BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

 Complaint No.586 of 2019

      Date of Instt. 10.12.2023

      Date of Decision: 30.10.2023

Rajwinder Singh aged about   years son of Sh. Ranjit Singh, resident House No.1235/4, Mohalla Ajit Nagar, Kishanpura, Jalandhar.

..........Complainant

Versus

1.       M/s Sehmbi Gym Equipments, WX, Basti Nau, Jalandhar.

2.       Avon Fitness Machines Private Limited, Industrial Area, C-Surjit      Nagar, Dhandri Kalan Road, Ludhiana-141003.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Smt. Jyotsna                            (Member)

Present:       Sh. Vivek Handa, Adv. Counsel for the Complainant.

                   Sh. Atul Malhotra, Adv. Counsel for OPs No.1 & 2. (Join                Proceedings)

Order

Jyotsna (Member)

1.                The instant complaint has been filed by the complainant, wherein it is alleged that the complainant is running his Gym at House No.1235/4, Mohalla Ajit Nagar, Kishanpura, Jalandhar for the past some time under the name and style of Fitness Zone. The complainant has been purchasing Gym related equipments and other material from OP No.1. The complainant has purchased one Treadmill worth Rs.1,31,000/-, one Cross Trainer worth Rs. 92,000/- and two Spin Bikes worth Rs.42,000/- from the OP No.1, vide invoice No. T244 dated 28-11-2018. Only after sometime of the above said Treadmill and Spin Bikes, these started creating problems in each and every day in a routine manner. It is risky for the customers to use the Treadmill as during his usage the nuts & bolts of the Treadmill Machine gets loosen itself due to which the customers can sustain injuries on their persons. Earlier also many a times the complainant had complaint about the defective Treadmill and to fix the defect of Treadmill properly or to replace the same. On one occasion the motor of the above said machine the above said machine stopped working and the OP No.1 were reluctant to the replace the motor of the above said machine but on the continuous insistence of the complainant the OP No.1 replaced the same but that was also got damaged again. Thereafter, the complainant called the OP No.1 ample numbers of time to fix the defect in the machine but the OP No.1 lingered on the matter on one pretext or the other and moreover from the last few days prior to the sending of the legal notice on 06-09-209 the OP No.1 had even stopped responding and started ignoring to the calls made by the complainant to the concerned Proprietor of the OP No.1. This act and conduct on the part of the OPs amounts to gross deficiency in services to the complainant and further the OPs are grossly negligent in replacing or refunding the amount of the defective goods. The OP No.1 sold the goods to the complainant by exhibiting that the goods are non-defective and that those are free from all the defects, but since the above stated goods the complainant faced problems in the working of the machines purchased from the OP No.1 for which the OP No.2 is vicariously liable for the act and conduct of the OP No.1. The OP No.1 represented to the complainant that the goods are being purchased by them directly from the OP No.2 and in the above said manner the OP No.1 tried to shed away from its liability. Similarly the complainant purchased two Spin Bikes from the OP No.1 vide Invoice No.T244 dated 28-11-2018 and since the purchase of the above said Spin Bikes, there is an ejection/reflection of unusual and an irritating noise due to which the customers of the complainant have already complained to the complainant number of times to fix the defect in the Spin Bikes as well and the complainant further the complainant had complaint regarding the above said problem to the OP No.1 regarding the irritating and usual noise being reflected/ejected from the Spin Bikes. Although the concerned staff from the OP No.1 visited the Gym of the complainant in order to cure defect regarding the omission of the above said noise from the above said Spin Bikes but till date the complainant is dealing with the same problem. Due to the above stated defective goods supplied by the OPs certain customers of the Gym of the complainant had already left, due to which the complainant suffered financial loss, harassment and agony due to the act and conduct of the OPs. The complainant is also placing on record the copies of the documents reflecting the problems faced by the complainant several numbers of times and regarding visiting of the concerned staff to fix the defect in the above stated machines. Despite the temporary fixing of the defect by the employees of the OPs, the above stated goods/machines are still creating troubles. The above said act and conduct of the OPs amounts to gross negligence and deficiency on the part of the OPs as well as it further amounts to commission of unfair trade practices by the opposite parties. The complainant had served a legal notice 06-09-2019 to the OPs, but all in vain and as such necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to refund an amount of Rs.1,31,000/- being paid by the complainant for the purchase of Treadmill alongwith interest @ 12% per annum from the date of purchase of the above said goods/machine. Further, OPs be directed to pay a compensation of Rs.2,00,000/- for causing mental tension and harassment to the complainant and Rs.35,000/- as litigation expenses.

 2.               Notice of the complaint was sent to the OPs and accordingly, OP No.1 appeared in person only once and failed to file written statement and ultimately, OP No.1 was proceeded against exparte. Notice sent to OP No.2, but after elapsing more than thirty days, the regd. Cover has not been received back, so presumption of valid services arises, but none has appeared on behalf of the OP No.2 and ultimately OP No.2 was also proceeded against exparte. Thereafter, Sh. Atul Malhotra, Adv. filed Power of Attorney on behalf of the OPs No.1 and 2 and also filed an application for join the proceedings and the same was allowed with the condition only to argue the case and no right to file written statement and to lead evidence.

3.                In order to prove his respective version, the counsel for the complainant has produced on the file their respective evidence.

4.                We have heard the learned counsel for the respective parties and have also gone through the case file as well as written arguments submitted by the OPs very minutely.

5.                Before imparting with the main controversy between the parties, we preferred to take a legal plea taken by the OP that the complainant is not a consumer because the disputed equipments in question were purchased by the complainant for commercial purpose. Explanation of Section-2(1)(d) of Consumer Protection Act, 1986 provides:-

          (d) “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) ¹² [hires or avails of] any services 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 services other than the person who ¹² [hires or      avails of] the services for 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 ¹³ [but does not include a person who    avails of such services for any commercial purpose];    

                   In order to ascertain the facts whether the equipments were purchased by the complainant for commercial purpose or not for his livelihood, the complainant himself has alleged that he is running his own gym known as Fitness Zone and the complainant purchased gym equipments for his Gym. No plea has been taken by the complainant in the entire complaint that the complainant for earning his livelihood by means of self employment as per provisions of Section-2(1)(d) of Consumer Protection Act, 1986, rather the complainant himself categorically elaborated in the complaint in para no.4 that ‘it is risky for the customers to use the Treadmill as during the usage the nuts and bolts of the treadmill machine gets loosen itself due to which the customers can sustain injuries’. Due to above stated lines in the complaint, it is clear that equipments were being used for earning profits which is for commercial purpose. In support of these observations, we take an opportunity to refer some relevant judgments of the Hon’ble National Commission/State Commission, cited in 2015 (2) CPJ 13, titled as “M/s R. K. Handicrafts and another Vs. M/s Parma Nand Ganda Singh and Co. & others”, wherein his Lordship held as under:-

“Purchase of diesel generator set – Defects – Not replaced – Complaint filed – Dismissal of – Hence, revision petition – Generator was purchased for generating electricity to run the factory for manufacture of handloom products – Complainant not consumer – Complaint was rightly dismissed, as not maintainable”.   

On the same point, we further like to refer an other pronouncement of Hon’ble National Commission, cited in 2014(1) CPJ 332, titled as “Lords Wear Pvt. Ltd. Vs. Rance Computers Pvt. Ltd.”, wherein his Lordship held as under:-

“Consumer Protection Act, 1986 Sections 2(1)(d) and 21 (b) Purchase of software – During installation, software not found functional – Defects in removed – Complaint allowed – Order reversed by state commission – Challenged by revision – Held, purchased by private limited company and not by any individual – It has nowhere been pleaded that Managing Director is running business in name of complainant for earning his livelihood – Thus, complainant is not a consumer – Interference declined in impugned order.”  

We further take an opportunity to refer an other pronouncement of the Hon’ble National Commission, cited in 2015(4) CLT 265, titled as “Pharos Solutions Pvt. Ltd. Vs. Tata Motors Ltd.”, wherein his Lordship held as under:-

“Consumer Protection Act, 1986 Sections 2(1)(d) Consumer complaint – Car purchased by a Pvt. Ltd. Company in the year 2013 – It was found later that car was manufactured in the year 2012 – Complaint filed – Maintainability of complaint in question – Car in question not purchased exclusively for the livelihood of the Director or for his personal use – He has to use the car only for commercial purposes – In case the companies are allowed to save the court fees, the very purpose of ordinary consumer or as defined by the Act shall stand defeated – As such, present complaint is not maintainable and is dismissed in limine.”

We further like to refer another pronouncement of Hon’ble National Commission, cited in 2015(4) CLT 37, titled as “NIKI-TA Care Vs. Surya Palace”, wherein his Lordship held as under:-

“Consumer Protection Act, 1986 Sections 2(1)(d) Commercial purpose- Elevator in hotel–Execution– Objection that lift installed in hotel is for commercial purpose–Objection raised for the first time before State Commission–National Commission held that this objection can be raised even at the stage of execution of the Decree– Consequently this objection has to be left out of consideration–Hence, consumer fora has no jurisdiction to try this case–Complaint dismissed with liberty to seek redressal of grievance before proper forum as per law”.

Further, we also like to refer another pronouncement of Hon’ble National Commission, cited in 2015(4) CPR 255, titled as “Manu Talwar & Anr. Vs. BPTP Limited”, wherein his Lordship held as under:-

“A. Consumer Protection Act, 1986 Sections 2(1)(d) Consumer–Definition and scope of–Services availed by him exclusively for the purpose of earning his livelihood– Explanation appended thereto–Cannot be equated with extension of business activities which are already in existence.

“B. Consumer Protection Act, 1986 Sections 2(1)(d) Consumer – Definition and scope of – Question to be considered as to whether complainants, who transact business in partnership, under name and style of “Objects D’ Art India” are ‘Consumers’?” – Held, in negative.”

6.                If we see the case of the complainant in the light of the above discussion coupled with the aforesaid judgments of the Hon’ble National Commission/State Commission, we find that the complaint of the complainant is not maintainable and accordingly, the same is dismissed, with liberty to the complainant to file the same before the appropriate Forum/Court, if complainant desires, with no order of cost. Parties will bear their own costs. This complaint could not be decided within stipulated time frame due to rush of work. 

7.                Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated                                        Jyotsna                       Dr. Harveen Bhardwaj     

30.10.2023                     Member                               President