BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI .A : MEMBER

SMT. S.K. SREELA : MEMBER

O.P.No. 367/1997 Filed on 7/7/1997

Dated: 31..03..2010

Complainant:

Biju Ramesh, Proprietor, Chola International, Thampanoor, Thiruvananthapuram.

(By Adv. K. Murlidharan Nair)

Opposite party:

Coir Board, represented by its Manager, Show Room and Sales Depot, Ramakrishna Building, East Thampanoor, Thiruvananthapuram – 695 001.

(By Adv. K.J. Thresia)

This O.P having been heard on 12..03..2010, the Forum on 31..03..2010 delivered the following:

ORDER

SHRI.G. SIVAPRASAD, PRESIDENT:

This case remanded by the Hon'ble State Consumer Disputes Redressal Commission vide its Order dated 3/4/2003 in Appeal No.83/2000 to consider the question whether the complainant is a consumer or not.

The facts leading to the filing of the complaint are that, the complainant is the proprietor of the Chola International , a hotel, with a restaurant, located at Thampanoor, that for furnishing the restaurant complainant purchased coir matting of 198 sq.m of SK 1 standard, that after a few months of laying, it has shown signs of damages and developed holes here and there, that upon lodging a complaint to opposite party, opposite party promised to arrange for replacement, but no replacement was made. Hence this complaint to direct the opposite party to replace totally the matting supplied to complainant along with a compensation of Rs.50,000/- and a cost of Rs.5,000/-.

2. Opposite party filed version contending that the complainant is not a consumer under the relevant provisions of the Consumer Protection Act, that complainant is absolutely barred by limitation, that complaint is bad for non-joinder of the necessary parties since the Union of India, the manufacturer, is not in the party array, that opposite party supplied the SKI Coir Matting (Red) measuring 198 sq.m for Rs.23.888/70 to complainant was of high quality and free of manufacturing defect, that the alleged damage occurred only after 16 months of its rough use; and that, if the matting supplied were of inferior quality, the damages would have been noticed even within a month after laying. It is further averred in the version that no guarantee period can be given to Coir products and that complainant is not legally liable for the alleged replacement. Hence opposite party prayed for dismissal of the complaint with compensatory cost.

3. The points that arise for consideration are:

1. Whether the complainant is a consumer as defined in the Consumer Protection Act?

2. Whether the damage caused to Coir Matting is because of manufacturing defect or because of wrong use?

3. Whether there is deficiency in service on the part of opposite party?

4. Whether the complainant is entitled to get compensation and cost?

In support of the complaint, complainant has filed affidavit as PW1 and Exts. P1 to P5 were marked. Commissioner has been examined as CW1 and Ext. C1 was marked. In rebuttal, opposite party has been examined as DW1 and Exts. D1 to D4 were marked. Deputy Director of Coir Board has been examined as DW2.

4. Points (i) to (iv): Admittedly, on 30/8/1995, complainant purchased 198 sq.m of SDKI matting from the opposite party vide Ext.P1 cash memo dated 30/8/95. On a perusal of Ext. P1 it is seen that the cash memo is issued in the name of M/s. Chola International, Thiruvananthapuram. Complainant himself admits in the complaint that complainant is the Proprietor of the Chola International a hotel, with a Restaurant. Opposite party resisted the complaint by submitting that complainant is not a consumer under the relevant Provisions of the Consumer Protection Act. The Appellate Commission remanded the case to us to consider the question whether the complainant is a consumer or not. Evidently by Ext. P1 the aforesaid Coir Matting purchased by M/s. Chola International. Complainant submits he is the Proprietor of the Chola International; the very reading of the Ext. P1 would reveal that the said Coir matting was purchased for commercial/business purpose. As per Section 2(1)d(i) consumer means any person who buys any goods for a consideration; but does not include a person who obtain such goods for resale or for any commercial purpose. For the purpose 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. In the instant case there is no pleading in the complaint that the aforesaid good was used by him exclusively for the purpose of earning his livelihood by means of self employment nor he has adduced any evidence by way of additional affidavit or by additional documents, after remitted this matter to this Forum, to substantiate that complainant is a consumer as defined in the consumer Protection Act, despite ample opportunity was given to him to do so. Further, on perusal of proof affidavit already filed by the complainant prior to appeal 83/00, it is seen stated that "the complaint is filed for giving direction to the opposite party to replace the matting supplied to the complainant by the opposite party, compensation for mental agony for business loss, loss of reputation and good will and also for costs and expenses of the proceedings". In view of the above, it is crystal clear that complainant has purchased the aforesaid good for commercial purpose. No case is pleaded or proved by the complainant to show that complainant is a consumer as defined in the consumer Protecion Act. The initial onus of proving the case would rest on the complaint, complainant failed to do so. Hence we find complainant is not a consumer as defined in the Consumer Protecion Act. In the light of the finding on the 1^st issue/point we need not discuss other points under consideration, complaint has no merits at all which deserves to be dismissed.

In the result, complaint is dismissed. The parties are directed to bear and suffer their costs.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 31^st day of March, 2010.

G. SIVAPRASAD PRESIDENT.

BEENA KUMARI. A : MEMBER

S.K. SREELA : MEMBER

ad.

O.P.No. 367/1997

APPENDIX

I. Complainant's witness:

PW1 : Biju Ramesh

II. Complainant's documents:

P1 : Cash memo dated 30/8/1995

P2 : Proforma Invoice dated 28/8/1995

P3 : Advocate notice dated 15/5/1997

P4 : Letter dated 26/5/1997 issued by opposite party

P5 : Letter dated 9/6/1997 addressed to opposite party.

III. Opposite party's witness:

DW1 : T.V. Mohanan Nair

DW2 : P.M. Mathai

IV. Opposite party's documents:

D1 : Letter dated 18/1/97 addressed to opposite party

D2 : Letter from Eastern Rug Mills to the Manager, Coir Board, Thiruvananthapuram dated 13/6/1995.

D3 : Photocopy of the petition No.390/1995

D4 : Photocopy of order dated 23/8/96 (O.P.No. 390/95)

D5 : 20% Rebate bill for Rs. 258/50 from Coir Board dated 26/2/1998.

D6 : Construction Details of coir and coir products from Coir Board, Cochin – 16.

V. Court witness:

CW1 : M.P. Aravinda Kumar

VI. Court Exhibit:

C1 : Commission Report

PRESIDENT.