by passing separate orders on one and the same day namely, 23rd day of March, 1998 giving rise to the present actions namely, A.P. Nos. 530 and 531/1998. The appellant/complainant in both the actions is represented by learned Counsel M/s. S. Kadarkarai and T. Ravikumar. Likewise the opposite party in both the actions is represented by learned Counsel M/s. S. Venkatesan, Uma Venkatesan and V.T. Narendiran.

We heard the arguments of learned Counsel Mr. T. Ravikumar and Mr. V.T. Narendiran.

FROM the pith and submission of learned Counsel appearing for the respective parties the one and only question that crops up for consideration in these actions is as to whether the individual and separate order as passed by the Forum below in each of the original actions is sustainable in law on the facts and in the circumstances of the cases. Learned Counsel Mr. T. Ravikumar appearing for the appellant/complainant in each of these actions would with all vehemence and force contend that the finding that the District Consumer Disputes Redressal Forum, Madurai has no territorial jurisdiction to entertain the individual complaint in each of the original actions cannot at all be stated to be sustainable in law on the face of the sanguine provisions as adumbrated under Section 11(2)(c) of the Act, 1986. To this sort of a projection of a hue of view we are unable to affix our seal of approval on the facts and in the circumstances of the cases. Section 11(2)(c) of the Act, 1986 states that a complaint shall be instituted in a District Forum within the local limits of whose jurisdiction in case the cause of action wholly or in part arises. In the case on hand, the order for the fabrication of the oil tankers had been placed by the individual complainant in each of the original actions with the opposite party M/s. Lakshmi Fabricators at Coimbatore. The delivery of the two tankers to each of the individual complainants was also admittedly effected at Coimbatore. Such being the case, the cause of action could arise only at Coimbatore, where alone the complaints ought to have been filed. But actually the complaints in these actions had been filed at the District Forum located at Madurai where no cause of action wholly or in part arises. Learned Counsel Mr. T. Ravikumar would state that the defects in the oil tanker lorry were noticed by the individual complainant in each of the original actions at the time when the tankers were filled up with fuel at Madurai and, therefore, it is the District Forum located at Madurai has jurisdiction inasmuch as the cause of action has arisen there in the sense of defects having been noticed. We can very well appreciate the figment of imagination of the said learned Counsel, while saying so. Such submissions, however, cannot at all be expected to commend acceptance at our hands when especially such submissions cannot at all be given a fitment falling within the parameters as prescribed under Section 11(2)(c) of the Act, 1986. Therefore, we are of the view that the finding as recorded by the Forum below that the District Forum at Madurai had no jurisdiction to entertain with the complaint cannot at all be stated to be not sustainable in law. The other factor which the Forum below took into consideration for the dismissal of the complaints is that the purpose for which the oil tankers had been fabricated by the opposite party M/s. Lakshmi Fabricators at the instance of the individual complainant in each of the original actions is for a commercial purpose inasmuch as the said oil tankers were admittedly to be used for the purpose of transporting petroleum products for hire and, therefore, it is the complainants in each of the individual actions cannot at all be construed as a consumer qua the opposite party falling within the definition of Section 2(1)(d) of the Act, 1986. This sort of a finding is sought to be attacked by the said learned Counsel appearing for the appellant/complainant in each of these actions and what he would state is that the fabrication of an oil tanker is a job work done for a hire and such sort of a job work must have to be construed as a service qua the opposite party. This sort of an inspiration had been drawn by the said learned Counsel appearing for the appellant/complainant from the decision emerging from the National Commission in the case of 37 (NC). The background facts of that case, if looked into, will reveal the ugliness taking shelter in such a projection of a hue of view by the said learned Counsel. In that case, certain works were entrusted to a firm of Architects namely, Kingsway Consultant. One of the works was to provide stainless steel handrails to the prayer platform. There was another work relating to stainless steel cladding to the R.C.C. Dome over the proposed prayer hall inside the Engineering College, Coimbatore managed by the Karunya Educational Trust. Only in such a context, the National Commission said that the award of contract for doing a job work was in the nature of a service to be rendered by the appellant for consideration and, therefore, the National Commission was in agreement with the finding of the State Commission in that regard. The facts of the instant case as we have stated above are altogether different and the commercial purpose for which the oil tankers were fabricated is writ large on the face of it in the sense of being used for commercial purpose for hire. We are also to state a signal factor relatable to warranty given even in respect of articles purchased for commercial purpose and if there were defects in such articles during the period of warranty, such defect would tantamount to deficiency in service even if the purchase was for a commercial purpose and the complainant is to be construed as a consumer qua the opposite party in respect of the service to be rendered during the warranty period. This sort of a view had been taken by the Kerala State Commission in Koyenco Feeds Pvt. Ltd. v. Reed Medway Packaging Company of India Pvt. Ltd. & Anr., III (1997) CPJ 34. This decision of the Kerala State Commission also derived support from Amtrex Ambience Ltd. v. M/s. Alpha Radios & Anr., a decision of the National Commission, reported in I (1996) CPJ 324 (NC). The National Commission in that case took the view that where the allegations of the complainant was that there was a manufacturing defect of the machinery/equipment during the period of warranty when the manufacturer had undertaken to keep the machinery in good working condition, even if sold for commercial purpose, the purchaser will certainly be a consumer under Section 2(1)(d)(ii) in respect of services rendered or to be rendered by the seller for the proper functioning of the machinery/equipment, system during the period of warranty. In the case on hand, admittedly there is no warranty at all and consequently the defects emerging during the period of warranty amounting to deficiency in service even if the purchase for commercial purposes will not at all arise for consideration so as to construe the complainant in each of the original actions as a consumer qua the opposite party. Therefore, the argument of the said learned Counsel is altogether untenable and we, therefore, reject it. For the reasons as above, both the appeals deserve to be dismissed.

IN fine, both the appeals namely, A.P. Nos. 530 and 531/1998 are dismissed. We, however, make no order as to costs on the facts and in the circumstances of the cases. Appeals dismissed.