DIST.CONSUMER DISPUTES REDRESSAL COMMISSION, KHURDA, BHUBANESWAR:
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C.D.CASE NO. 93/ 2000
M/s Bharat Motors Ltd., Plot No.1, Laxmisagar,
PS- Laxmisagar, Cuttack Road, Bhubaneswar,
Dist- Khurda, represented through its Director,
Smt. Bina Didwania, aged 35 years,
W/o- Sri Om Prakash Didwania.
…. Complainant
-Vrs.-
- M/s Tirupati Electro Marketing Ltd.,
Plot No.15, Bapujee Nagar, PS- Capital, Bhubaneswar,
Dist – Khurda, represented through itsManaging Director.
- Rajpath Service Centre, Choudhury Building,
Bapujee Nagar, Janpath,PS- Capital, Bhubaneswar,
Dist – Khurda, represented through its Manager-in-Charge.
…. Opp. Parties
For the complainant : Mr.R.N.Pal & Associates (Adv.)
For the O.Ps : Mr.N.Pattnaik & Associates (Adv.)
DATE OF FILING : 03/05/2000
DATE OF ORDER : 29/11/2023
ORDER
K.C.RATH, PRESIDENT
1. This is an application U/s 12 of the C.P.Act, 1986.
2. The complainant’s case in brief is that, the complainant i.e. M/s Bharat Motors Ltd., purchased a Sony Colour Television set from OP.1 and paid Rs.24,000/- for it. After purchase of the said Television Set, the mechanic of OP.1 went to the house of the complainant for demonstration of the TV set. During demonstration, it was found that, there was some defect in the TV set. The mechanic took away the entire components of the TV set except the cabinet and issued a receipt to that effect on 09/10/1999. Again the mechanic of the OP.2 took away the cabinet of the TV set and issued a receipt to that effect on 13/10/1999. The complainant then went to the service centre on 13/10/1999 to receive the TV set. But she was informed that the TV set could not be returned back and if the complainant was interested to have a TV set, she should purchase another TV set from the OP.1. The complainant requested the OP.1 several times to return the TV set but it did not yield any result. The complainant being a woman, suffered from mental tension and harassment due to such conduct of the OPs. Hence this complaint.
3. On the other hand, the OPs filed written version contending therein that, the complainant is not a consumer within the meaning of the term as defined under the C.P.Act. The complainant had purchased the TV set for displaying it in her business unit in show room. The OPs denied the averments made in Para – 1 to Para-7 of the complaint petition. Rather, the OPs gave a different narration of the transaction. According to the OPs, the complainant purchased the TV set in question on credit. The said TV set was returned to the OPs. But the allegation that, it was defective and the complainant desired a new TV set in place of the TV set sold to it is a false one. When the TV set sold to the complainant was received at the service centre, it was found that it was perfectly working and was in OK condition. As the complainant had not settled the credit, the TV set was not returned to it. Similarly, it is pleaded by the OPs that the averments made in Para – 5 and Para- 7 of the complaint petition are false and denied. As the complainant had not settled the credit bill, she had no right to demand the TV set from the OP.1. OP.1 is ready and willing to give a new TV set of the similar brand if the price is paid to it. Since the TV set had no defect, there was no scope of rectification of defect. The complaint is devoid of any merit, as such it is liable to be dismissed.
4. The complainant examined two witnesses in support of its case and the OPs examined three witnesses in support of their case. The complainant has produced certain documents before this Commission but such documents have not been marked as Exhibit. On the other hand, the OPs exhibited the documents vide Exhibit A, A1, B and B1.
5. On going through the pleadings of both parties, the following issues have been framed.
(1) Whether the complainant is a consumer within the meaning of term as defined in the C.P.Act. ?
(2) Whether there was any deficiency in service on the part of OP. No.2 ?
6. So far as issue No.1 is concerned, the complainant appears to be a Company in the name & style M/s Bharat Motors Ltd. The company is a juristic person and there is no legal inhibition from becoming a consumer under the Consumer Protection Act. The complaint has been filed by M/s Bharat Motors Ltd. through its director, namely Smt. Bina Didwania. On going through the evidence of CW (1), Smt. Bina Didwania, I find that CW(1) states that the company purchased the TV set for its business promotion and it is so reflected in the Books of Account of the company. If it is so, then, the TV set was purchased by M/s Bharat Motors Ltd. for commercial purpose. Of course, CW (1) has given prevaricating statement. In the evidence in chief, she has stated that, the complainant purchased the aforesaid TV set for the purpose of the family entertainment of the directors. It is apparent that, the CW (1) is contradicting herself in respect of the material proposition of the litigation. Both her statements cannot be accepted as true. If it is reflected in the Books of Accounts of the Company, that the TV set was purchased under the head of business promotion, then its subsequent use by its directors for entertainment, is of no consequence. From legal point of view, it is to be accepted that, M/s Bharat Motors Ltd. purchased the TV set in question for business promotion, which is clearly a commercial purpose. In that sense, M/s Bharat Motors Ltd. cannot be construed as a consumer within the meaning of the term as defined in the Consumer Protection Act.
But the litigation does not end here. M/s Bharat Motors Ltd. purchased the TV set from the OP.1 . Whether she had paid for it at the time of purchase or not, is a secondary question. Because non-payment of consideration at the time of purchase, does not disable anybody from becoming a consumer. But when the complainant purchased the TV set for the purpose of business promotion, then certainly she is not a consumer so far as OP.1 is concerned, because the OP.1 sold the product to the complainant i.e. M/s Bharat Motors Ltd. But so far as OP.2 is concerned, the relationship between the complainant and the OP.2 is quite different from that of between the complainant and the OP.1. The OP.2 is a service provider. The mechanic of OP.2 had brought the TV set from the complainant to resolve the complaint made by the complainant. The mechanic of OP.2 has issued a receipt to that effect on 9/10/1999. Either OP.2 should have made necessary repair of the TV set and returned it to the complainant or if it was not possible to repair the TV set, he should have returned it to the complainant for necessary action at her end. But keeping the TV set on the allegation that the complainant had not paid for it, is not warranted from the side of the OP.2. Whatever may be the relationship between the OP.1 and OP.2 but the OPs 1 & 2 are two separate entities. OP.2 has nothing to do as to what happened between the complainant and the OP.1. If the complainant had taken the TV set on credit, then the OP.1 could have sued for recovery of the consideration amount. But OP.2 unnecessarily entered into the conflict and did not do what is excepted from a service provider and in the result, he committed deficiency in service. So the net conclusion of the aforesaid discussion is that, the complainant is not a consumer in relation to OP.1 but she is a consumer in relation to OP.2.
7. So far as the issue No. (2) is concerned, it is to be seen whether the OP.2 has committed any deficiency in service. Admittedly, the OP.2 is a service provider. It is immaterial on whose behalf it is providing the service but it provides service to a person who can be treated as consumer so far as the service provider is concerned. Rajpath Service Centre has issued a receipt on 09/10/1999 to the complainant. That document indicates that the mechanic of Rajpath Service Centre has received the TV set to resolve the complaint made by the complainant. Now it is the obligation of OP.2 either to remove the defect of the TV set or if removal of the defect is not possible, to return the TV set to the complainant in either case. Withholding the TV set on the ground that, he had not paid the price for it, is altogether baseless. OP.2 is not supposed to delve into the matter whether the complainant had paid the consideration amount to the OP.1 or not. So the conduct and the manner of performance of service by the OP.2 certainly indicates deficiency in service on the part of the OP.2 and as such, the OP.2 is answerable and liable under the law. Hence it is ordered.
ORDER
The complaint is dismissed on contest against the OP.1 and allowed on contest against the OP.2. The OP. No.2 is hereby directed to return the TV set in question to the complainant, whether it has repaired the TV set or not, in the condition in which it was received by the OP.2. The OP.2 is further directed to pay compensation of Rs. 10,000/- (Rupees ten thousand) only towards mental agony suffered by the complainant and a sum of Rs.5000/- (Rupees five thousand) only towards litigation expenses. The order be complied with by the OP.2 within a period of thirty days from the date of communication of this order, failing which the complainant will be at liberty to execute the order against the OP.2 in accordance with law.
The order is pronounced on this day the 29th November, 2023 under the seal & signature of the President and Member (W) of the Commission.
(K.C.RATH)
PRESIDENT
Dictated & corrected by me
President
I agree
(S.Tripathy)
Member (W)
Transcribed by Smt. M.Kanungo, Sr.Steno
