State Consumer Disputes Redressal Commission
Vincent Anty vs M/S M.B. Kirloskar Oil Engine Limited & ... on 12 March, 2014
pCHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Complaint Case No.14/2011
Instituted on : 03.08.2011
Vincent Anty, S/o Late C.J. Anty,
House No.12/1210, Raman Mandir Ward, Fafadih,
Raipur, District Raipur (C.G.) ... Complainant.
Vs.
1. M/s M.B. Kirloskar Oil Engine Limited,
Through : Managing Director,
Registered Office : Laxmi Rao Kirloskar Road,
Khadgi, Pune 411 003
2. J.C.B. India Limited,
Through : Managing Director,
23/7, Mathura Road,
Balabgarh (Haryana) - 121 004
3. M/s Dynamic Engineers,
Through : Manager, G.E. Road,
Raipur (C.G.) ... Opposite Parties
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MS. HEENA THAKKAR, MEMBER
COUNSEL FOR THE PARTIES: -
Shri R.K. Bhawnani, Advocate for complainant.
None for O.P.No.1 (Ex-parte),
Shri Jatin Joshi, Advocate for O.P.No.2.
Shri Priyank Mishra, Advocate for O.P.No.3.
ORDER
Dated : 12/03/2014 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. The complainant has filed this complaint under Section 17 of the Consumer Protection Act, 1986 against the opposite parties for seeking direction to the opposite parties (a) to provide new J.C.B. Machine with // 2 // original bill (b) to pay compensation of Rs.10,00,000/- for deficiency in service, unfair trade practice and for mental agony and to grant any other relief, which this Commission deems fit and just.
2. Brief facts of the complaint as per the complainant are : (1) that the O.P.No.1 is engaged in business of manufacturing engine and O.P.No.2 is engaged in business of manufacturing body and machine and O.P.No.3 is dealer of O.P.No.1 & 2 at Raipur from whom the complainant purchased J.C.B. Machine. The complainant purchased J.C.B. Machine J.S.80 for self employment for earning livelihood of himself and his family with the help of finance from O.P.No.3 and which is the only source of livelihood of the complainant and his family. The complainant purchased the J.C.B. Machine Model J.S.-80 on 31.03.2008 at the cost of Rs.25.40 lakhs invoice bill of which was given by the OPs but till the date the original bill has not been given by the OPs to the complainant. The complainant has operated the J.C.B. Machine as per the instructions given by the OPs and also got the servicing done from the authorized dealer in time and as per instructions of the OPs. During the servicing of 500 hours in the machine there was problem of Slow Swing and the engineers of the OPs told that on account of bucket, the speed was decreased. The complainant told them that at the time of purchase of machine bucket was fitted and the above problem is existed till the date. During warranty period, the hydraulic metal pipe of the machine was cracked // 3 // which was a manufacturing defect. On 14.04.2008 the complainant got the machine repaired from the OPs and had paid a sum of Rs.5,541/- as labour charges. On 22.11.2008, when the chassis of the machine was cracked, then the OPs fitted modified chassis and various parts were replaced for which the OPs received a sum of Rs.23,534/- towards labour charges. In the said machine, there were manufacturing defects on account of which it is facing problem frequently and regarding which the complainant made complaints to the OPs several time with a request to replace the said machine, but the OPs have only given assurance that they will repair the machine and no problem will be occurred in the machine. On 08.02.2009, there was problem in the machine. The engineers of the company repair it and restarted the machine but on 03.04.2009 the engine of the machine was ceased. The OPs have repaired the engine, but the problem is existed even today. The complainant suffered great loss on account of selling defective machine by the OPs and he also received information that the OPs have sold him JCB machine having inferior quality. On account of sale of defective machine he could not deposit the installments and he arranged the amount from other sources and paid some installments. Complainant made complaint before the OPs continuously but the OPs did not give any response, hence complainant filed consumer complaint.
// 4 //
3. The OPs have filed their separate written statements and raised preliminary objections.
4. The O.P.No.1 filed written statement and also raised preliminary objections. The O.P.No.1 has taken following preliminary objections :-
(i) That the complaint is based on false and fictitious ground, is misconceived, illegal and not tenable at law. It is emphatically submitted that by the O.P.No.1 that the complaint has been filed without following legal procedures.
(ii) That it is pertinent to note that the present complaint is barred by limitation period as per Section 24A of the Consumer Protection Act, 1986. The cause of action arose on 03.06.2008 as per averments made by the complainant in paragraph No.19 of complaint. Hence the State Commission does not have jurisdiction to entertain, try and decide the present complaint as the complaint is beyond the limitation period. Hence the complaint is liable to be dismissed.
(iii) That the complainant has purchased the alleged JCB Machine for commercial purpose.
5. O.P.No.2 also raised following preliminary objections as to the maintainability of the complaint :-
// 5 //
i) At the outset complaint is liable to be dismissed as being vague and evasive. The complainant is asking for ludicrous reliefs on baseless and frivolous grounds, therefore, the complaint is liable to be dismissed as threshold.
ii) The Legislature, after amendment of the Consumer Protection Act in the year 2002, has removed all doubts and made it clear that proceedings shall not lie under the Consumer Protection Act both with respect to goods and services if such goods and services are being used for commercial purposes. Obviously the intention of the Legislature is to restrict the ambit of the Act strictly to consumer goods that is goods which are serving consumption purposes only and are not being used for commercial purposes or in connection therewith. It is clearly evident from the face of record that the machine purchased by the complainant is entirely maintained by hired personnel. As such the purchase of JCB machine JS-80 by the complainant is not relatable to his self employment by any stretch of imagination. The complaint is vague, evasive, frivolous and vexatious therefore, deserves to be quashed on this ground alone.
iii) The complainant maliciously suppressed and concealed the material fact before Hon'ble Commission that complainant had already purchased another machine JCB 3DX of present // 6 // Opposite Party and earning his income out of its use even before the purchase of machine in question. This fact is clearly evident from the documents filed by the complainant himself and under circumstances it is preposterous and unbelievable to hold that, the said machine is only means of livelihood of the complainant and his family.
iv) It is a well settled law that "He who seeks justice must come with clean hands". The complainant is a businessman and has complied with various relevant procedures applicable for a business viz obtaining TIN Number, Sales Tax Numbers, Permanent Account Number (PAN) etc.
v) The complaint deserves to be quashed on the ground of lack of jurisdiction as this Commission does not have the territorial jurisdiction to try and entertain the complaint.
vi) It is pertinent to mention that, the instant complaint is involved and occupied with the technical and complicated questions of facts and law which will require adjudication after adducing and appreciation of evidence on each and every contentions raised by the complainant, which is only feasible in a regular civil suit to be filed by the complainant and cannot be tried and adjudicated before this Commission in which the proceedings are basically and fundamentally summary in nature.
// 7 //
6. O.P.No.3 also raised following preliminary objections regarding the maintainability of the complaint :-
a) The complaint is not maintainable for one simple reason that the transaction referred therein are commercial transaction not amenable to Consumer Redressal Tribunals. It would not be out of place to mention that the complainant is a businessman of some standing having obtaining TIN number, Central Sales Tax numbers from the Commercial Tax Department as well as PAN from the Income Tax Department long before the purchase of JCB Machine, make JS-80. As such the purchase of said machine by the complainant is not relatable to his self-employment by any stretch of imagination. Further, where the commercial use of the said machine is evident on the facts and circumstances of the case, the matter becomes beyond the purview of consumer dispute requiring outright dismissal of complaint on very threshold.
b) The complainant is guilty of suggestio falsi and suppresso veri.
He has deliberately suppressed the material facts and documents in a view to avail undue benefits in present lis. He does not state the period of warranty in respect of said machine not filed User Manual/Service Manual supplied to him at the time of delivery of said machine to him. A person, who has not come before the // 8 // Court with clean hands is not at all entitled for any relief, whatsoever.
c) The complainant being a businessman, as reflected on the face of record, he should have filed authenticated balance sheet for the relevant period to subst5antiate that there was really any damage as claim by him.
7. Shri Jatin Joshi, learned counsel appearing on behalf of O.P.No.2 and Shri Priyank Mishra, learned counsel appearing on behalf of the O.P.No.3 argued that the complainant is proprietor of Chhattisgarh Electrical Engg. Work, which is a service provider and trading company and was established in the year 1993. The said firm is engaged in sales and service of cold storages, iceplants equipments, commission and erection services for cold storage. The complainant is Proprietor of Chhattisgarh Electrical & Engineering Works. Earlier also the complainant had purchased JCB Machine. It appears that the complainant purchased the JCB Machine for commercial purpose and the complainant obtained TIN No., CST NO. and PAN No., which shows that the complainant is a businessman and he obtained the JCB Machine for commercial purpose, therefore, the complainant is not a "consumer" and dispute is not a "consumer dispute". Shri Jatin Joshi, placed reliance on JCB India Ltd. v. Mallappa Sangappa Mantri & Anr., IV (2012) CPJ 220 (NC); Kishore Ramchandra Bhide v. Habibat India Agro Development Pvt. Ltd. & Ors., IV (2012) CPJ 706 (NC);
// 9 // Biilagi Sugar Mill Ltd. v. Kessels Engineering Works (P) Ltd., II (2010) CPJ 242 (NC); and Sanjay D. Ghodawat v. R.R.B. Energy, IV (2010) CPJ 178 (NC).
8. Shri R.K. Bhawnani, learned counsel appearing on behalf of the complainant argued that the JCB Machine was purchased by the complainant for the purpose of earning livelihood by means of self- employment and the machine was non-functional during the warranty period. He further argued that the said machine was not purchased for commercial purpose. The machine was defective from very beginning and representative of the OPs visited so many times to the factory of the complainant but the defect could not be cured, therefore, the OPs committed deficiency in service and complainant is a consumer and dispute between the complainant and OPs is consumer disputes and therefore, this Commission has jurisdiction to take cognizance in the matter. He further argued that the aim of the Consumer Protection Act, 1986 is for providing speedy trial and simple redressal to the consumer disputes and merely on the ground of preliminary objections, it can not be decided only by raising preliminary objections and it can be decided only after appreciation of the material provided by the parties. He placed reliance on Kurji Holy Family Hospital v. Boehringer Mannheim India Ltd. & Anr., III (2007) CPJ 371 (NC); Bhanwar Kanwar v. R.K. Gupta & Anr. (Dr.), 2009 NCJ 675 (NC); CCI Chambers Co-op. Hsg. Society Ltd. v. Development Credit Bank Ltd., // 10 // AIR 2004 Supreme Court 184; National Seeds Corpn. Ltd. v. PV Krishna Reddy, I (2009) CPJ 99 (NC); Dr. J.J. Merchant and Ors. v. Shrinath Chaturvedi, 2003 NCJ 1 (SC) and Vimal Chandra Grover v. Bank of India, 2000-(SC3)-GJX-0287-SC, decided on April 26, 2000.
9. We have heard learned counsel for both the parties on preliminary objection.
10 In Birla Technologies Limited v. Neutral Glass and Allied Industries Limited., (2011) 1 Supreme Court Cases 525, Hon'ble Supreme Court observed thus :
"7. By its order dated 4.3.2004, the State Commission accepted the appellant's preliminary objection and dismissed the complaint. The respondent complainant, therefore filed First Appeal No.218 of 2004 before the National Commission. By its order dated 17.12.2009, which is impugned here, the National Commission reversed the order of the State Commission and held that the "goods" purchased by the respondent from the appellant were being used by the respondent for a commercial purpose and, therefore, the respondent was not a "consumer" within the meaning of Section 2(1)(d)(i) of the Act. However, the National Commission further held that notwithstanding such findings, the respondent was entitled to maintain a complaint under the Act with respect to the deficiency in service during one-year warranty period with respect to the said goods relying on Section 2(1)(d)(ii) of the Act.
10. Shri Siddharth Bhatnagar, learned counsel appearing on behalf of the respondent could not dispute this proposition and fairly accepted that the complaint was in fact filed on 26-6-2003 i.e. much after the // 11 // amendment to Section 2(1)(ii), by which the following words were added :
"but does not include a person who avails of such services for any commercial purpose".
11. In view of the findings of the National Commission that the goods sold by the appellant to the respondent complainant amounted to "goods" and that such goods were purchased for commercial purpose for earning more profits, there could be no dispute that even the services which were offered had to be for the commercial purpose. Nothing was argued to the contrary.
12. It seems that the whole error has crept in because of the wrong factual observation that the complaint was filed on 1.8.2000. In that view it has to be held that the complaint itself was not maintainable, firstly, on the count that under Section 2(1)(d)(i), the goods have been purchased for commercial purposes and on the second count that the services were hired or availed of for commercial purposes. The matter does not come even under the Explanation which was introduced on the same day i.e. on 15-3-2003 by way of the amendment by the same Amendment Act, as it is nobody's case that the goods bought and used by the respondent herein and the services availed by the respondent were exclusively for the purpose of earning the respondent's livelihood by means of self-employment. In that view, it will have to be held that the complaint itself was not maintainable in toto."
11. In Rajeev Metal Works and Others v. Mineral & Metal Trading Corporation of India Ltd., (1996) 9 Supreme Court Cases 422, Hon'ble Supreme Court observed thus :-
"6. Having given our anxious and very careful consideration to the respective contentions, the question emerges whether the appellant firm // 12 // is a consumer. The word 'consumer' has been defined under Section 2(1)(d)(i) and (ii) thus :
"(d) 'consumer' means any person who, -
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtain such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid or partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person."
7. Clause (i) provides that one who buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promise, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose, is a consumer. The admitted case is that this does not apply. The question, therefore, is whether the service of the respondent availed by the appellants is covered under Section 2(1)(d)(ii)? Whether the transaction in the // 13 // nature of buying the goods for a consideration which has been paid or promised? Whether the transaction in question excludes the person who obtains such goods for resale or for any commercial purpose from the purview of the Act? It is true as contended for the appellants that the definition requires to be interpreted broadly so as to give effect to the legislative intention envisaged under the Act. But when the legislature having defined the term 'consumer' in broader terms, sought to exclude certain transactions from the purview of the Act what could be the meaning that would be assigned to the exclusionary clause, viz., "but does not include a person who obtains such goods for resale or for any commercial purpose". The intention appears to be that when the goods are exchanged between a buyer and the seller for commercial purpose or for resale, the object of the Act appears to be to exclude such commercial transactions from the purview of the Act. Instead, legislature intended to confine the redressal to the services contracted or undertaken between the seller and the 'consumer' defined under the Act. It is seen that the appellants admittedly entered their letters of credit with the respondent. The respondent is a statutory authority to act as canalised agency on behalf of the industries to procure required goods on their behalf from the foreign seller and acts in that behalf in terms of the letter of credit and conditions enumerated thereunder. It is seen that the respondent did not undertake any direct responsibility for supply or liability for non-supply of the goods. On the other hand, the appellants had solicited to have the goods supplied to it through the respondent and opened letter of credit in favour of the respondent. After collecting requirement from various industries in the country admittedly a consolidated demand for supply of the required quantity of the G.P. Sheets was indented with foreign sellers so as to procure the required goods for onward supply to the appellant and others. The goods supplied were required for commercial purpose, i.e., for manufacture and resale as finished goods during the course of their commercial business. Under the circumstances, the appellants // 14 // intended to purchase these goods for commercial purpose, namely to manufacture the tin sheets for resale. It is true that the word 'resale' used in the exclusionary clause of Section 2(1)(d) (i) was used in connection with the purchase of goods defined in the Sale of Goods Act for commercial purpose The ultimate object of the supply of the goods, namely, G.P. sheets to the appellants was manufacture of finished goods for resale. The goods were intended to be used for commercial purpose. Thus, considered, we are of the opinion that the appellants are not consumers by virtue of the exclusionary clause under Section 2(1)(d)(ii). Therefore, they would not come under Section 2(1)(d)(ii) of the Act. Since the object of the supply and purchase of the goods was commercial purpose, it would certainly come within the exclusionary clause of Section 2(1)(d)(ii). Otherwise, if the construction sought to be put up by Mr. Sanghi is given effect to, while foreign sellers are not liable under the Act within the definition of Section 2(1)(d) as they get excluded from the purview of the Act, the canalising agency would be fastened with the liability. Thereby, the definition of the word 'consumer' under Section 2(1)(d)(ii) is not attracted.
8. Consequentially, clause (ii) of Section 2(1)(d) does not apply. Considered from this perspective, we are of the opinion that the appellants are not consumer under Section 2(1)(d)(ii) of the Act. Thereby the complaint would not lie under Section 21 of the Act."
12. CCI Chambers Co-op. Hsg. Society Ltd. v. Development Credit Bank Ltd., (Supra), Hon'ble Supreme Court observed thus :-
"7. In the Indian Medical Association case (supra) this Court noticed the powers conferred on the several for a under the Act. The procedure applicable (including the exercise of some powers of the Civil Court under the Code of Civil Procedure having been made available to the fora under the Act) and held that the nature of averments made in the complaint is not by itself enough to arrive at a conclusion that the // 15 // complaint raises such complicated questions as cannot be determined by the NCDRC. It is only when the dispute arising for adjudication is such as would require recording of lengthy evidence not permissible within the scope of a summary enquiry that a forum under the Act may ask the complainant to approach the Civil Court. The for a made available under the Act are in addition to and not in derogation of the provisions of any other law for the time being in force and the jurisdiction of the conventional Courts over such matters as are now cognizable under the Act has not been taken away. A three Judge Bench of this Court recently in Dr. J.J. Merchant and others case (supra) specifically dealt with the issue as to the guidelines which would determine the matter being appropriately dealt with by a Forum under the Act or being left to be heard and decided by a Civil Court.
This Court noticed that the for a under the Act are specifically empowered to follow such procedure which may not require more than or delay the proceedings. A Forum under the Act is entitled, and would be justified. In evolving a procedure of its own and also by effectively controlling the proceedings so as to do away with the need of a detailed and complicated trial and arrive at a just decision of the case by resorting to the principles of natural justice and following the procedure consistent with the principles thereof, also making use of such of the powers of Civil Court as are conferred on it. The decisive test is not the complicated nature of the questions of fact and law arising for decision. The anvil on which entertainability of a complaint by a Forum under the Act is to be determined is whether the questions though complicated they may be are capable of being determined by summary enquiry i.e. by doing away with the need of a detailed and complicated method of recording evidence. It has to be remembered that the fora under the Act at every level are headed by experienced persons. The National Commission is headed by a person who is or has been a Judge of the Supreme Court. The State Commission is headed by a person who is or has been a Judge of the // 16 // High Court. Each District Forum is headed by person who is or has been or is qualified to be a District Judge. We do not think that mere complication either of facts or of law can be a ground for the denial of hearing by a Forum under the Act. In Synco Industries case (supra) this Court upheld the order of NCDRC holding the complaint before it not a fit case to be tried under Act and allowing liberty to the complainant to approach the Civil Court because this Court agreed with the opinion formed by the Commission that "very detailed evidence would have to be led both to prove the claim and thereafter to prove the damages and expenses." The Court concluded that in any event it was not an appropriate to be heard and disposed of in a summary fashion."
10. In our opinion the decision arrived at by the NCDRC is premature. The Commission ought to have issued notice to the respondent and taken its pleadings on record. Only when the pleadings for both parties were available should the Commission have formed an opinion as to the nature and scope of enquiry, i.e. , whether the questions arising for decision in the light of the pleadings of the parties required a detailed complicated investigation into the facts which was incapable of being undertaken in a summary and speedy manner. Then the Commission could have justifiably formed an opinion on the need of driving away the complainant to the Civil Court. Mere complicated nature of the facts and law arising for decision would not be decisive."
13. In JCB India Ltd. Vs. Mallappa Sangappa Mantri & Anr., (Supra), Hon'ble National Commission held thus :-
"6. We have no manner of doubt in holding that the aforesaid observations of the State Commission based on which the impugned order was passed were not only contrary to the facts on record but against the settled law in this regard and hence the impugned order // 17 // cannot be sustained. The reliance of the State Commission on the decision rendered by the National Commission in the case of Dr. Vijay Prakash Goyal v. The Network Ltd., IV (2005) CPJ 206 (NC) = 2006 (1) CPR 164 (NC), is ill-placed since the present dispute has arisen after the amendment of Section 2(1)(d)(i) containing definition of a consumer w.e.f. 15.3.2003. Keeping in view the admitted position emanating from the complaint itself and other aspects of this case, we are convinced that the machine was being used by the complainant for earning profits and hence for commercial purposes by employing a number of people and we do not find any denial to these facts buy the complainant anywhere on record. In the circumstances, as already held by this Commission in the cases cited by the Counsel, we are of the considered view that when a customer buys goods for commercial purposes and avails of services attached to the goods in the nature of warranty, he cannot be considered to be consumer even for the purpose of services during the warranty period in view of the amendment to Section 2(1)(d)(i) of the Act which came into force w.e.f. 15.3.2003. In view of this, the complainant / respondent No.1 cannot be held to be a consumer and hence the complaint in question is not maintainable before any Consumer Forum. Consequently, the revision petition stands allowed and the impugned order is set aside and complaint is dismissed with no order as to costs. Liberty, however, is granted to the respondent No.1/complainant to approach appropriate Forum for redressal of his grievance and in case he chooses to do so, he can claim the benefit of Section 14 of the Limitation for the time spent before the Consumer Fora in accordance with the ruling given by the Apex Court in the case of Laxmi Engineering Works v. P.S.G. Industrial Institute, (1995) 3 SCC 583."
14. In Kishore Ramchandra Bhide v. Habibat India Agro Development Pvt. Ltd. & Ors., (Supra), Hon'ble National Commission, observed thus :-
// 18 // "7. The Supreme Court has discussed the term 'consumer' in the celebrated authority reported in Laxmi Engineering Works v PSG Industrial Institute, II (1995) CPJ 1 (SC) = 1995 3 SCC 583, wherein it was held :
"The National Commission appears to have been taken 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 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 - Parliament stepped in and added the explanation to Section 2(1)(d) by Ordinance / Amendment Act, 1993. The explanation excludes certain purposes from the purview of the expression 'commercial purpose' - a case of exception to an exception. Let us elaborate : a person who buys a typewriter or a car and uses them for his personal use is certainly a 'consumer' but a person who buys a typewriter or a car for typing others' work, for consideration or for plying the car as a 'taxi', can be said to be using the typewriter / car for a commercial purpose. The explanation however clarifies that in certain situations, purchase of goods for 'commercial purpose' would not yet take the purchaser out of the definition of expression of expression 'consumer'. If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of 'self employment', such purchaser of goods is yet a 'consumer'. In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, , he does not cease to be a consumer. In other words, if the buyer of goods uses them himself, i.e. by self-employment, for earning his livelihood, it would not be treated as a 'commercial purpose' and he does not cease to be a consumer for the purposes of the Act. The explanation reduces the question, what is a 'commercial purpose', to a question of fact to be // 19 // decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz., 'uses them by himself ', 'exclusively for the purpose of earning his livelihood ' and 'by means of self-employment' make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself by employing himself for earning his livelihood. A few more illustrations would serve to emphasise what we say. A person who purchases an auto-rickshaw to ply it himself on hire for earning his livelihood would be a consumer. Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer. A person who purchases a lathe machine or other machine to operate it himself for earning his livelihood would be a consumer. (In the above illustrations, 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 consumer). As against this, a person who purchases an auto-rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person, would not be a consumer.
A person cannot be said to be consumer if he purchases the second house."
15. In Biilagi Sugar Mill Ltd. v. Kessels Engineering Works (P) Ltd., (Supra), Hon'ble National Commission observed thus :-
"3. From the facts narrated in the complaint, it is clear that the Turbine (T.G. Set) in question had been purchased by the complainant for commercial purpose and, purchase for commercial purpose is excluded under Section 2(1)(d)(i) of the C.P. Act. Likewise, the services of the warranty for commercial purpose are also excluded for commercial purpose under Section 2(1)(d)(ii) w.e.f. 15.3.2003. A Division Bench of this Commission to which one of us (R.K. Batta, J) was a party has after scrutiny of a large number of judgments, which // 20 // actually pertain to the pre-amendment period i.e. before 15.3.2003, in Meera Industries v. Modern Constructions, R.P. No.1765 of 2007 decided on 22.5.2009, wherein it was held :
"In view of the above, we are of the opinion that whether a customer buys goods for commercial purpose and avails of services attached to the goods in the nature of warranty, he cannot be considered to be a consumer even for the purpose of services during the warranty period in view of the amendment to Section 2(d)(ii) of the Act, which came into force w.e.f. 15.3.2003. In view of this, the complainant cannot be held to be a consumer with reference to the services attached to the warranty and the complaint is not maintainable".
16. In Sanjay D. Ghodawat v. R.R.B. Energy Ltd., (Supra), Hon'ble National Commission observed thus :-
"21. In the complaint it was contended that the complainant is a consumer within the meaning of Section 2(1)(d)(ii) of the Consumer Protection Act, since the complainant had engaged and availed the services of OP for providing software. The main prayer in the complaint was seeking directions to the OP to rectify the defects in the services to provide 7 modules (software system). It was only in the alternative that refund of the entire consideration was sought with interest. In the complaint, the complainant had alleged that contract with OP was entered into on 1.6.1998 pursuant to which, the software was to be developed in 15 months from 1st April, 1998 till 30th July, 1999. The complainant had also pleaded that the OP had agreed to provide one year warranty from the final date of installation for one year and annual maintenance. The complainant noted defects in the modules as also shortcomings in OP's services during the warranty period in the year 2000. The grievance of the complainant is that the services during the warranty period were not provided and the defects // 21 // were not rectified. Hence, complaint was filed on 1.8.2000. Prior to the amendment Section 2(1)(d)(ii) by Amendment Act, 2002 a person hiring or availing services for consideration was not excluded even though the services were availed for any commercial purpose. Therefore, in this case, if there was any deficiency in service during the warranty period, the complaint could be maintained before the Consumer Forum for the said purpose. Accordingly, insofar as defects in service during the warranty period are concerned, the case is governed and covered by the judgments of this Commission relating to the pre-amendment period, which has been referred to in Meera Industries, Howrah v. Modern Constructions, Howrah (supra). Therefore, the complaint in F.A. No.218/04 with respect to the deficiency of service during the warranty period is maintainable and appeal to that extent is allowed and the order of the State Commission to that extent is modified with no order as to costs."
17. In M/s Rohit Chemical & Allied Industries Pvt. Ltd. National Research Development Corporation, IV (2013) CPJ 87 (NC), Hon'ble National Commission observed thus :
"22. In Laxmi Engineering Works v. P.S.G. Industrial Institute, AIR 1995 SC 1428, it was held :-
"12. Now coming back to the definition of the expression 'consumer' in Section 2(d), a consumer means in so far as is relevant for the purpose of this appeal, (i) a person who buys any goods for consideration; it is immaterial whether the consideration is paid or promised, or partly paid and partly promised, or whether the payment of consideration is deferred; (ii) a person who uses such goods with the approval of the person who buys such goods for consideration; (iii) but does not include a person who buys such goods for resale or for any commercial purpose. The expression 'resale' is clear enough.
// 22 // Controversy has, however, arisen with respect to meaning of the expression "commercial purpose". It is also not defined in the Act. In the absence of a definition, we have to go by its ordinary meaning. 'Commercial' denotes "pertaining to commerce" (Chamber's Twentieth Century); 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 merchandise, on a large scale" (Concise Oxford Dictionary). The National Commission appears to have been taken 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 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 - Parliament stepped in and added the explanation to Section 2(1)(d) by Ordinance / Amendment Act, 1993. The explanation excludes certain purposes from the purview of the expression 'commercial purpose' - a case of exception to an exception. Let us elaborate : a person who buys a typewriter or a car and uses them for his personal use is certainly a 'consumer' but a person who buys a typewriter or a car for typing others' work, for consideration or for plying the car as a 'taxi', can be said to be using the typewriter / car for a commercial purpose. The explanation however clarifies that in certain situations, purchase of goods for 'commercial purpose' would not yet take the purchaser out of the definition of expression of expression 'consumer'. If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of 'self employment', such purchaser of goods is yet a 'consumer'. In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, , he does not cease to be a consumer. In other words, if the buyer of goods uses them himself, i.e. by self-
// 23 // employment, for earning his livelihood, it would not be treated as a 'commercial purpose' and he does not cease to be a consumer for the purposes of the Act. The explanation reduces the question, what is a 'commercial purpose', to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz., 'uses them by himself ', 'exclusively for the purpose of earning his livelihood ' and 'by means of self-employment' make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself by employing himself for earning his livelihood. A few more illustrations would serve to emphasise what we say. A person who purchases an auto-rickshaw to ply it himself on hire for earning his livelihood would be a consumer. Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer. A person who purchases a lathe machine or other machine to operate it himself for earning his livelihood would be a consumer. (In the above illustrations, 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 consumer). As against this, a person who purchases an auto-rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person, would not be a consumer. This is necessary limitation flowing from the expressions "used by him" and "by means of self-employment in the explanation. The ambiguity in the meaning of the words "for the purpose of earning his livelihood" is explained and clarified by the other two sets of words".
18. Looking to the documents A-1 and Annexure D-9, it appears that the complainant is proprietor of Chhattisgarh Electrical and Engineering Works and is engaged in trading business.
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19. The complainant has filed document i.e. A-1, A-9 and A-17. The O.P.No.3 has also filed document Annexure - O-1 i.e. Tax Invoice for the JCB Machine, which was purchased on 12.10.2007 and it's value was Rs.15,13,656/- . The questioned JCB Machine was purchased on 31.03.2008 and it's value was Rs.24,42,308/-.
20. It appears that the complainant had purchased two JCB machines on different dates. In document Annexure O-2 the name of consignee is mentioned as M/s Chhattisgarh Electrical and Engineering Works, Behind Jailaxmi Complex, Raman Mandir Marg, Fafadih, District Raipur (Chhattisgarh).
21. Looking to the above documents, it appears that the complainant is Proprietor of M/s Chhattisgarh Electrical and Engineering Works, and the complainant is engaged in trading business and JCB Machine was also purchased by him for commercial purpose and not for his livelihood. Therefore, the transaction between the parties is "commercial transaction and complainant is not "consumer: within definition of Section 2(1)(d)(i) of the Consumer Protection Act, 1986.
22. Under these circumstances, we are of the considered view that the JCB Machine was purchased by the complainant for "commercial purpose" and the transaction was "commercial transaction". Therefore, the complainant is not a "consumer" and this Commission has no // 25 // jurisdiction to entertain the complaint of the complainant. The complainant can approach the appropriate Forum.
23. Therefore, the complaint of the complainant, is dismissed but the complainant will be at liberty to approach appropriate Forum.
(Justice R.S. Sharma) (Ms. Heena Thakkar)
President Member
/03/2014 /03/2014