Manipur

StateCommission

A/9/2023

M/S W. Ramo Singh and Sons,(General Supplier) Singjamei Bazar Parking, - Complainant(s)

Versus

M/S. Hatinga Productions repesented by its Proprietor, Huidrom Sanjit Singh - Opp.Party(s)

W. Tomba Singh

19 Jul 2024

ORDER

Mr. Th. Saimon Singh, President (Acting) :- Being aggrieved by the Judgement and order dated 24.07.2023 passed by the Ld. District Consumer Redressal Commission, Imphal in Consumer Complaint No. 7 of 2023, the opposite party has preferred this appeal.

2.  The Respondent namely M/S Hatinga Productions is a firm doing the business of making noodles and other allied works run by its proprietor, Mr. Huidrom Sanjit Singh (hereinafter referred to as the Respondent) for the purpose of earning livelihood.

3.  The present Appellant is a general supplier of Rice Machineries, Agricultural Machinery Goods, Spice making Machine, Auto Packaging Machine, Dryer Machine, Rice Machinery Spare parts, All Kinds of Mini Industrial Machines having his office at Singjamei Bazar Parking under the name and style as M/S W. Ramo Singh and Sons.

4.         On the request made by the Respondent, the Appellant had issued Rate Quotation dated 12-04-2022 for supply of items at the total cost of Rs 12,55,520/- (Rupees Twelve Lakhs Fifty Five Thousand Five  Hundred twenty) only. Further, on receipt of the Rate Quotation, the Respondent applied for loan from Canara Bank, Imphal Branch, where the Bank sanctioned the loan of Rs 11,00,000/- (Rupees Eleven lakhs) only vide letter dated 21-04-2022.

5. It has been alleged by the Respondent that the Appellant assured that the items/machines shall be delivered to the Respondent within 1 and half months from the date of payment of money but actually delivered the 3 items/machines at the total cost of Rs. 3,30,000/- (Rupees Three Lakhs Thirty Thousand) only on 17-08-2022 after 4 months from the date of payment of money on 21-04-2022. It is also alleged that after three days of the installation of the said machines, a hole in the steamer and leakage in the gear box are said to be found in the machines. The Appellant fell on deaf ears to the several requests made by the Respondent to give related documents like Warranty Card, Manual Books of the Machine and Receipts for supply of machines as required by the Bank. Not only did the Appellant give the related documents, he did not visit the work site where the machines are installed in-spite of repeated requests of the Respondent. However, on 03-12-2022, a mechanic was sent by the Appellant and repaired the machine but still not functional.

6.         The Respondent’s request for a refund of the remaining amount of Rs 7,70,000/- (Rupees Seven Lakhs Seventy Thousand) only out of the sanctioned amount of Rs 11,00,000/- (Rupees Eleven Lakhs) only after deducting Rs 3,30,000/- (Rupees Three Lakhs Thirty Thousand) only which is the actual cost of the three defective machines. Nevertheless, the Appellant returned an amount of Rs 7,45,000/- (Rupees Seven Lakhs Forty Five Thousand) only after deducting Rs 25,000/- (Rupees Twenty Five Thousand) only as GST.

7.         Being aggrieved by the loss caused by the Appellant to the Respondent, the Respondent prayed the District Commission to direct the Appellant to refund Rs 3,55,000/- (Rupees Three Lakhs Fifty Five Thousand) only for the cost of three machines and the GST amount deducted by the Appellant and Rs 1,00,000/- (Rupees One lakh) only as compensation for loss of business and mental pain and agony and cost of litigation etc. The Appellant denied most of the allegations made by the Respondent and submitted that the delay in delivery of the machine was not its fault but the company was on fault. The Appellant submitted that the warranty card was sticked on the machine and it has no manual book and the deducted amount was for GST which is 3% of Rs 7,70,000/-.

8.         The Ld. District Commission after hearing Ld. Counsels for both sides and perusal of the documents disposed of the said Complaint vide order dated 24.07.2023. It was held that the Complainant is a consumer of the opposite party since the Complainant is a self-employed person who earns his livelihood by making noodles and other allied works. It was further held that the supplied machines were defective machines and thus there is deficiency of service on the part of the Appellant. The ld. District Commission directed the Appellant to refund the cost of the purchased machine amounting to Rs 3,30,000/-, the deducted amount of Rs 25,000/- ,an amount of Rs 50,000/- as compensation and an amount of Rs 20,000/- as cost of litigation to the Respondent.

9.         We have carefully gone through the records and heard the arguments of the parties.

9.1.      The Appellant in his written version filed before the District Commission did not deny the averments of the respondent at Para 2(F) of the Complaint that there was a hole in the steamer and leakage in the Gear Box i,e, Production Machine. On the other hand, the Appellant asserted that he sent mechanic several times to repair the machines and lastly on 3-12-2022, the mechanic repaired and fixed the machine/item in running condition. (Para 8.1 and para 8.3 of the written version).Since, the delivered machines were defective, it amounts to "defect” as defined under section 2 (1) (f) by the Consumer Protection Act, 1986. In the case of Gymkhana Service Station vs Neptune Equipment (P) Ltd on 2 June, 2006 it is mentioned that “As is apparent from the aforesaid defects pointed out by the complainant from time to time the main defect was of MC due to which the machine could not yield the desired result. However, the material produced by the OP shows that at time the trained operator was not operating the machine due to which the aforesaid defects cropped up. May be that on one or two occasions the trained operator was not available but time and again the defects of MC erupted and even knobs were replaced. However, these were not such defects which had caused immense business loss to the complainant. If the machine is attended to by the manufacturer or the supplier time and again the consumer does suffer in terms of loss of business.”

9.2.      The averments of the Appellant in his pleading would amount to clear admission of supply of defective machines which need not be proved.Thus, it is held that the respondent on record has proved that the Appellant had delivered defective machines/items to the Respondent since it is settled law that admitted facts need not be proved. (Ref:-  Nagindas Ramdas v. DalpatramIccharam alias Brijram and others (1974) 1 SCC 242 and Executive Officer, ArulmiguChokkanatha Swamy Koil Trust, Virudhunagar v. Chandran and others (2017) 3 SCC 702). Similarly, the Respondent has proved on record that no manual book of the machine, warranty card or any relevant documents of the supplied machine were given to the Respondent and that the supplied machine doesn’t bear the name of the manufacturer which the Appellant also failed to reveal throughout the proceedings of the case.

The alleged deduction of Rs 25,000/- only being GST @ 3% of the returned amount of Rs 7,45,000/- by the appellant would not be justified and sustainable since GST could not be charged on the unsold commodity.

9.3. The Respondent is a self-employed person who earns his livelihood by making noodles and other allied works run in the name of M/S Hatinga Productions. According to Section 2(7) of the Consumer Protection Act, 2019, a “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

In the case of Rohit Chaudhary &Anr Vs M/S Vipul Ltd., the Hon’ble Supreme Court held that the commercial space booked by the complainants was for earning profit and not for the purpose of earning a livelihood by self-employment. The Hon’ble Supreme Court held that the if the dominant purpose of purchasing the goods or services is for a profit motive and the said fact is evident from the record, such purchaser would fall under the ambit of ‘consumer’, as defined under Section 2(1)(d) of the Act. However, the explanation clarifies that even purchases in certain situations for ‘commercial purposes’ would not take within its sweep the purchaser out of the definition of expression ‘consumer’. In other words, if the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of self-employment, such purchaser of goods would continue to be a ‘consumer’. Thus, the Court decided that the appellants are not consumers as defined under Section 2(1)(d) of the Act, while setting aside the impugned order, said that the expression ‘for any commercial purpose’ must be understood as covering cases other than those of resale of the goods. The persons buying goods either for resale or for use in large-scale profit-making activity will not be consumers entitled to protection under the Act. However, if commercial use is by purchasers for earning livelihood by self-employment, they will be considered as consumers.

In view of the averments in the pleadings of the parties and with reference to the above observation, it is held that the Respondent is a consumer since he had availed service for the purpose of earning his livelihood by means of self-employment and such service does not amount to commercial purpose as mentioned in the section.

10. On considering the above facts and circumstances, we found no grounds to interfere with the impugned Judgment & Order and hence the present Appeal is dismissed as devoid of merit with no order as to costs. The Judgment and Order passed by the Ld. District Commission is upheld accordingly with the below indicated riders.

11. The Appellant paid a total sum of Rs 13,200/- as EMI and in favour of the Respondent during the proceedings of the present Appeal as ordered. The said amount of Rs 13,200/- shall be deducted from the total amount of money to be refunded and paid by the Appellant to the Respondent.

12. The Opposite Party has deposited a sum of Rs. 2,25,000/- in this appeal before this commission. Registry is directed to transfer the said amount to the District Commission with the direction to the District Commission to pay the same to the Complainant after adjusting the same with the awarded compensation after due notice to the parties.

13.   The arguments in this case were heard on 09.02.2024 and the orders were reserved. The order could not be announced earlier because of non-availability of the requisite Bench due to ongoing “Manipur Violence”. Now the order be communicated to the parties free of costs. Also let this order be uploaded on the website of the Commission for perusal of the parities.

14.   The Registry is directed to send back the case records of Complaint Case No.7 of 2023 to the District Commission, Imphal along with a copy of this order for information and doing the needful.

15.   File be consigned to the record room along with a copy of this order.