National Consumer Disputes Redressal
Action Construction Equipment Ltd. vs Sri Bablu Mridha on 20 July, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2079 OF 2012. along with ( I. A. No. 1 of 2012) (For Stay ) (Against order dated 27.04.2012 in SC Case No. F.A./312 of 2011 of State Consumer Disputes Redressal Commission, West Bengal) 1. ACTION CONSTRUCTION EQUIPMENT LTD. 5th Floor, TDI Centre, Jasola, New Delhi-1110076. 2. The General Manager (Eastern Region) Action Construction Equipment Ltd. Fomra Tower, Room No. 208, 2nd Floor, 84A, AJC, Bose Road, Opp. Gem Cinema) Kolkata-700014. .. Petitioners Versus SRI BABLU MRIDHA Son of late Jagabandhu Mridha Durgachak Coloni-D-57, Haldia-721602 District-Paschim Medinipur West Bengal Respondent BEFORE: HONBLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HONBLE MR. ANUPAM DASGUPTA, MEMBER For the Petitioner (s) Mr. Lav Kumar Aggarwal, Advocate. Pronounced on: 20th July, 2012 ORDER
PER MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER In this revision petition there is challenge to order dated 27.4.2012, passed by State Consumer Disputes Redressal Commission, West Bengal (for short, the State Commission).
2. Brief facts are that respondent/complainant is a self-employed person and doing business by letting out construction equipment with own driver to different companies and this is his only means of earning livelihood. He purchased a Hydraulic Mobile Crane for Rs.12,59,615/-plus VAT@ 4% on 28.3.2008 from the petitioners/OPs. On 28.04.2009, the petitioners delivered the machine at Kolkata. The equipment did not work properly. Respondent communicated with petitioner No. 1 several times in writing about the defects in the machine. The Service Engineer of the petitioners, vide his report dated 24.09.2008, stated that the machine might be replaced and there was no need to replace the required parts. Respondent sent a demand notice on 24.12.2008, but to no effect. Accordingly, the respondent filed a complaint before District Forum seeking directions to the petitioners :-
(i) To replace the crane,
(ii) To pay compensation of Rs. 6,12,000/- with interest; and
(iii) To pay costs.
3. Petitioners had put their appearance before the District Forum but did not file any written statement. Later on, they absented. As such, complaint of the respondent was allowed ex parte with costs of Rs. 1,000/-. District Forum, while allowing the complaint, passed the following directions;
The Ops are directed to replace ACE 14 XW 14 tonnes 59 BHP Hydraulic Mobile Crane on taking back the defective crane, and to pay Rs. 1,00,000/- ( Rs. One lakh only) as compensation to the complainant within 30 (thirty) days from the date of communication of this order, failing which the Ops shall refund the amount of Rs.12,59,615/- and the amount of compensation together with interest @ 10% p.a. (at the rate of ten percent per annum) from the date of filing of the complaint (20.05.2009) till the date of actual payment.
4. Aggrieved by the order of District Forum, petitioners filed an appeal before the State Commission which was dismissed, vide impugned order.
5. This is how the matter has reached before us.
6. It is contended by learned counsel for the petitioners that respondent is not covered under the definition of Consumer as defined under section 2 (i) (d) of the Consumer Protection Act, 1986(for short the Act) since the respondent himself has admitted in his complaint, Though he is self employed person but is doing the business of letting out construction equipments with his own driver to different companies. Further, respondent is having more than one crane and has been letting out the construction equipment to different companies. Thus he is engaging in commercial activities. Hence, consumer complaint is liable to be dismissed.
7. In support of his contentions, learned counsel has relied upon following judgments;
(i) Kalpavruksha Charitable Trust Vs. Toshniwal Brothers (Bombay) Pvt. Ltd. & Anr.
III(1999) CPJ 26 (SC);
(ii) Birla Technologies LTd. Vs. Neutral Glass & Allied Industries Ltd.
I (2011) CPJ 1 (SC);
(iii) Laxmi Engineering Works Vs.P.S.G. Industrial Institute II(1995) CPJ 1(SC);
(iv) Meera Industries Vs. Modern Constructions II (2009) CPJ 402(NC) and
(v) I. D. Venkata Subbaiah Vs. Gold Fields & Ors.
In ( F. A. No. 122 of 2010) decided on 26.07.2011, by this Commission.
8. It is an admitted fact that the petitioners had no defence before the District Forum. Thus, the averments made by respondent in its complaint and the evidence led by him went unrebutted.
9. Short question which arise for consideration is as to whether the respondents complaint under section 12 of the Act is maintainable or not.
10. State Commission, in its impugned order, observed:
It is the contention of the Learned Counsel for the appellant that in the case of Meera Industries Vs. Modern Constructions it has been held by the Honble National Commission that the purchaser of a vehicle for commercial purpose could not be a consumer even if the defects were detected within the period of warranty. In the decision in the case of Laxmi Engineer Works vs. P.S.G. Industrial Institute (Supra) it has been held in Paragraph-12 that if a 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 a consumer. In the instant case it is the averment made in the complaint that the complainant is a self employed person and is engaged in the business of letting of construction equipments and this is the only means of his earning livelihood. Since the purchase of the vehicle is for the self employment of the consumer it cannot be said that the complainant ceased to be a consumer. The service report of the appellant dated 24.09.08 shows that they were not in a position to repair the machine for want of replacement parts. It also shows that the machine was under
break down and that replacement would be made. The Learned District Forum considered all the aspects and allowed the complaint ex parte. We do not find any ground to interfere with the findings of the Learned District Forum.
11. Respondent in its complaint has specifically stated that he is a self-employed person and moreover the equipment in question is defective. Relevant averments to this effect have been made in Para 2 and 12 of the complaint, which states ;
2. That your complainant is a self employed and doing business by letting of construction equipments with own driver to different companies and this is the only means of his earnings.
12. That the service engineer in his service report no. 32 dated 24.09.2008 made a remark that the Kolkata office informed him that the machine may be replaced in favour of the customer/purchaser, so there is no need to replace required parts. So its is also proved that the equipment in question has defect and the equipment must be replaced.
12. Since, there is no rebuttal to the above averments made in the complaint, the same shall be deemed to be admitted as correct.
13. The law on this point is well settled that when a buyer takes the assistance of one or two persons to assist/help him in operating the machine, he does not cease to be a consumer. In Laxmi Engineering Works (supra), Apex Court has held ;
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 Dictionary); 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 taking 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 the Parliament stepped in and added the explanation to Section 2(d)
(i) 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 "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 illus- trations would serve to emphasis 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 a 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 the 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.
14. Since, in the present case also, respondent is having only two machines and same are being used by the respondent for earning his livelihood, by no stretch it can be said that respondent is engaged in commercial activities.
15. Under section 21 (b) of the Consumer Protection Act, 1986, this Commission can interfere with the order of the State Commission where such State Commission has exercised jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.
16. Honble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654 has observed ;
Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora.
17. In view of the concurrent findings of facts given by Fora below, no jurisdiction or legal error has been shown to us to call for interference in the exercise of power under section 21 (b) of the Act.
18. Moreover, the Fora below have given cogent reasons in their order which do not call for any interference nor do they suffer from any infirmity or revisional exercise of jurisdiction.
19. It is not that every order passed by the Fora below is to be challenged by a litigant even when the same is based on sound reasonings.
20. Under these circumstances, present petition is without any legal basis and is merit-less. Accordingly, the same is hereby dismissed with costs of Rs. 10,000/-.
21. Petitioners are directed to deposit costs of Rs.10,000/- (Rupees Ten Thousand Only) by way of demand draft, in the name of Consumer Legal Aid Account of this Commission, within four weeks from today. In case, petitioners fail to deposit the said costs within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization.
22. List on 07.09.2012 for compliance.
...J (V.B. GUPTA) PRESIDING MEMBER ...
(ANUPAM DASGUPTA) MEMBER SSB