O R D E R

A  Rajesh, President.

          Case of the complainant is as follows:

          The complainant purchased a pappad manufacturing unit from the opposite party at a price of Rs. 5,54,000/-.  She purchased the unit with the financial assistance of Canara Bank, Aluva Branch.  The opposite party installed the same in a rented room situated near UC College, Aluva.  The set supplied by the opposite party is defective and of inferior quality.  The opposite party had charged excess price for the set.  Her attempt to return the machine was in vain.  Thus she caused to issue a lawyer notice, but there was no response.   Thus the complainant is before us seeking the following reliefs against the opposite party.

i.                    to refund the price of the pappad manufacturing unit.

ii.                  To pay @ Rs. 2,000/- p.m. as rent till the refund of the price of the set

iii.                To pay compensation of Rs. 5,000/- and costs of Rs. 2,500/-.

2. Version of the opposite party

The complainant had purchased the machine for commercial purpose.  As such she is not a consumer under the Consumer Protection Act.   “Jas Enterprises, 60, Shreenetaji Estate, Panna Estate Road, Rakhial and Ahmedabad-380 023” is the manufacturer of the machine.  The complaint is bad for nonjoinder of necessary parties since the manufacturer is not a party to the proceedings.  The  opposite party is only a dealer of the manufacturer.  The complainant caused to deliver a DD for Rs. 5,54.040/- to the opposite party.  Accordingly the 2^nd opposite party placed order of the machine.  Thereafter  the manufacturer delivered the same to the complainant.  The 2^nd opposite party refunded a sum of Rs. 1,20,000/- to the complainant being the cost of the machines not supplied to the complainant.  The machines  supplied  by the 2^nd opposite party was free from any defects.  There is no deficiency in service on the part of the opposite parties.  Opposite parties request to dismiss the complaint.

          3. This Forum vide order dated 11-11-2005 dismissed the complaint for default.  Thereafter the complaint was restored to file as per order in I.A.112/2008 dated 22-02-2010.  No oral evidence was adduced by the complainant.  Exts. A1 and A2 were marked on her side.  The expert commissioner was examined as DW1 and his report was marked as Ext. C1.  The 2^nd opposite party was examined as DW2 and  Exts. B1 to B7 were marked  on the side of the opposite parties.  The counsel for the opposite party filed argument notes.  Heard the counsel for the parties.

4.      The points that came up for consideration.

i.        Whether the complainant is a consumer?

ii.       Whether the complaint is barred for non joinder of the   

          manufacturer a necessary party?

iii.      Whether the complainant is entitled to get refund of the   

          price of the machine.

iv.               Compensation and costs of the proceedings.

5. Points i and ii. According to the opposite party since the complainant has purchased the machines for commercial purpose she is not a consumer as per the provisions of the Consumer Protection  Act.  It is also stated that the complaint is not maintainable due to non joinder of the manufacturer in the party array.

6. It is pertinent to note that the complainant does not have a case that she had purchased the machines for earning her livelihood by means of self employment.  It is also worthwhile to note that the complainant has rented out the machine to a third party evidenced by Ext. B7 lawyer notice. This fact uncontroverted, fore closes her being a consumer. In  view of that the complainant is not a consumer as per S. 2 (1) (d) of the CP Act.  Further, the opposite parties in their version categorically took a contention that they are only the dealer of the machine and they furnished  the full address of the manufacturer in their version. However the complainant failed to take any steps to implead the manufacturer in the party array.  The non impleadment of the manufacturer in this complaint totally invalidates the complainant’s stand for want of necessary precaution.

7. The complainant vehemently relied on the expert commissioner’s report.  DW1 the expert commissioner during chief examination deposed that the machinery was not properly maintained for it to be protected  from sun and rain.  Further he stated that if it were not properly protected, it would  lead to malfunctioning of the machine. The opposite party rightly contented that the complainant ought to have taken steps to assess the damages if any of the machinery much earlier.  Admittedly the machinery was supplied by the 2^nd opposite party in December 2004.  DW1 examined the machine on 14-09-2010 only.  By the time much water had flown under the bridge and condition of the machinery had  deteriorated on that account.  Rule of Law maintains that the late comer is not welcome in law.

8. In view of the above discussion we have no hesitation to hold that this complaint is not maintainable and is liable to be dismissed.  Ordered accordingly.       Since the above points have been dismissed and found against the complainant we do not proceed further.

       Pronounced in the open Forum on this the 30^th day of June 2011.