Delhi

North East

CC/41/2019

Mr. Sunil Kumar - Complainant(s)

Versus

M/s Tata Hitachi - Opp.Party(s)

24 May 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 41/19

 

In the matter of:

	Sh Sunil Kumar S/o Sh Mange Ram R/o C-4/43, Street no. 1 Second Pushta, Sonia Vihar Delhi-110094	Complainant
	Versus
1           2	M/s Tata Hitachi Through its Principal Officer C-155, Pocket-C, Okhla Phase-1 Okhla Industrial Area Delhi-110020   M/s Time Equipment Pvt. Ltd. Through its principal officer Plot No. 30/7, Wearwell Complex, Industrial Area, NIT Faridabad Haryana-121001	Opposite Parties

 

DATE OF INSTITUTION:       JUDGMENT RESERVED ON:               DATE OF DECISION      :

03.04.2019 24.05.2019 24.05.2019

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Succinctly put, the fact giving rise to the present complaint are that the complainant being a proprietor of M/s Hi Serve Solutions is engaged in the business activity of distilling-rectifying of spirit as can be ascertained from the copy of EPF certification filed by the complainant. The complainant used to take government and non-government tender for undertaking excavation work and for the said purpose, it became necessary to purchase a Hydraulic Excavator  and for the said purpose he came into contact with OPs, OP1 being manufactured and OP2 its dealer sometime in early July 2018 for purchase of the said machine. The complainant applied for loan through HDFC bank for a sum of Rs. 41,00,000/- for the said machine, total cost of which was Rs.51,55,500/- and the balance amount was to be paid by the complainant himself. The OPs supplied TATA Hitachi Hydraulic Excavator model EX 200 LC Super Backhoe with AC cabin, GP BUCKET and KIT (hereinafter referred to as the said machine) to the complainant on 10.07.2018 after  receiving the entire consideration amount against TAX invoice no. MC/FBD/031 dated 10.07.2018 with payment term: hypothecation with HDFC bank. In addition to the said machine, the complainant also purchased TATA HITCHI heavy duty grease, gear oil and engine plus for Rs. 12,010/- from the OPs on 29.11.2018 vide Tax invoice no. SP/FBD/00793 dated 29.11.2018 and element air cleaner for      Rs. 6289/- on 23.11.2018 from OPs vide invoice no. SP/FBD/D0771. The said machine had a warranty of fifteen months on it from the date of dispatch from factory twelve months from the date of commissioning or 3600 hours of operation whichever occurs first. However, the said machine stopped functioning on 11.12.2018 and there was several email correspondences between complainant and OPs expressing grievance of malfunctioning of machine in December 2018 but OPs failed to extend any support or rectify the defect therein. Complainant alleged the said machine suffering from manufacturing defect causing him loss of business due to its non functioning and repeated failure of engine and lastly because of non redressal of complaint from OP’s end, issued a legal notice 04.01.2019 through his counsel which went unheeded to therefore the present complaint was filed praying for issuance of direction against the OPs to repair the machine free of cost, to pay the bank installment for loan taken on the machine which is non functional apart from compensation of Rs. 4,50,000/- and Rs. 50,000/- towards litigation expenses.
2. The complainant has attached copy of purchased order for the Hydraulic Excavator addressed to OPs by the complainant, Tax invoice for the purchased of the said machine from OPs, receipt issued by OPs acknowledging payment of Rs. 10,33,100/- from complainant to through RTGS on 10.07.2018 alongwith Invoice other items purchased from OPs, copy of engine warranty on the said machine, copy of loan agreement with HDFC Ergo for loan taken for the said machine, copy of bank account statement of current account of complainant’s proprietorship firm held with HDFC bank highlight in the entries pertaining to the Hydraulic Excavator, payment/EMI, copy of email correspondences exchanged between complainant and OPs from July 2018 till  December 2018  and also with HDFC bank, copy of legal notice dated 04.01.2019 issued by counsel for OPs on complainant alongwith postal receipt and track report.
3. At the admission stage the complainant was directed to file the profile prospectus / brochure of the proprietorship firm of the complainant and its ITR return. The complainant filed copy of GST registration certificate, copy of ESIC certificate, copy of EPS certification and copy of ITR returns  for 2016-17, 2017-18 & 2018-19 alongwith copy of balance sheet as on 31.03.2018 prepared by the Charted Accountant/ Auditor of complainant’s proprietorship firm to the tune of Rs. 1,88,48,339/-.
4. The complainant urged that the complaint was admissible for territorial jurisdiction since all payments were received by OPs at the billing address of the complainant falling within jurisdiction of this Forum as the billing invoice raised. To the specific query put by the Forum for non filing of the prospectus / brochures of the Firm used for soliciting business / tenders from Government and non Government companies, the counsel for complainant stated that the same are not available. To the query as to how the said machine was operated by the complainant or put to use, the counsel for complainant submitted that the complainant has engaged five to seven labour to operate the said machine.
5. We have heard the arguments addressed by the complainant. We have heard the counsel for the complainant on the maintainability of the complaint for being admissible under Section 2(1)(d) of CPA.
6. As per own admission of the complainant he is proprietor having current account with HDFC bank and is engaged in the excavation business for which he required to purchase a Hydraulic Excavator.

The word consumer is the fulcrum of the Consumer Protection Act, the Act hinging on twin concepts of defect in goods or deficiency in service, a consumer is one who buys any goods or hires any service. The term consumer is defined in Section 2 (1)(d) of the Act meaning any person who

1. buys and 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 that 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
2. 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 purpose.

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 purpose of earning his livelihood by means of self employment.

 

The term ‘consumer’ has, thus, been defined to mean, a person who                 is-

1. a buyer, or
2. with the approval of the buyer, the user of the goods in question, or    
3. a hirer or person otherwise availing, or
4. with the approval of such aforesaid persons, the beneficiary, of the service(s) in question

 

with the condition super added that such buying of the goods or hiring or availing of any such service, is for a consideration, -

 

1. paid, or
2. promised, or
3. partly paid or promised, or
4. covered by any system of deferred payment

On bare reading of the above, it is clear that consumer is a person who buys goods or hires/avails of services for consideration but excludes a person who does the same for commercial purpose.

7.   The word “commercial purpose ” has been defined by Hon'ble National Commission in Kores (India) Ltd Vs Samir Purkayastha (1996) 2 CPJ 71 (NC) as having a vide connotation and the determination of purpose in a consumer case should be done by taking into account a number of factors viz. the scope of business, the investment involved, the motive and intention behind the business, whether it is in the nature of earning a livelihood or earning substantial profit, currently as well as in future profits. Therefore commercial purpose is a question of fact to be decided on basis of purpose to which the goods bought are put to use and if the same is not for self employment, the person purchasing it is ousted from category of consumer especially after the amendment w.e.f. 15.03.2003 to the Act. “Commercial purpose” would therefore cover an undertaking whose object is to make profit out of it ‘Self employment’ has been explained by Hon'ble Supreme Court in Cheema Engineering Services Vs Rajan Singh (1997) 1 SCC 131 as altogether a different concept with connotation that he (purchaser) alone uses the machinery purchased for the purpose of manufacture by employing himself in working out or producing the goods for earning his livelihood. Therefore, the purpose to which the goods bought are put to use becomes materials.
8. The Hon'ble National Commission in Hajarimal Moonat Vs. Kumar Iron Works 1997 (1) CPR 18 held that to arrive at the conclusion whether a purpose for a commercial purpose, it has to be decided whether the purchase of the goods by the complainant was intended for commercial purpose for carrying on small business for the purpose of eking out his livelihood by way of self employment. The Hon'ble National Commission in B.H. Kerudi Vs M.D.J. Mithra & Co. Ltd 2002 (III) CPJ 299 (NC) held that where the equipment purchase by the complainant had a direct nexus with his commercial purpose, then purchase of such equipment is for commercial purpose and complainant not being a consumer cannot maintain complaint before Redressal Forum under the Consumer Protection Act. The Hon'ble National Commission in UP State Road Transport Corporation Vs Non-Destructive Test Appliances Pvt Ltd. Calcutta 2002 (3) CPJ 263 and in Prestige Stones Vs. Sharma Industries 1991 (1) CPR 217 (NC) held that defect in an industrial equipment / machine purchased for use of industry had not been purchased for earning livelihood and was acquired for commercial purpose in view of which no consumer dispute was involved. Further, the Hon'ble National Commission in Jay Kay Puri Engineering Vs M. Breweries and Distilleries Ltd. 1996 (1) CPR 102 (NC) and in Meera Industries Vs Modern Construction RP no. 1765/2007 decided on 22.05.2009  held that by virtue of amendment to Section 2(1)(d)(ii) of the Consumer Protection Act effected in 2003 w.e.f. 15.03.2003, a person who avails of services for commercial purpose would no longer be within the ambit of “consumer” under CPA even for the purpose of services during the warranty period to be rendered by manufacturer or supplier during the said period for the maintenance of machine purchased. The Hon'ble National Commission in PSG Industrial Institute Vs. Lakshmi Enginerring Works (1994) (1) CPJ 197 (NC) observed that where the value of the machinery purchased by the complainant itself was Rs. 21 Lkhs and the complainant was carrying on business for purpose of earning profit, the Hon'ble National Commission held that the machinery was purchased for commercial purpose and complainant was not a consumer which issue the State Commission failed to advert. The Hon'ble National Commission in M/s R.K. Handicraft Vs Parmanand Ganda Singh in RP no. 787/13 decided on 28.01.2015 observed in a case where the complainant running a sole proprietorship concerns had purchased a generator which turned out to be defective that the complainant has to prove that the generator was purchased for the exclusive purpose for earning livelihood through self employment but contrarily it was found that the firm was functioning even before the purchase of the generator and held that hence it cannot be said that the generator set was purchased exclusively for the purpose of earning livelihood by way of self employment. The Hon'ble National Commission in Abhinav Publishing India Pvt Ltd. Vs Graphics and Prints 1995 (2) CPJ 117 (NC) after observing the value of equipment purchased, perusal of profit and loss account of the company and its fixed assets and considering the monthly rental and staff salary held that these facts clearly indicated that the contention that the equipment was used exclusively for earning livelihood through self employment was totally untenable and consequently dismissed the complaint. The Hon'ble National Commission in Sarwinder Kumar Gurbaksh Logistic India Vs. Action Construction Ltd. II (2012) CPJ 350 (NC)  held in a case where Hydraulic Mobile Cranes were purchased by the complainant during different period and the said cranes developed defect therein within the warranty period which the OPs failed to rectify compelling the complainant to file the complaint for replacement or refund of its price that it is proven that the cranes were to be plied were some other person(s) and not by complainant himself and therefore complainant cannot be  termed as a consumer u/s 2(1)(d) of CPA  and cannot be sent earn livelihood through self employment through said machine and upheld the order of the State Commission Panchkula dismissing the Revision Petition with cost imposed on the Petitioner.
9. After having exhaustively dealt with the settled proposition of Law in the elaborate legal discourse in the forgoing paragraphs in keeping with the facts of the present case and averments made by the complainant himself of running a proprietorship firm into excavation business and earning through Government and non Government tender for which the said machine was purchased through loan sanctioned by HDFC and the nature of the loan account was also current as maintained by the complainant with the said bank, the complainant is ousted from the category of consumer within the purview of Section 2(1)(d). The complainant has even submitted that the said machine was not operated himself but he had engaged five to seven labour for operating the same thereby clearly indicating that it was not for self employment as discussed in Cheema (Supra) judgment of Hon'ble Supreme Court.
10. For all the aforesaid reasons, the complaint is dismissed as non maintainable with no order as to cost.
11.  Let a copy of this order be sent to complainant free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
12.   File be consigned to record room.
13.   Announced on  24.05.2019

 

(N.K. Sharma)      President

(Sonica Mehrotra)  Member