Tripura

StateCommission

CC/1/2015

Mr. Narayan Debnath - Complainant(s)

Versus

Aryan Machinary - Opp.Party(s)

Mr. Dipankar Sarma, Mr. Rakmat ulla

29 Apr 2015

ORDER

            HON’BLE MR.JUSTICE S.BAIDYA,

             PRESIDENT,

             STATE COMMISSION

 

                    MRS. SOBHANA DATTA,

             MEMBER,

                STATE COMMISSION.

 

 

Mr.Narayan Debnath,

                         Prop. Of Basana Tyre Retreading Shop,

                 C/O.Late Dharani Kanta Debnath,

            Jatanbari, P.O-Gomati Project,

   District-Gomati Tripura,

Pin-799104.

           ….    ….    ….    Complainant.

 

Vs.

                                          Aryan Machinery,

                                          Plot No.63, Street 2,

   Borai,Durg,C.G.490001.

         ….    ….    ….    Respondent.

 

                             

                            27.05.15.       

           This order has arisen out of the hearing on the point of admission of the complaint filed under section 17 of the Consumer Protection Act, 1986 by the complainant Narayan Debnath, Prop. Of Basana Tyre Retreading Shop on 31.03.2015 against the respondent Aryan Machinery praying for refund of (a) Rs.12,13,664/- paid as consideration of the machine, transportation cost, installation charge and other expenses (b) payment of Rs.10,00,000/- for harassment, troubles, loss of business, loss of earning, physical inconvenience and mental agony arising out of breach of warranty, breach of agreement, breach of duty and unfair trade practice on the part of the respondent (c) interest from the date of payment of the said consideration money till realization @ 18% per annum (d) costs and other reliefs.

        Going through the complaint, the learned counsel for the complainant has been asked to justify as to how the complainant is claiming himself a consumer as provided under Section 2(1)(d) of the C.P.Act and how the complaint so filed is entertainable in the State Commission under the C.P.Act, 1986.

        The learned counsel for the complainant relying on two decisions of the Hon’ble National Commission namely Revision Petition No.2079 of 2012 along with I. A. No. I of 2012 between ACTION CONSTRUCTION EQUIPEMENT LTD. and another (petitioners) Vs SRI BABLU MRIDHA (respondent) pronounced on 20.07.2012 and Original Petition No. 429 of 2002 in between A.K.Naikwadi, Proprietor of M/S Zoom Colour Lab (complainant) Vs. M/S Kodak India Pvt. Ltd. (formerly known as M/s Kodak India Ltd.) and others (Opposite Parties) pronounced on 22.07.2012 submitted that the complainant approached the respondent for purchasing a number of items mentioned in the complaint valued at Rs. 10,60,137/- out of which he paid an amount of Rs.2,00,000/- as advance. He also submitted that the complainant paid balance amount by two demand drafts for an amount of Rs.4,06,832/- and Rs.6,06,831/- including transportation cost and other expenses and thus, the totaling Rs.12,13,664/- which the complainant paid to the respondent. He also submitted that the complainant took a loan amount from the United Bank of India, Jatanbari Branch, Gomati, Tripura for payment of the value of the machines and the respondent delivered the machines at Jatanbari Bazar Complex, Gomati, Tripura to the complainant on 26.08.2014. He also submitted that the respondent sent his representative/engineer Sri Suman Debnath of Agartala for completion/installation of fitting of the machines and the complainant made an advance of Rs.10,000/- to Sri Debnath, but Sri Debnath could not complete the installation and as instructed by the respondent, the complainant did not make payment of balance amount of Rs.8,000/-. He also submitted that the respondent supplied some parts of the machines which were not ordered.

        He also submitted that after many requests, the respondent sent one Ajeej Khan for fitting of the machines who also at the time of fitting commented that as there is manufacturing defects, so the machines could not be fitted and then the complainant requested the respondent to replace the machines, but the respondent told the complainant to start work by fitting the machinery anyhow and undertook to replace the machinery whenever any new order from Tripura comes. He also submitted that as the respondent did nothing to replace the machines, the respondent was served with a legal notice alleging everything. He also submitted that the complainant purchased the said machines for the purpose of earning his livelihood by means of self-employment, but due to respondent’s unfair trade practice, the complainant suffered heavy loss and has to use his savings for maintaining his family. He also submitted that as the respondent made no response even after the service of notice, the complainant finding no alternative lodged the complaint before this State Commission praying for the reliefs mentioned earlier as narrated in the complaint.

        He also submitted that the complainant purchased the machines for the purpose of earning his livelihood by means of self-employment and as such, he is a consumer as provided in explanation to Section 2(1)(d) of the C.P.Act, 1986. He also submitted that as the purchase of machines by the complainant was for earning his livelihood by means of self-employment, the said transaction cannot be treated under any stretch of imagination for commercial purpose and as such, the complaint lodged by the complainant is legally entertainable before this Commission under the C.P.Act, 1986.

        Going through the first referred case, we find that the brief fact is that the complainant is a self-employed person and doing business by letting out construction equipment with own driver to different companies and this is his only means of earning livelihood. Accordingly, the complainant purchased a Hydraulic Mobile Crane for Rs.12,59,615/- plus VAT @ 4% on 28.03.2008 and the same was delivered at Kolkata, but the equipment did not work properly, but as the seller of the equipment did nothing in spite of demand notice, so the complaint was lodged. In that case, it was contended by the petitioner (seller) that the respondent is not covered under the definition of consumer as defined under Section 2(1)(d) of the C.P.Act, 1986 as the respondent though pleaded as a self-employed person, but was doing the business of letting out construction equipments with his own driver to different companies and also the respondent had at the relevant time more than one crane and thereby he was engaging in commercial activities and thus canvassed for dismissal of the consumer complaint. It transpires that the Hon’ble National Commission relying on the decision of the Hon’ble Apex Court reported in II (1995) CPJ I (SC) in between Laxmi Engineer Works Vs. P.S.G. Industrial Institute upheld the decision of the District Forum and the State Commission holding that the respondent is a consumer under the C.P.Act. It transpires that the Hon’ble Supreme Court in the above reported case has been pleased to hold that if the buyer takes the assistance of one or two persons to assist/help him in operating the vehicle or machinery, he does not cease to be a consumer. It also appears that relying on the said decision the Hon’ble National Commission has been pleased to hold that it is the averment made in the complaint that the complainant is a self-employed person and is engaged in the business of letting out construction equipment and this is the only means of his earning livelihood and since the purchase of the vehicle is for self-employment of the consumer, it cannot be said that the complainant ceased to be a consumer.

        The fact of the second referred case is that the complainant who was already in the business of developing photography film rolls and photography printing was offered by the representative of Kodak India Pvt. Ltd. and persuaded him to buy a brand new Gretag Master Lab Machine 740 ML + for Rs.17,50,000/- from them. It further appears from the referred case that ultimately, the complaint was lodged and the same was contested by the O.P. who contended that the complainant does not fall within the definition of consumer as defined under Section 2(1)(d) of the C.P.Act, 1986 as the machine in question was purchased by the complainant for commercial purpose. It further appears that it was stated in the complaint that the complainant purchased the machines by taking a bank loan for earning his livelihood for daily basic needs of bread and butter and family maintenance through self-employment assisted by his brother. From the said referred case, it is further found that the complainant has been treated as a consumer under the C.P.Act. It transpires from the second referred case that the Hon’ble Supreme Court of India in the case between Madan Kumar Singh Vs. District Magistrate, Sultanpur and others reported in [(2009) 9 SCC 79] while considering whether the appointment of a driver to ply a truck would take the owner of the truck out of the definition of consumer, has been pleased to hold that the appellant purchasing a truck to earn his livelihood by means of self-employment, notwithstanding appointment of a driver to ply the said truck, would still be a consumer. It further transpires that the Hon’ble National Commission relying on the decision of the Hon’ble Apex Court has been pleased to hold that the complainant of the second referred case is a consumer under the C.P.Act, 1986.

        Considering the facts and circumstances of the case of the complainant as made out in the complaint, we are of the view that it would be useful to have a look on certain provisions of the C.P.Act as narrated in the decision reported in I(2013) CPJ 702 (NC) between Kovi Ajitha & others (complainants) Vs. Philips Medical Systems India Pvt. Ltd. and another (opposite Parties) in connection with original petition No.91 of 2004 decided on 21.02.2013 which are as follows :-

        “Section 2(1)(b) of the Act defines the term ‘complainant’ and it reads thus : “Complainant’ means- (i) a consumer; or (ii) any voluntary consumer association registered under the Companies Act, 1956 (1 of 1956) or under any other law for the time being in force; or  (iii) the Central Government or any State Government; or (iv) One or more consumers, where there are numerous consumers having the same interest; (v) in case of death of a consumer, his legal heir or representative; who or which makes a complaint”.

        Para 14 of that reported judgment reads as such :

        “14. on reading of the above, it is evident that in order to successfully maintain the complaint, the complainants must fall within the definition of consumer. The term consumer has been defined under Section 2(1)(d) of the Act. Relevant part of Section 2(1)(d) is reproduced thus :”

        “Consumer means a person who-

1. 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; 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 purpose.

Explanation- For the purpose 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 purpose of earning his livelihood by means of self-employment”.

        “15. On careful reading of Section 2(1)(d) reproduced above, it is evident that term ‘consumer’ for the purpose of the Act does not include a person who obtains goods in question for resale or for any commercial purpose. However, the explanation to the provision makes an exception that commercial purpose does not include use of the goods bought by the buyer exclusively for the purpose of earning his livelihood by means of self-employment.”            

        From the above reported case, it appears that the Hon’ble National Commission has been pleased to hold that the partnership firm, M/S R.K.Diagnostics and its partner do not fall within the explanation to the definition of ‘consumer’ as provided under Section 2(1)(d) of the Act on the ground that the referred Pvt. Companies was operating commercially for earning profit and not for earning his livelihood.

        The Hon’ble National Commission in the case reported in I (2014) CPJ 146 (NC) in between BHARDWAJ INDUSTRIES (complainant) Vs. PREMIER LIMITED Ltd. & another (Opposite Parties) in connection with consumer complaint No.304 of 2013 decided on 04.10.2013 has been pleased to hold the following :

        “9. On reading of the complaint, it is evident that M/S Bharadwaj Industries was already into the business of manufacturing product before placing order of the machine in question on the opposite party No.1. In para 5 of the complaint, complainant has alleged that the machine was purchased to meet specific requirement. From this it is clear that the machine in question was purchased not for the purpose of starting the business exclusively for earning livelihood by means of self-employment but it was actually purchased for increasing the product line of the complainant with a view to expand the business. Therefore, in our considered view, the complainant does not fall within the exception as carved out by the exception to Section 2(1)(d) of the Act reproduced above. Admittedly, the machine in question was purchased from O.P. No.1 in relation to business of the complainant which amounts to a commercial purpose. The complainant, therefore, cannot be termed as consumer as defined under Section 2(1)(d) of the Act. Since M/S Bharadwaj Industries is not covered under the definition of consumer, it cannot maintain the consumer complaint.

        10. In view of the discussion above, we are of the considered opinion that complainant is not a consumer and as such the present complaint filed by the complainant is not maintainable. Complaint is accordingly dismissed in limine. This order, however, shall not preclude the complaint to avail of his remedy under appropriate jurisdiction.”   

        Going through the above reported case, it transpires that after the filing of the complaint, the Hon’ble National Commission has been pleased to ask the complainant to argue on the point of maintainability of the complaint under the C.P.Act, 1986. It also appears that the Hon’ble National Commission in the facts and circumstances of the above reported case has been pleased to hold that M/S Bharadwaj Industries was already into the business of manufacturing product before placing order of the machine in question on the O.P. No.1 and the machine in question was purchased not for the purpose of starting the business exclusively for earning livelihood by means of self-employment, but it was actually purchased for increasing the product line of the complainant with a view to expand the business and therefore, the complainant does not fall within the exception as carved out by the explanation to Section 2(1)(d) of the C.P.Act, 1986.

        In the present case also, going through the complaint, we have asked the learned counsel for the complainant to submit as to how the complainant is claiming himself as ‘consumer’ and also as to how the complaint lodged by the complainant is entertainable under the C.P.Act before this Commission.

        We think it appropriate to scrutinize the averment made in the complaint lodged before this Commission under Section 17 of the C.P.Act,1986.   

        From the affidavit appended to the complaint sworn by the complainant Sri Narayan Debnath, it transpires that he is the proprietor of Basana Tyre Retreading Shop and his occupation is business. The cause-title of the complaint also speaks that the complainant is the proprietor of Basana Tyre Retreading Shop. On perusal of the complaint, it is evident that the complainant Narayan Debnath, Prop. Of Basaha Tyre Retreading Shop was already into the business of Tyre Retreading before placing order to purchase the machines in question from the O.P.-respondent. Although the complainant in para-7 of the complaint has made an averment that he purchased the said machine for the purpose of earning his livelihood by means of self-employment, but it has also been averred in para-7 of the complaint that due to the respondent’s unfair trade practice, the complainant suffered heavy loss and he has to use his savings for maintaining his family. On a careful reading of para-7 of the complaint, it is palpable that the complainant has been maintaining his family from his savings already earned from his business which has been running before placing the order to purchase the machine from the O.P.-respondent. Although the complainant in the first line of para-7 has claimed that the purchase of the said machines was for the purpose of earning his livelihood by means of self-employment, but we find from the second line of that paragraph that the said averment is found not correct. It is also found that the complainant purchased the machines from the O.P.-respondent not for the purpose of starting the business exclusively for earning livelihood by means of self-employment, but it was actually purchased for increasing the product line of the complainant with a view to expand the business. This clearly establishes that the purchase of the machines from the O.P.-respondent by the complainant in relation to his business is practically found for the commercial purpose to earn more profit and not for earning his livelihood by means of self-employment. It further appears to us that when the complainant was then already into the business, then it can be held without any hesitation that the said purchase of the machines by the complainant from the opposite party was not for starting any new business earning his livelihood by means of self-employment. In this regard, we find that the decision of the Hon’ble National Commission in the light of the discussion made in para-9 of the judgment reported in I(2014) CPJ 146 (NC) is fully applicable in the present case and following it, we are of the view that the purchase of the machines in question from the O.P.-respondent by the complainant is for the commercial purpose of making more profit by expanding the business already in existence and as such it is not covered by the explanation to Section 2(1)(d) of the C.P.Act, 1986 and therefore, the complainant does not fall within the definition of ‘consumer’ as enumerated in Section 2(1)(d) of the C.P.Act, 1986. For lodging a complaint before the Consumer Fora the complainant or the petitioner must be a consumer as provided under Section 2(1)(d) of the C.P.Act, 1986. But in the instant case, we find that the complainant does not fall within the definition of ‘consumer’ under the said Act for lodging a complaint under Section 17 of the C.P.Act, 1986 before this State Commission and therefore, the instant complaint filed under Section 17 of the C.P.Act, 1986 is found not legally maintainable.

         The two decisions referred by the learned counsel for the complainant in support of the maintainability of the complaint before the State Commission, according to us, is found not helpful to the complainant because the facts and circumstances of the case involved in those two referred cases are altogether different from the facts and circumstances of the instant case and as such, those two decisions referred by the learned counsel for the complainant have got no application in the instant case. In view of the above, we are of the view that the complainant is not a consumer as enumerated in Section 2(1)(d) of the Consumer Protection Act, 1986 and the complaint filed under Section 17 of the said Act by the complainant before this State Commission is dismissed being not maintainable under the C.P.Act, 1986. It is needless to say that this order of dismissal of the complaint on the ground of non-maintainability before this Commission under Section 17 of the C.P.Act, 1986 does not preclude the complainant to seek remedy through initiating a proper proceeding under appropriate jurisdiction.