T.G.ENGINEERING WORKS vs Gopal Enterprises

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

THE complainant placed an order with the opposite party No. 1 for the supply of one Riat Make RS-3 Model 600 mm (24") capacity cylindrical grinder with motor and accessories manufactured by the second opposite party. THE machinery was supplied on 30.1.91. A sum of Rs. 1,25,490/- was paidin cluding a sum of Rs. 8,500/- towards freight charges. THE machinery was put to use in July ''91, because of some delay in getting power connection. From the very beginning the machinery developed oil leakage in spindle and ovalty in pieces that were grinned. THE first opposite party was informed of the same and its Service Engineer tried to set right the problem, but in vain. THE first opposite party requested the second opposite party to send the manufacturer''s technician from Ludhiana. After much delay the manufacturer''s technician Mr. Kundan Singh inspected the machinery, but he was not able to rectify the defects. According to the complainant some of the components such as Balancing stand, Balancing Mandrel, Alien Key Set, Spanner Set, Operation Manual and Name Plate of the machine were not also supplied. Both the parties were negligent in rendering services and consequently a legal notice was issued by the complainant on 13.2.92 without any response. Hence this complaint directing the opposite parties to replace the machinery with a new one and other damages. The first opposite party in its counter admitted the supply of the machine, but contended that it was for commercial purpose. The first opposite party is only a channalising agent between the complainant and the second opposite party, manufacturer. According to the opposite party No. 1, a service engineer was deputed to attend the problems and it was revealed that the damage could have occurred due to operation of the machinery through inexperienced hands. The mechanic of the second opposite party visited Coimbatore and set right the matter. As defects were still not rectified, the first opposite party sought the help of experienced technician from M/s. PSG and those efforts are proved futile. The first opposite party has taken every possible steps, but it could not rectify the manufacturing defects. It was not therefore liable.

The second opposite party remained absent and it was set exparte.

EXHIBITS A1 to A26 and B1 are marked. Proof affidavits are filed. No oral evidence has been let in. The complainant has placed orders with the first opposite party for the supply of one Riat Make RS-3 Model 600 mm (24") capacity cylindrical grinder manufactured by the second opposite party, and has paid a sum of Rs. 1,25,490/- including freight charges. The machinery did not function properly and hence this complaint. The plant has been purchased by the complainant for commercial purpose and hence he is certainly not a consumer within the meaning of Section 2(1)(d)(i) of the Act. But the complainant will certainly be a consumer under Section 2(1)(d)(ii) of the Act in respect of the services rendered or to be rendered by the opposite parties for the proper functioning of this machinery during the period of warranty. It is admitted in Exhibit A16, letter of the first opposite party that the machinery carries guarantee for a period of one year. The opposite parties are therefore bound to render proper service and see to the proper functioning of the system during the period of warranty and in case of failure the complainant is entitled to come forward with a complaint for deficiency of service. This is the view taken by this Commission in Shrimp India v. Richardson and Crudoss and Others (O.P. 204/91 dated 15.5.92) following the decisions of the State Commission of Maharashtra in Padma Amrapurkar v. Williams and Company I (1992) CPJ 150 and Wiswa Jyothi Printers v. Molins of India I (1992) CPJ 93. The decision of the State Commission of Maharashtra in Viswa Jyoti Printers v. Molins of India went up an appeal to the National Commission in Viswa Jyoti Printers v. Molins of India and Molins of India v. Viswa Jyothi Printers (Both the complainant and the opposite party have preferred appeals) I (1992) CPJ 167 (NC). No doubt the National Commission reversed the judgment of the State Commission of Maharashtra and dismissed the complaint on the question of that there was no deficiency of service implying thereby that the complainant was a consumer in respect of services to be rendered to him during the period of warranty. An argument was advanced before the National Commission that the services rendered by the opposite party during the period of warranty was without consideration and the complainant was not therefore a consumer hiring the services of the opposite parties for consideration. The National Commission rejected the argument and observed: "We would like to mention that the appellant has stated that he was rendering free service for the maintenance of the machine for a period of one year under the warranty and as such, in the absence of consideration the complainant was not a consumer and did not render any service as defined under the Consumer Protection Act. We do not accept this contention of the appellant. The warranty was a part of the composite contract for the supply of the printing machine and its maintenance for a period of one year. The consideration for service to be rendered under the warranty is obviously included in the sale of price of the machine. In any case there cannot be an agreement including warranty without consideration. In other words, it is wrong to maintain that the warranty obligations were being rendered gratis."

It is thus well settled that even where goods are supplied for commercial purpose, if there is a warranty for its maintenance, the purchaser becomes a consumer in respect of the services rendered or to be rendered by the manufacturer or supplier during the period of warranty. We hold therefore that the complainant is a consumer within the meaning of Section 2(1)(d)(ii) of the Act.

THE machinery has been supplied in April ''91 and it has been commissioned in July ''91. Exhibit A2 is the letter dated 12.10.91 written by the complainant to the first opposite party pointing out that the machine has developed oil leakage in spindle and ovality in pieces that were grinded. Exhibit A3 is another letter dated 23.10.91 from the complainant to the first opposite party. Exhibit A4 dated 24.10.91 is the letter written by the first opposite party to the second opposite party with a copy to the complainant informing the second opposite party that the machine is having problem that their Service Engineer Mr. C.K. Sadasivam was unable to rectify the defects and asking the second opposite party to send its Technician. Exhibit A5 is the letter dated 18.11.91 from the complainant to the first opposite party again complaining of imperfect functioning of the machinery. Exhibit A7 is the letter dated 21.12.91 from the first opposite party to the second opposite party with copy to the complainant informing the second opposite party that the complainant has been unable to use the machinery and it is kept idle. THE second opposite party has been asked los end its technician immediately. THE technician has not come and Exhibit A8 is the letter of the complainant dated 6.1.92 informing the first opposite party that the machine has not yet been rectified. THE first opposite party has thereupon written Exhibit A9 dated 8.1.92 to the second opposite party with copy to the complainant calling upon them to set right the machinery as otherwise the complainant would file a suit. Under Exhibit Al 1 dated 6,2.92 the second opposite party has sent Mr. Kundan Singh, Mechanic to visit the complainant''s place and rectify the defect. Exhibit A12 letter dated 8.2.92 has been writing by the first opposite party to the second opposite party informing them that the machinery is being kept idle. It seems that the mechanic of the second opposite party could not also rectify the defects. Exhibit A12 letter from the first opposite party to the second opposite party shows that Mr. Kundan Singh, the technician of the second opposite party has suggested the replacement of the bearings. In Exhibit A15 dated 10.4.92 the first opposite party has in formed the second opposite party that Mr. Kundan Singh has not rectified the problem. Exhibit A16 is another letter dated 11.4.92 from the first opposite party to the second opposite party showing that the machine was not giving accuracy and precision and that the manufacturing defects could not be rectified. THEse communications therefore very clearly show that the opposite parties have not rendered proper service to the complainant in the proper functioning of this machinery during the period of warranty. THEy are therefore guilty of deficiency of service. The contention of the first opposite party that it is only a middleman channalising the contract between the complainant and the second opposite party and it is not therefore liable for manufacturing defect, cannot be accepted, for it is through the first opposite party that the complainant has placed the order and purchased the machinery. The first opposite party is therefore as much liable as the second opposite party, manufacturer for the non-functioning of the machinery and deficiency of service. Now to the question of relief. In as much as the opposite parties have failed to see to the proper working of the machinery, they are bound to replace the same by a new one or to pay to the complainant the entire amount paid by it with interest thereon at 18%. The claim for interest and another claim as amounts paid by the complainant to its customers and a claim for compensation for Rs. 50,000/- cannot be accepted, for there is no whisper of proof in support of these claims.

IN the result we order as follows: 1. The opposite parties shall replace the Riat Make Model 600 mm (24") capacity cylindrical grinder with automatic Feed, INternal Grinding Attachment Electric Motor 3 HP, 1.5 HP and 3/4 HP Motor, Switch and Starters, Coolant Pump with a new machinery of similar description free from any defect and take the machinery now supplied within 2 months from the date of this order or in the alternative pay to the complainant the sum of Rs. 1,25,490/- with interest thereon at 18% from the date of payment till repayment. 2. The opposite parties shall also pay to the complainant a sum of Rs. 3,000/- as costs. Complaint allowed with costs.