Haryana

StateCommission

A/246/2015

CONSTA COOL PVT.LTD. - Complainant(s)

Versus

RENU SHARMA - Opp.Party(s)

KULDIP SINGH

02 Dec 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA,PANCHKULA

 

First Appeal No.246 of 2015

Date of Institution: 12.03.2015

                                                          Date of Decision: 02.12.2015

M/s Consta cool Pvt. Ltd., 1-A, Hokabaj Estate, Behind Arvee Denim Export, Sarkhej-Narol road, Narol, Ahmedabad,Gujarat through its Authorised signatory Jitender Chaudhary, resident of Flat No.661, D6 Block, Penta Homes Society, VIP Road, Zirakpur, Distt. Mohali.

     …..Appellant

                                                Versus

 

1.      Renu Sharma W/o Shri Narendra Sharma R/o Plot No.205, Aazadnagar, gali No.4, Yamuna Nagar, proprietor of M/s Sharma Food Products.

2.      M/s Deep Agency, Subhash Nagar, Chhoti Line, Opposite Nath Morots, Yamuna Nagar, through its proprietor Shri Mandeep Singh.

         …..Respondents

CORAM:   Mr. R.K.Bishnoi, Judicial Member.
                   Mrs.Urvashi Agnihotri, Member.

 

Present:-    Mr.Kuldeep Singh, Advocate counsel for the appellant.

Mr.Ashish Rawal, Advocate counsel for the respondent No.1.

Respondent No.2 dispensed with vide order dated 03.06.2015.

 

                                      O R D E R

 

R.K.BISHNOI, JUDICIAL MEMBER:

 

It was alleged by the complainant that to earn livelihood she purchased 30 pieces of freezers on wheel (F.O.W) in the month of February 2013 from opposite party (O.P.) No.1 (Respondent No.2).  Local dealer of O.P.No.2 (Appellant) after availing term loan of Rs.4,70,000/- in the name of her firm M/s Dharma Food Product. The freezers were put to use in the month of March 2013, but, there was no proper cooling  due to which ice cream used to melt.  She immediately informed O.P.No.2 about the problem and mechanic visitged her premises on 21.05.2013.  it was reported that refrigerators were under size due to which they were loosing cooling effects. As there was manufacturing defect the O.Ps. be asked to refund the amount.

2.      It was admitted by O.P.No.1 in reply that cooling tank of freezers was under size and entire system was loosing it’s cooling effect.  It’s technicians gave certificate to this effect.  Complaint made payment directly to O.P.No.2.  As the goods were not sold by it to the complainant, it was not liable for any defect. 

3.      It was alleged by appellant/O.P.No.2 that if any defect had developed, the same was due to mishandling of the unit.  There was no deficiency in service on it’s part. As she purchased the F.O.W. for commercial purpose, she could not be considered as consumer as provided under section 2 (I) d of the Consumer Protection Act, 1986 (In short “Act”).  The refrigerators were properly checked before sending to the market.  Objections about maintainability of complaint, locus standi etc. were also raised and requested to dismiss the complaint.

4.      After hearing both the parties, learned District Consumer Disputes Redressal Forum, Yamuna Nagar directed O.P. No.2 to refund the sale price of FOW’s in question i.e. Rs.6,30,014/- alongwith interest @ 9% p.a. from the date of institution of complaint to the date of decision, in addition to Rs.10,000/- as compensation on account of mental agony etc. and Rs.5000/- as litigation expenses.

5.      Feeling aggrieved therefrom, appellant-opposite party No.2 has preferred this appeal.

6.      Arguments heard. File perused.

7.      Learned counsel for the appellant vehemently argued that the complainant purchased 30  F.O.W./machines and it shows that they were for commercial purpose.  So she is not a consumer and complaint is not maintainable.

8.      This argument is of no avail. Complainant has specifically alleged that to earn livelihood she purchased these machines after obtaining loan from the bank.  If she has purchased 30 machines it does not mean that the same were for commercial purpose.  It may not be possible to earn livelihood with one machine only.  It cannot be presumed that a person, who is using machine should move from one street to another as a hawker to be considered as purchased any machine for earning livelihood.  One can purchase more machines for proper livelihood.  If some persons are employed for running these machines and vending  ice cream etc. the nature of use will not change.  These views are fortified by the opinion of Hon’ble National Commission expressed in Action construction Equipment Ltd. Vs. Geegraj Singh & Anr. reported in 2015 (3) CPR 665 (NC).  In that case a person was having 2-3 JCB machines and also employed 2-3 drivers to run them but were not considered for commercial purpose.  Relevant para of the said judgement is as under:-

“We see nomerit in these arguments, Both the for a below came to the conclusion that the machine was used for personal benefit of the complainant.  Merely having 2-3 machines and keeping 2-3 drivers does not make it a machine for commercial prupsoe. Run run a business, lots of persons are required.”

Reference to this effect can also be made to the opinion expressed by this State Commission in first appeal No.1187 of 2014 titled as Saroj Devi Vs. Secretary cum Executive officer decided on 05.05.2015.  It has no where come in evidence that she was using these machines for any other purpose except for her own income.  So it cannot be opined that she was not a consumer.

9.      Now the question comes about defect in the machines.

10.    Learned counsel for the complainant vehemently argued that as per report Ex.C-4 and Ex.C-5 it is clear that there was manufacturing defect in the ice cream machine and cannot be repaired.  Mandeep Singh got the machines inspected through his mechanic/technicians under the instructions of O.P.No.2.  One Suraj Bhan was appointed as Local Commissioner  by District forum and he also submitted his report Ex.C-7 to the effect that machines were not repairable.  It shows that  there  was manufacturing defect in the machines and learned district forum rightly ordered to refund the amount.

11.    This argument is of no use.  In Ex.C-7 it is no where mentioned that what type of defect was found there.  It was simply mention that there was manufacturing defect and cannot be repaired.  In Ex.C-5 it was mentioned that cooling tank was of under  size and insulation of fridge was low.  It is no where mentioned therein that there was any manufacturing defect.  It is also not mentioned in any report that the machines were not as per specifications. Neither it is pleaded nor it is proved by the complainant that the machines sold by O.P.No.2 were not at as per specification. If ice cream starts melting after some time it does not mean that F.O.Ws are defective if there is no violation of specification.  It cannot be presumed that ice cream will not melt for all times to come.  In the absence of any report of competent person it cannot be presumed that there was manufacturing defect and the complainant was entitled for the refund of the amount.  Learned district Forum fell in error while allowing the complaint.

12.    Impugned order dated 10.02.2015 cannot be sustained and is hereby set aside. Resultantly, the appeal is allowed and complaint is dismissed.

13.    The statutory amount of Rs.25000/- deposited at the time of filing the appeal be refunded to the appellant against proper receipt and verification.

 

December 02nd, , 2015	Urvashi Agnihotri, Member Addl.Bench		R.K.Bishnoi, Judicial Member Addl.Bench
S.K