BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.402 of 2015

Date of Instt. 16.09.2015

Date of Decision :09.10.2015

1. Balraj Tandon son of Ramesh Tandon, Partner M/s Gopal Trading Company, 423, Guru Gobind Singh Avenue, Jalandhar.

2. Smt.Sunita Gupta wife of Kapil Gupta, Partner M/s Gopal Trading Company, 423, Guru Gobind Singh Avenue, Jalandhar.

..........Complainants

Versus

1. M/s Deltech Enterprises, Plot No.4, Street No.18/1, Jeevan Nagar, near 66 KV, Sub Station, Phase-8, Focal Point, Ludhiana, through tis Proprietor Anurag Chaudhary.

2. Anurag Chaudhary, Prop.M/s Deltech Enterprises, Plot No.4, Street No.18/1, Jeevan Nagar, near 66 KV, Sub Station, Phase-8, Focal Point, Ludhiana.

.........Opposite parties.

Complaint Under Section 12 of the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Sh.Parminder Sharma (Member)

Present: Sh.APS Pathania Adv., counsel for complainant.

Order

J.S.Bhatia (President)

1. The complainants have filed the present complaint under section 12 of the Consumer Protection Act, against the opposite parties on the averments that the opposite party is a manufacturer and supplier of SPM machines, precision jig and fixtures, receiving gauges, sheet metal tools, precision sewing machines, components and auto components under the name and style at their permanent address of M/s Deltech Enterprises. The complainants being the partners formed a firm with a motive for their self employment for multi dealing machines with hydraulic operation of electrical in nature, for the purpose of earning their livelihood from the usage of said drilling machine. The complainants accordingly were allured by the opposite parties that they have the goods techniques and technical know how and on the basis of said drilling machine, it is very easy to drill any surface and as per their representations, the complainants placed an order for the purchase of M.S.Round Plate drilling, M.S.Round Plate after drilling and multi drilling machine with hydraulic operated with all electricals to the opposite parties and at the time of placing the said order, the complainants made the initial payment of Rs.2 Lacs towards the earnest money against the said order. The said order of machine was supplied by the opposite parties vide their bill No.179 dated 28.9.2014 for an amount of Rs.2918/-, bill No.180 dated 29.9.2014 for Rs.2121/- and bill No.182 dated 1.10.2014 for Rs.6,20,393/- and at the time of taking the delivery, the complainants made the payment of Rs.25,000/- in cash and took the delivery of the ordered goods from the opposite parties. The said goods were carried from Ludhiana to Jalandhar in the vehicle arranged by the opposite parties and the said delivery was received by the complainants at their address at Jalandhar through their known person Mr.Sonu. The remaining amount of Rs.4,00,431/- was paid vide cheque No.983470 dated 10.10.2014 for Rs.1,64,000/- drawn on PNB Jalandhar and vide different receipts by the complainants, which are attached. But the said cheque was got dishonoured by the complainant obviously for not clearing the entire payment because from the very first day, when the drilling machine was received, there was a leakage from the main cylinder (off load) during operation and there was no provisions for lubricating the gears of the drilling hand. Moreover, the chain of the shaft was found loose after 10 minutes off load operation and the machine failed to drill the M.S.Plate when tried for operation of 12 holes (15 mm), whereas, the machine capacity is 20 holes, including 8 holes of 17.25 mm and the gear box of the machine was also noisy. Thus, the drilling machine was not properly operating and was carrying the manufacturing defect and this fact was immediately brought to the knowledge of the opposite parties. During the warranty period, the opposite parties did not check the noise of the machine nor put their efforts to resolve the grievances of the complainant and due to the said problem, the complainant was not in a position to earn anything as the machine was not working properly. On such like averments, the complainants have prayed for directing the opposite party to pay them the entire cost of the drilling machine or to replace it with new one. They have also claimed compensation and litigation expenses.

2. We have carefully gone through the record and also heard the learned counsel for the complainant on the question of maintainability of the present complaint.

3. The machine in question was purchased by the firm i.e M/s Gopal Trading Company. The purchase invoice is also in the name of the firm. However, the present complaint has been filed by the complainants alleging themselves to be partners of the above said firm. In our opinion, the present consumer complaint could be maintained only in the name of the partnership firm and not in the personal name of the complainants, irrespective of the fact

that they are partners of the above said firm. In Union Bank of India Vs. Ramayan Yadav and anr 2015(2) CPJ 585, the Hon'ble National Commission in somewhat similar circumstances has held as under:-

"4. We have considered the submissions made on behalf of the petitioner and perused the record. Undisputedly, the subject cash credit account was opened in the name of the partnership firm M/s Chaudhary Motors, Ballia and that the subject bank guarantees were also issued by the petitioner bank on behalf of the partnership firm. Thus, it is obvious that if at all there is any relationship of consumer and service provider, it is between the partnership firm and the petitioner bank. Therefore, the consumer complaint could be maintained only in the name of the partnership firm and not in the personal name of the complainant Ramayan Yadav. Thus, in our view, the consumer complaint by Ramayan Yadav in his personal capacity is not maintainable".

"6. Since the instant complaint is in respect of deficiency in service by the petitioner bank, section 2(1)(d) (ii) is relevant. On reading of the above, it is clear that a consumer means a person who hires or avails of services for consideration whether paid or promised or partly paid or partly promised but does not include a person who avails of such service for any commercial purpose. Admittedly in the instant case, the loan account with cash credit limit of Rs.25.00 Lakh and the bank guarantees in favour of M/s International Tractor Ltd, were opened by the respondent complainant in relation to the firms' business of sale of the tractors. Thus, it is obvious that services of the petitioner bank were obtained for commercial purpose. As such, the partnership firm or its partners can not be termed as consumers as envisaged under section 2(1)(d)(ii) of the Act. On perusal of the pleadings, it appears that respondent complainant is trying to take benefit of the explanation to the section which gives a restricted meaning to the term commercial purpose. The complainant has alleged in the complaint that the partnership business is a means for earning his livelihood and to meet the need of his family. This allegation in para 1 of the complaint by no means would bring the complainant within the four corners of the explanation to section 2(1)(d)(ii) of the Act. Admittedly, the services of the bank were availed by the partnership firm which is not a natural person. Therefore, by no stretch of imagination it could be said that firm availed of service of the petitioner bank for earning livelihood. Thus, under the circumstances, we are of the view that respondent Ramayan Yadav can not be termed as consumer as defined under the Act. As per section 2(1)(b) of the Act, in case of an individual, complainant means a consumer. As respondent complainant is not a consumer, he could not have raised the consumer dispute. Both the foras below have failed to appreciate this aspect and have committed jurisdictional error in entertaining the complaint. Thus, impugned orders can not be sustained".

4. The ratio of this authority is fully applicable on the facts of the present case. So in our view, the present complaint is not maintainable.

5. In view of above discussion, the present complaint is dismissed with no order as to cost. Copy of the order be sent to the complainant free of costs under rules. File be consigned to the record room.

Dated Parminder Sharma Jyotsna Thatai Jaspal Singh Bhatia

09.10.2015 Member Member President