KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD THIRUVANANTHAPURAM APPEAL NO.213/06 JUDGMENT DATED.02/06/2009 PRESENT JUSTICE K.R.UDAYABHANU -- PRESIDENT M/S.High Range Agencies Rep. by its Partner K.A.Shamsudheen St.George H.S.Jn, -- APPELLANT A.M.Road, Kothamangalam Pin 686691. (By Adv.P.K.Padmanabhan) Vs. M/s Avery India Limited, 39/6619, M.G.Road, -- RESPONDENT P.B.No.1684, Perumanur Ernakulam, Kochi – 682015. JUDGMENT JUSTICE K.R.UDAYABHANU,PRESIDENT The appellant is the complainant in OP.90/04 in the file of CDRF, Ernakulam. The complainant had sought for delivery of the weighing machine as per the order placed and also for costs. 2. The case of the complainant is that he is a partner of M/s. High Range Agencies, Kothamangalam. He booked for a weighing machine on 29.3.2001 on payment of Rs.5,000/-as advance to the opposite party, M/s. Avery India Ltd. As per the agreement the machine had to be delivered within 8 weeks at the complainants shop at Kothamangalam. The complainant has produced copy of the order form and receipt of advance paid. He sent a letter on 12.4.02 requesting to deliver the machine at the earliest. The copy of the acknowledgement is also produced. Thereafter a lawyer notice was sent by registered post. The copy of the same is also produced. It is alleged that there is deficiency in service on the part of the opposite party. 3.The opposite party had contended that the complainant is not a consumer and that the complaint is bared by limitation. It is also contended that the complainant informed the opposite party that he purchased the weighing machine from another company and hence he did not require the product manufactured by the opposite party. Subsequently, in January 2001 the complainant requested the opposite party to deliver the machine. By the time the price has increased from Rs.20,080/- to Rs.40,313/-. Hence the opposite party informed that the machine could be delivered only at the market price. There is no communication thereafter. In January 2004 the complainant again requested for delivery of the machine. Opposite party informed that they are unable to deliver the machine at the old price. Deficiency in service is denied. 4. The Forum considered the evidence of PW1. It is mentioned that no evidence was adduced from the side of the opposite party. 5.The Forum held that the complainant cannot be treated as a consumer. As the machine was intended to be used for commercial purposes. The Forum further held that the complaint has been filed only on 12.2.2004. Hence the cause of action arose on 29.3.01 ie. 8 weeks after placing of the order. Hence the complaint is barred by limitation, and dismissed. 6. It is contended by the appellant that the Forum has not considered the documents produced at the instance of the complainant ie. four in number. It is also pointed out that on the date of placing order and the payment of the advance amount of Rs.5000/- and the date of proposed delivery of the machine the amendment of Section 2 (i) (d) (II) excluding persons who avails of services for commercial purposes came to effect only on 15.3.03. It is also contended that the complainant has sought for the delivery of the machine vide letter dtd.17th January 2002 and that the same is acknowledged by the respondents. According to the appellant the cause of action arose only in January 2002. 7. There was no appearance for the respondents/opposite party. 8. We find that the Forum has not considered the documentary evidence produced by the complainant as well as the implication of the Amendment Act 62/2002 which came into effect on 15.3.2003. In the circumstances, we find that the matter requires re-consideration. The order of the forum is set aside. The Forum is directed to re-consider the matter and dispose of the case on merits after permitting the parties to adduce further evidence if so they desire. The Forum is directed to issue notice to the opposite party. The matter will stand posted before the Forum on 9/7/09. The office is directed to dispatch this order and the LCR to the Forum urgently. JUSTICE K.R.UDAYABHANU -- PRESIDENT S/L | 
