State Consumer Disputes Redressal Commission
The Managing Director, Nitch Marketing vs P P Anusha on 13 July, 2018
Daily Order KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHU THACAUD, THIRUVANANTHAPURAM APPEAL No. 549/2014 JUDGMENT DATED:13.07.2018 PRESENT : SHRI. T.S.P MOOSATH : JUDICIAL MEMBER
SHRI. RANJIT. R : MEMBER The Managing Director, Nitch Marketing, Pavamani Road, Kozhikkode. : APPELLANT (By Adv: Sri. S.K. Krishna Kumar & Others.) Vs. P.P. Anusha, W/o Sunil Kumar, Sunflex Printers, R/by her husband,- Sunil Kumar, Sunflex Printers, : RESPONDENT Club Kunnu, Mananthavady. (By Adv: Sri. Sivanandan C.T) JUDGMENT SHRI. RANJIT.R : MEMBER
Appeal is filed by the opposite party in CC.220/11 passed by Consumer Disputes Redressal Forum, Wayanadu, Kalpetta (for short the District Forum). Appeal is directed against the Order of the Forum directing the appellant to replace the old machine with a new one or to refund the value of the machine Rs.,7,50,000/- with compensation of Rs.25,000/- and cost of Rs.10,000/-.
2. The facts of the complaint is that, complainant has placed an order for the supply of "Magnum 10 feet Printer with 8 heads" flex printing machine with the opposite party and paid an amount of Rs.7,50,000/- towards its price. Though the complainant has placed order for supply of machine marketed under the brand name 'Magnum', the opposite party has supplied the machine with the brand name "XAASTAR". Soon after the installation of the machine it develops complaints. Even though the complaints were attended by the technician of the opposite party, many parts of the printing machine was replaced within the warranty period itself. During September 2010 the complainant received many printing orders in connection with Panchayath elections but due to the mal functioning of the printing machine she was not able to fulfill business commitment to the customers. In May 2011 the printing machine ceased functioning. A week after repairs again the machine develop mal functioning. On that occasion the technician check the machine and suggested replacement of some other components of the machine. Most of that components were replaced by that time and so complainant requested to replace the machine itself. Even though opposite party promised to do so they retracted from their stand and represented that machine cannot be replaced as the warranty has expired and hence complainant filed the complaint before the Forum.
3. Opposite party resisted the complaint by filing version. They contended that complaint is not maintainable as per section 2(1)(d) of the Consumer Protection Act. The flex printing machine is imported from abroad. Magnum is the brand name under which the opposite party marketed and imported by it XAASTAR is the concern which is the manufacturer of the machine supplied by the opposite party to the complainant. The quality and clarity of the printouts supplied by the opposite party is bound to the specification. The machine supplied to the complainant is a sophisticated one and it has to be installed in air conditioned room. It was to be operated by persons having technical knowledge and experience. The complainant had not installed the machine in an air conditioned room and had employed the person who had no technical knowledge to operate the same, this has lead to the improper functioning of the machine. All the complaints were attended by the opposite party and rectify the same. There is no deficiency of service and unfair trade practice on their part and prayed for dismissal of the complaint.
4. On the side of the complainant her husband was examined as PW1 and Exts.A1 to A5 were marked. Opposite party himself was examined as OPW1 and Exts.B1 was marked on his side. Commission report was marked as Ext.C1 and he was examined as CW1.
5. The lower forum appreciating the materials produced had passed the impugned order.
6. Heard both parties peruse the records.
7. Learned counsel for the opposite party contended that complaint is not maintainable as the complainant had availed the service of the opposite party for commercial purpose and so the complaint ought to have been dismissed by the lower forum on his sole ground alone. The learned counsel for the complainant urged that the machine was bought by availing a loan under Prime Ministers Employment Guarantee project, which was funded by North Malabar Gramin Bank for eking livelihood which was specially made mentioned in the complaint. So it cannot be considered that it was for commercial purpose she is covered under the definition of consumer and the complaint is maintainable.
8. The fundamental question whether complainant is entitled to approach Consumer Forum on the allegations raised was not looked into by the lower forum. On perusing the complaint it is seen that the complainant is represented by her husband, and has filed the complaint in representative capacity. No authorization whatsoever is seen filed along with the complaint. It is also not disclosed as to what prevented the complainant to file the complaint, if complainant was conducting the business. On going through the documents it is noted that all the documents except Ext.A1 and A2 is seen issued in the name of Sunflex printers only. When the complainant's husband was examined as PW1 he has deposed that he was running an Offset press for the last 11 years and started the new Flex printing unit, even though machinery was bought in the name of the defacto complainant. The complainant has no say in this business and the business/flex printing unit is looked after by himself and son in law. He further deposed that the defacto complainant has not given any authorization to him to file the complaint nor it was produced before the Forum. There is no whisper in the complaint that the complainant is carrying on self-employment or eking out the livelihood from her business. However in the first para of the affidavit in lieu of chief examination filed by the complainant's husband it is affirmed that he only assisted the complainant in her business and that the complainant running Sunflex printing press. It is carried on by the complainant herself. But in the witness box, the husband of the complainant deposed that even though the machinery was bought by his wife on availing loan, she has no job and at present she is only a house wife and the flex printing business is run by himself. He further deposed that he is conducting another business of offset press for the last 11 years.
9. From the above it can only be considered that the flex printing press was started by the complainant and their family to improve the business activity of their family.
10. The term consumer is defined as under section 2(1)(d) of the Consumer Protection Act. On bare reading of the section, it is clear that a consumer is a person who buys goods or hires or avail service for consideration but does not include a person who buys goods or avail service for commercial purpose. Explanation says that commercial purpose does not include use by a person of goods paid and used by him and service availed by him exclusively for the purpose of earning his livelihood by means of self-employment. On going through the complaint apart from making a bald statement in paragraph 6 of the complaint, that the complainant had purchased machinery from the opposite party on starting flex printing for her livelihood, there is no pleading to effect that she has purchased it for earning her livelihood by means of self-employment. She had also not revealed in the complaint that her family had already income from another business run by her husband. It also not alleged that she was not having any source of income and that the particular type of business was to be run by her. When these facts are missing it cannot be presumed that machinery was purchased for earning livelihood. Opposite party also deposed that the complainant is not known to him and that all the dealings were carried out by the husband of the complainant. It is quite evident on the facts of the case that at the time when complainant purchased machinery from the opposite party, her family was earning fromanother business, that offset printing press.
11. Since the complainant and her family was already having sufficient income at the time of machinery was purchased for functioning the flex printing press, it cannot be said that the aforesaid machinery was purchased for earning her livelihood.
12. We notice from the evidence of PW1 itself that the husband of the complainant who prosecuted the complaint on behalf of the complainant, is engaged in another business and there is absolutely no merit in the case canvassed of self-employment and eking out livelihood. Complaint was not entertainable before the Consumer Forum. When the Consumer Forum had no jurisdiction to entertain the complaint the complaint deserves to be dismissed in-limine. Findings entered by the Forum on the basis of the materials produced and issues raised and the order passed there of do not to be examined further, when it is proved that the complaint itself was not maintainable. We set aside the order of the lower Forum and dismissed the complaint as not maintainable.
In the result appeal is allowed. Complaint in CC.228/11 on the file of CDRF, Wayanadu, Kalpetta shall stands dismissed. Sum deposited by the appellant for entertaining the appeal shall be refunded to him on his application. Both parties shall suffer their respective costs.
T.S.P MOOSATH : JUDICIAL MEMBER RANJIT. R : MEMBER VL.