DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS ,
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. 46_ OF ___2016
DATE OF FILING : 20.5.2016 DATE OF PASSING JUDGEMENT: 20/04/2018
Present : President :
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : Sanjay Bauri, son of Dakshin Chandra Bauri of E-389/12, Mahadebnagar, Jalkal, Sreema Complex, Dakghar, P.S Maheshtala, Dist. S-24PGs, Kolkata – 144.
- VERSUS -
O.P/O.Ps : Md. Abul Basar Laskar, Proprietor of Junia Enterprise of Chatta Kalikapur, P.S Maheshtala, Kolkata – 141.
___________________________________________________________________
J U D G E M E N T
Sri Subrata Sarker, Member
The facts of the complaint are, in a nutshell, that the complainant , an unemployed person, purchased one computerized Embroidery machine for his business from the O.P on payment of Rs.2 lac out of Rs.8 lac on special terms and conditions with three free services and one year warranty. Machine was delivered by the O.P to the complainant. The complainant also handed over 12 blank cheques as security to the O.P on condition that the O.P would not use the cheques if installments as agreed upon are directly paid by the complainant. The complainant agreed to pay balance consideration price of Rs.6 lacs in 24 monthly installments. Thereafter also, complainant made some payments and the total payments made by the complainant was Rs.5,29,163/- . But the machine frequently developed snags and went out of order. O.P was informed but O.P did not take any step to put the machine in order. Complainant spent Rs.48,280/- as charge for repairing the machine when he got no response from the side of the O.P. Now the complainant has come up before this Forum with the filing of the instant case ,praying for payment of repairing cost of Rs.48,280/- , replacement of machine, compensation etc. Hence, this case.
Written statement is filed by the O.P ,wherein they have contended that the complainant is not a consumer; he is a business man. Value of machine remained unpaid and, therefore, the complainant made over several cheques to him for payment. The cheques were dishonoured and, therefore , several cases are lying pending against the complainant under section 138, N.I Act. He denied the receipt of Rs.1,45,583/- on 11.1.2016 as alleged by the complainant . The terms and conditions as alleged by the complainants are also denied. It is also denied that the machine went out of order. According to the version of the O.P there was no warranty period, no free service agreement . The complaint deserves dismissal with cost, as goes the version of the written statement.
Upon the averments of the parties following points are formulated for consideration.
POINT FOR DETERMINATION
- Is the complainant a “consumer” ?
- Is the complainant entitled to get the relief or reliefs as prayed for?
DECISION WITH REASONS
Point no.1 , 2 & 3 :-
It has been argued on behalf of the O.P that the complainant is not a consumer and as such the instant case is not maintainable in law.
It is admitted fact that the complainant is a business man; he is involved with his Embroidery business. So, normally a complaint by the business man is not maintainable under the provision of Consumer Protection Act ,when the goods are purchased for commercial purpose. In the instant case,there is no doubt that the machine was purchased for the business of the complainant i.e for commercial purpose. So, apparently, complaint appears to be not maintainable. But one bulwark is there in the Law for protection of such kind of business man. That bulwark or safeguard is provided in explanation to section 2(1)(d) of the C.P Act, 1986. This explanation provides that a person who buys goods for commercial purpose, will be regarded as a “Consumer”, if the goods are purchased by him for earning his livelihood . The complainant has stated in his pleadings and also in his evidence that he purchased the machine for his business for earning his livelihood.
Hence,
ORDERED
That the complaint case be and the same is allowed on contest against the O.P with cost of Rs.6000/-.
The complainant shall pay the balance amount of the machine to the O.P and after receiving the balance amount the O.P will be liable for making payment to the complainant and he is directed to refund the cost of Rs.48,280/- being the repairing charges which was done by the complainantand also to pay compensation of Rs. 10,000/- to the complainant, within a month from receiving the balance amount from the complainant, failing which the above sums i.e the refunded amount, compensation amount and the amount of cost will bear interest @10% p.a till full realization.
Let a free copy of this order be given to the parties concerned at once.
Member Member
Dictated and corrected by me
Member
