F.A.No.405/2008 AGAINST C.C.No.786/2007, DISTRICT FORUM-III, HYDERABAD.

Between:

M/s EL-TRONICS, Rep. by its GPA

Mr.B.M.Maheswari, Aged 60 years,

Occ:Pvt. Service,

R/o.H.No.11-4-656/1, A block,

G-6, Brindavan Apartment,

Lakdi Ka Pul, Hyderabad.                                           Appellant/

                                                                                      Complainant

          And

M/s.Aishwarya Telecom Ltd.,

Rep. by its Managing Director

Mr.G.R.Manohar Reddy, 3 C,

3^rd floor, Samrat Commercial complex,

Saifabad, Hyderabad-500 004.                                     Respondent/                                                                                             Opp.party .

Counsel for the Appellant: M/s.Sri S.Prasada Rao

Counsel for the Respondent: Mr.Paturi Madhusudhana Rao

QUORUM:   THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT                                                                     

AND

SMT.M.SHREESHA,  MEMBER

.

MONDAY, THE TWENTY NINTH DAY OF NOVEMBER,

                                          TWO THOUSAND TEN

  (Typed to the dictation of  Smt.M.Shreesha, Hon’ble Member)
***

Aggrieved by the order in CC 786/07 on the file of District Forum-III, Hyderabad, the complainant preferred this appeal.

The brief facts as stated in the complaint are that the complainant placed the purchase order for optical talk set full duplex communications single fibre with 100 km range, DTMF selective calling facility, fibre identification facility with accessories main frame units, carrying case, battery charger with two sets of batteries, pigtail cable and bare fibre adopter, clip on device for temporary coupling as per TEC specifications and RS-224 interfaces.  The complainant on 27-4-2006 paid an advance of Rs.50,000/-, another amount of Rs.1,50,000/- on 18-6-2006 and an amount of Rs.5,19,100/- on 30-8-2006.  The delivery of the consignment was confirmed on 31-8-2006 to the consignee i.e. Kalandee Rail Nirman Engineering Limited.  The complainant submits that the said consignment was not delivered even after 7 days of despatch and the opposite party promised to dispatch the consignment by 23-9-06  but it was ultimately delivered on 7-10-2006.  The complainant submits that he suffered severe financial loss and claims an amount of Rs.7,19,100/- together with compensation of Rs.1,00,000/- interest and costs. 

The opposite party filed their written version admitting that the complainant placed the purchase order and paid the entire amount on 30-8-2006.  The opposite party contended that the complainant is a commercial establishment and hence not a consumer.  Opposite party is the manufacturer of telecom products and the components are procured from Singapore and other countries and hence the material could not be supplied to the complainant on time.  The complainant received the material without any protest on 7-10-2006 and the agreement does not contemplate any penalty clause for non supply of material within time and therefore there is no deficiency in  service on their behalf.

The District Forum based on the evidence adduced i.e. Exs.A1 to A33 dismissed the complaint holding that the complainant is not a consumer.

Aggrieved by the said order, the complainant preferred this appeal. 

The facts not in dispute are that the complainant purchased optical talk set full duplex communications single fibre with 100 km range, DTMF selective calling facility, fibre identification facility with accessories main frame units, carrying case, battery charger with two sets of batteries, pigtail cable and bare fibre adopter, clip on device for temporary coupling as per TEC specifications and RS-224 interfaces and paid the total amount for the said consignment by 30-8-2006 as evidenced under Exs.A1 to A8.  Ex.A9 is the invoice cum challan dated 31-8-2006 for an amount of Rs.7,19,100/-.  It is the complainant’s case that the opposite party promised delivery of the said consignment by 31-8-2006 but did not deliver the same and the complainant enquired from the transport company to reveal that the equipment booked by the opposite party was taken back by them.  Thereafter the opposite party agreed that the material was taken by them and promised to dispatch the same to the consignee by 23-9-2006 but ultimately it was delivered only on 07-10-2006 with the consignment note of 31-8-2006.  The learned counsel for the appellant/complainant submitted that the complainant suffered with heavy financial loss apart from mental agony.

It is the main contention of the respondent/opposite party that the complainant is not a consumer.  The learned counsel for the appellant/complainant contended that the company is also a person and has a legal entity and relied on Section 2(d) (i) stating that the company has purchased the goods with the opposite party which had delivered it late and this act can be termed as deficiency in service.

We rely on the judgement of the National Commission in 2008 NCJ 228 (NC) in DELHI  TRANSPORT EMPLOYEES PROVIDENT FUND TRUST v. ORISSA SMALL INDUSTIRES & ANR. in which it was held that:

“Unless the service is hired or availed of for earning livelihood by means of self employment,  it will fall within the meaning of “Commercial Activity” and hence a person of that service cannot be termed as  a “Consumer”.

A perusal of the record shows that the complainant has never either pleaded in his complaint nor in his affidavit that he has purchased the said consignment for self employment.  Section 2 exclusion clause of the Consumer Protection Act, 1986 unless it is for self employment, a purchase made for commercial purpose will not fall within the ambit of Consumer Protection Act, 1986.  Ex.A12 clearly shows that EL-TRONICS which is the name of the complainant is a stockist and supplier of Scientific, Electronic, Instruments & Components, Tools Audio Visual Equipment.  They had purchased the said equipment from the opposite party to be delivered to the consignee at Bhuvaneshwar.  Obviously this is a commercial transaction.  Moreover, the complainant has never stated anywhere that the purchase of consignment was for self employment.  Therefore, we find force in the contention of the respondent/opposite party that the complainant herein does not fall within the definition of ‘consumer’ and therefore we see no reason to interfere with the order of the District Forum.

In the result this appeal fails and is accordingly dismissed.  No costs.

Sd/-PRESIDENT.

                                                                                                        Sd/-MEMBER.

JM                                                                                                             Dt.29-11-2010