Complainant Mandeep Kumar has filed the present complaint against the opposite parties (in short O.Ps) U/S 12 of the Consumer Protection Act (for short, The C.P.Act.) seeking necessary directions to the opposite parties either to replace the defective machine in question with new one or to refund the price of the machine in question i.e. Rs.47,500/- alongwith interest @ 12% P.A. from the date of purchase till its actual realization. Opposite parties be further directed to pay Rs.50,000/- as compensation including litigation expenses on account of mental and physical harassment and also on account of loss of work, in the interest of justice.
2. The case of the complainant in brief is that he is jobless, having no job in his hands. So, he in order to earn livelihood for himself and for his dependent family members by way of self employment, started work of preparation of Kulfi by installing equipment i.e. machines in his house. He has also engaged 4 persons in this small business. On the allurance of the opposite party in the Ist week of April 2018, he booked the Candy Machine at Gurdaspur and they assured him that they will give two years warranty on the said machine and if the defect will occur in the said machine, which is to be having nature of manufacturing one, then they will replace the defective machine with new one. He has next pleaded that he purchased a Kulfi Machine from the opposite party on 12.4.2018 for Rs.47,500/- vide invoice no.11 dated 12.4.2018 and the opposite party delivered the said machine in question at his house at Gurdaspur and also installed the same. Surprisingly, just after 1 day of the purchase of the said Kulfi Machine, the same machine became out of order and it was not functioning. The said Kulfi Machine did not make cooling. In this regard, he has made telephonic call to the opposite party on 13.4.2018, the recording of which is lying with him, but the opposite party did not pay any heed. Again the matter was reported to the opposite party, who again visited his house after a long delay of 7 days inspite of repeated requests. He has further pleaded that on the last visit of the opposite parties at his house, the opposite party has told him that the compressor of the said machine in question is lying at the bottom of the machine, so there is necessity of AC Kit which will be installed at the upper side. He was no other way except to listen and admit the talks of the opposite party. The opposite party has charged Rs.8,000/- from him and installed AC kit at the roof of his house but the machine in question still emits same problem. Again the opposite party told him that there is problem of Voltage of light. On the asking of the opposite party, he further installed Stabilizer amounting to Rs.12,000/- but of no avail. Again in the month of May 2018, the officials of the opposite party checked up the machine in question and tried to remove the defects occurred in the same but of no avail. The opposite party has failed to remove the defect in question from the Machine, since the same pertains to manufacturing one. Thus, this act of the opposite party is clear cut unfair trade practice and deficiency in service on the part of the opposite parties. Hence this complaint.
3. Notice issued to the opposite party who appeared through their counsel and filed the written reply by taking the preliminary objections that the complaint of the complainant is not maintainable as the complainant is not a consumer; this Hon’ble Forum has got no jurisdiction to try, entertain the present complaint and the complainant has not disclosed the type of electricity connection and place of connection, which is being used for the purpose of refrigerator and for preparing the Ice Candy, hence the complaint of the complainant is not maintainable. On merits in para 1 it is stated that complainant is running a small business, as such not a consumer. It was further submitted that the opposite parties are manufacturing Big Refrigerator and they have their showroom at Amritsar and opposite party never organize any advertisement stall at Gurdaspur. The complainant purchased the Refrigerator from the opposite party from Amritsar Showroom and made payment and the refrigerator was very heavy and is having Two Ton capacity of Compressor. The opposite party clearly instructed the complainant that the refrigerator will work properly only when there is proper three phase electricity supply. The refrigerator will not work properly if that was started on single phase and these conditions were told to the complainant at the time of sale. It is further submitted that where the refrigerator installed, there is a very low voltage in the said area and due to the low voltage and fluctuation in the electricity in the area of complainant, the refrigerator was not working properly and that was the main reason for not cooling properly, as the complainant uses the above refrigerator on single phase electricity connection. Actually, the representative of the opposite party visited the premises of the complainant twice and saw the actual problem which is due to the low electricity voltage and it was thoroughly explained to the complainant that the refrigerator is having no fault. The opposite party changed the compressor of the Refrigerator from 2 Ton to 1.5 Ton Free of charge with sympathetic relation and the same was changed with the consent of the complainant, but again the 1.5 Ton compressor could not work properly due to the low electricity voltage. All other averments made in the complaint have been denied and lastly the complaint has been prayed to be dismissed with costs.
4. Alongwith the complaint, complainant had filed his own affidavit, photo copy of bill dated 12.4.2018 for Rs.47,500/- Ex.C1 and C.D. Ex.C-2.
5. We have carefully heard the pleadings and arguments put forth by the counsel for both the parties and have gone through the file minutely. Before going into the merits of the case, we are going to discuss one main issue objected by counsel for opposite party in his arguments as well as preliminary objections para 1 that complainant is not a consumer as he has purchased the “Kulfi Machine” for commercial purpose and not for only earning his livelihood and moreover he has engaged FOUR PERSONS to run this small business. This fact is stated by complainant himself in para 1 of the complaint which reads as under:-
“The complainant is jobless, having no job in his hands. So he in order to earn livelihood for himself and for his dependent family members by way of self employment, started work of preparation of Kulfi by installing equipment i.e. machines in his house. The complainant has also engaged 4 persons in this small business and thus he is earning exclusive livelihood for himself and also for his family members by way of self employment.
6. Besides other objections the counsel for opposite parties vehemently contended for dismissal of the complaint on this ground being not maintainable.
7. On the other hand, counsel for the complainant has argued to this objection that the “Kulfi Machine” is bought only to earn livelihood for himself and his family members. Rather he referred an authority of Hon’ble S.C.D.R.C Haryana titled Ram Kumar Vs. Lilac Medicare Pvt. Ltd. and others wherein held that ‘the complainant falls within the purview of ‘consumer’ as defined in Section 2 (i) (d) of the Act because the complainant purchased the machine exclusively for the purpose of earning livelihood and self employment.
8. Further, in the above referred case an authority of Hon’ble Apex Court has been discussed wherein one helper and operator has been employed by a person for running the machine only to earn livelihood and self-employment. Hon’ble Supreme Court held that “the appellant falls within the definition of consumer”. But here in the present case as per complainant’s own version he has employed four persons to carry on the business of Kulfi making. It means he has employed more than one person as his helper or operator of machine which clearly proves that he is carrying on the business of Kulfi making machine with the help of other employees and that is not only self-employment rather he has given employment to some persons also for which the complainant do not fall under the ambit of The C.P.Act 1986.
9. In view of above detailed discussion, we are of the opinion that the complainant is not a consumer and the complaint is not maintainable in the Consumer Forum.
10. As discussed above, the complaint is dismissed with no order as to costs. However, the complainant is at liberty to file a fresh complaint on the same case of action in the appropriate Court of law/Forum.
11. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room. The complaint could not be decided within prescribed time due to rush of work.
ANNOUNCED: (Shri Raj Singh) (Rajita Sareen)
June 24, 2019. Member Presiding Member
MK
