LARSEN AND TOUBRO LTD. Vs. SUNDER STEELS LTD.

JUDGEMENT

(1.) This appeal by the opposite party Co. is directed against the order dated 30.7.2004 of A.P. State Consumer Disputes Redressal Commission, Hyderabad whereby it was directed to pay amount of Rs.5,00,000 as compensation to respondent No.1 complainant No.1.

(2.) To run the factory, the respondent No.1 had purchased 1500 KVA Detroit Diesel Engine from the appellant for a consideration of Rs. 69,20,100. The DG set was installed in the factory of respondent No.1 on 17.1.1997 and it was commissioned on 11.2.1997. Warranty period was 12 months from the date of commissioning or 18 months from the date of supply, whichever was earlier. Complaint alleging defect in the DG set and deficiency in service in rectifying the defects was filed by respondent No.1 with the prayer of replacement of DG set and payment of Rs.25,00,000 as compensation which was contested by the appellant Co. by filing written version. One of the pleas raised in written version was that respondent No.1 is not a ˜consumer within the meaning of Consumer Protection Act, 1986 and the complaint is, therefore, not maintainable. This plea was decided against the appellant Co. by the State Commission.

(3.) Submission advanced by Sh. S.S. Rana for the appellant Co. is that as the DG set in question was purchased by respondent No.1 for commercial purpose, the finding about respondent No 1 being a ˜consumer returned by the State Commission is erroneous. According to him, the defects pointed out by respondent No.1 were rectified by the appellant Co. Attention was drawn to the averments made in para No.3 of the complaint and para No.1 of the legal notice dated 14.1.2000 got sent by respondent No.1 through counsel to the appellant Co. (copy at pages 61 to 69). Reliance was placed particularly on the decisions in Synco Textiles Pvt. Ltd. v. Greaves Cotton & Co. Ltd.; Laxmi Engineering Works v. P.S.G Industrial Institute and Cheema Engineering Services v. Rajan Singh. In said para No.3 of the complaint and in para No.1 of legal notice, it is mentioned that the DG set was purchased for running steel factory by respondent No.1. On the other hand, contention advanced by Sh. Sridhar Potaraju for respondent No.1 was that even if the DG set was sold for commercial purpose, the respondent No. 1 is a ˜consumer in respect of the services rendered or to be rendered for the proper functioning of the set during the period of warranty. He submitted that as admitted in written version by the appellant Co., the defects in DG set were pointed out in the 2nd week of October, 1997, December, 1997; 21 -22nd January, 1998; March, 1998 and May, 1998 to the appellant Co. Reliance was placed on the decisions in M/s. Jay Kay Puri Engineers & Anr. v. M/s. Mohan Breweries & Distilleries Ltd. ; Amtrex Ambience Ltd. v. M/s. Alpha Radios & Anr.; Meera & Co. Ltd. v. Chinar Syntex Ltd.; Jindal Drilling & Industries Ltd. v. Indocom Engineers Pvt. Ltd. & Anr.; Dr. Vijay Prakash Goyal v. The Network Ltd.8; Pearlite Liners Ltd. v. Thermo Jarrell Ash Corporation & Anr.; East India Construction Co. & Anr. v. Modern Consultancy Services & Ors. and Super Computer Centre v. Globiz Investment Pvt. Ltd. All these decisions have been rendered by this Commission and pertain to pre and post amendment period of the definition of ˜consumer by the amending Act of 62 of 2002. Para Nos. 7, 8, 10, 11, 12 and 13 of the written version are relevant as regards the admissions. It was alleged in para No.7 that the appellant Co. received intimation in and around second week of October, 1997 about the problem in the DG set and their representative arrived at the site of respondent No.1 and investigated the problems of DG set and spare parts worth Rs. 67,310 were issued free of cost vide delivery note dated 16.10.1997. Damage to the liner, ring set etc. was due to over heating of the DG set and use of wrong lubricants and poor maintenance. In para No.8, it is alleged that once again intimation was received in December, 1997 from respondent No.1 about the problem in DG set. Officer of the appellant visited the site of respondent No.1 on 20.12.1997. This time, it was noticed that the air filter was choked and the same was replaced. It was, further, alleged that on receiving intimation about the break down of DG set, the representative of appellant visited the site of respondent No.1 on 21.1.1998. Spare parts worth Rs.74,660 were issued. Though the warranty had expired but to maintain good relations, the repair was undertaken. In para No.11, it was stated that in March, 1998 respondent No.1 again asked for repairs of fuel injector. Appellant informed respondent No.1 that the same would be done only on chargeable basis. Respondent No.1, therefore, asked to send back the fuel injector without repairing it. In para No.12, it was pleaded that on 1.5.1998, the representative of the appellant received information of the break down of DG set and he visited the factory of respondent No.1 out of goodwill. Since the warranty period had expired, the respondent No.1 was told that repair could be undertaken only on chargeable basis. Thereafter, legal notice was received from respondent No.1. Since the commissioning of DG set was done on 11.2.1997, the set was under warranty period up to 11.2.1998. Thus, in 2nd week of October, 1997; December, 1997 and on 21 -22.1.1998 on which the repairs were carried out, the DG set was within warranty period. In March, 1998 & May, 1998, the appellant Co. told respondent No.1 that repairs could be undertaken only on chargeable basis. The defects in DG set had started within the period of warranty. Ratio of the aforesaid decisions relied on behalf of respondent No.1 is that even if the machinery/equipment is sold for commercial purpose, the purchaser will be ˜consumer under Section 2(1)(d)(ii) in respect of the service rendered or to be rendered by the manufacturer or supplier during the period of warranty. Issue of defects occurring within warranty period was not under consideration in the above decisions relied on behalf of appellant Co. Respondent No.1 is, thus, a ˜consumer. In view of the admissions made in aforesaid paras of written version, the submission advanced on behalf of appellant in regard to defect in DG set having been rectified, is to be repelled being without any merit. Amount as awarded by the State Commission as compensation can not be said to be excessive.