1.         The present Revision Petition (RP) has been filed by the Petitioners against Respondent as detailed above, against the order dated 12.06.2018 of the State Consumer Disputes Redressal Commission,  Madhya Pradesh (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No. 949 of 2008 in which order dated 05.02.2008 of District Consumer Disputes Redressal Forum, Gwalior (hereinafter referred to as District Forum) in Consumer Complaint (CC) No.481 of 2007 was challenged, inter alia praying for setting aside the order dated 12.06.2018 of the State Commission.

2.         While the Revision Petitioner(s) (hereinafter also referred to as Opposite Party(s)) were Appellant(s) before the State Commission and OP before the District Forum and the Respondent (hereinafter also referred to as Complainant) was Respondent before the State Commission in FA No. 949 of 2008 and Complainant before the District Forum in Complaint No. 481 of 2007.

3.         Notice was issued to the Respondent on 26.09.2018.  Parties filed Written Arguments on 10.10.2023 (Petitioner) and 17.10.2023 (Respondent) respectively. 

4.         Brief facts of the case, as presented by the Complainant and as emerged from the RP, Order of the State Commission, Order of the District Commission and other case records are that: -

            (i)        The Complainant/Respondent is a proprietary firm and manufactures Flex Sign Boards and ordered a machine named Wit Colour Flax Printing Machine for Rs.6,50,000/- from the Opposite Parties/Petitioners. Payments totaling Rs.4,15,000/- were paid via demand drafts and cheques. Despite this, the Opposite Parties /Petitioner sent a Max Zed Machine instead. Upon the Complainant/Respondent’s complaint regarding the machine, Opposite Parties suggested YS 3204 Ishan Machine and agreed to accept the Max Zed Machine in return.

          (ii)       The Complainant subsequently paid an additional Rs.6,35,000/- for the YS 3204 Ishan Machine and issued post-dated cheques. A total of Rs.7,40,000/- was paid, including Rs.1,05,000/- for ink and accessories.

          (iii)     The Machine, which was received on 12.09.2006, failed to start despite numerous attempts by the OP’s engineer. Due to ongoing issues with starting the machine, the Complainant stopped payment on three post-dated cheques. Notices were sent by the Complainant, but the OP did not resolve the issues of the machine and initiated legal action under Section 138 of the Negotiable Instruments Act against the Applicant.

(iv)      Despite paying Rs.1,50,000/- under pressure, the machine remained non-functional. The OPs did not keep their promises to start and install the machine, leading to further complaints. The machine continued to be defective, and attempts to repair it were unsuccessful. The OPs failed to replace defective parts properly or start the machine.

(v)       The Complainant has suffered significant financial loss and mental distress due to the OPs’ failure to provide a working machine or timely service. The Complainant seeks (a) Repair and proper installation of the machine. (b) Compensation of Rs.5,00,000/- for inconvenience and financial loss. (c) Refund of Rs.12,00,000/- with 12% annual interest from 12.09.2006. (d) Court and counsel fees of Rs.20,000/-. As the case is within this court’s jurisdiction as the transactions and payments occurred in Gwalior.

5.         Vide Order dated 05.02.2008, in the CC no. 481 of 2007 the District Commission has allowed the complaint and passed the following order:

“Resultantly, by allowing the present complaint, Opposite Parties are ordered that they by starting the machine sold out by them to the complainant, within a period of one month, shall provide 6 months’ warranty and service or to make refund of Rs.12,00,000/- (Rupees Twelve Lakhs) to him. The Opposite Parties shall also pay compensation of Rs.1,00,000/- (Rupees One Lakh) and Rs.2,000/- (Rupees Two Thousand) towards the expenses of this case, to the Complainant. The Opposite Parties shall be liable to pay the amount in the same ratio, in which they have received the amount from the Complainant. The liability to pay the compensation and costs, shall be joint. In the event of not starting machine within a period of one month, further monthly compensation of Rs.10,000/- (Rupees Ten Thousand) would be payable.”           

6.         Aggrieved by the said Order dated 05.02.2008 of District Commission, OP(s) appealed in State Commission and the State Commission vide order dated 12.06.2018 in FA No. 949 of 2008 has dismissed the appeal.

7.         Petitioner(s) have challenged the said Order dated 12.06.2018 of the State Commission inter alia on following grounds:

1. The Complainant/Respondent is not a consumer under Consumer Protection Act, 1986 as he is the proprietor of M/s Agrawal Plastic Sign Industries, a firm registered under the provisions of the Madhya Pradesh Shops and Establishment Act, 1958 (Madhya Pradesh Dukan Evam Sthapna Adhiniyam, 1958), and has been running it for commercial purposes. The commercial purpose is reflected by the direct nexus between the purchases of the said machine and its operation for the purpose of earning revenues in this firm.

2. The Forums below have committed manifest error of law and material irregularity in examining the basis of complaint of the Respondent that the few reports which are handwritten and the said report itself reveals that there was fault in machine due to short circuit and the machine was damaged and mishandled by the Respondent. Therefore the impugned judgement confirming order of district forum is bad in law and not sustainable in facts of present case.

3. The Forums below have failed to appreciate material part of record and there has been grave error apparent on fact of record, in that, the Respondent has dishonestly claimed to have paid the amount of Rs.6,50,000/- for the said machine whereas that amount only constitutes the price of ink of the said machine, even out of which he has only paid Rs.3,90,000/-. Therefore the forums below have wrongly directed to pay amount of 12 lacks.  

4. The State Commission failed to appreciate the fact that the cheques issued by the Complainant/Respondent amounting to Rs.1,50,000/- were stopped from being paid by him only a day after issuing them, which shows malafide intention on his part to cheat the Petitioners. 

8.         Heard counsels of both sides.  Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.

            8.1       In addition to the averments made under the grounds (para 7), the petitioner contended that the Respondent took the machine in working condition and arranged transport of the machine to Gwalior on their own. As per the letter dated 27.05.2007 filed along with the complaint, the Respondent stated that some parts were damaged by short circuit including the damage of the headboard, servo motor was not working and there was a volt problem. Further there was a software error which was corrected by the Petitioner’s engineer and the machine was accepting print command thereafter, the power board was not functioning which was also repaired. The Respondent on the basis of some frivolous remarks in Hindi filed the complaint on 14.08.2007.

            8.2       On the other hand Respondent contended that initially the Petitioner supplied Max Z machine which is of lower cost than the machine ordered by the Respondent. Later, when asked for refund, Petitioner was not ready to refund the cost of Max Z and suggested YS 3204 Ishaan Flex Printing Machine which was double the cost of the earlier machine. On repetitive complaints, Petitioner failed to repair the machine or exchange the defective parts which lead to financial loss of Rs.5000 per day to the Respondent.

9.         We have carefully gone through the orders of the State Commission, District Forum, other relevant records and rival contentions of the parties. In this case, there are concurrent findings of both the fora below as regards deficiency in service on the part of OPs/Petitioners herein. Objections of OPs with respect to maintainability of Complainant have been duly and appropriately addressed by the foras below and we are in agreement with the same. Extract of relevant paras of orders of State Commission is given below:

“9. On bare perusal of the record of the Forum and after considering the arguments advanced by counsels for parties, we find that the payment was made to the appellant from the accounts of the respondent maintained at Gwalior. The machine was to be installed at Gwalior only, therefore, the arguments of the learned counsel for appellant that the District Forum, Gwalior had no territorial jurisdiction to entertain the complaint are baseless and therefore, cannot be accepted. It is further observed by us that the machine was to be installed in the shop admeasuring 230 sq. m, therefore, it cannot be said that the machine had been purchased for commercial purpose, especially when the complainant in his complaint has made specific averments that he had purchased the machine to earn his livelihood by means of self-employment. The opposite party/appellant also failed to prove that several labourers are working in his shop, therefore, it cannot be said that the machine was purchased for commercial purpose, on the contrary, it is evident that the machine was purchased for subsistence of his family for earning livelihood by means of self-employment.

10. It is also proved beyond doubt that the entire payment of the cost of the machine was made to the appellants. Evidence adduced by the complainant/respondent i.e. the reports of the Engineers that they failed to install the machine in running condition was not rebutted by the opposite party/appellant. It was the bounden responsibility of the opposite party/appellant to have installed the machine in running condition to the satisfaction of the complainant/respondent after receiving the entire cost in advance. It is evident from the Annexures C-8, C-9 and C-10, the reports furnished by the Engineers of the appellant company that machine could not be installed in running condition because of manufacturing defects. It is proved that there is gross deficiency in service and unfair trade practice on the part of the opposite party/appellant and therefore, the opposite party/appellant cannot escape from its liability. We are not convinced by the arguments of learned counsel for appellant.”

10.       Extract of relevant paras of orders of District Forum is also reproduced below:

“7. Now, the following issues arise before me for disposal of present case :-

(1) Whether, the Complainant is consumer and the present compliant is maintainable?

(2) Whether, machine sold out by the opposite parties to the complainant is defective and same could not have been started by the opposite party even after various attempts?

(3) Whether, the complainant is entitled to get started the machine or to receive it's value, interest and other compensation?

8. It is undisputed that Complainant is the proprietor of Agrawal Plastic Sign Industries, who is engaged in the business of making Flex Sing Boards by operating the Colour Flex Printing Machine. Complainant pleads that through this, he earns his livelihood. Although, it has been stated by the opposite party that this machine was purchased by the complainant for not to earn his livelihood, in fact, for earning profit. Opposite Party also states that Complainant is engaged in the business activities at large scale and he by employing many persons is engaged in the business. But, in this regard, no evidence has been produced by the Opposite Party. According to the Opposite Party himself, Vivek Poddar and Vinod Poddar did not visit Gwalior regarding this deal. They are also not residing or working in the Gwalior. In this situation, their affidavits are immaterial. The affidavit of any other witness has not been produced on behalf of the Opposite Party.

9. Contrary to it, it has been clarified in the affidavit filed on behalf of the Opposite Party that his business is very small, which runs in a shop having size of 230 sq. ft. Alongwith him, his son namely Mayank Agrawal helps him in this business by making designs on computer. His father Sh. Kishan Lal Agrawal, regarding whom Opposite Party has made statement that he is the controller and manager of this Industries, has died on 07.11.1992. The Opposite Party could not have produce the rebuttal of the affidavit of Complainant and other evidences. Therefore, there is no reason to disbelieve this evidence of Complainant. Accordingly, the complainant does not go out from the purview of consumer.

10. Undisputedly, Opposite Parties run their business activities in Mumbai and the said Machine has also been sold out by them in Mumbai. Although, Complainant states that amount has been paid to the Opposite Party in Gwalior, but, merely due to issuing Cheque or Drafts in Gwalior and on the basis of it's clearance from the account of complainant in Gwalior, it cannot be said that the payment of this amount was made by the Complainant in Gwalior or transaction has taken place in Gwalior. It has not been stated or proved that any Agent of Opposite Party would have visited Gwalior and discussed regarding the sale of machine in Gwalior. It is also not alleged and proved that any person of Opposite Party had supplied the machine to the Complainant in Gwalior and he had received the same from any representative of the Opposite Party. In these circumstances, it is not proved that the machine was sold in Gwalior. Although, it is undisputed that the machine was sold out by the Opposite Parties to the Complainant with this understanding that this machine would be used or operated in Gwalior. Opposite Party by sending his Engineer to Gwalior, has proved service regarding the machine. In these circumstance, as it has been laid down by Hon'ble National Commission in the judicial precedent of Rampian Pharmaceutical Vs. Dr. Pritam Shah, 1 (1997) CPJ 23 (NC), this complaint does not appears to be beyond the jurisdiction of this Forum.

11. It is undisputed that Y.S. 3204 Ishan Flex Printing Machine was sold out by the Opposite Party to the Complainant and Opposite Parties has received it's full cost. Complainant states that opposite party could not start machine till date and in this regard, the affidavit filed on behalf of the complainant and copy of Report prepared by the Engineers of the Opposite Parties i.e. Exh. C-8, C-9 and C-10 are important, wherein, the engineer of Opposite Party has clearly mentioned that the machine could not have been started. Not other evidence has been produced by the Opposite Parties, from which, it would appear that the machine was started and complainant had done any work on it.

12. Although, Opposite Party states that this machine got out of order due to mishandling and due to operating the same by unskilled persons, but, in this regard, no evidence has been produced on behalf of the Opposite Party. So far, no fact in this regard has also been mentioned by the Engineers of Opposite Parties in their Report. The affidavit of Engineers of Opposite Parties have also not been produced in the present case. This fact does not appear to be natural that Complainant after payment of Rs.12,00,000/-, and after purchasing the Machine in question, would cause damage to the machine through mishandling or by getting operated the same through unskilled person and would not like to earn profit from this machine. In this circumstances, it can be inferred that the this machine of Opposite Parties could not have been started due to the manufacturing defect or due to any technical fault and Opposite Parties could not have started this machine till date.

13. Apparently, this act of the Opposite Party comes under the purview of unfair trade practice and deficiency in service. Therefore, Complainant becomes entitled to receive the relief from the Opposite Parties. As the complainant has remained deprived from using this machine upto a period of 1 year, therefore, it would be appropriate to grant compensation of Rs.1,00,000/- to him. This amount is equal to the 8% interest per annum on the amount of Rs.12,00,000/-.

14. It is pertinent to mention here that the Invoice/Cash memo of Machine sold out by the Opposite Parties to the Complainant, has also not been issued. This act of the Opposite Parties is like in offence of causing loss of revenue to the Government. Therefore, in this regard, it would be appropriate to inform Commercial Tax Department of Mumbai, so that, they could recover the revenue from the Opposite Party.

15. Resultantly, by allowing the present complainant, Opposite Parties are ordered that they by starting the machine sold out by them to the complainant, within a period of one month, shall provide 6 months' warranty and service or to make refund of Rs.12,00,000/- (Rupees Twelve Lakhs) to him. The Opposite Parties shall also pay compensation of Rs.1,00,000/- (Rupees One Lakh) and Rs. 2,000/- (Rupees Two Thousand) towards the expenses of this case, to the Complainant. The Opposite Parties shall be liable to pay the amount in the same ratio, in which they have received the amount from the complainant. The liability to pay the compensation and costs, shall be joint. In the event of not starting machine within a period of one month, further monthly compensation of Rs.10,000/- (Rupees Ten Thousand) would be payable.”

11.       Both the State Commission and District Forum have given well-reasoned orders and we find no reason to interfere with these findings. As was held by Hon’ble Supreme Court in catena of judgments^[1] that revisional jurisdiction of the National Commission is extremely limited, it should be exercised only in case as contemplated within the parameters specified in the provision i.e. when State Commission had exercised a jurisdiction not vested in it by law or had failed to exercise jurisdiction so vested or had acted in the exercise of its jurisdiction illegally or with material irregularity.  It is only when such findings are found to be against any provisions of law or against the pleadings or evidence or are found to be wholly perverse, a case for interference may call for at the second appellate (revisional) jurisdiction. In exercising of revisional jurisdiction, the National Commission has no jurisdiction to interfere with concurrent findings recorded by the District Forum and the State Commission, which are on appreciation of evidence on record. We find no illegality or material irregularity or jurisdictional error in the orders of the State Commission, hence the same is upheld. Accordingly, the RP is dismissed.

12.       The pending IAs in the case, if any, also stand disposed off.