Fitness Gym, complainant (here-in-after referred to as 'complainant') through its Proprietor Madhu Satija has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as 'Act') against Soccer International Pvt. Ltd., and another (here-in-after referred to as 'opposite parties').
Briefly stated, the case of the complainant is that it contacted opposite party No. 2 i.e. Kulwinder Singh Maan an authorised dealer of opposite party No. 1 for purchasing gym equipments on 14-07-2015. The opposite party No. 2 gave quotations in which detail of equipments manufactured by opposite party No. 1 company i.e Soccer International Pvt. Ltd. was also given. The opposite party No. 2 also stated that this company is a reputed company of USA, having manufacturing plant in China and Taiwan and started its business in India. The opposite party No. 2 is one of its dealer. The opposite party No. 2 also revealed that opposite party No 1 has given a guaranty/warranty of 1 year from the date of purchase /invoice and that their skilled person will go with the complainant to install the gym equipments in his premises. The opposite party No. 2 also stated that the head office of this company is at Jalandhar. The Complainant purchased Gym Equipments of the VIVA product Including 3 Treadmills T 1500 and 1 Vibrator on 24-07-2015 and 06-08-2015 vide two separate bills through its authorised dealer i.e. opposite party No. 2. The employees of opposite party came at Abohar along with gym equipments and installed the same in the premises of complainant. The employees of opposite party also assured that they will provide an immediate service in case of any defect in the gym equipments.
It is alleged that at the time of purchasing said machines Dealer Kulwinder Singh Maan Proprietor of opposite party No. 2 and Amit Rana, authorized sales agency in Jalandhar (opposite party No. 1) also assured the complainant that the opposite party No.1 have given 1 year Guarantee/warranty with added assurance for the fast service of change and replacement policy. The company also mentioned its products warranty/guaranty on its website. Kulwinder Singh Maan opposite party No.2 and Amit Rana of Jalandhar gave an assurance that they will provide each and every kind of service and the same are duly written in the agreement.
It is also pleaded that as per company's policy, if any problem arose in any product in future, the company will repair the product. If the product is irreparable, the company will replace that product. It is the liability and responsibility of the company that if any irreparable problem arose in product in future, the company will replace the product/change the product within its guaranty/warranty period.
It is alleged that after about 4 months i.e. on 15-01-2016 Treadmills and vibrator started giving problem/not working properly. It suddenly stopped working due to manufacturing defect. After sometimes, it starts working and sometimes it runs slow not as per specifications. The complainant made complaint through mobile phone to opposite party No.2 and to the Engineer Mr. Vineet Vaid of opposite party No. 1. The opposite party No.1 did not respond. Thereafter complainant again made a complaint through e-mail on 22-1-2016 to the appropriate authority. They also did not respond to complainant's problem. Complainant again made a call to opposite party No.2 and the company sent one of their Engineer for the servicing of the above said treadmills. They serviced the treadmills and also changed the belts of the same. They did not issue any bill or any type of warranty card or acknowledgement. They also charged Rs 2000/- from complainant for changing the belts of treadmills. After service, treadmills again were not working properly. The complainant called opposite parties several times regarding the same problem in treadmills but they did not respond properly. The same problem arose again on 21-03-2016. The complainant called several times to opposite party No. 2 and the company's Engineer Mr Vineet Vaid, but they did not respond.
It is pleaded that opposite party No. 2 revealed to the complainant that he had called company regarding the same problem. Company technician will come on 22-3-2016, but the company technician did not come. The complainant called several times to both opposite parties, but they revealed that technician will definitely come soon. The complainant is facing so many problems because these treadmills are not working properly. Gym members are suffering problems. The reputation and goodwill of complainant's GYM is damaging day by day. The complainant is facing irreparable loss at Gym. The complainant sent legal notice on 30-03-2016 to both opposite parties through its counsel Sh. Abhishek Satija Advocate and Amit Satija Advocate through registered post.
It is pleaded that complainant purchased the machines from the opposite parties and is using the same exclusively for the purpose of earning livelihood by means of self employment. The said machines are not being used for any commercial purpose,
On this backdrop of facts, the complainant has alleged deficiency in service and unfair trade practice on the part of the opposite parties. The complainant has prayed for directions to the opposite parties to change/replace the aforesaid treadmills; refund the amount of Rs. 2,000/- paid for service of treadmills; pay Rs. 1,00,000/- as compensation on account of loss of reputation, goodwill, mental harassment and financial loss etc., and Rs. 11,000/- as cost of litigation. Hence, this complaint.
Notice was issued to the opposite parties. Previously none appeared on behalf of opposite party No. 2. It was proceeded against exparte but subsequently, during evidence stage, opposite party No. 2 appeared through counsel.
The opposite party No. 1 also appeared through counsel but did not file reply within stipulated period. As such, matter was posted for evidence of the complainant. Subsequently, opposite party No. 1 also filed written version alongwith application for placing on record written version. The opposite party No. 1 has not filed reply within stipulated period, as such its prayer was not accepted.
In support of its claim, complainant has tendered into evidence photocopy of quotation (Ex. C-1), photocopy of bills (Ex. C-2 & Ex. C-3), photocopy of e-mails (Ex. C-4 & Ex. C-5), photocopy of detail of equipments (Ex. C-6), photocopy of legal notice (Ex. C-7 & Ex. C-8), photocopy of postal receipts (Ex. C-9 to Ex. C-10), photocopy of A.D. (Ex. C-11), four affidavits all dated 1-8-2016 of Ajay, Gagandeep, Sahil Wadhwa, Vikram Manak, and dated 29-8-2016 of Madhu Satija (Ex. C-12 to Ex. C-16 respectively) and photographs (Ex. C-17 to Ex. C-21).
In order to rebut this evidence, opposite party No. 1 has tendered into evidence affidavit dated 2-2-2017 of Ramesh Chander (Ex. OP-1/1), photocopies of photographs (Ex. OP-1/2 to Ex. OP-1/4, Ex. OP-1/6, Ex. OP-1/11, Ex. OP-1/12), photocopy of comments (Ex. OP-1/5,Ex. OP-1/8, Ex. OP-1/13 to Ex. OP-1/16), photocopy of Gym rank from internet (Ex. OP-1/7), photocopy of number from internet (Ex. OP-1/9 & Ex. OP-1/10).
The opposite party No. 2 has tendered into evidence affidavit dated 6-2-2017 of Kulwinder Singh Mann (Ex. OP-2/1) and closed the evidence.
The complainant and opposite party No. 1 have also submitted written arguments.
We have heard learned counsel for the parties, gone through the record and written arguments of complainant and opposite party No. 1.
Learned counsel for complainant has reiterated his stand as set up in the complaint and as detailed above. It is further submitted by learned counsel for the complainant that although the opposite parties have not filed any written version but both the opposite parties have filed their affidavits ( Ex. OP-1/1 and Ex. OP-2/1) in evidence. In the affidavit submitted on behalf of opposite party No. 1 by Ramesh Chander, he has admitted that if there is any defect in the sold machine, the same is secured or repaired and if it is not repairable then it is to be replaced within 15 days from the date of purchase. It is further admitted that after 15 days period within warranty period, company will provide free of charge repairs for faults against manufacturing defects. Repair beyond warranty period will be on chargeable basis. Therefore, opposite party No. 1 has admitted that they are liable to provide free services within warranty period. The products/equipments were purchased on 24-7-2015 and 6-8-2015. Invoice Ex. C-2 & Ex. C-3 proves this fact. The complaints were lodged in January, 2016 and then in March, 2016. Therefore complaints are also within warranty period. The opposite parties have failed to do the needful despite their liability. As such, complainant has suffered economically, as well as mentally and physically.
It is further submitted by learned counsel for the complainant that main objection of the opposite parties is that products were purchased for commercial purposes. The complainant has categorically stated in the complaint that machines were purchased for the purpose of earning livelihood by means of self employment and the machines are not being used for any commercial purposes. The opposite parties also filed application for dismissal of complaint on this ground and the application was already dismissed by this Forum vide order dated 6-10-2016 and no revision was filed by the opposite parties against this order. Therefore, this point has already been examined and decided. Even in case of purchase of any machinery for commercial purposes, the supplier has to provide service as per warranty terms and conditions and this aspect falls within the definition of consumer.
In support of these submissions, learned counsel for the complainant has cited :-
(i) 1995 SCC (3) 583 case titled Laxmi Engineering Works Vs. P.S.G. Industrial Institute.
(ii) 1992 (1) C.P.J. 140 case titled The Secretary Consumer Guidance and Research Society of India Vs. B.P.L. India Limited
(iii) 2013(3) C.P.J. 9 case titled C P Moos Vs. Chowgie Industries Ltd., & Anr.
(iv) 2012 (4) CPJ 245 case titled Action Construction Equipment Ltd., & Anr. Vs. Bablu Mridha
(v) 1991(1) CPJ 499 case titled Synco Textiles Pvt Ltd., Vs Graves Cotton & Company Ltd.,
(vi) 2015(2) CLT 1 case titled as M/S Pressweld Engineers Vs Sri Jayram Reddy & Anr.
On the other hand, learned counsel for opposite party No. 1 has submitted that firstly it is to be seen that complainant falls within the definition of consumer and only then this Forum can decide the matter. The complainant has purchased machinery for commercial purposes and not for earning livelihood. In complaint, the complainant has revealed that its Zym members are suffering and reputation and goodwill of Zym is damaging and complainant is suffering irreparable loss at Zym. This pleading also proves that Zym equipments were purchased for commercial purposes. The complainant has also alleged that reputation of Zym is going down day by day but as a matter of fact their rating graph on the net and the city has increased instead of decreasing which is clearly shown from the review updates uploaded on the internet by the complainant itself. As per photographs downloaded from the net on 1-9-2016, it is clearly proved that Gym is running on very large scale with well furnished facilities. The legal notice was sent through their counsel Sh. Abhishek Satija and Amit Satija. It is also clear from the notice that machine was purchased for business purpose only and not for livelihood. In legal notice it was mentioned that Zym members are suffering discomfort due to which reputation and goodwill of Zym is reducing and damaging day by day. They are facing irreparable loss at Gym. This averment also shows that Zym is on commercial basis and not for only earning livelihood.
It is further submitted by learned counsel for the opposite parties that actually Zym is not being run by complainant. It is being run by Abhishek Satija and Amit Satija. The mobile number mentioned on the invoice belongs to Amit Satija, Advocate. This fact is also verified from true caller (Ex. OP-1/9). Amit Satija and Abhishek Satija approached opposite party No. 2 for purchase of Zym equipments. This fact stands cleared from the e-mail forwarded by Abhishek Satija to
It is further submitted by learned counsel for opposite parties that complainant has alleged manufacturing defect in the machine but without any evidence. The complainant has also relied upon quotation (Ex. C-1). It is categorically mentioned that if any manufacturing defect is found within first 15 days from the date of purchase, the opposite party will extend their support and replace the part or product depending on the nature of fault. Therefore after 15 days of purchase, the complaint regarding manufacturing defect is not entertainable. Even otherwise the complainant has purchased the equipments on 24-7-2015 and 6-8-2015. The complainant has alleged that fault occurred in January, 2016 after about 4 months. The next defect was noticed in the month of March, 2016. From this averment also, it can be safely inferred that complainant used the equipments before 15-1-2016 without any defect. Therefore, in these circumstances, the allegations of manufacturing defect are without any basis and are liable to be rejected.
The next submission of learned counsel for the opposite parties is that if this Forum comes to the conclusion that complainant falls within the ambit of 'consumer', the liability of the opposite party is only to provide service as per terms and conditions mentioned in the quotation. As per warranty terms after 15 days and within warranty period, the company can provide free of cost repair and the expenses of the parts replaced are to be borne by the complainant. The company is only to provide repair free of charges i.e. only labour charges are not to be claimed. The opposite parties never refused from providing service as per terms and conditions. The complainant has also claimed compensation but there is nothing to show any loss suffered by the complainant. It is worth mentioning that after filing of complaint, the complainant has purchased one steam bath machine for Zym. This fact also leads to the inference that complainant has not suffered any loss rather complainant is doing business at large scale.There are about 250 members of the Gym of the complainant. They are charging Rs. 1500/- to Rs. 1600/- from each of the member. Rating of the Zym is second in the city of Abohar with 4.8 rating as on 1-9-2016. This fact stands established from the rating card (Ex. OP-1/6 and Ex. OP-1/7). Therefore, complainant is not entitled to any compensation.
To support these submissions, learned counsel for the opposite parties cited :-
(i) First Apeal No. 1004 of 2013 decided on 22-1-2016 case titled Prabhjit Singh Vs. Standard Tractors and another
(ii) 2001(1) CPC 371 case titled Raj Kumar Vs. S C Verma and others
We have carefully gone through the record and have considered the rival contentions.
From the rival arguments, following points have emerged for examination :-
(i) whether complainant is consumer
(ii) whether there is manufacturing defect
(iii) compensation
As per complaint Zym equipments were purchased. The complaint has also been filed on behalf of Fitness Zym i.e. Zym, being run by complainant. In complaint, the complainant has pleaded that she purchased machines and exclusively used the same for the purpose of earning livelihood by means of self employment and the same was not being run for any commercial purposes. Section 2(1)(d) defines consumer as under :-
“Consumer” means any person who -
(i) 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 user 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;
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed or with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes.
Explanation – For the purposes of this clause “Commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self-employment.”
A perusal of above definition reveals that if goods are purchased for resale or for any commercial purposes, the purchaser does not fall within the definition of consumer. Explanation appended to this definition further explains the meaning of commercial purposes by clarifying that commercial purposes does not include use by a person of goods bought and used by him for earning his livelihood by means of self-employment.
The contention of opposite parties is that complainant is running Zym at large scale. There are number of members. Complainant is earning huge profit. There is no evidence to prove this fact. Even otherwise running Zym at large scale and earning huge profit will not exclude the complainant from the definition of 'consumer' when it is proved that machines/equipments are being used to earn livelihood by means of self employment. Both the parties have relied upon the judgement of Hon'ble Apex Court rendered in the case Laxmi Engineering Works (supra). In this judgement also, it was observed as under :-
“...in other words, if the buyer of goods uses them himself, i.e. by self employment, for earning his livelihood, it would not be treated as a 'commercial purposes' and he does not cease to be a consumer for the purposes of the Act. The explanation reduces the question, what is a 'commercial purpose' to a question of fact to be decided in the facts of each case. It is not the value of goods that matters but the purpose to which the goods brought are put to.”
Therefore, from these observations it is clear that commercial purpose is to be decided keeping in view facts of each case.
The matter can be examined from other aspect also. Of course the machines were purchased for running Zym but the complainant has also alleged that opposite parties have failed to provide service as per terms and conditions.
In the case of M/s Pressweld Engineers Vs.Sri Jayaram Reddy & Anr. cited as 2015 (II) CLT 1, Hon'ble National Commission also observed that :-
“Even though the machine/equipment is used for commercial/ industrial purposes, if any manufacturing defect occurs during the warranty period then the issue is covered under the Act and for that purpose purchaser of equipment is entitled to file a complaint under the 'Act'.
Keeping in view the aforesaid observations of Hon'ble National Commission also, complainant certainly falls within the definition of 'consumer'.
The complainant has pleaded that there is manufacturing defect and on the basis of this allegation, the complainant has also prayed for change/replacement of treadmills. The treadmills were purchased on 24-7-2015 and 6-8-2015. The complainant herself has relied upon quotation (Ex. C-1). It is made clear in the quotation that if any manufacturing defect is found within first 15 days from the date of purchase, the opposite parties can extend their support and replace the part or product depending on the nature of fault. It is clear from this condition that complaint regarding manufacturing defect, if any, was to be made within 15 days from the date of purchase. Admittedly, no complaint was lodged within this prescribed period regarding any manufacturing defect. The complainant has also not produced any expert evidence to prove manufacturing defect. In the complaint, it is pleaded that on 15-1-2016, treadmills and vibrator started giving problem/not working properly and the complainant lodged complaint, which was attended although at belated stage by the opposite parties and serviced treadmills and changed the belts. It is further case of the complainant that same problem occurred on 21-3-2016. Complainant called several times to the opposite parties but they did not respond to the complainant till filing of complaint. The opposite parties have laid much stress on the point that complainant is not consumer. The averment of the complainant regarding complaint of 21-3-2016 is not categorically denied. It is well settled that when any allegation is not categorically denied, it is to be accepted as true. Therefore, it is to be accepted that complainant lodged complaint on 21-3-2016 for the same problem which occurred in January, 2016. It is not the case of the opposite parties that they attended to this complaint. Of course the opposite parties failed to file any written reply but in affidavit (Ex. OP-1/1), Ramesh Chander, authorized person of opposite party No. 1 has admitted that after 15 days period within warranty period, company will provide free of charge repairs for faults against manufacturing defects. Repair beyond warranty period will be on chargeable basis depending on the nature of problem and availability of spares/continuance of model. In this way, the opposite parties have admitted their liability to provide service within warranty period for any manufacturing defect. In quotation (Ex. C-1) also, it is made clear that after 15 days within warranty period, company will provide free of charge repairs for faults against manufacturing defect. This fact also proves liability of the company to provide repairs within warranty period free of charges. The learned counsel for the opposite parties has tried to restrict their liability only to the point of labour charges and not for defected parts but this contention is not acceptable. If contention of the opposite parties is not to claim only service charges, then it was to be specifically mentioned that there will be free service. There was no purpose to refer about repair for faults against manufacturing defects. The opposite parties have tried to escape from their liability only by narrowing meaning of the warranty as provided in the quotation and admitted by the opposite parties.
Admittedly the opposite party No. 1 has not attended the complaint lodged on 25-3-2016 till the filing of complaint and it forced the complainant side to file complaint. Therefore, this lapse on the part of the opposite party No. 1 certainly amounts to deficiency in service and unfair trade practice.
The complainant has claimed compensation to the tune of Rs. 1,00,000/- on account of loss of reputation, goodwill, mental harassment and financial losses etc., but there is no evidence to prove this fact. It is well settled that compensation is to be granted keeping in view the entire facts of the case. The complaint was lodged in the month of March, 2016. It is admitted fact that complainant purchased equipments to earn livelihood by means of self employment. The complainant certainly suffered on account of non working of equipments for such a considerable period. Therefore, complainant is held entitled to compensation to the extent of Rs. 30,000/-.
In view of what has been discussed above, this complaint is partly accepted with Rs. 10,000/- as cost against opposite party No. 1 and dismissed qua opposite party No. 2. The opposite party No. 1 is directed to provide free service and remove defect in the treadmills in question as reported in the complaint dated 21-3-2016. The opposite party No. 1 is also directed to pay Rs. 30,000/- as compensation to complainant. It is made clear that warranty period shall also stand extended for these treadmills after excluding the period of pendency of complaint i.e. from 21-3-2016 til the repair of machine.
The compliance of this order be made within 45 days from the date of receipt of copy of this order.
The complaint could not be decided within the statutory period due to heavy pendency of cases.
