National Consumer Disputes Redressal
Trio Elevators Company (India) Ltd. vs Tansingh Chauhan on 22 July, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 863 OF 2013 (From the order dated 09.01.2013 in Appeal No. 243 of 2011 of the Rajasthan State Consumer Disputes Redressal Commission, Circuit Bench, Jodhpur) With IA/1549/2013 (Stay) Trio Elevators Company (India) Ltd. Having its Office at 404, Shivam Complex, Bhuyangdev Cross Road, Sola Road, Ahmedabad, Gujarat Petitioner/Opp. Party (OP) Versus Tansingh Chauhan S/o Sh. Sujansingh Chauhan Resident of Gandhinagar, Badmer, Jodhpur Respondent/Complainant BEFORE HONBLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER HONBLE DR. B.C. GUPTA, MEMBER For the Petitioner : Ms. Anushree Kapadia, Advocate For the Respondent : Ms. Vidushi, Advocate Mr. R.S. Rana, Advocate PRONOUNCED ON 22nd July, 2013 O R D E R
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER This revision petition has been filed by the petitioner/opposite party against the order dated 09.01.2013 passed by the Rajasthan State Consumer Disputes Redressal Commission, Circuit Bench at Jodhpur (in short, the State Commission) in Appeal No. 243 of 2011 Manager, Trio Elevators Co. (India) Ltd. Vs. Tan Singh Chauhan by which, while allowing appeal, order of District Forum allowing complaint was set aside and matter was remanded back to learned District Forum to decide after taking evidence.
2. Brief facts of the case are that complainant/respondent is possessing Hotel Kalinga Palace at Barmer. As per agreement with OP/petitioner, petitioner was to install 3 elevators of the capacity of 8 persons, whereas OP installed elevators of the capacity of 5 persons, which too are not working properly. It was further alleged that on account of delay in completion of work, complainant has suffered loss of Rs.10 lakhs. Alleging deficiency on the part of OP, complainant filed complaint before District Forum and prayed for grant of Rs.10 lakhs as compensation for mental agony and direction to OP to install elevators of the capacity of 8 persons. OP resisted claim and submitted that proper elevators were installed of the capacity of 8 persons and further submitted that agreement between the parties was of commercial nature and District Forum has no jurisdiction and prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint and directed OP to replace 3 elevators of the capacity of 8 persons instead of 5 persons. Appeal filed by the petitioner was allowed by learned State Commission vide impugned order, but as learned State Commission remanded for disposing the matter after recording evidence; this revision petition has been filed by the petitioner.
3. Heard learned Counsel for the parties at admission stage and perused record.
4. Learned Counsel for the petitioner submitted that, as transaction was of commercial nature and complainant did not fall within the purview of consumer under the C.P. Act, District Forum had no jurisdiction to deal with the complaint. It was further argued that there was no occasion for remand of the matter by learned State Commission, as parties had already placed evidence on record, revision petition be allowed and impugned order be set aside and complaint be dismissed. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.
5. Perusal of complaint reveals that as per agreement, petitioner/OP was required to install 3 elevators in the hotel of complainant/respondent. Complainant has nowhere mentioned in his complaint that this hotel was for the purpose of earning of his livelihood by means to self-employment. OP has taken plea in the written statement that, as agreement was for commercial purposes, complainant does not fall within the purview of consumer. Admittedly, 3 elevators were to be installed in the hotel, which is run for commercial purposes and certainly not for the purposes of earning livelihood by complainant by means of self-employment. Learned Counsel for the petitioner has placed reliance on AIR 1999 SC 3356 Kalpavruksha Charitable Trust Vs. Toshniwal Brothers (Bombay) Pvt. Ltd. & Anr.
9. In the instant case, what is to be considered is whether the appellant was a consumer within the meaning of the Consumer Protection Act, 1986 and whether the goods in question were obtained by him for resale or for any commercial purpose. It is the case of the appellant that every patient who is referred to the Diagnostic Centre of the appellant and who takes advantage of the CT Scan etc. has to pay for it and the service rendered by the appellant is not free. It is also the case of the appellant that only ten per cent of the patients are provided free service. That being so, the goods (machinery) which were obtained by the appellant were being used for commercial purpose.
6. In the light of above judgment, it becomes clear that complainant does not fall within the purview of consumer under the C.P. Act, as the elevators were to be installed in the hotel run for commercial purposes. In such circumstances, District Forum had no jurisdiction to entertain the complaint and complaint was liable to be dismissed. Learned State Commission has not considered this aspect and remanded the matter and directed District Forum to record expert evidence to be led by both the parties.
7. Learned Counsel for the petitioner submitted that there was no occasion to remand the matter as the parties had already led evidence before District Forum. In support of her contention she has relied on AIR 2002 SC 771 P. Purushottam Reddy and Anr.
Vs. M/s. Pratap Steels Ltd. in which it was held that matter should not be remanded when trial court has recorded finding on all these issues and parties are not pleading prejudice at trial for want of any issue or specific issue or recording of evidence. In the matter in hand, parties filed their evidence before District Forum as they liked and in such circumstances, without any request on the part of any party, learned State Commission should not have remanded the matter for disposal after recording evidence of experts.
7. In the light of aforesaid discussion, it becomes clear that, as complainant did not fall within the purview of consumer under the C.P. Act, complaint was not entertainable before District Forum and complaint was liable to be dismissed.
8. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 09.01.2013 passed by learned State Commission in Appeal No. 243 of 2011 Manager, Trio Elevators Co. (India) Ltd. Vs. Tan Singh Chauhan is set aside and complaint filed by the complainant/respondent is dismissed.
There shall be no order as to costs.
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( K.S. CHAUDHARI, J) PRESIDING MEMBER ..Sd/-
( DR. B.C. GUPTA ) MEMBER k