SRI SHYAMAL KUMAR GHOSH, PRESIDING MEMBER

The instant appeal has been brought against the order impugned vide no – 22 dated 18/02/2020 passed by ld DCDRC, Kolkata, Unit-1 in connection with CC case no – 596/2014 wherein the ld DCDRC concerned while disposing of the CC case dismissed the same on contest without cost against the opposite party and being aggrieved and dissatisfied with such order the instant appeal has been preferred by the appellant/complainant.

The synopsis of the case is that the complainant/appellant became an established concern having works and factory at the various places. The complainant/appellant decided to purchase one floor sweeping machine from the opposite party concern. The complainant duly made payment of Rs. 4,21,000/- on 17/05/2013 as required by the opposite party and the opposite party also acknowledged the same. Thereafter the opposite party delivered the ordered equipment to the aforesaid works/factory of the complainant situated at Dahej, Gujrat in terms of the dispatch document dated 27/05/2013. But unfortunately after few days the aforesaid machine started emitting profuse heat and accordingly the complainant contacted with the opposite party over phone and their technical personnel visited the premises of the factory on 10/06/2013 and after providing much effort, somehow the machine became workable. After few days, same problem was started and for solving the aforesaid problem an engineer visited the office premises on 12/10/2013. But the said machine could not be workable smoothly. The complainant, thereafter, issued a notice dated 25/06/2014 through ld advocate upon the opposite party for immediate replacement of the said equipment/machine  or to make refund the aforesaid amount paid to the opposite party and to reimbursement of amount at the rate of Rs. 2,000/- per day from the date of non-functioning of the machine. In spite of receiving the said notice, the opposite party did not bother to make any reply against the said notice. Be it mentioned here that the sweeping machine was not purchased for any commercial purpose. Rather the same was purchased for sweeping the floors of the factory of the complainant wherein the said factory was engaged for manufacturing engineering products. The aforesaid machine suffered from various problems during the warranty period. But the opposite party neither co-operated with the complainant nor provided proper service to the complainant. Being aggrieved and dissatisfied with the performance of the opposite party, the instant consumer case was instituted against the opposite party for getting certain reliefs as prayed for.   

The opposite party contested this case by filing written version stating inter alia that the dust filter was not clean and the dust tank was not mounted properly as per report of service engineer on 10/06/2013 vide card no- 5830. The engineer also advised that after operating the machine for one hour continuously, the machine should be kept in rest for 10 minutes. It should be necessary to check the battery status from time to time. The opposite party also stated that due to non-cleaning of the filters, the vacuum filter was jammed. The maintenance of battery was not properly done. On 14/11/2013, the further inspection was done. At that time the bolts of the machine were changed and the filters were again cleaned by their service engineers. On 16/12/2014, 24/12/2014 and 12/03/2014 the inspections were done. The opposite party informed the complainant that due to mishandling, the machine was not worked properly. the opposite party also submitted that the machine had no manufacturing defect. Rather due to lack of proper care on the part of the complainant, on several occasions, the opposite party visited the premises of the complainant for inspection of the machine. There was no gross negligence or deficiency in service on the part of the opposite party and as such the opposite party prayed for dismissal of the petition of the complaint with exemplary cost.   

In course of hearing ld counsel appearing for the appellant/complainant drew our attention to the observations of the ld DCDRC and pointed out that the ld DCDRC below completely ignored and overlooked the materials and documents on record while passing the impugned order mentioned above. Ld counsel argued that the consideration amount of Rs.4,21,000/- was already paid to the opposite party on 17/05/2013 for purchasing floor cleaning machine. After receiving the consideration amount, the opposite party delivered the same to the factory premises. Thereafter, some problems were started and as such the machine could not work properly. On several occasions inspections were held from the end of the opposite party but no fruitful result came out. Lastly the opposite party intentionally stated that due to mishandling and misusing the machine, the subject machine could not work properly. Though during the warranty period problems were started yet the opposite party could not provide the proper service to the complainant/appellant causing gross negligence and deficiency in service on the part of the opposite party. Ld counsel also submitted a citation of Horsolia Motor case in support of his case. Hence the ld counsel prayed for setting aside the impugned order dated 18/02/2020 passed by the ld DCDRC below.

Ld counsel appearing for the opposite party/sole respondent argued that the instant consumer case is not maintainable at all as there is no mention of the word LIVELIHOOD in petition of the complaint. The complainant clearly mentioned in the petition of the complaint that the said machine was bought for washing or cleaning the floor of the factory premises which is purely for the commercial purpose. Ld counsel also added that the opposite party was resided outside the territorial jurisdiction of the ld DCDRC and as such permission of ld DCDRC is required for filing the instant CC case. But the complainant did not take any permission from the concerned DCDRC. Accordingly the ld counsel prayed for dismissal of the instant appeal with cost.

We have heard the ld counsels for both sides at length and in full.

We have also perused the materials on record meticulously.

Before entering into the merits of the case, it should be decided at first that whether the TEGA INDUSTRIES LTD comes well within the purview of the definition of the ‘CONSUMER’ or not as per Consumer Protection Act, 1986.     

From the four corners of the record it is admitted that one sweeping machine was purchased for washing of the floor of the factory.

 The Paragraph no-20, at the Page no-6 of the petition of complaint being no-596/2014 the complainant viz Tega Industries Ltd. clearly indicated the above averments.

The complainant also indicated that the said machine was not purchased for any commercial purpose. 

After careful perusal of the whole petition of the complaint, it is found that the complainant truly did not take any plea for earning his livelihood by means of ‘self-employment’.

At this juncture, we try to clarify the above issue mentioned above by taking reliance upon some remarkable judgments.

In PARAMOUNT DIGITAL COLOR LAB AND OTHERS ETC VS AGFA INDIA PVT LTD AND OTHERS ETC. REPORTED IN III(2018) CPJ 12 (SC) wherein the Hon’ble Apex Court held that “a person would fall within the definition of Consumer or not would be a question of fact in every case. Self-Employment necessarily includes earning for self and without earning generally there cannot be self-employment if the person buys and uses machine exclusively for purpose of earning his livelihood by means of self-employment, he definitely comes within the definition of consumer.”

In SHRIKANT G. MANTRI VS PUNJAB NATIONAL BANK REPORTED IN II(2022)CPJ 9 (SC) wherein the Hon’ble Apex Court held that the Consumer Protection Act provides for business to consumer disputes and not for business to business disputes. The relation between the appellant and respondent is purely business to business relationship. Said transactions would clearly come within the ambit of commercial purpose. It cannot be said that services were availed exclusively for purpose of earning his livelihood by means of self-employment and as such the complainant is not a consumer.

In BRITANNIA INDUSTRIES LIMITED VS SURENDRA RAMKISHAN DHELIA (DR) REPORTED IN I (2022) CPJ 175 (NC) wherein the Hon’ble NCDRC held that the burden of proof was upon the complainant to prove that contaminated bread was manufactured by appellant and in this bread , foreign materials (plastic pieces) were found.

In HARSOLIA MOTORS VS NATIONAL INSURANCE COMPANY LTD, reported in I (2005) CPJ 27 (NC), wherein the Hon’ble Commission held that when the goods purchased for domestic use—the  matter comes well within the purview of Consumer Protection Act. Similarly when the hospital hires the service of medical practitioner—does not come within the purview of C.P. Act as it amounts to commercial purpose. Again when a person who avails / hires the service for his treatment from hospital / doctor—comes within the purview of the C.P. Act as it does not amount to commercial purpose. So, when the goods purchased or avails any service for the purpose of generating profit is called commercial purpose which does not come within the purview of this Act.

From the detailed analysis in respect of above issue, it is our findings and views that when the complainant did not take any plea specifically for earning his livelihood by means of ‘self-employment’ in the complaint/petition and obviously the situation goes against him. It should be necessary at the behest of the complainant to take the above plea. But the complainant failed to take said averments in the petition of complaint.

Moreover, the complainant took the following pleas in the petition of the complaint at the page no – 6 of paragraph no - 20:-

“the sweeping machine was not purchased for any commercial purpose of the opposite party, the same was purchased for sweeping the floors of the factory of the complainant which is engaged in manufacturing engineering products.”

The mere plea taken by the complainant “goods purchased not for any commercial purpose” is not sufficient to prove the ground of earning livelihood by means of self employment. The burden of proof always lies upon the complainant to prove his case. Moreover no sufficient and cogent evidence led by the appellant / complainant regarding this ground. We also think that the matter is related with the relation of business to business as the complainant himself took the plea that the machine was purchased for factory and the said factory was engaged to manufacture engineering products. Under such circumstances, there is no hesitation to hold that in factory large numbers of workers are engaged for production of engineering products in order to gain profit at large scale.

This Act has been enacted by the legislature for the benefit of the consumers at large and also for providing a speedy disposal. If the definition of the consumer is expanded so as to include in it a person who hires or avails any service for commercial purpose, the main object of the Act would be frustrated and if the commercial disputes is included in the definition of the consumer, it will give rise to floodgates of complaints. So precaution should be taken in the particular subject matter.

Considering all aspects from all angles and keeping in mind the present position of law and regard being had to above referred case laws/citations and submission of the ld counsels for both sides, we are of the opinion that the appellant / complainant does not come well within the purview of the definition of the consumer as per Consumer Protection Act, 1986.

The issue framed by this Commission above stands disposed of. 

We do not proceed further to the merit of the case at this juncture.

Accordingly the appeal has no leg to stand upon and as such the instant appeal is dismissed on contest without any order as to cost.

We cannot pass any remark regarding other parts of impugned order dated 18/02/2020 passed by the ld DCDRC.

Let a copy of this order be transmitted to the ld DCDRC for compliance and taking necessary action.

Note accordingly.