1.      Heard Mr. Parneet Singh, Advocate for the appellant and Mr. Anil Verma, proxy counsel for the respondent. 

2.      M/s Mahadev Cattle Feed Industries has filed above appeal against order of State Consumer Disputes Redressal Commission, Punjab, dated 19.02.2015, passed in Consumer Complaint No.23/2010, dismissing the complaint as not maintainable with the observation that the complainant is not a consumer.

3.      According to the office report, the appeal has been filed with a delay of 2 days. The appeal has been filed on 06.04.2015. 04.04.2015 and 05.04.2015 were Saturday and Sunday respectively as such in view of Section 4 of Limitation Act, 1963, it is within limitation time on 06.04.2015.

4.      M/s Mahadev Cattle and Feed Industries filed CC/23/2010 for directing the opposite party to (i) refund an amount of Rs.3585000/- and take back the machine or in alternative to pay repair charges of the machine alongwith loss suffered towards the bank loan and also to refund the cost of the items lying with them; (ii) refund the sum of Rs.439604/- being the price of the oil purchased by them; (iii) refund the electricity charges of Rs.23000/-  per month (approximately) for five months; (iv) pay Rs.2/- lacs as labour charges; and (v) pay compensation of Rs.5/- lacs and Rs.51000/- as litigation cost.

5.      The appellant/complainant is an industry run by its partners Ms. Sarita Kumari, Mrs. Nirmala Devi and Mrs. Nishu and engaged in the business of preparing cattle feed (dry gluten) and selling the same in the market to earn their livelihood. Respondent/opposite party is the manufacturer and seller of different types of machines.  The complainant wanted to purchase a machine “Gluten Dryer (Ring Dryer)” and for this purpose contacted the opposite party, who issued a quotation dated 09.10.2008 mentioning the cost, quality and other specifications of the machine.  The cost of the machine was mentioned Rs.48.45 lacs, which was settled at Rs.41.25 lacs plus taxes. The complainant booked the machine by paying an amount of Rs.50000/- on 10.10.2008. The opposite party promised that the machine would be delivered within 2.5 months. Thereafter, the complainant paid Rs.12/- lacs on 23.10.2008, Rs.4/- lacs on 24.12.2008, Rs.235000/- on 31.01.2009, Rs.2/- lacs on 26.02.2009, Rs.5 lacs on 23.03.2009, Rs.15/- lacs on 31.03.2009 and Rs.2/- lacs on 28.07.2009. Thus, the complainant paid a total amount of Rs.4285000/- till 28.07.2009, out of which the complainant has taken bank loan of Rs.22/- lacs. Despite making timely payment by the complainant, the opposite party failed to supply and install the machine for more than one year. However, the machine was delivered by the opposite party in parts from 22.01.2009 to 02.09.2009 and it was installed in September, 2009. After installation of the machine, the complainant was required to pay electricity charges of Rs.23000/- per month. The products made by the complainant on trial basis were rejected in the market. The insulin of hot air heater stopped working after running for 35-40 hours, about which the complainant intimated the opposite party and the engineer of the opposite party visited the complainant industry who could not repair the machine. On the advice of the opposite party, the complainant sent the machine to the place of the opposite party. The complainant, vide letter dated 05.10.2009 asked the opposite party either to repair the hot air heater or replace the same so that the ring dryer plant of the complainant can be started. In the said letter, the complainant also intimated the opposite party that the ring dryer was installed after a long delay and it was not working properly. On 21.10.2009, the opposite party sent back the hot air heater after repairs yet the ring dryer was not working properly as it was not generating the proper heat due to which the product could not be dried properly and the plant again brokedown within few days, due to which the complainant could not complete the orders already taken. The complainant informed the opposite party but nobody visited plant to attend the machine. As the complainant suffered financial loss, it sent a telegram dated 03.12.2009 to the opposite party to immediately replace the machine. On the advice of the opposite party, the complainant again sent the machine to Panipat plant of the opposite party on 10.12.2009. As the complainant was to complete one urgent order, it purchases the ready material from M/s Shiv Traders on 11.12.2009 and sent to the buyer on 12.12.2009. As the firm was running in losses, two partners of the complainant, namely, Mr. Naresh and Mrs. Nirmala Devi went in depression and they had to take treatment from Dr. Sanjeev Mahajan. The complainant, vide letter dated 04.01.2010 informed the opposite party about the issue in the machine from the very beginning till date and requested for replacement of the same within ten days. The opposite party advised the complainant to get one hot air heater from the local supplier and the expenses would be borne by the opposite party. On the advice of the opposite party, the complainant contacted one local supplier at Jalandhar who issued estimate of Rs.671559/-. The complainant forwarded the estimate to the opposite party vide letter dated 30.01.2010 but the opposite party did not bother to look into the matter. On 08.02.2010, the complainant again sent a letter to the opposite party requesting it to make the plant functional. The plant operator appointed by the opposite party for erection and running of the plant for two months, has also given an affidavit dated 09.02.2010 to the effect that the requisite heat was not maintained by the heater/burger and the plant is non-functional due to defective machine. Alleging deficiency in service on the part of the opposite party, the complainant filed CC/23/2010 with the State Commission.

6.      The complaint was contested by the opposite party by filing the written reply stating that the representative of the complainant approached the opposite party for purchase of the machine in question. The cost of the machine was Rs.41.25 lacs and delivery of the machine was to be made subject to payment schedule. As the complainant did not make timely payment, delivery of the machine was delayed. On 21.04.2009, the opposite party raised an invoice for Rs.812154/- towards extra work (fabrication and material). The complainant failed to make entire payment and a sum of Rs.725433/- is still payable by it. In order to avoid the balance payment of Rs.725433/- the complainant has filed the present complaint. Hot air heater stopped working due to non-installation of the same by the complainant, causing further damage to the machine. The insulation was done only on 14.09.2009. When the complainant was aware that the heater was not working, there was no need to start the machine. The opposite party has properly installed the machine and the loss, if any, has been caused due to improper operation of the machine by the complainant, for which the opposite party cannot be held responsible. However, as a good gesture, the opposite party repaired the heater. There is no deficiency in service on the part of the opposite party and the complaint is liable to be dismissed.

6a.    The opposite party also raised the objection that the complainant is not a consumer as the machine was purchased for commercial purpose. The opposite party also disputed the territorial jurisdiction of the State Commission on the ground that it has no branch office within the jurisdiction of the State Commission. The complaint is liable to be dismissed for non-joinder and mis-joinder of the parties.

7.      The State Commission after hearing the counsel for the parties dismissed the complaint with the observation that the complainant is not a consumer as the machine in question was purchased for commercial purpose.

8.      I have considered the arguments of the counsel for the parties. The only issue before us is whether the complainant M/s Mahadev Cattle Feed Industries is a consumer or not. It is admitted by the parties that the complainant is a partnership firm run by three partners. From the very inception, it is the case of the complainant that three partners, namely, Smt. Sarita Kumari, Smt. Nirmala Devi and Smt. Nishu are running the firm for earning their livelihood. The State Commission observed that although the partners of the complainant have not stated that they had purchased the machine for earning their livelihood but it is not mentioned that they were by earning the livelihood by way of “self-employment” or they were operating the machine with the help of one or two helpers. If the partners of the complainant were not employed anywhere else, then certainly this business was set up by them for earning their livelihood by way of self-employment. In para-21 of the complaint has categorically stated that the opposite party had appointed Mr. Vinod Kumar as Plant Operator for erection and running of the plant for 2 months. Thus, it is clear that totally a new business was being set up by the partners with no other employee. The machine was installed and commissioned by one operator of the opposite party, who had to run it for two months. The State Commission has ignored this important aspect and wrongly held that the complainant has not mentioned whether the machine was operated by one or two helpers. In para-12 of the complaint, the complainant stated that complainant suffered loss of Rs.1.50 lacs due to wastage of (diesel + electricity + labour). It is nowhere stated that the complainant incurred expenses of Rs.2/- lacs on the labourers as observed by the State Commission, although in the prayer clause the complainant has sought Rs.2/- lacs incurred on labour. This raises a question on the entitlement of the complainant for payment of Rs.2/- lacs for the own labour of the partners. The State Commission has wrongly assumed that the complainant has incurred Rs.2/- lacs on the labourers and on this basis the State Commission wrongly observed that the complainant had been employing a number of labourers for running the plant. Thus, the impugned order of the State Commission is not based on the correct appreciation of facts and is liable to be set aside.  

                                                    O R D E R

In view of the aforesaid discussions, the appeal is allowed. The impugned order is set aside and the matter is remanded back to the State Commission for deciding the case on merits after hearing the parties. There will be no order as to costs.