BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD.
F.A.No. 178 OF 2008 AGAINST C.C.NO.75 OF 2006 DISTRICT CONSUMER FORUM KAKINADA
Between
M/s Satya Gowri Mahal
Kakinada East Godavari Dist.
rep. by its Partner
Medisetti Gopal Swamy
Appellant/complainant
A N D
M/s Sri Aditya Refrigeration Agency
Kakinada
Respondent/opposite party
Counsel for the Appellant Sri A.Jaya Raju
Counsel for the Respondent Sri EVVS Ravi Kumar
QUORUM: SRI SYED ABDULLAH, HON’BLE MEMBER
&
SRI R.LAKSHMINARSIMHA RAO, HON’BLE MEMBER
TUESDAY THE TWENTY EIGTH DAY OF SEPTEMBER
TWO THOUSAND TEN
Oral Order ( As per R.Lakshminarsimha Rao, Member)
***
1. Dissatisfied with the order dated 30.8.2007 of the District Forum, the complainant filed this appeal.
2. The facts leading to the filing of the appeal are that cinema exhibition theatre under the name and style of Satya Gouri Mahal in Kakinada town is the complainant. The theatre is equipped with DTS sound system and as it requires cooling, the complainant purchased Voltas brand split air conditioner of one ton capacity from the opposite party for a consideration of `26,500/- under two separate receipts. Within two months of its purchase, the air conditioner failed to function. On information, the opposite party having checked the air conditioner found that the Printed Circuit Board (PCB) had failed and they took away it and did not turn up for more than 15 days and during that period there was no proper cooling to DTS system. After a period of one month again the air conditioner failed to function. The opposite party checked and found the compressor not working. The opposite party installed the compressor after a period of 40 days. Even after replacement of the compressor, the air conditioner was not working properly. In spite of repeated requests, the opposite party failed to replace the AC with a new one. Because of frequent repairs of AC the DTS system was damaged and the complainant incurred a loss of `93,160/-. The complainant got issued a legal notice dated 8.6.2005 and filed complaint seeking direction to the opposite party to pay `33,000/-.
3. The opposite party resisted the case contending that at the time of its installation the opposite party was informed to the complainant that one tone split AC is not sufficient for the room where the DTS system is functioning and requested it to install 1.5 ton AC but the complainant did not heed to its advice. The compressor of the AC machine was burnt because the room size was not reduced and the air conditioner was over burdened. The compressor was sent to the company for its repair with intimation to the complainant and that the compressor will be fixed as and when received from the company. The opposite party effected the repairs as and when the complainant informed to it. The opposite party is only a servicing centre at Kakinada on behalf of the manufacturers and that the manufacturer of the A.C. machine was not made party to the complaint and hence prayed for dismissal of the complaint.
4. The partner of the complainant and third party affidavit of one K.Varathan, proprietor of Cine Tekk, Chennai filed the affidavits and got Exs.A1 to A8 were marked.
5. On behalf of the opposite party Exs.B1 to B12 were marked.
6. The District Forum dismissed the complaint on the ground that the opposite party is not a manufacturer and is only a servicing agent that the manufacturer was not made a party to the proceedings and that the opposite party attended to the repairs as and when complained by the complainant.
7. The points for consideration are:
1) Whether the complainant theatre is a consumer within the meaning of Sec.2(1)(g) of the C.P. Act?
2) Whether there was any deficiency in service on the part of the opposite party?
3) To what relief?
8. POINT NO.1 The complainant is a cinema theatre and purchased Airconditioner for a sum of `93,160/- on 19.5.2004. The purpose for which the Air Conditioner was purchased, according to the complainant is for cooling of the DTS system. The Cinema theatre is being run for the purpose of earning profits. The complainant has contended that Air Conditioner unit was supplied by the opposite party is defective and claimed for refund of the cost of Air Conditioner `26,500/- along with damages to an extent of `93,160/- and the damage caused to the DTS system `33,000/-. The contention of the complainant that due to defective Air Conditioner unit supplied by the opposite party the DTS system was damaged consequently the complainant’s theatre sustained loss of `93,160/-. Admittedly, the complainant is a Cinema Theatre whose main purpose is to earn profits by way of exhibiting the films to the audience. Section 2(1)(g) of the C.P. Act is subject to the control of spirit of Sec.2(1)(d) of C.P.Act. Sec. 2(1)(d) reads as under:
(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) 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 '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 but does not include a person who avails of such services for any commercial purposes;
Explanation.— For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;
9. The complainant being a Cinema Theatre and having purchased the air conditioner unit for commercial purpose, is not a consumer within the meaning of Sec.2(1)(d) of the C.P.Act. In view of the complainant being not a consumer as defined by Sec.2(1)(d) of C.P.Act, the question of rendering service under Sec.2(1)(g) of the C.P.Act does not arise.
10. The point is answered against the complainant theatre.
11. POINT NO.2 In view of the findings that the complainant cannot be a consumer to invoke the provisions of the C.P.Act, there need be no discussion under this point.
12. POINT NO.3 In the result the appeal is dismissed confirming the order dated 30.8.2007 of the District forum. There shall be no order as to costs.
MEMBER
MEMBER
Dt.28.09.2010
KMK*
