D.O.F:09/2/15

D.O.O:27/5/16

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD

                                       CC.NO.58/16

                             Dated this, the 27th    day of  May  2016

PRESENT:

SMT.P.RAMADEVI            : PRESIDENT

SMT.SHIBA.M.SAMUEL    : MEMBER

Chandran.K.S, Proprietor of A One Chappatti,

Kallelil House, Olat.Po, Valiyapoyil, Kasaragod Dt,   :  Complainant

Kerala 671310.

(Adv.M.K.Muraleedharan)

 Paravoor Engineers, Mannam Po,

North Paravoor, Ernakulam 683 520

Represented by its Managing Director                      : Opposite party

Sarun.K.S. 

                                                                           ORDER

SMT.P.RAMADEVI    : PRESIDENT

   The facts of the complaint in brief are as follows:

  That the complainant had purchased a Chapatti making machine and its allied various machineries from the opposite party for a total amount of Rs.7,03,899/- for setting  up of his  chappati manufacturing unit  and  by investing huge  fund  he obtained  license from Pilicode Grama Panchayath,  food Safety and standard Authority of India from its Kasaragod office, kerala Water Authority and also obtained medical fitness certificate  at  food Handlers and he started  his chapatti unit as  A-one chapatti. While purchasing the machine ,opposite party promised  him  one year on sight guarantee and good  after sale service and also assured that the complainant can make about 2500 chapattis  per hour but after installation the complainant had  realized that it is only having the capacity  to produce about 500 chapatti per hour.  After the installation of the machinery and during the course of trial  running it got break down for more than three times and even before the inauguration of the unit the  frying plate of the machine  burned and finally the chapatti machine stalled on  5/11/15 for ever   hence he  was forced to shut down his unit.  All  those facts were informed to  the opposite party and he did not find out the complaint  nor provided any action to replace the machinery. For manufacturing and  supplying the  chapattis unit on a large scale the complainant had spent Rs.3,00,000/- for setting up of the  building for his unit and had appointed 2  male an 4 female (total 6 ) skilled employees in his unit by  paying Rs.15000/- per month for  male and Rs.9000/- for female employee.  Even after  break down of the unit the complainant had forced to pay salary to his employees, eventhough he is not getting the income with the  expectation of high  out put from the machine, the complainant had already taken various order as regular supply basis  from several clients but due to nonfunctioning of the machines, the complainant was not able to fulfill  his commitments with those valued customers.   Apart from the business loss the complainant has to pay Rs.27000/- per month to the  bank towards  the instalment for loan  availed for the purchase of machine.  Thereafter the complainant sent  registered lawyer notice to opposite party but  the reply is not satisfactory  one.  Hence this complaint is filed for necessary relief.

   Opposite party served notice  issued from this Forum and entered in appearance through counsel.  The opposite party raised an issue before the Forum  as preliminary issue that the complaint is not maintainable before the Forum since the complaint is not a consumer as per the Consumer Protection Act since the transaction involved in  this case is a commercial nature.

    Then the case was posted for  hearing an issue regarding  the maintainability of the complaint before this Forum.  On the day  while the  complaint posted for hearing the complainant and his counsel  were absent.  Opposite party’s counsel present and heard  on the side of opposite party.

      The opposite party admitted the purchase of  machinery by the complainant.  The opposite party had taken a specific contention that the purchase of machinery  is for commercial purpose and the  complainant is not  come under the  purview of   consumer as defined in the Consumer protection Act.  The opposite party submitted that the complainant purchased the machine for  making chapattis  on a large scale and  he intends to make 2500 chapattis per hour and he employed 6 skilled laborers.  That itself shows that it is a  large scale  chapatti production unit  started for earning profits.  According to opposite party it is a sole proprietorship business.  On going through the  complaint  it is clear that the unit was worked at large scale  and he engaged 6 skilled workers for the chapatti making machine .  Moreover he invested  lakhs  of rupees as capital and no where stated  in the complaint that the business is for  self employment purposes.

.

  On going through the entire facts  on records and upon the  arguments advanced by the learned counsel for opposite party what is to be considered is whether the complainant is a consumer  within the meaning of the consumer protection Act,1986 and whether the  goods in question were obtained by him for resale or commercial purpose.

    Maruti   Ispat and Energy Pvt Ltd vs. Radhe  Renewable Energy Development Pvt.Ltd 1 (2016 CPJ 165 NC).  The Hon’ble National Commission decided the case by  relying on  the following   decisions:

Monstera Estate Pvt Ltd vs. Ardee infracture Pvt Ltd IV(2010)CPJ299(NC), Satish Kumar Gajanand Gupta vs M/s Srushti Sangam Enterprises(India) Ltd & Anr.III(2012)CPJ264(NC), Satish Kumar Gajanand Gupta vs  Srushti Sangam Enterprises(India) Ltd & Anr.III civil Appeal No 6229 of 2012, Lag Mohan  Chhabra & anr vs DLF Universal Ltd IV(2007) CPJ 199(NC), Purusharth Associates Pvt.Ltd vs.  M/s Uppal Housing  Ltd & Anr III(2012) CPJ 500(NC)  , Purusharth Associates Pvt.Ltd vs.  M/s Uppal Housing  Ltd  Plaza & Anr Civil appeal Nos 8990-8991 of 2012 , Subhash Motilal Shah (HUF) & Ors vs Malegaon Merchants Co-op Bank Ltd 1(2013)  CPJ 34A(NC) (CN), Mapsko Builders Pvt Ltd & Ors vs Sunil Dahiya, Civil Appeal No.30699 of 2013, amla Processing Pvt Ltd vs M/s  Best Engioneering  Technologies , Civil Appeal No.2229 of 2014, Cadila Healthcare Ltd vs anuradha Enterprises, Civil Appeal No.19843 of 2009, Kalpavruksha Charitable Trust v Toshniwal Brothers (Bombay) Pvt Ltd  III(1999) CPJ 26 (SC) = VIII (1999)SLT 529, Laxmi engineering Works v P.S.G Industrial Institute , 1995 (SLT Soft) 632= II(1995) CPJ 1(SC)

  Here the apex court  decided that purchase of machinery –commercial purpose – private limited company- complainant  is not a consumer.

   In the instant case the complainant purchased the machinery for making  chapatti at a large scale and the making of chapatti is for  commercial purpose and it is specifically  stated in the complaint that the complainant has taken  orders from the customers to supply the chapattis.  That itself  clear that the complainant is a business  man doing chapatti business and  the machine purchased is for commercial purpose.   Business started  at large scale  by investing  lakhs of rupees  and engaging 6 labourers is commercial in nature and the complainant is not a consumer  as per  CP Act.  He is a sole proprietor.

     In the light of the above decisions the complainant is not a consumer and therefore the complaint is not a consumer and therefore the  complaint is not  maintainable.  Hence the complaint is  dismissed as not maintainable.  However  liberty is granted to the complainant t to approach the  appropriate court to seek Redressal of his  grievances, if any as per law.   In such a  case he can claim the benefit of  section 111 of the  limitation Act to  exempt the period  spent in prosecuting the proceedings under the consumer Protection Act, while  computing the period of limitations prescribed for such a suit.

Sd/                                                                                                                                         Sd/

MEMBER                                                                        PRESIDENT

eva

/Forwarded by Order/

SENIOR SUPERINTENDENT