National Consumer Disputes Redressal
M/S. Global Living Style vs Basanti Kumari Shadangi on 16 August, 2022
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 218 OF 2021 (Against the Order dated 11/11/2020 in Appeal No. 2/2019 of the State Commission Orissa) 1. M/S. GLOBAL LIVING STYLE ...........Petitioner(s) Versus 1. BASANTI KUMARI SHADANGI ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT
For the Petitioner : For the Petitioner : Mr. Byrapaneni Suyodhan, Advocate
Ms. Tatini Basu, Advocate For the Respondent : For the Respondent : Ms. Basanti Kumari Shdangi,
in person
Dated : 16 Aug 2022 ORDER
1. The present Revision Petition has been filed under Section 21(b) of the Consumer Protection Act, 1986, against the Impugned Order dated 11.11.2020 passed by the State Consumer Disputes Redressal Commission Odisha (hereinafter referred to as State Commission) in First Appeal No. 2 of 2019, whereby the State Commission had dismissed the Appeal filed by M/s. Global Living Style (hereinafter referred to as the 'Petitioner/Opposite Party') by affirming the Order dated 26.10.2018 passed in Complaint No. 33 of 2016 by the District Consumer Disputes Redressal Forum, Ganjam (for short "the District Forum") vide which the District Forum had partly allowed the Complaint and directed the Petitioner/Opposite Party to replace the non-woven bag machine with the maximum capacity of producing 700 mm length and 450 mm width or in alternative to pay the cost of the non-woven bag machine alongwith ₹25,000/- towards compensation for mental agony together with ₹5,000/- towards cost of the litigation to the Complainant within two months from the date of receipt of the Order.
2. Brief facts of the case as stated in the Complaint are that as the State Government banned use of polythene in the State, Basanti Kumari Shadangi (hereinafter referred to as the Complainant), an unemployed graduate, being desirous of starting one production unit in the name of "Sobha & Sweta Enterprises" of non-woven bags, approached the M/s. Global Living Style, Opposite Party/Petitioner herein, to supply the non-woven bags machine for production of bags of 22 inches. The Opposite Party/Petitioner herein, supplied the invoice. The Complainant deposited ₹7,65,000/- with the Petitioner and the Petitioner dispatched non-woven bag making machine alongwith voltage stabilizer and regulator together with external electrification accessories for installation of the machine. The Complainant paid a total sum of ₹9,42,120/- for the said machine and other accessories besides a sum of ₹4,63,000/- towards transformer and ₹40,000/- towards the cost of raw materials. It is the say of the Complainant that when the production of non-woven bags started, there was production of 16 inches bags instead of 22 inches as assured by the Petitioner herein. The Complainant raised complaints with the Opposite Party/Petitioner herein and requested for replacement of the machine but finding no response from the Opposite Party/Petitioner herein, the Complainant filed a Consumer Complaint before the District Forum alleging unfair trade practice and deficiency in service on the part of the Opposite Party / Petitioner herein.
3. The Opposite Party/Petitioner herein contested the Complaint before the District Forum by filing written version in which preliminary objections were taken that the Complaint is not maintainable as the cause of action has arisen in Hyderabad, therefore, the District Forum Ganjam at Berhampur, has no jurisdiction to entertain the Complaint; the Complainant has purchased the machinery for business purpose, therefore, the Complainant did not fall within the definition of 'consumer' and the Complaint should be dismissed. It was further submitted that the Complainant has placed the order for non-woven bags machine 450 model, which was supplied alongwith other material including electrical accessories after due demonstration to the Complainant. It was further submitted that there is no deficiency in service on their part and it was prayed that the Complaint be dismissed.
4. The Opposite Party/Petitioner did not attend the proceedings before the District Forum. The District Forum passed an exparte Order on 10.01.2018 and directed the Opposite Party/Petitioner to replace the non-woven bags machine for production of 22 inches bags or to refund ₹8,83,900/- and ₹20,000/- towards compensation besides payment of ₹5,000/- as cost.
5. The Opposite Party challenged the said Order before the State Commission vide filing First Appeal No. 205 / 2018. The State Commission vide Order dated 06.07.2018 remitted the case to the District Forum for de novo hearing.
6. On remand, the District Forum after taking expert opinion of the Expert, who was appointed with the concurrence of the Opposite Party/Petitioner and perusal of material on record, partly allowed the Complaint by observing as under:-
"8. The brochure filed by the O.P reveals that the complainant's machine 450 model can produce maximum non-woven bag making length 700mm and width 450 mm. During course of argument the learned advocate for the O.P. submitted the alleged machine of the complainant is capable of producing the length as per the brochure, for which the learned Forum directed the O.P. to depute an expert to the Complainant's unit to demonstrate the length producing capacity of the alleged non-woven bag machine in presence of the complainant. Accordingly the O.P. deputed his expert to the complainant's unit and after demonstration in presence of the complainant produced a bag, which has been filed by the O.P's advocates with due endorsement. After careful measurement of the said bag it reveals that the length of the said non-woven bag is not 700 mm in size as mentioned in the brochure. The advocate for the O.P. demanded that as per the mechanical term, the vertical side of the bag is width and the horizontal side of the bag is length, which contains the handle. But the plea of the O.P's advocate is not accepted. Though the width of the said non-woven hag is much more than the size given in the brochure but the length of the non-woven bag filed by the O.P. is less than the size given in the brochure.
9. On foregoing discussion it is clear evident that the O.P. is negligent in rendering proper service to the complainant as well as he is involved in unfair trade practice. For which undoubtedly the complainant has sustained mental agony as such she is entitled to get compensation for the deficiency in service on the part of the O.P.
10. Resultantly, the complainant's case is partly allowed against the O.P on contest. The O.P. is directed to replace the alleged non-wove bag machine 450 model of the complainant with a new non-woven bag machine with the maximum capacity of producing 700 mm length and 450 mm width or in alternative pay the cost of the non-woven bag machine to the complainant. Further the O.P. is directed to pay ₹25,000/- towards compensation for mental agony alongwith ₹5000/- towards cost of litigation to the complainant. Both the above order shall comply by the O.P. within two months from the date of receipt of this order."
7. Aggrieved by this order, the Opposite Party/Petitioner herein filed Appeal before the State Commission.
8. After hearing both the Parties and perusal of material on record, the State Commission dismissed the Appeal and affirmed the Order passed by the District Forum by observing as under:-
"21. The aforesaid para reflects appreciation of the report along with the bags prepared by the expert by the non-woven machine procured by the complainant from the OP. The argument advanced by the advocate for the OP is in the same manner argued by the learned counsel for the appellant before this Commission. The submission of the learned counsel for the OP that the vertical size of the bag is width and the horizontal size of the bag is length is not correct. Because in the brochure produced by the OP different types of bags are available and of those photographs the models clearly show that the handle is always fixed and manufactured at lengthwise and not width wise and the handle is fixed in one end of the length. So the District Forum has rightly stated that 450 mm denotes to width and 700 mm should be length of the concerned bag produced by the machine as per the brochure but the learned District Forum has found that the length of the non-woven bag is less than 700 mm although the width of the bag is much wider than 450 mm. Thus, the machine has also failed to give production of 450 mm model bags.
22. In view of aforesaid discussion, we are of the view that even if the complainant has no any written requisition proved for indenting the machine producing 22 inches bag, there remains admitted fact that machine of 450 model producing length of 700 mm and width of 450 mm bag was sold by OP to complainant but that machine is defective as it has not even given production of the bag as per the specification of the brochure, thus the unfair trade practice on the part of the OP cannot be denied. So the evidence of the complainant coupled with the report of the expert and the bag produced clearly proved the unfair trade practice on the part of the OP.
23. It is also found from the statement of the complainant that she has sent many intimations to the OP to replace the machine as the bag produced by the complainant could not be marketable well but the OP remained silent. Of course the complainant has not produced any letter for communication in evidence. The OP has also stated in the written version that they have not received any intimation during warranty period of 12 months but at the same time, in the written version admitted that the OP got the call from the complainant after the warranty period to rectify the defect in the machine but that has not been attended.
24. Be that as it may, the mental agony and harassment of the complainant as per statement of complainant due to unfair trade practice of OP should allow the complainant's claim for compensation.
25. Learned counsel for the appellant submitted that the Consumer Forum has no jurisdiction because as per the decision reported in M/s Sonic Surgical vrs. National Insurance Co.Ltd reported in 2010 AIR SCW 298 jurisdiction of the Consumer Forum only lies where the OP actually carries on business or has a branch office and at such place cause of action arises but facts of such decision is not similar to the facts of case in hand. With due respect to such decision, it is observed that the decision is not applicable to present case. As per section 11 of the Act, the District Forum has got jurisdiction where the cause of action wholly or partly arises. In the instant case, the cause of action partly arises at Berhampur because the OP supplied the non-woven machine at Berhampur. Therefore, u/s 11 the Consumer Forum at Berhampour has jurisdiction to entertain the complaint. The submission of learned counsel for the OP in this regard is untenable.
26. Learned counsel for the appellant further submitted that the complainant is not a 'consumer' for the simple reason that the complainant is procuring the machine for production of bags which are to be marketed and on the other hand, she has started business of selling bags and as such the complainant does not qualify u/s 2(d)(i) of the Act. The definition of ''consumer" u/s 2(d)(i) of the Act is clear to show that where the consumer buys any goods for a consideration which has been 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 obtains such goods for resale or for any commercial purpose but in explanation of such clause it is clear that "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment. In this case, the complainant filed complaint along with affidavit stating that the complainant being unemployed graduate was engaged for running such business of selling bags for earning her livelihood by means of self-employment. The OP although has opportunity to prove that she has started business not for livelihood by means of self-employment, but in absence of same, the statement of the complainant goes uncontroverted. As such the complainant cannot be said to have procured nonwoven machine for production of bags for their marketability as part of business other than for earning livelihood by means of self-employment. On the other hand, the OP failed to prove that the complainant is not a 'consumer' under the Act. Hence, we are of the view that the complainant is a 'consumer' under the Act. It is reiterated that she has stated in complaint with affidavit that in spite of repeated request, OP did not rectify the defect and as such she has been harassed and suffered from mental agony. This part of evidence of affidavit by complainant also remained uncontroverted and for that she is entitled to get compensation u/s 14 of the Act as observed in above paras."
9. Aggrieved by the Impugned Order dated 11.11.2020 passed by the State Commission, the Opposite Party/Petitioner herein has filed the present Revision Petition before this Commission.
10. Mr. Byrapaneni Suyodhan, learned Counsel appearing on behalf of the Opposite Party/Petitioner herein, submitted that the State Commission erred in considering the expert report which clearly states that the machine has been modified and the warranty period is over; the machine is producing the bags as per the specifications mentioned in the brochure and the orders passed by the Fora below are contrary to law and facts. He further submitted that the Impugned Order passed by the State Commission is not sustainable in the eyes of law and it should be set aside and the Revision Petition be allowed.
11. Per Contra Respondent/Complainant, who is present in person, submitted that this Commission vide Order dated 23.09.2021 directed the Petitioner to remit ₹10,000/- towards travelling and sundry expenses to her; Stay was granted subject to deposit of cost of the non-woven bag machinery plus cost imposed within four weeks with the State Commission despite that the Opposite Party/Petitioner herein, did not fully complied with the directions given vide Order dated 23.09.2021 and only deposited ₹3,20,000/- against the machine price of ₹7,65,000/-. It was prayed that the Revision Petition be dismissed for non-compliance of the directions given vide Order dated 23.09.2021 passed by this Commission. She also supported the Order passed by the State Commission as according to her the State Commission has passed a well-reasoned order which is based on a correct and rightful appreciation of evidence and material available on record and does not call for any interference.
12. I have heard Mr. Byrapaneni Suyodhan, learned Counsel appearing on behalf of the Opposite Party/Petitioner herein, Mrs. Basanti Kumari Shadangi, Complainant/Respondent in person, perused the material available on record and have given a thoughtful consideration to the various pleas raised by them.
13. From the perusal of the record, it is evident that the Opposite Party/Petitioner had miserably failed to comply with the directions given vide Order dated 23.09.2021 by not remitting a sum of ₹10,000/- towards travelling and sundry expenses directly to the Complainant; depositing the full amount of the non-woven bag machinery plus cost within specified time. Accordingly, the Revision Petition is liable to be rejected due to non-compliance of the Order dated 23.09.2021.
Even otherwise, it is concurrent finding of both the Fora below that the 450 Model Machine provided to the Complainant is defective as it has not even given production of the bag as per specification of the brochure and the said finding is based on the report of the Expert which was appointed with the concurrence of the Opposite Party/Petitioner herein, and the actual bag produced by the machinery, which was produced before the District Forum. The Revisional Jurisdiction of this Commission is extremely limited as has been held by the Hon'ble Supreme Court in 'Sunil Kumar Maity vs. State Bank of India & Anr.' [Civil Appeal No. 432 / 2022 Order dated 21.01.2022] by observing as under:-
"9. It is needless to say that the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity. In the instant case, the National Commission itself had exceeded its revisional jurisdiction by calling for the report from the respondent-bank and solely relying upon such report, had come to the conclusion that the two fora below had erred in not undertaking the requisite in-depth appraisal of the case that was required. ....."
15. The State Commission has dealt with all the issues in detail and has passed a well-reasoned Order. I do not find any illegality, material irregularity or jurisdictional error in the Impugned Order dated 11.11.2020 passed by the State Commission warranting interference in Revisional Jurisdiction under Section 21(b) of the Consumer Protection Act, 1986.
16. For the reasons stated hereinabove, the impugned Order passed by the State Commission is upheld and the Revision Petition is dismissed with cost of ₹50,000/- to be paid by the Opposite Party/Petitioner herein, to the Complainant/Respondent within four weeks from today.
......................J R.K. AGRAWAL PRESIDENT