Final order/Judgment

                                                                                 (Judgment delivered on 9/12/2024)

By Shri. Nitinkumar C. Swami, Hon’ble President

The complainant has filed this complaint under section 35(1) of the Consumer Protection Act, 2019 against the opposite party. The brief facts of the case are as follows:

1. The complainant is engaged in business of producing plastic material carvings products of Buddhist sculptures such as Vihar, Stup, Chaitya and Shurya Stanbha and its marketing and selling of the same. The opposite party is engaged in business of making various moulds in metals and production of the various plastic items under the name and style of ‘Saboo Plastic Private Limited’.  The complainant had ordered for making two moulds in P-20 Metal i.e. 1. Srilankan Stupa mould set, 2. Vijay Stambh (shaurya Stambh) mould set. Accordingly quotation/ agreement dated 31st January 2021 was signed by complaint and the opposite party. It was agreed between them that the opposite party will deliver both the moulds within period of 60 days i.e. on or before 2 April 2021,  for consideration of    rupees 5 lakh, out of which the complainant had paid Rs. 2,36,000/-.  Therefore, the complainant had decided to launch both the products on 14 April 2021. But as the opposite party failed to deliver the products according to the agreement, the complaint had to cancel the inauguration function. On 3/5/ 2021, the  opposite  party sent the mould of Srilankan Stupa, in which the complainant found various problems and defects such as change in design, use of broken springs, locking system in a cap of Stupa, no locating ring in the stupa, no lock patti provided in the mould,  and also no I bolt was attached. There were scratches in the mould and finishing was not properly made with less thickness in the top portion        of Stupa mould,  due to which it was getting broken. However despite of such defects the complainant had taken the delivery of the said mould. The mould of Shourya Stambh was also delivered to the complainant belatedly on 27/10/2021, by extending delivery date twice. It is further alleged that, the CIPET, the Centre for Skilling and Technical Support had cancelled the job order of the complainant regarding the mould of Shaury Sthambh, as during the trial of the said mould,  an accident took place, as it was defective. It is further alleged that, due to such delayed delivery and defective moulds the complainant has to suffer mental agony and physical trouble as well as financial losses. Therefore the complainant had filed complaint against the opposite party to Akhil Bhartiya Grahak Panchayat. But the complainant had not paid any heed to the notice of the Grahak Panchayat. Therefore it was suggested to the complainant to file consumer complainant. The complainant issued Legal Notice to the opposite party calling upon him to pay Rs. 2,45,000/- with interest at the rate of 18% per annum and also Rs. 20,00,000/- towards the loss sustained due to non launching of the products for sale as planned. The opposite party had received the notice and had replied the same, in which opposite party mentioned the Covid pandemic as reason for delay and denied all charges against him. The complainant further alleged that the act of the opposite party fall under Unfair Trade Practices and therefore she filed present complaint against the opposite party and prayed for direction to the opposite party to pay to the complainant Rs. 2,36000/-   with interest at the rate of 18%  per annum from 31/01/2021 till the realization of amount, Rs 20,00,000/- towards loss suffered due to delay in delivery in the moulds, Rs 2,00,000/- towards deficiency in the services, Rs. 2,00,000/- for mental agony and harassment and Rs. 25,000/- towards the cost of legal expenses. The complainant has filed 08 documents along with list at exhibit 5.

2.  After admission of the complaint, notice was issued to the OP.  The Opposite Party has filed his  written statement on 21/06/2022.

3. In written statement the opposite party has taken preliminary objection that, the said moulds were purchase for commercial purpose with view to earn profits by selling mould-based product and it is not the sole mode of earning livelihood of the complainant and therefore the complainant is not the “consumer” as defined in the Consumer Protection Act. It is further contended by the opposite party that, this complainant is not maintainable, as the transaction was in fact done by the husband of the complainant and not by the complainant. It is admitted by the opposite party that, the complainant had placed order of two moulds for total cost of Rs. 5 lakhs and accordingly both the parties entered into the agreement dated 31/01/2021.  The opposite party denied all the allegation and adverse contentions against him made in the complaint. According to the opposite party the delayed delivery was due to second wave of Covid Pandemic, and said reason is well known to the complainant and also informed to him time to time. The opposite party denied the fact of defects in the moulds. It is the case of the opposite party that, initially the complainant sought the advice of the opposite party with respect of support and productions as she was newly entered in the profession. But later on, she had asked to make changes in the moulds and as per her instructions the opposite party had made changes in the moulds. As per opposite party he had carefully dispatched the molds and it were duly accepted by the complainant. So far as cancellation of order by CIPET on ground of moulds being failed at trial is concerned, it is denied by the opposite party that, it was due his deficiency in the services or defective product. It is contended that the complainant herself was at fault as she neglected the instructions and suggestions of the opposite party, and instructed opposite party time to time to make changes in the moulds, by compromising on some issues for saving cost. It is further contended that, the opposite party had made the moulds according to the complainant’s instructions. The opposite party denied the quantum of damages. In short, it is the case of the opposite party that he has not any way involved into unfair trade practices or provided any deficiency in the services. Therefore he prayed for dismissal of present complaint with cost.

4. After considering the complaint and written statement of the opposite party, rejoinder filed by the complainant, and written and oral argument made on behalf of both the parties, following points arose for determination, on which findings are given by this commission for the reasons as mentioned below.

REASONING.

5.     As to point No.1:-     

The opposite party has taken objection in his written statement that, the complainant is not ‘consumer’ as per S. 2(7) of Consumer Protection Act, 2019, as she is engaged in business of producing plastic material carvings products of Buddhist sculptures. Though it is not mentioned in the complaint, it can be seen from the documents ( i.e. D-3 & D-4) submitted by the complainant herself that she is the proprietor of “Uniplast Handicrafts.” She also admitted in her complaint that she is engaged in such business. In paragraph 13 of the complaint, the complainant alleged that she had suffered loss of Rs. 20,00,000/- (Rupeees Twenty Lacks ) towards loss sustained due to not launching of the products for its sale as planned and therefore prayed for heavy compensation of Rs 20,00,000/-. So, it is admitted in the complaint itself that the complainant is engaged in the business of sale of Buddhist sculptures. Therefore, it is very clear from the complaint itself that the transaction was made for “commercial purpose” as defined in definition of 2(7) of the Consumer Protection Act, 2019, which provides as follows :

(7) "consumer" means any person who—

(i) 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

 (ii) hires or avails of any service 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 service other than the person who hires or avails of the services for 5 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 service for any commercial purpose.

 Explanation. —For the purposes of this clause, —

(a) the expression "commercial purpose" does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;

(b) the expressions "buys any goods" and "hires or avails any services" includes offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing;

6. Therefore now the burden shifts on the complainant to prove that, the goods purchased were being used exclusively by her for purpose of earning her livelihood. But in this regard, there is absolutely no pleading in the complaint nor any evidence on record adduced by the complainant. The complainant utterly failed to prove that the moulds purchased were being used exclusively by her, for purpose of earning her livelihood.  Therefore, as per definition the complainant cannot be considered as “Consumer” of opposite Party.

7.  One more aspect in this regard is that, the documents submitted by the complainant shows that, she entered in the contract with one company named “Saboo Plastics Private Limited”. But the complainant has not made the said company as opposite party. As company being a juristic person, we are of the opinion that the said company is necessary party and without making that company as opposite party in the complaint, the complainant cannot claim that she is consumer of that company. So also the complainant has not mentioned the relation of the opposite party with the said company. For all these reasons, we answer the point No. 1 in negative    

8.      As to point No.2:-

        From reasoning and findings given on point no.1 as above, we proceed to pass following order in answer to point No.2.

ORDER

1. The consumer complaint No. CC/71/2022 is dismissed

2. No order as to cost of the complaint.  
3. Copy of this order shall be furnished to both the parties free of   cost.
4. Two sets of file “B” and “C” shall be returned to the complainants.