Haryana

Karnal

107/2013

Hari Gupta Partner of M/s Shiv Shakti Agro - Complainant(s)

Versus

Pugos Technologies - Opp.Party(s)

Shiv Charan Dass

10 Oct 2014

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

 

                                                          Complaint No.107 of 2013

                                                               Date of instt.27.02.2013

                                                               Date of decision: 22.07.2015

 

Hari Gupta partner of M/s Shiv Shakti Agro Industries Pingli Road, Karnal (Haryana).

                                                          ……….Complainant.

 

                             Versus

 

1.Pugos technologies, No.11, Valluvar Nagar, Kamarajar Road, Peelamedu, Coimbatore Tamilnadu India 641004 through its authorized person/Managing Director.

 

2.Hukam Chand Saini son of Phuli Ram, Proprietor of M/s Gorakh Deva authorized dealer FASO Colour Rice sorter of Haryana and Punjab Shop No.3, Ist floor, Saini Samaj Market Committee Road, Karnal.

                                                           ……… Opposite Parties.

                   Complaint u/s 12 of the Consumer

                   Protection Act.

 

Before          Sh.K.C.Sharma……. President.

                   Smt.Shashi Sharma……Member.

                  

 

 Present        Sh.R.C.Goel Advocate for the complainant.

                   Sh.Vikas Chauhan Advocate for the OP No.1.

                   OP No.2 ex parte.

ORDER:   

 

                        This  complaint has been filed by Hari Gupta partner of M/s Shiv Shakti Agro Industries, Pingli Road, Karnal u/s 12 of the Consumer Protection Act (hereinafter referred to as the Act) on the allegations that complainant purchased one Colour sorter machine micro high speed 240 Ch Micro Plus Series (FASO Colour 240 Ch  Rice Sorting Machine) for a sum of Rs.15,51,000/-  from the Opposite Party ( in short OP) No.1, vide invoice  No.069 dated 29.3.2012 and paid the amount to OP no.1 through OP no.2, to earn his livelihood. The Ops gave warranty  for two years in respect of the said machine . Fitting of the machine was done in the month of May, 2012, due to negligence on the part of the OPs as no person was sent earlier for installation of the machine.  In the month of June and July, 2012, the machine could not be operated due to high temperature and  technical fault.  In the month of August, 2012, as per directions of the Ops two  air conditioners  were got  installed  near the machine in the cabin,  but despite that machine could not work fully and properly.  The said machine was having capacity of 3.3 to 5.8 tons per hour, but its out  put  was less than one ton per hour.  The water  mark and pin point were not selected by the said machine and only black and yellow grain (hard dark) rice was selected in small quantity.  The complainant had been putting 6 to 7%  damaged rice  material in the said machine, but the same gave  out put upto 3 to 4 % only, whereas the Ops gave assurance of 1 to 1.5% damaged rice, but the capacity was found to be of under one ton.  After break down of power,  machine started  taking time 30 to 40 minutes for restarting and within 12 hours the machine had been going out of order for 3 to 4 times. The touch screen of the machine was also found to be out of order many times in a day, as the same  required cleaning after 10 to 15 minutes.  In this regard,  company engineers were called from Delhi for  repairs, but no satisfactory service was given by the engineers. Due to defect in the machine,  complainant suffered heavy loss in business, apart from mental agony. The complainant requested the Ops to  solve  the problem  or to replace the machine  with new one, but Ops did not pay any heed to  his requests. Thus,  there was deficiency in services on the part of the Ops knowingly, willfully and deliberately. It has further been averred that the complainant sent legal notice dated  14.1.2013.  The OP No.1 came to Karnal on 12.1.2013 and  returned on 14.1.2013 saying that he would come back next day  to solve the problem, but he did not turn up.  The OP No.2 did not give  satisfactory reply to the said notice. The complainant has sought directions for the Ops to repair the machine to the satisfaction of the complainant or replace the same or pay the cost of the same alongwith interest @ 24% per annum alongwith Rs.4.00 lakhs on account  of deficiency in services and mental agony and harassment and financial loss and Rs.5500/- as litigation expenses.

2.                Upon notice, the OP nol.1 put into appearance and filed written statement disputing the claim of the complainant. Preliminary Objections have been raised that the complainant does not disclose any cause of action against  OP No.1; that the complaint is not  maintainable before this Forum as the  machine was purchased for commercial purposes; that there was no deficiency in service or negligence on the part of OP No.1 and there is no consumer dispute; that complaint is  completely vague and evasive and that the complaint has been filed  mischievously to compel the OP No.1 to succumb to the illegal and unlawful claim of the complainant.

                   On merits, it has been submitted that  complainant agreed to purchase  FASO Colour 240 Ch.Micro Plus  Rice Sorting Machine for   Rs.15,51,000/-  through order No.17 dated 28.2.2012 from OP No.1.  It  was agreed that   Rs.one lakh  will be given in advance, 70% of the payment would be made before dispatch and balance payment would be made through  four months PDC cheque. Machinery was  sent through invoice No.069 dated 29.3.2012, delivery note No.1708/29-03-2012 in the name of  complainant firm.  The complainant  paid Rs.one lakh on  29.2.2012 and another sum of Rs.ten lakhs on  28.3.2012 to OP No.1. The outstanding balance of Rs.4,51,000/- was not paid.

                   It has further been averred that the machinery was installed properly in time and the same was working upto the required standards. Engineer of OP No.1 checked the problem pointed out by the complainant and solved the same, but the complainant never signed service report with malafide  intention. There is no  manufacturing defect in the machine. It has been denied that there was any guarantee  or  warranty in respect of the machine. The allegations regarding defect in the machine have  also been specifically denied.

3.                In evidence of the complainant, affidavit of Hari Gupta partner of the complainant firm Ex.CW1/A, invoice Ex.C1, copy of legal notice  issued by Sh.R.C.Goel, Advocate Ex.C2, postal receipt Ex.C3 and acknowledgement Ex.C4 and 5  have been placed on record.

4.                On the other hand, in evidence of OP No.1 documents Ex.OP1 to Ex.OP5 have been produced.

5.                We have heard the learned counsel for the parties and have gone through the case file very carefully.

6.                The  parties are not at dispute regarding purchase of one  FASO  colour 240 Ch Micro Plus Rice Sorting Machine by the complainant from   OP No.1,  vide invoice No.069  dated 29.3.2012. The complainant has alleged that there was defect in the machine and the same was not giving  out put as per prescribed standards and the OP no.1 neither removed this defect nor replaced the machine. The OP No.1 has denied all such allegations.

7.                As per the case of the complainant, the machine was purchased to earn livelihood, but the OP No.1 has specifically submitted that the machine was purchased for commercial purposes and the complainant  installed the same in his factory, where so many employees were employed.

8.                The Learned counsel for the OP No.1 has put a great thrust upon the contention that the machine was purchased by the complainant for commercial purposes and the same was got installed in factory premises where number of employees have been employed. Therefore, the complainant does not fall within the definition of Consumer as defined u/s 2 (1) (d)  of the Consumer Protection Act and as such  the complaint is not maintainable before this Forum.

9.                To wriggle out of the aforesaid contention, the learned counsel for the complainant contended that the machine was purchased by the complainant to earn his livelihood and this fact was specifically mentioned in para no.4 of the complaint which further finds support from the affidavit of  Hari Gupta, partner of the complainant firm Ex.CW1/A.  As  the preliminary object of the complainant  for purchasing the machine was to earn livelihood, it cannot be said in any manner that machine was purchased for commercial purposes. Therefore, the complainant  is a consumer as defined u/s 2(1) (d) of the Act and the complaint is  very well  maintainable.  In support of his contention he has placed reliance upon  A.K.Naikwadi Versus  Kodak India Pvt.Ltd. and Ors. 2012(4) CLT  page 356.

 

10.               There is no dispute regarding proposition of law  laid down in the aforecited authority, but the same does not cut any ice  in favour of the complainant, because the same was based upon the facts peculiar to that case, whereas the facts of the present case are, obviously, on different footings.  In the cited case, the complainant was already in the business of  developing of photography film  rolls and photography printing.  He purchased one  Gretag Master Lab Machine  to  open Kodak  Express Lab out let.  He specifically made  averments in the complaint that he purchased the machine by raising  bank loan for  earning his livelihood for daily  basic needs  of  bread and butter and family maintenance,  through self employment, associated by his brother.   Opposite parties  contended  that complainant had employed one Assistant, who filed affidavit that two others were also working on the lab of the complainant, but he could not give names of other two persons. A perusal of the premises from photographs filed in the  evidence, it appeared, that only the machine was installed in  a cubical with hardly  any space for more than a person to man the machine and the counter. Placing  reliance upon the judgment of Hon’ble Supreme Court  in case titled Madan Kumar Vs.District Magistrate, Sultanpur, 2009(9) SCC 79  it was held that it would be too much to think that an individual  running a  photography lab shop will be expected to continuously man the shop without any break and engagement  of assistant/helper to man the counter/shop  would not be justified to say that he was running the shop for commercial purposes as his primary object was to  earn his livelihood by processing film rolls of customers.

 

10.                        In the   instant case, the complainant is M/s Shiv Shakti  Agro Industries, Pingli Road, Karnal. The machine was purchased by the complainant from OP No.1 for the purposes of rice sorting  .It has been alleged in the complaint that  capacity of the machine was 3.3 to 5.8 tons per hour, but the same gave out put   less than one ton per hour.  The OP No.1 in the written statement  also specifically averred that the machine was installed in the  factory premises of the complainant . From these facts and circumstances, it is emphatically clear that  complainant was running an industry and the machine was purchased for commercial purposes for the purpose of sorting of the rice.

12.                        No doubt the complainant  in para no.4 of the complaint  at the end of sentence regarding purchase of machine added “ to earn livelihood”  and in the affidavit of Hari Gupta  Ex.CW1/A  also the  same fact has been asserted in the  para no.4, but the facts and circumstances do not lend support to such assertion of the complainant. It is important to point out  that  complainant had given notice to Ops, the copy of which is Ex.C2, wherein there is no mention of the fact that the machine was purchased by the complainant to earn livelihood.  Earning livelihood for daily basic  needs of  bread and butter  and family  maintenance, is altogether different from   having earnings by running industry at large scale and installing machines  having  capacity to  sort out rice  in tons per hour. Therefore, it cannot be said   by any stretch of imagination that the complainant had purchased machine for earning his livelihood, rather the facts and circumstances are  sufficient to establish that the machine was purchased for commercial purposes. Consequently,  the complainant does not fall within the definition of Consumer as defined u/s 2(1) (d) of the Act.

13.               The complainant is not established to be a consumer as per definition of consumer u/s 2 (1)(d) of the Act as held in the preceding paragraph of this order,  there is no need to discuss the details of the  other allegations made by the complainant in his complaint.

14.               In view of the foregoing discussion, we  arrive at the  conclusion  that the complainant does not fall within the definition of Consumer as defined in Section 2(1)(d) of the Act, therefore, the complaint is not maintainable. Accordingly, the complaint is hereby dismissed. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

 

Announced
dated:22.07.2015                                                                            

                                                               (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

 

                   (Smt.Shashi Sharma)

                             Member.

                  

 

 

 

 

 

 

 

Present         Sh.R.C.Goell Advocate for the complainant.

                   Sh.Vikas Chauhan Advocate for the OP No.1.

                   OP No.2 ex parte.

 

                   Arguments heard. Vide our separate order of the even date, the present complaint has been dismissed.  The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

 

Announced
dated:22.07.2015                                                                             

                                                               (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

 

                   (Smt.Shashi Sharma)

                             Member.