BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

    21^st DAY OF SEPTEMBER 2019

Complainant/s: -                           

M/s. O2 The Fitness

Head Office at No.1188/2,

2^nd Floor, 26^th Main,

Jayanagar 9^th Block, Bengaluru-69.

Rep.by its Proprietor

Sri.G.Anil Kumar

By Adv.Sri.S.K.Nagaraj

V/s

Opposite party/s:-    

1. M/s.Shagun Health

Products Pvt. Ltd.,

Regd., Office at No.55,

Basement, Embassy

Towers, Montieth

Road, Egmore,

Chennai-600008.

Rep. by its Managing Director

2. M/s.Shagun Health

Products Pvt. Ltd.,

Branch Office at No.10,

Ground Floor,

Castle Street,

Ashokanagar,

Bengaluru-28.

Rep. by its Branch Manager/

Authorized Signatory

By Advocates M/s.Law Nest

ORDER

SRI. S.L PATIL, PRESIDENT

The Complainant has filed this complaint U/s 12 of Consumer Protection Act 1986, seeking direction against the Opposite Party No.1 & 2 (herein after called as OPs) to replace the defective drive motor/invertor with a new one and make all five motorized treadmills functional or in the alternative to pay a sum of Rs.5 lakhs towards compensation; to pay cost and to award such other reliefs.

2. The brief facts of the complaint are as under:

The Complainant submits that, he is running Gym, Cardio and General Fitness centers. He has placed an order for purchase of Motorized Treadmills STEX-S16T (5 nos.) STEX-7520E (2 nos.) STEX-7520R (1 no.) STEX-7520U (1 no.) and Sports Rower 520. Accordingly OP supplied and installed the said items and given the warranty of two years. The Complainant further submits that, few months the said equipments were working properly and thereafter developed some defects and technical problems and the same were attended by the OP’s technicians upon lodging the complaint. Thereafter, the said equipments developed major problems and defects and as such the Complainant lodged a complaint with OP in the month of Nov 2014. OP’s technician visited on 05.11.14 and took the drive motor/invertor for checking and repairing which was under warranty of two years and supposed to expire on 16.01.15. Thereafter inspite of several phone calls, emails, personal requests and demands, OP not brought back the said items for the reasons best known to them. The Complainant enquired again with the OP in the month of Feb and March 2015. OP replied that the said drive motor/invertor is to be replaced with a new one and that the Complainant had to bear the cost for new one as the warranty had expired. The Complainant further submits that, OP has taken the said items for repair during the warranty period, hence they ought to have replaced it with new one free of cost. On account of negligence and deliberate delay on the part of OP, the Complainant has to undergo lot of hardship, mental agony and huge financial loss as it has to decline the membership of several customers who had come to enroll as members at the fitness center. The Complainant further submits that, it is a well settled principle and position of law that a purchaser of goods for even commercial purposes supported by warranty becomes consumer during warranty period. In this context, he issued legal notice dtd.31.03.15 which was duly served on OPs. Hence this complaint.

3. After issuance of notice, OPs did appear and filed version.  The sum and substance of the version is that OP is the authorized dealer for Stex Branded Gym Equipments manufactured by Stex Fitness. OP know the Complainant since 2008 as the OP supplied various types of fitness equipments to the Complainant’s centre. Out of the experience of tampering or manipulation of the gym equipments by unscrupulous persons, since the end of 2012 the manufacturer started manufacturing tamper proof equipments which also comes with security codes. If there is non-payment of the balance money, OP can lock the machine and machine cannot be operated till the outstanding money is recovered. The equipments supplied to the Complainant are of said high ended machines. According to the manufacturer the said 5 machines supplied to the Complainant will carry 2 years warranty on the drive motor, 7 years on the frame and the said warranty lapses or breached if the Complainant fails to get periodical maintenance done by the authorized service provider within the said warranty period and further warranty is breached if there is any failure or damage caused due to unauthorized service, misuse, negligence or by failure to use, operate and maintain as set out in the owner manual. The OP technician who collected the inverter for repair found that the code of the said equipment was altered against to warranty terms. The OP specifically submits that the Complainant has not paid the total agreed sale consideration to the OP till date towards the sale of the said items on credit basis; the Complainant is still due and payable to the OP a sum of Rs.1,95,000/- till date towards the said items; the Complainant has not done the periodic maintenance of the said thread mill or any other machines from the authorized service centre; the Complainant did not permit the OPs to even to inspect the machine; when the OP started demanding and the said outstanding, the Complainant has come with the present case. Hence on these grounds and other grounds OP prays for dismissal of the complaint.

4. The Complainant to substantiate his case filed affidavit evidence and produced the documents. OPs filed affidavit evidence and produced the documents.  Both filed written arguments. Heard. We have gone through the available materials on record.

5. The points that arise for our consideration are:

1. Whether the Complainant is a consumer comes within the purview of the Sec.2(1)(d) of CP Act ?

2. Whether the Complainant proves the deficiency of service on the part of OPs, if so, entitled for the relief sought for?

3. What order?

        6. Our answer to the above points are as under:

Point No.1:- In the negative

Point No.2:- Does not survive for consideration

Point No.3:- As per final order

REASONS

7. Point No.1: We have briefly stated the contents of the complaint as well as the version filed by OPs.  During the course of arguments, learned counsel for the OPs submit that the Complainant is not a consumer comes within the purview of Sec.2(1)(d) of CP Act as the said equipments called “Motorized Treadmills STEX-S16T (5 nos.) STEX-7520E (2 nos.) STEX-7520R (1 no.) STEX-7520U (1 no.) and Sports Rower 520” (hereinafter referred to us the said equipments) purchased for the commercial use. Further submits that in the entire complaint, the Complainant never stated that, he is running Gym, Cardio and General Fitness centers for eaking his livelihood. In the absence of it, it cannot be labeled as the Complainant is a consumer. Hence prays for the dismissal of the complaint keeping liberty to the Complainant to approach the appropriate form to get redress his remedy placing reliance on the decision reported in AIR 1995 SC 1428 in the case of Laxmi Engineering Works vs. PSG Industrial Institute and in IV (2012) CPJ 220 (NC) in the case of JCB India ltd., vs. Mallappa Sangappa Mantri & Anr.,

8. Per contra, the learned counsel for the Complainant submits that, even though the said equipments purchased for the purpose of commercial purpose it cannot be termed as for commercial purpose supported by warranty becomes consumer supported by warranty period. In respect of the said contention, the Complainant placed reliance on the decision reported in III (2001) CPJ 9 (NC) in the case of C.P.Moosa vs. Chowgle Industries ltd, and Anr.,

9. Perused the contents of the complaint as well as the objections filed by OPs with reference to the available materials on record and the decisions cited supra. The decision cited by the learned counsel for the Complainant reported in III (2001) CPJ 9 (NC) in the case of C.P.Moosa vs. Chowgle Industries ltd, and Anr., wherein it is held as under:

Consumer Protection Act – Sections 2(1)(d), 14(1)(d) – EPABX, Consumer, Commercial Purpose – The appellant placed an order for EPABX system – equipment installed – After warranty period the appellant also entered into annual maintenance contract – Whether the Complainant is a consumer ? (yes) – Whether the Complainant is entitled to compensation ? (yes)

10. The decision cited by the learned counsel for the OPs reported in AIR 1995 SC 1428 in the case of Laxmi Engineering Works vs. PSG Industrial Institute is of the Hon'ble Supreme Court, wherein the word ‘commercial purpose’ and the ‘self-employment’ has been specifically explained. The said judgment was prior to the amendment to the Sec.2(1)(d) of CP Act. The another decision cited by the OPs reported in IV (2012) CPJ 220 (NC) in the case of JCB India ltd., vs. Mallappa Sangappa Mantri & Anr., wherein the Hon'ble National Commission held that:

Consumer Protection Act 1986 – Sections 2(1)(d), 2(1)(f) 2(1)(g), 21(b) – machines – defects – noticed during warranty period – repairs sought free of cost – denied – alleged deficiency in service – consumer – commercial purpose – DF allowed complaint – State Commission dismissed appeal – hence revision – Machine was being used by Complainant for earning profits and hence for commercial purposes by employing a number of people – when customer buys goods for commercial purposes and avails of services attached to the goods in the nature of warranty, he cannot be considered to be consumer even for purpose of services during warranty period – Complainant cannot be held as consumer – impugned order set aside.

This judgment has been rendered after the amendment to Sec.2(1)(d) of CP Act in respect of incorporating the clause of commercial purpose. 

11. In this context, for better appreciation we placed reliance on the constitutional bench decision of the Hon’ble Supreme Court reported in (2010) 4 SCC 114 in the case of Economic Transport Organization vs. Charan Spinning Mills Pvt. ltd., and anr., wherein the relevant para no.52 reads thus:

52. We may also notice that Sec.2(1)d of the Act was amended by the amendment Act 62 of 2002 w.e.f. 15.03.03, by adding the words ‘but does not include a person who avails of such services for any commercial purpose’ in the definition of ‘consumer’. After the said amendment, if the service of the carrier had been availed of for any commercial purpose, then the person availing the service will not be a ‘consumer’ and consequently, complaints will not be maintainable in such cases. But the said amendment will not apply to complaints filed before the amendment.

12. In the instant case, the present complaint has been filed after the amendment to the Sec.2(1)d of the CP Act by the amendment Act 62 of 2002 w.e.f. 15.03.03, by adding the words ‘but does not include a person who avails of such services for any commercial purpose’ in the definition of ‘consumer’.

13. It is settled preposition of law that the law laid down by the Hon'ble Supreme Court is binding in nature under Article 141 of the Constitution. So the decision cited supra by the learned counsel for the Complainant of the Hon'ble National Commission reported in III (2001) CPJ 9 (NC) in the case of C.P.Moosa vs. Chowgle Industries ltd, and Anr., is of no avail. Hence, we come to the conclusion that, complaint filed by the complainant is not maintainable before this forum. Any how the option is left open to the Complainant to approach the appropriate forum for redressal of his grievance and in case he chooses to do so, he can claim the benefit of Sec.14 of the Limitation Act for the time spent before this forum in accordance with the ruling given by the Apex Court in the case of Laxmi Engineering Works vs. P.S.G. Industrial Institute reported in (1995) 3 SCC 583, AIR 1995 SC 1428.  Accordingly we answered point No.1 in the negative.

14. Point no.2: In view of our findings on point no.1, this issue does not survive for consideration. Accordingly it is answered.

15. Point no.3: In the result, we passed the following:

ORDER

          The complaint filed by the Complainant is dismissed. 

2. Anyhow, an option is left open to the Complainant to get redress his remedy before the competent court of law having got jurisdiction to try the same.

          3. Looking to the circumstances of the case, we direct both the parties to bear their own cost.  

          Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 21^st day of September 2019)

        MEMBER                                             PRESIDENT

Witnesses examined on behalf of the Complainant dated.21.11.15

Sri.G.Anil Kumar, Proprietor     

Copies of Documents produced by the Complainant:

Witnesses examined on behalf of the OPs dated.30.01.16

Sri.Prashant Kumar Behera, Authorized Signatory of OP.1 & 2.    

Copies of Documents produced by OPs

            MEMBER                                           PRESIDENT