State Consumer Disputes Redressal Commission
Bhal Singh vs Lalan Singh Kushwaha on 12 October, 2015
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Complaint Case No.14/02
Instituted on : 13.02.2014
Bhal Singh, S/o Shri Karam Singh,
Proprietor : M/s Laksheshwar Maharia Fly Ash Bricks & Tiles,
G.T. Road, Opposite Jind Bye-Pass Road,
Near Mini Secretariate,
Hansi, District Hisar (Haryana) ... Complainant.
Vs.
Lalan Singh Kushwaha,
Proprietor : M/s Maa Bhawani Trading Company,
Mohara,
Tehsil Dongar Garh, Dist. Rajnandgaon (C.G.). ....Opposite Party
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MS. HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES: -
Shri R.K. Bhawnani, for complainant.
Shri Prashant Tiwari, for opposite party.
ORDER
Dated : 17/10/2015 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. The complainant has filed this complaint under Section 17 of the Consumer Protection Act, 1986 against the opposite party seeking following relief :-
1. To direct the opposite party to supply the new machine to the complainant or to refund the amount of Rs.29,09,040/- along with interest @ 18 p.a. // 2 //
2. To direct the opposite party to pay the amount of Rs.10,00,000/- as compensation for deficiency in service, unfair trade practice and for loss.
3. To direct the opposite party to refund the amount of transportation charges of Rs.77,318/- and Rs.40,000/- of installation charges.
4. Any other relief which the Hon'ble Commission deems fit.
2. Brief facts of the complaint are that : the complainant is proprietor of M/s Laksheshwar Maharia Fly Ash Bricks and Tiles. For his self employment and for the livelihood of his family, he is doing the work of Fly Ash Bricks and Tiles in the name of Laksheshwar Maharia Fly Ash Bricks and Tiles at Mayyar. The complainant has no other work. The opposite party is the Proprietor of M/s Maa Bhawani Trading Company, which is situated at Mohara, Teshil Dongargarh, District Rajnandgaon (C.G.) and the complainant is manufacturer of Automatic Fly Ash Bricks Making Machine. On being assurance given by the opposite party, the complainant purchased Automatic Fly Ash Bricks Making Hydraulically operated (Heavy Duty) power 15 BHP 1140 RPM make ISO 2009, 3 HP, Vibrator Motor, Motor Bricks Removal from Wooden Plate, Production Per House 1800-2200 Bricks per hour, Bricks Size 230 MM x 110 MM x 75 MM imported Power Pack Pic-control (400 Litre System 68 Hydraulic by Consumer // 3 // Arrangements) weight 4 Tons, Size of Machine Length 5 Meters x Width 1.5 Meters x Height 3 Meters, 2 Pan Mixture 750 KG (20 HP 1440 RPM) Hydraulic Power Conveyor Belt and Mechanical Structure with 3 HP Electric Motor along with accessories, 2 Hydraulic Pallet, Trolley Manual operated 4 Wheel Borrows worth Rs.29,09,040/- and the opposite party issued Invoice No.11 dated 16.06.2013 in favour of the complaint. The O.P. has supplied two PAN Mixtures, Machine of 10 HP motors in place of 20 HP motors as mentioned in the quotation. It is clear from the bill that the O.P. has not supplied the PAN Mixture Machines as per quotation and in the same way the 3 HP Vibrator Machine was also not supplied although the payment was taken by the O.P. The complainant has obtained loan from Central Bank of India, Hansi Branch and the Bank has directly paid the amount to the O.P. and the O.P. has taken two blank cheque No.489491 & 489494 of Punjab National Bank, Barse Gate Branch, District Hisar as a security without any outstanding debt for the same at that time. The O.P. has to supply the machine within 60 days but they have supplied the machine after 4 months. The delay was on behalf of the O.P. for installing the machine due to which complainant has further suffered heavy losses. As per terms and condition of the contract, settled between complainant and opposite party, the O.P. could not deliver the machine within the stipulated period as agreed between complainant and O.P. The complainant has paid the transportation charges of Rs.77,318/- in cash // 4 // to O.P. and the complainant has also paid a sum of Rs.40,000/- of installation charges, which were supposed to be paid by the O.P. The O.P. by illegal way has taken this amount from the complainant. As per terms and conditions settled between the complainant and O.P., the machine along with its equipment was installed on the land taken by complainant on rent and connection of electric power supply was taken to operate the machine for production of bricks and the process of making bricks was started on 14.07.2013. The machine which was installed was appearing to be of substandard quality because from the first day of using the machine it was not working properly and was not producing bricks as required and assured by the O.P. The complainant intimated the O.P. regarding the problem in the machine, but there was no response by the O.P. The machine of the complainant is not functioning since 31.07.2013. The machine was under warranty period and machine was having manufacturing defect. The complainant has informed the O.P. regarding the problem in the machine. The machine was having the manufacturing defect because the O.P. has supplied the defective machine of sub-standard quality, which was clear from the working condition of the machine. The complainant is suffering from huge loss because of non-functioning of the machine, there was no production and this was for the reason because the machine was having manufacturing defect. On one occasion the Engineer Shri Narottam Das Bharti visited the site and inspected the machinery // 5 // thoroughly and found all the problems which were stated by the complainant and the Engineer has informed the O.P. regarding the problems but despite confirmation of the problems by O.P.'s Engineer, the O.P. has done nothing in the matter and further kept on giving false assurance to complainant to change the defective machine but the O.P. has not replaced the defective machine. The said act of the O.P. amounts to deficiency in service. The O.P. has taken the entire amount from the complainant but has not supplied the correct machine. The O.P. has supplied substandard machine in which there are many problems and the said machine is not working because of manufacturing defects. The complainant sent notice through his Advocate on 12.11.2013, but the O.P. replied to the notice of the complainant on false ground. The machine of the complainant is still in non-functioning condition and complainant is suffering heavy loss because he is not able to work and earn his livelihood for which purpose he has purchased the machine. The O.P. by not replacing the machine has committed deficiency in service.
3. The O.P. filed his written statement and averred that the complainant is an Advocate by profession and he obtained an Agency of Swaraj Tractors and is also operating Service Station of Maruti Car in the name and style of Vikas Automobiles at Hansi, District Hisar (Haryana). He is also doing business of manufacturing of fly ash bricks, therefore, the complainant is not a consumer and he is // 6 // commercial user. The O.P. gave his quotation U.R. No.980/M.B.T.C. dated 01.02.2013 to the complainant )Annexure R-1). Except this quotation no other additional assurance was given by the O.P. to the complainant. According to the quotation (Annexure R-1), the sale transaction was done for Pan Mixture750 KG (10 HP 1440 Rpm). There is no agreement between the parties for supply of 20 H.P. motor. The O.P. provided 3 H.P. Vibrator Machine (Motor) to the complainant according to invoice A-1. The O.P. has yet to receive a sum of Rs.8,22,000/- from the complainant. The Bank has not paid any amount directly to the O.P. The complainant paid a sum of Rs.21,00,000/-, but on the same day Rs.14,00,000/- was returned by the O.P. to the complainant, which is mentioned in document A-2 to A-6. On 22.02.2013, out of Rs.21,00,000/-, the O.P. transferred a sum of Rs.14,00,000/- to the bank account of the complainant through R.T.G.S. The complainant sent cheque through email to the O.P. which is not possible. The allegation made by the complainant regarding receipt of cheque by O.P. through email is false and frivolous. The machine was not operated by the duly trained person. Even the complainant has not taken training to operate the machine properly and machine was operated by the unskilled and untrained workers, therefore, this is possibility of occurring problem in the machine. A sum of Rs.10,00,000/- is due till 15.07.2013 against the complainant in respect of sale of the machine and the O.P. demanded the amount, then // 7 // complainant deposited a sum of Rs.1,78,000/- on 18.07.2013. According to electricity bill of the complainant dated 16.09.2013 (A-16) and bill dated 10.12.2013 (A-17), it appears that the establishment of the complainant consumed 1700 units of the electricity which indicates that the Machine was being regularly used by the complainant without any interruption. The employee of the O.P. Narottam Das Bharti remained present in the establishment of the complainant from 22.7.2013 to 02.08.2013 and properly operated the machine and he did not find any defect in the machine. The complaint is baseless and the O.P. is entitled to get a sum of Rs.8,22,000/- from the complainant in respect of the machine. The complainant filed this complaint to escape from the liability, therefore, the complaint is liable to be dismissed and the special compensation to the tune of Rs.2,00,000/- be awarded to the O.P. from the complainant.
4. On the basis of averments of the parties, the points for determination are :-
1. Whether the complainant is a "consumer" ?
2. Whether the complainant is entitled to get relief from the O.P. as mentioned in the complaint ?
5. The complainant filed documents. Document A/1 is Invoice of O.P. issued to complainant dated 16.06.2013, A/2 is Cash Receipt of O.P. dated 23.02.2013, A/3 is Cash Receipt of O.P. dated 25.03.2013, // 8 // A/4 is Cash Receipt of O.P. dated 17.04.2013, A/5 is Cash Receipt of O.P. dated 08.05.2013, A/6 is Cash Receipt of O.P. dated 15.06.2013, A/7 is Quotation of O.P. dated 13.11.2012, A/8 is Quotation of O.P. dated 13.11.2012, A/9 is Quotation of Laxmi & Co., A/10 is Quotation of Laxmi & Co., A/11 is Letter of the complainant dated 31.07.2013 to the O.P., A/12 is letter of O.P. Engineer dated 01.08.2013 to the complainant, A/13 is letter of the complainant dated 02.08.2013 to the O.P., A/14 is copy of TCI Freight dated 02.08.2013, A/15 is Chartered Engineer's Certificate of Rajkumar Singhal and Associates dated 18/12/2013, A/16 is Electricity Bill dated 16/09/2013, A/17 is Electricity Bill dated 10/12/2013, A/18 is Notice sent by the complainant's Advocate to the O.P. dated 12.11.2013, A/19 is reply of the Advocate of O.P. dated 05.12.2013.
6. The O.P. has also filed documents. Document R-1 is quotation of M/s Maa Bhawani Trading Company, issued to M/s Laksheshwar Maharia Fly Ash Bricks & Tiles, R-2 is Account details based on Bank Statement, R-3 is Statement of Account of Maa Bhawani Trading Company in respect of C/A No.930320110000023 for the period from 01.04.2012 to 31.03.2012, R-4 is letter dated 20.02.2013 sent by the complainant to the O.P. through email, R-5 is letter dated 10.07.2013 sent by the O.P. to the complainant, R-6 is Account Statement of the O.P. in respect of account with State Bank of India, for the period from 01.07.201e to 31.07.2013, R-7 is letter dated 06.11.2013 sent by the O.P. to // 9 // the complainant through email, R-8 is letter dated 11.11.2013 sent by the complainant to the O.P., R-9 is Affidavit of Narottamdas Bharti dated 10.04.2014.
Discussions and its conclusion:
Question No.1.
7. Shri R.K. Bhawnani, learned counsel for the complainant has argued that the complainant is doing work of Fly Ash Bricks and Tiles in the name of M/s. Laksheshwar Maharia Fly Ash Bricks at Mayyar for his self employment and for the livelihood of his family. The complainant purchased the Automatic Fly Ash Bricks Machine from the O.P. for the livelihood of his family, therefore, the complainant is "consumer". On being assurance given by the O.P., the complainant purchased Automatic Fly Ash Bricks Making Machine Hydraulically operated (Heavy Duty) power 15 BHP 1440 RPM make any ISO 2009, 3 HP, Vibrator Motor, Motor Bricks Removal from Wooden Plate, Production Per House 1800-2200 Bricks per hour, Bricks Size 230 MM x 110 MM x 110 MM x 75 MM imported Power Pack Pic control (400 Litre System 68 Hydraulic by Consumer Arrangement) weight 4 Tons, Size of Machine Length 5 meters x Width 1.5 Meters x Height 3 Meters, 2 Pan Mixture 750 KG (20 HP 1440 RPM) Hydraulic Power Conveyor Belt and Mechanical Structure with 3 HP Electric Motor along with Accessories, 2 Hydraulic Pallet, Trolley Manual operated 4 Wheel Borrows worth Rs.29,09,040/- and the O.P. issued Invoice No.11 dated // 10 // 16.06.2013 in favour of the complainant. The O.P. has supplied two PAN Mixtures, Machine of 10 HP motors in place of 20 HP as mentioned in the quotation. It is clear from the bill that the O.P. has not supplied the PAN Mixture according to quotation and in the same way the 3 HP Vibrator Machine was also not supplied. The payment was made by the complainant to the O.P. Thus the O.P. committed deficiency in service. The complainant also paid a sum of Rs.77,318/-
towards transportation charges and a sum of Rs.40,000/- towards installation charges, but the machine started giving problem. The assurance was given by the O.P. to the complainant that the said machine will produce 1800 - 2200 bricks per hour, but it only produces 100 bricks per hour. It appears that the defective machine was provided by the O.P. to the complainant. He further argued that the capacity of the PAN Mixture was mentioned as 750 Kg but only by putting 200 Kg material on the PAN Mixture, the machine stops working. Moreover, in the Invoice at Serial No.2, it was assured that the PAN Mixture is of 750 Kg capacity and deal was also accordingly struck at, on the assurance of PAN Mixture being of 750 Kg and the O.P. charged the money from complainant according to 750 Kg per piece but in reality it was found to be only 500 Kg per piece. Apart from it the working capacity of the Machine, as assured of 1800-2200 Bricks per hour, it is also not according to the assurance as it is only producing below 100 bricks per hour. It appears that the O.P. supplied // 11 // defective and sub standard quality machine to the complainant therefore, the complainant is entitled to get compensation from the O.P., as mentioned in the complaint. Shri R.K. Bhawnani, drew our attention towards a letter dated 31.07.2013 written by Narottam Das Bharti, who was employee of the O.P. Narrottam Das Bharti gave two letters dated 31.07.2013 and 01.08.2013 in which it is mentioned that the machine was defective. He placed reliance on order of Hon'ble Supreme Court in the case of CCI Chambers Co.-op. Hsg. Society Ltd. vs. Development Credit Bank Ltd., AIR 2004 Supreme Court 184; Dr. J.J. Merchant and Ors. vs. Shrinath Chaturvedi, 2003 NCJ 1 (SC); Vimal Chandra Grover vs. Bank of India, 2000 - (SC3)-GJX-0287-SC Civil Appeal No.15701 of 1996 (From the judgment and Order dated 21-6-1996 DOP No.163 of 1994) decided on April 26, 2000, orders of Hon'ble National Commission in the cases of Kurji Holy Family Hospital vs. Boehringer Mannheim India Ltd. & Ors., III (2007) CPJ 371 (NC); Bhanwar Kanwar vs. R.K. Gupta & Anr. (Dr.), 2009 NCJ 675 (NC) and Sanjay Kumar vs. Vijay Kumar Yadav, 2008 (1) CPR 421 (NC).
8. Shri Pranshant Tiwari, learned counsel appearing for the O.P. has argued that the complainant purchased Fly Ash Bricks Machine valuing Rs.29,09,040/- from the O.P. for earning additional income and for business purpose. The said machine is producing 1800 - 2200 bricks per hour and the complainant sold the bricks which were prepared // 12 // through machine and earned income. The complainant purchased the said machine for commercial purpose. The complainant is an advocate by profession and he obtained an agency of Swaraj Tractor and is also operating Service Station of Maruti Car in the name and style of Vikas Automobiles at Hansi, District Hisar (Haryana). The complainant also engaged more than 10 skilled and unskilled labourers, therefore, the complainant purchased the said machine for commercial purpose. The complainant is not a "consumer" and the complaint is liable to be dismissed on this sole ground. Shri Prashant Tiwari, has further argued that according to invoice dated 05.10.2007 (Document A-1), the Automatic Fly Ash Brick Making Machine was supplied by the O.P. to the complainant and document 7 and A-8 are not genuine documents. The said documents do not bear signature and seal of the O.P., therefore, it cannot held that any quotation was given by the O.P. to the complainant and according to the quotation, the Machine was supplied to the complainant. Complainant obtained letters from Narottam Das Bharti forcibly in his letter pad and Narottam Das Bharti submitted his affidavit regarding the said letters. It appears that the complainant has fraudulently obtained letters from Narottam Das Bharti. The complainant has not been able to prove that Machine supplied by the O.P. to the complainant was defective and was producing lesser quantity of the bricks. He further argued that the Machine was purchased for preparation of bricks for which there is requirement of // 13 // the labourer, therefore, the complainant is not "consumer". He again argued that the complainant is not a "consumer" and the complaint is liable to be dismissed. He placed reliance on orders of the Hon'ble National Commission in the cases of M/s. Star Papers Mills Ltd., Saharanpur vs. M/s. Batlibai & Co. Ltd., New Delhi, 1991 (2) CPR 704 (NC) and Eagle Ultra Marine Industries vs. Paramount Pollution Control (P) Ltd. 1994 (1) CPR 710 (NC).
9. We have heard learned counsel for the parties and have also perused the documents filed by them.
10. Now we shall examine whether the complainant is "consumer" of O.P. ?
11. The O.P. argued that the complainant is an advocate by profession and he obtained an agency of Swaraj Tractor and is also operating Service Station of Maruti Car in the name and style of Vikas Automobiles at Hansi, District Hisar (Haryana).
12. The O.P. delivered questionnaire to the complainant. The O.P. asked question No.11 to the complainant that whether the complainant is an Advocate and in reply thereof, the complainant replied that he obtained B.A. LLB degree but he is not practicing as an Advocate.
13. Prima facie it is duty of the O.P. to submit documents regarding the business, which is doing by the complainant, but the O.P. did not file any documents in this regard // 14 //
14. In the instant case, in para 2 of the complaint, the complainant pleaded that "the complainant for his self employment and for the livelihood of his family is doing the work of Fly Ash Bricks and Tiles in the name of M/s. Laksheshwar Maharia Fly Ash Bricks and Tiles at Mayyar. The complainant is proprietor of the said firm and have no other work apart from the said firm. This is the only work for bread and butter of his family". In para 3, the complainant further pleaded that "the opposite party Shri Lalan Singh Kushwaha is the Proprietor of M/s. Maa Bharti Trading Company, Mohara, Tehsil Dongargarh, District Rajnandgaon and who is the manufacturer of Automatic Fly Ash Bricks Making Machine." It means that the bricks were prepared for sale purpose and the complainant is manufacturer of bricks because bricks were prepared in huge quantity, therefore, labourers are required to be engaged for that purpose and the complainant has certainly engaged labourers for preparing bricks in huge quantity.
15. The complainant purchased the Automatic Fly Ash Bricks Making Machine valuing Rs.29,09,040/- from the O.P. for preparing bricks. According to the complainant, the O.P. assured him that the said machine will prepared 1800 - 2200 bricks per hour. It appears that the complainant purchased the said machine for preparing bricks in huge quantity and preparation of the brick in huge quantity is definitely for the sale purpose. According to the complainant, 1800 - 2200 bricks will be prepared per hour by said machine. It appears that // 15 // the bricks were to be prepared by the complainant in huge quantity by the said machine and certainly labourers are required for preparing bricks in huge quantity and the labourers were engaged by the complainant for this purpose.
16. From bare perusal of invoice dated 05.10.2007 (document A-1) issued by the O.P., it appears that the complainant purchased (1) Automatic Fly Ash Bricks Making Machine Hydraulic Operated (Heavy Duty) Power 15 HP 1440 RPM Make Any ISO 9002, 3 HP Vibrator Motor, Bricks Removal from Wood Palate, Production Per Hour 1800-2200 Bricks Per Hour, Bricks Size 230 mm X 110 mm X 75 mm. Imported Power Pack Pic Control (400 litre System 68 Hydraulic By Customer Arrangements) Weight : 4 Tons. Size of the Machine Length : 6 Mts X Width : 1.5 Mts X Height: 3 Mts. (2) Pan Mixture 750 KG (10 HP 1440 Rpm) Hydraulic Door. (3) Conveyor Belt and Mechanical Structure with 3 HP Electric Motor along with Accessories. (4) Hydraulic Pallet Trolley Manual Operated. (5) Wheel Borrows.
17. In the cause title of the complaint, the complainant mentioned his address as Proprietor : M/s Laksheshwar Maharia Fly Ash Bricks and Tiles, G.T. Road, Opposite Jind Bye-Pass Road, Near Mini Secretariate, Hansi, District Hisar (Haryana) and in para 2 of the complaint he mentioned that he is doing the work of Fly Ash Bricks and Tiles in the name of M/s. Laksheshwar Maharia Fly Ash Bricks and Tiles At Mayyar. It appears that the complainant is doing business // 16 // in both the places i.e. Hansi, District Hissar (Haryana) and also at Mayyar. The above machine was purchased by the complainant for the said firm. The said firm is a proprietorship firm and the said machine was purchased for preparing bricks for the said firm. From bare perusal of the contents of the complaint, it appears that the said machine was purchased by the complainant for commercial purpose, which is a commercial transaction.
18. In Birla Technologies Limited v. Neutral Glass and Allied Industries Limited, (2011) 1 Supreme Court Cases 525, Hon'ble Supreme Court has observed thus :-
"7. By its order dated 4.3.2004, the State Commission accepted the appellant's preliminary objection and dismissed the complaint. The respondent complainant, therefore filed First Appeal No.218 of 2004 before the National Commission. By its order dated 17.12.2009, which is impugned here, the National Commission reversed the order of the State Commission and held that the "goods" purchased by the respondent from the appellant were being used by the respondent for a commercial purpose and, therefore, the respondent was not a "consumer" within the meaning of Section 2(1)(d)(i) of the Act. However, the National Commission further held that notwithstanding such findings, the respondent was entitled to maintain a complaint under the Act with respect to the deficiency in service during one-year warranty period with respect to the said goods relying on Section 2(1)(d)(ii) of the Act.
10. Shri Siddharth Bhatnagar, learned counsel appearing on behalf of the respondent could not dispute this proposition and fairly accepted // 17 // that the complaint was in fact filed on 26-6-2003 i.e. much after the amendment to Section 2(1)(ii), by which the following words were added :
"but does not include a person who avails of such services for any commercial purpose".
11. In view of the findings of the National Commission that the goods sold by the appellant to the respondent complainant amounted to "goods" and that such goods were purchased for commercial purpose for earning more profits, there could be no dispute that even the services which were offered had to be for the commercial purpose. Nothing was argued to the contrary.
12. It seems that the whole error has crept in because of the wrong factual observation that the complaint was filed on 1.8.2000. In that view it has to be held that the complaint itself was not maintainable, firstly, on the count that under Section 2(1)(d)(i), the goods have been purchased for commercial purposes and on the second count that the services were hired or availed of for commercial purposes. The matter does not come even under the Explanation which was introduced on the same day i.e. on 15-3-2003 by way of the amendment by the same Amendment Act, as it is nobody's case that the goods bought and used by the respondent herein and the services availed by the respondent were exclusively for the purpose of earning the respondent's livelihood by means of self-employment. In that view, it will have to be held that the complaint itself was not maintainable in toto."
19. In Rajeev Metal Works and Others v. Mineral & Metal Trading Corporation of India Ltd., (1996) 9 Supreme Court Cases 422, Hon'ble Supreme Court has observed thus :-
// 18 // "6. Having given our anxious and very careful consideration to the respective contentions, the question emerges whether the appellant firm is a consumer. The word 'consumer' has been defined under Section 2(1)(d)(i) and (ii) thus :
"(d) 'consumer' means any person who, -
(i) 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 obtain such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services 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 beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid or partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person."
7. Clause (i) provides that one 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 promise, 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, is a consumer. The admitted case is that this does not apply. The question, therefore, // 19 // is whether the service of the respondent availed by the appellants is covered under Section 2(1)(d)(ii)? Whether the transaction in the nature of buying the goods for a consideration which has been paid or promised? Whether the transaction in question excludes the person who obtains such goods for resale or for any commercial purpose from the purview of the Act? It is true as contended for the appellants that the definition requires to be interpreted broadly so as to give effect to the legislative intention envisaged under the Act. But when the legislature having defined the term 'consumer' in broader terms, sought to exclude certain transactions from the purview of the Act what could be the meaning that would be assigned to the exclusionary clause, viz., "but does not include a person who obtains such goods for resale or for any commercial purpose". The intention appears to be that when the goods are exchanged between a buyer and the seller for commercial purpose or for resale, the object of the Act appears to be to exclude such commercial transactions from the purview of the Act. Instead, legislature intended to confine the redressal to the services contracted or undertaken between the seller and the 'consumer' defined under the Act. It is seen that the appellants admittedly entered their letters of credit with the respondent. The respondent is a statutory authority to act as canalised agency on behalf of the industries to procure required goods on their behalf from the foreign seller and acts in that behalf in terms of the letter of credit and conditions enumerated thereunder. It is seen that the respondent did not undertake any direct responsibility for supply or liability for non-supply of the goods. On the other hand, the appellants had solicited to have the goods supplied to it through the respondent and opened letter of credit in favour of the respondent. After collecting requirement from various industries in the country admittedly a consolidated demand for supply of the required quantity of the G.P. Sheets was indented with foreign sellers so as to procure the required goods for onward supply to the appellant and others. The goods supplied were required for commercial purpose, // 20 // i.e., for manufacture and resale as finished goods during the course of their commercial business. Under the circumstances, the appellants intended to purchase these goods for commercial purpose, namely to manufacture the tin sheets for resale. It is true that the word 'resale' used in the exclusionary clause of Section 2(1)(d) (i) was used in connection with the purchase of goods defined in the Sale of Goods Act for commercial purpose The ultimate object of the supply of the goods, namely, G.P. sheets to the appellants was manufacture of finished goods for resale. The goods were intended to be used for commercial purpose. Thus, considered, we are of the opinion that the appellants are not consumers by virtue of the exclusionary clause under Section 2(1)(d)(ii). Therefore, they would not come under Section 2(1)(d)(ii) of the Act. Since the object of the supply and purchase of the goods was commercial purpose, it would certainly come within the exclusionary clause of Section 2(1)(d)(ii). Otherwise, if the construction sought to be put up by Mr. Sanghi is given effect to, while foreign sellers are not liable under the Act within the definition of Section 2(1)(d) as they get excluded from the purview of the Act, the canalising agency would be fastened with the liability. Thereby, the definition of the word 'consumer' under Section 2(1)(d)(ii) is not attracted.
8. Consequentially, clause (ii) of Section 2(1)(d) does not apply. Considered from this perspective, we are of the opinion that the appellants are not consumer under Section 2(1)(d)(ii) of the Act. Thereby the complaint would not lie under Section 21 of the Act."
20. In Kurji Holy Family Hospital v. Boehringer Mannheim India Ltd. & Ors., III (2007) CPJ 371 (NC), the Hon'ble National Commission has observed thus :
"23. Dealing with the similar terms of the sale agreement, in the case of Indochem Electronic & Anr. v. Additional Collector of // 21 // Customs, A.P., II (2006) SLT 658 = I (2006) CPJ 1 (SC) = (2006) 3 SCC 721, the Apex Court held as under :-
"22. The deficiencies in EPABX system supplied by the appellants were such as were required to be attended to immediately. If the appellants had not been able to attend thereto immediately, there would be a 'deficiency of services' on the part of the appellants as immediate attention to such complaints was part of the contract.
23. The State Commission as well as the National Commission have arrived at findings of fact as regards nature of deficiencies of service complained of by the respondent in terms of the provisions of the contract. If such breaches of conditions of warranty admittedly had taken place during the period of warranty, no exception can be taken to the judgment and order passed by the State Commission as also the National Commission.
24. The appellant had all along been aware that the system installed by it had not been functioning properly. On its own showing, it had been attending to the complaints made by the respondent relating to the functioning of the system. It has categorically been stated by the appellant itself that despite expiry of the period of warranty it had been attending to the complaints as and when made by the respondent which were of serious nature.
24. Similar is the position in the present case. Admittedly, the 'Swelab' was not functioning since the initial stage. Therefore, the respondents replaced it by another 'Swelab'. That also was not functioning despite its being repaired by the respondents' mechanics on a number of occasions. And, in such cases it would be a deficiency in service as defined in Section 2(1)(g) of the Consumer Protection Act, // 22 // 1986. It is also to be stated that the Swelab Auto Counter AC 920-11 Haematology Analyzer cannot be used by the hospital, if it is defective or not functioning properly, because in such case, the pathological reports will be inaccurate which will have adverse effect on diagnosis and treatment."
21. CCI Chambers Co-op. Hsg. Society Ltd. v. Development Credit Bank Ltd., AIR 2004 Supreme Court 184, Hon'ble Supreme Court has observed thus :-
"7. In the Indian Medical Association case (supra) this Court noticed the powers conferred on the several for a under the Act. The procedure applicable (including the exercise of some powers of the Civil Court under the Code of Civil Procedure having been made available to the fora under the Act) and held that the nature of averments made in the complaint is not by itself enough to arrive at a conclusion that the complaint raises such complicated questions as cannot be determined by the NCDRC. It is only when the dispute arising for adjudication is such as would require recording of lengthy evidence not permissible within the scope of a summary enquiry that a forum under the Act may ask the complainant to approach the Civil Court. The for a made available under the Act are in addition to and not in derogation of the provisions of any other law for the time being in force and the jurisdiction of the conventional Courts over such matters as are now cognizable under the Act has not been taken away. A three Judge Bench of this Court recently in Dr. J.J. Merchant and others case (supra) specifically dealt with the issue as to the guidelines which would determine the matter being appropriately dealt with by a Forum under the Act or being left to be heard and decided by a Civil Court.
This Court noticed that the for a under the Act are specifically empowered to follow such procedure which may not require more than or delay the proceedings. A Forum under the Act is entitled, and // 23 // would be justified. In evolving a procedure of its own and also by effectively controlling the proceedings so as to do away with the need of a detailed and complicated trial and arrive at a just decision of the case by resorting to the principles of natural justice and following the procedure consistent with the principles thereof, also making use of such of the powers of Civil Court as are conferred on it. The decisive test is not the complicated nature of the questions of fact and law arising for decision. The anvil on which entertainability of a complaint by a Forum under the Act is to be determined is whether the questions though complicated they may be are capable of being determined by summary enquiry i.e. by doing away with the need of a detailed and complicated method of recording evidence. It has to be remembered that the fora under the Act at every level are headed by experienced persons. The National Commission is headed by a person who is or has been a Judge of the Supreme Court. The State Commission is headed by a person who is or has been a Judge of the High Court. Each District Forum is headed by person who is or has been or is qualified to be a District Judge. We do not think that mere complication either of facts or of law can be a ground for the denial of hearing by a Forum under the Act. In Synco Industries case (supra) this Court upheld the order of NCDRC holding the complaint before it not a fit case to be tried under Act and allowing liberty to the complainant to approach the Civil Court because this Court agreed with the opinion formed by the Commission that "very detailed evidence would have to be led both to prove the claim and thereafter to prove the damages and expenses." The Court concluded that in any event it was not an appropriate to be heard and disposed of in a summary fashion."
10. In our opinion the decision arrived at by the NCDRC is premature. The Commission ought to have issued notice to the respondent and taken its pleadings on record. Only when the // 24 // pleadings for both parties were available should the Commission have formed an opinion as to the nature and scope of enquiry, i.e. , whether the questions arising for decision in the light of the pleadings of the parties required a detailed complicated investigation into the facts which was incapable of being undertaken in a summary and speedy manner. Then the Commission could have justifiably formed an opinion on the need of driving away the complainant to the Civil Court. Mere complicated nature of the facts and law arising for decision would not be decisive."
22. In JCB India Ltd. Vs. Mallappa Sangappa Mantri & Anr., IV (2012) CPJ 220 (NC)., Hon'ble National Commission has observed thus :-
"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. Vijay Prakash Goyal v. The Network Ltd., IV (2005) CPJ 206 (NC) = 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 buy 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 // 25 // warranty, he cannot be considered to be 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 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 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. P.S.G. Industrial Institute, (1995) 3 SCC 583."
23. In Kishore Ramchandra Bhide v. Habibat India Agro Development Pvt. Ltd. & Ors., IV (2012) CPJ 706 (NC), Hon'ble National Commission, has observed thus :-
"7. The Supreme Court has discussed the term 'consumer' in the celebrated authority reported in Laxmi Engineering Works v PSG Industrial Institute, II (1995) CPJ 1 (SC) = 1995 3 SCC 583, wherein it was held :
"The National Commission appears to have been taken 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 - Parliament stepped in and added the explanation to Section 2(1)(d) by Ordinance / // 26 // 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 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 illustrations would serve to emphasise 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 // 27 // 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 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".
A person cannot be said to be consumer if he purchases the second house."
24. In Biilagi Sugar Mill Ltd. v. Kessels Engineering Works (P) Ltd., II (2010) CPJ 242 (NC)., Hon'ble National Commission has observed thus :-
"3. From the facts narrated in the complaint, it is clear that the Turbine (T.G. Set) in question had been purchased by the complainant for commercial purpose and, purchase for commercial purpose is excluded under Section 2(1)(d)(i) of the C.P. Act. Likewise, the services of the warranty for commercial purpose are also excluded for commercial purpose under Section 2(1)(d)(ii) w.e.f. 15.3.2003. A Division Bench of this Commission to which one of us (R.K. Batta, J) was a party has after scrutiny of a large number of judgments, which actually pertain to the pre-amendment period i.e. before 15.3.2003, in Meera Industries v. Modern Constructions, R.P. No.1765 of 2007 decided on 22.5.2009, wherein it was held :
"In view of the above, we are of the opinion that whether a customer buys goods for commercial purpose 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(d)(ii) of the Act, which came into force w.e.f. 15.3.2003. In view of this, the complainant cannot be held to be // 28 // a consumer with reference to the services attached to the warranty and the complaint is not maintainable".
25. In Sanjay D. Ghodawat v. R.R.B. Energy Ltd., IV (2010) CPJ 178 (NC), Hon'ble National Commission has observed thus :-
"21. In the complaint it was contended that the complainant is a consumer within the meaning of Section 2(1)(d)(ii) of the Consumer Protection Act, since the complainant had engaged and availed the services of OP for providing software. The main prayer in the complaint was seeking directions to the OP to rectify the defects in the services to provide 7 modules (software system). It was only in the alternative that refund of the entire consideration was sought with interest. In the complaint, the complainant had alleged that contract with OP was entered into on 1.6.1998 pursuant to which, the software was to be developed in 15 months from 1st April, 1998 till 30th July, 1999. The complainant had also pleaded that the OP had agreed to provide one year warranty from the final date of installation for one year and annual maintenance. The complainant noted defects in the modules as also shortcomings in OP's services during the warranty period in the year 2000. The grievance of the complainant is that the services during the warranty period were not provided and the defects were not rectified. Hence, complaint was filed on 1.8.2000. Prior to the amendment Section 2(1)(d)(ii) by Amendment Act, 2002 a person hiring or availing services for consideration was not excluded even though the services were availed for any commercial purpose. Therefore, in this case, if there was any deficiency in service during the warranty period, the complaint could be maintained before the Consumer Forum for the said purpose. Accordingly, insofar as defects in service during the warranty period are concerned, the case is governed and covered by the judgments of this Commission relating to the pre-amendment period, which has been referred to in Meera // 29 // Industries, Howrah v. Modern Constructions, Howrah (supra). Therefore, the complaint in F.A. No.218/04 with respect to the deficiency of service during the warranty period is maintainable and appeal to that extent is allowed and the order of the State Commission to that extent is modified with no order as to costs."
26. In M/s Rohit Chemical & Allied Industries Pvt. Ltd. National Research Development Corporation, IV (2013) CPJ 87 (NC), Hon'ble National Commission has observed thus :
"22. In Laxmi Engineering Works v. P.S.G. Industrial Institute, AIR 1995 SC 1428, it was held :-
"12. 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); 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 taken a consistent view that where a person purchases // 30 // 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 - Parliament stepped in and added the explanation to Section 2(1)(d) 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 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 // 31 // earning his livelihood. A few more illustrations would serve to emphasise 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 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 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".
27 . In paragraph no.12 of the complaint it has been pleaded that the capacity of the PAN Mixture was mentioned as 750 Kg but only by putting 200 Kg material on the PAN Mixture, the machine stops working. Moreover, in the Invoice at Serial No.2, it was assured that the PAN Mixture is of 750 Kg capacity and deal was also accordingly struck at, on the assurance of PAN Mixture being of 750 Kg and the O.P. charged the money from complainant according to 750 Kg per piece but in reality it was found to be only 500 Kg per piece. Apart from it the working capacity of the Machine, as assured of 1800-2200 Bricks per hour, it is also not according to the assurance as it is only producing below 100 bricks per hour.
// 32 //
28. Looking to the complaint and documents filed by the complainant, it appears that the complainant purchased the above machine for preparing bricks and the machine was purchased by the complainant for commercial purpose and transaction between the parties was a commercial transaction, therefore, the complainant is not a consumer and the complaint is not maintainable.
29. We are of the firm view that the complainant is not a "consumer", therefore, the complaint is not maintainable and the complainant is not entitled for any relief from this Commission and the complaint is liable to be dismissed.
30. Hence, the complaint of the complainant, is dismissed, but the complainant will be at liberty to approach appropriate Forum for redressal of his grievances.
(Justice R.S. Sharma) (Ms. Heena Thakkar) (D.K. Poddar) (Narendra Gupta) President Member Member Member /10/2015 /10/2015 /10/2015 /10/2015