State Consumer Disputes Redressal Commission
Bhupinder Singh Brar vs J.N.Industries on 13 July, 2015
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.1534 of 2011
Date of Institution: 18.10.2011
Date of Decision : 13.07.2015
Bhupinder Singh Brar son of S. Amarjit Singh, Proprietor Brar Flour
Mill, Goniana Road, Sri Muktsar Sahib, resident of Street No.5, Guru
Angad Nagar, Kotkapura Road, Sri Muktsar Sahib.
.....Appellant/Complainant
Versus
J.N. Industries, Bhuller Road, Guru Nanak Nagar, Batala-143505
through its Proprietor/Manager.
.....Respondent/Opposite Party
First appeal against order dated
09.09.2011 passed by the District
Consumer Disputes Redressal
Forum, Muktsar.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Shri H.S. Guram, Member.
Present:-
For the appellant : None.
For the respondent : None.
.............................................. J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The appellant of this appeal (the complainant in the complaint) has directed this appeal against the respondent herein (the opposite parties in the complaint), assailing order dated 09.09.2011 of District Consumer Disputes Redressal Forum Muktsar (in short, "the District Forum"), dismissing the complaint of the First Appeal No.1534 of 2011 2 complainant by holding that complainant did not fall into the category of a consumer, as defined under the Consumer Protection Act, 1986.
2. The complainant has filed the complaint under Section 12 of the Consumer Protection Act, 1986 (in short "Act") against the OP on the averments that he intended to establish flour mill to earn his livelihood as self-employment, as he was unemployed educated young person. On 10.02.2010, Narinder Singh representative of the OP came to complainant at Sri Muktsar Sahib at that time Baljinder Singh son of Pal Singh and Gurlal Singh son Dalip Singh both resident of Sri Muktsar Sahib were also present there. The representative of OP told the complainant that its company's flour mill was the best flour mill available in the market and they would install it at the place of complainant and it would cost the complainant to Rs.6,15,000/- including fittings, after some negotiations. The OP told the complainant to pay Rs.6,10,000/-. The OP further told the complainant that after installation of the flour mill, they would stay in the flour mill for about one year to maintain the quality of it, as it was given out to be of excellent quality. It was assured by the OP that it would provide free service for any kind of break down for one year from the date of sale and the installation of flour mill. The complainant placed order of flour mill on 10.02.2010 at Sri Muktsar Sahib in the presence of above persons and paid Rs.10,000/- in cash to the OP and remaining amount was to be paid in the bank account by way of transferring of money into their bank First Appeal No.1534 of 2011 3 account. The OP supplied the flour mill, and complainant transferred Rs.5,70,000/- +30,000/- into the bank account of the OP, as per agreement. The complainant paid total amount of Rs.6,10,000/- including the advance to the OP, as price of flour mill. The OP installed the machinery in the premises of the complainant and it was named the flour mill as 'Brar Flour Mill'. The complainant requested the OP to send expert, as agreed by it. The OP stated that they have installed the flour mill in good manner and there is no need of expert person to handle it. The complainant sent the first consignment of 300 bags of flour to Millap Machinery Store Kapurthala @ Rs.132 per bag. As unit was new, so the consignee told the complainant that the payment would be made after selling the flour. The complainant received the complaint after few days of delivery of flour to the effect that there was grit in the flour and the customers were returning the same. The Milap Machinery Store sent back 137 bags of flour and paid Rs.128/- each for the remaining bags, which were sold by them. The complainant contacted OP about such poor quality of flour to OP, which was ground by the flour mill, but OP gave no heed to it. The OP has not provided drum and verms to crush the wheat, so the supply of wheat to the Chakkis was not proper. The pulley having 5 belts was required to be fitted, but the OP fitted the pulley having 3 belts only. Apart from it, the belts were broken just after 15/20 days. The complainant changed them by spending Rs.5600/-. The electric motor of 60 BHP was required to be fitted, but the OP fitted electric motor of 40 BHP, so the motor was burnt twice. The complainant First Appeal No.1534 of 2011 4 spent total Rs.16,000/- i.e. Rs.8000/- + Rs.8000/- on rewinding of the motor. The OP supplied the flour mill with manufacturing defect to the complainant and installed it at the place of the complainant negligently, as there were frequent breakdowns in it. The complainant has, thus, filed the complaint against the OP directing it to refund the amount of Rs.6,10,000/- alongwith interest @24% from the date of payment of the amount till its realization thereof and to pay Rs.29,600/- on account of expense incurred by the complainant for breakage etc., besides Rs.1 lakh on account of loss suffered by the complainant, Rs.1 lakh as compensation for mental harassment and Rs.30,000/- as litigation expenses.
3. Upon notice, OP appeared and filed written reply raising preliminary objections that complaint is not maintainable in the present Forum. It was further averred that complainant installed Flour Mill (Atta Chakki) for commercial purposes and complainant is not a consumer under the Act. The complainant is barred by his own act and conduct to file and pursue the present complaint. The complaint is alleged to be false and frivolous. It was further averred that OP is manufacturer of Flour Mill (Atta Chakki) and it has no concern with the installation of the Flour Mill (Atta Chakki). It was denied that OP is not liable to pay any compensation. It was further averred that complex facts and law are involved in this case, which cannot be adjudicated in summary proceedings by the Consumer Forum and matter needs reference to Civil Court. On merits, the OP First Appeal No.1534 of 2011 5 denied the averments of the complainant. It was further averred that complainant deposited Rs.30,000/- after the installation of the flour mill being satisfied of the working of Flour Mill (Atta Chakki). The OP further averred that it did not supply any electric motor or any electric instrument to the complainant. The OP denied any manufacturing defect or any substandard material in the said Flour Mill (Atta Chakki). It prayed for the dismissal of the complaint of the complainant.
4. The complainant tendered in evidence his affidavit Ex.C-1 and affidavits of different persons Ex.C-10 to Ex.C-21 alongwith documents Ex.C-2 to C-9 and closed the evidence. As against it, OP tendered in evidence affidavit of Navinder Singh its Managing Director Ex.OP-1 and affidavits of other persons Ex.OP-2 to OP-5 and closed the evidence thereafter. On conclusion of evidence and arguments, the District Forum Muktsar dismissed the complaint of the complainant primarily on the ground that complainant did not fall into the category of consumer, as defined under the Consumer Protection Act, 1986. Aggrieved by this order, the complainant, now appellant has preferred this appeal against the same.
5. We observe that nobody has been putting in appearance on behalf of the parties in this appeal. On 14.05.2015, Nobody was present for the parties in this appeal and in the interest of justice case was adjourned to 09.07.2015, even on 09.07.2015 nobody has First Appeal No.1534 of 2011 6 put in appearance at all on behalf of appellant and respondent, even on the earlier dates, so we propose to dispose of this appeal after examining the evidence on the record and on its merits. The submission of the appellant raised in the ground of appeal is that inferior quality of flour mill (Atta Chakki) with manufacturing defect was supplied to it by the OP. The flour prepared by him after crushing the wheat was found to be not fit and it was returned to him. He has, thus, argued in the ground of appeal that there was grit in the flour ground by this flour mill and hence he had to suffer the loss. He further stated that District Forum has wrongly held him not to be the consumer. He further raised the argument that he purchased the flour mill for earning his livelihood by means of self-employment.
6. We have to examine this point as to whether the complainant is proved to be the consumer of OP, as defined under the Act or not. From perusal of the record, we find that complainant has specifically pleaded in para no.1 of the complainant that he is unemployed educated young person and he purchased a Flour Mill (Atta Chakki) to earn his livelihood exclusively by means of self employment. Complainant relied upon his affidavit Ex.C-2 and affidavit of Baljinder Singh son of Pal Singh, we find that complainant specifically pleaded in his affidavit on oath that he is unemployed educated young man and he purchased the Flour Mill (Atta Chakki) for self-employment to earn his livelihood by means of self- employment. There is specific averment as well as evidence First Appeal No.1534 of 2011 7 contained in affidavit by the complainant to this effect on the record. We have to examine the document of OP Ex.C-3 on the record for price of Rs.6,15,000/- of the above said Atta Chakki. Ex.C-4 is copy of retail invoice no.135 dated 06.03.2010. Ex.C-5 is the copy of G.R. no.4967 issued by Gurshan Transport Co. (Regd.) Batala for transportation of machinery of Rs.4600/-. Ex.C-6 is another receipt of Rs.2,53,200/- issued by OP. Ex.C-7 is the copy of G.R.No.4264 dated 22.03.2010 issued Gurshan Transport Co. (Regd.) Batala for transportation of machinery and parts of Rs.4000/-. Ex.C-8 is another receipt of Rs.73,850/- issued by the OP in favour of complainant. Ex.C-9 is the copy of G.R.no.5831 dated 06.05.2010 issued by Kahlon Transport Co. Batala of Rs.2020/- in favour of OP. Ex.C-10 is the affidavit of Amit Kumar son of Kishore Chand regarding purchase of flour from complainant. Ex.C-11 is the copy of bill issued by the complainant regarding returning of 137 bags of flour. Ex.C-12 is the affidavit of Yogesh Kumar in support of averments of the complainant. Ex.C-13 is the copy of bill issued by the complainant regarding returning of 300 bags of 10 kg and 21 gatte of 50 kg of flour. Ex.C-14 is the affidavit of Surinder Kumar to the effect that grit was found in the flour so ground by the Atta Chakki of the complainant sold by the OP. Ex.C-15 is the affidavit of Narinder Kumar, Ex.C-16 is the affidavit Kashmiri Lal, Ex.C-17 is the affidavit of Rajesh Kumar, Ex.C-18 is the affidavit of Ravinder Kumar, Ex.C-19 is the affidavit of Satish Kumar son of Subash First Appeal No.1534 of 2011 8 Chander, Ex.C-20 is the affidavit of Amritpal Kaur and Ex.C-21 is the affidavit of Gurlal Singh in support of averments of the complainant.
7. OP placed reliance on affidavit of Navinder Singh its Managing Director Ex.OP-1 to the effect that complainant has installed the Atta Chakki for commercial purposes. He admitted that OP is the manufacturer of Flour Mill (Atta Chakki), but it has no concern with the installation of above Atta Chakki. He has not disputed the fact regarding the sale of above said Atta Chakki to the complainant. Ex.OP-2 is the affidavit of Jaswinder Singh foreman of OP to the effect that there was no defect in Atta Chakki supplied to the complainant. Ex.OP-3 is the affidavit of Rajwinder Singh that he purchased the Atta Chakki from the OP and he found no complaint in it. Ex.OP-4 is the affidavit of Hardev Kumar that there was no manufacturing defect or other type of defect in the Flour Mill (Atta Chakki) sold by the OP to him. Ex.OP-5 is another affidavit of Rahul Sethi to the effect that since the installation of the flour mill sold by the OP to him, it worked properly.
8. From perusal of above referred evidence on the record, we find that complainant has specifically pleaded in the complaint and given evidence in his affidavit that he installed the flour mill (Atta Chakki) for the purpose of earning his livelihood exclusively by means of self-employment, as he is educated unemployed young person. After all one has to do something to keep his body and soul together in this material planet. There is no rebuttal evidence of the First Appeal No.1534 of 2011 9 OP to the above evidence. The OP failed to prove that complainant has employed many number of employees and has been carrying on commercial purposes for it. The evidence contained in affidavit of complainant that he installed the said Atta Chakki by purchasing it exclusively for his self-employment to earn his livelihood goes unrebutted on the record. The law laid down by Apex Court in "Laxmi Engineering Works Vs. P.S.G. Industrial Institute"
1995(2)-474/475, wherein the Apex Court has held that "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. 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 implication flowing from the expression '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".
The Apex Court further held that "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. A person who buys good and uses them himself, exclusively for the purpose of earning his livelihood, by means of self-employment is within the demesne of the expression First Appeal No.1534 of 2011 10 consumer". The District Forum has swayed by this reasoning that complainant purchased wheat from the market and after grinding sold it. There is no evidence on the record by the OP that complainant has employed slew of servants to carry on the work of the flour mill. The complainant gave evidence categorically that he installed Flour Mill (Atta Chakki) exclusively for the purpose of earning his livelihood by means of self-employment, as he is an educated unemployed person. Consequently, the reasoning of the District Forum that complainant is not a consumer is not sustainable in our view. The Consumer Forum is to decide each and every case from its peculiar facts so involved therein as to whether the complainant bought the goods or services exclusively for the purpose of earning his livelihood by means of self-employment or for earning the profits with sole motive only. The reasoning of District Forum holding the complainant to be not a consumer is not accepted in the presence of specific pleadings and affidavit of complainant to this effect on the record by us in this appeal.
9. In view of our above discussions as recorded above, the order of District Forum Sri Muktsar Sahib dated 09.09.2011 is set- aside and the appeal of the appellant is accepted and the case is remanded to District Forum Sri Muktsar Sahib for fresh decision in accordance with law keeping in view this finding that complainant is a consumer, as defined under the Act. The record be sent to District Forum concerned forthwith so as to reach there on or before First Appeal No.1534 of 2011 11 20.08.2015. Since the parties have not appeared before us at the time of arguments of the appeal, hence District Forum shall ensure the presence of the parties before it and thereafter proceed to decide the case afresh in accordance with law in their presence.
10. Arguments in this appeal were heard on 09-07-2015 and the order was reserved. Now the order be communicated to the parties. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (H.S.GURAM) MEMBER July 13, 2015.
(MM)