State Consumer Disputes Redressal Commission
Jcb India Ltd. vs Kamaldeep on 19 March, 2015
2nd Additional Bench
PUNJAB STATE CONSUMER DISPUTES REDRESSAL
COMMISSION,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 1669 of 2012
Date of institution: 24.12.2012
Date of decision : 19.03.2015
JCB India Ltd., through its Authorised Signatory Office at /: B-1/I-1,
Second Floor, Mohan Cooperative Estate, Mathura Road, New
Delhi-110044.
.....Appellant/Opposite Party
Versus
1. Kamaldeep S/o Sh. Tarsem Lal R/o Vill-Badhal, Tehsil-
Anandpur Sahib, District Ropar (Punjab)
2. Krishna Automobiles, Palika Bazar, Nangal Road, Shop No. 1
& 2, Una Tehsil & District-Una (Punjab)
...........Respondents
First Appeal against the order dated
27.11.2012 passed by the District
Consumer Disputes Redressal Forum,
Ropar.
Before:-
Sh. Gurcharan Singh Saran, Presiding Judicial Member
Sh. Jasbir Singh Gill, Member Sh. Harcharan Singh Guram, Member Present:-
For the appellant : Sh. A.K. Bishnoi, Advocate For respondent No. 1 : Sh. M.S. Longia, Advocate For respondent No. 2 : Sh. Anil Goeley, Advocate F.A. No. 1669 of 2012 2 GURCHARAN SINGH SARAN (PRESIDING JUDICIAL MEMBER) This appeal has been preferred by appellant/opposite party No. 2 (hereinafter referred as 'OP No. 2') under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as the 'Act') against the order dated 27.11.2012 in C.C. No. 104 of 2012 passed by the learned District Consumer Disputes Redressal Forum, Ropar (in short the 'District Forum') vide which the application filed by OP No. 2 was dismissed holding that the complainant was using the machine for commercial purpose.
2. The complaint was filed by the complainant on the averments that he had purchased one JCB machine from OP No. 2 and after that there was some technical problem in the machine for which he had contacted OP No. 1, but it was not repaired within the warranty time, therefore, deficiency in service alleged against the OPs.
3. Upon notice of the complaint, OP No. 2 moved an application for dismissal of the complaint as the complainant does not fall within the definition of consumer and that he is operating the JCB machine for commercial purpose.
4. The application was contested by the complainant who filed the reply taking preliminary objections that the application was filed on the false grounds only to delay the proceedings and that the application was not maintainable, therefore, it be dismissed with heavy costs. On merits, it was submitted that the complainant had employed two more operators to help the complainant, otherwise the machine was being used for livelihood of the complainant. F.A. No. 1669 of 2012 3 Accordingly, it was submitted that the application was without any basis and it be dismissed.
7. After hearing the arguments of the learned counsel for the parties and perusing the record, the learned District Forum vide impugned order dated 27.11.2012 dismissed the application.
8. Aggrieved with the order, the appellant/OP No. 2 has filed this appeal.
9. We have heard the counsel for the parties and have perused the record.
10. During the course of arguments, counsel for the appellant has drawn our attention towards the averments in the complaint. In Para No. 21 of the complaint, it has been mentioned that he has employed two more operators to operate the machine as he has to pay the heavy instalments and their salary is Rs. 20,000/- each. In Para No. 23, it was alleged that the respondents have harassed the complainant mentally and physically, thus they are liable to pay Rs. 4,80,000/- as a loss of business due to non working of the machine for 600 hours. Therefore, in case, in the complaint, he is referring the loss of the business and that he had employed two more operators to operate the machine and moreover, in the complaint he has simply stated that the machine was purchased to earn his livelihood, but the complaint is silent whether the livelihood was to be earned by way of self employment. Here Section 2(d)(i) and Section 2 (d) (ii) are not applicable which read as under:-
2 (d) "consumer" means any person who-
(i) Buys any goods for a consideration which has been paid or promised or partly paid or partly promised, or under any system of deferred payment and includes any user of such F.A. No. 1669 of 2012 4 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 and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purposes;] [Explanation:- For the purposes of this clause, "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;] The above said sections make it clear that in case, any machinery was purchased for commercial purpose, then the purchaser does not come within the definition of consumer. He further submitted that the said machine was purchased to earn his livelihood for self employment, therefore, firstly the word 'self employment' is missing from the complaint. This plea is further corroborated from the fact that he has employed two more employees to operate the machine which shows that in fact the operators were operating the machine, F.A. No. 1669 of 2012 5 whereas the complainant himself is not employed to operate the machine, because in case, the machine works in two shifts, then two operators are sufficient to operate the machine. The complainant further alleges the loss to the business to the complainant. Similar matter of the same company had come up for consideration before the Hon'ble National Commission in Revision Petition No. 4044 of 2009 and Revision Petition No. 4178 of 2009, in that case also, the complainant purchased JCB machine and complaint was filed on account of some manufacturing defect in the machine and in that case also, the question arose whether the complainant comes under the definition of consumer. In that case also, the complainant had alleged in the complaint that he had purchased one machine to earn his livelihood, but it was not alleged in the complaint that the machine was used by the complainant himself by means of self-
employment. Accordingly, it was held by Hon'ble National Commission that the complainant does not come within the definition of consumer. The case of the complainant is squarely covered under this judgment. Similar point of the same company had come up before State Consumer Disputes Redressal Commission, Haryana in F.A. No. 1264 of 2010 decided on 24.08.2012 and in F.A. No. 1265 of 2010 decided on 04.01.2012 and similar preposition had arisen in those appeals and it was observed that the complainant does not come within the definition of 'Consumer'. In view of the above discussion, we are of the opinion that this preposition was not properly dealt with by the learned District Forum. Therefore, the order of the District Forum is liable to be set-aside.
11. In view of above, we accept the appeal, the order of the District Forum is set-aside and consequently the complaint filed by F.A. No. 1669 of 2012 6 the complainant is also dismissed on the point that the complainant does not come within the definition of consumer.
11. The arguments in this appeal were heard on 13.03.2015 and the order was reserved. Now the order be communicated to the parties as per rules.
(GURCHARAN SINGH SARAN) PRESIDING JUDICIAL MEMBER (JASBIR SINGH GILL) MEMBER (HARCHARAN SINGH GURAM) March 19, 2015. MEMBER Rupinder