National Consumer Disputes Redressal
M/S Jcb India Ltd. vs Mr. Mallappa Sangappa Mantri on 1 August, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION No. 4260 OF 2010 (From the Order dated 18.08.2010 in Appeal No. 4099/2009 of Karnataka State Consumer Disputes Redressal Commission, Bangalore) M/s JCB India Ltd. Petitioner A-36, Mohan Co-op. Indl. Estate Mathura Road New Delhi-110044 Head Office 3/7, Mathura Road Ballabhgarh Haryana Versus 1. Mr. Mallappa Sangappa Mantri Respondents M/s Rohini Earth Movers H.No.322, Veeranna Gudioni Hadli Village, Navalgund Taluk Gadag District 2. Mr. S.D. Kulkarni Auth. Signatory M/s Aishwarya Earthmovers Plot No.8, Balagar Plots Near Nahima Hotel, Bhairadeevarakoppa P.B. Road, Hubli-580025 BEFORE: HONBLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HONBLE MR. SURESH CHANDRA, MEMBER For the Petitioner : Mr. Sanjeev Kumar Singh, Advocate For the Respondent No.1 : NEMO For the Respondent No.2 : Ex Parte Pronounced on : 1st August, 2012 ORDER
PER SURESH CHANDRA, MEMBER Shri Mallapa Sangappa Mantri who is respondent No.1 herein was the original complainant. He purchased a JCB machine manufactured by the petitioner company/OP No.2 from M/s Aishwarya Earthmovers, Hubli, Karnataka who was OP No.1. The said JCB machine was used for excavation work but it is alleged that the machine could not work properly to excavate the earth and while doing the excavation, its teeth were broken and even after welding the same it could not work properly. The problem was intimated to OP No.1 who did not take any steps nor replace the spare parts. According to the complainant, there was oil leakage, slow function of hydraulic pump, improper setting of rear bucket in the dipper nose and few other defects in the machine. The said defects were noticed during the warranty period and, therefore, the OPs/petitioners were liable to carry out the repairs free of cost. However, when in spite of repeated requests and demands, the same were not attended to by the OPs, a consumer complaint came to be filed before the District Forum , Belgaum alleging deficiency in service. On notice, the OPs filed their written statement before the District Forum denying all the averments made in the complaint while admitting the purchase of the machine by the complainant from the dealer/OP-1 for Rs.19 lacs with warranty of one year or 2000 hours whichever occurs earlier. They vehemently opposed the status of the complainant as a consumer under the Consumer Protection Act and maintainability of the complaint before the Consumer Forum. They also denied any deficiency in service on their part pertaining to the alleged defects and other submissions made by the complainant in regard thereto including loss of rent to the extent of Rs.7 lacs. It was also contended by the OPs that District Forum, Belgaum has no jurisdiction to entertain the complaint since the machine was purchased by the complainant at Hubli and hence they prayed for dismissal of the complaint. On appreciation of the issues involved and the evidence put on record by the parties, the District Forum returned its finding in favour of the complainant vide its order dated 28.7.2009 directing OPs-1 & 2 jointly and severally to pay compensation of Rs.1 lac to the complainant. When the petitioners filed an appeal challenging this order of the District Forum before the Karnataka State Consumer Disputes Redressal Commission, Bangalore (State Commission in short), the State Commission also confirmed the order of the District Forum and dismissed the appeal vide its order dated 18.8.2010 which is challenged now through the present revision petition.
2. The main question which has been raised before us by the petitioners is as to whether the complainant who had purchased the JCB machine for Rs. 19 lacs and was using it for earning profits by renting it out for excavation proposes can be regarded as a consumer even for the purposes 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.
3. We have heard Mr. Sanjeev K. Singh, Advocate, learned counsel for the petitioners. None has appeared on behalf of respondent No.1 and respondent No.2 was directed to be proceeded ex parte. It is contended by learned counsel for the petitioners that besides opposing the claim on the ground of jurisdiction as well as absence of any deficiency in service on their part, the petitioners right from initial stages of the complaint have been vehemently opposing its maintainability on the ground that the complainant / respondent No.1 is not a consumer because he was using the machine for commercial purposes by renting it out for excavation and earning profits. He submitted that by his own admission in the complaint, the complainant has alleged that he was forced to lose rental income of more than Rs. 7 lacs and hence has been put to heavy loss on account of alleged non-performance of the machine. In view of this and also the fact that the petitioners in their written statement before the District Forum as also in the appeal before the State Commission had raised this aspect but this important question was ignored and brushed aside without any cogent reason being recorded by the Fora below, he submitted that both the District Forum and the State Commission gravely erred in dealing with the complaint of the complainant who cannot be considered a consumer within the meaning of section 2(1)(d)(i) of the Act as amended w.e.f. 15.3.2003. In this context, he relied on the two cases decided by the National Commission on 20.4.2010 (Biilagi Sugar Mill Ltd.
Vs. Kessels Engineering Works (P) Ltd. [MANU/CF/00422010] and Sanjay D. Ghodawat Vs. RRB Energy Ltd. [CC No.155 of 2008] decided on 17.12.2009 in support of his contentions. He submitted that this is the most important issue because of which the complaint itself is not maintainable. However, coming to the merits, counsel denied the allegations of any deficiency in service on the part of the petitioners in attending to the reported problems in the functioning of the machine. He, therefore, submitted that since the Fora below committed grave error of jurisdiction in dealing with a dispute which cannot be regarded as a consumer dispute under the provisions of law, the impugned order cannot be sustained and is liable to be set aside.
4. We have carefully considered the submissions made by learned counsel for the petitioners. It is a fact that the petitioners have been strongly opposing the maintainability of the complaint before the Consumer Forum right from the stage of the District Forum throughout. In this context, it would be fair and just to reproduce their submission made in their written statement as under:-
4.
That before adverting to the complaint on merits, in law it is submitted that the complainant is not a consumer under section 2(1)(d) (i) of the Consumer Protection Act, 1986 since the complainant admittedly purchased the JCB machine for commercial purposes for earning profit. As could be seen from the averments in the complaint, the machine was purchased by the complainant nor for any private, personal use or for self employment but for commercial purposes for earning huge profits. Therefore, the complainant is not consumer and dispute raised by him is not a consumer dispute, the present complaint, therefore, not maintainable and on this ground alone it is liable to be dismissed by the Honble Commission. The Honble Supreme Court has laid down the law/principle in the case of M/s Laxmi Engineering Works Vs. PSG Industrial Institute reported in 1995 (2) CPJ-Page-1 that where the complainant purchased the machinery for business activity for making profits, the purchase of machinery was for commercial purpose and the complainant cannot be regarded as a consumer for the purpose of Consumer Protection Act. Same principles is also highlighted in the various other decisions of the Honble National Commission and other Honble Commission listed below:
a) 1994 (2) CPJ 30 (NCDRC) b) 1994 (2) CPJ 33 (NCDRC) c) 1995 (2) CPJ 119 (NCDRC) d) 1994 (2) CPJ 218 (NCDRC) e) 1986-96 Consumer 2654 (NC) i) Complainant No. 73/95-Shetty Construction vs Tauraus
Earthmovers (P) Ltd & Escorts J.C.B. (D.D. 17-11-2000) (Kar. SCDRC) The legislature in its wisdom has found it appropriate to bar and exclude goods which are being used for commercial purposes from the jurisdiction an ambit of the Consumer Protection Act, 1986 (hereinafter referred to as the Act). The Provisions of Section 2(i)(d)(i) of the Act makes that amply clear.
The nature of the machine concerned which is for excavating, loading and lifting extremely heavy weights of materials can be put for commercial use only.
The huge amount of Rs. 7,00,000/-
loss of rent as claimed by the Complainant removes any doubt, even assuming that there could be any, that the machine stood to purchase for commercial gains and profits.
The very cost of machine itself is about Rs.19,00,000/- establishes that it cannot be confined for the purposes of the complainant using the said machine all by himself for earning his livelihood. The subject machine has been purchased for the commercial purpose and with a view to earn profit. It is most respectfully submitted to this Honble Forum that such machine which cost Rs.19,00,0000/- are purchased for commercial purpose and with the intention to earn profit and not earn a livelihood by self-employment.
Good purchased for commercial purpose as well as services availed with respect to good purchase of commercial is now totally precluded by the amending act 62 of 2002 which explicitly now rules out services for commercial purpose from the ambit of the act.
5. In view of such detailed averments made by the petitioner in the written statement, it was absolutely necessary for the District Forum and the State Commission to take due note of the objections raised by the petitioners. Perusal of the orders of the Fora below indicates that this important aspect has almost been brushed aside without being dealt with adequately. In the face of such a preliminary objection supported by the case law, the burden of showing that the machine in question was actually being used by the complainant for earning his livelihood through self-employment necessarily passed on to the complainant because he has not given any information to the contrary in this respect in his complaint. On the other hand, as stated above, there is a clear admission on his part in his complaint that he had kept a number of people for running and operating the machine and that the machine was actually being used for earning income by renting it out for excavation from time to time. This being the admitted position emanating from the record, the State Commission erred in making the following observations in the impugned order:-
According to the respondent / complainant he has raised a huge loan from HDFC Bank and purchased JCB from the appellants/OPs. It is for the appellants/OPs to prove that the respondent / complainant who had purchased the vehicle/ JCB for commercial purpose. But failed to do so. Even if the vehicle purchased for commercial purpose, if any defects were noticed in the JCB / machine during warranty period, then complaint is maintainable.
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. Vijai Prakash Goyal Vs. The Network Ltd. [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 by 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 a 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 the 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 Act 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/s. P.S.G. Industrial Institute {(1995) 3 SCC 583}.
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(J.M. MALIK, J) PRESIDING MEMBER Sd/-.
(SURESH CHANDRA) MEMBER SS/