National Consumer Disputes Redressal
M/S. Matoshree Stone Crusher vs M/S. Greaves Cotton Ltd. & Anr. on 10 November, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 148 OF 2017 (Against the Order dated 30/08/2016 in Complaint No. 60/2013 of the State Commission Maharashtra) 1. M/S. MATOSHREE STONE CRUSHER THROUGH ITS PROPRIETOR, MR. VIKRAM BALASAHEB KAKADE, HAVING OFFICE AT: SHUBHAM COMPLEX, SHOP NO. 11, NEAR SYNDICATE BANK, TALEGAON DABHADE, TALUKA MAVAL, DISTRICT PUNE-410507 MAHARASHTRA ...........Appellant(s) Versus 1. M/S. GREAVES COTTON LTD. & ANR. A12 (a) SIPCOT INDUSTRIAL COMPLEX, GUMMIDIPOONDI, CHENNAI-601201 TAMIL NADU 2. M.N. ENGINEERS AUTHORISED DEALER OF M/S. GREAVES COTTON LTD., SHED NO. 3, PAIGUDE COMPOUND, KONDHAWE-DHAWADE (GRAMPANCHAYAT) TALUKA HAVELI, DISTRICT-PUNE-411023 MAHARASHTRA ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE SUDIP AHLUWALIA,PRESIDING MEMBER HON'BLE AVM J. RAJENDRA, AVSM VSM (Retd.),MEMBER FOR THE APPELLANT : MR. DNYANARAJ SANT, ADVOCATE FOR THE RESPONDENT : FOR THE RESPONDENT-1 : MR. VIVEK SHARMA, ADVOCATE MS. MAMTA GAUTAM, ADVOCATE MR. ADITYA JAIN, ADVOCATE.
Dated : 10 November 2023 ORDER JUSTICE SUDIP AHLUWALIA, MEMBER
The present Appeal under Section 19 of the Consumer Protection Act, 1986 has been filed by the Appellant/Complainant against the impugned Order dated 30.08.2016 passed by the State Consumer Disputes Redressal Commission, Maharashtra, Mumbai in Consumer Complaint No. 60 of 2015 vide which the Complaint filed by the Appellant was dismissed.
Brief facts of the case as per the Complaint are that the Complainant is engaged in the business of stone crushing in the name and style as "M/s Matoshree Stone Crusher". In August 2010, the Complainant had placed an order with the Respondent No. 1 for the purchase of the Wheel Loader CG 932H for the business purpose of the Complainant. The order was accordingly placed with the Respondent No. 1 and invoice of ₹21,99,999.79/- was generated on 06.08.2012. On 30.09.2010 payment was made by the Complainant and the delivery of the said Wheel Loader was given by the Respondent No. 1 to the Complainant through its Distributor- Respondent No. 2 on the same day. The Complainant had obtained a loan of ₹17,60,000/- for the purchase of the said Loader at the interest rate of 13.5% p.a. It is the case of the Complainant that the Loader was giving some or the other trouble and was not working smoothly. The Complainant sent a letter dated 05.04.2011 describing the problems in the wheel loader viz. oil filter, reverse leakage, material unavailability etc. Subsequently the Complainant came to know that the said loader was manufactured by the Respondent No. 1 in collaboration with a Chinese Company, and that after selling 7-8 machines, the manufacturing was stopped. The Wheel Loader was not approved by the ARAI and therefore could not be insured as well. The Wheel Loader is not working since 08.09.2012 till today and the spare of the loader are not available anywhere. The Complainant states that this is the only business of the Complainant which the Complainant runs for his livelihood for earning bread and butter for himself and his family, and the said Loader was purchased for his business purpose and thus the Complainant is a Consumer within the meaning of Sec. 2 of the Consumer Protection Act, 1986.
The State Commission vide its Order dated 30.08.2016 dismissed the Complaint. The relevant extracts of the Order of the State Commission are set out as below -
"...We find that prayer in the complaint is in relation to repair of the wheel loader purchased by the complainant from the opponent for the business purpose of the complainant and not concerned with deficiency in service for any purpose of the complainant to earn livelihood, etc. since transaction appears commercial between firms M/s. Matoshree Stone Crusher and M/s. Greaves Cotton Ltd. and M.N. Engineers. We leave it to the parties to enter into consent terms, outside State Commission, if they so desire. However, on merits we do not find any consumer dispute to entertain the complaint to be decided by the State Commission under Consumer Protection Act, 1986. Parties may adopt appropriate remedy. Complaint stands disposed of accordingly." 4. Aggrieved by the Order of the State Commission, the Appellant filed the present Appeal raising the following key issues -
That the State Commission grossly erred in not appreciating the fact that the Complaint was admitted and notice was issued in the year 2013, and at the time of admission itself the Complainant had succeeded in satisfying the State Commission that the Complainant is a "Consumer";
That the State Commission totally failed and neglected to appreciate the fact that the Complainant is a proprietary firm and it has been specifically mentioned in the recital that the Complainant had purchased the wheel loader for the purpose of earning his livelihood, and therefore the Appellant/Complainant is a "Consumer" of the Respondents;
That the State Commission erred in not appreciating the fact that on 30.08.2016 the said complaint was fixed for final hearing, and no such issue much less any preliminary issue of maintainability of the Complaint was fixed before State Commission for hearing;
That the Respondents had not filed any such application on record, challenging the maintainability of the Complaint on the grounds of commercial purpose and therefore, no such issue was pending before the State Commission as on 30.08.2013 for their consideration. However, the State Commission on its own motion came to the said conclusion, which is improper and not maintainable in the eyes of law. 5. Ld. Counsel for Appellant argued that this is the only business of the Complainant which the Complainant runs for his livelihood and for earning bread and butter for himself and his family, and the said Wheel Loader was purchased for his business purpose and thus the Complainant is a Consumer within the meaning of Sec. 2 of the Consumer Protection Act, 1986; That the State Commission suo-motto and without having such issue before it for consideration, suddenly found that the complaint is in relation to repair of the Wheel Loader purchased by the Complainant from the Respondents for the business purpose of the Complainant and therefore it cannot be concerned with deficiency in service for any purpose. The State Commission also went further and came to the conclusion that since the transaction appears to be commercial, there is no consumer dispute and therefore further disposed off the complaint accordingly; That the State Commission grossly erred in not appreciating the fact that upon hearing the Complainant at the stage of admission, the complaint was admitted and notice was issued. At the time of admission itself, the Complainant had succeeded in satisfying the State Commission that the Complainant is a 'consumer' of the Respondents; That both the parties in general, and the Appellant in particular had not been given any opportunity by the State Commission on such issue of maintainability of the complaint, if any. 6. Ld. Counsel for Respondents argued that the Act is applicable, inter alia, in the case of purchase of goods for self-use and expressly excludes from its purview the purchase of goods for commercial purpose. The Act makes an exception for persons who have purchased goods for commercial purpose provided the goods have been purchased by the person exclusively for the purpose of earning his livelihood, by means of self-employment; That the purchased item (subject matter of the present complaint) is a Wheel Loader which is a heavy earth moving equipment, used in construction. During the trial before the State Commission, it was established that the Complainant is not only an entrepreneur but a Founding Director in at least one known construction company, by the name of BMK Buildcon Pvt. Ltd. It has also come on record that the subject equipment was in the use of the said BMK Buildcon Pvt. Ltd. after the complaint had been filed; That under these circumstances, it can hardly be said that such a person as the present Complainant/Appellant was engaging in his endeavours solely for the purpose of earning his livelihood. Business entails the notion of profit and the business of the present complainant is driven by the motive of profit. 7. This Commission has heard both the Ld. Counsel of Appellant and Respondents; perused the material available on record. Ld. Counsel for the Appellant was heard by Hybrid means as preferred by him. 8. The Appellant/Complainant is aggrieved that the Ld. State Commission in its impugned order passed had made a comment to the effect that he did not appear to be a 'consumer' since the transaction between the parties appeared to be for a product obtained for business purpose. It was further submitted that the complaint was filed by the appellant in his capacity as proprietor of the Complainant-Firm, and in Paragraph-8 of the same, the specific plea had been taken that it was business for the purpose of Complainant's livelihood for himself and his family, even though the Loader in question was purchased for such business purpose. 9. This submission was countered by the Ld. Counsel for the Respondents, who stated that this was not the original pleading of the Complainant, but had been incorporated by way of an amended complaint, which was never permitted by the Ld. State Commission. Ld. Counsel for the appellant who was then available on phone alone, since there seemed to be some hearing issue at his side during Video Conferencing, on specific query of the Commission submitted that his statement may be recorded at the Bar that the amended complaint had actually been permitted to be accepted by the Ld. State Commission on 20.12.2013. Ld. Counsel for the Respondents however could not categorically deny that such amended complaint had actually been ordered to be accepted by the Ld. State Commission on the date mentioned by the Appellant's Counsel. 10. If that be so, it was incumbent upon the Ld. State Commission to pass its Order holding the Complaint to be maintainable or otherwise, after considering the pleadings in the amended complaint to the effect that the Complainant had claimed that purchase of the Loader in question for business was for the purpose of his personal livelihood for himself and his family, in the context of claim that he was the sole Proprietor of the Complainant-Firm. But in its impugned Order, the Ld. State Commission did not even refer to such averment and would appear to have dismissed the complaint by perusing the previous unamended version filed originally, and in ignorance of the fact, that the relevant averment regarding the claim of having purchased the Loader in question for the purpose of own livelihood of the Complainant had already come on record. 11. Ld. Counsel for the Respondents has submitted that the claim that the business by the Complainant/Proprietorship Firm to the effect that it was the only source of livelihood of its Proprietor was false since he also happens to be associated with different Companies and entities as a Director, or otherwise holds positions of Authority. Even that question would have warranted a close consideration especially to find out whether the Complainant/Sole Proprietor namely Mr. Vikram Balasaheb Kakade was actually holding any other office elsewhere in any organisation or Company, as on the date of filing the original complaint to determine whether the business of Complainant-Firm was his only source of livelihood or not. But the Ld. State Commission did not attempt to go through the evidence led by the parties at all in this regard, and in a summary fashion dismissed the complaint by observing that, "since transaction appears commercial between Firms- M/s. Matoshree Stone Crusher, M/s. Greaves Cotton Lrd. And M.M. Engineers". 12. Ld. Counsel for the Respondents has also submitted that the Complainant- Mr. Vikram Balasaheb Kakade being a high profile person on the strength of his clout and wealth had been attempting to only drag the proceedings to harass the Respondents/ Opposite Parties, on account of which the Ld. State Commission had ultimately dismissed the complaint vide the Impugned Order. 13. In the opinion of this Commission, any reluctance to examine the actual merits of the case on the ground of the alleged personal profile of any litigant, would not subserve the ends of justice. Needless to mention, the personal status and standing of any litigant is essentially incidental to the actual merits involved, as everyone is to be treated equally in the eyes of law. In the present case, the Appellant/Complainant had approached the State Commission by describing himself as a "Consumer", in his capacity as the sole proprietor of the Firm "Matoshree Stone Crusher" and that the business of the said Proprietorship Firm was his only source of livelihood. This contention has been denied by the Respondents/Opposite Parties who claim that the Appellant happens to be gainfully engaged in several other occupations, including as Director of certain flourishing Companies. However what needs to be considered is as to whether on the date of purchasing the alleged defective product, as also on the date of filing the Complaint, the Complainant was engaged in any other gainful occupation apart from proprietorship of the Complainant Firm or not, only in which situation, the controversy pertaining to the status of the Complainant/Appellant as a bona fide "Consumer" can be determined. 14. In dismissing the Appeal therefore, the Ld. State Commission ought to have considered this issue on the basis of the actual evidence on record, and not by merely relying on the unamended Complaint, as originally filed. 15. Consequently, the Appeal is allowed after setting aside the impugned Order passed by the Ld. State Commission, and the original Consumer Complaint No. 60 of 2015 is directed to be decided afresh, after giving appropriate opportunities for hearing to both sides especially on the question whether the Complainant happens to be a bona fide "Consumer", on the basis of the available material on record. Further, in view of the submissions made on behalf of the respondents/Opposite Parties, they are granted an opportunity to even cross-examine the Complainant before the Ld. State Commission, to bring out the truth regarding his actual status and standing at the relevant times. If the respondents decide to cross-examine the complainant from their side, he would be bound to appear for that purpose before the Ld. State Commission whenever asked to do so, and in the event of his failure to so appear without any justifiable cause, the State Commission would be within its right to draw appropriate adverse presumptions against him. 16. With the aforesaid directions, the Appeal stands allowed, but subject to litigation costs of Rupees 20,000/- to the Respondents. 17. Parties are now directed to appear Before the Ld. State Commission on 20.12.2023. 18. Pending application(s), if any, also stand disposed off as having been rendered infructuous.
......................................J SUDIP AHLUWALIA PRESIDING MEMBER ................................................................................... AVM J. RAJENDRA, AVSM VSM (Retd.) MEMBER