State Consumer Disputes Redressal Commission
Anchor Daewoo Industries Limited, & ... vs M.Rajagopal, Kilpauk, Chennai 600 010 on 30 September, 2010
BEFORE THE STATE CONSUMER DISPUTES REDRESSALA COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSALA COMMISSION, CHENNAI Present : Honble Thiru Justice M.THANIKACHALAM, PRESIDENT Tmt. Vasugi Ramanan, M.A., B.L., MEMBER-
I Thiru.S.Sambandam, B.Sc., MEMBER-II F.A. NO.80 /2007 [Against the Order in O.P.No.34/2004 on the file of DCDRF, Chennai (South)] DATED THIS THE 30TH DAY OF SEPTEMBER-
20101. Anchor Daewoo Industries Limited, Previously called as Anchor Daewoo Electronics Limited, Rep. by its Managing Director, C Wing, I Floor, Opp.
Peninsula Corporate Park, Off. G.K.Marg, Lower Parel (West), Mumbai 400 013.
2. Anchor Daewoo Industries Limited, Previously called as Anchor Daewoo Electronics Limited, Rep. by its Manager, No.43, 2nd Floor, Medavakkam Tank Road, Kilpauk, Chennai 600 010. ::
Appellants / Opp.parties.
-
Versus -
M.Rajagopal, Sole Proprietor, Ennore Muds & Chemicals, Having Office at A-12, Anna Nagar East, Kilpauk, Chennai 600 010 ::
Respondent /Complainant.
The respondent as complainant filed a complaint before the District Forum against the Appellants / Opposite parties, praying to direct the opposite parties to pay the complainant Rs.75,850/- being the cost of the refrigerator with interest till date together with further interest at 24% on the sum of Rs.57,900/- from the date of complaint till realization, duly taking back the refrigerator supplied, to pay a sum of Rs.50,000/- as damages and to pay the cost of the complaint. The District Forum allowed the complaint against the opposite parties 1 & 2.
Against the said order, this appeal is preferred praying to set aside the order of the District Forum dated: 31.07.2006 in O.P.No.34/2004.
This appeal coming before us for hearing finally on 20.9.2010, upon hearing the arguments of the counsels on either side, this Commission made the following Order:
Counsel for the Appellants/ Opp. parties : M/s. Kumar & Baskar Respondent / Complainant : M/s. V.Balaji M. THANIKACHALAM J, PRESIDENT
1. The opposite parties are the appellants.
2. The respondent in this appeal who is the complainant, had purchased a Refrigerator from the authorized dealer of the opposite parties, on 29.4.1998 by paying a sum of Rs.57,900/-. The said refrigerator failed to function properly, satisfactorily and in fact, the compressor installed in the refrigerator broken down, in the 2nd week of February-2002. Even the replacement of the compressor, failed to function, causing problem, resulting replacement once again, on 2/5/2003 which also failed for the third time on 6.5.2003. Because of the defective refrigerator, and its non-functioning as expected, caused mental agony and unnecessary problems. Thus, complaining deficiency, a case came to be filed for the recovery of price, with interest in addition to a compensation of Rs.50,000/- by the consumer / complainant.
3. The opposite parties, denying the averments in the complaint, opposed the claim of the complainant, inter-alia, on the grounds, that the refrigerator was put to use for commercial purpose, not for personal use, and therefore the Consumer Fora has no jurisdiction, that because of the improper use and mis-handling, if at all, the problems would have occurred which were properly rectified, even replacing the compressor, which cannot be described as deficiency in service, thereby praying for the dismissal of the complaint.
4. The District Forum by its order dated 31st July-2006, recording the findings that the refrigerator was not purchased for commercial purpose, thereby the Forum has jurisdiction, that because of the repeated broken down of the refrigerator, the manufacturing defect has been established, and that, Section 22 of Sick Industrial Companies Act cannot be a bar for the complaint proceeding further. Thus, concluding the petition was allowed, directing the opposite parties, to refund a sum of Rs.57,900/- on returning of the old refrigerator along with compensation of Rs.10,000/- which is impugned here.
5. Heard, the learned counsel appearing for either side, perused the documents, written submissions as well as the order of the District Forum.
6. The complainant is carrying on business, as sole Proprietor under the name and style of Ennore Muds and Chemicals. Probably for the use of the office, admittedly by paying a sum of Rs.57,900/-, to the dealers of the opposite parties, who are the makers of the refrigerator in question on 29/4/1998, the complainant had purchased the refrigerator. As reported in the complaint, it had caused major problems viz., compressor break down thrice, though replaced, repaired, that too, within the warranty period. However, it was not functioning, to the satisfaction of the complainant.
Therefore, alleging deficiency, manufacturing defect, a case came to be filed, ended in favour of the complainant, which is now under challenge.
7. An attempt was made on behalf of the appellant, to set aside the order of the District Forum on three main grounds, viz., i) purchase of refrigerator was for commercial purpose and therefore, the Forum has no jurisdiction, ii) that whenever any complaint was preferred, regarding the refrigerator which was promptly attended, thereby proving the efficiency, and no deficiency in service, and iii) that, because of the proceedings pending under the Sick Industrial Companies Act 1985, the case is not maintainable, which are all opposed, informing, for all these defense, legal grounds were recorded by the District Forum.
8. The complainant as sole proprietor carrying on business is not in dispute, which alone will not take us to the conclusion, that the purchase of the refrigerator by the company should, be construed that is for commercial purpose, or transaction or purchase of goods, is to be construed as commercial purpose unless it is proved as aimed, motivated, to acquire profits. In this context, we have to see the definition for consumer under Section 2(d)(i) of C.P. Act which says, a person 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 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 obtains such goods for resale or for any commercial purpose.
Admittedly, the refrigerator in question was not purchased, for resale, or for producing any goods, for commercial purpose aiming profit. Therefore, in our considered opinion, though commercial concern had purchased the refrigerator, it will not come within the meaning of commercial purpose, since by using the refrigerator, no profit was derived by the complainant. It seems, the complainant had commenced the business, for the purpose of earning his livelihood and for the personal use, the refrigerator has been purchased, though in the name of business name. For these reasons, we are of the considered opinion, the purchase of refrigerator will not come within the meaning of commercial purpose and the Fora has every jurisdiction to deal this case.
9. Even as admitted in the written version, which is pleaded in the complaint also, there was break down of compressor, which is the main part of any refrigerator. It had happened thrice, thereby exposing its inherent manufacturing defect. Though, the opposite parties had admitted, that whenever the mal-functioning of the compressor reported, it was replaced, with a new one, freely, that has not relieved the defects, in the refrigerator, subsequently, functioning well, properly, at least for some considerable time. When the refrigerator caused many problems, within the warranty period, the complainant felt it may not be safe, for him to have the refrigerator in which thinking, we cannot find default, since a person who had paid so much of amount, is entitled to have a refrigerator free from problems, which had not happened in this case. Because of the manufacturing defect as admitted, the complainant is entitled to the refund of the sale price, which was ordered correctly, in which finding we cannot differ. The District Forum, relying upon judicial precedent, has come to the conclusion, since it is not the case of the creditor or debtor relationship, there is no bar, despite a proceedings has been initiated under the Sick Industrial Companies Act 1985. On this ground also, the appeal is not liable to be accepted.
10. The District Forum considering all the defense raised, based upon the proved and admitted facts, passed an appropriate order, which deserves the endorsement, by this Commission.
12. In the result, the appeal is dismissed. No cost.
S. SAMBANDAM VASUGI RAMANAN M. THANIKACHALAM MEMBER II MEMBER I PRESIDENT Sv / Vol. F. / F. A. ORDERS / F.A. 80 of 2007