Orissa

Rayagada

CC/134/2018

Sri Chandra Mouli Senapati - Complainant(s)

Versus

MIRC Electronic Ltd., - Opp.Party(s)

Self

29 May 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

                                      PO/DIST; RAYAGADA,   STATE:  ODISHA ,Pin No. 765001

C.C. Case  No.   134 / 2018.                                     Date.    29    .     5  . 2019.

P R E S E N T .

Dr. Aswini  Kumar Mohapatra,                                                   President

Sri Gadadhara   Sahu,                                                                     Member.

Smt.Padmalaya  Mishra,.                                                              Member

 

Sri Chanda Mouli Senapati, Proprietor M/S. Doordarsan Digital Shoppe,    Po/Dist:    Rayagada, State:  Odisha.                                …….Complainant

Vrs.

1. The Manager, MIRC Electronics Ltd., Onida House, G-1, MIDC, Mahakali Caves Road, Andheri East, Mumbai- 400093.
2. The Branch  Manager, MIRC Electronics Ltd., Plot No. 178A, Zone-B, Mancheswar Industrial   Estate, Bhubaneswar- 751 010.
3. The Manager, Adonis Electronics Pvt. Ltd., Plot No. 178A, Zone-B

Mancheswar Industrial Estate, Bhubaneswar, 751 010.

•  

Counsel for the parties:                                 

For the complainant: - Sri  Rabi  Prasad   Mohapatra, Advocate, Rayagada.

For the O.P No.1 & 2  :- Sri  Sana Jagadish Kumar, Advocate, Rayagada..

For the O.P. No.3:- Sri  Sana Ramesh Kumar, Advocate, Rayagada.

 

 

                                                JUDGEMENT.

The  crux of the case is that  the above named complainant alleging deficiency in service  against  afore mentioned O.Ps    for  non replacement or  refund the purchase  price of the 8 Nos. of CTV & LED TVs    defective  products worth of Rs.69,200/- towards found defective during warranty period     for which  the complainant  sought for redressal of the grievances raised by the complainant.

Upon  Notice, the O.Ps    put in their appearance and filed  written version through their learned counsels in which  they refuting allegation made against them.  The O.Ps    taking one and another pleas in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act, 1986. The facts which are not specifically admitted may be treated  as denial of the O.Ps.   Hence the O.Ps   prays the forum to dismiss the case against  them  to meet the ends of justice.

We have heard the submissions made across by and on behalf of   both the parties by their respective  Learned  counsels, as also  perused the pleadings filed there on.

This forum  examined the entire material on record  and given  a thoughtful consideration  to the  arguments  advanced  before us by  the  parties touching the points both on the facts  as well as on  law.

                                                                        FINDINGS.

Undisputedly  the complainant   is an authorized  dealer of electronics appliances of different companies  including O.P. No. 1 & 2  who deals in  T.V., Refrigerator, Washing machine, Inverter and Micro oven etc.  Undisputedly  the complainant had purchased some Onida CTV  and LED sets from the Electronic World, Bhubaneswar, Odisha (Authorised   Distributor)  out of which  eight numbers  of CTV and LED  TVs were  found to be defective one and the same  was intimated to the O.Ps in turn  who  advised  to return  all those defective sets to  the O.P. No.2 and assured  to replace the new sets instead of defective sets within  two weeks.   The total worth of all the defective sets  comes to Rs. 69,200/-.   Accordingly the complainant  had returned all the eight sets of CTV along with the detailed list  through  Chaurasi Road ways  which were received and acknowledged  by the O.P. No.3 (copies of the acknowledgement is in the file which are marked as Annexure-I  & 2).  

It further appears that prior to filing   of complaint, the complainant had issued legal notice through its counsel on Dt. 2.07.2018 and it was duly served on the O.P.(Copies of the legal notice  is in the file which is marked as Annexure-3)   but they failed to furnish reply to the said notice(copies of the postal  acknowledgement is in the file which is marked as Annexure-4 & 5). Hence it appears that the O.Ps. have been negligent and callous regarding the complaint of the complainant.

The  main grievance of the  complainant  is that  insptie of repeated  personal contact  over phone, inter alia had sent E-Mail Dt.7.3.2018, Dt.14.4.2018 and legal notice Dt. 2.7.2018  were sent to the O.Ps by the complainant but till date the O.Ps are  not  materlised their commitment,   So the complainant filed this C.C. case before the forum.

Now the issues before this forum are:-

1)Whether the complaint petition is maintainable in this forum ?

2)Whether there is deficiency in service on the part of the O.Ps?

3. If so, the nature of relief to be granted to the complainant ?

Regarding  the  Ist.  issue  the O.Ps have raised  preliminary objection in  their  written version and  contended that the complainant is not a consumer as the case he has agitated before this forum is relating to the transaction being a commercial, this forum has  no  jurisdiction, since the  complainant will not come within the meaning of consumer.

Admittedly, the complainant is a leading businessman,  who deals in  T.V., Refrigerator, Washing machine, Inverter and Micro oven etc used to  resale the above products, to various destinations to their sub-dealer, retailer and, it should  be for profit/commercial purpose, though it is not pleaded so.   It is also not the case of the complainant, that as a self employed  person, he used to resale the  above materials, for  his livelihood or for his personal use. Further  from the  averments  and in evidence   there is no  pleadings  or proof  whatsoever  that the  complainant  conducted  business self  employment or for earning  his  livelhood.  Thus from the pleadings, it is  evident, that the complainant being a leading business man, had   resold wholesale  the  above  products, in this case  the  complainant  brought the above products  from the O.Ps  only for commercial purpose. As seen from the  complaint petition compensation also claimed for  loss   sustained, thereby , making it  further clear that the above  transactions was only for the purpose  of business, which is aimed for profits coming within the meaning of commercial transaction. Having  this position, settled, now we have to see, the definition for consumer.

At this stage, it is appropriate to quote Section  2(1)(d) of C.P. Act,  which reads as follows:-

            “(d)”Consumer” means any 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
2. 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”.

 

As claimed by the complainant, he hired the services of the O.Ps for consideration, which is also evident from  Annexures.  Originally all kind  of hiring of services were brought under the umbrella of consumer,  which was taken away with effect from  15.3.2003. Therefore, under  the  present definition available, if a person had hired the service of another, for consideration, for any commercial purpose, certainly that person will  not come within the meaning of consumer and in that case, Consumer  Forum will not have jurisdiction.

For better appreciation this forum relied citation which are mentioned  here:-

It is held and reported   in CTJ- 2010 page No. 361  in the case of Economic Transport Organisation  Vrs.  Charan Spinning Mills (P) Ltd and aother  where in  para – 25  the Hon’ble Supreme Court observed “After the said  amendment if the service  had been  availed for any commercial  purpose then the person  availing the service will not be a  “Consumer” and consequently, complaints will not be maintainable in such  cases”.

Again it is held and reported  in  CPR- 2011(4) page No. 108  in the case  of   Sri Sam Manohar  Vrs  M/S. Sathish Transport  where in the  Hon’ble Tamilnadu  State Commiission  observed  “Commercial users do not come within the ambit of consumer”.

Further it is held and  reported in  CPR 2011(4) page No.15  where in the Hon’ble West  Bengal  State Commission observed  “ Persons doing business on purely resale and  commercial basis are not consumers”.

Again  It is held and reported in CPR 2015(1)  page No. 289 where  in the  Hon’ble National Commission observed” Inter se dispute between two business persons can not be raised before Consumer forum.

Further  it is held and reported in CPR- 2014(3) CPR-117  where in the  Hon’ble  National Commission observed  “Commercial users can not maintain  consumer complaint”

 

 In the present  case  in hand,  as per the findings recorded by  us, the transaction between the complainant, and the O.Ps   was for commercial purpose, aiming towards profits and such services is not attracted by  the provisions of C.P. Act., 1986 and the consequential result would be the   Consumer Forum  has no jurisdiction. 

In this view, awarding  compensation replacement or  refund the purchase  price of the 8 Nos. of CTV & LED TVs    defective  products worth of Rs.69,200/  is not within the power of the Consumer Forum, and therefore we are constrained  to hold  the  complaint petition  is therefore, liable to be dismissed.

In view of the order passed by the  Apex Court  the complaint filed in the present case before the forum to get relief is not maintainable under the C.P. Act, 1986. As the case  is  not maintainable before the forum we need not discussed other two issues.  Accordingly, without  going into the merits of the case, this forum dismiss  the above complaint petition  with liberty to the complainant to seek appropriate remedy available to him before the appropriate forum.

To meet the ends of justice  the following order is passed.

ORDER

In resultant the complaint petition     stands  dismissed. The complainant  is free to approach the court of competent  having  its jurisdiction.   Parties are left to bear their own cost.  Accordingly the case  is disposed of.

           

The complainant  may take advantage of the ruling  of the Hon’ble Supreme Court in the  case of Laxmi Engineering  works  Vrs. PSG   Industrial  Institute  reported in   SCC 1995(3) page No. 583  to seek  exclusion  of the time  spent in  prosecuting this complaint, before this forum  as per provision of Section-14 of Limitation Act.

A copy of this order as per the statutory requirements, be forwarded to the parties    free of  charges.

Dictated and corrected by me.

Pronounced in open forum today on this   29^th.    day of May,  2019  under the seal and signature of this forum. 

 

Member                                             Member.                                                 President