State Consumer Disputes Redressal Commission
M/S Naaj Fly Ash Bricks Hiri vs M/S . J.K. Engineering Works on 27 February, 2018
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Complaint Case No.CC/2017/60
Instituted on : 22.09.2017
M/s. Naaj Fly Ash Bricks, Hirri,
Proprietor : Smt. Koushalya Jolhe,
W/o Gyanigram Jolhe, Aged 32 years,
R/o : Village Hirri, Police Station Sarangarh,
District Raigarh (C.G.) Pin Code 496450 ... Complainant.
Vs.
1. M/s J.K. Engineering Works, Tengnapali,
Proprietor : Jeevan Ram Ratre, S/o Jhingut Ratre,
Aged about 35 years, R/o : Village - Tengnapali, P.O. Kotri,
Police Station & Tahsil Sarangarh,
District Raigarh (C.G.) Pin Code 496450
2. Bank of Baroda,
Through Branch Manager, Branch Sarangarh,
Tehsil Sarangarh, District Raigarh (C.G.) ... Opposite Parties
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER.
COUNSEL FOR THE PARTIES: -
Shri Ashwani Kumar, Advocate for the complainant.
Smt. Veena Pani Paswan, Advocate for the O.P. No.1.
Shri Ashok Dubey, Advocate for the O.P. No.2.
ORDER
Dated : 27/February/2018 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. The complainant has filed this consumer complaint under Section 12 of the Consumer Protection Act, 1986 against the OPs seeking following reliefs :
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(a) To direct the O.P. No.1 to refund the amount of Rs.15,90,000/- received by the O.P. No.1 from the complainant and to pay interest thereon Rs.3,00,000/-, Rs.31,50,000/- towards financial loss and loss of production, Rs. 17,480/- towards electricity bill, Rs.72,000/- towards wages paid to the watchman, Rs.29,09,200/- Fixed Capital Investment Grant Amount, received from the Government, Rs.1,00,000/- towards compensation for mental agony and Rs.30,000/- towards cost of litigation, total amount Rs.81,68,680/- (Rupees Eighty One Lakhs Sixty Eight Thousand Six Hundred Eighty) to the complainant. The O.P. No.2 be directed to not charge interest on the loan amount provided by the O.P. to her till her unit is installed and started.
2. Brief facts of the complaint of the complainant are that the O.P. No.1 is having a commercial establishment in the name and style as J.K. Engineering Works and he is manufacturing and supplying the machinery etc. The complainant is an educated unemployed lady and belongs to Scheduled Caste category. The complainant influenced with the Industrial Policy of the C.G. Government and submitted all relevant documents and obtained necessary permission from concerned department and completed the formalities of obtaining loan for establishment of unit for manufacturing of fly ash bricks and its // 3 // sale at Hirri, P.S. and Tahsil Sarangarh, District Raigarh. The O.P. No.1 had given quotation of Rs.15,50,000/- to the complainant for the machine for manufacturing of fly ash bricks on 18.11.2015. At the time of giving quotation, the O.P. No.1 assured the complainant that within 45 days of receiving amount, the machine will be provided to her and the complainant on good faith believed on the O.P. No.1. For manufacturing fly ash bricks,the loan was sanctioned and she obtained loan from the O.P. No.2 Bank of Baroda, Branch Sarangarh. The O.P. No.2 deposited the amount of Rs.9,00,000/- vide DD No.113242 and Rs.3,00,000/- vide DD No.3,00,000/- total amount Rs.12,00,000/- which was received by the O.P. No.1. On believing O.P. No.1, at the place of Rs.15,50,000/-, the complainant paid Rs.2,00,000/- and Rs.1,90,000 through current account No.318302000000189 and Rs.9,00,000/- and Rs.3,00,000/- from loan account of the complainant. Thus the complainant paid total amount of Rs.15,90,000/- to the O.P. No.1 till 21.03.2016, the O.P. No.1 did not provide above machine to the complainant whereas the complainant has deposited total amount of Rs.15,90,000/- with the O.P. No.1 for fly ash bricks machine and the O.P. No.1 assured the complainant that the said machine will be provided to her immediately. On being assurance given by the O.P. No.1, the complainant constructed shed and also obtained electricity connection and she was paying a sum of Rs.4,000/- per months towards electricity bill. The complainant also employed a security guard for security of the shed and Rs.6,000/- per month i.e. Rs.72,000/-
// 4 // per annum to him. The O.P. No.1 did not provide fly ash brick machine to the complainant and did not install the above machine in the unit of the complainant, due to non-installation of the unit, the complainant is deprived 40% of the grant, which is to be provided by the Government because the complainant is a villager and a woman belongs to Scheduled Cases category and due to non supply of the fly ash machine to her by the O.P. No., the complainant suffered total loss of Rs.81,68,680/-. Hence the complainant filed instant complaint and prayed for granting reliefs as prayed by her in the relief clause of the complaint. The complainant is entitled to get the above reliefs.
3. The O.P. No.1 M/s J.K. Engineering Works, filed its written statement and averred that the O.P. No.1 did not commit any deficiency in service. The father in law of the complainant, Mahimaram Jolhe is having land at Village Hirri, P.H.No.35, Revenue Circle Hardi bearing khasra No.38 area 0.210 hectare, and land of aushalya W/o Gyarniram land bearing khasra No.41/1 area 0.138 hectrare, which is situated after one field near road, of land of Mahimaram and the complainant forcibly encroached the land of Mahimaram Jolhe and she cheated with the O.P. No.2. The fly ash bricks machine was supplied by the O.P. No.1 to the complainant M/s Naaj Fly Ash Bricks, but the complainant did not receive the machine. The Panchnama was prepared for that purpose and the same was intimated to the O.P. No.2. The complainant herself refused to take possession of the Fly Ash // 5 // Bricks machine. The O.P. No.1 did not commit any deficiency in service. The complaint is liable to be dismissed against O.P. No.1.
4. The O.P. No.2 filed its written statement and averred that the complainant obtained loan from the O.P. No.2 for purchasing Fly Ash Bricks machine and loan account No.31830600000 was opened in the O.P. No.2 Bank. The loan amount was deposited in the above account. The O.P. No.2 issued D.D. No.113242 and 113243 for Rs.9,00,000/- and Rs.3,00,000/- in favour of the O.P. No.1 and on the request of the complainant the same was provided to the O.P. No.1. It is a matter of common prudence that after receiving the amount , the machine will by supplied by the supplier. The O.P. No.2 did not commit any deficiency in service. The complaint is liable to be dismissed against O.P. N.2.
5. The complainant has filed documents. Documents are Quotation issued by J.K. Engineering Works, letter dated 04.07.2015 sent by Branch Manager, Bank of Baroda, Sarangarh Branch to M/s Naaj Fly Ash Bricks, Annexure D Facility Wise Terms and Conditions,, Transaction Inquiry, Demand Draft of Rs.9,00,000/-, Demand Draft of Rs.3,00,000/-, bill dated 18.03.2016 issued by Malik Construction, bill No.626 issued by C.G. State Power Distribution Co. Ltd. bill dated 10.01.2017 issued by C.G. State Power Distribution Co. Ltd., bill dated 08.05.2017 issued by Chhattisgarh State Power Distribution Co. Ltd., letter dated 30.12.2016 sent by the complainant to the Branch Manager, Bank of Baroda, Branch Sarangarh, letter dated 31.12.2016 sent by // 6 // Senior Branch Manager, Bank of Baroda to M/s J.K. Engineering Works, postal receipt, registered notice dated 16.05.2017 sent by Surendra Panigrahi on behalf of the complainant to J.K. Engineering Works, letter dated 06.07.2017 sent by Bank of Baroda to the complainant, Vastavik Nivas Praman Patra, Caste Certificate, Statement of Mark of Ku. Kaushalya Bhardwaj for B.A. Part Three, Project at Galance M/s Naaj Fly Ash Bricks, Rules, Complaint made by the complainant to Officer Incharge, P.S. Sarangarh, District Raigarh, against O.P. No.1, complaint made by the complainant against M/s J.K. Engineering Works, before Superintendent of Police, Raigarh, District Raigarh, notice sent by Police Sub Divisional Officer, Raigarh to Smt. Kaushalya Jolhe, Panchnama, Paper cuttings, demand draft, electricity bill No.626 issued by Chhattisgarh State Power Distribution Co. Ltd., D.D. of Rs.9,00,000/-, DD of Rs.3,00,000/-, letter dated 30.12.2016 sent by the complainant to the O.P. No.2,, letter dated 31.12.2016 sent by O.P. No.2 M/s J.K. Engineering Works, letter dated 06.07.2017 sent by the complainant to Bank of Board, Branch Sarangarh, District Raigarh, letter dated 06.07.2017 sent by the O.P. No.2 to the complainant, Electricity Bill dated 10.01.2017, Vastavik Nivas Praman Patra, Caste Certificate, acknowledgement, application filed by Gyaniram Jolhe before Nayab Tahsildar under Section 178(a) of C.G. Land Revenue Code against Mahimaram and other along with documents, objection raised by applicant / Party No.1 before Tahsildar, Sarangarh, objection raised by applicant / Party No.1 before Deputy Registrar, Sarangarh, // 7 // District Raigarh, receipt, Orders dated 04.03.2017 passed by Nayab Tahsildar, Sarangarh, District Raigarh (C.G.), complainant made by Gyaniram Jolhe to Officer Incharge, P.S. Sarangarh, District Raigarh (C.G.), letter dated 14.02.2017 sent by Gyaniram Jolhe to Officer Incharge, P.S. Sarangarh, District Raigarh, complaint made by Gyaniram Jolhe before Officer Incharge Sarangarh, District Raipur, complaint made by Gyaniram Jolhe on 14.02.2017 before Officer Incharge, P.S. Sarangarh, District Raigarh, complaint made by Gyaniram Jolhe before Officer Incharge, Police Station, Sarangarh, District Raigarh (C.G.).
6. The O.P. No.1 has filed documents. Documents are complaint made by Mahimaram Jolhe before Branch Manager, Bank of Baroda, Branch Sarangarh, letter dated 16.08.2017 sent by O.P. No.1 to the Branch Manager, Bank of Baroda, Sarangarh, registered notice sent by Surendra Panigrahi, Advocate on behalf of the complainant to O.P. No.1, reply sent by Jeevan Ratre to Shri Surendra Panigrahi, registered notice dated 18.08.2017 sent by R.K. Chaudhary, Advocate on behalf of Bank of Baroda to M/s J.K. Engineering Works, postal receipt, letter sent by O.P. No.1 to Branch Manager, Bank of Baroda, Branch Sarangarh, letter dated 23.11.2017 sent by Tahsildar, Sarangarh to Jeevanlal Ratre, letter sent by Patwari to Tahsildar, Sarangarh along with Panchnama, Panchnama prepared by Nirdhan Bhardwaj dated 15.09.2017, complaint made by Jeevanram Ratre to Officer Incharge, // 8 // P.S. Sarangarh, District Raigarh, letter dated 16.08.2017 sent by O.P. No.1 to Officer Incharge, P.S. Sarangarh, District Raigarh (C.G.), Cheque dated 09.07.2016 of Rs.60,000/- issued by O.P. No.1 in favour of Gyani Ram Jolhe.
7. The O.P. No.2 has filed documents. The documents are photocopies of cheque of Rs.12,00,000/-, demand draft of Rs.9,00,000/- and demand draft of Rs.3,00,000/-.
8. Shri Ashwani Kumar, learned counsel appearing for the complainant has argued that the O.P. No.1 is having a commercial establishment in the name and style as J.K. Engineering Works and he is manufacturing and supplying the machinery etc. The complainant is an educated unemployed lady and belongs to Scheduled Caste category. The complainant influenced with the Industrial Policy of the C.G. Government and submitted all relevant documents and obtained necessary permission from concerned department and completed the formalities of obtaining loan for establishment of unit for manufacturing of fly ash bricks and its sale at Hirri, P.S. and Tahsil Sarangarh, District Raigarh. The O.P. No.1 had given quotation of Rs.15,50,000/- to the complainant for the machine for manufacturing of fly ash bricks on 18.11.2015. At the time of giving quotation, the O.P. No.1 assured the complainant that within 45 days of receiving amount, the machine will be provided to her and the complainant on good faith believed on the O.P. No.1. For manufacturing of fly ash bricks, the loan // 9 // was sanctioned and she obtained loan from the O.P. No.2 Bank of Baroda, Branch Sarangarh. The O.P. No.2 deposited the amount of Rs.9,00,000/- vide DD No.113242 and Rs.3,00,000/- vide DD No.3,00,000/- total amount Rs.12,00,000/- which was received by the O.P. No.1. On believing O.P. No.1, at the place of Rs.15,50,000/-, the complainant paid Rs.2,00,000/- and Rs.1,90,000 through current account No.318302000000189 and Rs.9,00,000/- and Rs.3,00,000/- from loan account of the complainant. Thus the complainant paid total amount of Rs.15,90,000/- to the O.P. No.1 till 21.03.2016, the O.P. No.1 did not provide above machine to the complainant whereas the complainant has deposited total amount of Rs.15,90,000/- with the O.. No.1 for fly ash bricks machine and the O.P. No.1 assured the complainant that the said machine will be provided to her immediately. On being assurance given by the O.P. No.1, the complainant constructed shed and also obtained electricity connection and she was paying a sum of Rs.4,000/- per months towards electricity bill. The complainant also employed a security guard for security of the shed and Rs.6,000/- per month i.e. Rs.72,000/- per annum to him. The O.P. No.1 did not provide fly ash brick machine to the complainant and did not install the above machine in the unit of the complainant, due to non-installation of the unit, the complainant is deprived 40% of the grant, which is to be provided by the Government because the complainant is a villager and a woman belongs to Scheduled Cases category and due to non supply of the fly ash // 10 // machine to her by the O.P. No.1, the complainant suffered total loss of Rs.81,68,680/-. The O.P. No.1 committed deficiency in service. The complaint be allowed and the reliefs as prayed in the complaint be granted to the complainant.
9. Smt. Veena Pani Paswan, learned counsel appearing for the O.P. No.1 argued that the O.P. No.1 M/s J.K. Engineering Works, filed its written statement and averred that the O.P. No.1 did not commit any deficiency in service. The father in law of the complainant, Mahimaram Jolhe is having land at Village Hirri, P.H.No.35, Revenue Circle Hardi bearing khasra No.38 area 0.210 hectare, and land of aushalya W/o Gyarniram land bearing khasra No.41/1 area 0.138 hectrare, which is situated after one field near road, of land of Mahimaram and the complainant forcibly encroached the land of Mahimaram Jolhe and she cheated with the O.P. No.2. The fly ash bricks machine was supplied by the O.P. No.1 to the complainant M/s Naaj Fly Ash Bricks, but the complainant did not receive the machine. The Panchnama was prepared for that purpose and the same was intimated to the O.P. No.2. The complainant herself refused to take possession of the Fly Ash Bricks machine. The O.P. No.1 did not commit any deficiency in service. The complaint is liable to be dismissed against O.P. No.1.
10. Shri Ashok Dubey, learned counsel appearing for the O.P. No.2 has argued that the complainant obtained loan from the O.P. No.2 for purchasing Fly Ash Bricks machine and loan account No.31830600000 // 11 // was opened in the O.P. No.2 Bank. The loan amount was deposited in the above account. The O.P. No.2 issued D.D. No.113242 and 113243 for Rs.9,00,000/- and Rs.3,00,000/- in favour of the O.P. No.1 and on the request of the complainant the same was provided to the O.P. No.1. It is a matter of common prudence that after receiving the amount , the machine will by supplied by the supplied. The O.P. No.2 did not commit any deficiency in service. The complaint is liable to be dismissed against O.P. N.2.
11. We have heard arguments of learned counsels appearing for the parties and have also perused the documents filed by the parties in the complaint.
12. Now we shall examine whether the complainant is consumer ?
13. In the instant case the complainant pleaded that she belongs to Scheduled Caste category and she is an unemployed woman. After influenced with the industrial policy of the C.G. Government and submitted all relevant documents and obtained necessary permission from concerned department and completed the formalities ob obtaining loan for establishment of unit for manufacturing and sale of fly ash bricks. She want to establish unit at Hirri, P.S. and Tahsil Sarangarh, District Raigarh. The O.P. No.1 gave quotation of Rs.15,00,000/- to her. The O.P. No.1 assured the complainant that within 45 days of receiving // 12 // amount, the fly ash machine will be provided to her, but the fly ash machine was not provided by the O.P. No.1 to the complainant.
14. The complainant has filed copy of quotation of Rs.15,50,000/- issued by J.K. Engineering Works in favour of M/s Naaj Fly Ash Bricks, Hirri. The another document is letter dated 04.07.2015 sent by Branch Manager, Bank of Baroda, Sarangarh Branch to M/s Naaj Fly Ash Bricks Prop. Smt. Koushalya Jolhe. The loan was sanctioned by the O.P. No.2 to M/s Naaj Fly Ash Bricks. The complainant has also filed Prooject at Galance of M/s Naaj Fly Ash Bricks, in which it is mentioned thus:-
PROJECT AT GALANCE
1. Name & address of the M/s Naaj Fly Ash Bricks, Concern Gram - Hirri, Godum, Tahsil Sarangarh, District Raigarh (C.G.)
2. Name & address of the Smt. Koushalya Jolhe, Proprietor W/o Shri Gyani Jolhe, Gram - Hirri, Godum, Tahsil Sarangarh, District Raigarh (C.G.).
3. Constitution Proprietorship firm
4. Location of the Project Gram - Hirri, Godum, Tahsil Sarangarh, District Raigarh (C.G.).
5. Nature of Unit Manufacturing of Fly Ash Bricks
6. Plot area 0.139 Hec.
7. Installed capacity 32000 Bricks per day (On Singh Shift Basis)
15. The complainant herself pleaded that she engaged a Security Guard for protection of the shed and she constructed shed and also obtained electricity connection for preparing fly ash bricks. The fly ash bricks machine was purchased in the name of M/s Naaj Fly Ash Bricks, // 13 // Hirri, which is a proprietorship firm. It shows that the complainant is doing business manufacturing fly ash bricks and its sale and certainly she has engaged labourers for manufacturing of the fly ash bricks for said firm. It shows that the complainant purchased the Fly Ash Bricks machine for commercial purpose, therefore, the transaction between the parties is commercial transaction.
16. In Birla Technologies Limited v. Neutral Glass and Allied Industries Limited, (2011) 1 Supreme Court Cases 525, Hon'ble Supreme Court has 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 // 14 // 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."
17. In Rajeev Metal Works and Others v. Mineral & Metal Trading Corporation of India Ltd., (1996) 9 Supreme Court Cases 422, Hon'ble Supreme Court has observed thus :-
"6. Having given our anxious and very careful consideration to the respective contentions, the question emerges whether the appellant firm // 15 // 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 // 16 // 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 // 17 // 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."
18. In Kurji Holy Family Hospital v. Boehringer Mannheim India Ltd. & Ors., III (2007) CPJ 371 (NC), the Hon'ble National Commission has observed thus :
"23. Dealing with the similar terms of the sale agreement, in the case of Indochem Electronic & Anr. v. Additional Collector of Customs, A.P., II (2006) SLT 658 = I (2006) CPJ 1 (SC) = (2006) 3 SCC 721, the Apex Court held as under :-
// 18 // "22. The deficiencies in EPABX system supplied by the appellants were such as were required to be attended to immediately. If the appellants had not been able to attend thereto immediately, there would be a 'deficiency of services' on the part of the appellants as immediate attention to such complaints was part of the contract.
23. The State Commission as well as the National Commission have arrived at findings of fact as regards nature of deficiencies of service complained of by the respondent in terms of the provisions of the contract. If such breaches of conditions of warranty admittedly had taken place during the period of warranty, no exception can be taken to the judgment and order passed by the State Commission as also the National Commission.
24. The appellant had all along been aware that the system installed by it had not been functioning properly. On its own showing, it had been attending to the complaints made by the respondent relating to the functioning of the system. It has categorically been stated by the appellant itself that despite expiry of the period of warranty it had been attending to the complaints as and when made by the respondent which were of serious nature.
24. Similar is the position in the present case. Admittedly, the 'Swelab' was not functioning since the initial stage. Therefore, the respondents replaced it by another 'Swelab'. That also was not functioning despite its being repaired by the respondents' mechanics on a number of occasions. And, in such cases it would be a deficiency in service as defined in Section 2(1)(g) of the Consumer Protection Act, 1986. It is also to be stated that the Swelab Auto Counter AC 920-11 Haematology Analyzer cannot be used by the hospital, if it is defective or not functioning properly, because in such case, the pathological reports // 19 // will be inaccurate which will have adverse effect on diagnosis and treatment."
19. CCI Chambers Co-op. Hsg. Society Ltd. v. Development Credit Bank Ltd., AIR 2004 Supreme Court 184, Hon'ble Supreme Court has 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 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 // 20 // 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 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 // 21 // 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."
20. In JCB India Ltd. Vs. Mallappa Sangappa Mantri & Anr., IV (2012) CPJ 220 (NC)., Hon'ble National Commission has observed 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 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 // 22 // 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."
21. In Kishore Ramchandra Bhide v. Habibat India Agro Development Pvt. Ltd. & Ors., IV (2012) CPJ 706 (NC), Hon'ble National Commission, has observed thus :-
"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 // 23 // 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 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".
// 24 // A person cannot be said to be consumer if he purchases the second house."
22. In Biilagi Sugar Mill Ltd. v. Kessels Engineering Works (P) Ltd., II (2010) CPJ 242 (NC)., Hon'ble National Commission has 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 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".
23. In Sanjay D. Ghodawat v. R.R.B. Energy Ltd., IV (2010) CPJ 178 (NC), Hon'ble National Commission has observed thus :-
// 25 // "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 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."
// 26 //
24. In M/s Rohit Chemical & Allied Industries Pvt. Ltd. National Research Development Corporation, IV (2013) CPJ 87 (NC), Hon'ble National Commission has 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. 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 // 27 // 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 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 // 28 // 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".
25. The O.P. No.2 (Bank) has pleaded that the O.P. No.2 has paid a sum of Rs.12,00,000/- to the O.P. No.1. The O.P. No.2 has further pleaded that t is a matter of common prudence that after receiving the amount , the machine will by supplied by the supplier after making payment of the amount by the complainant. According to the O.P. No.2 only a sum of Rs.12,00,000/- was paid by the O.P. No.2 to the O.P. No.1, whereas according to the complainant, the cost of the Fly Ash Brick machine is Rs.15,50,000/-. It appears that the remaining cost of the machine i.e. Rs.3,50,000/- has not been paid by the complainant to the O.P. No.1. The O.P. No.1 pleaded that the O.P. No.1 sent the Fly Ash Bricks machine to the complainant M/s Naaj Fly Ash Bricks, Hirri, but the complainant refused to take the machine in her possession. The above fact is supported by affidavit of Jeevan Ram Ratre, Prop. M/s J.K. Engineering Works.
26. The complainant has filed copy of Panchnama, dated 06.12.2017, which has been given by Nirdhan Bhardwaj, Sarpanch of Gram // 29 // Panchayat Hirri, Tahsil Sarangarh, District Raigarh (C.G.) in which it is mentioned that a machine was brought in the spot through truck but at that time, Smt. Koushalya Jolhe was not present there. On the contrary, the O.P. No.1 has also filed copy of Panchnama dated 15.09.2017, which was given by the same Sarpanch namely Nirdhan Bhardwaj, Sarpanch Gram Panchayat Hirri, Tahsil Sarangarh, District Raigarh, in which it is mentioned that on 15.09.2017 i.e. Friday, the proprietor of M/s J.K. Engineering, Tengnapali (Sarangarh) brought machine of manufacturing of Fly Ash Brick (Black Bricks) in Village Hirri, but the Proprietor of Naaj Fly Ash Bricks, Smt. Koushalya Jolhe, W/o Shri Gyaniram Jolhe, Village Hirri refused to take delivery of the machine. Jeevan Ratre informed us regarding the same. We went to the spot and found that the machine is loaded in the truck. We also inquired to Smt. Koushalya Jolhe regarding the same, but she refused to take delivery of machine, then Jeevan Ratre took back the machine. Looking to both the Panchnamas, it appears that the O.P. No.1 sent the machine twice in the field of the complainant. First time, the complainant refused to take delivery of the machine and when on 06.12.2017, the O.P. No.1 again sent the machine, at that time, the complainant was not present in the spot, therefore, the machine was not delivered to the complainant, then the machine was taken back by O.P. No.1, therefore, it cannot be held that the O.P. No.1 had denied or avoided to deliver the machine to the complainant.
// 30 //
27. Looking to both the Panchnamas, it appears that both the Panchnamas are issued by Nirdhan Bhardwaj, Sarpanch, Gram Panchayat, Hirri, Tahsil Sarangarh, District Raigarh and in Panchnama dated 15.09.2017, it is specifically mentioned that the Fly Ash Bricks Machine was brought by Proprietor of M/s J.K. Engineering Works, Tengnapali for delivery to M/s Naaj Fly Ash Bricks, Prop. Smt. Koushalya Jolhe, but she refused to take delivery of the machine. It shows that the O.P. No.1 has performed his part of the contract.
28. In view of above discussions, it is established that the complainant purchased the Fly Ash Bricks Machine for commercial purpose and the dispute between the parties is not consumer dispute. On merits also, the O.P. No.1 went to deliver the Fly Ash Bricks Machine to the complainant, but the complainant herself refused to take delivery of the machine, therefore, the O.P. No.1, performed his part of contract. Therefore, the O.P. No.1 did not commit any deficiency in service. The complaint is not maintainable under Section 2(1)(d) of the Consumer Protection Act, 1986 as well as on merits. The complainant is not entitled to get any relief from this Commission and the complaint is liable to be dismissed.
29. Hence the complaint filed by the complainant, is dismissed but the complainant will be at liberty to approach appropriate Forum, for redressal of her grievances. The complainant is entitled to get exemption of // 31 // the time spent by her in prosecuting the instant complaint before this Commission.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
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