FA.No.1560/2007 against CC.No.42/2006 District Consumer Forum, Adilabad.

Between:

M/s.Nipha Exports (P) Limited,

A Company incorporated under Indian Companies Act

With its office situated at 48, Ganga Jamuna

28/2, Shakespeare Sarani, Kolkata 700 017

Rep. by its Managing Director.

…Appellant/Opposite Party.

And

M/s.Sri Maheshwari Industries,

Rep. by its Proprietor, Sri Mukesh Malpani,

S/o.M.M.Malpani,

Aged 29 years, Occ: Business,

Situated at Rampur Road, Adilabad.

…Respondent/Complainant.

Counsel for the Appellant       : Mr.Deepak Bhattacharjee.

Counsel for the Respondent   : Mr.V.Gourisankara Rao.

FA.No.1724/2007 against CC.No.42/2006 District Consumer Forum, Adilabad.

Between:

M/s.Sri Maheshwari Industries,

Rep. by its Proprietor, Sri Mukesh Malpani,

S/o.M.M.Malpani,

Aged 29 years, Occ: Business,

Situated at Rampur Road, Adilabad.

…Appellant/Complainant.

And

M/s.Nipha Exports (P) Limited,

A Company incorporated under Indian Companies Act

With its office situated at 48, Ganga Jamuna

28/2, Shakespeare Sarani, Kolkata 700 017

Rep. by its Managing Director.

…Respondent/Opposite Party.

Counsel for the Appellant       : Mr.V.Gourisankara Rao.

Counsel for the Respondent   : Mr.Deepak Bhattacharjee.

FA.No.1697/2007 against CC.No.43/2006 District Consumer Forum, Adilabad.

Between:

M/s.Sri Maheshwari Industries,

Rep. by its Proprietor, Sri Mukesh Malpani,

S/o.M.M.Malpani,

Aged 29 years, Occ: Business,

Situated at Rampur Road, Adilabad.

…Appellant/Complainant.

And

M/s.Nipha Exports (P) Limited,

A Company incorporated under Indian Companies Act

With its office situated at 48, Ganga Jamuna

28/2, Shakespeare Sarani, Kolkata 700 017

Rep. by its Managing Director.

…Respondent/Opposite Party.

Counsel for the Appellant       : Mr.V.Gourisankara Rao.

Counsel for the Respondent   : Mr.Deepak Bhattacharjee.

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

AND

SMT.M.SHREESHA, HON’BLE MEMBER.

TUESDAY, THE SIXTH DAY OF JULY,

TWO THOUSAND TEN.

Common Oral Order (Per Hon’ble Sri Justice D.Appa Rao, President)

*******

1.         The complainant in CC.No.42/2006 preferred FA.No.1724/2007 against inadequacy of compensation and the complainant in CC.No.43/2006 preferred FA.No.1697/2007 against dismissal of the complaint, while the opposite party in both C.Cs. preferred FA.No.1560/2007 questioning awarding of compensation in favour of the complainant. Since common questions of fact and law arise they are disposed of by a common order. 

2.         The case of the complainant in CC.No.42/2006 in brief is that it is a proprietory concern doing business in cotton viz. purchase of kapas (cotton), ginning it and sale of pressed cotton bales, cotton seed, etc.  While so, he purchased NIPHA Double Roller Gin Machines for a consideration of Rs.19  When the machinery was not running well, on complaint it was re-fixed with spare parts after collecting Rs.2.75 lakhs, however, it did not run well.  Thereupon, the complainant got issued a legal notice dated 24.03.2006 for which the opposite party did not give any reply.  Therefore, he sought Rs.18

3.         The case of the complainant in CC.No.43/2006 in brief is that it is a proprietory concern doing the same cotton business.  While so,   purchased  NIPHA LATICE FEEDER MODEL for a consideration of Rs.4,70,246/- under Invoice dated 13.08.2005 giving warranty from M/s. Nipha Exports (P) Limited. Since the machinery was not running well, he incurred loss in lakhs of rupees.  Thereupon, he got issued a legal notice dated 24.03.2006 for which the opposite party did not give any reply.  Therefore, he sought Rs.9

4.         The opposite party resisted the case.  It denied each and every allegation made in the complaints.  While admitting purchase of the machinery it asserted that it was running well.  In fact test was conducted and after satisfying thoroughly performance, the complainants had taken delivery.  When its technical team visited, the complainant sold away the units to third parties.  In fact the units that were sold to the complainant were of high quality and were running all over India to the satisfaction of one and all.  For the legal notice they gave correct reply.  There is no deficiency in service on its part.  The complainant was not entitled to any compensation and prayed for dismissal of the complaints. 

5.         The complainant in CC.No.42/2006 in proof of its case filed affidavit evidence and got Exs.A.1 to A.25 marked, and in CC.No.43/2006 he got Exs.A.1 to A.13 marked, while the opposite party filed affidavit evidence, but did not file any documentary evidence except addressing arguments on the documents on record.

6.         The District Forum after considering the evidence placed on record allowed CC.No.42/2006 in part directing the opposite party to pay an amount of Rs.3,00,000/- towards compensation, whereas CC.No.43/2006 was dismissed holding that there was no deficiency in service. 

7.         Aggrieved by the said orders, the complainant preferred FA.No.1724/2007 and FA.No.1697/2007, while the opposite party preferred FA.No.1560/2007.  The complainant/appellant in FA.No.1724/2007 contended that a meager amount of Rs.3  The opposite party/appellant in FA.No.1560/2007 contended that the District Forum did not appreciate the facts in its correct perspective.  It ought to have seen that the machinery was purchased for commercial purpose and was not for eking out livelihood, and therefore, the complainants in both C.Cs are not consumers as defined under   Even otherwise, they could not prove that the machinery was defective and it did not function properly.

8.         The complainants, on the other hand, contended that the District Forum ought to have seen that the machinery that was delivered to them did not function well and despite repeated demands it had neither attend on the machinery nor provided with a new one and therefore they were entitled to the compensation. When the opposite party could not repair the machinery they were forced to sell it away and therefore, they were entitled to the amounts.

The points that arise for consideration are

1) Whether the complainant is a consumers as defined under

2) Whether the complainants are entitled to compensation, and if so to what amount?

3) To what relief?

9.         It is an undisputed fact that the complainants are proprietary concerns running factories ginning the cotton and pressing it as cotton bales.    It is also not in dispute that the respondent company is a manufacturer of Nipha Double Roller Gin Machine.  In the complaint in CC.No.43/2006 their defence is that  it had delivered 18 units of Nipha Double Roller Gin Machine under invoice dt.13.08.2005 for Rs.19,59,759/-. 

10.       The complainant alleges that the machinery was not functioning well and despite its repeated requests the opposite party did not attend to it and therefore, it was entitled to compensation and costs.  The opposite party equally resisted the case alleging that there was no defect in the machinery and in fact the complainant ran the factory for a long time and at no time it complained about the defects.  In fact when its technical team visited they found that the complainant had sold away parts of the machinery for which the complainant had filed CC.No.43/2006.  Exfacie, the allegation that the machinery was not functioning or that there was defect is not proved.  The complainant did not take any steps by examining any expert mechanic to prove that the machinery that was supplied by the opposite party was defective.  The complainant has not filed any document to prove the loss sustained by it.  What all it has filed was the correspondence made between them.  It would in no way prove that the factory was running on loss.  For the notice issued by the complainant, the opposite party has admittedly sent some technical personnel to get the machinery rectified.  Unfortunately, the complainant except repeatedly claiming loss could not prove that machinery was defective.  Under Ex.A.18 the complainant itself admits that the replacement of spare parts was made by a technician belonging to the opposite party.  What all it requested was balance of spare parts could not be installed     In fact to the notice issued by the complainant through its counsel, the opposite party gave a reply under Ex.A.22 dated 18.04.2006 asserting that as per the specification of the complainant the machinery was installed and it did not face any problem with the machinery.  Though there was no obligation on its part, by way of good gesture, its technician has rectified the defects pointed out by the complainant.  In view of the fact that the complainant could not examine any expert mechanic to prove that the machinery was not functioning well, awarding of compensation of Rs.3

11.       The learned counsel for the opposite party vehemently contended that the complainant has purchased the machinery for commercial purpose, but not to eke out his livelihood and therefore it was outside the purview of the Consumer Protection Act.  In support of his contention, he M/s. Billagi Sugar Mill Ltd. vs. M/s.Kessels Engineering Works (P) Ltd.  reported in 2010 (2) CPR P 282 (NC) wherein the National Commission had categorically opined that the complainant having purchased the machinery for commercial purpose, the District Forum does not have jurisdiction to entertain the complaint.   A perusal of the judgment shows that the complainant had purchased Turbine for its sugar mill and the opposite party gave guarantee for a period of one   In that case the National Commission held that

“If a customer buys goods for commercial purpose and avails of services attached to the goods in the nature of warranty, he cannot be considered to be a consumer even for the purpose of services during the warranty period in view of the above amendment to Section 2(d) ((ii) of the Act which came into force w.e.f. 15.3.2003.  In view of this, the complainant cannot be held to be a consumer with eference to the services attached to the warranty and the complaint is not maintainable. 

12.       The complainant no where stated that the purchase of the machinery is for his livelihood and it comes under the purview of  

13.       The District Forum though for a different reason dismissed CC.No.43/2006 against which the appeal was   There are no merits in the appeals.  As far as the order in CC.No.42/2006 is concerned, we are of the opinion that the same is liable to be set aside.   Accordingly, the order of the District Forum is set aside.  Consequently, the appeal, FA.No.1560/2007 preferred by the opposite party is allowed.  In the light of the facts stated above, the question of enhancement of compensation will not arise and therefore, the appeal, FA.No.1724/2007 preferred by the complainant is liable to dismissed and it is dismissed accordingly. 

14.       In the result, FA.No.1697/2007 and 1724/2007 preferred by the complainants are dismissed.  Consequently, FA.No.1560/2007 preferred by the opposite party is allowed. Consequently complaints are dismissed.  However, each party shall bear its own costs. 

      PRESIDENT

MEMBER

DtVvr.