State Consumer Disputes Redressal Commission
Raju Dairy Farm vs M/S Nichrome India Limited on 1 October, 2013
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 380 of 2012
Date of institution: 29.3.2012
Date of Decision : 1.10.2013
Raju Dairy Farm, College Road, Near Post Office, Barnala, District
Barnala, Punjab, through its Prop. Raj Kumar s/o Sh. Om Parkash.
.....Appellant/Complainant
Versus
1. M/s Nichrome India Limited, Corporate Office-Safire Park
Galleria-4, Pune-Mumbai Road, Shivajinagar, Pune-411005
(India) through its Managing Director.
2. M/s Nichrome India Limited, Post Wing Tal, Khandala Gate No.
769B 772 and 773, Shrimal, Distt. Satara Shirwal 412801 through
its Manager.
.....Respondent/Opposite parties.
Argued By:-
For the appellant : Sh. Deepak Sahni, Advocate
For the respondents : Sh. Abhijeet M. Hartalkar, Advocate
First Appeal against the order dated 10.2.2012
passed by the District Consumer Disputes
Redressal Forum, Barnala.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Piare Lal Garg, Member Shri Jasbir Singh Gill, Member Gurcharan Singh Saran, Presiding Judicial Member The appellant/complainant(hereinafter called "the complainant") has filed the present appeal against the order dated 10.2.2012 passed by the District Consumer Disputes Redressal Forum, Barnala(hereinafter called "the District Forum") in consumer complaint No. 345 of 2011 vide which the complaint filed by the complainant was dismissed.
FIRST APPEAL NO. 380 OF 2012 2
2. The complainant-Raju Dairy Farm has filed the complaint under Section 12 of the Consumer Protection Act, 1986 (in short 'the Act') on the allegations that he is running a Dairy Shop under the name and style of Raju Dairy Farm in a place measuring 7'4" x 50' to earn his livelihood through self employment. Mr. Kaushal Verma, Sales Manager of the Ops approached and told that Ops are engaged in the business of manufacturing of packing machines for packing of fresh milk in polythene bags. The complainant stated that he sells 1500 litres fresh milk daily and asked for a machine with the capacity to pack upto 2500 litres fresh milk. The Sales Manager of the Ops checked the size of the shop of the complainant and stated that F-F-S Model CMS will fulfill the requirements of the complainant. The Sales Manager told price of the machine as Rs. 5,34,336/- and accordingly he booked the machine at Barnala by paying Rs. 1,34,336/- in advance on 4.4.2011 and that remaining amount of Rs. 4 lacs will be paid on the basis of loan from Bank of Baroda, Barnala. The complainant told the Ops to get a storage tank of 300 litre capacity and drawing was given to them and they assured to prepare the machine accordingly. However, the storage tank was of 1000 litre capacity and the complainant has to pay Rs. 20,000/- more for the storage tank. The Ops delivered the said machine to the complainant at Barnala vide challan No. 104 dated 10.5.2011 having paid Rs. 21,120/- as transportation charges. However, the complainant was surprised to see the very big size of the machine as the same was not going to adjust in his shop. The Engineer of the Ops broke up a partition in said shop and brought the machine in the shop. The FIRST APPEAL NO. 380 OF 2012 3 Engineer tried its best to fit the machine but could not adjust. He also paid Rs. 3466/- for stay of the Engineer of the Ops at Barnala and then the machine was taken to the godown where it was started by the Engineer. The Milk put in the said machine poured/spoiled due to heat given by the said machine and then the complainant told the said Engineer that the complainant had ordered the machine which pack only fresh milk with the capacity of 2500 litre but the machine has a capacity of 10000 litres, therefore, the Ops have not supplied the machine, which was ordered. The complainant approached the Ops on phone many a times but they avoided the complainant on one pretext or the other and ultimately, stopped to attend their calls and act of the Ops is deficiency in service. Hence, the complaint with a direction to the Ops to refund Rs. 5,34,336/- with interest @ 18% p.a. from the date of payment till payment and also pay Rs. 44,586/- spent on different counts, Rs. 2 lacs as compensation for mental agony and harassment, Rs. 11,000/- as litigation expenses.
3. The complaint was contested by the opposite party, who filed written statement stating that the complaint filed by the complainant is false, fabricated, bogus; it is true that the complainant is running the business of milk dairy. It has been denied that his shop is measuring 7'.4" x 50' whereas his shop consist of three floors each measuring 7'.4" x 50' and covered area is 1200 sq. ft.. It has been denied that he is running the milk business to earn his livelihood. In fact he is selling the milk at large and commercial scale. It is correct that Mr. Kaushal Verma visited the complainant's shops and told that they are engaged in the business of manufacturing of packaging FIRST APPEAL NO. 380 OF 2012 4 machines. It has been denied that the complainant daily sells 1500 litres of fresh milk or that he requires machine with the capacity of 2500 litres. It has been admitted that Sales Manager of the OP informed that F-F-S Model CMS is requirement of the complainant totalling Rs. 5,34,336/- that it was admitted that the complainant after satisfaction had booked the machine and paid advance money of Rs. 1,34,336/- on 4.4.2011. It has also been admitted that the Sales Manager of OP gave a drawing to the complainant and told him to get a storage tank of 300 litres capacity. The machine was driven to Barnala and complainant paid Rs. 21,120/- as transportation charges. However, it has been denied that the size of the machine is very big and that the partition wall of the complainant has to be broken for taking the machine inside. It has also been denied that the complainant paid charges of Hotel for stay of the Engineer to the tune of Rs. 3466/-. It has been denied that the complainant told the Engineer that the complainant ordered the machine which pack fresh milk to the capacity of 2500 litre. It has also been denied that the Engineer told that the packing machine packs milk only after chilling and has capacity of 10000 liters. It has also been denied that the complainant approached the opposite party on telephone or that lateron his telephone calls were not attended to. Further submission was made that the complainant is not 'consumer' as the machine is being used for commercial purpose. The complainant had agreed to the terms and conditions that exclusively the Courts at Pune shall have the jurisdiction, therefore, the District Forum has got no jurisdiction to try the complaint; no guarantee/warrantee was given FIRST APPEAL NO. 380 OF 2012 5 and it was only for 1 year. The machine supplied was as per the requirement and no different machine was supplied. The size of the machine is 3' x 3.3' and size of the storage tank is 2.6' x 2.6' only and that the complainant has sufficient area for storage of the machine and ultimately, it was stated that there is no merit in the complaint and the same be dismissed.
4. The parties were allowed by the learned District Forum to lead their evidence.
5. In support of his allegations, the complainant had tendered into evidence affidavit of Raj Kumar Ex. C-1, challan cum tax invoice Ex. C-2, letter of Ops Ex. C-3, Transportation copy Ex. C- 4, service report Ex. C-5, drawing Ex. C-6 & 16, copy of complaint dt. 3.8.2011 Ex. C-7, letter of Ops Ex. C-8, statement of account Ex. C- 9&10, photographs Ex. C-11 to C-14, affidavit of Rajesh Kumar Ex. C-15. On the other hand, the opposite party had tendered into evidence offer dated 4.4.2011 Ex. R-1, purchase order Ex. R-2, letter dt. 4.4.2011 Ex. R-3, Invoice 10.5.2011 Ex. R-4, letter dated 10.5.2011 Ex. R-5, drawing dated 6.4.11 Ex. R-6, affidavit of Kaushal Verma Ex. R-7.
6. After going through the allegations in the complaint, written statement, evidence and documents brought on the record, the learned District Forum vide impugned order observed that there is no complaint about the working of the machine and before supplying the machine the complainant was shown the machine with an other customer M/s M.C. Traders, Nihal Singh Wala, District Moga, therefore he was fully aware of the size of the machine. The size of FIRST APPEAL NO. 380 OF 2012 6 the shop of the complainant is 7'.4" x 50', which is on three floors whereas the size of the machine is 3' x 3'.3" and that of the storage tank is 2'.6" x 2'.6", therefore, it can very well be placed in the shop and moreover, the complainant is engaged to sale milk at large scale and the machine was required for packing of the milk, therefore, the activities for earning profit, therefore, it does not fall within the ambit of 'consumer'. It was also observed that there was specific condition that any dispute will be subject to Pune Courts, therefore, the District Forum, Barnala has no jurisdiction and ultimately the complaint was dismissed.
7. Aggrieved with the order passed by the learned District Forum, the appellant/complainant has filed the present appeal.
8. In the grounds of appeal, it has been contended that the machine was supplied at Barnala, therefore, part of cause of action has accrued at Barnala, therefore, the Court at Barnala had the jurisdiction under Section 3 of the Act. The learned District Forum has further failed to appreciate that the complainant running the shop for his livelihood and the livelihood of his family members, therefore, he falls within the ambit of 'consumer'. It has also been contended that the appellant/complainant has specifically told the Sales Manager that he sells 1500 to 2500 litres milk whereas capacity of the machine is 10,000 litres and the Sales Manager has taken the size of the shop, therefore, there is deficiency in services on the part of the opposite parties/respondents.
9. We have considered the contentions as raised by the counsel for the appellant.
FIRST APPEAL NO. 380 OF 2012 7
10. With regard to the jurisdiction, certainly, the machine was supplied at Barnala, the order was placed at Barnala, therefore, the cause of action has arisen at Barnala. Under Section 11 (c), where the cause of action wholly or in part arises, the Court has the jurisdiction. The written terms and conditions cannot be against the law, therefore, we are of the opinion that the District Forum, Barnala has the jurisdiction to entertain and try the complaint.
11. The next point is whether the complainant is consumer as defined under the Act. In case the appellant/complainant had purchased the machine for commercial purposes then it will not come under the explanation attached to Section 2(1)(d) of the Act. Certainly, the appellant is selling the milk at large scale and in such circumstances, it can be taken that he is doing this business for commercial purposes. To support this proposition, there is judgment of the Hon'ble Supreme Court "Laxmi Engineering Works versus Rs. G. Industrial Institute", 1995 (3) SCC 583:1995 AIR (SC) 1428 wherein it has been so observed "Commercial" denotes "pertaining to commerce" (Chamber's Twentieth Century Dictionary); it means 'connected with, or engaged in commerce; mercantile: having profit as the main aim" (Collins English Dictionary) whereas the word "commerce" means financial transactions especially buying and selling of merchanidise, on a large scale" (Concise Oxford Dictionary). The National Commission appears to have been taking a consistent view that where a person purchases goods "with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit" he will not be a "consumer" within the FIRST APPEAL NO. 380 OF 2012 8 meaning of Section 2(d)(i) of the Act. Broadly affirming the said view and more particularly with a view to obviate any confusion - the expression "large-scale" is not a very precise expression - the Parliament stepped in and added the explanation to Section 2(d)(i) by Ordinance / Amendment Act, 1993" and the business at large scale is done with a purpose to earn profit, therefore, it can be categorize that the machine has been purchased for commercial purposes. Other judgments of the High Courts on this point is "Rajendra Mills Ltd. versus H.V.M. Hazi Hasan Dada", 1970 AIR (Cal) 342 and "S. Manuel Raj and Company versus J. Manilal and Company", 1963 AIR (Guj.) 148, therefore, we are of the opinion that the machine was purchased by the complainant/appellant for commercial purposes.
12. With regard to the size of the machine, it has been stated that before purchase of the machine, its sample was shown to the complainant/appellant with one M/s M.C. Traders, Nihal Singh Wala, District Moga and after that the complainant has placed the order and accordingly, the machine was supplied. Immediately, thereafter, he did not raise any objection that the machine supplied by him is not as per order and accordingly, he had made the payments. In case he would have ordered small machine, certainly, it will cost less than this cost, therefore, after the receipt of the machine in case he had paid the full payment, certainly, he would accepted the delivery of the machine according to his requirement otherwise there is no manufacturing defect in the machine. So far as the size of the machine is concerned, the size of the machine is 3' x 3'.3" and size of FIRST APPEAL NO. 380 OF 2012 9 the shop of the complainant is 7'.4" x 50', therefore, it can very well be installed in the shop of the complainant, therefore, we are of the opinion that there is no deficiency on the part of the opposite parties/respondents and that the District Forum has rightly dismissed the complaint of the complainant and findings of the District Forum are correct and we affirm the same.
13. No other point has been argued.
14. In view of the above discussion, we do not find any merit in the appeal and the same is dismissed with costs of Rs. 2,000/-.
15. The arguments in this appeal were heard on 18.9.2013 and the order was reserved. Now the order be communicated to the parties as per rules.
16. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran) Presiding Judicial Member (Piare Lal Garg) Member October 1, 2013. (Jasbir Singh Gill) as Member