BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 22nd March 2017
PRESENT
SRI. VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI. T.C. RAJASHEKAR : HON’BLE MEMBER
ORDER IN
C.C.No.380/2014
(Admitted on 27.9.2014)
Sri. Prakash Kumar,
S/o Devappa Rao,
Aged about 49 years,
R/at Ullal Bail Guthu Ullal,
Ullal, Mangalore.
….. COMPLAINANT
(Advocate for the Complainant: Sri BK)
VERSUS
- Vindhya Associate,
#2.21.2, Sri Devi Kripa,
Silver Gate, Kulshekar,
Mangalore 575005.
- Hitachi,
Koki India Ltd,
Peenya Industrial Area,
Bangalore.
….OPPOSITE PARTIES
(Advocate for the Opposite Party No.1: Sri. KKM)
(Advocate for the Opposite Party No.2: Sri. CK)
ORDER DELIVERED BY HON’BLE MEMBER
T.C. RAJASHEKAR:
I. 1. The above complaint filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Party claiming, to replace the said machine costing to Rs.40,000/, to pay Rs.50,000/ in respect of loss of income, expenses incurred and tension, mental agony and hardship.
2. In support of the above complaint, Prakash Kumar, filed affidavit evidence as CW1 and answered the interrogatories served on them and produced documents got marked at Ex.C1 to C9 as detailed in the annexure here below. On behalf of the opposite parties Vindhya Kubanooraya, (RW1) also filed affidavit evidence and answered the interrogatories served on him. S.Suman Kumar, (RW2) Service Manager, Hitachi Koki India Ltd, also filed affidavit evidence.
The brief facts of the case are as under:
On perusal of the complaint and the version pleadings we conceived the dispute as, the complainant had purchased a demolition hammer of Hitachi make (hereinafter called the machine) from the opposite parties and the said machine became defective on the same day of purchase on use. The complainant alleges that the machine purchased was started giving problem on the day of purchase itself and the complainant next day gave the machine to the Opposite party no 1 for repair. Even after repair the machine defect not rectified and the complainant has given the machine for repairs in many occasions but the defect is not cured. The Opposite parties in contest submitted that in the first instance the complainant is not the consumer as the machine purchased is for the commercial purpose and the complaint is not maintainable. The opposite party also alleges that the defect is not manufacturing and it is the regular and routine consumables which are to be replaced while the machine is in used. The complainant given the machine is for replacing the consumable items like carbon, brush, and bearings etc, which are not of manufacturing defect. Hence no deficiency in service on their part. These are being the facts of dispute in resolving it we consider the following.
POINTS FOR ADJUDICATION
We have carefully examined the evidence produced and the documents filed on behalf of the parties and the admissions are, the purchase of the machine from the Opposite parties and given it for repair with the opposite parties no 1. The guarantee of 6 months is also admitted. The opposite parties deny the manufacturing defect in the machine and the deficiency in service on the part of them. The Opposite parties also deny the Forums jurisdiction to entertain the complaint on the ground of the transaction is in commercial in nature. Admissions and the denials reconciled and considered the following points for adjudication.
- Whether the complainant is a consumer under the consumer protection Act 1986? And this Forum has jurisdiction?
- Whether the deficiency in service against opposite party proved by the complainant?
- Whether the complainant is entitled for the relief prayed for?
- What order?
We have examined the evidence produced by the complainant and the documents produced are considered and the facts of law taken into account. The Notes of arguments considered and heard the party submissions and answered the above points as under
- In negative.
- Does not arise.
- Does not arise.
- As per delivered order.
REASON
POINT NO.1: The case of the complainant is that he had purchased a machine and produced the invoice No 1058 dated 06.12.2013 which established the complainant is the customer. But the opposite party denies that the complainant is the consumer as per Consumer Protection Act 1986 and hence disputes the jurisdictions of this forum competency to decide this dispute. The opposite party contends that the purchase of the machinery is for the use in commercial purpose and as section 2 (d) (i) the customer is not the consumer. It is true as per section 2 (d)(i) the transaction of commercial nature is ousted from the jurisdiction of the Consumer Protection Act 1986 Which reads 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 obtains such goods for resale or for any commercial purpose. 2(Explanation: For the purposes of sub clause (i), commercial purpose does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self employment. The combined reading of the section with the explanation it reveals the purchase for commercial purpose is barred for jurisdiction if it is not for earning livelihood on the basis of self employment.
2. Ongoing through the complaint pleadings it is nowhere stated to be for earning livelihood on self employment or there is nothing to draw an inference as above. Also for the question in interrogatories served by the opposite party in Questions no 2,3 and 4 the complainant’s answer reveal that he had employed many number of employees and he is the civil contractor and used the machine for demolition purpose. The complainant also stated that he is working for the PWD dept. on contract basis. This itself an admission of the profit motive by employing many persons and it is not on self employment basis. Hence we are of the view that the complainant is not the consumer and this Forum has no jurisdictions to decide this dispute. Hence we answered the point no 1 in the negative.
POINT NO. 2 & 3: As we answered the point no 1 in the negative the discussion on these points do not arise hence we answered these two points as does not arise.
POINT NO. 4: In the light of above discussion and adjudication of the above points we deliver the following
ORDER
The complaint is dismissed. No order as to cost.
Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.
(Page No.1 to 6 directly typed by Member, revised and pronounced in the open court on this the 22nd March 2017)
MEMBER PRESIDENT
(T.C. RAJASHEKAR) (VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Additional Bench, Mangalore Additional Bench, Mangalore
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 Mr.Prakash Kumar,
Documents marked on behalf of the Complainant:
ExC1: 6.12.2013: Original Receipt for 40,000/.
ExC2: 6.12.2013: Notarized copy of the warranty card.
ExC3: 5.5.2014: Office copy of the notice issued by the complainant to the Opposite Party No.2.
Ex.C4: 25.5.2014: Office copy of the second notice issued by the complainant to the Opposite Party.
Ex.C5: 7.5.2014: Postal acknowledgement.
Ex.C6: 9.5.2014: postal acknowledgement.
Ex.C7: 31.5.2014: Postal acknowledgement.
Ex.C8 and 9: 2 Bills issued by Opposite Party No.1 dated1.2.2014 and 11.4.2015.
Witnesses examined on behalf of the Opposite Parties:
RW1: Vindhya Kubanooraya.
RW2: S.Suman Kumar, Service Manager, Hitachi Koki India Ltd
Documents marked on behalf of the Opposite Parties:
Nil
Dated: 22.03.2017 MEMBER
