R.K.Bahl vs MEERA And CO. LIMITED

THIS appeal is directed against the order dated 20.5.2003 by District Forum-II. U.T., Chandigarh [for short, hereinafter, referred to as District Forum-II] in Complaint Case No. 264 of 2000. The facts in brief are as under:

THE appellant/complainant Mr. R.K. Bahl purchased one 15 K.V.A gen set and 15 K.V.A. alternator from respondent No. 1/O.P. No. 1 M/s. Meera and Co. Limited, SCO No. 156-157, Sector 34-A, Chandigarh manufactured by Kirloskar Oil Engines Limited, Pune impleaded as O.P. No. II for Rs. 1,05,000/-. THE appellant/complainant has averred that gen set was purchased to be used in his residential premises and Bahl Laboratories situated in the same building at S.A.S. Nagar. On being commissioned on 21st Jan., 2000 by O.P. No. 1 it was found to be generating power on the lower side and O.P. No. 1 on 27.1.2000 sent its representative to adjust the power generation. THE generating set failed to generate requisite level of 15 K.V.A. when the authorized load was put on the generator. THE complainant has averred that generator continued giving lower output and authorized representative of O.P.-1 made several visits to rectify the problem but the specified level of power generation could not be achieved and it continued to generate 8.1 K.V.A. as against the required level of 15 K.V.A. THE appellant/complainant on being dissatisfied with the performance of gen set asked for the refund of money and since no action was taken by the O.P. No. 1/respondent No. 1 the legal notice was sent on 22.3.2000 and further on 30.3.2000 (Annexure C-5). THE appellant/complainant has alleged that the O.P. No. 1 is deliberately evading to supply 15 K.V.A. gen set, hence it is deficient in services rendered qua him and has prayed for a direction for refund of Rs. 1,05,000/- with interest @ 18% or replace the gen set with 15 K.V.A. generator of Kirloskar make Engine RV2PG Engine BHP 18.7 electric start water cool diesel engine. In addition to above Rs 50,000/- for compensation and Rs. 5,000/- towards costs of litigation has also been prayed for. In reply filed by O.P. No. 1, the preliminary objection the complainant not being a consumer since it was purchased by Bahl Laboratories which shows that it is for commercial purposes, hence the complainant cannot invoke the jurisdiction of Consumer Protection Redressal Agencies. Further, the gen set was supplied vide Invoice No. 257 of manufacturing unit on 24.6.1998 with warranty for one year which expired on 23.6.1999, hence the complaint filed on 23.4.2000 cannot be entertained as it was after the expiry of warranty period. The plea of non-joinder of necessary parties namely M/s. Kirloskar Oil Engines Limited being the manufacturer not having been arrayed, the complaint is liable to be dismissed. On merits, the factum of purchase of gen set for the payment of Rs. 1,05,000/- stands admitted. However, the answering O.P. has submitted that the gen set cannot be for self-employment as it is in the name of M/s. Bahl Laboratories. The respondent No. 1/O.P. No. 1 has submitted that warranty issued was by manufacturer M/s. Kirloskar Oil Engines Limited and the complainant has failed to place it on the record. The warranty starts from the date of purchase. In the instant case after the gen set was commissioned on 21.1.2000 in perfect condition, no defect was brought to the notice of the respondent/O.P. No. 1. The generation of low voltage as alleged could have been due to wrong connection or mis-handling. The respondent has also averred that the complainant is trying to mislead as after commissioning the set the services of its Engineer were neither demanded nor provided. It is specifically denied in para 7 of the complaint and reiterated that no service engineer had ever visited the complainant for providing the services. It has further been submitted that the gen set as per specification of the complaint was supplied and though the warranty period of the same had expired as a gesture of goodwill it was commissioned on 21.1.2000 free of cost and at the time of commissioning, it was taking full load.

The O.P. No. 2 did not appear, however, a reply by post was sent by it in which averments of para Nos. 1 to 11 of complaint were denied being related to the transaction between the complainant and O.P. No. 1. It has been submitted that the answering respondent No. 2 came to know about this transaction after the notice of the complaint was received from the Forum. Since no allegation has been levelled against O.P. No. II a prayer to dismiss the complaint qua it was made.

THE complainant filed a rejoinder to the reply. THE preliminary objection taken is that the reply filed after the lapse of 11 months is not liable to be taken on record and same should have been rejected. THE complainant has submitted he is a consumer on the ground that the gen set in question was purchased both for personal residential use and self-employment as his residential unit is on the first floor of the office of Bahl Laboratories within the same building and complainant himself is engaged in the work of Bahl Laboratories. Further, the complainant has stated that he has paid the total consideration to the O.P. against the receipt which is admitted by the O.Ps. He has purchased the gen set from them and responsibility lies upon them for its proper functioning. THE warranty period governing the gen set was 3600 hours or one year from the date of installation and 1 years from the date of dispatch whichever is earlier, dispatch meaning to dispatch from factory to the first purchaser, hence it was within warranty period. THE complainant has submitted that authorized field engineers of Kirloskar Oil Engines Limited has stated in his report dated 18.2.2000 as the gen set to be within warranty. In evidence the complainant filed his affidavit along with Annexures C-1 to C-9 while O.P. filed affidavit of Mr. K.L. Suri, Authorised Agent of M/s. Meera and Company.

THE following case laws as were cited by the complainant: (i) Amtrex Ambience Ltd. v. M/s. Alpha Radios and Another I (1996) CPJ 324 (NC). (ii) THE Secretary, Consumer Guidance and Research Society of India v. M/s. B.P.L. India Limited; I (1992) CPJ 140 (NC). (iii) Biomex Instruments Pvt. Ltd. v. Dr. Ajay Madan, I (2001) CPJ 300 (CHD.SC). (iv) Laxmi Engineering Works v. P.S.G. Industrial Institute, II (1995) CPJ 1 (SC).

The District Forum held that the complainant in the instant case is not a consumer and the complaint was dismissed with liberty to seek the remedy in a Civil Court or any competent Forum. Aggrieved against this order of the District Forum the present appeal has been filed pleading inter alia that the order passed by the District Forum is contrary to the evidence on record as well as to the settled law on the grounds inter alia that the District Forum has misinterpreted the provisions of Section 2(d) and wrongly held that the gen set was purchased for commercial purpose. The appellant has alleged that the District Forum has not appreciated the law as settled by the Honble National Commission in the cases of The Secretary, Consumer guidance and Research society of India v. M/s. BPL India Limited (supra). Further the District Forum has committed an error in applying the ratio of Laxmi Engineering Works v. PSG Industrial Institute (supra). The District Forum was more guided in its judgment from the designation of Purchase Officer of Bahl Laboratories, whose affidavit was on record and it did not appreciate the real facts while drawing the conclusion from the above fact. The appellant has averred that

ON perusal of the impugned order it is evident that the view of District Forum in holding the complainant not a consumer was primarily based on the employment of Purchase Officer from which the Forum drew a legitimate inference in para 10 of the impugned order and held that after the purchases are made out on bulk scale and a permissible inference drawn was of large and sizable work force to process the raw material purchased by the Purchase Officer into the finished products. We are of the considered opinion that the above inferences drawn by the District Forum were beyond the pleadings and not substantiated by any material on record. In fact there is nothing on record to rebut or controvert the affidavit of the appellant that gen set in question is used in both residential accommodation and Bahl Laboratories. Since both are situated in the same premises and that he is assisted in the work of Bahl Laboratories by Sh. Jatinder Sharma, Purchase Officer and one Sh. Banwari Dass employed as a Caretaker, which substantiate the plea of appellant that he is engaged in the Bahl Laboratories for earning his livelihood and gen set in question is not being used for commercial purpose as held by the District Forum. Applying the ratio of Laxmi Engineering Works (supra) wherein Honble Supreme Court at para 15 elaborating the scope of word consumer as given under the Act and exclusions, if any, observed inter alia as under: if such buyer takes the assistance of one or two persons to assist/help him in operating the vehicle or machinery, he does not cease to be a consumer.

IN our view the appellant/complainant is covered under the definition of consumer in the light of the aforesaid authority by the Apex Court and the District Forum was in error in holding him not to be a consumer. Consequently, the case is remanded back to the District Forum for decision on merit within timeframe given in the Act. The parties are directed to appear before the District Forum-II, U.T., Chandigarh on 4.12.2003. Copies of this order be sent to the parties free of charges. Appeal disposed of.