O R D E R
(By Sri D.Shanker Rao, Member)
1. The brief facts set out in the complaint are that the complainant is running jewelleries business under the name and style of ‘M/s DURGASREE JEWELLERS’ at Shop No.4, Dharmakanta Complex, Marwadigally, Nizamabad. The family members of the complainant have totally depending upon the earnings and income of the said business.
The opposite party firm used to visit Nizamabad and other areas for developing their business activities and to receive booking orders for supply of all kinds of sheet & wire drawing machine, chin machine, die hand press and power press etcetra. The opposite party has received order from the complainant at Nizamabad for supply of two machine Anker automatic (side Anker) for 1 gm 5 size and 1 gm 6 size for Rs.2,70,000/- each and the total amount is for Rs.5,40,000/- and VAT is @ 12% including the packing-charges and issued order Form bearing No.353 dated 5-12-2010 and assured the delivery of said machines within 45 days. Accordingly, the complainant has credited the amounts Rs.25,000/- on 21-12-2010, Rs.75,000/- on 3-1-2011 and Rs.25,000/- on 6-1-2011 to the opposite party SB account bearing No.30555474646 of State Bank of India at Nizamabad. In addition to this Rs.75,000/- in cash also paid to the opposite party.
The opposite party has been dodging the matter on one or other pretext in supplying and delivery the said two machines. The complainant having vexed and got issued legal notice to opposite party on 8-8-2011 but it replied instead of delivery the said to machines. Therefore complainant has filed this complaint against the opposite party for delivery of said to machines or refund the amount of Rs.2,00,000/- with 24% interest per annum and Rs.3,00,000/- as damages and costs of the proceedings.
2. The opposite party remained ex-parte throughout the proceedings.
3. During enquiry, the complainant K.Nagashushanm has filed his affidavit as PW1 evidence and marked Ex.A1 to A4 documents and closed his evidence.
4. The points for consideration are :
1) Whether the complaint is maintainable under consumer protect Act ?
2) To what relief?
5. Point No.1 and 2: The pleadings of the complainant are that the complainant is a business man and doing jewellery business under name and style of “M/s DURGASREE JEWELARIES” and in the course of his business on 5-12-2010, he booked two machines Ankar automatic (side Ankar) for 1 gm. 5 size, and 1 gm. 6 size for total amount of Rs.5,40,000/- at opposite party for supplying the same to him at Nizamabad within 45 days for purpose of his jewellery business. Further the complainant has claimed that his family members are depending upon the earnings and income of the said business from which it can be presumed that his earnings is under “SELF EMPLOYMENT BUSINESS”. Therefore, the complainant has to prove whether his jewellery business comes under his self-employment business or not?. In order to prove the case, the complainant filed his affidavit and marked Ex.A1 to A4 documents. Ex.A1 is the order Form bearing No.353 dated 5-12-2010 issued by opposite party. Ex.A2 having three counter foils of SBI of Nizamabad showing the transfer of different amounts into the S.B. account bearing No.30555474646 on different dates. Ex.A3 is legal notice dated 8-8-2011 issued by complainant. Ex.A4 is the reply to legal notice on 29-8-2011 issued by Mr.Bipin stated to be representative of opposite party. Further no such document or evidence adduced by the complainant with regard to the plea of self-employment business, except written endorsement in the complainant as well as chief-affidavit of the complainant as PW1 evidence like as family members of the complainant are depending upon the income and earnings of his business.
Therefore the complainant is failed to prove the plea of his jewellery business is under “SELF EMPLOYMENT” business for the livelihood of his family members. Now coming to the point is that whether the complainant is “Consumer” under consumer protect Act, 1986? The definition of the “Consumer” prescribed in Section 2 (1) (d) (1) of Consumer Protection Act is herewith reproduced for the purpose of finding the status of complainant.
Section 2 (1) (d) (1) of Consumer Protection Act:
(d) “Consumer” means any person who:
buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any use of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose.
In the instant case the complainant has booked said two machines for the purpose of his jewellery business which clearly goes to show that they are for his commercial purpose. Hence the complaint is not ‘Consumer’ as defined U/s 2 (1) (d) (1) of Consumer Protection Act, 1986. We are of the considered opinion that the complaint itself is not maintainable under Consumer Protection Act, 1986 and the same is liable to be dismissed. However the complainant is at liberty to file his case before the proper court of law for the reliefs.
The forum is not intended to go into the finding of the case facts when the legal position of the case as found as not maintainable under Consumer Protection Act, 1986.
In view of aforesaid reasons and findings, the complaint is liable to be ‘DISMISSED’ but no costs in the circumstances of the case.
6. IN THE RESULT, the complaint is DISMISSED but no costs in the circumstances of the case.
Typed to dictation, corrected and pronounced by the Member in Open Forum on this the 27th day of February 2013.
