DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

Consumer Complaint No.618 of 2015

                                             Date of institution:  18.11.2015

                                             Date of decision   :  15.03.2018

M/s. Technomac India, B-82, Industrial Area, Phase-7, Mohali through Shri Harvinder Singh, Proprietor.

…….Complainant

Versus

M/s. Vardhman Industries Ltd., Village Beopror, Rajpura District Patiala having registered office at Gh-6/223, Meera Bagh, Paschim Bihar, New Delhi 110087 through its Managing Director.

……..Opposite Parties

Complaint under Section 12 of

the Consumer Protection Act.

Quorum:    Shri G.K. Dhir, President,

                Shri Amrinder Singh Sidhu, Member.

                Mrs. Natasha Chopra, Member.

Present:     Shri R.K. Goyal, counsel for the complainant.

                None for the OP.

Order by :-  Shri G.K. Dhir, President.

Order

               Complainant purchased CC Profile Sheet Brick red coloured measuring 10.880 meters from OP for amount of Rs.8,10,181/- and Rs.16,128/- through invoices dated 28.11.2014. After getting delivery of these sheets, at Mohali, those were fixed on the roof of factory premises of complainant. It was found that there is colour variation in the profile sheets and edges of the sheets also were found damaged, due to which colour variation and mismatch of sheet joints took place. On complaint lodged with OPs, it sent its representative Shri Karnail Singh, Marketing Officer who visited factory premises of complainant on 11.03.2015. Said representative after seeing the sheets fixed in the factory of complainant found colour variation as well as damage to edges of the sheets. Copy of the proceedings of the visit of said Karnail Singh annexed with the complaint. Thereafter on 14.03.2015 Mr. Rakesh Kumar and Mr. Dinesh Kumar, Assistant Engineers of OP visited factory premises of complainant for resolving the issue by confirming in writing about the colour variation in the sheets and also regarding damage to sheets. Despite these assurances, the damaged sheets have not been replaced despite numerous requests and sending of legal notice dated 20.07.2015 and that is why by pleading deficiency in service on part of OP, payer made for directing OP to replace the damaged sheets in question at expenses of OP. In the alternative, direction to OP sought for calling upon it to pay damages of Rs.1,35,000/-, being cost of the sheets and involved labour expenses required for replacing the damaged sheets. Legal expenses fee of Rs.30,000/- and compensation for mental sufferings and harassment of Rs.35,000/- more claimed.

2.             Right of OP to file written statement was struck of vide orders dated 29.02.2016 and thereafter case was posted for evidence of complainant.

3.             Complainant after tendering in evidence affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to C-7 closed evidence. Counsel for OP tendered in evidence affidavit Ex.OP-1/1 of Anil Kapoor Executive (HR) and thereafter sought time for producing remaining evidence but closed the same without tendering any further documents on 17.05.2017.

4.             Written arguments submitted by complainant and not by the OP. As none appeared for OP continuously and as such after hearing arguments of counsel for complainant and going through records the complaint is decided.

5.             From the perusal of contents of complaint and the submitted affidavit and also from invoices Ex.C-1 and C-2, it is made out that the sheets in question purchased by complainant for fixation in the factory premises of complainant concern. Even the consignment receipt Ex.C-3 produced to show that consignment of the sheets in question was received in Phase-1, Mohali and as such certainly this Forum has territorial jurisdiction. Even if this Forum may be having territorial jurisdiction, despite that the main question remains to be determined as to whether complainant is consumer of OP or not within meaning of section 2 (1) (d) of Consumer Protection Act.

6.             Counsel for complainant vehemently contends that sheets in question purchased not for commercial purposes, but for personal use in the factory of complainant and as such complainant is consumer of OPs. That submission of counsel for complainant certainly has no force because after going through ratio of case Lords Wear Pvt. Ltd. Vs. Rance Consumer Pvt. Ltd. I (2014) CPJ 332 (NC), it is made out that if a computer software is purchased by a private limited company, without pleading the same used by Managing Director for running business for earning livelihood or self employment, then complainant concerned will not be a consumer. Likewise case of Pharos Solution Pvt. Ltd. and others Vs. Tata Motors Ltd., Bombay House 2015 (IV) CLT 265 (N.C.)  lays that in case a car is exclusively purchased not for earning livelihood by way of self employment for the directors of the company, then the complainant concerned will not be a consumer because of use of car for commercial purpose. Same is the position in the case before us because here purchase of sheets in question and use thereof was in a factory run by complainant concern. No where in the complaint or in the affidavit or in any other material it is pleaded that the factory is run for earning livelihood by way of self employment. So necessary ingredients attracting provisions contained in explanation appended to Section 2 (1) (d) of Consumer Protection Act are missing in this case. In view of use of purchased sheets in commercial venture not shown to be run for earning livelihood by way of self employment, it has to be held that complainant is not consumer of OP in view of above cited legal position. If complainant is not consumer of OP, then certainly consumer complaint is not maintainable. Remedy available with complainant in such circumstances is to approach appropriate court for redressal of grievance for supply of sub standard/damaged sheets.

7.             As a sequel of above discussion, complaint dismissed with observation that the complainant, if desires, may approach the appropriate court for availing his remedy.   Certified copies be supplied to the parties as per rules.  File be indexed and consigned to record room.

Announced

March 15, 2018.

                                                                (G.K. Dhir)

                                                                President

                                                            (Amrinder Singh Sidhu)                                                                Member

(Mrs. Natasha Chopra)

Member