JUSTICE A.P. SAHI, PRESIDENT

1. This revision petition has been filed by the supplier of a multi-colour digital copier machine, namely M/s. Ricoh India Limited, now renamed as M/s. Minosha Limited. The machine, according to the complainant, was defective as there was a manufacturing defect as well as deficient in service by the supplier, hence a complaint was filed claiming refund that has been allowed by the DCDRC Ahmedabad City (hereinafter referred to as the District Commission) and substantially confirmed by the SCDRC Gujarat (hereinafter referred to as the State Commission).
2. It may be clarified at the outset that the petitioner company had undergone insolvency proceedings during the pendency of this petition and the successful resolution professional has taken over the company and therefore the description of parties in the present petition was amended.  The name of M/s. Minosha Limited was introduced by way of an amendment and accordingly incorporated in place of M/s Ricoh India Ltd.  The Office may accordingly endorse the same.
3. The complainant/respondent is a sole proprietorship firm M/s. Rajesh Xerox of which Mr. Rajesh Patel is the proprietor. A multi-colour digital copier machine of Gestetner make was purchased from the petitioner on 16.08.2002. A sum of Rs.16,65,000/- was the price paid and since there was a previous machine that was returned back by the complainant, an additional sum of Rs.90,000/- is stated to have been paid in addition thereto.
4. The machine was under a warranty and the complainant also signed a Full Service Maintenance Agreement (FSMA) that continued to be renewed till 30.04.2007. The said maintenance agreement covered the cost of repairs and supply of spares as well.
5. Sometime after the purchase of the machine it started giving trouble and the complainant approached the petitioner in April 2003 and again in June 2003 complaining about the non-functioning of the machine and its defects and deficiencies. According to the complainant, the petitioner offered to take back the machine and refund an amount of Rs.6,00,000/-. This was not acceptable to the complainant and he continued to communicate with the petitioner pointing out the defects which came to be repaired by them but ultimately the machine failed to give its performance and the petitioner did not replace the same, as a result whereof Complaint No.265 of 2007 was filed before the District Commission. The complaint was allowed on 28.02.2011. The petitioner aggrieved by the said order filed Appeal No. 837 of 2011 before the State Commission and the State Commission partly allowed the appeal whereby a depreciation on the claimed amount was granted and a sum of Rs.11,65,000/- was permitted to be paid along with interest @ 9% per annum together with Rs.5,000/- as compensation and Rs.2,000/- by way of costs. In addition thereto, Rs.5,000/- of costs in the appeal was also awarded.
6. Aggrieved by the order of the State Commission, the petitioner has approached this Commission by filing the present revision petition that was disposed of on 07.03.2016, whereby it was partly allowed and the amount awarded to the complainant was reduced to Rs.3,00,000/-. The complainant filed Petition for Special Leave to Appeal No. 19979/2016 that was disposed off by the Apex Court on 12.08.2016 permitting the complainant to file a review petition before this Commission.  Accordingly a review petition was filed that was allowed on 28.11.2016 and the revision petition was restored back for being decided on merits.
7. Learned counsel for the petitioner has urged that there is no evidence of any manufacturing defect and the expert evidence was ignored by the fora below.  Consequently, the impugned order deserves to be set aside. The second ground taken is that the entire set up was a commercial venture and therefore the earnings of the petitioner were commercial in nature, hence the complainant was not a consumer.
8. It is further submitted that the complainant was in default of payment of the amounts that were due in respect of the maintenance of the machine, and it is in order to counter the same that the present complaint was filed inspite of the fact that the machine had been taken care of under the maintenance agreement.  In the absence of any proof of manufacturing defect, there was no occasion for the fora below to have allowed the complaint.
9. Learned counsel for the respondent has urged that the complainant had been continuously complaining of the defects that were promised to be removed and the assurance made failed for which the correspondence from time to time is available on record that would demonstrate that the cause of action was continuing, and therefore the complaint was rightly filed in the year 2007. It is urged that the law on this issue is well settled but on facts also the entire correspondence between the parties itself is sufficient to demonstrate that the cause of action continued when ultimately the complainant was compelled to institute the complaint for the redressal of his grievances.
10. It is further submitted that the contention raised about the complainant not being a consumer is misconceived, inasmuch as the complainant had set up a sole proprietorship concern only for his own livelihood through self-employment.  The product was the only machine purchased from the petitioner, that too taken on a loan for which a heavy EMI was payable. The complainant was therefore a consumer of the goods supplied by the petitioner which were defective and deficient and therefore the argument to that extent is misconceived. The judgment relied on by the learned counsel for the petitioner would not apply on the facts of the present case as there were repetitive defaults and deficiencies as a result whereof the machine could not perform and resulted in a huge loss to the complainant.
11. Learned counsel urged that there is no reason either on fact or on law to interfere with the impugned orders or to reduce the quantum of compensation in as much as the earnings out of the machine were not sufficient to meet the EMIs that were payable against the loan. The contention of the petitioner that machine had copied about 1,70,000 copies is during a period of about 5 years and given the proportion of the productivity, the same comes out to a minimal approximate figure of about 3000 copies a month which does not even suffice to reflect an income to meet the easy monthly installments. The complainant had to purchase another machine in order to survive in the business for his livelihood which was yet another burden for him. It is therefore submitted that all said and done the complainant/ respondent was a consumer and his complaint was very much maintainable. 
12. It is urged by the learned counsel that the consideration of the annual maintenance was quite heavy and it was expected that the petitioner would rectify the machine but their failure to do so time and again resulted in a continuous loss of business due to the failure of the machine. It was also vehemently argued by the learned counsel for the complainant that an expert evidence was requested for before the District Commission that was accepted but an objection was taken by the petitioner that it is only their engineers who could act as an expert. Consequently, the complainant was not given any opportunity, was rather prevented by the petitioner from bringing-forth any expert evidence. The so called opinion of the expert as relied on by the petitioner is just a statement with no opinion on the manufacturing defect, inspite of the fact that in communications that are on record, it is evident that a vital component “Fiery” was defective throughout and was acknowledged by the petitioner.
13. Learned counsel for the petitioner however rejoined contending that merely because the machine had been repaired for 4 to 5 times during this period the same did not amount to a repetitive error for giving rise to a cause of action.     
14. It is in this background that the matter has been contested and the arguments have been advanced.
15. The arguments that have been advanced on behalf of the petitioner broadly cover five aspects of challenge to the impugned orders of the District Commission and the State Commission.  The first major challenge is that the respondent/complainant is not a consumer as he was conducting a business for a commercial purpose and was not running his venture for livelihood through self-employment. 
16. The second ground of challenge is, that even assuming though not admitting, that there was some cause of action, the complaint was filed in the year 2007 whereas the machine had been purchased in the year 2002.  The complaint was therefore filed beyond the period of limitation from the date cause of action had arisen and consequently the complaint was barred by limitation in terms of Section 24A of the Consumer Protection Act, 1986. 
17. The third contention raised is that the alleged breakdown in the machinery was not a manufacturing defect at all and no evidence was led by the respondent/complainant to establish the same, as such neither was there any deficiency as alleged nor any material was placed to establish any deficiency of service against the petitioner. 
18. The fourth ground raised by the learned counsel for the petitioner is that merely because a few complaints were made within a span of five years which were also attended to and rectified, the same does not amount to any accumulated deficiency to give rise to a consumer complaint.  
19. The fifth ground taken is that in fact full scale services were rendered to the complainant to his satisfaction and he continued to operate the machine profitably to his advantage without any losses and consequently there is no element of any damage or loss caused to the complainant, hence there was no reason available to the District Commission for having allowed the complaint and award a quantum which was even otherwise disproportionate.
20. It is submitted that because of this incorrect and erroneous approach of the District Commission, the State Commission even though erroneously upheld the allegation of deficiency, yet it substantially modified the order of the District Commission by altering the relief that had been granted by it.  It is urged that the findings on facts on all these issues recorded by the District Commission suffer from perversities as they are against the weight of evidence on record and the State Commission instead of analysing the same, has committed the same error by confirming the findings without adverting to the grounds raised in the memo of appeal. It is therefore urged that the impugned orders deserve to be set aside and the revision petition deserves to be allowed for the reasons and the submissions raised on behalf of the petitioner.
21. These arguments have been refuted by the learned counsel for the respondent/complainant who has extensively taken the Commission through the entire correspondence and the documentation in respect of the communication between the parties relating to the allegations and counter-allegations on the deficiencies alleged by the complainant and has also relied on decisions to urge that the complainant falls within the definition of a consumer, the complaint is not barred by limitation, the expert evidence led by the petitioner at its insistence does not come to the aid of the petitioner and is unilateral and that there was a serious manufacturing defect which stands established from the exchange of communication between the parties.  The deficiencies even otherwise persisted and the services were entirely dissatisfactory.  The imperfections in this product could not be cured at all causing huge losses to the complainant.  It is also submitted that there is no error whatsoever in the conclusions drawn by the District Commission or by the State Commission and these findings on facts are supported by valid and cogent material on record that do not call for any interference in the exercise of revisional jurisdiction by this Commission.  It is therefore submitted that none of the grounds raised are either entertainable or worth appreciation and the relief granted as modified by the State Commission deserves to be affirmed. 
22. It is also submitted that the quantum of compensation awarded does not suffer from any infirmity even though the complainant has not raised any challenge to the finding on quantum recorded by the State Commission. The manufacturing defect and the persistent deficiency has been established on record resulting in a considerable loss to the earnings of the complainant and hence the impugned order does not suffer from any infirmities so as to call for any interference by this Commission.  
23. We have considered the submissions raised and the first issue as raised on behalf of the petitioner needs to be analysed and dealt with regarding the contention raised on limitation.  It is the submission of the learned counsel for the petitioner that the alleged defects are stated to have been experienced by the complainant soon after the purchase of the Xerox machine on 16.08.2002.  According to the complainant, the first complaint was made on 22.04.2003 itself.  It is submitted that the cause of action had already arisen and emails were sent by the complainant as alleged between 23.04.2003 and 20.06.2003.  It is therefore submitted that the cause of action had occurred and reliance has been placed on order of this Commission in the case of Richard Raja Singh Vs. Ford Motor Co. Ltd., IV (2014) CPJ 509 (NC), and the decision in the case of Smt. Kovi Ajitha & Ors. Vs. Philips Medical Systems India Pvt. Ltd., I (2013) CPJ 702 (NC), in support of the submissions.  It may be pointed out that these two decisions have been referred to in the written submissions along with the judgment of the Apex Court in the case of SBI v. B.S. Agriculture Industries (I), (2009) 5 SCC 121.
24. This argument has been countered by the learned counsel for the respondent/complainant by contending that the complaints and the communications in between need to be referred to in order to appreciate the argument of continuing cause of action and computing the limitation as alleged on behalf of the petitioner.  It is also submitted that a majority of the communications, and the manner in which the petitioner kept on negotiating and falsely assuring the removal of defects, is borne out from the documents on record.  The facts therefore constitute a clear continuing cause of action, and these facts cumulatively establish that the injury was continuing in the circumstances where the petitioner kept on negotiating in a manner that establishes a continuing wrong.  The complainant was justified in these circumstances to finally file the complaint on 02.05.2007.
25. In order to appreciate these submissions and counter-submissions, a brief layout of the correspondence that ensued between the petitioner and the respondent/complainant in the following chart would indicate the negotiations that went on through communications between 2002 till the date of the filing of the complaint.  The same is extracted hereunder:

26. These communications have been brought on record through the additional documents that have been filed in terms of the order dated 17.01.2017 passed by this Commission.  These documents were in the shape of evidence already produced before the District Commission.  A perusal of the said records also needs a description.  They include the xerox copy of the purchase bill dated 16.08.2022, the Full Service Maintenance Agreement (FSMA) dated 24.03.2003 and the communications that ensued after the complaints were made.  The date chart given hereinabove is supported by the emails on record that were exchanged between M/s Gestetner and the respondent/ complainant.  It also reflects that the company intimated about the visit of one Mr. Saxena to attend to the grievances raised way back in June 2003 itself.  From the mail dated 22.04.2003 it appears that information was sent about the Banding and Hollow effect being defective.  The complainant wrote a mail on 22.04.2003 for replacement and the unsuccessful status of the working of the machine.  Responses were shown by the company on 16.06.2003 but according to the complainant it was of no avail at all.
27. On 22.08.2003 the petitioner wrote back a letter again offering a sum of Rs.6,00,000/- to compensate as alleged and it was termed as final offer to the complainant.  A copy of the said letter is extracted hereunder:

28. The complainant therefore on 31.07.2003 wrote a letter intimating that the complaints that were attended to did not result in rectification of the errors and deficiencies and the machine was not working satisfactorily at all. In this regard, the complainant made it known to the petitioner that he had suffered a loss of Rs.12,63,943/- and sought refund once again.  This letter had been sent against the offer of the petitioner company to take a lump-sum amount of Rs.6,00,000/- to finally settle the dispute.
29. The complainant did not accept the said offer and intimated that there was a serious problem with the component “Fiery” which triggers the rollers of the machine and was lying shutdown.  The petitioner interpreted the said letter to mean that the complainant had decided not to return the machine wilfully but acknowledged the breakdown of the machine for a chronic reason that was the failure of the Fiery.  They sent a reply on 29.08.2003 which is interesting to read, inasmuch as after acknowledging the said chronic defect, they also offered and proposed to reduce the maintenance charges under the FSMA agreement to Rs.7.50 per copy “to compensate the complainant for any loss that the complainant may have suffered on account of such abnormal breakdown”.  The letter dated 29.08.2003 is extracted hereunder:

30. The complainant responded to the same through his letter dated 05.09.2003 insisting that the reduced rates of maintenance should be kept at Rs.7/-.  It was further intimated that the collecting tray of the machine seems to have been broken by the engineers who attended to the machine and the same deserves to be replaced at the earliest.  It was again intimated by the complainant on 30.09.2003 that the front door and the copy collecting tray that were broken by the attending engineers needed to be replaced on an immediate basis.
31. Since the petitioner did not attend to these requests, the complainant straightaway wrote a letter to Ricoh Company at Japan and some communications of replacement of parts etc. were exchanged.  The complaints were again lodged with the following faults vide letter dated 11.02.2004:

“1. Drops falling upon oil on copy/Print.

2. Smudges on Oil Pad.

3. Fault in Edit [Control Display] [like Edit copy properly after edit than also correct measurements are not available.

4. Thee is noise from fuser.

5. RGB [Red, Green, Blue] mode print is issuing inferior quality print and same enclosed as sample for it.”

32. This was followed by another complaint on 17.02.2004 which is to the following effect:

“1. Standing lines appear in copy cum print

2. Drops falling upon Copy.

3. There is noise in fuser.

4. Copy of RGB Print image is fussy.”

33. Again on 04.06.2004 a complaint was made stating the defects to the following effect:

“1. Drops falling upon Copy.

2. Vertical and horizontal white lines appear in Copy cum print.

3. There is noise from machine [fuser].”

34. Again on 04.06.2004 the complaints were repeatedly registered indicating that the machine was almost dysfunctional resulting in sustained losses in this regard.  The letter dated 04.06.2004 narrates the same, indicating the defects and pointing out that there is no execution of any satisfactory repairs inspite of the promises made and the extended assurances.  This was followed again by a complaint dated 07.06.2004 intimating that none of the earlier complaints have been satisfactorily attended to and rectified.  To the same effect is the complaint dated 08.06.2004 followed by the complaint dated 09.06.2004.  It appears that during this period the Gestetner Company that was the original supplier amalgamated with Ricoh India Ltd. and this intimation was sent to the complainant on 30.06.2005.  According to the complainant, the machine remained unrepaired and unmaintained inspite of several attempts and assurances by the petitioner resulting in huge financial losses to the complainant.  This was again informed on 10.10.2006.
35. It was long thereafter that on 22.11.2006 the complainant received a reply expressing regret and apologies for the inconvenience caused on account of the malfunctioning of the machine.  It also acknowledged the specialist engineers having carried out extensive maintenance through the National Technical Specialist Mr. Anil Mehta with an assurance to ensure smooth and uninterrupted functioning of the machine.  The letter reflects continuity of the deficiencies as alleged by the complainant and is therefore extracted hereunder:

36. Instead of dealing with the complainant sympathetically, the petitioner company started raising bills of spare parts to which the complainant also responded by sending replies and the complainant again received a reply on 25.01.2007 from the petitioner which is extracted hereunder:

37. The complainant again sent a reminder with regard to the payments demanded as also the compliance of the maintenance agreement but having failed to get any response for either attending to the grievances or replacing the machine or even otherwise compensating the complainant, a legal notice was dispatched on 29.03.2007 where-after the complaint (Complaint Case No. 265 of 2007) was instituted on 02.05.2007 before the District Commission.   
38. The aforesaid communications as well as the responses clearly indicate that the colour xerox machine purchased by the complainant had been experiencing defects and deficiencies which were being reported from time to time demanding maintenance under the FSMA agreement as well as other terms and conditions thereunder but hardly of any avail.  The defects were repeatedly informed in the hope that the machine would revive but ultimately resulted in a dismal failure which according to the complainant was on account of the defective machine itself.  It is submitted that the letters that have been received, and have been extracted hereinabove, leave no room for doubt that the petitioner has admitted the defects in the machine. 
39. This continuous communication therefore was in relation to the injury caused and which persisted throughout this period.  The complaint was lodged on 02.05.2007 that was even otherwise within a period of two years from 02.05.2005.  The correspondence from 2003, 2004 and till 2007 demonstrates that it was the petitioner who had not been able to satisfactorily attend to the machine and remove its defects which were continuing and persisting.  This existed even prior to 2005 and even continued thereafter.  This was therefore a continuing cause of action and hence the complaint does not in any way get impeded by the bar of limitation as urged on behalf of the petitioner.  The judgment in the case of SBI v. B.S. Agriculture Industries (I) (Supra) would not arrest the limitation in the present case, inasmuch as the negotiations in order to rectify or compensate the complainant were continuing and were being negotiated but at the same time the machine did not operate successfully nor were the defects removed till 2005 or even thereafter till 2007.  The cause of action was therefore a continuing one as explained by the Apex Court in the case of Samruddhi Coop. Housing Society Ltd. v. Mumbai Mahalaxmi Construction (P) Ltd., (2022) 4 SCC 103 where while dealing with the analysis as to what would be a continuing cause of action, the Apex Court in paragraphs 11 to 18 held as under:  

11. The crux of the appeal revolves around the maintainability of the complaint and whether it is barred by limitation. Ncdrc held [Samruddhi Coop. Housing Society Ltd. v. Mumbai Mahalaxmi Construction (P) Ltd., 2018 SCC OnLine NCDRC 1711] that the cause of action arose when the municipal authorities asked the appellant to pay higher charges in the first instance and thus, a complaint should have been filed within two years of the accrual of the cause of action. The appellant however, has argued that the cause of action is of a continuing nature, since members of the appellant have continued paying higher charges as the respondent failed to provide the occupancy certificate.

12.  Section 24-A of the Consumer Protection Act, 1986 provides for the period of limitation period for lodging a complaint. A complaint to a consumer forum has to be filed within two years of the date on which the cause of action has arisen. In the instant case, the appellant has submitted that since the cause of action is founded on a continuing wrong, the complaint is within limitation.

13.  Section 22 of the Limitation Act, 1963 [“22. Continuing breaches and torts.—In the case of a continuing breach of contract or in the case of a continuing tort, a fresh period of limitation begins to run at every moment of the time during which the breach or the tort, as the case may be, continues.”] provides for the computation of limitation in the case of a continuing breach of contract or tort. It provides that in case of a continuing breach of contract, a fresh period of limitation begins to run at every moment of time during which the breach continues. This Court in Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan [Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan, 1959 Supp (2) SCR 476 : AIR 1959 SC 798] elaborated on when a continuous cause of action arises.

14.  Speaking for the three-Judge Bench, P.B. Gajendragadkar, J. (as the learned Chief Justice then was) observed that : (Balakrishna case [Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan, 1959 Supp (2) SCR 476 : AIR 1959 SC 798] , AIR p. 807, para 31)

“31. … Does the conduct of the trustees amount to a continuing wrong under Section 23? That is the question which this contention raises for our decision. In other words, did the cause of action arise de die in diem as claimed by the appellants? In dealing with this argument it is necessary to bear in mind that Section 23 refers not to a continuing right but to a continuing wrong. It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury. It is only in regard to acts which can be properly characterised as continuing wrongs that Section 23 can be invoked.”

The Court held that the act of the trustees to deny the rights of Guravs as hereditary worshippers and dispossessing them through a decree of the court was not a continuing wrong. Although the continued dispossession caused damage to the appellants, the injury to their rights was complete when they were evicted.

15.  In CWT v. Suresh Seth [CWT v. Suresh Seth, (1981) 2 SCC 790 : 1981 SCC (Tax) 168] , a two-Judge Bench of this Court dealt with the question of whether a default in filing a return under the Wealth Tax Act amounted to a continuing wrong. E.S. Venkataramiah, J. (as the learned Chief Justice then was) observed that : (SCC pp. 798-99, para 11)

“11. … The distinctive nature of a continuing wrong is that the law that is violated makes the wrongdoer continuously liable for penalty. A wrong or default which is complete but whose effect may continue to be felt even after its completion is, however, not a continuing wrong or default. It is reasonable to take the view that the court should not be eager to hold that an act or omission is a continuing wrong or default unless there are words in the statute concerned which make out that such was the intention of the legislature. In the instant case whenever the question of levying penalty arises what has to be first considered is whether the assessee has failed without reasonable cause to file the return as required by law and if it is held that he has failed to do so then penalty has to be levied in accordance with the measure provided in the Act. When the default is the filing of delayed return the penalty may be correlated to the time lag between the last day for filing it without penalty and the day on which it is filed and the quantum of tax or wealth involved in the case for purposes of determining the quantum of penalty but the default however is only one which takes place on the expiry of the last day for filing the return without penalty and not a continuing one. The default in question does not, however, give rise to a fresh cause of action every day. Explaining the expression “a continuing cause of action” Lord Lindley in Hole v. Chard Union [Hole v. Chard Union, (1894) 1 Ch 293 : 63 LJ Ch 469 : 70 LT 52 (CA)] observed : (Ch pp. 295-96)

‘… What is a continuing cause of action? Speaking accurately, there is no such thing; but what is called a continuing cause of action is a cause of action which arises from the repetition of acts or omissions of the same kind as that for which the action was brought.’ ”

16.  The Court further provided illustrations of continuous wrongs : (Suresh Seth case [CWT v. Suresh Seth, (1981) 2 SCC 790 : 1981 SCC (Tax) 168] , SCC p. 800, para 17)

“17. The true principle appears to be that where the wrong complained of is the omission to perform a positive duty requiring a person to do a certain act the test to determine whether such a wrong is a continuing one is whether the duty in question is one which requires him to continue to do that act. Breach of a covenant to keep the premises in good repair, breach of a continuing guarantee, obstruction to a right of way, obstruction to the right of a person to the unobstructed flow of water, refusal by a man to maintain his wife and children whom he is bound to maintain under law and the carrying on of mining operations or the running of a factory without complying with the measures intended for the safety and well-being of workmen may be illustrations of continuing breaches or wrongs giving rise to civil or criminal liability, as the case may be, de die in diem.”

17.  In M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das [M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das, (2020) 1 SCC 1] , a Constitution Bench of this Court [of which one of us (D.Y. Chandrachud, J.) was a part] examined the precedents with regard to a continuing wrong. The Court observed that : (SCC p. 369, para 343)

“343. The submission of Nirmohi Akhara is based on the principle of continuing wrong as a defence to a plea of limitation. In assessing the submission, a distinction must be made between the source of a legal injury and the effect of the injury. The source of a legal injury is founded in a breach of an obligation. A continuing wrong arises where there is an obligation imposed by law, agreement or otherwise to continue to act or to desist from acting in a particular manner. The breach of such an obligation extends beyond a single completed act or omission. The breach is of a continuing nature, giving rise to a legal injury which assumes the nature of a continuing wrong. For a continuing wrong to arise, there must in the first place be a wrong which is actionable because in the absence of a wrong, there can be no continuing wrong. It is when there is a wrong that a further line of enquiry of whether there is a continuing wrong would arise. Without a wrong there cannot be a continuing wrong. A wrong postulates a breach of an obligation imposed on an individual, whether positive or negative, to act or desist from acting in a particular manner. The obligation on one individual finds a corresponding reflection of a right which inheres in another. A continuing wrong postulates a breach of a continuing duty or a breach of an obligation which is of a continuing nature. …

Hence, in evaluating whether there is a continuing wrong within the meaning of Section 23, the mere fact that the effect of the injury caused has continued, is not sufficient to constitute it as a continuing wrong. For instance, when the wrong is complete as a result of the act or omission which is complained of, no continuing wrong arises even though the effect or damage that is sustained may enure in the future. What makes a wrong, a wrong of a continuing nature is the breach of a duty which has not ceased but which continues to subsist. The breach of such a duty creates a continuing wrong and hence a defence to a plea of limitation.”

18.  A continuing wrong occurs when a party continuously breaches an obligation imposed by law or agreement. Section 3 of the MOFA imposes certain general obligations on a promoter. These obligations inter alia include making disclosures on the nature of title to the land, encumbrances on the land, fixtures, fittings and amenities to be provided, and to not grant possession of a flat until a completion certificate is given by the local authority. The responsibility to obtain the occupancy certificate from the local authority has also been imposed under the agreement to sell between the members of the appellant and the respondent on the latter.”

40. A perusal of the ratio of the aforesaid decision would demonstrate that the principles enunciated therein apply on the facts of the present case where the cause of action is a continuing one in the light of what has been narrated hereinabove.  Thus, on the facts of the present case there was a continuing cause of action and even otherwise with the defects persisting in the machine and the negotiations on, there is no delay in the filing of the complaint and hence the conclusion drawn by the District Commission on this issue in para-14 of the order dated 28.02.2011 needs to be affirmed.
41. There is one more decision which needs reference, namely that where such negotiations continue, as presently involved, the ratio of the judgment in the case of Shree Ram Mills Ltd. v. Utility Premises (P) Ltd., (2007) 4 SCC 599, paragraph-30, needs to be referred which is extracted hereunder:
42.  Once we have come to the conclusion that the learned designated Judge was right in holding that there was a live issue, the question of limitation automatically gets resolved. This Court in Hari Shanker Singhania case [(2006) 4 SCC 658] held that till such time as the settlement talks are going on directly or by way of correspondence no issue arises and with the result the clock of limitation does not start ticking. This Court observed: (SCC pp. 667-68, para 24)

“24. Where a settlement with or without conciliation is not possible, then comes the stage of adjudication by way of arbitration. Article 137, as construed in this sense, then as long as parties are in dialogue and even the differences would have surfaced it cannot be asserted that a limitation under Article 137 has commenced. Such an interpretation will compel the parties to resort to litigation/arbitration even where there is serious hope of the parties themselves resolving the issues. The learned Judges of the High Court, in our view have erred in dismissing the appellants' appeal and affirming the findings of the learned Single Judge to the effect that the application made by the appellants under Section 20 of the Act, 1940 asking for reference was beyond time under Article 137 of the Limitation Act. … As already noticed, the correspondence between the parties, in fact, bears out that every attempt was being made to comply with and carry out the reciprocal obligations spelt out in the agreement between the parties.”

These observations would clearly suggest that where the negotiations were still on, there would be no question of starting of the limitation period.”

42. Thus, a combined reading of the aforesaid two judgments confirms the view taken by us and accordingly the argument raised by the petitioner on this count has to be rejected.
43. Coming to the next issue as to whether the complainant is a consumer or not, the complainant had come out with a clear case that he had purchased the xerox machine to keep himself self-employed and earn his livelihood which fact was stated and has been asserted at several places. Thus, the initial burden had been discharged by the complainant and therefore the onus shifted on the petitioner to dislodge the said burden.  It was asserted orally that the complainant had purchased another machine for running his business of M/s Rajesh Xerox Ltd. and not only this he was earning profits, as such the complainant was running a commercial venture.  The question of discharging the onus of establishing that the business was being run for a commercial purpose and that the goods, namely the colour photocopier machine, had been purchased for a commercial venture lay on the petitioner who has not brought forward any evidence either substantially or of any cogent value to dislodge the assertion of the complainant that it was meant for self-employment to earn his livelihood. The failure to discharge this onus by the petitioner therefore cannot nonsuit the complainant on the ground that the complainant is not a consumer.  The duty to discharge such an onus is on the service provider as has been held by the Apex Court in the case of Shriram Chits (India) (P) Ltd. v. Raghachand Associates, 2024 SCC OnLine SC 851.
44. Apart from this, there is no evidence to demonstrate that the venture of the complainant was for a commercial purpose.  This aspect has been dealt with by referring to earlier decisions and other authorities by the Apex Court in the latest judgment in the case of Rohit Chaudhary and Anr. Vs. Vipul Limited, (2024) 1 SCC 8.  The Apex Court while dealing with this issue has extensively dealt with the subject in paragraphs 11 to 20 thereof.  The same are extracted hereunder:
45.  The National Commission at the outset considered the question as to whether the appellants are “consumer” and answered in the negative. It has been held that the appellants would not be entitled to seek redressal of their grievance under the provisions of the Act. On the basis of the statement of the complainant made before it, the Commission has arrived at a conclusion that Complainant 1 was running a dealership business of M/s Reliance Industries for their livelihood and they are also engaged in the business of investment in property. Hence, the commercial space booked by the complainants cannot be said to be for the purposes of earning livelihood by self-employment or in other words the appellants are not consumers as defined under Section 2(1)(d) of the Act.

“11. The National Commission at the outset considered the question as to whether the appellants are “consumer” and answered in the negative. It has been held that the appellants would not be entitled to seek redressal of their grievance under the provisions of the Act. On the basis of the statement of the complainant made before it, the Commission has arrived at a conclusion that Complainant 1 was running a dealership business of M/s Reliance Industries for their livelihood and they are also engaged in the business of investment in property. Hence, the commercial space booked by the complainants cannot be said to be for the purposes of earning livelihood by self-employment or in other words the appellants are not consumers as defined under Section 2(1)(d) of the Act.

12. In this background it would be necessary to note Section 2(1)(d) of the Act and it reads as under:

​

“2. (1)(d) “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

(ii) [Substituted by Act 50 of 1993, Section 2 (w.e.f. 18-6-1993).] [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 [Substituted by Act 50 of 1993, Section 2 (w.e.f. 18-6-1993).] [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 [Inserted by Act 62 of 2002, Section 2 (w.e.f. 15-3-2003).] [but does not include a person who avails of such services for any commercial purpose];”

13.  The aforesaid definition has received the attention of the National Commission in Synco Textiles (P) Ltd. v. Greaves Cotton & Co. Ltd. [Synco Textiles (P) Ltd. v. Greaves Cotton & Co. Ltd., 1990 SCC OnLine NCDRC 3 : (1991) 1 CPJ 499] and approved by this Court in Lilavati Kirtilal Mehta Medical Trust v. Unique Shanti Developers [Lilavati Kirtilal Mehta Medical Trust v. Unique Shanti Developers, (2020) 2 SCC 265 : (2020) 1 SCC (Civ) 320] , whereunder this Court has followed the principles laid down in Laxmi Engg. Works v. P.S.G. Industrial Institute [Laxmi Engg. Works v. P.S.G. Industrial Institute, (1995) 3 SCC 583] whereunder it came to be held : (Laxmi Engg. Works case [Laxmi Engg. Works v. P.S.G. Industrial Institute, (1995) 3 SCC 583] , SCC pp. 591-96 & 599, paras 10-11, 15 & 21)

​“10. A review of the provisions of the Act discloses that the quasi-judicial bodies/authorities/agencies created by the Act known as District Forums, State Commissions and the National Commission are not courts though invested with some of the powers of a civil court. They are quasi-judicial tribunals brought into existence to render inexpensive and speedy remedies to consumers. It is equally clear that these forums/commissions were not supposed to supplant but supplement the existing judicial system. The idea was to provide an additional forum providing inexpensive and speedy resolution of disputes arising between consumers and suppliers of goods and services. The forum so created is uninhibited by the requirement of court fee or the formal procedures of a court. Any consumer can go and file a complaint. Complaint need not necessarily be filed by the complainant himself; any recognised consumers' association can espouse his cause. Where a large number of consumers have a similar complaint, one or more can file a complaint on behalf of all. Even the Central Government and State Governments can act on his/their behalf. The idea was to help the consumers get justice and fair treatment in the matter of goods and services purchased and availed by them in a market dominated by large trading and manufacturing bodies. Indeed, the entire Act revolves round the consumer and is designed to protect his interest. The Act provides for “business-to-consumer” disputes and not for “business-to-business” disputes. This scheme of the Act, in our opinion, is relevant to and helps in interpreting the words that fall for consideration in this appeal.

11. . Now coming back to the definition of the expression “consumer” in Section 2(1)(d), a consumer means insofar as is relevant for the purpose of this appeal, (i) a person who buys any goods for consideration; it is immaterial whether the consideration is paid or promised, or partly paid and partly promised, or whether the payment of consideration is deferred; (ii) a person who uses such goods with the approval of the person who buys such goods for consideration; (iii) but does not include a person who buys such goods for resale or for any commercial purpose. The expression “resale” is clear enough. Controversy has, however, arisen with respect to meaning of the expression “commercial purpose”. It is also not defined in the Act. In the absence of a definition, we have to go by its ordinary meaning. “Commercial” denotes “pertaining to commerce” (Chamber's Twentieth Century Dictionary); it means ‘connected with, or engaged in commerce; mercantile; having profit as the main aim’ (Collins English Dictionary) whereas the word “commerce” means ‘financial transactions especially buying and selling of merchandise, on a large scale’ (Concise Oxford Dictionary). The National Commission appears to have been taking a consistent view that where a person purchases goods “with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit” he will not be a “consumer” within the meaning of Section 2(1)(d)(i) of the Act. Broadly affirming the said view and more particularly with a view to obviate any confusion — the expression “large scale” is not a very precise expression — Parliament stepped in and added the Explanation to Section 2(1)(d)(i) by the Ordinance/Amendment Act, 1993. The Explanation excludes certain purposes from the purview of the expression “commercial purpose” — a case of exception to an exception. Let us elaborate : a person who buys a typewriter or a car and uses them for his personal use is certainly a consumer but a person who buys a typewriter or a car for typing others' work for consideration or for plying the car as a taxi can be said to be using the typewriter/car for a commercial purpose. The Explanation however clarifies that in certain situations, purchase of goods for “commercial purpose” would not yet take the purchaser out of the definition of expression “consumer”. 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 is yet a “consumer”. In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, he does not cease to be a consumer. In other words, if the buyer of goods uses them himself i.e. by self-employment, for earning his livelihood, it would not be treated as a “commercial purpose” and he does not cease to be a consumer for the purposes of the Act. The Explanation reduces the question, what is a “commercial purpose”, to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the Explanation viz. “uses them by himself”, “exclusively for the purpose of earning his livelihood” and “by means of self-employment” make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself, by employing himself for earning his livelihood. A few more illustrations would serve to emphasise what we say. A person who purchases an autorickshaw to ply it himself on hire for earning his livelihood would be a consumer. Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer. A person who purchases a lathe machine or other machine to operate it himself for earning his livelihood would be a consumer. (In the above illustrations, if such buyer takes the assistance of one or two persons to assist/help him in operating the vehicle or machinery, he does not cease to be a consumer.) As against this a person who purchases an autorickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person would not be a consumer. This is the necessary limitation flowing from the expressions “used by him”, and “by means of self-employment” in the Explanation. The ambiguity in the meaning of the words “for the purpose of earning his livelihood” is explained and clarified by the other two sets of words.

                                          ***

15. In LDA v. M.K. Gupta [LDA v. M.K. Gupta, (1994) 1 SCC 243] the question was whether a public authority engaged in constructing and selling houses can be said to be rendering a “service” and whether the person purchasing such houses can be called a “consumer” within the meaning of the said definition. While answering the question in the affirmative, a Bench of this Court (Kuldip Singh and R.M. Sahai, JJ.) also examined the scheme and object of the Act and the ambit of the definition of the expression “consumer”. The following observations are apposite : (SCC pp. 251 & 253-54, paras 2 & 3)

‘2. … To begin with the Preamble of the Act, which can afford useful assistance to ascertain the legislative intention, it was enacted, “to provide for the protection of the interest of consumers”. Use of the word “protection” furnishes key to the minds of makers of the Act. Various definitions and provisions which elaborately attempt to achieve this objective have to be construed in this light without departing from the settled view that a Preamble cannot control otherwise plain meaning of a provision. In fact the law meets long-felt necessity of protecting the common man from such wrongs for which the remedy under ordinary law for various reasons has become illusory

                                                 ***

3. … The word “consumer” is a comprehensive expression. It extends from a person who buys any commodity to consume either as eatable or otherwise from a shop, business house, corporation, store, fair price shop to use of private or public services. In Oxford Dictionary a consumer is defined as, ‘a purchaser of goods or services’. In Black's Law Dictionary it is explained to mean, “one who consumes. Individuals who purchase, use, maintain, and dispose of products and services. A member of that broad class of people who are affected by pricing policies, financing practices, quality of goods and services, credit reporting, debt collection, and other trade practices for which State and Federal Consumer Protection Laws are enacted.” The Act opts for no less wider definition. It reads as under:

“2. (1)(d) “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; o

(ii) 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;

Explanation.—For the purposes of sub-clause (i), “commercial purpose” does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;”

It is in two parts. The first deals with goods and the other with services. Both parts first declare the meaning of goods and services by use of wide expressions. Their ambit is further enlarged by use of inclusive clause. For instance, it is not only purchaser of goods or hirer of services but even those who use the goods or who are beneficiaries of services with approval of the person who purchased the goods or who hired services are included in it. The legislature has taken precaution not only to define “complaint”, “complainant”, “consumer” but even to mention in detail what would amount to unfair trade practice by giving an elaborate definition in clause (r) and even to define “defect” and “deficiency” by clauses (f) and (g) for which a consumer can approach the Commission. The Act thus aims to protect the economic interest of a consumer as understood in commercial sense as a purchaser of goods and in the larger sense of user of services.’

****

21. We must, therefore, hold that:

​(i) The Explanation added by the Consumer Protection (Amendment) Act 50 of 1993 (replacing Ordinance 24 of 1993) with effect from 18-6-1993 is clarificatory in nature and applies to all pending proceedings.

​(ii) Whether the purpose for which a person has bought goods is a “commercial purpose” within the meaning of the definition of expression “consumer” in Section 2(1)(d) of the Act is always a question of fact to be decided in the facts and circumstances of each case.

(iii) A person who buys goods and uses them himself, exclusively for the purpose of earning his livelihood, by means of self-employment is within the definition of the expression “consumer”.”

14.  A plain reading of the expression “consumer” indicates that any person who buys any goods for consideration which has been paid or promised or partly paid and partly promised under any system of deferred payment and includes any user of such goods other than the person who buy such goods. 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 or services for resale or for any commercial purpose. It is amply clear from the above definition that Parliament has excluded from the scope of “consumer” for igniting proceedings under the Act, a person who obtains goods or services for re-sale or for any commercial purpose. Going by the plain dictionary meaning of the words used in the definition section the intention of Parliament must be understood to be to exclude from the scope of the expression “consumer” any person who buys goods for the purpose of their being used in any activity engaged on a large scale for the purpose of making profit. The words “for any commercial purpose” must be understood as covering the cases other than those of resale of the goods. Thus, it is obvious, that Parliament intended to exclude from the scope of definition not merely persons who obtain goods for resale but also those who purchase goods with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit. Thus, persons buying goods either for resale or for use in large scale profit-making activity will not be a consumer entitled to protection under the Act, which would be a plain interpretation of this definition clause. The intention of Parliament as can be gathered from the definition section is to deny the benefits of the Act to persons purchasing goods either for purpose of resale or for the purpose of being used in profit-making activity engaged on a large scale.

15.  The expression “commercial purpose” has not been defined under the Act. In the absence thereof we have to go by its ordinary meaning. “Commercial” denotes “pertaining to commerce” (Chamber's Twentieth Century Dictionary); it means “connected” with or engaged in commerce; mercantile; “having profit as the main aim” (Collin's English Dictionary); relate to or is connected with trade and traffic or commerce in general, is occupied with business and commerce.

16.  The Explanation [added by Consumer Protection (Amendment) Act 50 of 1993 replacing Ordinance 24 of 1993 w.e.f. 18-6-1993] excludes certain purposes from the purview of the expression “commercial purpose” — a case of explanation to an exception to amplify this definition by way of an illustration would certainly clear the clouds surrounding such interpretation. For instance, a person who buys a car for his personal use would certainly be a consumer, but if purchased for plying the car for commercial purposes, namely, as a taxi, it can be said that it is for a commercial purpose. 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”.

17.  This Court in Lilavati Kirtilal Mehta Medical Trust v. Unique Shanti Developers [Lilavati Kirtilal Mehta Medical Trust v. Unique Shanti Developers, (2020) 2 SCC 265 : (2020) 1 SCC (Civ) 320] , has held that a straitjacket formula cannot be adopted in every case and the broad principles which can be curled out for determining whether an activity or transaction is for a commercial purpose would depend on facts and circumstances of each case.

18.  Thus, if the dominant purpose of purchasing the goods or services is for a profit motive and this fact is evident from the record, such purchaser would not fall within the four corners of the definition of “consumer”. On the other hand, if the answer is in the negative, namely, if such person purchases the goods or services is not for any commercial purpose and for one's own use, it cannot be gainsaid even in such circumstances the transaction would be for a commercial purpose attributing profit motive and thereby excluding such person from the definition of “consumer”.

19.  When there is an assertion in the complaint filed before the Consumer Court or Commission that such goods are purchased for earning livelihood, such complaint cannot be nipped at the bud and dismissed. Evidence tendered by parties will have to be evaluated on the basis of pleadings and thereafter conclusion be arrived at. Primarily it has to be seen as to whether the averments made in the complaint would suffice to examine the same on merits and in the event of answer being in the affirmative, it ought to proceed further. On the contrary, if the answer is the negative, such complaint can be dismissed at the threshold.

20.  Thus, it would depend on facts and circumstances of each case. There cannot be any defined formula with mathematical precision to examine the claims for non-suiting the complainant on account of such complaint not falling within the definition of the expression “consumer” as defined under Section 2(1)(d).”   

45. Applying the ratio as culled out hereinabove, there is no material to come to the conclusion that the complainant is running a commercial venture for generating profits and is not a purchase made by him for earning his livelihood through self-employment. The argument therefore advanced on this score has rightly been negatived by the District Commission in paragraph-16 of the order that has been affirmed by the State Commission and we are in entire agreement with the same.  The submission of the learned counsel for the petitioner on this score is therefore rejected.  It goes without saying and is undisputed that the machine had been purchased by the complainant with the aid of a loan taken from a bank for setting up his venture.
46. The third issue is with regard to the contention raised by the learned counsel for the petitioner that there was no manufacturing defect as understood in the legal context for which the learned counsel has relied on the following 6 judgments:

“1.      C.N. Anantharam vs Fiat India Ltd. and ORs. etc. etc. AIR 2011 SC 523.

2.       Lovely Autos vs Harmesh Lal and Anr I (2007) CPJ 312 (NC).

3.       Kumari Namrata Singh Daughter of Shri O.P. Singh Chakradhar Nagar, Banglapara Raiga, Chhattisgarh vs Manager Indus 2012 (95) ALR 829, 2012 (2) UC 1479.

4.       Koren Business Systems Ltd. and Ors vs Patel Soma bhai Chhaganlal 2(2002) CPJ 201.

5.       Smt. Jyoti Agrawal vs. Branch Manager, Kores India Ltd. and Anr MANU/CF/0032/2002.

6.       Maruti Udyog Ltd. vs Susheel Kumar Gabgotra and Anr. AIR 2006 SC 1586.

47. Coupled with this argument is also the contention raised that the expert opinion of the company engineer did not establish any manufacturing defect and even otherwise the complainant did not lead any expert evidence to confirm any manufacturing defect in the machine.  On this issue, learned counsel for the petitioner has relied on the following 5 decisions:

“1.      Chandeshwar Kumar vs Tata Engineering Loco Motive Co. Ltd. and Anr. I(2007) CPJ 2 (NC).

2.       Lovely Autos vs Harmesh Lal and Anr I(2007)CPJ 312 (NC).

3.       K. Kumar Advisor (engineering) Maruti Udyog Limited vs A.S. Narayan Rao and Ors. I(2010)CPJ19(NC).

4.       Sushila Automobiles Pvt. Ltd. through its Manager Shri Kamlesh Kumar Singh vs Dr. Birendra Narain Prasad and Ors. III(2010) CPJ 130 (NC).

5.       Tata Eng. And Locomotive Co. Ltd. and Anr. Vs Sunil Bhasin and Anr. II(2008) CPJ 111 (NC).

48. In this regard, it is relevant to refer to the steps taken before the District Commission.  The District Commission had called for the names of experts but it was the petitioner who raised an objection that it is only the engineer/expert of the company which can physically verify and issue any report and no outside technician can be permitted to do so.  The complainant in these circumstances moved an application on 27.10.2009 which is extracted hereunder:

49. A fee of Rs.2000/- was required to be paid and a reply was given by the petitioner to the said application nominating either Mr. Ingit Patel or Mr. Rajendra Patel as expert engineer to make the inspection.  The reply of the petitioner dated 13.11.2009 is extracted hereunder:

50. The complainant accordingly deposited the amount of Rs.2000/- for the inspection on which an order was passed on 23.11.2009 by the Court which is extracted hereunder:

“Read the duplicate and its reply filed by other side suggested two names to which applicant has no objection hence Mr. Rajendra Patel is appointed as commissioner to submit his expert opinion/Report as prayed the applicant to deposit Rs.2000/- towards charges/remuneration of Mr. Patel at first instance.”

51. Accordingly, Mr. Rajendra Patel, the Senior Custom Engineer of the petitioner, visited and carried out the inspection and submitted a report that is extracted hereunder:

52. A perusal thereof confirms that the machine was not operational since 31.01.2007.  The inspection had been carried out on 19.12.2009.  The operation panel was admitted and necessary settings could not be made, yet the machine had been able to take out copies.  Surprisingly enough about 200 full colour printouts were taken in order to assess the operational status of the machine which could have been done by taking out a few copies only.  Nonetheless, the report also indicates that by 2009, which was seven years after the purchase, 1,70,536 copies/printouts had been taken out form the machine.  This aspect of the inspection report needs to be noted as learned counsel for the complainant has urged that the number of copies in a span of seven years is absolutely disproportionate to its capacity of earnings, inasmuch as in a span of 84 months these copies if mathematically divided comes to approximately 2030 copies a month which is not even 5200 sheets a day.  Learned counsel for the complainant has urged that the EMI of the loan taken was Rs.30,000/- per month and the annual maintenance charges were Rs.3,50,000/-.  Compared to the output recorded by the expert and the approximate expenses of the EMI instalments and the maintenance charges speaks volume that the machine never earned any profit and rather incurred losses.
53. The inspection report was objected to and it was also stated that the machine was not operating successfully and the report in effect indicating the persisting defects.  The reply and objection to the expert opinion report filed on 11.02.2010 is extracted hereunder:

54. A perusal of these documents and the manner in which the expert came to be appointed clearly reflects that firstly the complainant was not given the opportunity to lead any independent expert evidence and was rather compelled by the petitioner, coupled with an order of the Court to allow an inspection by the engineer of the company.  Secondly, the report itself is termed in the shape of just conclusions with no indication of the defects and the deficiencies that were required to be pointed out which has been simply narrated as machine not operational since 31.01.2007.  There is no firm opinion about the defects which had been pointed out and had been admitted way back in the letters written by Gestetner Company regarding the chronic reason of the failure of the Fiery as mentioned in the letter dated 29.08.2003.  Nonetheless, the said expert opinion was available which in a way does not declare the machine to be defective free.  In the said background, even if the complainant had not been able to produce any other expert evidence, the evidence of the petitioner demonstrated the persisting defects and defaults that were indicated by them and was further substantiated by the replacements made by them for which they were raising charges.  The expert opinion therefore indicated the deficiencies that had been continuing as pointed out by the complainant.  The decisions therefore relied on by the petitioner to contend that there was lack of expert opinion to demonstrate defects do not come to the aid of the petitioner so as to demolish the allegations made by the complainant.
55. The aforesaid facts also demonstrate that the defects were continuing since the inception of the machine and therefore to say that there was no manufacturing defect, does not appeal to reason.  The defect in the Fiery was located long back and not only this the various deficiencies pointed out from time to time amounted to deficiencies in the services despite a heavy maintenance service agreement for a sum of Rs.3,50,000/-. Thus, the deficiencies were relatable to the manufacturing defects and were even otherwise were an outcome of the deficient services of the petitioner who failed to rectify the errors in the machine that kept on recurring from time to time.
56. It is in this background that the District Commission rightly came to the conclusion that there were deficiencies in service and the same has also been affirmed by the State Commission which in our opinion does not suffer from any factual infirmity or perversity as alleged on behalf of the petitioner.
57. Coming to the issue of quantum of compensation awarded, it is evident that the District Commission had directed the petitioner to take back the machine and to pay its value of Rs.16,65,000/- together with 9% interest coupled with Rs.5000/- for mental agony and Rs.2000/- as costs for litigation.  The State Commission on the other hand has proceeded to reduce the said amount treating it to be on higher side keeping in view the fact that the complainant had also used the said machine for more than five years.  Accordingly, it deducted 30% of depreciation and reduced the amount by Rs.5,00,000/- directing a payment of Rs.11,65,000/- with interest @ 9%.
58. The complainant did not question the correctness of this reduction by challenging the same but during the course of arguments as noted above learned counsel for the complainant/respondent seems to be reasonable in her contention that even assuming that 1,70,536 copies were prepared since the purchase in a period of seven years (84 months) the same does not match with the proportion of the earning capacity of the machine and has hardly rendered any profits on a rough approximation.  Nonetheless, she contends that there is no necessity to further dilute the compensation awarded by the State Commission with which we entirely agree.
59. There is yet another fact which needs to be mentioned at this stage.  This revision petition was decided on 07.03.2016 in the absence of the respondent complainant by passing the following order:

       “DR. S.M. KANTIKAR,  MEMBER 

1. Both the fora decided against the Petitioner / Opposite Party and allowed the complaint on the basis that the Xerox machine had manufacturing defects.  The District Forum directed the OP to take back the machine from the complainant and pay Rs.16,65,000/- along with interest from the date of filing of the complaint.  Whereas, the State Commission modified the order and directed the OP to pay Rs.11,65,000/- with interest @ 9% p.a. from the filing of the complaint.

2. Aggrieved by the order of State Commission, the OP filed this revision.

3. We have heard the counsel for the petitioner.  None present for the respondent / complainant despite service.  Therefore, the complainant is proceeded exparte.  Counsel for the petitioner submitted that the complainant had used this Xerox machine for more than five years.  There is no cause of action.  As per the direction of District Forum, the Xerox machine was assessed by the Court Commissioner at the business premises of the complainant, on 19.12.2009.  There was a physical damage of the touch screen of the Xerox machine.  About 200 copies were taken in presence of both the parties.  As per the inspection report, about 1,70,536 copies were taken from the said machine since installation.

4. We have perused the inspection report dated 19.12.2009.  It is noted that the machine was not operational, since 31.1.2007.  The machine was purchased on 18.06.2002.  Therefore, during the period of five years, only 1,70,535 copies were taken.  It clearly goes to show, that less than 35000 copies were prepared in a year, i.e. less than 3000 copies per month.  In our view, the quantum of copies is far less than expected utility.  It should be borne in mind that, the complainant is running this business for earning his livelihood.  He had purchased the said machine by borrowing a loan from HDFC bank and was paying instalments.

5. The machine was in use for 5 years.  There is no cogent evidence to prove that, there was manufacturing defect.  Both the fora directed the OPs to refund the amount, however, we are of considered view that, the award is on a very higher side, without proper justification.  The complainant cannot enjoy fruits on both the counts.  He is using machines and there is nothing on record that after filing the complaint, whether he was taking the copies or not.

6. Therefore, we modify the order of State Commission by reducing the compensation to Rs.3,00,000/-, which is just and proper in this case.  Also, in the interest of justice, we direct the OP to rectify and repair the machine for proper functioning and give further warranty of six months.  Opposite Party shall pay Rs.3,00,000/- to the complainant within 60 days from the date of receipt of this order, otherwise it will carry interest @ 9% per annum till its realization.”

60. The complainant challenged the said order before the Apex Court in Special Leave to Appeal No. 19979/2016 which was disposed of on 12.08.2016 with the following observations:

“It is submitted by Ms. Anushree Prashit Kapadia, learned counsel for the petitioner that vide communication dated 2.9.2015, notice was issued stating, inter alia, that the Circuit Bench sitting of the National Consumer Disputes Redressal Commission in view of the prevailing circumstances stand deferred and intimation for hearing of the aforesaid matter at the Principal seat of this Commission at New Delhi would be intimated in due course, but no notice was issued for final hearing of revision but only of I.A. No. 1379 of 2016.  It is urged by her that when notice was issued for hearing of the I.A., the revision petition could not have been disposed of on merits.

Keeping in view the aforesaid aspect, we permit the petitioner to file an application for review before the National Consumer Disputes Redressal Commission within three weeks hence.  If such an application is filed, it shall be dealt with on its own merits.  In case the review application is dismissed, liberty is granted to the petitioner to challenge the main order as well as the order passed in review.

The special leave petition is accordingly disposed of.”

61. The complainant accordingly filed a Review Application No. 239 of 2016 for setting aside the order dated 07.03.2016.
62. In between the petitioner had sent a letter to the complainant on 17.06.2016 offering replacement of the machine.  The said letter is reproduced hereunder and is on record of the Review Application referred to hereinabove:

“ANNEXURE P-5

Richoh

imagine, change.

RICOH INDIA LIMITED

Sakar IV, Ground Floor

(Rear Side) Opp. M.J. Library, Ellis Bridge

Ahmedabad-380006

India

Tel: +91-79-40267900, 26588709/2883

Fax - +91-79-26584927 / 40267999

Email : www.ricoh.co.in

DATE: 17.06.2016

TO,

Rajesh Xerox,

U – 29, Sumudra Complex,

Near Classic Hotel, Off. CG Road,

Ahmedabad, Gujarat.

Ref: Order dated 12.02.2016 passed by the Hon’ble National Commission in RICOH V. RAJESH XEROX (RP No. 1254 of 2015)

Dear Sir,

In reference to the order passed by the Hon’ble National Commission, wherein the Hon’ble Commission was pleased to allow the revision petition and reduced the compensation to Rs.3,00,000/- along with a direction to repair/rectify the machine and provide a warranty for further 6 months.

In compliance of the said order, as the machine in dispute being model number CS-213D is an old model and the same is not being manufactured anymore, we would like replace the same with Ricoh Mpc 2003.  The specifications of the same are enclosed with this letter.

Kindly confirm the same for the replacement machine to be provided to you at the earliest.

Thanking you

Sd/-

Richoh India Ltd.”

63. The Review Application was taken up and notices were issued on 20.09.2016 and the said application was allowed on 28.11.2016 by the following order:

“By this application, respondent applicant is seeking review of the order dated 07.03.2016. 

Learned counsel for the applicant has contended that impugned order is liable to recalled because it has been passed in violation of principle of natural justice.  Expanding on the argument, learned counsel for the applicant has contended that on 19.05.2015, notice of the revision petition filed by non applicant / petitioner as also the stay application was issued for 07.09.2015.  On 07.09.2015, matter was supposed to come up for hearing before the Circuit Bench at Ahmedabad.  The Circuit Bench, however, was cancelled and no sitting was held at Ahmedabad on 07.09.2015.  Thereafter, non applicant / petitioner slept over the matter and approached the Commission on 12.02.2016.  This Commission, thereafter vide order dated 12.02.2016 listed the matter for 19.02.2016 and directed the issue of notice to the respondent / applicant by speed post. On 19.02.2016 Commission in absence of the applicant heard arguments and modified the order of the State Commission by reducing the compensation.

It is argued that because of the procedure adopted, the applicant has been deprived of his right to make submissions, which amounts to violation of principal of natural justice.  Counsel for non applicant has contended that this Commission was right in passing ex parte order against applicant on 07.03.2016 as the applicant did not bother to put in appearance on 19.02.2016.

On careful consideration of record, we find merit in the contention of learned counsel for the applicant.  We accordingly recall the ex parte order dated 07.03.2016 and restore the revision petition to its original number.

List for argument on revision petition on 17.01.2017.”

64. Thus, it is evident that during the pendency of the review matter the letter dated 17.06.2016 had been received which also indicates that the company was prepared to comply with the order of this Commission dated 07.03.2016 and was practically agreeable to the terms thereof.  This is only to demonstrate that the petitioner had agreed to indemnify and compensate the complainant which is reflective of the loss and damage suffered by the complainant due to the deficiencies and defects as complained of.  However, since the said order has been reviewed, the same has been mentioned only for reference in respect of the consequential conduct of the petitioner.

    65.The revision petition therefore for all the reasons hereinabove does not call for any interference and the same is accordingly dismissed.