National Consumer Disputes Redressal
Polymech Plast Machines Ltd. And Anr. vs Apple Plast Pvt. Ltd. on 14 January, 2004
Equivalent citations: IV(2006)CPJ172(NC)
ORDER
B.K. Taimni, Member
1. Appellant was the opposite party before the State Commission. Brief facts of the case are that the respondent/complainant, the Apple Plast Pvt. Ltd. purchased blow moulding machine and injection moulding machine from the appellant for Rs. 7,94,998 and Rs. 2,68,840 and also paid Rs. 53,865 for transportation and octroi charges. Firstly, the appellant took longer time to instal the machine and when it was installed it did not give the requisite services and hence a complaint was made to the suppliers who, after protracted correspondence, asked the respondent/appellant to return the machine for which they will be able to pay after seeing the condition of the returned machines. The correspondence went on and nothing of substance came out of complainant's correspondence a complaint was filed before the West Bengal State Commission, who after hearing the parties, allowed the complaint and directed the appellant to refund the cost of the machine and the expenditure on octroi and transportation along With interest @ 18% p.a. as also a compensation of Rs. 20,000. Aggrieved by this order of the State Commission, the appellant has filed this appeal before us.
2. Before going into the merits of the case it needs to be mentioned that the State Commission had passed the order, based only on the pleadings, and, this, was made one of the grounds for filing this appeal. We gave an opportunity to the parties to file affidavits by way of evidence, which was filed.
3. We have heard the parties.
4. Three points are raised before us by the appellant relating to territorial jurisdiction, the complainant not being a consumer within the meaning of its definition in the Consumer Protection Act, 1986 and also the fact that as per the terms of agreement the complaint should have been instituted only in Baroda.
5. We have perused the material placed on record and find that the appellant's production unit is located in Baroda, but, it is not disputed that they have a branch office in Kolkata. Section 11(2)(b) relating to jurisdiction of the Consumer Forum is reproduced as under:
11. Jurisdiction of the District Forum (1) ...
(2)(a) ...
(b) any of the opposite parties, where there are more than one at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry on business or have a branch office, or personally work for gain, as the case may be, acquiesces in such institution, or (emphasis supplied).
6. Thus, it is clear from a plain reading of the above provision that the Consumer Forum will have jurisdiction where the company has a branch office and it is not in dispute that the appellant has a branch office in Kolkata and this office has also played an active role in obtaining the order, receiving part of the money and also at the time of erection of the unit for the complainant's premises. Undisputedly, cause of action has arisen in Kolkata. In view of this, we are unable to sustain the objection raised by the appellant that the West Bengal State Commission has no jurisdiction.
7. It is true that in the invoice, it is mentioned that it was subject to Baroda's jurisdiction. It has been held several times by this Commission that the Consumer Protection Act, 1986 which is a socially beneficial legislation cannot be permitted to be undermined by such contracts. Section 11 of the Act would determine the jurisdiction. Hence, the words 'subject to Barodara jurisdiction' used in the invoice would not oust the jurisdiction of the Consumer Forum as it would be contrary to aforesaid Section 11(2) of the Act.
8. In any case, the words used in the invoice to the effect that "subject to Baroda Jurisdiction" would not oust the jurisdiction of the State Commission wherein the main cause of action arose. In any case, the unilateral condition incorporated in the invoice, apart from the fact that it may not be binding on the respondent, as there was no conscious agreement, would not deprive the Consumer Forum of its power to do justice. The scheme of Statute is to provide quicker Redressal Forums for attending to the grievances of consumers regarding deficiency in service and give finality to the order passed by the agencies. Further, the Consumer Forum is undoubtedly a quasi-judicial body which is required to observe the principles of natural justice but not absolute technicalities developed under various substantive provisions of law. The object of the Act, of providing inexpensive and speedy justice in disputes ansing between consumers and suppliers for goods and services, would be frustrated if contention of the appellant is accepted. Hence, in the facts of the case, ousting of the jurisdiction would operate harshly and would be oppressive and unfair to the respondent.
9. The major objection is that the complainant is not a consumer within the definition of Section 2(1)(d)(ii) as the machine was purchased for commercial purpose for which heavy reliance has been placed on the judgment of the Supreme Court in the case of Laxmi Engineering Works v. P.S.G. Industrial Institute II . We have gone through the judgment very carefully. The conclusion in this judgment on this point is reproduced as under:
We must, therefore, hold that (i) the explanation added by the Consumer Protection (Amendment) Act, 50 of 1993 (replacing Ordinance 24 of 1993) with effect from 18.6.1993 is clarificatory in nature and applies to all pending proceedings.
(ii) Whether the purpose for which a person has bought goods is a "commercial purpose" within the meaning of the definition of expression "consumer" in Section 2(d) of the Act is always a question of fact to be decided in the facts and circumstances of each case.
10. In the affidavit filed by the respondent/complainant before us two averments are important; and they are, that:
(e) There was no employment of labour on regular basis for manufacturing large scale manufacturing or processing activities carried on for profit."
(g) This one machine for production of container and other machine for making of caps for said containers so produced are meant for one man operation which dependent being the only member of the family was enstrusted by the members of the family to do the job and as such there was no question of large scale manufacturing or processing activities for profit replying on said single unit of machine.
From the simple reading of this evidence which has been filed by way of affidavit it is clear that there is no employment of labour on regular basis and the machine was generally worked by the one man and it has been clearly spelt out that this was for earning their livelihood of which he has given comprehensive details in the affidavit filed by way of evidence. There is no rebuttal of this fact on record. Since this fact remains unrebutted that it was for self-employment and in view of the law laid down by the Hon'ble Supreme Court (supra) we have no doubt in our minds in accepting the plea of the respondent/complainant that he had purchased the machine for his self-employment and for earning his livelihood.
11. On perusal of the material on record there is no doubt that there was an ordinate delay in installing the machine and it is also stated in the affdavit of the complainant and not rebutted that there were several visits by the employees and engineers of the appellant to rectify the errors, but still the machine did not work properly. To the extent that the appellant himself had written to the respondent/complainant to return the machine and for which he will be paid the requisite amount after seeing the condition of the machine, in our view, itself is a clear admission of the non-performance of non-proper functioning of the machine which is a clear case of deficiency in service on the part of the appellant.
12. In view of the above, we find no merit in the appeal filed before us which is dismissed with costs of Rs. 10,000 payable by the appellant to the respondent/complainant.