Kerala

Idukki

CC/63/2019

Hamsakutty - Complainant(s)

Versus

Sahodhara industries - Opp.Party(s)

29 Jul 2023

ORDER

DATE OF FILING : 25/03/2019

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the 29^th day of July 2023

Present :

              SRI.C.SURESHKUMAR                                               PRESIDENT

              SMT.ASAMOL P.                                                          MEMBER

              SRI.AMPADY K.S.                                                        MEMBER

CC NO.63/2019

Between

Complainant                          : Hamsakutty K.A.,  S.o Abdul Samad,

                                                 Konickal House, Vannappuram P.O.,

                                                 Vannappuram Village, Thodupuzha Taluk,

                                                  Idukki District.

                                                    (By Adv.N.Vijayamohan)

                                                           And

Opposite Party                       :   Ramesh,

                                                   Sahodara Industries,

                                                   Represented by its Managing Director,

                                                   Nettoor P.O., Ernakulam Taluk,

                                                   Ernakulam District.

                                                   (By Adv.Binu Paul)

                                                             

O R D E R

SMT.ASAMOL P., MEMBER

 

Complainant filed this complaint under Sec.12 of Consumer Protection Act 1986.  Brief facts of this complaint are discussed hereunder:- 

1 . Complainant is running a business institution namely ‘Props and Scaff’ at Vannappuram village.  He has been making some products like toilet cleaner, hand wash, dish wash, car shampoo, saree shampoo etc., in the name of ‘Just life’ and distribute to other shops and earn income from it for his livelihood.  This is the only livelihood for himself and his family.  He has got an order of more outlets to supply his products.

(Cont....2)

 

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2 . Opposite party is the Managing Director of an institution namely Sahodhara Industries in Ernakulam District.  Complainant planned to buy some machineries to enlarge his production since he got orders from supplyco shop.  So, he has called a tender from opposite party for purchasing the machineries such as automatic bottle filling, cap filling etc.,.  opposite party issued a quotation on 06/04/2018 mentioning the price of these machineries to complainant’s e-mail.  Thereafter, while complainant called the opposite party by phone, he promised that he can built and supply these machines within 40 days after receiving confirmation.  Believing these words of opposite party, complainant has given the tender confirmation to him.

3 . Thereafter, complainant has finally placed order for 4 machineries (Shown as 5 in quotation) for Rs.13,29,310/- on 23/04/2018.  Opposite party has come and received this order at complainant’s institution in Thodupuzha Taluk.  As per this order, complainant has transferred Rs.4,00,000/- as advance amount to opposite party’s account on 23/04/2018.  Moreover, complainant has transferred Rs.8,85,000/- in total to opposite party’s account in 5 times.  By believing the words of opposite party, no agreement was made.  But, opposite party has assured that these machineries would be supplied within 40 days.  However, machineries were delivered much after the said  40 days.

4 . Complainant ordered automatic Caping machine which is the most expensive priced at Rs.4,95,600/-.  But, Rs.10,600/- was more than that  specified in quotation because, inner cap device was incorporated into this machine.  But opposite party supplied this machine only on 24/08/2018 after 4 months of placing the order.  Later, this machine was erected only on

 

(Cont....3)

 

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31/01/2019 again after 5 months.  But, this machine was damaged on the same day itself after erecting by opposite party.  This machine was not in working condition even for a single day.  Opposite party has supplied poor quality machinery to complainant. Even though complainant asked many times, opposite party didn’t come there to make the machine functional by removing the damages.  Later, opposite party didn’t attend the phone calls of complainant.  Opposite party is legally liable to install and make function this machine.  Hence, there is deficiency in service and unfair trade practice on the part of opposite party.  Later, complainant has cancelled  order of another machine ie, Liquid filling machine automatic with conveyor 1 Ltr 8 head worth Rs.6,75,000/-, because, unavailability of proper service from opposite party for already erected machine and following damages for the same.  Complainant has incurred  Rs.6,54,310/- for the three machineries supplied by opposite party.  Later, opposite party had repaid Rs.2,00,000/- to complainant’s account,  since one machinery was cancelled by complainant and the amount received by opposite party as advance was more than the actual amount.  Thus, an amount of Rs.30,690/- is remaining in advance payment which should be repaid by opposite party to complainant.  Many orders received by the complainant were cancelled as unable to provide in time due to the damages of these machines.  Therefore, complainant suffered financial loss and mental agony upon the above said circumstances.  Hence, complainant is entitled to get Rs.6,00,000/- as compensation from opposite party.  Moreover, though complainant purchased these machineries by paying more amount, he has to run his business by using more persons about 7 months, therefore, Rs.2,00,000/- was loss in the business.  Complainant has also right to get the same from opposite party.  Hence he has prayed the following reliefs.

 

(Cont....4)

 

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1 . Opposite party may be directed to pay Rs.6,00,000/- as compensation for his mental agony and financial loss.

2 . Opposite party may be directed to pay Rs.2,00,000/- to complainant.

3 . Opposite party may be directed to repaid Rs.30,690/- to complainant.

4 . Opposite party may be directed to take back the poor quality automatic caping machine and refund Rs.4,95,6000/- as price of it to complainant.

Upon notice, opposite party has entered appearance and filed written version.  Their contentions are briefly discussed hereunder.

1 . According to opposite party, he is doing repairing works of machines at many institutions and thus he has previous contacts with this complainant.  He is earning income from these repairing jobs for his livelihood.

2 . Opposite party has bought the machineries from the institutions which are named as Devarushi and Sree Bhagavathy (Ahamadabad) and these were given to complainant without receiving  any  financial benefits.  Moreover, these machineries were erected and functioning in complainant’s many business institutions.  Complainant is running a huge business institution, which is named as Props and Scaff’ at Vannappuram Village.  According to opposite party, he is running a machinery workshops near Peta at Champakka in Ernakulam District.  Since the reasonable remuneration was

 

(Cont....5)

 

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not giving to opposite party for repairing these machineries, the phone calls of complainant were not attended by opposite party.  This complaint allegations are false, hence opposite party has not any liability to the complainant.  Also, this complaint is not maintainable as per Consumer Protection Act.  Hence, this complaint may be dismissed.

Thereafter, this case was posted for evidence of complainant.  He has filed proof affidavit and 4 documents.  Complainant was examined as PW1 and Exts.P1 to P4 were marked.   On the posting dates of evidence of opposite party, he was continuously absent and no evidence adduced.  Thereafter, it was posted for hearing.  Even though many chances were given, opposite party was continuously absent and not represented by counsel.  Argument notes filed by the counsel for complainant.  Hence, this case was taken for orders.   Now the points which arise for consideration are :-

1 . Whether this complaint is maintainable under Consumer Protection Act, 1986?

2 . Whether unfair trade practice and deficiency in service on the part of opposite party?

3 . What reliefs the complainant is entitled for?

Point No.1 is considered

We have perused complaint, proof affidavit and marked documents.  In this case, complainant alleges that unfair trade practice and deficiency in service against opposite party.  Some machineries were purchased by complainant for business purpose from opposite party.  According to complainant, he was doing the business for earning his livelihood.  But, on the perusal of complaint and proof affidavit, we have noticed that, initially,

(Cont....6)

 

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tender was called by complainant for 4 machineries from opposite party for Rs.13,29,310/- and thereafter, one machine was cancelled.  Thus, complainant has purchased 3 machineries from opposite party.  Opposite party has stated in written version that complainant is doing a huge business, hence, this complaint is not maintainable under Consumer Protection Act.  However, opposite party has not adduced any evidence to prove this contention.    As per Ext.P1, ie quotation from opposite party, it is seen that there is a quotation for 5 machineries of total Rs.18,86,000/-. Whereas, complainant has purchased 3 machineries for Rs.654,310/- from opposite party under Ext.P3.  Complainant was examined as PW1.  In complaint and affidavit he has stated as there was orders from different outlets, he has to expand his business and for this it was necessary to purchase more machineries.  On the above said discussions, we are of the view that complainant is not running merely this business for only the purpose to earn income for his livelihood by means of self employment.  He has been manufacturing many products and sells if for getting more profits.  The Honourable Supreme Court defines Consumer and Commercial purpose under  Consumer Protection Act in National Insurance Co.Ltd., V/s Harsolia Motors and other case (Civil Appeal No(5) 5352-5353 of 2007).  In the above said case, the Honourable Supreme Court analysed the meaning of “Commercial Purpose”, “Consumer” in detail.  The word ‘Commercial purpose’ under Sec.2(1)(d) of consumer Protection Act, 1986 is not defined.  The Honourable Supreme Court held that “Commercial denotes pertaining to commerce” it means connected with or engaged in commerce, mercantile having profit in the main aim.  If the buyer of goods uses them himself ie, by self employment for earning his livelihood, it would not be  treated as a commercial purpose and he does not cease to be a consumer for the purpose of the act. “The question of whether a transaction is for a commercial purpose

(Cont....7)

 

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would depend upon the facts and circumstances of each case. However, ordinarily commercial purpose is understood to include manufacturing/industrial activity or business to business transactions between commercial entities”.  “A purchase of the goods or service should have a close and direct nexus with profit generating activity”.  In the light of the above discussion of Hon’ble Supreme Court, we are of the view that the complainant in this case is running  business for profit motive by using the purchased machineries from opposite party.    Since he got more selling outlets he has purchased more machineries from opposite party for developing his business  to get more profits.  Also, he has not produced any tending account which shows that he earned the income only for his livelihood.  On the basis of complaint, we cannot believe that this is only a business for earning his livelihood by means of self employment.  Certainly, this transaction is for commercial purpose.  We are of the opinion that since the transaction was for a commercial purpose, complainant is not a consumer under Sec.2(1)(d) of Consumer Protection Act, 1986.  Hence this complaint is not maintainable under the Act.  Point No.1 is answered accordingly.

Point Nos.2 and 3 are considered together

On the perusal of documents, it is seen that machineries were purchased from opposite party.  The allegation is that these machineries were not working properly and damaged.    Opposite party states in written version that these machineries were purchased from other institutions in Ahammadabad by him and these were given to complainant without receiving any remuneration and he has done the installation of these machineries and made those as working condition at complainant’s institutions.  According to complainant, he purchased these machineries after he got more outlets from supplyco for better development of his business.

(Cont....8)

 

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Since, these machineries were damaged and not working, complainant suffered many loss.  Despite these machineries, he could not supply the ordered products.    But, complainant has not adduced evidence regarding to proving the machine damages.  The documents produced by the complainant is not sufficient to prove the deficiency in service or unfair trade practice against opposite party.  It is not proved that the alleged damages of the machineries which he purchased from opposite party.  Also, complainant has not taken any Commission report regarding the proof of machineries which were damaged.  Nothing is produced for proving the alleged damages of these machineries.  Hence, deficiency in service or unfair trade practice on the part of opposite party is not proved.  Point Nos.2 and 3 are answered accordingly. 

In the result, complaint is dismissed without costs.

Parties shall take back extra copies without delay.

Pronounced by this Commission on this the  29^th  day of July 2023.

                                                                                                                                                                                                                            

                                                                                               Sd/-                                                            

                                                                         SMT.ASAMOL P., MEMBER

                                                                                                Sd/-

                                                                   SRI.C.SURESHKUMAR, PRESIDENT

                                                                                                Sd/-

                                                                           SRI.AMPADY K.S., MEMBER

 

 

 

 

 

 

(Cont....9)

 

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APPENDIX

Depositions :

On the side of the Complainant :

PW1 – Hamsakutty K.A.

On the side of the Opposite Party :

Nil

Exhibits :

On the side of the Complainant :

Ext.P1  -  Quotation received in mail from Sahodara Industries to  

                 complainant dated 06/04/2018.

Ext.P2  -  Statement of Account from 01/04/2018 to 26/11/2018

Ext.P3  -  Copy of Tax Invoice received from Sahodara Industries

                dated 04/08/2018

Ext.P4  -  Copy of Ledger from 01/04/2018 to 31/03/2019 received

                from Props and Scaff Company, Vannappuram.

On the side of the Opposite Party :

Nil

 

 

                                                                                                    Forwarded by Order  

 

 

                                                                                        ASSISTANT REGISTRAR