Shri B. Mukhopadhyay, President.   

This is an application u/s.12 of the C.P. Act, 1986.

            The case of the complainant is that reading the Ananda Bazar Patrika on July, 2010 in the advertisement column, he came to learn by manufacturing of threads at the residence, anyone may earn Rs.500/- to Rs.1,250/- per day and accordingly, the complainant being interested for his self-employment purchased one new thread manufacturing machine from the OP and he paid the entire price of the new machine by instalments i.e. of Rs.20,000/- on 06-08-2010 and Rs.1,15,000 on 16-08-2010 respectively.

            The specific case of the complainant is that after receiving entire price of the machine, the OP insisted the complainant to sign an agreement prior for delivery of the machine at his residence and also the contents of the agreement were all in favour of OP.  It is stated by the complainant that since the payment had already been made, he had/no other alternative but to sign the agreement as per advice of the OP to get the delivery of the machine.  But after a few days of installation of the machine, at his residence the complainant realized that it is an old machine and, thereafter, he called several mechanics and from whom he understood that the machine is old one and second hand and outdated machine so he became shocked realizing that the OP sold a defective old second hand machine to him.  It is also stated that while he enquired about the price of the machine of such similar new machine and got a quotation what revealed that market price of all such new machine was Rs.59,250/-.  The complainant further found that the machine is being hot cannot produce continuously for more than 30(thirty) minutes for which it can only produce 6-7 kg. per day, whereas it was projected by the OP that this machine would produce 40-50 kg. per day.  On many occasions, the complainant visited the office of the OP and made complaint and asked the OP to take back the machine and refund money but the OP did not pay any heed and not agreed to return money of the complainant.  Hence, this case.

            In its written version, it is stated by the OP, that the complainant being interested of his own agreed to take the New Thread Reels Manufacturing machine and accordingly paid Rs.1,35,000/- during the month of August, 2010 as per the market price.  It is also stated that an agreement was executed by and between the complainant and the OP on 16-08-2010.  The OP, however, denied that they ever sold old machine and it is the complainant who came to the OP’s Office and expressed his willingness to take the machine for producing thread and wanted to know the procedure for purchasing the machine.  It is also stated by the OP that no business transaction can be done without any agreement and accordingly said agreement is binding upon both the parties.  It is also denied by the OP that the machine is second hand and outdated as alleged by the complainant.  In its contention, the OP stated that if the complainant is unable to produce thread, it is due to his own fault and not for the machine as alleged by the complainant.  The complainant also never visited the office of the OP to get refund of money of the machine and never asked to inspect the machine if it was found not functioning properly as alleged by the complainant.  So, the OP is in no way responsible since the complainant with mala fide intention and ulterior motive has asked for refund of Rs.1,35,000/- being the price paid for the machine.

            In support of its contention, the OP stated that the complainant took raw materials from them about 110 Kgs. on different dates but never informed the OP that the machine was not functioning nor lodged any complaint regarding non-functioning of the machine to them.

            The OP further stated that it is now crystal clear from the pleadings of the complainant that he wants to make unlawful gain from the OP.  So, as per OP, the complaint is not maintainable and liable to be dismissed with exemplary cost.

1)    Is the complainant a consumer?

2)    Is there any deficiency of service or unfair trade practice of OP?

3)    Whether the complainant is entitled to get the relief as prayed for\?

Decision with Reasons

All the points are taken up together for the sake of convenience and brevity.

            On proper consideration of the complainant and written version it is found that the complainant purchased one thread reel manufacturing machine at a total cost of Rs.1,35,000/- from the OP.  The main contention of the complainant is that the OP had delivered a defective second hand machine which looks like a new one, but after use of some days, the paint started to come off and from inside the rust metal body was shown.  It is also stated that the complainant was forced by the OP to sign the agreement and while he collected a quotation from other establishment, he found that the market value of this type of new machine would be around Rs.60,000/-.  Accordingly to the complainant, on the basis of assurance on the part of the OP to earn about Rs.500/- to Rs.1,250/- and to produce threads 40-50 Kg. per day, he purchased this machine, but ultimately it produced only 6-7 Kg. per day with at a stretch not more than 30(thirty) minutes and it also develops excess heat and stops production and, as such, it was unable to produce the designed capacity of finished products as assured by the OP.  In view of the above facts and circumstances, the complainant demanded refund of money along with compensation for his mental pain and agony and harassment and loss of money.

            On the other hand, it is the submission of the OP that the complainant purchased one thread reel manufacturing machine from them at a total cost of Rs.1,35,000/-.  An agreement was also executed between them on 16-08-2010 containing the terms and conditions of business transaction.  It is also stated that the OP never sold a defective second hand machine to the complainant.  If the complainant is unable to produce thread, then it is due to his own fault and not for the machine as alleged by him.  It is also stated that the complainant never visited the office of the OP for refund the money and to take back the machine by them as alleged by the complainant. 

            Moreover, in its contention, the OP stated that the complainant is not a consumer.  The complainant with mala fide intention and ulterior motive has asked for refund of money and filed this complaint before the Ld. Forum.

            In its contention, the OP further stated that the complainant has made out a story that he called several mechanics from whom he came to know that the said machine was second hand and defective.  The evidence given by Mr. Khurshid Khan is not an expert’s evidence, since he was a daily labourer in the firm of OP and was removed from service due to his misdeeds. So, it is clear that the OP has not done any unfair trade practice and the complainant has failed to prove the same.

            We have carefully considered the submissions of both the parties and perused the documents on record

            It is alleged by the OP that the complainant purchased the thread reel manufacturing machine at a total cost of Rs.1,35,000/- from the OP and an agreement was executed by and between the complainant and the OP containing the terms and conditions of business transaction and it is for commercial purpose. 

It is pertinent to mention u/s.2(1)(d) of the C.P. Act, 1986, which makes it ample clear that if a person indulges in a commercial activity for the purpose of earning his livelihood by means of self-employment then he continues to be a consumer in terms of the Act.

            In this case now before us, it is clearly established by the material facts on record that the purpose of the purchase of the thread manufacturing machine by the complainant was only to enable him to earn his livelihood by engaging himself for self-employment.  And for such commercial venture, the complainant has taken proper training also from the establishment of the OP.  Such being the factual position, the complaint cannot be said to have purchased the machine for commercial purpose in as much as the basic prerequisite of large scale trading or business activity for the purpose of making profit is totally absent.

            In the instant case, complainant’s plan to produce good quality of thread through his manufacturing machine, he was set back though he invested such amount for his livelihood and for daily earning.

            It is a fact that the complainant in spite of his best effort did not succeed in his self-employment scheme due to delivery of defective machine by the OP.

            Fact remains that the complainant for augmentation of his income and to earn for his daily livelihood on the basis of the advertisement in Ananda Bazar Patrika on July, 2010 the complainant being interested with the advertisement visited the office of the OP and purchased the machine at a cost of Rs.1,35,000/- and took training from the establishment of the OP, but did not succeed to earn due to non-standard production through this existing machine which looks like new but after some days use the paint started to erase and from inside rusted metal body come out and in support of that the complainant produced the evidence of Khurshid Khan mechanic on 22-06-2011 as an expert who is stated that the machine in question is one which assembled of  parts from various old machine what had been installed by the OP at the residence of the complainant.  Though the OP controverted the report of the mechanic, but no such believable ground has been shown against the statement of Khurshid Khan as there is a difference between the new machine and the old machine.  Moreover, within the stipulated period of agreement from the date of 16-08-2010 to 17-08-2013, this complaint was filed alleging deficiency, unfair trade practice from the end of the OP and to that effect the complainant relied upon the judgment of the Hon’ble National Commission – Re: Fiat India Ltd. vs. S.K. Verma 2007 CPJ 234 Vol 4, Super Engg. Corpn vs. Sanjay Vinayak Panth 1994 (2) CLT 104; Mehata Motors vs. Rameshwar & Ors. 2003(4) CPJ 140.

            In the above situation, we are convinced to hold that the allegation of the complainant about the machine which had been supplied by the OP was not a new machine with good condition for which the complainant was unable to produce the designed capacity of thread and thus suffered to earn his livelihood and also he has been deceived by the OP.

            Thus, taking into the entire facts and circumstances of the case, we are of the view that the OP has indulged in unfair trade practice by selling old machine making a new machine what attracts u/s.2(1)(r) of the C.P. Act, 1986.

            In view of the above, we are of the opinion that the OP should refund the entire price money invested i.e. Rs.1,35,000/- as paid for the machine and also the complainant is entitled to damages at least Rs.10,000/- as compensation on the ground of his mental tension, anxiety, loss of professional income, inconvenience and hardship as suffered by the employment about eight months after installation of the machine by the OP and litigation cost of Rs.2,000/- .

            In the result, the case succeeds.

Hence, it is,

Ordered

That the case be and the same is allowed on contest against the OP with a cost of Rs.2,000/- (Rupees Two thousand only).  The OP is directed to pay Rs.1,35,000/- (Rupees One lakh thirty five thousand only) the purchase price of the machine to the complainant on taking back the thread manufacturing machine along with all equipments from the possession of the complainant within 45(forty-five) days of this order and also pay compensation of Rs.10,000/- (Rupees Ten thousand only) to the complainant.

            When OP has adopted unfair trade practice the selling machines to intended purchase, OP shall have to pay Rs.25,000/-(Rupees Twenty-five thousand only) as punitive damages to the State Consumer Welfare Fund to restrict the OP in  future from adopting such method of sale of goods to consumer.

            OP shall have to comply the order very strictly, failing which for each day’s delay and disobeyance of Forum’s order OP shall have to pay interest @Rs.200/- (at the rate of Rupees two hundred only) per day till full satisfaction of the decree and if any reluctant attitude of the OP is found for complying the Forum’s order in that case penal proceeding u/s.27 of the C.P. Act, 1986 shall be initiated against the OP