BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.295 of 2014

Date of Instt. 25.8.2014

Date of Decision :01.01.2015

Mohd.Rashid aged about 26 years son of Mohd.Latif R/o Choti Eidgah Road, Dara Khu, Malerkotla, District Sangrur.

..........Complainant

Versus

1. S.S.Saini, Prop.M/s Bell Super Electricals, Dhogri Road, Nurpur, Near Pathankot Bye-Pass Chowk, Jalandhar.

2. Dinesh Sharma, Manager M/s Bell, Super Electricals, Dhogri Road, Nurpur, Near Pathankot Bye-Pass Chowk, Jalandhar.

.........Opposite party

Complaint Under Section 12 of the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Present: Sh.Mukhtiar Mohd. Adv., counsel for complainant.

Sh.Vimal Sachdeva Adv., counsel for opposite parties.

Order

J.S Bhatia (President)

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act against the opposite parties on the averments that the complainant purchased Dona Making Machine model standard of Rs.1,10,000/- alongwith paper rolls for a sum of Rs.30,000/- alongwith VAT Tax etc from the opposite parties but the complainant is illiterate person and he has paid Rs.1,40,000/- alongwith Vat Tax etc on 10.7.2014 for purchasing Dona Making Machine and paper rolls and the opposite parties issued a bill for Dona Making Machine for Rs.50,000/- only and for paper rolls for Rs.16,000/- only and the opposite parties cheated the complainant by issuing a bill of less amount against the actual amount so received from the complainant. The Dona Making Machine was installed by the employee of the opposite parties but till date said machine is not working and complainant reported the opposite parties many times but opposite parties started dilly-delaying the matter and has not corrected the said machine and in the alternative has not changed the said machine. Now the complainant has come to know that the opposite parties cheated the complainant by affixing a old motor in the said Dona Making Machine and played a fraud upon the complainant and also played a fraud by issuing a bill of less amount against the actual payment so received. The complainant also got served legal notice dated 23.7.2014 through registered cover through counsel Sh.Mukhtiar Mohd.Advocate to the opposite parties. On such like averments, the complainant has prayed for directing the opposite parties to pay him the price of the Dona Making Machine and paper rolls i.e Rs.1,40,000/- alongwith interest. He has also claimed compensation and litigation expenses.

2. Upon notice, opposite parties appeared and filed a written reply raising preliminary objections regarding jurisdiction, complainant being not consumer, locus-standi, non-joinder of necessary party etc. On merits they pleaded that the complainant purchased Dona Making Machine model standard of Rs.50,000/- alongwith paper rolls for a sum of Rs.16,000/- alongwith VAT etc from the opposite parties. It is totally wrong and denied that the complainant purchased the aforesaid machine for Rs.1,10,000/- nor he has purchased paper rolls of Rs.30,000/-. The machine was manufactured on order and the cost of machine is Rs.50,000/-. It is worth here to mention that the opposite parties have issued a bill of Dona Making Machine model standard for a sum of Rs.50,000/- only and for paper rolls for a sum of Rs.16,000/- only i.e as per the actual amount. It is also wrong that the opposite parties have cheated the complainant. It is pertinent to mention here that the complainant has purchased the above machine on 10.7.2014 and he filed the present complaint on 4.8.2014 i.e after a lapse of nearly one month which seems to be an after thought. Moreover, the opposite parties have never received any complaint, written or oral, nor they received any notice from the complainant. In fact, the address mentioned on the notice is incomplete. The perusal of notice clearly reveals that the complainant has written incomplete address of the opposite parties i.e Sh.S.S.Saini, Prop.M/s Bell Super Electricals, Jalandhar and Sh.Dinesh Sharma, Manager M/s.Bell Super Electricals, Jalandhar. He has not mentioned the name of the Dhogri Road, Nurpur near Pathankot Bye-Pass Chowk, Jalandhar. So it is not possible to deliver the notice to opposite parties with such incomplete address. However, the complainant has mentioned the same address on the complaint which he has filled before the worthy S.S.P(Rural), Jalandhar and on the postal receipts as well. It is wrong and denied that the answering opposite parties have issued a bill of less amount against the actual amount. This allegation is baseless, vague and improbable. The complainant has made such type of ground only to harass and gave mental tension, agony to the answering opposite parties. They denied other material averments of the complainant.

3. In support of his complaint, learned counsel for complainant has tendered affidavits Ex.CW1/A and Ex.C2/A alongwith copies of documents Ex.C1 to C8 and closed evidence.

4. On the other hand, learned counsel for opposite parties has tendered affidavits Ex.OPA and Ex.OP-B and closed evidence.

5. We have carefully gone through the record and also heard learned counsels for the parties and also gone through the written arguments submitted by both the parties.

6. In the written reply, the opposite parties have taken preliminary objections that complainant is not consumer and controversy involved in the complaint is not a consumer dispute and that dispute raised by the complainant is outside preview of the Consumer Protection Act. According to the complainant, he purchased Dona Making Machine model standard for Rs.1,10,000/- alongwith paper rolls for a sum of Rs.30,000/- plus VAT etc from the opposite parties. The purchasing of machine by the complainant is manifestly for commercial purpose and as such complainant can not be termed as consumer under the provisions of Consumer Protection Act.

7. In Saurabh Gupta & Ors Vs. Hasti Petro Chemicals and Shipping Ltd, II (2014) CPJ 137 (NC) it has been held by Hon'ble National Commission as under:-

"In the instant case, the facts of the case given in the complaint state clearly that the transaction of purchase of machines between the parties was done in the year 2010 and hence, it is a case after the amendment made in the year 2003. A perusal of the contents of the complaint bring out clearly that the said machines were obtained for a commercial purpose and there is no mention anywhere that the transaction was done for the purpose of earning livelihood by the means of self employment".

8. Further in Krishna Laser and Cosmetic Pvt.Ltd Vs. Lumenis India Pvt.Ltd, II(2011) CPJ 133 (NC), it has been held by Hon'ble National Commission as under:-

"There is no averment in the entire complaint as to how the complainant is a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986. Counsel for the complainant stated that the laser machine was purchased for better treatment of patient. In the facts and circumstances referred to in the complaint, we are of the opinion that the laser machine was purchased by the complainant for commercial purpose on account of which the complainant does not qualify as a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986. There is no averment in the complaint that the laser machine was purchased for self employment. Even, otherwise, from the complaint, it can be seen that the complainant had been already running clinic for Medical Laser Treatment and Cosmetic Surgery and the laser machine has been obviously purchased for commercial purpose and not for self employment".

9. The ratio of above cited authorities is applicable on the facts of the present case. In the present case, there is no allegations that the complainant purchased the machine to earn livelihood by way of self employment. So in absence of any such averments in the complaint, the purchase of Dona Making Machine by the complainant must be held to be for commercial purpose. So the complainant can not be termed as consumer under the provisions of the Consumer Protection Act.

10. Consequently, the present complaint is not maintainable and is dismissed as such. However complainant at liberty to approach the Civil Court, if so advised Copies of the order be sent to the parties free of costs under the rules. File be consigned to the record room.

Dated Jyotsna Thatai Jaspal Singh Bhatia

01.01.2015 Member President