JUDGEMENT

          Complainant by filing this complaint has submitted that complainant is a limited company registered under Companies Act, 1956 was carrying on business under name and style Vishnu Sugar Mills Limited, having its registered office at C-3/3, Glliander House, 8, Netaji Subhas Road, P.S.- Hare Street, Kolkata – 700001.

          Complainant required to install a Hydraulic elevator at the branch office of the company at Bajoria Niwas 21, Chakraberia Lane, Kolkata-700020 and placed order for the Hydraulic elevator along with wooden cabin and other facilities specially described in the schedule having its speed of 0.35 meter per second on 02.06.2011 to the op upon the quotation submitted by the op on 27.05.2010.

          On placement of the order the op after receiving the amount, specially described in schedule B as per the agreement supplied and installed the said Hydraulic elevator, specially described in schedule A at Bajoria Niwas, 21, Chakraberia Lane, Kolkata-20 on 02.01.2012 without having any name place op supplier licence number, carrying capacity of lift, stability certificate and some other accessories as per specification of the placed order.

          That after installation of the said Hydraulic elevator during trial run itself for 7days it was observed that the lift was trembling and from the very beginning a sound of cracking had been coming out at the time of running Hydraulic elevator and the speed of the said Hydraulic elevator was not proper as per the quotation 0.35 Mt./sec and including motor was not as per specification of the order and so complainant contacted with the concerned person Mr. Mondal over telephone numerous times who assured time and again to rectify the defects at the earliest but inspite of repeated assurance, no action has been taken.

          Thereafter the complainant wrote a letter on 11.05.2012 to op stating that the defect of the Hydraulic elevator along with some other defect and non supply of fittings which is missing with the installed Hydraulic elevator as per the placed order.  But after inspection made by the op, wrote a letter through e-mail to them, admitting the defect of the said Hydraulic elevator including slow speed along with noise coming out at the time of movement.

          But op asked the complainant to pay of Rs.1,35,000/- through their said e-mails for implementation of new technology for the noiseless, speedy movable Hydraulic elevator.  The complainant denied and disputed their suggestion made through the e-mails for implementation of new technology at a further cost of Rs.1,35,000/-.  But it is evident from the said e-mails dated 22.05.2012 that op was fully aware that the technology as supplied by the op with the lift to complainant was defective and therefore instead of rectification of defect, op were asking the complainant to incur further sum of Rs.1,35,000/- which is not as per terms of the order and in this regards complainant wrote a letter to the op on 28.05.2012 for giving attention to Mr. S. Roy Chowdhury, Senior Manager, (Eastern Zone) asking them to rectify the defect of the said Hydraulic elevator within 7 days from the receipt of this letter or to refund the advance of complainant by taking back the supplied defective Hydraulic elevator.  But no action has been taken by the op for removing the defects or refund of money as prayed for.

          Further the complainant submitted that they could not use the defective Hydraulic elevator right from the day of installation for their safety as op failed and neglected to remove the defect of the said Hydraulic elevator and as per provision of lift installation, it is mandatory for supplier of lift to mention licence number, stability certificate, capacity, name of manufacturers etc. which op intentionally not supplied and it is doubtful whether the op had licence to manufacture and supply passenger lift facilities of all mandatory provision provided in the act.

          No doubt op is a renowned company for selling Hydraulic elevator and the representative of the company convinced that complainant to place order relying upon their document they placed the order but ultimately op supplied a defective Hydraulic elevator for which the present complainant has no other alternative but to file this complaint before this Forum for relief.

          On the other hand op by filing this written version has submitted that the complainant/company used the lift for commercial purposes and it is used for his own business and further complainant is a private limited company, so, complainant is not a consumer and moreover the contract in between the complainant and op is a commercial contract for installation of elevator and there was arbitration clause in the contract, as such, the complainant had no cause of action before the Ld. Forum and further mentioned that this Forum has no power or jurisdiction to decide the same.

          It is further submitted that the op requested the complainant to supply necessary documents including building sanctioned plan, registered Deed, tax receipts etc. amongst others for the purpose of granting permission to erect a lift as per provisions of West Bengal Lifts and Elevators Act, 1955 together with West Bengal Lifts Rules, 1958 but the complainant on repeated occasions failed to produce the aforesaid documents and as such the stability certificate and some others which are required but same could not be supplied by the complainant.

          Moreover op has denied all other allegations and further submitted that the lift was supplied as per contract and there was no question of rectification of the said lift and there is no expert opinion before this Forum.  Practically the claim of the complainant should be decided by Civil Court.  It is further submitted that Hydraulic elevator is running well and for further development of technologies of the elevator the complainant asked for new technologies so the extra charge is required and for which the present complaint is not maintainable in the eye of law and the present case should be dismissed.

                                                     Decision with reasons

          After hearing the Ld. Lawyers of both the parties and also considering the admitted fact that complainant is a private limited company and truth is that lift was installed by the op as per quotation and order of the complainant in his business complex having its registered office at C-3/3, Glliander House, 8, Netaji Subhas Road, P.S.- Hare Street, Kolkata – 700001and no doubt that purchase was made by the complainant/company and no doubt in the instant case cost of the installation of Hydraulic elevator including elevator machine operation is for the aforesaid of the complainant/company and the cost of maintenance and operation and depreciation of the said elevator were charged to the profit and loss account to the complainant/company and expenses on the ground of the operation and maintenance of the said lift is also part of the Balance Sheet, cost of production manufactured by the company and sold by the complainant.  This lift is being used for commercial purposes for which it was for commercial purpose.

          After considering the Dictionary meaning of the word in the definition Section 2(1)(b)(I) consumer-commercial purpose we find that the intention of the legislation is well understood and for which the exclusion clause is included and expression consumer means any person who buys goods for the purpose of being used in any activity engaged on the large scale for the purpose of making profit cannot be taken into account as consumer since the present lift was purchased by the company for commercial purpose because the lift is used for his and their employees and it is clear that the cost is paid from the fund of the company and it is not for personal use or for domestic use.

          Moreover after proper study of the provision of Section 2(1)(d)(i) of the Act 1986 we find that the present spirit of the definition is to deny the benefit of the act to the person purchasing goods either for the purpose of company use or for profit making activity engaged on large scale.  So, purchase of goods for consumption or company used for manufacturer of goods or commodities on a large scale for making profit fall outside this scope of the definition consumer.

          Fact remains that intention of the legislation is to restrict the benefit of the act to the consumer purchasing goods either for their own consumption for even used for personal livelihood.   In this regard we have relied upon one ruling reported in Synco Textile Pvt.Ltd. – Vs – Srips Cotton Pvt. Ltd. 1991 (1) CPJ 499 NC wherefrom we have gathered that purchase of lift and installation of lift was clearly for enabling the op company to carry its commercial activity and for the purpose of trade and it would be used by his employees.  When in the building there are stair cases and practically lift was installed for the purpose of the higher officers and others and it is stand by arrangement when in the building stair cases are for 1^st floor, 2^nd floor etc.  but complainant is a big sugar company.  So, in the eye of law the present complainant is not a consumer and fact remains the elevator was installed for the purpose of commercial purpose and it was stand by provision for the official of the complainants company and other guest when this is a stand by provision when there are stair cases in the said complainant’s office.  The present complainant is not consumer and further as per settled law a private limited company is not entitled to file any complaint as consumer.

          In the result we are convinced that the complainant is not a consumer in the true sense, thus the complaint fails.

          Hence, it is

                                                          ORDERED

          That the complaint be and the same is dismissed on contest with cost.  But fact remains that this big business man harassed only to get relief by paying low fees before this Forum filed this complaint to harass the op when he is limited company so complainant shall have to pay a penal cost of Rs.10,000/- which shall be deposited to this Forum within one month otherwise penal action shall be taken against them.